Dualist and Monist Systems

States see the interaction between international and national law in two different ways. Monism
and dualism are used to describe these two different legal traditions.
Monism
In States with a monist system international law does not need to be translated into national law.
The act of ratifying an international treaty immediately incorporates that international law into
national law. The ICC Statute, therefore, can be directly applied and adjudicated in national
courts.
“Monist systems” do differ in their approach.
 Under some Constitutions direct incorporation of international obligations into the domestic
law occur on ratification.
 In other States direct incorporation occurs only for self-executing treaties.
Dualism
For States with a “dualist system”, international law is not directly applicable domestically. It
must first be translated into national legislation before it can be applied by the national courts.
Therefore, for a dualist State ratification of the ICC Statute is not enough and national
implementing legislation is necessary. War crimes trials, for example, can only take place when
the national legislation is enacted, unless of course such legislation already exists.

Doctrine of Transformation vs. Doctrine of Incorporation:

The Doctrine of Transformation is based upon the perception of two distinct systems of law
operating separately, and maintains that before any rule or principle of international law can have any
effect within the domestic jurisdiction, it must be expressly and specifically 'transformed' into municipal law
by the use of the appropriate constitutional machinery. This doctrine grew from the procedure whereby
international agreements are rendered operative in municipal law by the device of ratification by the
sovereign and the idea has developed from this that any rule of international law must be transformed, or
specifically adopted, to be valid within the internal legal order.

Whereas, the Doctrine of Incorporation holds that international law is part of the municipal law
automatically without the necessity for the interposition of a constitutional ratification procedure.

Comparison Chart
BASIS FOR COMPARISON NATIONALITY CITIZENSHIP

Meaning Nationality is the individual Citizenship is the political

membership that shows a status, which states that the
person's relationship with the person is recognized as a citizen
state. of the country.

Concept Ethnic or racial. Legal or juristic.

Represents The place or country where Individual is registered as a

the individual has taken birth. citizen by the government of
the country.

Ways Birth and Inheritance Birth, Inheritance, Marriage,

Naturalization, etc.
 BASIS FOR COMPARISON NATIONALITY CITIZENSHIP

Can it be changed? No Yes

Can it be reversed? It is innate. It can be reversed.

Can it be possible to have No, a person can be national Yes, a person can become a
nationality/citizenship of of only one country. citizen of more than one
multiple countries? country.

Definition of Nationality
Nationality is the legal status, which represents the country from which an individual belongs. An
individual’s nationality denotes, the country where he/she is born and are the legal citizen. The status is
acquired by birth, inheritance or naturalization. On the basis of constitutional provisions, every state sets
the criteria which determine who can be the nationals of the country. It provides the country, rights over
the person. Further, it provides the person, protection of the nation from other nations.
Based on international conventions, every sovereign state is entitled to determine its nationals, as per
nationality law. One has the right enter or return to the country; they came from.
Definition of Citizenship
Citizenship is a status acquired by becoming a registered member of the state by law. Any person can
become a member of the state by satisfying the legal requirements of the respective country. In simple
terms, the virtue of being the citizen of the country is called citizenship.
By inheritance, marriage, birth, naturalization are the ways to become a recognized citizen of the country.
Every state grants some legal rights and privileges to its citizens, and they are also bound to follow the
rules and regulations framed by the government of the respective country.
Once the person becomes a citizen of the state, he has the right to vote, work, reside, pay taxes and take an
active part in the country. Every person is a citizen of the country where he/she is born, but to become a
citizen of some other country, one needs to apply for it.

Doctrine of indelible allegiance. The doctrine that an individual may be compelled to retain his original
nationality notwithstanding that he has already renounced or forfeited it under the laws of the 2nd state
whose nationality he has acquired.

THE ACTIVE PERSONALITY (NATIONALITY)  A state has a fundamental right to apply its laws to
prosecute illegal conduct committed by its citizens overseas.  It allows State to legislate regulating the
conduct of its citizen abroad.  Although Principle is mostly prevalent in the civil law Jurisdictions , it is
generally recognized in Common Law states.  In UK , the Principle applies to treason , murder and
manslaughter ,and more recently ,conspiring or inciting sexual offences against children.  Since 1945 ,
with awareness in Human Rights the use of nationality principle has been expanded to cover most of the
Human rights aspects also.  The principle is used to protect the interest of the state from abroad. The
classic example is of the offence of treason.

