Nationality, aliens and refugees

The law of each state primarily determines who its nationals are. In certain, and usually
exceptional, cases, international law will not recognize a person as a national of a state
even if the state regards him as its national

In cases of dual nationality,the state of the new nationality may not be entitled to make
an international claim on his behalf unless it can establish that at the relevant time he
had a ‘genuine connection’ with it.{ See Nottebohm, ICJ Reports (1955), p. 4, at pp. 22–6; 22 ILR
349.
The effectiveness in international law of the conferring by Iceland in 2005 of its nationality on the
chess grand master, Bobby Fischer, is therefore problematic}

Citizenship
The term ‘citizenship’ usually denotes entitlement, under the law of a state, to full civil
and political rights, and citizenship and nationality normally coincide. When a dual
national is in one of his states of nationality, he cannot usually seek the protection of
the other, although the latter may make representations. However, there is a trend, at
least among Western states, to claim the right to protect a dual national when detained
in the state of his other nationality if his connection with that state is tenuous (e.g. his
only connection is a parent born there).
Under Article 12(2) of the International Covenant on Civil and Political Rights
1966, a person is entitled to leave any country, including his own, but this right is
probably not yet established in customary international law. Article 12(4) guarantees
the unrestricted right of a person to return to his own country

Legal persons
The buildings and employees of a legal person (such as a company) are its physical
embodiment, but for legal purposes they are not the company. A company is the most
common form of corporation, and is created by law. The basic principle is that a
corporation has the nationality of the state in which it was incorporated or in which it
has its registered office or head office. In Barcelona Traction (Second Phase), the
International Court of Justice decided that a company incorporated in Canada, and with
its head office there, had Canadian nationality even though 88 per cent of the
shareholders were Belgian nationals{ ICJ Reports (1970), p. 3, paras. 32–101; 46 ILR
178. See Brownlie, pp. 466–71.

These days, for tax purposes many companies are incorporated in one state (where the registered
office is), but have their headquarters in another state.
An international tribunal may therefore look behind the legal veil (or facade) of incorporation to
determine in which state the control and ownership of the corporation really lies. The state with
which the company has a close, substantial and effective connection, may then be treated as the
state of nationality.
An aircraft has the nationality of the state in which it is registered
A ship has the nationality of the state whose flag it is entitled to fly irrespective of the
nationality of the person(s), or company, which owns it.

Diplomatic protection
A state has the right- but no corresponding ( b traction)- to protect its nationals abroad,
that is to say, to ensure that another state treats them in accordance with treaties
binding on both states and the minimum standards for treatment of aliens laid down in
customary international law.
Whether a state decides to take action to protect one of its nationals (including legal
persons) will depend on several factors:
- whether the national can establish the necessary facts that he has been treated
wrongly by the foreign state;
- whether he can, and has taken, steps to correct the wrong;
- whether the case is meritorious;
- whether the state has the means to take effective action with the foreign state.

The principal disadvantage of being an alien ( non-national) is that one has no

entitlement to enter or stay in a foreign state, unless this is conferred by treaty. Aliens
are subject to the law and jurisdiction of the foreign state

Property of aliens
If an alien owns property lawfully, customary international law requires the state to
protect his property rights by allowing him access to its courts on an equal footing to its
nationals. But a state (by means of governmental or other public bodies) is not
prevented from expropriating the property of aliens so long as certain conditions are
met. ‘Expropriation’ means the compulsory deprivation of property against the
payment of compensation. ‘Nationalization’ usually means general expropriation,
typically of a whole industry. In contrast, ‘confiscation’ is the taking of property without
compensation.

An act that causes a significant diminution in the value of the property may well
constitute expropriation. The factors which must be considered in determining whether
an expropriation is lawful in international law are
(1) whether it was done in accordance with proper legislation or arbitrarily;
(2) whether it was done for a public purpose (an environmental concern may not be
enough);
(3) whether aliens were discriminated against; and
(4) whether appropriate compensation has been paid.
Whether the compensation is appropriate depends on whether it is adequate and
effective, and promptly paid.

State responsibility
State responsibility is a fundamental principle of international law, arising out of the
nature of the international legal system and the doctrines of state sovereignty and
equality of states

The nature of state responsibility

The essential characteristics of responsibility hinge upon certain basic factors: first, the
existence of an international legal obligation in force as between two particular states;
secondly, that there has occurred an act or omission which violates that obligation and
which is imputable to the state responsible, and finally, that loss or damage has resulted
from the unlawful act or omission.
These requirements have been made clear in a number of leading cases. In the Spanish
Zone of Morocco claims,14 Judge Huber emphasised that: responsibility is the necessary
corollary of a right. All rights of an international character involve international
responsibility. Responsibility results in the duty to make reparation if the obligation in
question is not met.'"
Article 2 provides that there is an internationally wrongful act of a state
when conduct consisting of an action or omission is attributable to the
state under international law and constitutes a breach of an international
obligation ofthe state
It is international law that determines what constitutes an internationally
unlawful act

