VIII.

NATIONALITY AND STATELESSNESS born citizens of a State but who

had lost their nationality.
Nationality- membership in a political
 RA No. 8171 governs the
community with its concomitant rights and
repatriation of Filipino women
duties.
who have lost Filipino
How to determine? citizenship by reason of
marriage to aliens.
1. It is for each State to determine under 4. Subjugation
its own law who are its nationals insofar  When a State is defeated and
as it is consistent with international its territory is annexed, its
conventions, international customs, and nationals become subjects of
the principles of law. the winning State.
2. Any question as to whether a person 5. Cession
possesses the nationality of a particular  When a State cedes its territory
State shall be determined in accordance to another State, the people
with the law of that State. found in the ceded territory
Acquisition of nationality: become subjects of the
accepting State.
1. Birth
 Jus sanguinis- by blood Lost of Nationality
 Jus soli- by place of birth 1. Release
2. Naturalization 2. Deprivation
 Through marriage, legitimation, 3. Renunciation
election, acquisition of
domicile, appointment to Multiple Nationality
government office, or grant on
1. This may arise by the concurrent
application.
application of the principles of jus
 In the PH, naturalization may be
sanguinis and jus soli, naturalization
by judicial process, legislative
without renunciation of the original
process, election, or marriage.
nationality, legitimation, or legislative
NOTE: action.
2. Policy in the Philippines: Dual allegiance
Commonwealth Act No. 63- one of of citizens is inimical to the national
the modes of losing Philippine interest and shall be dealt with by law.
citizenship is by subscribing to an
oath of allegiance to support the NOTE:
Constitution of a foreign country.
1. A person having two or more
Doctrine of indelible allegiance- an nationalities may be regarded as its
individual may be compelled to national by each of the States whose
retain his original nationality. nationality he possesses, and a State
may not give diplomatic protection to
3. Repatriation one of its nationals against a State
 Recovery of nationality by whose nationality that person
individuals who were natural- possesses.
2. Principle of effective nationality- If a Convention Relating to the Statues of
person has more than one nationality, Statelessness Persons
he shall, within a third State, be treated
1. Freedom to practice their religion and
as if he had only one; the third State
freedom as regards the religious
shall recognize exclusively either the
education of their children;
nationality of the State in which he is
2. Access to the courts of law;
habitually and principally resident, or
3. Rationing of products in short supply;
the nationality of the State with which
4. Elementary education;
he appears in fact to be most closely
5. Public relief and assistance; and
related.
6. Labor legislation and social security.
3. If a person, without any voluntary act of
his own, possesses double nationality, Legally staying in their territory:
he may renounce one of them with the
permission of the State whose 1. Acquisition of movable and immovable
nationality he wishes to surrender and, property;
subject to the laws of the State 2. Right of association in non-political and
concerned, such permission shall not be non-profit making associations and
refused if that person has his habitual trade unions;
residence abroad. 3. Gainful employment and practice of
4. If a person is a national of both a liberal professions;
claimant State and a third State not 4. Housing and public education other
involved in the claim, he shall be than elementary education; and
deemed a national of the claimant suit 5. Freedom movement.
for purposes of that claim. IX. STATE RESPONSIBILITIES
Corporate Nationality- corporations are State Responsibility- a state incurs international
nationals of the State where they are liability when it commits an internationally
incorporated. Thus, it is the State where wrongful act.
they are incorporated who can bring their
claims before an international tribunal, International Wrongful Act- it exists when
regardless of the nationality of the there is an act or omission that is attributable to
stockholders and the percentage of shares the State under international law, and such
they own. conduct constitutes a breach of an international
obligation of that State.
NOTE: where the harm is done directly to
the stockholders, the State can espouse Direct Wrong- occurs when the conduct of one
their claims regardless of the nationality of State directly harms another State, such as
the corporation since the harm was done when it launches an invasion.
primarily to their national and not to the
Indirect Wrong- occurs when the conduct of
corporation.
