The rights of individual in the international publ

This essay has a total of 5213 words and 26 pages.

The rights of individual in the international public law

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.




Minorities
Many 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
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