Anthony Aust. Handbook of International Law

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can arise as to whether a tortious act was, in the words of the NATO SOFA, ‘done in the

performance of official duty’, and provision is made for these to be resolved by an arbitrator.

Contractual claims are within the jurisdiction of the courts of the host state, and therefore immunity

may be pleaded.

Section 16(2) of the UK Act provides that the Act does not apply to proceedings relating to

anything done by foreign armed forces in the United Kingdom which are the subject of the Visiting

Forces Act 1952. That Act implements the NATO SOFA and has been applied also to non-NATO

visiting forces. Thus, in deciding whether an act is official or unofficial, the UK courts have to the

apply the common law restrictive doctrine of state immunity to decide whether the act was public or

private in nature, and for this purpose they look at the whole context. In Holland v. Lampen-Wolfe, it

was decided that alleged defamatory remarks about a US national employed by the US forces as a

civilian teacher on a US military base in the United Kingdom, and made by her civilian superior

(also a US national), were acts done within the sovereign authority of the United States and therefore

immune.

But, in Gerber v. Gerber, the use of baby foods on a foreign military base in breach of a

registered trademark was held not to have been done in exercise of sovereign authority.

Criminal jurisdiction

SOFAs make provision for the criminal jurisdiction of the sending and host states over members of

the visiting force. As with civil proceedings, the details will vary from agreement to agreement, but

they follow generally the NATO SOFA. Under that, the sending state has exclusive jurisdiction over

offences under its military law, provided they are not also offences under the law of the host state.

The host state has exclusive jurisdiction over offences under its law, provided they are not offences

under the law of the sending state. Where an act is an offence under the law of both states, so that

each has jurisdiction (concurrent jurisdiction), the sending state has primary jurisdiction over those

offences that are solely against its property or security, or against another member of the force, or

done in performance of official duties. In all other cases, the host state has primary jurisdiction.

Jurisdiction can of course be waived by either state.

53. [2000] 1 WLR 1573; [2000] All ER 833; 119 ILR 367. See also Littrell v. USA (No. 2) [1995] 1 WLR

82; [1994] 4 All ER 203; 100 ILR 438, in which medical treatment of a US airman at a US military

hospital by US personnel was held to be an immune matter.

54. [2002] EWHC 428 (Ch).

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Heads of state, heads of government, foreign ministers and other senior

officials

This subject had not been considered in depth until a decade ago,

but since then it has received

prominence due to attempts to pursue some current or former foreign leaders for serious

international crimes.

Civil proceedings

The official acts of a head of state are treated as those of the state. But an act done by him in his

private capacity (ratione personae) is subject to the customary international law applicable to a head

of state (Article 3(2) of the UN Convention). States have taken different approaches. Some

European courts have held that there is no immunity for private acts.

In contrast, section 20 of the

UK Act accords a head of state, and members of his family forming part of his household, the same

inviolability and immunities as the head of a diplomatic mission, which covers all official and

almost all private matters.

A head of state cannot be arrested or served with legal process. But,

once he leaves office, he can be sued in respect of private matters arising during his time in office.

Whether a head of government, foreign minister or other senior official has the same immunity is

not clear. But now that many monarchs and presidents have little real power, it being exercised

instead by their heads of government, there is a trend to accord heads of government and foreign

ministers the same degree of immunity.

Criminal proceedings

In 2002, in the Arrest Warrant case, the International Court of Justice held that the issue of a warrant

for the arrest of a foreign minister for war crimes and crimes against humanity, and its circulation to

other states, were coercive measures that violated his inviolability and absolute immunity from

criminal jurisdiction under customary international law for all acts, public or private, committed

while in office or before.

This decision necessarily applies also to heads of state and heads of

government,

55. A. Watts, ‘The Legal Position in International Law of Heads of State, Heads of Government and

Foreign Ministers’ (1994- ) 247 Hague Recueil 40.

56. Fox, pp. 439–40.

57. See pp. 120 and 139 above.

58. The Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), ICJ Reports (2002);

ILM (2002) 536.

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and may apply to other senior officials such as defence ministers.

But, once such a person has left

office, can he be arrested and prosecuted for a crime committed while in office? He would have no

continuing immunity for private crimes, but the Arrest Warrant judgment suggests that he would

have continuing immunity for crimes committed in his public capacity.

So, could a head of state

order the commission of acts of torture yet remain immune from prosecution for it abroad, even after

he has left office? In its judgment in Pinochet (No. 3), the House of Lords (the UK’s highest court)

held that the former Chilean President had no immunity from extradition to Spain to face charges of

torture committed while he was in office.

