Nationality Nationality means a bond or link between a state & an individual under IL. Under municipal level, the same concept is known as citizenship, i.e. the connection between a person and his country at municipal level. A person’s permanent residence is called his domicile. esidence is !ust a place o" current stayin#. A person who is not havin# any nationality is known as a stateless person under IL. Significance/Advantages/Impor Significance/Advantages/Importance tance of Nationality
a$ b$ c$ d$ e$ "$
%ives a claim claim o" protection protection.. very person person can claim protection protection "rom his his own nation. nation. A national can claim diplomatic protection. 'etermi 'eterminat nation ion o" o" enemy enemy charact character er (statu (status$. s$. No e)tradition e)tradition * Nationa Nationals ls are #enerally #enerally not e)tradited e)tradited to anothe anotherr country +IL +IL rule. rule. bli bli#at #atio ion n to to puni punish sh.. -or e)er e)ercisi cisin# n# e)tra e)trater territo ritorial rial !uris !urisdic dictio tion/ n/ +ivil +ivil & +rimin +riminal al !urisd !urisdict iction ion00 concept concept o" passiv passivee & active active nation nationality ality00 state state can
e)ercise !urisdiction on the basis o" either nationality o" accused or that o" the victim. #$ No country country can detain1preven detain1preventt comin# comin# (receivin#$ (receivin#$ back back o" its national nationals. s. Mode of Acquisition
2$ Jus Soli * * i.e. by birth, means the children takin# birth in a country #ettin# the nationality o" that country. 3ost countries "ollow this principle. 4$ Jus Sanguins * Sanguins * i.e. by descent, meanin# meanin# that the children #ettin# #ettin# their nationality by the nationality o" their parents. -ollowed by many countries includin# India, U5A etc. In case o" con"lict, when the nationality o" the parents is di""erent, it is usually decided by the act o" the party, i.e. by e)press declaration a person can choose which one o" the nationality he wants to "ollow. 5ome places there are di""erent laws o" the country, e.#. %ermany #ives the "ather’s nationality nationality.. I" the party does not e)ercise any option option then then unde underr IL nati nation onali ality ty is estab establis lishe hed d thro throu# u#h h the the test test o" 6+lo 6+lose se & Intim Intimate ate +onnection’. 7$ 8y ption* ption* i" an indivi individual dual has #ot #ot more than than one national nationality ity then he he has to choose choose one o" them. 9$ 8y 5ub!u#atio 5ub!u#ation* n* i.e. "orce"ul "orce"ul anne)ation anne)ation o" a territory by another another country country.. :hen :hen the state is de"eated or con;uered, all the citizens ac;uire the nationality o" con;uerin# state. <$ 8y +ession* +ession* +ession +ession means =oinin# =oinin# o" a territory territory or part o" one one country with with another another country by an a#reement. :hen a state is ceded in another state, all the people o" the territory ac;uire the nationality o" the state in which their territory is mer#ed. >$ 8y esumpti esumption* on* a ?erson who was tempora temporarily rily depriv deprived ed o" his nationa nationality lity due due to some reason & subse;uently, he may resume his nationality a"ter "ul"ilment o" certain conditions.
