International law, Sixth edition
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International Law MALCOLM N. SHAW
Morocco case.
60 This concerned a dispute between Britain and France over French nationality decrees which had the effect of giving French na- tionality to the children of certain British subjects. The Court, which had been requested to give an advisory opinion by the Council of the League of Nations, declared that: [t]he question of whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question, it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of this court, in principle within this reserved domain. 61 However, although states may prescribe the conditions for the grant of nationality, international law is relevant, especially where other states are involved. As was emphasised in article 1 of the 1930 Hague Convention on the Conflict of Nationality Laws: it is for each state to determine under its own law who are its nationals. This law shall be recognised by other states in so far as it is consistent with international conventions, international custom and the principles of law generally recognised with regard to nationality. The International Court of Justice noted in the Nottebohm case 62 that, according to state practice, nationality was: a legal bond having as its basis a social fact of attachment, a genuine con- nection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. 60 PCIJ, Series B, No. 4, 1923; 2 AD, p. 349. 61 PCIJ, Series B, No. 4, 1923, p. 24. 62 ICJ Reports, 1955, pp. 4, 23; 22 ILR, pp. 349, 360. See also below, p. 813. j u r i s d i c t i o n 661 It was a legal manifestation of the link between the person and the state granting nationality and a recognition that the person was more closely connected with that state than with any other. 63 Since the concept of nationality provides the link between the individ- ual 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. 64 In general, the two most important principles upon which nationality is founded in states are first by descent from parents who are nationals (jus sanguinis) and second 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 par- ticular state should be granted the nationality of that state by reason of descent. This idea is particularly utilised in continental European countries, for example, France, Germany and Switzerland, where the child will receive the nationality of his father, although many munici- pal systems do provide that an illegitimate child will take the nationality 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 al- ways follow that that fact alone will be sufficient to make the child a national. The common law countries have tended to adopt the jus soli rule, whereby any child born within the territorial limits of the state automat- ically becomes a national thereof. 65 The British Nationality Act of 1948, 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’. 66 There is an exception to this, however, which applies to vir- tually every country applying the jus soli rule, and that is with 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 63 See below, chapter 14, p. 815, as to dual nationality and state responsibility for injuries to aliens. 64 See e.g. Brownlie, Principles, p. 378; P. Weiss, Nationality and Statelessness in International Download 7.77 Mb. Do'stlaringiz bilan baham: |
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