Module 4

Individual as a subject of International Law

In classical International Law, individuals were regarded as the object of International Law, and
not as its subject. Consequently, they had no legal significance from the International Law point
of view, as they were related to one State through the bond of citizenship or nationality, and this
stood in relation to other States in the role of aliens.
However, the above position of individuals has considerably changed since the establishment of
the United Nations Organisation. The Charter of the United Nations by using the words 'People of
the United Nations' in the Preamble has given a place of importance to individuals.
RIGHTS OF INDIVIDUALS
(1) Human Rights (2) Right to Make Petitions

DUTIES OF INDIVIDUALS
(1) Offence of Piracy (2) Violations of the Rules of Warfare (3) Offence of Espionage (4) Crime of
Genocide
Besides the above rights and duties, individuals have also been given certain benefits in other States, by
the conclusion of treaties, which they would have not acquired otherwise. For instance, a duty has been
imposed upon all States to grant certain privileges to such foreign Heads of States and diplomatic
envoys, and certain rights of such foreign citizens, as are on their territory. And, correspondingly every
other State has a right to demand that its Head, its diplomatic envoys, and its citizens be granted certain
rights by foreign States when on their territory.
'Nationality is the principal link between the Individual and the benefits of International Law'
(Oppenheim). In practical terms it is a continuing legal relationship between the Sovereign State and its
citizens. The basis of his Nationality is his allegiance and membership of the Sovereign State. It gives
him the political status as a 'National' of his State.
Nationality of a person is determined in accordance with the rules of municipal law.
Nationality is the medium through which an individual can enjoy the benefits from International Law.'
A State exercises jurisdiction over its nationals, travelling or residing abroad, remain under its personal
supremacy.' International Law permits the exercise of such jurisdiction, and sets the limits within which
it can be exercised.
The Universal Declaration of Human Rights of 1948 provides under Article 15, Para 1 that "everyone
has the right to a nationality."
Nationality and Citizenship :

The term nationality differs from citizenship though they are on many occasions used interchanging.
Nationality is the quality of belonging to a particular State by which the person is internationally known.'
Thus, nationality creates a legal relationship between a State and the individual under International Law.
Citizenship, on the other hand, denotes the relation between the person and the municipal law.
The concept of citizenship is therefore, irrelevant to International Law. A citizen possesses full civil and
political rights. In other words, all the nationals who enjoy full political and civil rights are called citizens,
as distinguished from other less favoured nationals. Thus, all the citizens may possess the nationality of a
particular State, but it is not necessary that all nationals may be the citizens of that particular State.
For instance, the U.S.A. Nationality Act of 1940 lays down that the citizen is, as a rule, employed to
designate persons endowed with full political and personal rights within the United States, while some
persons—Such as those belonging to territories and possessions which are not among the States forming the
Union—Are described as nationals. They owe allegiance to the United States and are United States
nationals in the contemplation of International Law; they do not possess full rights of citizens in the United
States.
MODES OF ACQUISITION OF NATIONALITY :

A person may acquire the nationality of a State in accordance with the rules of municipal law. It implies that municipal law
determines as to who may be a national of a particular State. Modes of acquisition of nationality are therefore not uniform.
(1) By Birth :Nationality is conferred to a person by many States on the basis of birth. All those persons whose birth take place
within territorial limits of a State acquire the nationality of that State. The above principle is called Jus soli. The United
Kingdom, the United States and many States of Latin America follow the principle of jus soli.
(2) By Descent : Nationality of a State may also be acquired by a person on the basis of the nationality of either parents. Thus, a
child may become a national of that State of which his parents are nationals. This principle is known as Jus sanguinis. Germany
and France confer nationality on the basis of this principle.
(3) By Naturalization : A person acquires nationality at birth. However, his nationality may, later on, change. When the
nationality of a person changes subsequently, and he acquires nationality of some other State, the process of acquisition is
known as naturalization. A person may acquire nationality through naturalization in different ways. They are : through marriage,
legitimation, option, acquisition of domicile, appointment as Government official and grant of application.
(4) By Resumption : A person who has lost his nationality by naturalization or by any other reasons, may acquire the nationality
of the same State again.
(5) By Cession :When a part of the territory of a State is ceded to another State, all the nationals of the former acquires die
nationality of the latter State.

