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 persons permanent residence is called his domicile. Residence
is just a place of current staying. A person who is not having any nationality is known as a
stateless person under IL.
Significance/Advantages/Importance of Nationality
a)
b)
c)
d)
e)
f)

Gives a claim of protection. Every person can claim protection from his own nation.
A national can claim diplomatic protection.
Determination of enemy character (status).
No extradition Nationals are generally not extradited to another country CIL rule.
Obligation to punish.
For exercising extra-territorial jurisdiction:
Civil & Criminal jurisdiction; concept of passive & active nationality; state can

exercise jurisdiction on the basis of either nationality of accused or that of the victim.
g) No country can detain/prevent coming (receiving) back of its nationals.
Mode of Acquisition
1) Jus Soli i.e. by birth, means the children taking birth in a country getting the
nationality of that country. Most countries follow this principle.
2) Jus Sanguins i.e. by descent, meaning that the children getting their nationality by
the nationality of their parents. Followed by many countries including India, USA etc.
In case of conflict, when the nationality of the parents is different, it is usually decided
by the act of the party, i.e. by express declaration a person can choose which one of
the nationality he wants to follow. Some places there are different laws of the country,
e.g. Germany gives the fathers nationality. If the party does not exercise any option
then under IL nationality is established through the test of Close & Intimate
Connection.
3) By Option if an individual has got more than one nationality then he has to choose
one of them.
4) By Subjugation i.e. forceful annexation of a territory by another country. When the
state is defeated or conquered, all the citizens acquire the nationality of conquering
state.
5) By Cession Cession means Joining of a territory or part of one country with another
country by an agreement. When a state is ceded in another state, all the people of the
territory acquire the nationality of the state in which their territory is merged.
6) By Resumption a Person who was temporarily deprived of his nationality due to
some reason & subsequently, he may resume his nationality after fulfilment of certain
conditions.

7) By Registration-A person may acquire nationality of a state through registration. The

process of registration may be different from one state to another depending upon the
laws of the state.
8) By Naturalisation means Acquiring nationality by way of long & continuous stay.
When a person living in a foreign state for a long time acquires the citizenship of that
state then it is said to be state of nationality acquired through nationalisation.
Notte Boehm(nationality) case
Notte was born in 1881 in Germany, hence was a German national. In 1905, he went to
Guatemala, he stayed there & set up his business there. In 1939, he went to Leichsten&
obtained nationality by way of application & after obtaining nationality he came back to
Guatemala & continued with his business. In 1941, all his property was confiscated by
Guatemala & he was arrested by US, & deported to US on grounds of being an alien enemy
as he was a German national. In 1943, he was detained as a prison internee & continued till
end 1943. In 1944, he was released by US & he went back to Leichsten. After his reaching,
Leichsten filed a case against Guatemala for releasing of his property. Question came
whether Notte Boehm is a national of Leichsten. The court identified that he will be a national
of Guatemala by naturalisation. ICJ said that application to Leichsten for nationality was a
fraud since it was done only to avoid being an alien enemy & his actions conveyed the same.
Court further introduced the Close & Intimate Connection test.
Losing Nationality
1) By same ways
2) By deprivation- A national of a state may be deprived of his nationality in case of
certain happenings. Legislation of many countries requires various grounds for
deprivation of nationality. For instance, if a citizen enters into foreign civil or military
service without permission, he may be deprived of his nationality.
3) By substitution-Some states provide for the substitution of nationality. According to
this principle, a person may get nationality of a state in place of the nationality of
another state. This is called nationality by substitution whereby he loses the
nationality of one state and acquires the nationality of another state.
4) By Renunciation-A person may renounce his nationality of a state. The question of
renunciation of nationality arises when the person acquires it of more than one state.
In such case he has an option to retain the nationality of one state and to renounce the
other.
5) By Expiration- A person may lose nationality of a state by expiration. For instance,
some states have provided by legislation that citizenship expires in the case of such of
their subjects as have left the country and stayed abroad for a certain length and time.

Asylum
The term Asylum originated from Greek word Asylia means inviolable place.
Asylum = active protection + shelter
The term is referred to those cases where the territorial State declines to surrender a person to
the requesting State, and provides shelter and protection in its own territory.
Thus, asylum involves 2 elements. Firstly, shelter, which is more than a temporary refuge;
and secondly, a degree of active protection on the part of the authorities in control of the
territory of asylum.
Asylum is the protection which a State grants on its territory or some other place under the
control of that State to a person who comes and seeks
Article 14 of the UDHR provides that under IL every person has a right to seek asylum.
However, it is to be noted that the Declaration simply recognises the right of asylum, it does
not grant right to receive asylum.
Grant of asylum is an aspect of sovereignty. Every State can decide as to grant asylum to
whom or not.

