LESSON 8: STATE, NATIONALITY, AND

STATELESSNESS DEFINITION OF TERMS:

States - are entities that have rights and responsibilities under international law and which have
the capacity to maintain their rights by bringing international claims.

Nationality - a legal bond having as its basis a social fact of attachment, a genuine connection
of existence, interests, and sentiments, together with the existence of reciprocal rights and
duties (Nottebohm Case Liechtenstein v. Guatemala, 1955 ICJ 4)

Refugee - a person who, owing to a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion, is outside the
country of his/ her nationality, and is unable or, owing to such fear, is unwilling to avail
himself/herself of the protection of that country.

Elements of a state are as follows:

1. Permanent population
2. Defined territory
3. Government
3. And capacity to enter into relations with other states.

The population being pertained to does not have to be homogeneous racially, ethically,
tribally, religiously, linguistically, or otherwise. It must be a settled population, though the
presence of certain inhabitants who are traditionally nomadic does not matter (Aust, 2010). As
to the territory, the size would not matter nor its boundaries be defined definitively.

Anent the government, a central one operating as a political body within the law of the land and
in effective control of the territory is required. Lastly, the government must be sovereign and
independent so that within its territory. not subject to the authority of another state. In this
regard, the state will have full capacity to enter into relations with other states.

States are created through the following:

1. Discovery and occupation - Discovery and occupation occurs when a territory belonging to
any state is placed under the sovereignty of the claiming state.

2. Prescription - Prescription is when a territory is acquired through continuous and

uninterrupted possession over a long period of time.

3. Cession - involves the peaceful transfer of territory from one sovereign to another, with the
intention that sovereignty should pass.

4. Accretion - the increase in the land area of the state, either through natural means, or
artificially through human labor.
5. Conquest - the act of defeating an opponent and occupying all or parts of territory does not of
itself constitute a basis of title to the land. It gives the victor certain rights under international law
as regards the territory, the rights of belligerent occupation, but the territory remains subject to
the legal title of the ousted sovereign.

State Recognition

is an act by which a state acknowledges the existence of another state, government, or

belligerent community and indicates its willingness to deal with the entity as such under the
rules of international law (Nachura, 2016).

State recognition is a political act and mainly a matter of policy on the part of each state. It is
discretionary on the part of the recognizing authority. It is exercised by the political
department of the state.

The principle of state continuity is being followed wherein once the identity of a state as an
international person has been fixed and its position in the international community established,
the State continues to be the same corporate person whatever changes may take place in its
integral organization and government.

Landmark Doctrines in State Recognition

Wilson/Tobar Doctrine - This doctrine precludes the recognition of governments established

by revolution, civil war, coup d'etat, or other forms of internal violence until the freely elected
representatives of the people have organized a constitutional government (Sarmiento, 2009).

Betancourt Doctrine - This doctrine pertains to denial of diplomatic recognition to any regime,
right or left, which came to power by military force (Sarmiento, 2009).

Lauterpacht Doctrine - This doctrine precludes the recognition of an entity which is not legally
a State as it constitutes an abuse of the power of recognition. It acknowledges the community
which is not, in law, i independent recognition. It acknowledges a community which is and which
does not therefore fulfill the essential conditions of statehood as an independent state
(Sarmiento, 2009).

Stimson Doctrine - This doctrine precludes the recognition of any government established as a
result of external aggression (Nachura, 2016).

Rights of States

The rights of states are as follows:

1. Jurisdiction
2. Equality
3. Individual or collective self-defense
4. Independence
5. Legation.

The right to independence means freedom from control by other state or group of states and
not freedom from the restrictions that are binding on all states forming the family of nations and
carries with it by necessary implication the correlative duty of non-intervention (Nachura, 2016).
Intervention is an act by which a state interferes with domestic or foreign affairs of another state
through the employment of force or threat of force which may be physical, political, or economic
(Nachura, 2016).