PASSIVE PERSONALITY PRINCIPLE  Jurisdiction is exercised by the State of the nationality of the
victim where the offence took place outside its territory.  Common law states opposed it but by the
emergence of transnational crimes approved it.  The justification is to protect the welfare of the nationals
abroad.  In Cutting case ,a US citizen was arrested in Mexico for a Libel charge against a Mexican
national ,the action for which the alleged libel was charged had been committed whilst its author was in
US ,the arrest of the author was effectuated during his subsequent visit to Mexico . The US Government
vigorously opposed Mexico’s claim of Jurisdiction and the case was finally discontinued.  The Principle
again faced the same rejection in Lotus case by the Permanent Court Of International Justice.
Nottebohn Case (Liechtenstein v. Guatemala)
Brief Fact Summary. A month after the start of World War II, Nottebohn (P), a German citizen who had lived
in Guatemala (D) for 34 years, applied for Liechtenstein (P) citizenship.
Synopsis of Rule of Law. Nationality may be disregarded by other states where it is clear that it was a mere
device since the nationality conferred on a party is normally only the concerns of that nation

Facts. Nottebohn (P), a German by birth, lived in Guatemala (D) for 34 years, retaining his German citizenship
and family and business ties with it. He however applied for Liechtenstein (P) citizenship a month after the
outbreak of World War II. Nottebohm (P) had no ties with Liechtenstein but intended to remain in Guatemala.
The naturalization application was approved by Liechtenstein and impliedly waived its three-year. After this
approval, Nottebohm (P) travelled to Liechtenstein and upon his return to Guatemala (D), he was refused entry
because he was deemed to be a German citizen. His Liechtenstein citizenship was not honored. Liechtenstein
(P) thereby filed a suit before the International Court to compel Guatemala (D) to recognize him as one of its
national. Guatemala (D) challenged the validity of Nottebohm’s (P) citizenship, the right of Liechtenstein (P) to
bring the action and alleged its belief that Nottebohm (P) remained a German national.
Issue. Must nationality be disregarded by other states where it is clear that it was a mere device since the
nationality conferred on a party is normally the concerns of that nation?
Held. NO. issues relating to citizenship are solely the concern of the granting nation. This is the general rule.
But it does not mean that other states will automatically accept the conferring state’s designation unless it has
acted in conformity with the general aim of forging a genuine bond between it and its national aim. In this case,
there was no relationship between Liechtenstein (P) and Nottebohm (P). the change of nationality was merely
a subterfuge mandated by the war. Under this circumstance, Guatemala (D) was not forced to recognize it.
Dismissed.

Discussion. A state putting forth a claim must establish a locus standi for that purpose. Without interruption
and continuously from the time of the injury to the making of an award been a national of the state making the
claim and must not have been a national of the state against whom the claim has been filed. International law
347 (8th Ed. 1955) Vol.1.

Article 1. - Definition of the term "stateless person"

1. For the purpose of this Convention, the term "stateless person" means a person who is not considered as a
national by any State under the operation of its law.

JURIDICAL STATUS

Article 12. - Personal status

1. The personal status of a stateless person shall be governed by the law of the country of his domicile or, if he has
no domicile, by the law of the country of his residence.

2. Rights previously acquired by a stateless person and dependent on personal status, more particularly rights
attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this be necessary, with
the formalities required by the law of that State, provided that the right in question is one which would have been
recognized by the law of that State had he not become stateless.

Article 13. - Movable and immovable property

The Contracting States shall accord to a stateless person treatment as favourable as possible and, in any event, not
less favourable than that accorded to aliens generally in the same circumstances, as regards the acquisition of
movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to
movable and immovable property.

Article 14. - Artistic rights and industrial property

In respect of the protection of industrial property, such as inventions, designs or models, trade marks, trade
names, and of rights in literary, artistic and scientific works, a stateless person shall be accorded in the country in
which he has his habitual residence the same protection as is accorded to nationals of that country. In the territory
of any other Contracting State, he shall be accorded the same protection as is accorded in that territory to
nationals of the country in which he has his habitual residence.

Article 15. - Right of association

As regards non-political and non-profit-making associations and trade unions the Contracting States shall accord
to stateless persons lawfully staying in their territory treatment as favourable as possible, and in any event, not
less favourable than that accorded to aliens generally in the same circumstances.

Article 16. - Access to courts

1. A stateless person shall have free access to the courts of law on the territory of all Contracting States.

2. A stateless person shall enjoy in the Contracting State in which he has his habitual residence the same treatment
as a national in matters pertaining to access to the courts, including legal assistance and exemption from cautio
judicatum solvi .

3. A stateless person shall be accorded in the matters referred to in paragraph 2 in countries other than that in
which he has his habitual residence the treatment granted to a national of the country of his habitual residence.

Doctrine of state responsibility to aliens. Intl. Law. The doctrine under which a state is under obligation to
make reparation to another state for the failure to fulfill its primary obligation to afford; in accordance with
international law, the proper protection due to an alien who is a national of the latter state. See also State
responsibility doctrine.

