GENERAL PRINCIPLE AND THE ROLE OF STATE LAW
Nationality in a historic perspective is a somewhat new phenomenon. Replacing the traditional system of overlord and subject, nationality can no longer be determined as a personal relationship of allegiance, but rather as a legal status embracing a set of mutual rights and obligations towards a political entity fulfilling certain requirements necessary for the existence of a sovereign state. It is the existing relationship between the individual and the state. This nationality confers certain benefits on the individual.
The term ‘nationality’ defines the status of membership to a community based upon a common history, culture, ethnicity and common political convictions or values.
Umozurike sees it as the link that an individual has with a state which entitles it to espouse his claim in international law. The criterion for obtaining Nationality is a matter for domestic jurisdiction but there are practical limitations in so far as other states may be expected to recognize it. The court in Re: Lynch stated as follows,
“The fundamental basis of a man’s nationality is his membership of an independent political community. The legal relationship involves rights and corresponding duties upon both on the part of the citizen no less than on the part of the state.”
There is no generally recognized concept of nationality as the expression of membership of a political community. Even nations based upon a common ethnic origin will incorporate other criteria for membership and states based upon common political convictions and ideals, will require additional conditions for admission to the nation. Nationality as the expression of membership of a nation as a political community, therefore, is by and large the product of fairly fortuitous developments. This explains why public international law has very little to say about the scope and limits of a state’s determination of nationality. Nevertheless, nationality has very important functions as a determining factor in international relations.
THE ROLE OF THE STATE
Nationality determines the scope of application of basic rights and obligations of states vis-a-vis other states and the international community, such as personal jurisdiction, the application of treaties and diplomatic protection. In domestic law, nationality is a fundamental requirement for the exercise of political rights and claims to protection and correlate duties, such as military or civil service obligations, which may, however, vary according to national law. The International Court of Justice in the famous Nottebohm case has described nationality as a
“legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the state conferring nationality than with that of any other state. Conferred by a state, it only entitles that state to exercise protection vis a vis another state, if it constitutes a translation into juridical terms of the individual’s connection with the state which has made him its national.”
The German Constitutional Court has described nationality as a legal status describing membership of a political community:
“Nationality is the legal requirement for an equal status implying equal duties on the one hand, equal political rights on the other hand, the exercise of which is the exclusive source of legitimacy of power in a democracy.”
Nationality as a determining factor in international relations is closely related to the concept of the sovereign state. With a changing perception of sovereignty as a result of a globalized interdependent world and international regimes, nationality has lost much of its delimiting function. Nationality can no longer be considered the only and exclusive legal bond between an individual and a home country. Although there are as yet no indications for a ‘post-national’ or ‘trans-national’ nationality, there are clear indications that states increasingly recognize that there may well be more than just one membership of a political community. The increasing number of dual nationals and the changing attitude of states dealing with multiple nationalities indicate a change in traditional perceptions of nationality.
The state, in addition, has ceased to be the only protector of an individual’s rights. There are a variety of international conventions and treaties providing for an individual right to file a complaint before international bodies against the violation of human rights at regional as well as universal level. The concept of diplomatic protection, based on the fiction of states asserting their own rights by protecting their nationals has therefore been criticized as obsolete.
Some scholars however criticize this assumption as exaggerated. The exercise of diplomatic protection by a state for its nationals is still an indispensable tool for effectively enforcing an individual’s rights, including his human rights against another state. Diplomatic protection may not only be more effective at international level than a complaint before an international body. It may in many cases be the only effective instrument for enforcing an individual’s human rights. Here again, nationality has not lost its essential function as a legal requirement of a state to exercise diplomatic protection, although under exceptional circumstances diplomatic protection may be extended to non-nationals. European Union citizenship, in addition, has contributed to a somewhat changed perception of nationality. The concept of citizenship is usually described as a gradual substitution of important elements of the nationality of the Member States. Union citizenship is no longer limited to economic freedoms, but already implies – although to a limited extent – political rights and a right of residence, which is becoming increasingly independent from traditional requirements of alien law.
In spite of globalization and the approximation of political and social systems, the assumption of a rapid decline of the concept of nationality and its replacement by a ‘post-national’ or ‘trans-national’ nationality has so far not been reflected in the states’ practices. One reason for this may be the unexpected rise of ideologies and religions as attributes of states and nations, which has increased the traditional function of nationality as an element of exclusion and defense against external influences of all kinds and intervention.
No state may be compelled to extradite its own citizen on whom it can exercise jurisdiction for an act committed anywhere. Enemy status in time of war may be determined by the nationality of the individual that is involved.
There is a lack of uniformity in the rules of the different states in relation to nationality, but however, the state plays such very important roles such as:
- The protection of the rights of the diplomatic agents of the state: diplomats are the national of the state, and as an international rule, they are all afforded certain immunities in their host countries.
- The state has the role to ensure that her nationals do not perform acts that will in any way impede on the affairs of another state. If it does, then that state shall be held responsible for the acts of her nationals.
- The state has the role of enacting the laws that will ensure the statehood of her nationals. It is the state and the powers she has that will grant nationality to her people.
- It is the role of the state to enact laws that will make it possible for the nationals of that state to be conscripted into the armed forces of the state in times of emergency or war.
- The state can also refuse to extradite her nationals who have committed crimes in another country. The reason for this is the lack of uniformity in the laws of the states. In such a case, the national having been tried in the host country marks the end of the matter; the state will not require the offender to come back to be tried again in his home country.
- It is the role of the state to exercise both civil and criminal jurisdiction in matters that concern the affairs of her nationals. The state can try offences committed by her nationals against the integrity of the state.
THE END. . .