Refer [Link]
 LOSS OF NATIONALITY :
By Release : Some States give their citizens the right to ask to be released from their nationality. Release
occurs only when an application is made to that effect, and if it has been accepted by the State concerned.
By Deprivation : A national of a State may be deprived of nationality in case of certain happenings.
Legislation of many States recognizes numerous grounds of deprivation of nationality. For instance, if a
citizen enters into foreign civil or military service without permission, he may be deprived of his nationality.
By Renunciation :A person may renounce his nationality of a State. The question of renunciation of
nationality arises when a person acquires it of more than one State. In such cases he has an option to retain
the nationality of one State and to renounce the other.
By Substitution :A person may lose the nationality of a State when he acquires nationality in some other
State by naturalization
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 of time.
 Extradition
It is quite possible for a person to escape to another State after committing a crime in his own State. Such
cases have started occurring more frequently with the result of the development of the air traffic. A question
arises as to whether fugitive shall be tried in the country where he has fled away or in the State where the
crime has been committed. Normally, a State finds itself in a difficult situation to punish a person who has
committed a crime elsewhere primarily because of the lack of jurisdiction, and therefore, such persons are
sometimes surrendered to the State where the crime has been committed. Surrender of an accused or of a
convict is referred to extradition.
The term extradition has derived from two Latin words ex and traditum.
Ordinarily, it may mean 'delivery of criminals', 'surrender of fugitives' or 'handover of fugitives’.
Extradition may be defined as surrender of an accused or a convicted person by the State on whose territory
he is found to the State on whose territory he is alleged to have committed, or to have been convicted of a
crime.
According to Oppenheim extradition is the delivery of an accused or a convicted individual to the State
where he is accused of, or has been convicted of, a crime, by the State on whose territory he happens for the
time to be.'
Purpose of Extradition :Extradition is a process towards the suppression of crime. Criminals are
therefore extradited so that their crimes may not go unpunished.
Extradition acts as a warning to the criminals that they cannot escape punishment by fleeing to
another State. Extradition therefore has a deterrent effect.
Law of Extradition : In International Law, rules regarding extradition are not well established mainly
because extradition is a topic which does not come exclusively under the domain of International Law.
Law of extradition is dual law. It has operation—national as well as international. Extradition or
non-extradition of a person is determined by the municipal courts of a State, but at the same time it is
also a part of International Law because it governs the relations between two States over the question of
whether or not a given person should be handed over by one State to another State.
Presently, in the absence of any multilateral treaty or Convention, extradition is done by States on the
basis of bilateral treaties wherein provisions are made in accordance with the municipal law by
which they have agreed between themselves to surrender the accused or convict to the requesting
State in case such a person comes under the purview of a given treaty.
Bilateral treaties, national laws of several States, and the judicial decisions of municipal courts led to
develop certain principles regarding extradition which are deemed as general rules of International
Law.
The request for extradition is normally made formally through the diplomatic channel, accompanied
by the arrest warrant, information about the identity of the accused and the basic facts of the offence.
PRINCIPLES OF EXTRADITION:

