“Nationality is the principle link between an individual and international law” Justify the statement and distinguish nationality from domicile and citizenship.
Introduction:
In a world of increasing interaction across national, and the importance of personal safety during operations increased simultaneously. Nationality is the principal link between individuals and states but also is the bridge connecting individuals with international law. Among the principal men of the nations, and nations, but connects each end of the bridge of Justice. A crowd gathered to belong to another country, cannot but by the faith of the ambassadors from the initial position. Nevertheless, due to the dual city, and there are a lot of challenges facing effective diplomatic protection to the population. Formed, because the principle of effective national judicial practice by the International Court of Justice.
The concept of “Nationality”:
Nationality is the legal relationship between a person and a state. The person becomes subject to the state’s laws, even while not physically present in the state, in exchange for the state’s protection, and other rights.
Nationality of the person is the subject of high quality. Citizenship especially with regard to foreign persons or property is important for important people. First the main link between the individual and the state. This line can be protected by the state, is proved.
Second, to some extent, people are not subjects of international law, and therefore they are used in a direct rights and international law, we cannot take responsibility. These people are, as a rule of international law, the benefits that you can enjoy through the medium of their citizenship.
The first is usually determined by the political situation of the country, this is one thing. And anyone who wants to judge, should be considered as citizens of this country. But achieving a legitimate laws, the laws of the city losing more on this topic in several areas, most of all, it was perfectly suited to the nation, and no more, and no wonder. The determination by each state of the grant of its own nationality is not necessarily to be accepted internationally without question. For example, when a dual national seeks diplomatic protection in some third state, that state is not answerable to both of states of his nationality but only one of them. In this situation, the third state is entitled to judge which nationality should be recognized.
As stated in the Hague Convention of 1930 ART1 certain issues relating to the conflict in citizenship laws, even if it is for each State to determine under its own law who are its nationals, shall be such as the right to be recognized by other states only “we agreed that in so far as it is the custom, usage, and they know that the law of nations” in “Nottebohm” case, the International Court of Justice in relation to the nation. “like” as a legal relationship with the foundation of social reality, attachments, a genuine connection of existence and phrases, one with the existence of reciprocal rights and obligations. The name of it is it would be, either directly or by an act, ie, they set up to take any more closely related than the state of the “This is true nationality, and by the sentence of the state of things, and productive of such great things have been done, perhaps, in the person of the communion of the other parts of the subject, what is the state of it is attached. Things for various is varied and the causes of things, it were a matter of great importance is the man, being yet present there, but the other objects, such as the center of the grace, the communion of the families of the sons also of them publicly in the press is the appendix to his native land, and so on, according to this principle, and recognize any state or to a state does not comply with, International court of Justice in the “Nottebohm” case was filed in this principle and the right to protection of Liechtenstein refused “Nottebohm”.
The Dual Functions of Territorial Links:
The controversies in both arenas over the most appropriate link between person and territory may be due in large part to a conflict of functions which their respective pairs of competing concepts have tended to conceal. One function has been to provide, in Mr. Justice Holmes’ oft-quoted words, the “technically preeminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined.”[1] Some of these rights and duties are in the domain of public law, and, for them, domicile may be indicated in this country because of its association with state citizenship. For unitary nations, the apt headquarters is the nation itself, and nationality, the determining factor. However, certain private legal relationships-both the personal and the property relationships within the family, for example-have seemed of such social importance that their allocation to the jurisdiction of the headquarters has been a natural development, if probably an obsolescent one.
At the same time courts have recognized that a person’s connection with a particular social, economic, or political environment was a factor that often merited consideration in determining whether to apply the territorial law operative within that environment to an event or transaction involving the person or whether to open the courts of the territory to adjudicate claims by or against him. Yet a rule that automatically subjected such questions to the governance of the headquarters law invited trouble. Such troubles have multiplied as the choice-of-law process has come increasingly to take into account the purposes of competing laws and jurisdictional rules adapted with greater flexibility to the matters presented for adjudication.
The concept of “Domicile”:
Domicile means the place where an individual has a true, fixed permanent home, and to which place, whenever the person is absent, he or she has the intention of returning. An individual may have several places of abode in a year, but at no time can he or she have more than one domicile. Domicile is not limited to a specific structure, but refers rather to a place or an area to which the individual expects to return. Domicile is established by birth, operation of law, or choice.
Once established, domicile is never lost, changed or destroyed unless there is an actual change in the residence, together with steps manifesting an intention to abandon the former residence and acquire a new one. A mere intent or desire to make a change in domicile is not sufficient to effectuate a change; voluntary and positive steps must be taken.