Under the Torture Convention, a head of state can be

liable for the crime,

and it would be inconsistent with the obligation under that Convention (to

which Chile, Spain and the United Kingdom are parties) to extradite or prosecute offenders if a

former head of state could retain his immunity for such crimes, Chile having, by ratifying the

Torture Convention, by implication waived any continuing immunity. But the differing reasoning of

the judges makes it difficult to state with any certainty the exact basis on which the court came to its

decision, and whether the precedent has wider implications. Although the judgment may be followed

for the crimes listed in the Statute of the International Criminal Court (genocide, war crimes and

crimes against humanity) or with the authorisation of the UN Security Council, it seems unlikely that

it extends to terrorist offences or to simple murder. The international law on this matter is still

evolving.

The UN Convention does not apply to criminal proceedings.

(As to the position of such persons in relation to international criminal tribunals, see pp. 273–82

below.)

59. See the case of the Israeli Defence Minister, Mofaz, in (2004) ICLQ 771.

60. And has been so applied by the Belgian, Dutch, German and Spanish supreme courts, at least when

there was no jurisdictional connection with the forum state: Fox (2004 edn), pp. – ; and L.

Reydams, Universal Jurisdiction, Oxford, 2004, pp. 141 and 165. But see the joint separate opinion in the

Arrest Warrant case of Judges Higgins, Kooijmans and Buergenthal, paras. 19–65, and (2002) ICLQ 959.

61. R. v. Bow Street Metropolitan Magistrate, ex parte Pinochet (No. 3) [2000] 1 AC 147; [1999] 2 WLR

825; [1999] 2 All ER 97; 119 ILR 135. See also (1999) ICLQ 687.

62. 1465 UNTS 85 (No. 24841); ILM (1984) 1027; UKTS (1991) 107.

63. Fox, pp. 421–48.

64. See A RES/59/38, para. 2.

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8 Nationality, aliens and refugees

But in spite of all temptations / To belong to other nations / He remains an Englishman.

Nationality

Oppenheim. Oppenheim’s International Law, 9th edn, London, 1992, pp. 851–96.

Possession by a natural person (an individual) or a legal person (such as a corporation) of the

nationality of a state provides them with a link to that state for the purposes of international law. The

most important aspect of this link is the right of the state in international law to protect its nationals

as against other states. The law of each state primarily determines who are its nationals. In certain,

and usually exceptional, cases, international law will not recognise a person as a national of a state

even if the state regards him as its national. Although the nationality (if lawfully obtained) will be

valid in the state of nationality, it may not be recognised for the purposes of international law. The

state of the new nationality may not be entitled to make an international claim on his behalf unless it

can establish that at the relevant time he had a ‘genuine connection’ with it.

Dual nationality

A dual national is a person who has the nationality of two (and sometimes more) states. It can be

acquired in various ways, deliberately or accidentally. A child is sometimes born a dual national.

The law of one or both states may require the child, usually when it reaches the age of majority

1. W. S. Gilbert, HMS Pinafore, Act .

2. See Nottebohm, ICJ Reports (1955), p. 4, at pp. 22–6; 22 ILR 349. The effectiveness in international law

of the conferring by Iceland in 2005 of its nationality on the chess grand master, Bobby Fischer, is

therefore problematic.

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(usually eighteen or twenty-one), to choose which nationality to keep, and allows perhaps a year in

which to choose or lose nationality. If a person later acquires a further nationality, whether he retains

the nationality of his first state will depend on the law of that state, which may provide for automatic

withdrawal of his nationality or require him to choose within a certain period. When a dual national

is in one of his states of nationality, he cannot usually seek the protection of the other, although the

latter may make representations. However, there is a trend, at least among Western states, to claim

the right to protect a dual national when detained in the state of his other nationality if his

connection with that state is tenuous (e.g. his only connection is a parent born there). In a third state,

a dual national can be protected by either state.

Citizenship

The term ‘citizenship’ usually denotes entitlement, under the law of a state, to full civil and political

rights, and citizenship and nationality normally coincide.

In the law of a state which still has the remnants of a colonial empire, ‘citizenship’ may be limited

to person with close connections with (‘belongs to’) the metropolitan territory, those belonging to its

overseas territories having a separate status. Thus, the British Nationality Act 1981, as amended,

distinguishes between three main categories: (1) British citizens – those belonging to the

metropolitan territory of the United Kingdom, to the Channel Islands or to the Isle of Man,

and now

also to all remaining British overseas territories; (2) British Overseas Territories Citizens – persons

who belonged to a former overseas territory but did not acquire the citizenship of that country on

independence; and (3) British Nationals (Overseas) (former belongers of Hong Kong).