A state
assisting another state25 to commit an internationally wrongful act will
also be responsible if it so acted with knowledge of the circumstances and
where it would be wrongful if committed by that state
The question of fault2'
There are contending theories as to whether responsibility of the state for
unlawful acts or omissions is strict or whether it is necessary to show some
fault or intention on the part of the officials concerned. The principle of
objective responsibility (the so-called 'risk' theory) maintains that the
liability of the state is strict. Once an unlawful act has taken place, which
has caused injury and which has been committed by an agent of the state,
that state will be responsible in international law to the state suffering
the damage irrespective of good or bad faith. To be contrasted with this
approach is the subjective responsibility concept (the 'fault' theory) which
emphasises that an element of intentional (dolus) or negligent (culpu)
conduct on the part of the person concerned is necessary before his state
can be rendered liable for any injury caused. Majority of the cases tends towards the
strict liability, objective theory of responsibility.
In the Corfu Channel case,32 the International Court appeared to lean
towards the fault theory3' by saying that:
it cannot be concluded from the mere fact of the control exercised by a state
over its territory and waters that that state necessarily knew, or ought to have
known, of any unlawful act perpetrated therein, nor yet that it necessarily
knew, or should have known, the authors. This fact, by itself and apart from
other circumstances, neither involves prima facie responsibility nor shifts
the burden of pr~of.'~
On the other hand, the Court emphasised that the fact of exclusive
territorial control had a bearing upon the methods of proof available to
establish the knowledge of that state as to the events in question

IMPUTABILITY
Imputability( ATTRIBUTION) is the legal
fiction which assimilates the actions or omissions of state officials to the
state itself and which renders the state liable for damage resulting to the
property or person of an alien.
Article 4 of the ILC Articles provides that the conduct of any state
organ (including any person or entity having that status in accordance
with the internal law of the state) shall be considered as an act of the
state concerned under international law where the organ exercises legislative
legislative,
executive, judicial or any other function, whatever position it holds
in the organisation of the state and whatever its character as an organ of
the central government or of a territorial unit of the state
Imposing upon the state absolute liability wherever an official is involved
encourages that state to exercise greater control over its various departments
and representatives. It also stimulates moves towards complying
with objective standards of conduct in international relations.
example of state resp onsibility is illustrated by the Nicaragua case,41 where
the International Court of Justice found that acts imputable to the US included
the laying of mines in Nicaraguan internal or territorial waters
and certain attacks on Nicaraguan ports, oil installations and a naval base
by its agents." In the Corfu Channel case,43 Albania was held responsible
for the consequences of mine-laying in its territorial waters on the basis
of knowledge possessed by that state as to the presence of such mines,
even though there was no finding as to who had actually laid the mines.
The
state as an abstract legal entity cannot, of course, in reality 'act' itself. It
can only do so through authorised officials and representatives.
Article 5, in reaction to the proliferation of government agencies and
parastatal entities, notes that the conduct of a person or of an entity
not an organ of the state under article 4 but which is empowered by the
law of that state to exercise elements of governmental authority shall be
considered an act of the state under international law, provided the person
or entity is acting in that capacity in the particular instance.
Article 6 provides that the conduct of an organ placed at the disposal
of a state by another state shall be considered as an act of the former
state under international law, if that organ was acting in the exercise of
elements of the governmental authority of the former state.
Ultra vires acts
An unlawful act may be imputed to the state even where it was beyond
the legal capacity of the official involved. Article 7 of the ILC Articles provides that the
conduct of an organ or
of a person or entity empowered to exercise elements of governmental
authority shall be considered an act of the state under international law if
acting in that capacity, even if it exceeds its authority or contravenes.
instructions.j6 This article appears to lay down an absolute rule of
liability, one not limited by reference to the apparent exercise of authority
and, in the context of the general acceptance of the objective theory of
responsibility, is probably the correct approach

State control and responsibility

Article 8 of the ILC Articles provides that the conduct of a person or
group of persons shall be considered as an act of state under international
law if the person or group of persons is in fact acting on the instructions
of, or under the direction or control of, that state in carrying out the
conduct. In the Nicarug~~caas e, the International Court declared that in order
for the conduct of the contm guerrillas to have been attributable to the
US, who financed and equipped the force, 'it would in principle have to be
proved that that state had effective control of the military or paramilitary
operation in the course of which the alleged violations were committed'.

Article 9 of the ILC Articles provides that the conduct of a person

or a group of persons shall be considered as an act of the state under
international law if the person or group was in fact exercising elements
of the governmental authority in the absence or default of the official
authorities and in circumstances such as to call for the exercise of those
elements of a~thori

Mob violence, insurrections and civil wars

Where the governmental authorities have acted in good faith and without
Negligence..STATE HAS RESPONSIBILITY OF DUE DILIGENCE, the general principle is
one of non-liability for the actions of rioters or rebels causing loss or damage
Article 10 of the ILC Articles provides that where an insurrectional
movement is successful either in becoming the new government of a state
or in establishing a new state in part of the territory of the pre-existing
state, it will be held responsible for its activities prior to its assumption of
authority.
In Short v. The Islamic Republic of ran,^' the
Tribunal noted that the international responsibility of a state can be engaged
where the circumstances or events causing the departure of an alien
are attributable to it, but that not all departures of aliens from a country
in a period of political turmoil would as such be attributable to that
state." In the instant case, it was emphasised that at the relevant time the
revolutionary movement had not yet been able to establish control over
any part of Iranian territory and the government had demonstrated its
loss of control. Additionally, the acts of supporters of a revolution cannot
be attributed to the government following the success of the revolution,
just as acts of supporters of an existing government are not attributable
to the government. Accordingly, and since the claimant was unable to
identify any agent of the revolutionary movement the actions of whom
forced him to leave Iran, the claim for compensation failed.'

Circumstances precluding wrongfulness"

Where a state consents to an act by another state which would otherwise
constitute an unlawful act, wrongfulness is precluded provided that the
act is within the limits ofthe consent given