The assignment of persons (including corporations) and property to states, in particular for the purposes of diplomatic protection, is normally approached through the concept of nationality, yet the problem must be solved in a variety of contexts, including jurisdiction. This chapter reviews international law governing the nationality of corporations, nationality of ships, nationality of aircraft, nationality of space objects, and state property in general.
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This chapter discusses the doctrine of the freedom of states in matters of nationality and the general principles on which nationality has traditionally been based. It then considers the effective link principle and the decision in Nottebohm, and reviews the application of rules of international law, concluding with a discussion of the functional approach to nationality.
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This chapter discusses the international legal concept of jurisdiction as well as the content of the relevant legal principles. The term jurisdiction relates to the authority of a state to exert its influence and power—in practice make, apply and enforce its rules—and create an impact or consequence on individuals or property. The chapter explains the difference between, respectively, the jurisdiction to prescribe and the jurisdiction to enforce and the main elements thereof. It analyses the different principles of prescriptive jurisdiction (the principle of territoriality, nationality, universality, protection and so-called passive personality) and discusses the issue of concurring jurisdictions as well as jurisdiction on ships and aircraft. It also discusses the prohibition on enforcing jurisdiction on the territory of another state as well as the legal consequences of violating that prohibition.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Janko Rottmann v Freistaadt Bayern (Case C-135/08), EU:C:2010:104, [2010] ECR I-1449, 2 March 2010. The document also includes supporting commentary from author Noreen O’Meara.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Tjebbes and others v Minister van Buitenlandse Zaken (Case C-221/17), EU:C:2010:104, [2010] ECR I-1449, 12 March 2019. The document also includes supporting commentary from author Noreen O’Meara.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Janko Rottmann v Freistaadt Bayern (Case C-135/08), EU:C:2010:104, [2010] ECR I-1449, 2 March 2010. The document also includes supporting commentary from author Noreen O’Meara.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Tjebbes and others v Minister van Buitenlandse Zaken (Case C-221/17), EU:C:2010:104, [2010] ECR I-1449, 12 March 2019. The document also includes supporting commentary from author Noreen O’Meara.
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Gina Clayton, Georgina Firth, Caroline Sawyer, and Rowena Moffatt
This chapter considers the bases of nationality and citizenship, and traces the development of British nationality law, focusing on changes from 1948 to the present day. It looks at the effects of these changes on particular groups of people, characterised to a significant extent by progressive exclusion. It considers the fundamental incident of citizenship and the right to live in one’s own country, both as to the interaction of nationality and immigration law and as to the overall effect of full inclusion as a citizen. The bases for obtaining British nationality by registration and naturalisation are discussed, as are the powers of deprivation of citizenship. The possibility of asserting rights as a stateless person is also noted.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department (Case C-200/02), EU:C:2004:639, [2004] ECR I-9925, 19 October 2004. The document also includes supporting commentary from author Noreen O’Meara.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department (Case C-200/02), EU:C:2004:639, [2004] ECR I-9925, 19 October 2004. The document also includes supporting commentary from author Noreen O’Meara.
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This chapter studies jurisdiction. The term ‘jurisdiction’ is generally understood by international lawyers as describing the extent, and limits, of the legal competence of a State, entity, or regulatory authority, to make, apply, and enforce legal rules with respect to persons, property, and other matters. Jurisdiction is the necessary corollary to State sovereignty under modern international law, for it represents the exercise of authority of that State in relation to conduct, or to consequences of events, that it deems itself competent to regulate. The quintessential areas of regulation that would be regarded as falling within the domestic jurisdiction of a State include the setting of conditions for the grant of nationality and the conditions under which aliens (non-nationals) may enter a State’s territory. The chapter then distinguishes the types of jurisdiction: prescriptive jurisdiction, enforcement jurisdiction, and adjudicative jurisdiction.
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Jonathan Hill
The object of jurisdictional rules is to determine an appropriate forum and choice of law rules are designed to lead to the application of the most appropriate law, the law that generally the parties might reasonably expect to apply. The test for recognition of foreign judgments is not dissimilar. A judgment granted by an appropriate forum should normally be recognised. The problem is one of ascertaining the connecting factor (or factors) which would best satisfy the criterion of appropriateness. With regards to personal connecting factors, there is little international agreement as to the appropriate test of ‘belonging’. In England and most common law countries, the traditional personal connecting factor is domicile, which loosely translates as a person's permanent home. One of the problems here is that domicile is a connecting factor which is interpreted differently in various parts of the world. In contrast, most of continental Europe and other civil law countries have traditionally used nationality as the basic connecting factor, especially for choice of law purposes; the personal law is the law of the country of which the person is a citizen. In some countries, including England, another connecting factor, habitual residence, has emerged. This is increasingly being used for the purposes of jurisdiction rules and in the law relating to recognition of foreign judgments. This chapter examines each of these personal connecting factors. Primary emphasis is laid on domicile and habitual residence as the two main connecting factors employed by English law.