Extradition treaties are traditionally bilateral in character. Yet most of them seem to embody at least five
principles, as endorsed by many judicial pronouncements and state practice in respect of domestic
extradition legislation.
First, the principle of extraditable offences lies down that extradition applies only with respect to offences
clearly stipulated as such in the treaty.
Second, the principle of double criminality requires that the offence for which the extradition is sought be
an offence under the national laws of the extradition requesting country as well as of the requested country.
Third, the requested country must be satisfied that there is a prima facie case made out against the
offender/accused.
Fourth, the extradited person must be proceeded against only against the offence for which his extradition
was requested.
Finally, he must be accorded a fair trial (this is of course part of international human rights law now).
Judiciary and other legal authorities are likely to apply these principles equally to situations where no
extradition treaty exists.
Conditions:
a) Double criminality test : The act must be an offence in both the sending and the receiving States.
b) Principle of Specialty : The requesting State is under a duty not to punish the fugitive for any offence-other than for
which he was extradited.
c) Extraditable crime : The act must be one which is extraditable according to the treaty of extradition between the
parties, e.g.: Murder, cheating etc.
d) The persons must be extraditable. States refuse to surrender its nationals who have taken refuge in their own Countries.
Non-extradition :
One major exception to extradition is that there would be -no extradition for political criminals, religious & military
offenders. These are called as non-extraditable offences.
The concept of non-extradition can be traced to the French Revolution. Persons accused of political crimes could have
been extradited prior to the French Revolution. Even Grotius had commended the extradition of political criminals.
Many other writers had also- written on similar lines.
In 1815 the Govt. of Gibralter surrendered political criminals to 'Spain. This gave rise to great indignation among the
States.
In 1833 Austria, "France and Russia concluded the treaty & defined certain offences. In the same year, Belgium
enacted an extradition law incorporating the non-extradition, rule. In. 1867, [Link] followed suit.
The constitutions of many States, including some European States, prohibit the extradition of their own
nationals, but their laws enable them to prosecute their nationals for serious crimes committed abroad. Other
States, including the United Kingdom, can extradite their own nationals and therefore their laws enable
prosecution of their nationals for only a few categories of serious crimes committed abroad. The problems
created by the prohibition on extraditing their own nationals
Extradition Law in India : In India for the first time an Extradition Act was enacted in 1902. Prior to the
enactment of the Act of 1962 extradition in India was regulated on the basis of the United Kingdom
Extradition Act of 1870. The Act of 1870 was a law for whole of the British Empire. The surrender of
fugitive criminals amongst the countries of British Empire was regulated by another Act, i.e., the Fugitive
Offenders Act of 1881. Thus, extradition to and from countries of British Empire was treated on different
footings to that of extradition from other countries.
Refer the Extradition Act, 1962 as discussed in class
The expression 'extradition treaty' has been defined under Section 2(d) of the Indian Extradition Act of 1962
to mean, a treaty (agreement or arrangement) made by India with a foreign State relating to the extradition of
fugitive criminals and includes any treaty relating to the extradition of fugitive criminal made before the 15th
day of August 1947, which extends to, and is binding on India.
 Asylum
The word asylum is Latin and derives from the Greek word 'Asylia' which means inviolable place. 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 two 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.' These two elements distinguish asylum from that of immigration.
Asylum is being practised by the States since a long time either because it is referred to in some extradition treaties
or in municipal laws. Sometimes, it is also granted without any formal legal basis. However, the concept of asylum
has still not acquired the necessary clarity.
A State has a right to grant asylum to a person on the principle that it has a sovereign right to control over the
individuals found on its territory. Thus, the right of territorial asylum has been conferred to a state on the basis of its
sovereignty over the territory. This right is exclusive in the sense that other States are excluded to exercise the
jurisdiction over the same territory. The Draft Convention on Territorial Asylum adopted by the General Assembly
in 1974 has recognized under Article 1 that the grant of asylum is a sovereign right of a State
The territorial jurisdictional right extends, by application, to the embassies, legations, vessels, and aircrafts.
The Security Council by adopting Resolution 1373 (2001) on September 28, 2001 decided that 'All States shall deny
safe haven to those who finance, plan, support or commit terrorist acts.
 States have complete freedom to put restrictions on their territorial jurisdictional right by concluding treaties.
Thus, if a State concludes treaties for extradition of a fugitive criminal, there arises a legal obligation on its
part to surrender them. In such cases, the sovereign right to grant asylum to such persons cannot be
exercised. Similarly, restrictions can also be imposed by the
States on their sovereign right to grant asylum in respect of other inhuman and heinous crimes. However, the
self-imposed limitation is a discretionary privilege of a State.
Reasons for Asylum:
1) Firstly, it is granted to save a person from the jurisdiction of the local authorities. It is feared that he would
not get fair trial, if extradited, because of the differences in views as to his political or religious activities.
2) Secondly, a person may be granted asylum on extra-legal grounds or to say on humanitarian grounds. The
International Court of Justice in Corfu Channel case,’ stated that 'asylum may be granted on humanitarian
grounds in order to protect political offenders against the violent and disorderly action of irresponsible sections
of the population'.' The Court stated that 'asylum protects the political offender against any measures of a
extra-legal character which a government might take or attempt to take against its political opponents.' Thus
asylum is granted for preventing other human rights violations.
3) Thirdly, national security also plays an important role in granting asylum. The offender who may be a rebel
today may become the ruler in future date. In that case, the relationship would be strained if he is extradited.

