The question of the role of individuals in international law is closely bound up with the rise in the international protection of human rights. This theory maintains that individuals constitute only the subject-matter of intended legal regulation. Only states, and possibly international organizations, are subjects of the law. This has been a theory of limited value. The essence of international law has always been its ultimate concern for the human being and this was clearly manifest in the Natural Law origins of classical international law.
The growth of positivists theories, particularly in the nineteenth century, obscured this and emphasized the centrality and even exclusivity of the state in this regard. Nevertheless, modern practice demonstrate that individuals have become increasingly recognized as participants and subjects of international law. The link between the state and the individual for international law purposes historically has been the concept of nationality. This was and still remains crucial, particularly in the spheres of jurisdiction and the international protection of the individual by the state.
It is often noted that the claim of an individual against foreign state, for example, becomes subsumes under that of his national state. Each state has the capacity to determine who are to be its nationals and this is to be recognized by other states in so far as it is consistent with international law, although in other states to accept this nationality there has be a genuine connection between the state and the individual in question. The nationality
Since every state possess sovereignty and jurisdictional powers and since every state must consist of a collection of individual human beings, it is essential that a link between the two be legally established. The link connecting the state and the people it includes its territory is provided by the concept of nationality. By virtue of nationality, a person becomes entitled to series of rights ranging from obtaining a valid passport enabling travel abroad to being able to vote. Also, nationals may be able to undertake various jobs (for example in the diplomatic service) that a non- national may be barred from.
Nationals are also entitled to the protection of their state and to various benefits prescribed under international law. On the other hand, states may not mistreat the nationals of other states nor, ordinarily, conscript them to into their armed forces, nor prosecute them from crimes committed outside the territory of the particular state. The concept of nationality is important since it determines the benefits to which persons may be entitled and the obligations which they must perform.
The problem is that there is no logical, accepted definition of nationality in international law and only conflicting descriptions under the different municipal laws of states. Not only that, but the rights and duties attendant upon nationality vary from state to state. Generally, international law leaves the conditions for the grant of nationality to the domestic jurisdiction of states. Since the concept of nationality provides the link between the individual and the benefits of international law, it is worth pointing to some of the basic ideas associated with the concept, particularly with regard to its acquisition.
In general, the two the most important principles upon which nationality is founded in states are by descent from parents who are nationals (jus sanguinis) by virtue of being born within the territory of the state (jus soli). It is commonly accepted that a child born of nationals of a particular state should be granted the nationality of the state by reason of descent. This idea is particularly utilized in continental European countries, for example in Switzerland and Germany, where the child will receive the nationality of his father, although many municipal systems do provide that an illegitimate child will take the nationals of his mother.
On the other hand, in common law countries such as Britain and the US the doctrine of the jus sanguinis is more restricted, so that where a father has become a national by descent it does not always follow that the fact will be sufficient to make the child national. The common law countries have tended to adopt the jus soli rule, whereby any child born within the territorial limits of the state automatically becomes a national thereof. The British Nationality Act of 1948 (and of 1981), for example, declared that every person born within the United Kingdom and Colonies shall be a citizen of the United Kingdom and Colonies by birth.
There is an exception to this, however, which applies to virtually every country applying the jus soli rule, and that is regard to persons entitled to immunity from the jurisdiction of the state. In other words, the children of diplomatic personnel born within the country do not automatically acquire its nationality, How far this exception extends varies from state to state. Some countries provide that this rule applies also to the children of enemy alien fathers born in areas under enemy occupation.
Nationality may also be acquired by wives of nationals, although here again the position varies from state to state. Some states provide for the automatic acquisition of the husband’s nationality, others for the conditional acquisition of nationality and others merely state that the marriage has no effect as regards nationality. Problems were also caused in the past by the fact that many countries specific that a woman marrying a foreigner would thereby lose her nationality.
The convention of 1957 on the Nationality of Married Women provides that contracting states accept that the marriage of one of their nationals to an alien shall not automatically affect the wife’s nationality, although a wife may acquire her husband’s nationality by special procedures should she so wish. Nationality may be obtained by an alien by virtue of a naturalization process usually involving a minimum period of residence, but the conditions under which this takes place vary considerably from country to country. Diplomatic protection
Nationality is the link between the individual and his or her state as regards particular benefits and obligations. It is also the vital link between the individual and the benefits of international law. Although international law is now moving to a stage whereby individuals may acquire rights free from the interposition of the state, the basic proposition remains that in a state- oriented world system, it is only through the medium of the state that the individual may obtain the full range of benefits available under international law, and nationality is the key.
