Nationality and International Judicial Process - Essay Example

?Nationality and international judicial process Insert Insert Grade Insert Introduction Mutual relational consent by individual to country explains “nationality”. How can nationality exist without state and the subject? A state offers legal protection and expects the individual to give back through committing onto state obligations. Through this, state poses jurisdictions the subject while he/she is accorded protection. Subjects are obliged to entitlement of privileges provided by virtual of belonging. There should be no limitation into individual efforts in acquiring nationality or properly too while changing it. It is designed to be an easy task when a person applies for nationality in a country more so by law. Equally, when one intends to forfeit/forego accorded nationality, then simple procedures should be followed. On the other hand, international law confines are configured around the individual state supremacy and thus the judicial administration is designed to serve the international community. It is therefore formulated for and by the cooperation of individual states that consent onto alike ideals of governance and justice procedures. However, for the interest of the common good of all humanity, there are obligations to the international community to oversee justice and lawful governance even to the countries that are non partisans to the international treaties that bind member countries to the common international justice. This is because human beings have been “socialized” in conflict resolution through amicable manners. Nevertheless, supremacy of the state often holds the mandate to establish solution giving mechanisms to cases requiring legal arbitration. In the event of arbitrations that are beyond a state scope, especially those involving other states, arbitration is done centrally by a central tribunal under the watch of international community. Certain basics hold as pertains to these procedures. The tribunals are formed by consent of many states who also give guidelines on the operations. The associates of the states are by default linked to the tribunal. All the procedures are well monitored under commonly accepted codes of operations. This essay therefore intends to evaluate the ways in which nationality aspect is relevant into the confines of international law. We intend to show how nationality holds when it comes to the judicial field beyond the borders of supreme state. Are there provisions that explain the levels of sovereignty of nationals of particular states as opposed to others? What is the jurisdiction provision on the matter that pertains to statelessness or refugees? What are the relationship spheres of a sovereign state and her nationals when it comes to crime against humanity or any other international crime committed either within the respective country’s borders or the international scene? Discussion We start by evaluating nationality and its meaning. It started with the states forming the basic blocks of the international law but later on a relationship between the states and individual persons led to reconsideration of nationals as regards to the international law. Through this then, international law encompassed an individual and state. Sloane, say that inclusion of nationality in “international law” mediated accompanying obligations and persona rights. The initial intention was towards offering diplomatic protection, state responsibility, war, extradition and jurisdiction (2009, 1-2). Therefore, the best way to understand nationality is in terms of the legal bundles of protection or individual duties and rights to an individual person accustomed to at state or at international level. Though an individual has a formal entitlement of sense of belonging to either one or more states through the single or dual nationality procedures, everyone is bound to the terms espoused to by the country’s legal framework. However, the basic significance legal consequence of nationality remains in individual state to which a person belongs. In this, it has gained momentous significance to the international viewership in extraterritorial legal jurisdiction. The international law works both at international scope involving active “member states” and individual citizen players within the jurisdictions provided for. Member countries sign into treaties in commitment to the legal entitlement of themselves and their subjects in view of the provisions provided for. Nationality gains stage in international jurisdictions by the affiliation of individual state to international treaties unto which the international law is applicable. The consensus into international treaties and regulations entitles not only the individual nation/state to the international law but also subjects the nationals and citizens to some or all of the legal procedures that govern the international community. Nevertheless, the states’ ascription to national law under “internal law” “shall be recognized by other states in so far as it is consistent to the international conventions, international customs and the principles of law generally recognized with regard to nationality”. The national legal frameworks of the individual states remain superior even when it comes to international jurisdictions. However, the international customs, conventions and principles in the past were rather vague and lacked specificity. More of reforms and improvements have been and continues to be grafted into the international legal and justice course in order to have satisfactory results when it comes to the pursuit of justice beyond a person’s country of nationality. Trust and confidence is boosted especially so when citizens question the competence of their state legal procedures. A good example to this is the contemporary international provisions against refuges. Stateless persons are subject to physical harassment, denial of rightful residing ground and may face deportation. Poor state provisions may not be favorable to them and hence they suffer lack of justice or the justice goes beyond their reach. Nevertheless, with the statutes affiliated to at the international legal houses, these persons may move and seek justice under the provisions of refugees. However, there are restrictions to the adherence to these especially to interstate investment and trade relations by such trade blocks such as “the European energy charter treaty” and “the Northern America Free Trade