Refer Asylum case.

Is Asylum a Right of a Person ?
It is said that a person has a right to get asylum in other States. Universal Declaration of Human Rights under
Article 14 lays down that 'every one has a right to seek and enjoy in other countries asylum from
persecution'. This right was expressed as a response to the concern for refugees and stateless persons after
the World War II.
The General Assembly of the United Nations unanimously adopted a resolution in 1967 entitled a
Declaration on Territorial Asylum' which states that 'no one shall be subjected to measures such as rejection
at the frontier, expulsion, or compulsory return to any State where he may be subjected to persecution.
Forms of Asylum :
A State may grant asylum to a person in two ways. They are : territorial asylum and extra-territorial asylum.
(1) Territorial Asylum :
When asylum is granted by a State on its territory, it 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 a
State which is not under a legal obligation to grant asylum to a fugitive.
The Draft Convention on Territorial Asylum was adopted by the General Assembly on December 10, 1974.
Article 10 of the Draft Convention recognized that the grant of asylum is a sovereign right of State, but State
parties shall use their 'best endeavours' in a 'humanitarian spirit' to grant asylum in their territory.
(2) Extra-Territorial Asylum :

When asylum is granted by a State at places outside its own territory, it is called extra-territorial asylum. Mc’Nair
says that the term 'extra-territorial asylum' is usually described to those cases in which a State declines to surrender a
person demanded who is not upon its own physical territory but is upon one of its public ships lying in foreign
territorial waters or upon its diplomatic (or rarely consular) premises within foreign territory.' Thus, asylum given at
legations (When asylum is granted by a State within its embassy premises situated in foreign countries, it is known as
asylum in legation or diplomatic asylum ) , consular premises, and warships, are instances of extra territorial asylum.
Indian View on Diplomatic Asylum :
India has made its position clear regarding the diplomatic asylum by issuing a circular on December 30, 1967 to all
foreign diplomatic missions in India wherein it was stated that the Government of India does not recognize the right
of such missions to give asylum to any person or persons within their premises. In the statement, missions were
requested that if they receive a request for asylum or temporary shelter, or refuge such request should not be granted
as diplomatic asylum involves a derogation from the sovereignty of the territorial State and an intervention in matters
which are exclusively within the competence of that State. Thus stated that 'diplomatic missions are accorded
privileges and immunities for functional reasons as is clearly brought out in the Vienna Convention on Diplomatic
Relations.
Extradition and Asylum: The concept of asylum is very old and traditional in the sense that earlier States used to
provide shelter to an alien who was found in its territory. The institutions of extradition and asylum are contrary to
each other. If a person is surrendered by the territorial State to the requesting State, that is called extradition. And if
he is not surrendered, but given shelter and protection by the territorial State, that is referred to asylum
 Diplomatic envoys, consuls, and other representatives