One of the rights is diplomatic protection of the nationals. According to Article 1 of the ILC’s Draft Articles on Diplomatic Protection adopted in 2002 provides that, “Diplomatic protection consists of resort to diplomatic action or other means of peaceful settlement by a state adopting in its own right the cause of its national in respect of an injury to that national arising from an internationally wrongful act of another state”. A state is under a duty to protect its nationals and it may take up their claims against other state.
However, there is under international law no obligation for states to provide diplomatic protection for their nationals abroad. In addition, once a state does this, the claim then becomes that of the state. This is a result of the historical reluctance to permit individuals the right in international law to prosecute claims against foreign countries, for reason relating to state sovereignty and non- interference in internal affairs. Once a state has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the state is sole claimant.
It follows that the exercise of diplomatic protection cannot be regarded as intervention contrary to international law by the state concerned. Coupled with this right of the state is the constraint that a state may in principle adopt the claims only of its own nationals. Diplomatic protection may not extend to the adoption of claims of foreign subjects, although it has been suggested as an exercise in progressive development of the law that a state may adopt the claim of a stateless person or refugee who at the dates of the injury and presentation of the claim is lawfully and habitually resident in that state.
Such diplomatic protection is not a right of the national concerned, but a right of the state which it may or may not choose to exercise. It is not a duty incumbent upon the state under international law. According to ICJ Reports of 1970, “Within the limits prescribed by international law, a state may exercise diplomatic protection by whatever means and whatever extent it thinks fit, for it is its own right that the state is asserting.
Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law”. The United Kingdom takes the view that the taking up of a claim against a foreign state is a matter within the prerogative of the Crown, but various principles are outlined in this publication, “Rules regarding the Taking up of International Claims by Her Majesty’s Government”, stated to be bases on international law. This distinguishes between formal claims and informal representations.
Where an individual possesses dual or multiple nationality, any state of which he is a national may adopt a claim of his against a third state and there appears no need to establish a genuine link between the state of nationality and the dual or multiple national. In the case of more than one nationality, the rule to be that the state with which he has the more effective connection may be able to espouse his claim as against the other state. Self – determination Article 1 of both International Covenants on Human Rights, 1996 provides that, “all peoples have the right to self – determination.
By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”“. The Helsinki Final Act of 1975 refers to, “the principle of equal rights and self determination all peoples have the right, in full freedom, to determine, when as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development”. Article 20 of the African Charter on Human and Peoples’ Rights, 1981 stipulates that, all peoples shall have the right to existence.
They shall the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have chosen. ” The 1970 Declaration on Principles of International Law Concerning Friendly Relations referred to the colonial situation and noted that subjection of peoples to alien subjugation, domination and exploitation constituted the violation to the principle.
A number of UN resolutions have discussed the relevant of self-determination also to situations of alien occupation where the use of force has been involved. The International Law Commission in 1988 expressed its view that the principle of self-determination was of universal application, while the practice of UN Human Rights Committee has been of particular significance. The self- determination is used very often in relation to the context of decolonization.
Many Declarations stress that this is the right of all peoples, if this so, then all peoples would become thereby to some extent subjects of international law as the direct repositories of international rights. In fact, that has not occurred and an international law concept of what constitutes a people for these purposes has been evolved, so that the self’ must be determined within the accepted colonial territorial framework. Attempts to broaden this have not been successful and the UN has always strenuously opposed any attempt at the partial or total disruption of the national unity and territorial integrity of a country.
The UN has based its policy on the position that “the territory of a colony or other non-self governing territory has under the Charter a status separate and distinct from the territory to the state administering it” and that such status was to exist until the people of that territory had exercised the right to self-determination. Self-determination has also been used in conjunction with the principle of territorial integrity so as to protect the territorial framework of the colonial period in the decolonization process and to prevent a rule permitting secession from independent states from arising.
The principle of self-determination provides that the people of the colonially defined territorial unit in question may freely determine their own political status. Such determination may result in independence, integration with a neighbouring state, free association with an independent state or any other political status freely decided upon by the people concerned. Self-determination also has a role within the context of creation of statehood, preserving the sovereignty and independence of states, in providing criteria for the resolution of disputes, and in the area of the permanent sovereignty of states over natural resources.