@$ 8y e#istrationA person may ac;uire nationality o" a state throu#h re#istration. he process o" re#istration may be di""erent "rom one state to another dependin# upon the laws o" the state. B$ 8y Naturalisation* means Ac;uirin# nationality by way o" lon# & continuous stay. :hen a person livin# in a "orei#n state "or a lon# time ac;uires the citizenship o" that state then it is said to be state o" nationality ac;uired throu#h nationalisation. Notte Boehm(nationality) case
Notte was born in 2BB2 in %ermany, hence was a %erman national. In 2CD<, he went to %uatemala, he stayed there & set up his business there. In 2C7C, he went to Leichsten& obtained nationality by way o" application & a"ter obtainin# nationality he came back to %uatemala & continued with his business. In 2C92, all his property was con"iscated by %uatemala & he was arrested by U5, & deported to U5 on #rounds o" bein# an alien enemy as he was a %erman national. In 2C97, he was detained as a prison internee & continued till end 2C97. In 2C99, he was released by U5 & he went back to Leichsten. A"ter his reachin#, Leichsten "iled a case a#ainst %uatemala "or releasin# o" his property. Euestion came* whether Notte Boehm is a national o" Leichsten. he court identi"ied that he will be a national o" %uatemala by naturalisation. I+= said that application to Leichsten "or nationality was a "raud since it was done only to avoid bein# an alien enemy & his actions conveyed the same. +ourt "urther introduced the 6+lose & Intimate +onnection test’. Losing Nationality
2$ 8y same ways 4$ 8y deprivation A national o" a state may be deprived o" his nationality in case o" certain happenin#s. Le#islation o" many countries re;uires various #rounds "or deprivation o" nationality. -or instance, i" a citizen enters into "orei#n civil or military service without permission, he may be deprived o" his nationality. 7$ 8y substitution5ome states provide "or the substitution o" nationality. Accordin# to this principle, a person may #et nationality o" a state in place o" the nationality o" another state. his is called nationality by substitution whereby he loses the nationality o" one state and ac;uires the nationality o" another state. 9$ 8y enunciationA person may renounce his nationality o" a state. he ;uestion o" renunciation o" nationality arises when the person ac;uires it o" more than one state. In such case he has an option to retain the nationality o" one state and to renounce the other. <$ 8y )piration A person may lose nationality o" a state by e)piration. -or instance, some states have provided by le#islation that citizenship e)pires in the case o" such o" their sub!ects as have le"t the country and stayed abroad "or a certain len#th and time.
Asylum he term 6Asylum’ ori#inated "rom %reek word 6Asylia’ means inviolable place. Asylum = active protection + selter
he term is re"erred to those cases where the territorial 5tate declines to surrender a person to the re;uestin# 5tate, and provides shelter and protection in its own territory. hus, asylum involves 4 elements. -irstly, shelter, which is more than a temporary re"u#e0 and secondly, a de#ree o" active protection on the part o" the authorities in control o" the territory o" asylum. FAsylum is the protection which a 5tate #rants on its territory or some other place under the control o" that 5tate to a person who comes and seeksG Article 29 o" the U'H provides that under IL every person has a ri#ht to seek asylum. However, it is to be noted that the 'eclaration simply reco#nises the ri#ht o" asylum, it does not #rant ri#ht to receive asylum. %rant o" asylum is an aspect o" soverei#nty. very 5tate can decide as to #rant asylum to whom or not.
!lassification 'ependin# upon the territory where asylum is #ranted asylum in classi"ied as/ a) "erritorial Asylum/ an asylum #ranted by one country within the boundary o" that
country is called territorial asylum. he ri#ht to #rant asylum by a 5tate to a person on its own territory "lows "rom the "act that every 5tate e)ercises territorial soverei#nty over all persons on its territory whether they are its sub!ects or aliens. A 5tate has a ri#ht to admit or e)pel any person "ound in its territory. he #rant o" territorial asylum there"ore depends upon the discretion o" the 5tate which is not under a le#al obli#ation to #rant asylum to its "u#itive. #) $%tra "erritorial Asylum ($"A)& an asylum #ranted outside the boundary o" a country but within a territory which is under the control o" the territory. Asylum within the diplomatic premises is known as diplomatic asylum. Asylum can even be #ranted in warships but commercial ships are not entitled to #rant A. Columbia v. Peru (popularly known as the Asylum case)
Haya 'e La orre was a ?eru revolutionist. ?eru #overnment issued arrest warrant a#ainst him. Haya 'e La orre sou#ht asylum in +olumbian embassy in ?eru and was #ranted the same.
%rantin# o" asylum was ob!ected by ?eru on #round that asylum #ranted by the +olumbian embassy is violative o" territorial soverei#nty o" ?eru. he ;uestion came up whether A was violative o" territorial soverei#nty. I+= held that As are ille#al under IL as As are violative o" territorial soverei#nty but I+= also established 7 e)ceptions wherein As would be valid/ a$ I" there is an a#reement between the countries. b$ I" there is a valid customary practice. c$ I" the asylee "aces imminent threat due to political corruption or due to a mob violence. (=ulian Assan#e was #ranted asylum by cuador embassy in U5A on this #round$. +onclusion/ As are #enerally considered as ille#al under IL unless #ranted in the 7 e)ceptional circumstances as provided by the I+=.
