Concept of Recognition, Nationality and Extradition under International Law | Law Optional Notes for UPSC PDF Download

Introduction

In the field of international law, several crucial concepts are employed, including the recognition of states and governments, nationality, refugees and internally displaced persons, immigrants, extradition, and asylum. These concepts play a significant role in the day-to-day operations of international law.

Recognition of States and Governments

• The term "State" does not have a precise definition but is typically characterized by a strong centralized organization. According to Max Weber, a State is defined as a human community that claims the exclusive right to use legitimate physical force within a specific territory.
• States can be categorized based on their independence into two types: sovereign states or those subject to external sovereignty or hegemony. In international law, the definition of a State is often based on the 1933 Montevideo Convention.
  According to Article 1 of the convention, a State, as a legal entity in international law, should possess the following qualifications:
  • Permanent population
  • Defined territory
  • Government
  • Capacity to engage in relations with other States.

Government

• Government can be defined as a system in which a group of individuals govern a community or entity with the consent of the governed. The primary role of government is to administer and establish public policies for the well-being of the populace. 
• Various institutions are employed by governments to establish a framework of rules and order, ultimately ensuring good governance for the general population. Different forms of government exist, including democracy, republics, and others.
• According to Harold Damerow, a professor specializing in government and history:
• Government is responsible for formulating public policies that apply to an entire society, serving as the guiding mechanism for that society.

Recognition

At the global level, when new states and governments are formed, they require recognition from other sovereign states in order to establish diplomatic relations.

For example

Taiwan is still not recognized by many countries, resulting in limited diplomatic relations. The recognition of a sovereign state is not arbitrary but is based on specific criteria and attributes interpreted in accordance with internal law. In international law, states are regarded as principal actors. The recognition of a state often constitutes a political act by another state.
It's important to note that the recognition of a government is distinct from the recognition of a state. A state's recognition is typically based on specific, essential attributes, and once recognized, it cannot be changed arbitrarily. On the other hand, recognition of a government can change while the recognition of the state continues.

Perspectives of Legal Experts Regarding Recognition

Professor L. Oppenheim's View

According to Professor L. Oppenheim, when existing states recognize a new state as a member of the international community, they are essentially declaring that, in their judgment, the new state meets the criteria for statehood as stipulated by international law.

Kelsen's Perspective

Kelsen outlines the conditions that a community must satisfy to be recognized as an international entity. These conditions include:

• The community must have a political organization.
• It should exercise control over a specific territory.
• This control should be of a relatively permanent nature.
• The community must be independent.

Effects of Recognition

Recognition carries several consequences, including:

• Enabling a newly established state to claim ownership of property located within the territory of the recognizing state.
• Establishment of diplomatic relations through dejure recognition.
• Allowing a recognized state to file lawsuits in the courts of recognized states.
• Granting a recognized state the right of sovereign immunity.

Recognition Theories

The concept of recognition is multifaceted and can be understood through two main theories:

Constitutive Theory

This theory is often attributed to Hegel and has been endorsed by scholars such as Anzilotti, Holland, and Oppenheim. According to the constitutive theory, recognition is the process through which a state is formed, hence the term "constitutive." It helps a state acquire international status and become a member of the international community.

Key Views of Leading Advocates of the Constitutive Theory:

• Anzilotti: This theory holds that a subject of international law comes into existence with the conclusion of the first agreement, as expressed by the treaty of recognition. Such recognition is mutual and constitutive, creating rights and obligations that did not exist previously.
• Holland: A state is not considered mature unless it receives recognition, which is crucial for enjoying the associated rights.
• Oppenheim: A state achieves international personhood solely through recognition. According to this theory, recognition grants rights and responsibilities to recognized states under international law.
• Examples such as the recognition of Poland and Czechoslovakia through the Treaty of Versailles support the constitutive theory of recognition.

Declaratory Theory or Evidentiary Theory

This theory, supported by scholars like Professor Hall, Wagner, Pitt Cobbett, and Brierly, emphasizes that recognition requires evidence or declaration. It contradicts the constitutive theory, suggesting that statehood precedes recognition. In other words, according to this theory, a state or government exists as such independently of recognition, and recognition is a formality to acknowledge an already established state.