one State ultimately harms another State. For
Statelessness- the status of having no example, a State harms foreign nationals within
nationality, as a consequence of being born its territory.
without any nationality or as a result of
deprivation or loss of nationality.
Inapplicability of Domestic Laws- A State can judicial power, regardless of their position or
be held responsible for acts such as failing to rank.
honor a treaty, violating the sovereignty of
another State, damaging the territory of other NOTE: even where an entity is not a formal
States, and failing to protect foreign nationals organ of the State, as long as they are legally
found in their territory to the extent provided empowered to exercise governmental
by international law. authority, their actions pursuant to such
authority may result in an IWA.
Intent
1. OBJECTIVE THEORY- regardless of  Ultra Vires Act (beyond the
intent, the commission of any act or powers)- as long as the State
omission that leads to a violation of organ or empowered entity is
international law would make the State acting in their official capacity,
liable. their acts may result in an IWA
2. SUBJECTIVE THEORY- intent and the even if they exceeded their
degree of harm caused, if any, should authority or contravened their
be considered when determining if a instructions.
State should be held liable.  While on Duty- when the entity
is acting in a private capacity,
Criminal and Civil Liability- no difference in the such acts or omissions do not
treatment of criminal and civil liability at the trigger State responsibility.
State to State level.  Location- the conduct of State
organs and other empowered
Four categories of international crimes that can entities will bind the State
be committed by one State against another: regardless of where the act or
1. Unlawful use of force omission took place.
2. Violations of the right to self-  Omissions- it can also trigger
determination State responsibility; a State
3. Violations of human rights cannot escape liability by simply
4. Violations of environmental laws ignoring harmful acts being
done against foreign nationals
Attribution- the main actors in cases of State under their custody.
responsibility can be grouped into three: the
State and its agents, private persons and other Conduct of Private Entities
entities, and insurrectionists. GR: will not trigger State responsibility.
XPN: (1) if the conduct was directed or
NOTE: it is only the acts attributable to the controlled by the State, such conduct will be
State which give rise to an IWA. considered an act of the State; (2) if private
entities are exercising governmental authority.
State Organ- any person or entity which holds
the status of being a State organ in accordance Effective Control vs. Overall Control
with that State’s internal law. These include all Effective Control- entails more than just mere
those dispensing legislative, executive, and moral support or financial assistance, but rather
assistance of such a high level that the acting
entity is effectively placed under the control of 2. Declarations- denotes a judicial
the State. declaration of wrongfulness.
3. Injunctions- initial prayer
Overall control- requires a lower degree of 4. Restitutions- denotes an obligation to
control to bind the State. re-establish the situation which existed
before the wrongful act was committed.
Acts of Insurrectionary Movements- if the Provided the same is not materially
movement manages to overthrow the impossible or involves a burden out of
government, the acts of the insurrectionary all proportion to the benefits to be
movement shall be deemed acts of the State. derived from restitution when
compared to compensation.
XPN: if the insurrectionary movement only 5. Damages- actual and quantifiable
manages to establish a new State in the pecuniary damages.
territory of the original State, the acts of the
insurrectionary movement shall be considered Defenses against Liability
as the acts of the new State only. 1. Consent of the other State: where the
consent was obtained to perform the
 Insurrectionist movement- seeks to conduct in question.
overthrow the government. 2. Self-defense: proportionality and
 Angry mobs- seeks to protest issues in a necessity
violent manner. The State generally 3. Force Majeure: uncontrollable event
does not incur liability unless it either that makes it impossible for a party to
supported the acts of the mob or failed fulfill their obligations. (XPN: if the
to take the appropriate measures to State contributed to the Force Majeure)
prevent the mob from causing harm. 4. Distress: where an individual whose act
 Wanton Violence- it is a violent action is attributable to the state has no other
that is deliberate and unproved; a State reasonable way, in a situation of
may be held liable if it launches military distress, to save his life or the lives of