The concept of “Citizenship”:
The word ‘citizen’ derives from the Latin ‘civis’ or ‘civitas’, meaning a member of an ancient city-state, preeminently the Roman republic. But civitas was a Latin rendering of the Greek term polites, a member of a Greek polis. The polites or citizen as defined by Aristotle was as a person who, by living in the city, participated in a process of cultivation, someone who rules and is ruled in turn. Thus, historically, citizenship was brought up as a demarcation of an urban community of equals. For the Greeks, there was no clear distinction between morality and legality. A citizen was essentially a political being, by which was meant both a moral and a legal entity. Citizenship was an inherited privilege and included the rights to vote; to hold elective and appointive governmental offices; to serve on various sorts of juries; and generally to participate in political debates as equal community members. But since the polis was based on a restricted principle of equality between those included, as well as on a clearly defined territory, it also strictly excluded most of the population from participation in public affairs. Thus from the beginning, the term entails exclusion, since not everyone is in possession of it. In fact, most inhabitants of Athens, including the foreigner Aristotle himself, were ineligible to participate in citizenship. The more expansive or exclusionary citizenship becomes, the less it has to offer citizens. Consequently, it must be restricted. The Greeks preferred a strong citizenship of exclusion in order to restrict social resources and political rights to a small number of persons. Exclusion could either take the form of banishment from the geopolitical territory or subordination to non-citizen status, as was the fate of slaves, women, and children.
The modern understanding of citizenship emerged with the creation of an international system of states and was formalized and institutionalized along the lines of state formation. Thus, modern citizenship was born out of the nation-state in which certain rights and obligations were granted to individuals under its authority. The state and citizenship became necessarily combined to form effective technologies of government. With the development of advanced administrative structures of the system of national governance, the state was able to mobilize citizenship as an aspect of nationalism. Nationalism consists of a collective claim to “nationhood”, which psychologically entails a claim of “groupness”, typically articulated in a definition and legitimization of the group and its boundaries based on historic, territorial, linguistic, religious, or cultural interdependence among its members. It comes along with a message of in-group distinctiveness and intergroup differentiation, as well as territorial claims. Nationalism therefore involves a social construction process whereby the existing differences between members of different groups are endowed with psychological significance such that the categories become part of a collective cognitive “representation” in which the group now appears to be a perceptual “unit” differentiated from other units.
The Decline of Nationality as a Connecting Factor:
Three factors appear to have been the chief contributors to the change of direction that has been occurring over the past half century. One is the consequence of two world wars and their revolutionary sequel which drove millions of people permanently from their ancestral homes and reduced many of them to the unhappy legal category of “stateless persons.” The second factor reflects not only the enhanced mobility of populations-itself due in part to the growing ease of travel-but also an elevation in the status of women. Marriage to an alien no longer operated to extinguish the bride’s original nationality even though it made her a national of her husband’s country. Other sources of the phenomenon of “dual nationality” were also arising.
The third factor undermining reliance on nationality as a connecting factor was growth in the mobility of people in response to economic pulls and pressures. To the age-long flow of people from the Old World to the New was added the migration of workers from nations with surplus labor to nearby nations with labor shortages. These migrants usually left their families in their homelands with the intention of returning to them after a few months or years. Inevitably, a certain proportion of these migrants remained in the countries to which they had resorted, and even those who returned home sometimes brought new wives with them-or left new wives and children behind.
In a comprehensive survey and evaluation of the legal problems which use of the nationality factor has created in the wake of these transfers, Professor Louis de Winter of the University of Amsterdam has not only reported graphically the history of the rise and decline of the nationality concept but has also identified many unsatisfactory solutions dictated by fidelity to the nationality principle.’
Conclusion:
Nationality is within the domestic jurisdiction of the State, which settles, by its own legislation, the rules relating to the acquisition of its nationality. It is sometimes asserted that there must be a genuine and effective link between an individual and a state in order to establish a nationality which must be accepted by other states. It is doubtful, however, whether the genuine and effective link requirement, used by the International Court of Justice in the Nottebohm-Case in order to deny Liechtenstein’s claim to exercise protection, can be considered as a relevant element for international recognition of nationality or as a requirement of a valid naturalization under public international law. It is frequently argued that in the absence of any recognized criteria the attribution of nationality must be considered as arbitrary and that there must be some kind of a personal and territorial link. The rule, however, although maintained in state practice, has been gradually diminished in its importance due to one exception, which concerning the raising of claims in case of human rights protection, especially to dual nationals who suffers injury in the third state and cannot be protected by his origin nationality state.
In addition, we can also conclude that, “Citizenship” is a legal and political bond between a natural person and the state, while nationality has a broader meaning which includes legal persons (e.g., corporations) and vessels such as aircraft and ships as well[2]. Therefore, “nationality” would be a more accurate term for legal persons, vessels, and aircrafts, rather than “citizenship.” Or “domicile”.
