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 nationalitySince 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 protectionNationality 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 determinationArticle 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.
MinoritiesMany attempts were made in the post-First World War settlements to protect those groups to whom sovereignty and statehood not be granted (e.g. the minorities regime of the League consisted of five special minorities treaties binding Poland, the Serbo-Croat-Slovene state, Romania, Greece and Czechoslovakia. There were special minorities clauses in the treaties of peace with Austria, Bulgaria, Hungary and Turkey).
Persons belonging to racial, religious or linguistic minorities were to be given the same treatments and the same civil and political rights and security as other nationals in the particular state. Such provision constituted obligations of international concern and could not be altered without the assent of a majority of the League of Nations Council. The Council was to take action in the event of any infraction of minorities’ obligations.
There also existed a petition procedure by minorities to the League, although they had no standing as such before the Council or the permanent Court of International Justice. However, the schemes of protection did not work well, ultimately for a variety of reasons ranging from the sensitivities of newly independent states to international supervision of minority issues to overt exploitation of minority issues by Nazi Germany in order to subvert neighboring countries.
After the Second World War, the focus shifted to the international protection of universal individual human rights, although several instruments dealing with specific situations incorporated provisions concerning the protection of minorities, and in 1947 the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities were established. It was not until the adoption of the International Covenant on Civil and Political Rights in 1966 that the question of minority rights came back onto the international agenda.
Article 27 of this Covenant provides that, “in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community witch the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” This article includes protection of the rights of person in community with others to engage in economic and social activities which were part of the culture of community to which they belonged. The Committee adopted a General Commitment on article 27 in 1994 after much discussion and hesitation due to fears that such a comment might be perceived to constitute an encouragement to secession.
The General Commitment pointed to the distinction between the rights of persons belonging to minorities on the one hand, and the right to self-determination and the right to equality and non-discrimination on the other. It was emphasized that the rights under this article did not prejudice the sovereignty and territorial integrity of states, although certain minority right, in particular those pertaining to indigenous communities, might consist of a way of life closely associated with territory and the use of its resources, such as fishing, hunting and the right to live in reserves protected by law. It was underlined that persons belonging to a minority need not be nationals or permanent residents of the state concerned so that migrant workers or even visitors might be protected under this article.
Whether an ethnic, religious or linguistic minority exists was an objective question, not dependent upon a decision of the state party. The UN General Assembly adopted a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities in December 1992. Article 1 provides that states “shall protect the existence and national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories” and shall adopt appropriate legislative and other measures to achieve these ends. The Declaration states that person belonging to minorities have the right to enjoy their own culture, practice and profess their own religion and to use their own language in private and in public without hindrance.
Such persons also have the right to participate effectively in cultural, social and public life. The Un Sub-Commission has been considering the question of minorities for many years and in1994 agreed to establish a five-person inter-sessional working group to examine peaceful and constructive solutions to situations involving minorities, and to review the practical application of the Declaration, to provide recommendations to inter alia the Sub-Commission and the UN High Commissioner for Human Rights to protect minorities where there is a risk of violence and generally to promote dialogue between minority groups in society and between those groups and governments.
The issue of minority rights has been taken up recently particularly by European states, primarily as a consequence of the demise of the Soviet Union and its empire in Eastern Europe and the reintegration of Eastern and Central European states within the political system of Western Europe. The specific response to questions of minority rights within the Council of Europe and the Conference on Security and Co-operation in Europe are addressed below. As has been noted, the UN Human Rights Committee has pointed to the special position of indigenous people as minorities with a particular relationship to their traditional territory. It has been accepted that such communities form a specific category of minorities with special needs.
The International Labor Organization adopted Convention No. 107 on Indigenous and Tribal Populations in 1957, an instrument with a mainly assimilationist approach to the question of indigenous peoples. It was partially revised in Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, 1989. The change in terminology from populations to peoples is instinctive and the latter Convention focuses far more upon the protection of the social, cultural, religious and spiritual values and practices of indigenous peoples.
