The Rights of Individual in the International Public Law
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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 husbands 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 wifes nationality, although a wife may acquire her husbands 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