attacks resulting in wanton and others in his care.
unnecessary damages. 5. State of Necessity: where the conduct
 Recognition of Belligerent Status- A of the State in question is the only way
State is not liable for losses suffered by for the State to safeguard an essential
foreign nationals at the hands of interest against a grave and imminent
insurrectionist movements where the peril. (XPN: if the international
home State of such foreign national obligation in question excludes the
already recognized the belligerent possibility of invoking necessity, or if
status of the insurrectionists. the State itself has contributed to the
situation of necessity.
Remedies 6. Countermeasures
1. Satisfaction- written apology,  LIMITED SCOPE: non-
punishment of individuals, and performance for the time being
promises not to do the same conduct in international obligations
again. towards the errant State.
 NOTE: countermeasure must be  Expulsion or deportation: the
proportionate to the IWA, and stay of the alien constitutes a
must be terminated once the menace to the security of the
IWA has ceased or the dispute State that his entry was illegal,
has been brought before a or that the permission to stay
competent tribunal. has expired, or that he has
 PROHIBITED violated any limitation or
COUNTERMEASURES: threat or condition prescribed for his
use of force, the obligation to admission and continued to
protect the fundamental stay.
human rights, the humanitarian  Reconduction: the forcible
obligation to refrain from conveying of aliens back to
reprisals, the inviolability of their home State. (destitute
diplomatic and consular aliens, vagabonds, aliens
premises and agents, and other without documents, and alien
peremptory norms of criminals)
international law. 2. The aliens must accept the institutions
of the State as he finds them.
PROCEDURE: Prior to the countermeasure, the  Alien may be deprived of
injured State must try to reach out and certain rights such as political
negotiate with the erring State, informing them rights, and acquisition of lands.
of any decision to employ a countermeasure. However, local laws may grant
him certain rights and privileges
X. TREATMENT OF ALIENS based on (a) reciprocity; (b)
most-favored treatment; and
GENERAL RULE: An injury to a citizen is an (c) national treatment.
injury to the State. A State therefore has the
legal responsibility to protect citizens of other International Minimum Standard: a State must
States coming their jurisdiction, and a legal treat foreign nationals within their territory
interest in ensuring that their own citizen are based on an international minimum standard as
not harm by the conduct of other States or of agreed upon in treaties and other conventions.
foreign nationals. (right to life, liberty, protection of property, and
free access to the courts)
Sovereign Power: No State is under obligation
to admit aliens. The State can determine in NOTE: IMS exists regardless of how the State
what cases and under what conditions it may treats their own citizens.
admit aliens.
National Standard: State is not in violation of
1. This right includes the power to international law as long as it treats foreign
regulate the entry and stay of aliens nationals in the same way it treats its own
and the State has the right to expel nationals.
aliens from its territory through
deportation or reconduction. Fundamental Human Rights: serve as the global
minimum with regard to the treatment of both
foreigners and nationals. (right to fair trial; the
prohibition against torture; and prohibition on
racial discrimination)

State Responsibility and the Treatment of

Aliens: A State is under obligation to make
reparation to another State for failure to fulfill
its primary obligation to afford the proper
protections due to the alien national of the
latter State.

The State may, therefore, be held liable for

injuries and damages sustained by the alien
while in the territory of the State if:
1. The acts or omissions constitute an
international delinquency. The
treatment of the alien should amount
to an outrage, to bad faith, willful
neglect of duty, or insufficiency of
government action.
 International Standard of
Justice: execution of an alien
without trial
 Equal Treatment
 Mere Deficiencies: where
errors arose from mere
deficiencies in administration,
the State should not be held
liable. (XPN: errors arose from
bad faith)
2. The act or omission is directly or
indirectly imputable to the State.
 If the latter does not make
reasonable efforts to prevent
injury to the alien, or having
done so unsuccessfully, fails to
repair such injury.
 Acts of government officials:
ultra vires
 Acts of private individuals:
there must be actual or tacit
complicity of the government in
the act, before or after said act
transpired.