The right to equality is underpinned in the doctrine of equality of states which provides that
all states are equal in international law despite of their obvious factual inequalities as to size,
population, wealth, strength, and degree of civilization.

The right to existence and self-defense provides that a state may take measures including the
use of force as may be necessary to counteract any danger to its existence (Article 51, UN
Charter). Aggression pertains to the use of armed force by a state against the sovereignty,
territorial integrity, or political independence of another state, or in any other manner
inconsistent with the Charter of the United Nations (Article 1, UN General Assembly Resolution
No. 3314).

• For a proper exercise of self-defense, the following must exist:

1. an armed attack occurred against a member of the UN,
2. it must be confined to cases in which the necessity of self-defense is instant, overwhelming
and leaving no choice of means and no moment for deliberation,
3. measures taken must be limited by that necessity and kept clearly within it, and 4.
must give way to measures that may be taken by the UN Security Council to maintain
international peace and security (Article 51, UN Charter).

• Collective self-defense pertains to the rights of states to come to the defense of another state
whose situation meets the condition of legitimate individual self-defense (Article 51, UN
Charter). Anticipatory self-defense is when the use of force in anticipation of an attack is
deemed legal if made in good faith, depending on the circumstances of imminent danger.

The right to territorial integrity and jurisdiction encompasses the right of the state to its
terrestrial, maritime and fluvial, aerial and space covered by its territory.

The right to legation pertains to the right of the state to send and receive diplomatic
missions, which enable states to carry on friendly intercourse.

NATIONALITY
is a legal bond having as its bases a social fact of attachment, a genuine connection of
existence, interests, and sentiments, together with the existence of reciprocal rights and duties
(
Nottebohn Case Liechtenstein v. Guatemala, 1955 ICJ 4). It is for each state to determine
under its own rules who are its nationals. This law shall be recognized by other states insofar as
it is consistent with international conventions, international costumes, and the principles of law
generally recognized with regard to nationality.

Under the UN declaration of human rights, everyone has a right to a nationality and that no one
is to be arbitrarily deprived of their nationality or denied the right to change their nationality.
Multiple nationalities may exist when an individual possesses more than one nationality and was
acquired as a result of concurrent application to him or her the conflicting national laws of two or
more states claiming him as their national

In the Philippines nationality can be acquired through birth, naturalization, repatriation,

subjugation, and cession. It can be lost through release, deprivation, renunciation, and
substitution.

STATELESSNESS pertains to the status of having no nationality as a consequence of being

born without any nationality or as a result of deprivation or loss of nationality (Nachura, 2016).

- adversely affects a person's right to exercise rights and privileges usually enjoyed by
citizens of a state, such as employment, right to work, right to property, right to
education, among others.

REFUGEES is a person who, owing to a well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or political opinion, is outside
the country of his nationality and is unable or, owing to such fear, is unwillingly to avail himself
of the protection of that country.

It includes stateless persons who are outside the country of his habitual residence and is unable
or owing to such fear is unwilling to return to it (Par. A (2) Article 1 Convention Relating to the
Status of Refugees).

The Convention Relating to the Status of Refugees provides that states have an obligation to
treat a person as a refugee without any discretion and afford the rights due to them.

THE PRINCIPLE of NON-REFOULMENT is a principle wherein addition to not returning the

refugee to his or her own state he or she must not be sent to a third state if his or her life or
freedom would there be threatened on account of his or her race, religion, nationality,
membership of a particular social group ,or social opinion (Par. 1 Article 33 Convention Relating
to the Status of Refugees).Exceptions to this principle is when there are reasonable grounds for
regarding the refugee as a danger to the security of the state or having been convicted of a
particularly serious crime constitutes a danger to the community of the state (Par. 2 Article 33
Convention Relating to the Status of Refugees).
Salient rights of refugees are as follows non-discrimination, wage earning employment, free
access to courts, duty of non-refoulment of states, self employment, housing, freedom of
religion among others.