Agreement” (Cloane, 2009, 6). International law does not in any way limit the sovereignty of individual states as regards to nationalization and the obligations that nationals are obliged. As earlier alluded to, the individual state has a corporate responsibility of safeguarding her subjects and at the same time assuring them of the sense of nationality through protection and in the reciprocal, the nationals are required to reciprocate through being loyal and respecting to their states. Soon after the Second World War, there was the bid to introduce individuals as subjects to international law to enhance the international legal regulation and through it enhance the essence of nationality. This was mostly advocated for by “the international human rights law”, “refugee protection regime” and “the law of humanization”. A study by Hudson (1952) found out that there is almost a common consensus of the states to confer nationality to individual citizens by virtue of territorial birth (jus soli) or by virtue of belonging to specific national legal systems (jus sanguinis). Nevertheless, international states and arbitral tribunals may disregard nationality by virtual of law or by birth as seem necessary. Under special occurrences, the supremacy of state authority is disregarded when analyzing the individual cases especially as regards to nationality. This therefore rules out the supremacy of states and indicates that states are bound to comply by the international provisions as per the treaties consented to. Other distinct provisions in the international legal procedures confers power to the tribunal to effectively deny individuals who by improperly were conferred nationality by their respective states. If the international jurisdictions find out that a person has unreasonably acquired nationality in a manner likely to compromise other people’s legal rights at the international scene, the law allows that the persons may be denied the rightful provisions to be enjoyed at the international scene though accessible at the state level (Cloane, 2009, 15). An individual feels covered and safe while under the cover of the state’s nationality and thus when denied the right by the international tribunals, then he/she is not only prone to national conviction but also international conviction against any charge he/she would be facing. In the extreme cases of diplomatic cover, these persons are likely to face their chares at the international courts as they are likely to dehumanize the efforts at the local tribunals by their influence of nationality. However, the standards of the international legal system are normally beyond compromise and therefore would be trusted than those in local tribunals. “Modern international law” is regarded as both desirable and important and as such contradicts the past feeling that dual nationality was contradictory and unimportant especially so when it came to legal matters. However, the provisions of the international laws today appreciate possession of dual nationalities as is equally the case with citizenship. In the past, the provisions at place reasoned that when nationality lacks exclusivity it presents another problem in legal adjudication in that it is not possible to ascertain the nationality of belonging (Cloane, 2009, 34). When one individual belonged to more than one state, the diversity in affiliation to domestic legal frame work as well as to the international legal framework constrained the judicial procedures. It would more often arise that one country would be ascribed to different treaties as the other country, therefore posing a challenge on what jurisdictions to follow in challenging any legal case presented against this person. In united states,” the Immigration and the Nationality Act“stipulates the eligibility of one as a refugee and procedurally ascertains protection. Under the act, not all persons who pose as stateless would ideally be refuges and thus scrutiny is necessary to ascertain the lack of nationality to any person claiming so. Under well stipulated guidelines as to who qualifies to be a refugee and hence be covered within the provisions of the act at the international legal precedence, then the act is enforced. For international legal framework to be and be affected there must be the affiliation by individual sovereign states. On the other, hand, state sovereignty would not hold without the subjects who in this case are the citizens and the nationals. They are designed to adjudicate on sovereign states’ affairs and or for individual persons who are covered by the law under the treaties consented to by the mother states to which they belong. Therefore, nationality in this regard holds basic as to the formulation and execution of the international law. They form building blocks to the international law just as they are within the confines of the respective countries. Sovereign states are usually well represented in matters that pertains to the running of the international tribunals that they are members to. Judges also are well sought for in order to ensure representativeness when it comes to the affairs entailed. There are usually rotational modes for the presiding personnel in the international legal confines to reduce biasness. According to Hailbronner, nationality presents a very important aspect when it comes to the international relations. It depicts the extent to which individuals enjoy the basic rights and obligations of the state in the context of other nationals, sovereign states and other international community players. Individual persons are in a position to fully realize and enjoy their national privileges in terms of protection and cover within the respective states as well as while in an international context. Legal provisions have now gone far from only the limitations of the individual state to the provisions provided for by the international community. There are provisions that are in place to entitle nationals of countries to file complaints in international bodies and more so the bodies that arbitrate against human rights violations in the cases of civil war, refugees, etc. (Hailbronner,nd, 1-3 of 67). This is well formulated to provide judicial adjunction against persons that are immune to the legal frameworks within their countries of nationality and also those that enjoy diplomatic immunity. Whenever any state signs into the provisions and treaties formulated for the international legal frameworks, then the nationals are entitled to enjoy