Key Views of Leading Advocates of the Declaratory Theory

• Professor Hall: A politically organized community, when it demonstrates the attributes of statehood, should be treated as a state as of right. No state has the right to withhold recognition when it is deserved.
• Brierly: Granting recognition to a new state is not a constitutive act but a declaratory one. It does not create a state that did not exist before. A state may exist even without recognition, and if it exists in fact, whether or not it has been formally recognized by other states, it has the right to be treated as a state by them.

Modes of Recognition

De Facto Recognition

De facto recognition is a temporary form of recognition that can be either conditional or unconditional. It is granted by one nation to another when a state or government has not yet achieved sufficient stability. It represents a provisional acknowledgment of the state or government's existence. To obtain de facto recognition, a state or government must possess certain attributes, including stability, the trust of its people, and the ability to fulfill international obligations.
De facto recognition is often followed by de jure recognition when the recognizing state believes that the government in question has established permanent and stable control.

Perspectives of Jurists on De Facto Recognition

Oppenheim: De facto recognition occurs when the recognizing state believes that the new authority, while independent and in effective control of its territory, has not yet achieved sufficient stability or shown a willingness and ability to fulfill international obligations.

• Judge Philip C. Jessup: De facto recognition is sometimes used imprecisely. It should properly mean the recognition of the de facto character of a government. Using it otherwise can lead to extended recognition without resuming diplomatic recognition.
• De Jure Recognition: According to Kelsen, de jure recognition is final and cannot be easily withdrawn. This form of recognition represents a permanent and legal acknowledgment of a state or government. It is extended when a state or government fulfills all the essential criteria set by international law.

It is not necessary for a state or government to have de facto recognition to obtain de jure recognition. When a state receives de jure recognition, it is allowed to exchange diplomatic representatives, establishing diplomatic relations with other nations. If a state is de jure recognized by the majority of states, it becomes eligible for United Nations membership. The distinction between de facto and de jure recognition is primarily political rather than legal in nature.

Other Forms of Recognition

• Implied Recognition: Recognition typically involves explicit written or oral statements. However, there are instances where recognition is implied from the actions or attitudes of a sovereign state. Implied recognition can be inferred when a state's actions indicate acceptance of another state as a member of the international community. Implied recognition often falls within the realm of de facto recognition.
• Collective Recognition: Recognition can be unilateral or multilateral. When multiple nations collectively recognize a state or government, it is referred to as collective recognition. A prime example of collective recognition is when a state is admitted to the United Nations through a majority vote by UN member states.

Doctrines Related to Recognition

There are three main doctrines related to recognition:

• Estrada Doctrine: This doctrine was a key foreign policy instrument of the Mexican government and was named after Genaro Estrada, Secretary of Foreign Affairs (1930-32). It advocated that foreign governments should neither positively nor negatively judge the governments or changes in government of other states, as such judgments would raise questions about their sovereignty. The principles behind this doctrine included non-intervention, peaceful dispute resolution, and the self-determination of all nations.
• Stimson Doctrine: Named after Henry Stimson, the U.S. Secretary of State, this doctrine followed the principle of not recognizing states that came into existence as a result of aggression. The doctrine was an application of the principle that legal rights do not arise from unlawful acts (ex injuria jus non oritur). This policy was initially implemented by the U.S. federal government and was later adopted by governments worldwide.
• Hallstein Doctrine: This doctrine was formulated during the division of Germany into West Germany (the Federal Republic of Germany) and East Germany (the German Democratic Republic). It was propounded by Walter Hallstein, and the Federal Republic of Germany followed this policy. It stated that West Germany would not establish or maintain diplomatic relations with any state that recognized East Germany. Similarly, China followed the One China Policy with respect to Taiwan, stating that it would sever diplomatic relations with any country that recognized Taiwan as a separate nation.