Nevertheless, in international law, all those in the various categories are nationals of the United

Kingdom, even though only British citizens are free of all UK immigration control.

Under the 1981 Act, there is also the category of ‘Commonwealth citizen’ enjoyed in the United

Kingdom and its overseas territories by all citizens of Commonwealth states, although, in itself, it

does not confer the right freely to enter the United Kingdom. However, in recognition of the ties

between the United Kingdom and its former territories,

3. See p. 441 below on dual nationality and claims.

4. See p. 29 above.

5. See www.passport.gov.uk.

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Commonwealth citizens are entitled to stand for election to the British Parliament, to vote in British

elections and to sit on juries. Usually, this is not reciprocated by Commonwealth states. For similar

reasons, citizens of the Republic of Ireland (which is not in the Commonwealth) have the same

entitlements.

The right to leave and return to one’s state of nationality

Under Article 12(2) of the International Covenant on Civil and Political Rights 1966,

a person is

entitled to leave any country, including his own, but this right is probably not yet established in

customary international law. With the virtual end of communist regimes, the right to leave is now

general in domestic law, and has led to a substantial increase in so-called economic migrants.

But,

in some cases, financial and other obstacles (e.g. refusal of a passport, restrictions on the states

which can be visited or loss of nationality on leaving) may make the right problematic. The right

may of course be subject to restrictions to prevent persons accused of crimes from fleeing, and for

health and other reasons of public interest.

Article 12(4) guarantees the unrestricted right of a person to return to his own country.

Passports

Even a (genuine) passport raises no more than a presumption that the holder is a national of the state

of issue, although the presumption is not easily rebutted. National law governs the issue of

passports, and an unjustified refusal of a passport can amount to a severe restriction on the ability to

leave or return to one’s state of citizenship, and is a possible breach of the state’s international

obligations.

Statelessness

If a person loses his citizenship, but does not acquire a new one, he becomes stateless. Although the

state in which he is living will treat him as an alien

6. 999 UNTS 171 (No. 14688); ILM (1967) 368; UKTS (1977) 6.

7. See p. 189 below.

8. But note the UK position, p. 243 below.

9. D. Turack, The Passport in International Law, Lexington, MA, 1972; J. Torpey, The Invention of the

Passport, Cambridge, 2000.

10. See Oppenheim, p. 866, n. 7.

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(see below), it does not have to recognise the right of any other state to protect him. The stateless

person will be covered by such human rights obligations as are binding on his state of residence, but

enforcing those rights may not be easy, although if there is a breach of a human rights treaty any

other party to it will have the right to complain. In an attempt to reduce statelessness, the United

Nations adopted the Convention relating to the Status of Stateless Persons 1954.

This gives less

favourable treatment than the Refugees Convention (see below), and has only fifty-seven parties.

The Convention on the Reduction of Statelessness 1961 has a meagre twenty-nine parties.

However, many stateless persons will have a claim to refugee status.

Legal persons

The buildings and employees of a legal person (such as a company) are its physical embodiment, but

for legal purposes they are not the company. A company is the most common form of corporation,

and is created by law. Given this fundamental distinction from natural persons, determining the

nationality of a corporation is not as easy, although it is particularly important for the purpose of the

protection under international law of the corporation’s assets and activities abroad and the bringing

of international claims. The basic principle is that a corporation has the nationality of the state in

which it was incorporated or in which it has its registered office or head office. In Barcelona

Traction (Second Phase), the International Court of Justice decided that a company incorporated in

Canada, and with its head office there, had Canadian nationality even though 88 per cent of the

shareholders were Belgian nationals.

These days, for tax purposes many companies are

incorporated in one state (where the registered office is), but have their headquarters in another state.

An international tribunal may therefore look behind the legal veil (or facade) of incorporation to

determine in which state the control and ownership of the corporation really lies. The state with

which the company has a close, substantial and effective connection, may then be treated as the state

of nationality. Foreign branches of a company will usually have the same nationality as the

company, but if the company incorporates subsidiary companies under the law of another state, they

will probably have the nationality of that

11. 360 UNTS 117 (No. 1518); UKTS (1960) 41.

12. 989 UNTS 175 (No. 14458). See A. Aust, ‘Limping Treaties, Lessons from Multilateral Treaty-

Making’ (2003) NILR 243 at 262–3

13. ICJ Reports (1970), p. 3, paras. 32–101; 46 ILR 178. See Brownlie, pp. 466–71.