Unlike the prevailing approach to the definition of minorities generally which intermingles objective and subjective criteria, this Convention stipulates in article 1 that “self-identification as indigenous or tribal shall be regarded as a fundamental criterion” for determining the groups to which the Convention applies. The Sub-Commission recommended that a study of discrimination against indigenous populations should be made and this was completed in 1984.
According to the Working group on Indigenous Populations (1982) and a Draft Declaration on the Rights of Indigenous Peoples, indigenous populations have the right to self-determination and the right to maintain and strengthen their distinctive political, economic, social and cultural characteristics, as well as their legal systems, while retaining the right to participate fully in the life of the state. Indigenous peoples are deemed to have the collective right to live in freedom and security as distinct peoples and the collective and individual rights to protection from ethnocide and cultural genocide.
Their collective and individual rights to maintain and develop their distinct identities is particularly emphasized, while the Declaration lists their rights to practice their cultural traditions, and to education, access to media and health practices, together with a range rights concerning their distinctive relationship to the land. A Voluntary Found for Indigenous Populations was established in 1985 and a permanent forum for indigenous people is currently being sough. The Sub-Commission has also been studying the question of the heritage of indigenous people and the issue of treaties, agreements and other constructive arrangements between states and indigenous people.
AliensThe protection of foreign nationals in international law is very closely connected with the different approaches adopted to international relations by the Western and Third World nations. Developing countries, as well as communist countries formerly, have been long eager to reduce what they regard s the privileges accorded to capitalist states by international law. They lay great emphasis upon sovereignty and independence of states and resent the economic influence of the West.
The Western nations have wished to protect their investments and nationals abroad and provide for the security of their property.
The diplomatic protection of nationals abroad developed as the number of nationals overseas grew as a consequence of increasing activities and thus the relevant state practice multiplied. The development states of the West have argued historically that there exists an international minimum standard for the protection of foreign nationals that must be upheld irrespective of how the state treats its own nationals, whereas other states maintained that all the state needed do is treat the alien as it does its own nationals (the “national minimum standard”).
The reason for the evolution of the latter approach is to be found in the increasing resentment of Western economic domination rather than in the necessary neglect of basic standards of justice. The Latin American states felt that the international minimum standard concept had been used as a means of interference in internal affairs. Accordingly, the Calvo doctrine was formulated.
This involved a reaffirmation of the principle of non-intervention coupled with the assertion that aliens were entitled only to such rights as were accorded nationals and thus had to seek redress for grievances exclusively in the domestic arena. It was intended as a shield against external interference. The international standard concept itself developed during the nineteenth century and received extensive support in case-law. Some people have argued that the concept never involved a definite standard with a fixed content, but rather a process of decision, that would involve an examination of the responsibility of the state for the injury to the alien in the light of all the circumstances of the particular case.
The issue of the content of such a standard has often been described in terms of the concept of denial justice. In effect, that concept refers to the improper administration of civil and criminal justice as regards an alien. It would include the failure to apprehend and prosecute those wrongly causing injury to an alien. A progressive attempt to resolve the divide between the national and international standard proponents was put forward by Garcia-Amador in a report on international responsibility to the International Law Commission in 1956. He argued that the two approaches were now synthesized in the concept of the international recognition of the essential rights of man.
He formulated two principles, Aliens had to enjoy the same rights and guarantees as enjoyed by nationals, which should not in any case be less than the fundamental human rights recognized and defined in international instruments, International responsibility would only be engaged if internationally recognized fundamental human rights were affected. This approach did not prove to ILC at that time in the light of a number of problems. However, human rights law has developed considerably in recent years and now can be regard to civil and political rights. It is noticeable that the relevant instruments do not refer nationals and aliens specifically, but to all individuals within the territory and subject to the jurisdiction of the state without discrimination.