Nationality

Nationality is the legal status that denotes a person's affiliation with a specific country. It is acquired through various means, such as birth, inheritance, or naturalization, based on the constitutional provisions of a state. Nationality determines an individual's citizenship and is the basis for rights, protection, and obligations under the laws of that state.

Definition of Nationality

According to Fenwick, nationality can be defined as the bond that connects an individual to a particular state, making them a member of that state and granting them rights to its protection while subjecting them to the state's legal obligations.
In the renowned Nottebohm case, the International Court of Justice described nationality as a legal bond founded on a social connection, genuine attachment, shared interests, and sentiments, along with reciprocal rights and duties. It reflects that an individual conferred with nationality is more closely connected to the state conferring it than any other state.

Importance of Nationality

As pointed out by Starke, the laws relating to nationality have following importance under International Law:

• The protection of rights of diplomatic agents is the consequence of nationality.
• If a State does not prevent offences of its nationals or allows them to commit such harmful acts as might affect other States, then that State shall be responsible for the acts committed by such a person.
• Ordinarily, States do not refuse to take the persons of their nationality. By nationality, we may mean loyalty towards a particular State.
• Nationality may also mean that the national of a State may be compelled to do military service for the State.
• Yet another effect of nationality is that the State may refuse to extradite its own nationals.
• According to the practice of large number of States during war, enemy character is determined on the basis of nationality.
• States frequently exercise jurisdiction over criminal and other matters over the persons of their nationality.

Domicile and Citizenship: Definitions and Modes of Acquisition

• Domicile: Domicile refers to the country that an individual considers their permanent home, where they reside, and with which they have a substantial connection. Domicile can persist even if a person moves from one jurisdiction to another. For example, if a Sri Lankan citizen temporarily relocates to the United States for employment, their domicile would remain Sri Lankan.
• Citizenship: Citizenship denotes the status of having the right to participate in and be represented in the political affairs of a state. It is based on the principle that individuals owe allegiance to the state and, in return, are entitled to its protection. Citizenship laws vary from one country to another, and two fundamental principles, Jus sanguinis and Jus soli, underlie citizenship law.
  • Jus sanguinis: This principle is based on blood ties, descent, and heritage as crucial factors in defining who is or can become a citizen. Citizenship is often passed down through generations based on the nationality of parents.
  • Jus soli: According to this principle, a person becomes a citizen of a country if they are born within that country's territory, regardless of the citizenship of their parents.

Modes of Acquisition of Nationality

There are various methods by which individuals can acquire nationality, including the following:

• By Birth: This is the most natural way of acquiring nationality and is typically based on the principles of jus sanguinis or jus soli. The nationality of parents at the time of a child's birth can influence the child's nationality.
• By Naturalization: After birth, one of the most common methods of acquiring nationality is through naturalization. Naturalization involves a person changing their nationality and acquiring the nationality of another state. The requirements and procedures for naturalization vary from country to country. Applicants for naturalization often must pledge to obey and uphold the laws of the new country.
• By Resumption: This mode is less common and involves individuals regaining their nationality if they had previously lost it for certain reasons. Resuming nationality typically involves taking an oath of citizenship.
• By Subjugation: In cases of one state defeating another or a state surrendering to another, the citizens of the defeated state may automatically acquire the nationality of the conquering state.
• By Cession: When one state's territory or the entire state is ceded to another state, the citizens of the former state may acquire the nationality of the latter state. For example, when Sikkim was integrated into India, its citizens became Indian nationals as a result of this integration.
• By Registration: Registration is another method for acquiring nationality. Citizens of one country can register themselves in another country, following specific instructions and meeting certain requirements to obtain the nationality of that country. The terms and conditions for registration can vary between jurisdictions.