Classification
Depending upon the territory where asylum is granted asylum in classified as:
a) Territorial Asylum: an asylum granted by one country within the boundary of that
country is called territorial asylum. The right to grant asylum by a State to a person
on its own territory flows from the fact that every State exercises territorial
sovereignty over all persons on its territory whether they are its subjects or aliens. A
State has a right to admit or expel any person found in its territory. The grant of
territorial asylum therefore depends upon the discretion of the State which is not
under a legal obligation to grant asylum to its fugitive.
b) Extra Territorial Asylum (ETA): an asylum granted outside the boundary of a
country but within a territory which is under the control of the territory.
Asylum within the diplomatic premises is known as diplomatic asylum.
Asylum can even be granted in warships but commercial ships are not entitled to grant
ETA.
Columbia v. Peru (popularly known as the Asylum case)
Haya De La Torre was a Peru revolutionist. Peru government issued arrest warrant against
him. Haya De La Torre sought asylum in Columbian embassy in Peru and was granted the
same.

Granting of asylum was objected by Peru on ground that asylum granted by the Columbian
embassy is violative of territorial sovereignty of Peru.
The question came up whether ETA was violative of territorial sovereignty.
ICJ held that ETAs are illegal under IL as ETAs are violative of territorial sovereignty but ICJ
also established 3 exceptions wherein ETAs would be valid:
a) If there is an agreement between the countries.
b) If there is a valid customary practice.
c) If the asylee faces imminent threat due to political corruption or due to a mob
violence. (Julian Assange was granted asylum by Ecuador embassy in USA on this
ground).
Conclusion: ETAs are generally considered as illegal under IL unless granted in the 3
exceptional circumstances as provided by the ICJ.

Asylum to Terrorist
Under IL grant of asylum to terrorist is prohibited. Resolution no 1373 of UN Security
Council, 2001 provides that no member State should grant asylum to terrorists.

Asylum to Pirates
Once a person is declared as a pirate no State can grant asylum as pirate is a status upon
which any country can attack.

Extradition
Extradition means handing over an accused or a convicted person to one country from
another country.
According to Oppenheim, Extradition is the delivery of an accused or convicted individual
to the State where he is accused or been convicted of a crime by the State on whose territory
he happens to be
In the case of Factor v. Lubelheim it has been held that there is no duty under IL to extradite a
person.
Extradition is possible only by way of a valid treaty between two countries for extradition.

Relation between Extradition and Asylum

According to Starke, where extradition starts the asylum ends and vice versa. Hence, they are
mutually exclusive of each other.

Rendition
Rendition is a process in which handing over of an accused or convicted person is not based
on a treaty.
For example: Abu Salem was rendered by the Portugal government as there was no
extradition treaty between India and Portugal.

Conditions for Extradition

Under IL, there is no law regulating extradition but there are certain principles under
Customary IL which is to be followed. They are:
a) There should not be any extradition of its own nationals.
b) Rule of Double Criminality: according to this rule, to extradite a person the act
committed by him should be an offence in both the countries.
Eg. In the case of Factor v. Lubelheim, Factor a UK national committed a fraud i.e.
he took away money of some people. Commitment of fraud was an offence in UK.
However, after committing fraud, Factor went to State of Illinois in USA. UK
requested USA to extradite Factor.
The question arose whether committing fraud was an offence in USA as well.
The Court found out that committing fraud was not an offence in the State of Illinois
and held that UKs extradition is not tenable.
Another example can be of adultery. Committing adultery is an offence in India but
not in England. So ifa person commits adultery in India and goes to England then in
that case India cannot claim extradition off such a person.
c) No extradition of political criminals, military criminals and religious criminals.
Political Criminals: a criminal who commits crime for a political motive.
The reason behind this rule is to prevent people from malicious intentions as generally
there can be misuse as political crimes are not original in nature there is always a
hidden agenda behind it.
d) Rule of Speciality: According to this rule, if a person is extradited for a crime then he
shall not be imposed with any additional charge, if done so then the extradition will be
invalidated.
This rule was discussed in the case of USA v. Rouscher
Rouscher was extradited from UK to USA for the charge of murder but once hecame
to USA the USA govt. imposed an additional charge of grevious hurt upon him. The
charge was objected by Rouscher on the ground that he was extradited only for
murder.
Court held that Rouschers claim was right and hence invalidated all the proceedings
against him by applying the rule of Speciality.
e) Prima facie evidence: for initiation of any proceedings it has to be proved that there is
a prima facie evidence against the one who is charged for an offence.
Under IL, every State claiming extradition has to support its claim with prima facie
evidences.
f) No extradition for trifles.

g) Formalities: if there is an extradition treaty between the States, then to make an

extradition valid all the formalities should be followed as per the treaty.
Veer Sawarkar case
Veer Sawarkar was arrested in London and British govt. was taking him to India
through a ship via France. When the ship reached the France port, he escaped but was
subsequently caught by the French police and was in turn handed back to the ship.
Sawarkar objected this on the ground that there was an extradition treaty between UK
and France and the procedure given there was not followed.
French Court rejected his contention and held that once the extradition is complete the
procedure is followed or not cannot be challenged.