the justice framework at the international courts and tribunals. Therefore, state nationals can in person refer their cases into the tribunals. This guarantees personal satisfaction when it comes to the rulings as more often than not, there are minimal or no biasness at all. Business personnel and organizations seeking justice in intra state discrepancies are also well served within the international law provisions. This thus form the initial purpose as to which “the international legal frameworks” were designed. The European law defines nationality as a basic human right. “The Universal Declaration of Human Rights,” the fifteenth chapter and first paragraph say that all people are entitled to nationality. The refugees in particular are well catered for in the international law and as such nationality comes hand in hand. Statelessness is well recognized and as such, there are legal frameworks set in place for such cases. Ways and reasons of statelessness are expounded on and thus prove of the state guarantees the victims international cover within justice frameworks. There are also categories of persons that are entitled to the European cover in international law by the virtue of nationality. These include spouses to nationals, children of either of spouses who are nationals by birth or adoption, birth within the territorial confines of Europe and also refugees who are well defined as stateless currently residing in the country. Nevertheless, sovereign states are constantly recording their worry and dissatisfaction concerning the increasing access to nationality even to the migrants. The reason is that even illegal migrants are easily avoiding immigration restrictions and this is not easily arbitrated about by the international law provisions. By acquiring the provisions of statelessness or refugees, individual persons are avoiding deportation by the virtual of nationality (Hailbronner,nd, 14 of 67). Nevertheless, much has been growing behind the scenes with criminals or people with improper intentions posing as stateless and hence enjoying the international cover and sympathy at the expense of the legally stateless persons. The international community ascribes to universally accepted code of behavior that ascertains sobriety of human conduct especially so when it comes to matters of public interest. When genuinely needed, the cover to refugees should be ascertained especially during civil wars or natural calamities that displace people. However, it is really improper to have imposter stateless persons who ruin the sovereignty of the international love and spirit to help. In order to address conflicts that arose from loss of nationalities due to military service and loyalties, there was the need to revisit the provisions within the international law as pertained to the issues. Traditionally, the dealings of the international courts of justice were seen as to only serve the arbitration between conflicting sovereign states. However with a change of scope, the international justice is currently touching on arbitration of individual nationals and also conflicts that arise within business partners or organizations. The international law in public domain is concerned with the question of rights between two or more countries, individuals and organizations. However, the sum up of the international legal framework has been reengineered in the recent past to cater for and incorporate the individual persons of the affiliated states. A good example into the international frameworks that have been very vocal in arbitrating nationals’ cases is the international criminal court in The Hague that has been checking into personal cases on crimes committed against humanity especially in the political. It is also worth noting that the magistrates and judges presiding over the arbitration of cases presented to the international courts of justice are individual nationals of sovereign states. They are legitimized in their mandate by the vetting of international supervisory bodies that are equally formed of nationals to states. Actually, with the ever growing demand, the arbitration of the cases have been notably increasing over the recent past and this prompts the judicial procedures in use to be dynamic in regard to the satisfactorily coverage of the needs successively. Conclusin The world has gradually changed and international legal provisions are slowly taking shape and common governing ethics are being consented to by individual states. In this regard, the individual personal superiority envisioned to persons by the sense of belonging to a nation, or well nationality is being complemented by another feeling of belonging to a common world and as such being one community. As we sought to understand the limits of importance of individual nationality when it comes to the international legal procedures, many findings came up. Nationality of the involved parties is a critical component when it comes to arbitration of any kind of a case filed at the international court or tribunal. By belonging to sovereign states, individuals enjoy unlimited cover from these countries even when it comes to procedures of the international legal systems. It is also clear that the establishment and running of the legal frameworks at the international level is dependent on state nationals. These serve as magistrates, judges and administrators and must be distributed to represent various nations and affiliated member states. Therefore, by and large, nationality forms the most critical basis on the operations of an international justice/legal framework. Different countries in the world are ascribed to various international legal jurisdictions. However, within special stipulations; states may be forced by international community to act otherwise. The nationals of the member states enjoy full mandate to seek legal procedures within international legal frameworks. Nevertheless, nationality comes with obligations as persons are expected to give back to the state. It is therefore a mandatory aspect of the international legal procedures to ascertain appropriate nationality to the parties involved. References Hailbronner K., nd. Nationality in public international law and European law. [Accessed on 12/4/2013] Web:< http://eudo-citizenship.eu/docs/chapter1_Hailbronner.pdf> Sloane R. D. 2009. Breaking The Genuine Link: The Contemporary International Legal Regulation Of Nationality. Havard international law journal./Vol 50. Number 1, winter 2009. Read More