Diplomacy comprises of any means by which states establish or maintain mutual relations, communicate with
each other or carry out political or legal transactions. It involves the exchange of permanent diplomatic
missions between sates such that both the receiving and the sending state have representatives.
Diplomatic agents enjoy the highest degree of privileges and immunities. They enjoy complete personal
inviolability, which means that they may not be handcuffed (except in extraordinary circumstances), arrested,
or detained; and neither their property (including vehicles) nor residences may be entered or searched.
Diplomatic agents also enjoy complete immunity from the criminal jurisdiction of the host country’s courts and
thus cannot be prosecuted no matter how serious the offense unless their immunity is waived by the sending
state. (Article 29 of Vienna Convention on Diplomatic Relation)
“Diplomatic agent” is the term for ambassadors and the other diplomatic officers who generally have the
function of dealing directly with host country officials. This category enjoys the highest degree of immunity.
The next category is “members of the administrative and technical staff” of the mission, which includes those
persons who support the activities of diplomatic agents. This category includes secretaries, certain clerical
personnel, office managers, and certain professional security personnel.
Diplomatic agents are the persons who reside in foreign countries as representatives of the States by whom they
are despatched. They provide an important link between the country who despatch them and the country to
which they are accredited. They, therefore, perform the act of diplomacy which in International Law means the
methods by which States establish or maintain mutual relations, and carry out political or legal transactions
based on their foreign policies.
Ambassadors : Ambassadors are considered to be the personal representatives of the Heads of their States
and therefore, they enjoy special honours. They can claim the title of excellency. When they are sent by Holy
See, they are called Papal Legates or Papal Nuncios. Ambassadors sent within the Commonwealth countries
are called High Commissioners. When China and U.S.A, established diplomatic relationship, the Head of the
Mission was known as the Head of die Liasion Officer. Representatives of this category can claim the title of
Excellency.
Diplomatic agents enjoy immunity from the jurisdiction of the local courts and not an exemption from
substantive law. However the immunity can be waived allowing the application of the local law. The persons
enjoying the privileges and immunity are however under a duty to respect the laws and regulations of the
receiving state. In the application of immunity from local jurisdiction, every state has a standard procedure
which establishes the qualification for immunity to be conclusive prove to the local courts.
The Commission prepared the draft articles and submitted them to the General Assembly oft he United
Nations. The Assembly convened a Conference’ which was attended by eighty-four nations at Vienna in
[Link] Conference adopted a Convention on April 18, 1961 by the name of Vienna Convention on
Diplomatic Relations. The Convention came into force on April 24, 1964 when it was ratified by twenty-two
States.' By the year 1986, 149 States have become parties to the Convention.
Persons entitled to enjoy diplomatic immunity

a. Members of the family of a diplomatic agent if they are not nationals of the receiving
state.
b. Members of the administrative and technical staff of the mission together with their
families if they are not national or permanent residents of the receiving state. However, the
immunity from civil and administrative jurisdiction of the receiving state shall not extend
to acts performed outside the course of their duties.
c. Members of the service staff who are not nationals or permanent residents of the
receiving state but only in respect of the acts performed in the course of their official
duties.
d. Private servants of members of the mission who are not nationals of or permanent
residents in the receiving State are exempted from dues and taxes on the emoluments they
receive by reason of their employment. They may enjoy the privileges and immunities only
to the extent admitted by the receiving state.
Consular Relations

A consul is defined as an official appointed by a government to reside in a foreign country herein

the host and represent his or her government’s commercial interests and assist in the welfare of its
citizens in that host country. Their functions are varied and include the protection of the sending
states and its nationals, development of economic, cultural relations, issuing of passports among
other functions. There is a special treaty known as the Vienna Convention on Consular Relations
of 1963 A consul must have the authority of sending state and authorization of receiving state
which must give consular officials and premises special protection.
Consuls: are professional salaried diplomats that are posted by the government of their native
countries in host countries. They further enjoy immunity honorary consuls: they don’t make a
living as diplomats. They usually live and work and pay taxes in the host country that they operate
on a voluntary/not salaried basis until their appointment is revoked. In some cases they might not
be citizens or origin of that country.
Consular immunity is a principle in international law that shields consuls from legal action or
prosecution in their host country. Consular immunity basically offers protections similar to
diplomatic immunity, but the herein said protections are not as extensive, given the functional
differences between consuls and diplomats.