Doctrine of Effective Nationality

 DOCTRINE OF EFFECTIVE NATIONALITY

Right of a refugee (right of individual) to enter into a nation

Statelessness of an Individual – International Law:

The intimate relation between individual and state, recognized by international law, is apparent from the rules on diplomatic protection, but authoritative exposition of the nature of nationality on the international plane has lately elaborated that relation. The need for certain links between an individual and a state as a basis for conferring nationality was emphasized by various members of the International Law Commission in the debates on elimination and reduction of statelessness. The final development of this work was the adoption by a United Nations Conference in 1961 of a Convention on Reduction of Statelessness, which rests conferment, renunciation, and deprivation of nationality on various social links between individual and state.

In its judgment in the Nottebohm Case, the International Court of Justice expounded the principle that, for nationality to be opposable to other states on the international plane, there must be a real and effective link, a genuine connection, between the state and the individual concerned. The decision has been criticized on various grounds, but there were only three dissenting judges and the majority judgment is forceful and influential. Some jurists have

expressed the fear that diplomatic protection will be less effective as a result of the decision, and Makarov has remarked that a person held to have no effective nationality will not have the protection of international conventions relating to stateless persons. The latter point is a criticism perhaps of the content of such conventions. It should be noted, however, that the principle of effective nationality would restrict the ambit of protection only if a considerable quantum of links were required; it does not follow from Nottebohm that the principle will apply restrictively. In that particular case it appears in a rather exacting form simply because Nottebohm's connections were complex, and, on its view of the facts, the Court was influenced by the motive for which, in October 1939, a German national (as Nottebohm then was) should seek naturalization in a neutral state.

Moreover, even before the Nottebohm Case there was substantial evidence for the doctrine of effective link, which was not confined to cases of dual nationality.

Individual – Extradition & Political Asylum:

The interests of the individual appear in another complex relation with his own and other states in the law concerning extradition and political asylum. In the normal case the process of extradition accords with good policy. The values of justice are preserved and the interest of the requesting state in exercising jurisdiction is recognized. Moreover, the individual is not allowed to escape responsibility for the common types of crimes mala in se (the term Mala in Se refers to criminal acts that are wrong because they violate the moral, public, or natural principles of a society).

There is no duty to extradite, however, and even where a treaty exists, exception is made for persons accused of political offences. Since the late nineteenth century liberal tendencies have favored the practice of granting asylum to political offenders. Efforts, so far only in the realm of Lex Ferenda (the law which is being sought to establish; the law to be proposed; the law as it ‘ought’ to be), have been made to create a right of asylum for the individual, in place of the discretion which states at present have. The Universal Declaration of Human Rights prescribes a right to seek and to enjoy in other countries asylum from persecution, which is not to be invoked in the case of prosecutions arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. In 1962, during discussion in the Third Committee of the General Assembly of the Draft Covenant on Civil and Political Rights, some states supported the inclusion of a new article on the right of asylum. At the moment two sources of difficulty exist: the uncertainty of the concept of political offences and the tendency, within military and political alliances, to refuse asylum to persons considered by allies to be politically dangerous.

Doctrine of Effective Nationality by Velanati Jyothirmai @ Lex Cliq