Asylum to "errorist Under IL #rant o" asylum to terrorist is prohibited. esolution no 27@7 o" UN 5ecurity +ouncil, 4DD2 provides that no member 5tate should #rant asylum to terrorists.
Asylum to 'irates nce a person is declared as a pirate no 5tate can #rant asylum as pirate is a status upon which any country can attack.
Extradition )tradition means handin# over an accused or a convicted person to one country "rom another country. Accordin# to ppenheim, F)tradition is the delivery o" an accused or convicted individual to the 5tate where he is accused or been convicted o" a crime by the 5tate on whose territory he happens to beG In the case o" Factor v. Lubelheim it has been held that there is no duty under IL to e)tradite a person. )tradition is possible only by way o" a valid treaty between two countries "or e)tradition.
elation #eteen $%tradition and Asylum Accordin# to 5tarke, where e)tradition starts the asylum ends and vice versa. Hence, they are mutually e)clusive o" each other.
endition endition is a process in which handin# over o" an accused or convicted person is not based on a treaty. -or e)ample/ Abu 5alem was rendered by the ?ortu#al #overnment as there was no e)tradition treaty between India and ?ortu#al.
!onditions for $%tradition Under IL, there is no law re#ulatin# e)tradition but there are certain principles under +ustomary IL which is to be "ollowed. hey are/ a$ here should not be any e)tradition o" its own nationals. b$ ule o" 'ouble +riminality/ accordin# to this rule, to e)tradite a person the act committed by him should be an o""ence in both the countries. #. In the case o" Factor v. Lubelheim , -actor a U national committed a "raud i.e. he took away money o" some people. +ommitment o" "raud was an o""ence in U. However, a"ter committin# "raud, -actor went to 5tate o" Illinois in U5A. U re;uested U5A to e)tradite -actor. he ;uestion arose whether committin# "raud was an o""ence in U5A as well. he +ourt "ound out that committin# "raud was not an o""ence in the 5tate o" Illinois and held that U’s e)tradition is not tenable. Another e)ample can be o" adultery. +ommittin# adultery is an o""ence in India but not in n#land. 5o i"a person commits adultery in India and #oes to n#land then in that case India cannot claim e)tradition o"" such a person. c$ No e)tradition o" political criminals, military criminals and reli#ious criminals. ?olitical +riminals/ a criminal who commits crime "or a political motive. he reason behind this rule is to prevent people "rom malicious intentions as #enerally there can be misuse as political crimes are not ori#inal in nature there is always a hidden a#enda behind it. d$ ule o" 5peciality/ Accordin# to this rule, i" a person is e)tradited "or a crime then he shall not be imposed with any additional char#e, i" done so then the e)tradition will be invalidated. his rule was discussed in the case o" UA v. !ouscher ouscher was e)tradited "rom U to U5A "or the char#e o" murder but once hecame to U5A the U5A #ovt. imposed an additional char#e o" #revious hurt upon him. he char#e was ob!ected by ouscher on the #round that he was e)tradited only "or murder. +ourt held that ouscher’s claim was ri#ht and hence invalidated all the proceedin#s a#ainst him by applyin# the rule o" 5peciality. e) Prima facie evidence/ "or initiation o" any proceedin#s it has to be proved that there is a prima facie evidence a#ainst the one who is char#ed "or an o""ence. Under IL, every 5tate claimin# e)tradition has to support its claim with prima facie evidences. "$ No e)tradition "or tri"les.
#$ -ormalities/ i" there is an e)tradition treaty between the 5tates, then to make an e)tradition valid all the "ormalities should be "ollowed as per the treaty. "eer awarkar case Jeer 5awarkar was arrested in London and 8ritish #ovt. was takin# him to India throu#h a ship via -rance. :hen the ship reached the -rance port, he escaped but was subse;uently cau#ht by the -rench police and was in turn handed back to the ship. 5awarkar ob!ected this on the #round that there was an e)tradition treaty between U and -rance and the procedure #iven there was not "ollowed. -rench +ourt re!ected his contention and held that once the e)tradition is complete the procedure is "ollowed or not cannot be challen#ed.