People should also note the special efforts being made to deal with non-nationals, in particular the UN Declaration on the Human Rights of Individuals who are not nationals of the country in which they live, and the continuing concern with regard to migrant workers. Some differences as regards the relative rights and obligations of nationals and aliens are inevitable. Non-nationals do not have political rights and may be banned from employment in certain areas (e.g. the diplomatic corps), although they remain subject to the local law. It is also unquestioned that the state may legitimately refuse to admit aliens, or may accept them subject to certain conditions being fulfilled.
Whether a state may expel aliens with equal facility is more open to doubt. A number of cases assert that states must give convincing reasons for expelling an alien. The reason for the expulsion must be stated before an international tribunal when the occasion demanded. Many municipal systems provide that the authorities of a country may deport aliens without reasons having to be stated. The position under customary international law is therefore somewhat confused.
As far as treaty law concerned, article 13 of the International Covenant on Civil and Political Rights stipulates that an alien lawfully in the territory of a state party in the Convention “may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and have to his case reviewed by and be represented for the purpose before, the competent authority”. Article 3 of the European Convention on Establishment, 1956, provides that nationals of other contracting states lawfully residing in the territory may be expelled only if they endanger national security or offend against public order or morality.
Article 4 of the Fourth Protocol, 1963, of the European Convention on Human Rights declares that collective expulsion of aliens is prohibited. The burden of proving the wrongfulness of the expelling state’s action falls upon the claimant alleging expulsion and the relevant rules would also apply where, even though there is no direct law or regulation forcing the alien to leave, his continued presence in that state is made impossible because of conditions generated by wrongful acts of the state or attributable to it. Where states have expelled aliens, international law requires their national state to admit them.
RefugeesAccording to The 1951 Convention relating to the Status of Refugees a refugee is a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country…” Governments normally guarantee the basic human rights and physical security of their citizens.
Protection itself has been the story of a constant evolution over many centuries, but today’s climate is particularly challenging and complex. Current global migration patterns in a world rapidly shrinking because of improved communications, involve not only refugees and asylum seekers, but also the often interlinking movements of millions of economic migrants seeking a better way of life, human traffickers and their multi-billion dollar business and the global impact of the war on terror.
Throughout history, people have left their homes to escape persecution. In the aftermath of World War II, the international community included the right to asylum in the 1948 Universal Declaration of Human Rights. In 1950, the Office of the United Nations High Commissioner for Refugees (UNHCR) was created to protect and assist refugees, and, in 1951, the United Nations adopted the Convention Relating to the Status of Refugees, a legally binding treaty that, by February 2002, had been ratified by 140 countries.
The Office of the United Nations High Commissioner for Refugees was established on December 14, 1950 by the United Nations General Assembly. The agency is mandated to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide. Its primary purpose is to safeguard the rights and well-being of refugees. It strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another State, with the option to return home voluntarily, integrate locally or to resettle in a third country.
The global refugee crisis affects every continent and almost every country. In 2001, 78 percent of all refugees came from 10 areas: Afghanistan, Angola, Burma, Burundi, Congo-Kinshasa, Eritrea, Iraq, the Palestinian territories, Somalia and Sudan. Palestinians are the world’s oldest and largest refugee population, and make up more than one fourth of all refugees. Asia hosts 45 percent of all refugees, followed by Africa (30 percent), Europe (19 percent) and North America (5 percent).
ESTIMATED NUMBER OF REFUGEESWORLDWIDEYear
8,446,0009,706,00010,310,00010,610,00010,717,00011,851,00012,620,00013,113,00014,331,00014,716,00017,378,00016,837,00017,818,50016,306,00015,734,00014,896,00013,357,00012,008,00011,481,00011,687,00012,130,00012,117,00010,594,0009,672,000.In Article 14 of the 1948 Universal Declaration of Human Rights is the right “to seek and to enjoy in other countries asylum from persecution.” This principle recognizes that victims of hum