Modes of Losing Nationality: Release, Deprivation, Expiration, Renunciation, Substitution, and Statelessness

There are various modes through which individuals can lose their nationality, as outlined by Oppenheim:

• Release: In certain countries like Germany, citizens have the option to lose their nationality by applying for release. To initiate this process, individuals need to submit an application for release, and if it's approved, they are released from the nationality of their home state.
• Deprivation: Some states have enacted laws that allow for the deprivation of nationality if a citizen breaches specific municipal laws. Additionally, in American law, serving in the armed forces of a foreign state can lead to the deprivation of citizenship.
• Expiration: In specific countries, legislation may cause citizenship to expire due to an extended period of residence abroad. For instance, a naturalized American citizen may lose their nationality if they continuously reside in a foreign state, of which they were previously a national or in which their place of birth is located, for a specified duration, such as three years.
• Renunciation: Individuals who acquire the nationality of more than one state may need to renounce one of their nationalities. This situation arises when they must choose which country they wish to remain a national of. Typically, they renounce the nationality of one state. In some cases, the municipal laws of certain states, like Great Britain, allow children with dual nationality to decide, upon reaching adulthood, whether they want to retain citizenship in any of the states they are nationals of.
• Substitution: Some states offer the option of substituting one's nationality. This process involves acquiring the nationality of a different state in place of one's current nationality. For example, the British Nationality Act of 1948 does not automatically result in the loss of British nationality when a British subject becomes naturalized in a foreign state.
• Statelessness: Statelessness occurs when an individual is not considered a national by any state under its laws. In simple terms, stateless persons do not have citizenship in any country. Some people are born stateless, while others become stateless due to various reasons. Stateless individuals face significant challenges in accessing basic rights such as education, healthcare, employment, and freedom of movement. They are often vulnerable to exploitation while migrating. The United Nations High Commissioner for Refugees (UNHCR) has set a deadline of 2024 to eradicate statelessness. According to UNHCR data, there are approximately 12 million stateless individuals worldwide.

Immigrant

An immigrant is a person who permanently moves to a foreign country to live there. Immigration is the process by which individuals become residents or citizens of another country, while emigration refers to the act of leaving one's own country to settle permanently in another nation.

Causes of Immigration

• Safety from Prosecution: Immigrants often seek safety from past or potential persecution based on factors such as race, religion, or nationality.
• Marriage: Marriage is a significant social reason for immigration, as individuals often move to join their spouses in another country.
• Job and Business Opportunities: People migrate to other countries in search of better job prospects and business opportunities.
• Education: Access to quality education is another motivator for immigration, as individuals may move to secure a better education for themselves or their children.
• Push Factors: Factors like poverty and poor living conditions in their home countries can force people to consider immigration.
• Conflict or Violence: Ongoing conflicts or violence in their home regions can compel people to seek refuge in other places. Recent immigration crises in European countries have been driven by turmoil in the Middle East and North Africa.

Consequences of Immigration

• New Opportunities: Immigration can provide new opportunities for immigrants, but it can also increase competition for resources in the destination country.
• Socio-economic Impact: Immigrants often contribute positively to the socio-economic conditions of their host countries by sending remittances back to their home countries.
• Cultural Diversity: Immigration leads to the creation of a cosmopolitan society and acts as an agent of cultural diffusion, promoting the intermixing of cultures.
• Political Tension: High levels of immigration can lead to political tensions between nations, especially when there are concerns about immigration policies and their impact.
• Ecological Impact: Immigration beyond the carrying capacity of a destination area can have adverse ecological effects, degrading the environment and causing pollution.

International Convention for Migrant Workers

• The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families is a United Nations multilateral treaty aimed at safeguarding the rights of migrant workers and their families. 
• It was signed in 1990 and came into force on July 7, 2003, with 54 member nations. Ratifying countries have a moral obligation to implement its provisions. The convention categorizes the rights of migrant workers into two types: human rights and other rights.
• The Committee on Migrant Workers (CMW) monitors the implementation of the convention. Its objectives include creating better conditions for migrant workers and their families.

Rights Entitled by the Convention

• The right to leave and enter the state of origin.
• The right to life, protected by the rule of law.
• Protection from torture, cruel, inhuman, or degrading treatment or punishment.
• Freedom of thought, conscience, and religion.
• Protection from arbitrary deprivation of property, whether owned individually or in association with others.
• The right to equality with nationals of the host state before the courts and tribunals.
• Ensuring basic rights for children of migrant workers, including the right to a name, registration of birth, and nationality.
• The right to be informed by the state of origin.