· References:
· Aristotle, The Politics, originally written ca. 335 BC, cited in Blaug, R. & Schwarzmantel, J. , 2000, 208.
· Gülin GÜNGÖR, “Avrupa Vatandasl?k Sözlesmesi” (European Convention on Nationality),
· Bilge F. TANRIB?L?R, “Avrupa Vatandasl?k Sözlesmesi ve Türk Hukuku” (European Convention on Nationality and Turkish Law),
· Convention on Certain Questions relating to the Conflict of Nationality Laws, The Hague, 12 April 1930, League of Nations, Treaty Series, vol. 179, p. 89. Retrieved from http://treaties.un.org/doc/Publication/UNTS/LON/Volume%20179/v179.pdf on 3rd March, 2013.
· Convention relating to the Status of Stateless Persons, New York, 28 September 1954, United Nations, Treaty Series, vol. 360, p.117. Retrieved from, http://treaties.un.org/doc/Treaties/1960/06/19600606%2001-49%20AM/Ch_V_3p.pdf on 3rd March, 2013
· de Winter, Nationality or Domicile? The Present State of Affairs, 3 RECUEIL DES COURS DE L’ACADEMIE DE DROIT INTERNATIONAL DE LA HAYE, 1969, at 347 (1969). Retrieved from http://www.aulawreview.org/pdfs/21/21-3/cavers.pdf on 9th march, 2013.
· Delanty, 2000, pg-11, Isin & Turner, 2002; Giesen & Eder, 2001; Smith, 2002, retrieved from http://www.cimera.org/files/reports/rr1/chapter2.pdf on 10th march 2013.
· Domicile: Definition and other issues, Retrieved from http://www.state.vt.us/tax/pdf.word.excel/legal/regs/15811.pdf on 10th March, 2013.
· Ergin Nomer’e Arma?an, Milletleraras? Hukuk ve Özel Hukuk Bülteni, 2002, Vol. 22, No.2, pp. 791-818.
· Nottebohm (Liechtenstein v. Guatemala), retrieved from http://en.wikipedia.org/wiki/Nottebohm_%28Liechtenstein_v._Guatemala%29 on 3rd March, 2013.
· Rona AYBAY, Vatandasl?k Hukuku (Citizenship Law), 2d ed., ?stanbul Bilgi Üniversitesi Yay?nlar?, ?stanbul 2006, p.13;
· Vahit DO?AN, Türk Vatandasl?k Hukuku (Turkish Citizenship Law), 5th ed. Seçkin Yay?nc?l?k, Ankara 2005, p. 24.
· Williamson v. Osenton, 232 U.S. 619, 629 (1913). He added: “In its nature it is one, and if in any case two are recognized it is a doubtful anomaly.” Retrieved from http://www.aulawreview.org/pdfs/21/21-3/cavers.pdf on 9th March, 2013.
· Yearbook of the International Law Commission, Volume II Part One: Vol.2 Part, pg 229, retrieved from
<href=”#v=onepage&q=Nationality%20is%20the%20principal%20link%20between%20an%20individual%20and%20international%20law&f=false”>http://books.google.com.bd/books?id=ENDNDCVW1rYC&pg=PA229&lpg=PA229&dq=Nationality+is+the+principal+link+between+an+individual+and+international+law&source=bl&ots=P3HhwXnhp6&sig=xD_GoL1lYxtw5RNmCXXe0DLEnes&hl=bn&sa=X&ei=yiQ_UbSK5HSrQerrIGICA&ved=0CEsQ6AEwBQ#v=onepage&q=Nationality%20is%20the%20principal%20link%20between%20an%20individual%20and%20international%20law&f=false
· Y?lmaz Altu?’a Arma?an, Milletleraras? Hukuk ve Özel Hukuk Bülteni, 1997-1998, Vol. 17-18, No.1-2, pp. 227-250;
[1] Williamson v. Osenton, 232 U.S. 619, 629 (1913). He added: “In its nature it is one, and if in any case two are recognized it is a doubtful anomaly.” Retrieved from http://www.aulawreview.org/pdfs/21/21-3/cavers.pdf on 9th March, 2013.
[2] Rona AYBAY, Vatandasl?k Hukuku (Citizenship Law), 2d ed., ?stanbul Bilgi Üniversitesi Yay?nlar?, ?stanbul 2006, p.13; Vahit DO?AN, Türk Vatandasl?k Hukuku (Turkish Citizenship Law), 5th ed. Seçkin Yay?nc?l?k, Ankara 2005, p. 24.