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This chapter examines the protection of the freedom of movement in the European Convention on Human Rights (ECHR), explains the provisions of Protocols 4 and 7, and discusses the prohibition of expulsion of nationals and the right of entry to the territory of the State of nationality. It describes the complaints of violations of the freedom of movement provisions of Protocols 4 and 7, and analyses the Strasbourg Court’s interpretation of these provisions, considering the reasons given for restrictions of movement. The chapter also considers the case-law on the collective expulsion of asylum seekers and migrants who have sought protection in Europe.
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This chapter deals with race discrimination law under the Equality Act. Race includes colour, nationality and ethnic or national origins. The chapter discusses the historical and legal background of race discrimination law, protected characteristics, prohibited conduct on grounds of race discrimination, and bringing an action in the employment tribunal. Race discrimination legislation mirrors that of other discrimination law. It covers direct and indirect discrimination, victimisation and harassment. For direct discrimination, it also looks at perceptive and associative discrimination, and considers who the comparator may be. It also looks at occupational requirements, which are a defence to an accusation of direct discrimination.
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This chapter briefly looks at the nature of sovereignty and its parameters in international law, but essentially focuses on the function and nature of jurisdiction. It first examines the breadth of the space in which sovereignty is exercised; namely, land, sea, and air. Thereafter, it assesses territorial jurisdiction (in both its objective and subjective dimensions) and examines the practice of the four extraterritorial principles of jurisdiction; namely, nationality-based, the protective principle, passive personality, and universal jurisdiction. The chapter then considers instances where national courts refuse to exercise their ordinary jurisdiction, namely, instances where the accused is covered by the privilege of immunity or because his or her arrest was illegal. Finally, it looks at the US practice of extraterritorial jurisdiction, whereby sometimes the sovereignty of other nations has been breached.
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This chapter studies jurisdiction. The term ‘jurisdiction’ is generally understood by international lawyers as describing the extent, and limits, of the legal competence of a State, entity, or regulatory authority, to make, apply, and enforce legal rules with respect to persons, property, and other matters. Jurisdiction is the necessary corollary to State sovereignty under modern international law, for it represents the exercise of authority of that State in relation to conduct, or to consequences of events, that it deems itself competent to regulate. The quintessential areas of regulation that would be regarded as falling within the domestic jurisdiction of a State include the setting of conditions for the grant of nationality and the conditions under which aliens (non-nationals) may enter a State’s territory. The chapter then distinguishes the types of jurisdiction: prescriptive jurisdiction, enforcement jurisdiction, and adjudicative jurisdiction.
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Jurisdiction refers to a state’s competence under international law to regulate the conduct of natural and juridical persons. The notion of regulation includes the activity of all branches of government: legislative, executive, and judicial. This chapter discusses prescriptive jurisdiction over crimes, civil prescriptive jurisdiction, the separateness of the grounds of jurisdiction, and enforcement jurisdiction.
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Gina Clayton, Georgina Firth, Caroline Sawyer, and Rowena Moffatt
This chapter discusses human rights law as it affects immigration and asylum. It explains how human rights apply to decisions on entry and removal, and the extraterritorial application of Article 3, and its nature as an absolute right. The chapter discusses Article 8, and how the proportionality test is applied to removal decisions in particular. It considers the effect on Article 8 cases of the immigration rules, the Immigration Act 2014, and case law interpreting the relationship between the rules, statute, and human rights. It briefly covers other Articles, including recent cases on Article 10. It also refers to the interaction of human rights with the duty in s 55 Borders Citizenship and Immigration Act 2009 to have regard to children’s welfare.
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This chapter discusses the notion of ‘diplomatic protection’, or the idea that a State may espouse the claims of its nationals and claim on their behalf. Because diplomatic protection by a State to persons necessarily extends beyond its territory, its exercise has potential ramifications for the sovereignty of other States. Certain rules have therefore emerged to avoid the uncomfortable situation where States submit legal claims as a strategic tool in international relations. Many of these are reflected in the Articles on Diplomatic Protection proposed by the International Law Commission (ILC) in 2006. In such situations, even if locus standi or ‘standing’ can be established, the admissibility of a claim before an international tribunal is precluded. The chapter then studies the rules relating to the admissibility of claims of diplomatic protection.