Refugee

A refugee is an individual who is compelled to leave their home country due to persecution, war, or violence. Refugees have a genuine fear of persecution based on factors like race, religion, nationality, political opinion, or membership in a particular social group.
Often, they cannot return to their home country due to safety concerns. Conflict, ethnic, tribal, and religious violence are among the primary reasons that force refugees to flee their nations.
Major contributors to the global refugee population include Syria, Afghanistan, South Sudan, Myanmar, and Somalia. Push factors like war, persecution, and climate change contribute to this crisis.

The 1951 Geneva Convention on Refugee

The 1951 Geneva Convention on Refugees, based on Article 14 of the Universal Declaration of Human Rights (1948), recognizes the right of individuals to seek asylum in other countries to escape persecution. This UN convention, adopted in 1951, is the cornerstone of international refugee protection. It has been ratified by 145 State parties and comprises 46 Articles. India has not ratified it due to certain contentious issues.

Key Provisions of the Convention

• Defines the term "refugee."
• Requires that the convention's provisions be applied without discrimination based on race, religion, or country of origin.
• Mandates that contracting States treat refugees the same as other aliens.
• Governs the personal status of refugees based on the laws of their domicile or, if they have none, the laws of their residence country.
• Grants refugees free access to the courts of law in all contracting States.

Refugee Crisis

The world is currently grappling with one of the largest refugee crises in history. In simple terms, a refugee crisis encompasses the challenges faced by refugees during their journey from one place to another. It also includes economic, social, and political problems that arise in host countries due to the influx of refugees. As of January 2019, according to the UN High Commissioner for Refugees, there were 70.8 million displaced people worldwide. Thousands have died while attempting to cross the Mediterranean Sea to reach Europe.

Internally Displaced Person (IDP)

An internally displaced person (IDP) is an individual who has been forced to leave their home but has not crossed an international border. IDPs seek safety wherever they can find it within their own country, including nearby towns, schools, settlements, internal camps, forests, and fields. Unlike refugees, IDPs are not protected by international law and are not eligible for certain types of aid because they are under the legal protection of their own government. Countries with large internally displaced populations include Colombia, Syria, the Democratic Republic of the Congo, and Somalia.
Various factors can force a person to become an IDP, such as armed conflict and drought. IDPs face significantly higher mortality rates, and women and children are particularly vulnerable to abuse of their basic rights. The international community has a limited role in addressing the issue of IDPs, as they are not allowed to interfere in the internal affairs of sovereign nations unless requested for assistance.

Extradition

Extradition in international law refers to the surrender of an alleged or convicted criminal by one state to another. When a person commits a crime and flees from one jurisdiction to another, extradition allows the requesting country to seek the return of that individual by providing sufficient evidence. Extradition plays a vital role in combating crime, and extradition treaties between nations facilitate the process.

Definitions of Extradition

• According to Starke: Extradition is the process by which one state surrenders a person accused or convicted of a criminal offense, committed against the laws of the requesting state, to that requesting state under a treaty or on the basis of reciprocity.
• According to Oppenheim: Extradition is the delivery of an accused or convicted individual to the state where they are alleged to have committed or been convicted of a crime, by the state where the alleged criminal is currently located.
• According to Lawrence: Extradition is the surrender, by one state to another, of an individual who is found within the territory of the former and is accused of committing a crime within the territory of the latter or who has committed a crime outside the territory of their citizenship and is therefore subject to the jurisdiction of the latter state.

Importance of Extradition

Extradition is of utmost importance at the global level as it plays a crucial role in the fight against crime and the administration of justice.
Here are some key aspects highlighting its significance:

• Preventing Criminal Escape: Extradition's primary objective is to prevent criminals who flee from one state to another from avoiding punishment for their criminal offenses.
• Reciprocity Principle: It operates on the principle of reciprocity, meaning that states extend cooperation to one another, ensuring that benefits, favors, or penalties granted by one state to another's citizens are reciprocated.
• Bilateral Extradition Treaties: The foundation of the extradition process is bilateral treaties between nations, facilitating the surrender of individuals accused of crimes based on mutual agreements.
• Jurisdiction and Evidence: Extraditing accused individuals to the country where the crime was committed ensures that the jurisdiction with relevant evidence can prosecute those persons effectively.
• Deterrence: Extradition acts as a deterrent for criminals since they know that the long arm of the law can reach them even if they flee to another jurisdiction.
• Combating Cross-Border Crimes: It plays a significant role in curbing cross-border trafficking, organized crime, and terrorism by enabling the extradition of criminals involved in such activities.
• Peace and Security: Extradition contributes to global peace and security by ensuring that individuals who have committed crimes in one country do not find safe havens in others.

Extradition Treaty

An extradition treaty is a bilateral and usually reciprocal agreement between sovereign states that, upon request, facilitates the surrender of individuals accused of crimes under the laws of the requesting state. Extradition may be subject to certain conditions and is typically granted for offenses punishable in both the surrendering and requesting states. India has signed bilateral extradition treaties with 43 nations and has extradition agreements with 10 nations, providing a legal framework for the return of criminals between these countries.

Role of Interpol in Extradition

Interpol, the International Criminal Police Organisation, plays a crucial role in the extradition process by facilitating global police cooperation and crime control. It was the first international organization to recommend a draft general agreement for the extradition of offenders to its member countries. Interpol assists in the identification and arrest of wanted individuals, dissemination of national extradition laws, and the publication of circulars to help coordinate extradition efforts among member nations.

Extradition in India

India has enacted the Indian Extradition Act, 1962, which governs the extradition of fugitives to and from India. The act was substantially modified in 1993 to align with international standards. The process involves the receipt of extradition requests through diplomatic channels, arrest under a warrant issued by a competent magistrate, and referral to Interpol for further action. The trial of a fugitive criminal can only take place in India with the previous sanction of the Central Government if the offense occurred within India's territory. India has also signed various regional extradition treaties and ratified UN Conventions, providing additional legal avenues for extradition purposes.

The European Convention on Extradition

The European Convention on Extradition is a significant international treaty designed to facilitate extradition between states. This multilateral extradition treaty was signed in 1957, and the Council of Europe played a pivotal role in its establishment. The convention is open for signature not only to member states but also to non-member states. There are four additional protocols to the convention, each with varying conditions, which can be signed by individual parties. It's important to note that the convention does not apply to cases involving political or military offenses, and any party to the convention has the right to refuse the extradition of its own citizens to foreign countries.

Asylum

Asylum, in simple terms, refers to the legal status granted by a government to individuals who are at risk of harm in their home countries. People seek asylum for various reasons, including religious persecution, political beliefs, sexual orientation, or ethnicity. According to the Institute of International Law, asylum is the protection offered by a state within its territory or in locations under its control to individuals who request it. The process of seeking asylum is complex and varies depending on the specific case and the country responsible for making the asylum determination. Typically, political leaders and activists are among those who apply for asylum.

Asylum Seeker

An asylum seeker is an individual who formally applies for the right to stay in another country due to fear of persecution or harm in their home country. This status continues until a decision is reached on their asylum application. As of the end of 2018, approximately 3.5 million people worldwide were waiting for a decision on their asylum claims.

Right to Asylum

Under international law, individuals have the right to seek asylum. Article 14 of the Universal Declaration of Human Rights affirms that everyone has the right to seek and enjoy asylum in other countries to escape persecution. This right to asylum is also supported by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.

Types of Asylum

There are two main types of asylum:

• Territorial Asylum: When a state grants asylum to someone within its own territory, it is referred to as territorial asylum. Providing territorial asylum is seen as an exercise of a state's territorial sovereignty. The United Nations General Assembly adopted Resolution 2312 on December 14, 1967, which affirmed the principle of territorial asylum.
• Extraterritorial Asylum: Extraterritorial asylum occurs when a state provides asylum to an individual outside its own territory. This may include asylum granted in embassies, consulates, or even on warships.