Equality of Treatment
According to this view, similarly situated people should be treated equally. For instance, all people who
commit the same crime under the same circumstances should be punished in the same way; differences
in treatment should arise only from differences in the circumstances surrounding the crime.
This concept leaves unanswered two important question: First, similar in which respects? If one man is
beaten as a child and then beats his children, and another man is raised by great parents and beats his
children, should we consider the men's different backgrounds in deciding how to treat them under the
law? Which circumstances are relevant in determining which people are "similarly situated?" Second, how
much should different circumstances affect our treatment? How much of a difference should the men's
differing backgrounds make?

The five forms of reparations are explained here below namely (1) restitution, (2) compensation, (3)
rehabilitation, (4) satisfaction and (5) guarantees of non-repetition.
The legal concept of reparation has two components: the right of the victim of an injury to receive
reparation, and the duty of the party responsible for the injury to provide redress. [7] Reparations can be
sought by individuals through judicial systems, or they can be policies introduced by the state to address
the concerns or needs of a wider populace. While the first strategy is instrumental in creating legal
precedent, the second is a more efficient way to recognize the concerns of more people.
The United Nations Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian Law
describes five formal categories of reparations: restitution, compensation, rehabilitation, satisfaction, and
guarantees of non-repetition.

1. Restitution – measures which serve to "restore the victim to the original situation before the gross
violations occurred". This can include: restoration of liberty, enjoyment of human rights, identity,
 family life and citizenship, return of one's place of residence, restoration of employment, and
return of property.
2. Damages Compensation – the provision of compensation "for any economically assessable
damage, as appropriate and proportional to the gravity of the violation and the circumstances of
each case". Such damage includes: physical or mental harm, lost opportunities, material damages
and loss of earnings, moral damage, cost of legal, medical, psychological, and social services.
3. Rehabilitation – medical, psychological, social services, and legal assistance
4. Satisfaction – various measures which include the cessation of human rights violations and
abuses, truth-seeking, searches for the disappeared, recovery and reburial of remains, judicial
and administrative sanctions, public apologies, commemoration, and memorialization.
5. Guarantees of non-repetition – reforms ensuring the prevention of future abuses, including:
civilian control of the military and security forces, strengthening an independent judiciary,
protection of civil service and human rights workers, the overall promotion of human rights
standards, and the establishment of mechanisms to prevent and monitor social conflict and
conflict resolution.[6]

'continuous nationality'
The traditional rule of diplomatic protection concerning the nationality of claims is the principle of
'continuous nationality': in order for a State to exercise diplomatic protection for a person, he/she must
possess its nationality at the time of the commission of the internationally wrongful act and remains a
national of that State at least until that State takes up his/her claim. In the context of State succession, the
application of the rule of continuous nationality results in neither the continuator State nor the successor
State being able to exercise diplomatic protection on behalf of an individual which suffered damage as a result
of an internationally wrongful act committed before the date of succession. The present paper addresses the
issue whether or not the traditional rule of continuous nationality should be applied in the specific context of
succession of States where individuals lose their nationality involuntarily. In other words, does contemporary
international law allow the successor State to take over the right to claim reparation on behalf of its new
nationals even if they did not have its nationality at the time the damage occurred?

The first section of this paper examines the content of the diplomatic protection rule of continuous
nationality and, more specifically, its application in the context of State succession. We will then refer to the
numerous authorities which have suggested that the rule of continuous nationality is not appropriate in the
context of State succession as it leads to unjust results. Reference will be made to doctrine as well as the work
of the International Law Commission on diplomatic protection and the Institut de Droit international. This
paper will also examine the validity of the proposition that the successor State may claim reparation on
behalf of its new nationals for pre-succession damages and the question of whether or not any exceptions
exist.

Finally, this paper will analyse relevant State practice and case law on the application of the rule of
continuous nationality in the context of State succession. Cases examined include the Pablo Najera case before
the France-Mexico Claims Commission, claims submitted to the Mixed Arbitral Tribunals established after the
First World War, claims before the U.N.C.C., and the Panevezys-Saldutiskis Railway case decided by the P.C.I.J.
The examples of State practice discussed are the 1952 reparation agreement between the Federal Republic of
Germany and Israel, the Austrian Reconciliation Fund Law (2000) and several compensation programmes
which were set up after the Second World War by the Federal Republic of Germany to compensate victims of
Nazi persecutions.

Our conclusion is that the traditional diplomatic protection rule of continuous nationality should not apply in
the context of State succession. The successor State has the right to claim reparation on behalf of its new
nationals against the State responsible for damage arising from an internationally wrongful act committed
before the date of succession. This solution should prevail in all cases where the individual on behalf of whom
the new successor State espouses the claim is still injured after the date of succession. The only exception
being claims submitted by the successor State on behalf of its new nationals against their former State of
nationality.
Exhaustion of (Local) Domestic Remedies It is a principle of international law that protection of human
rights should be carried out by national governments. National remedies are viewed as more effective than
international ones because they are easier to access, proceed more quickly and require fewer resources than making
a claim before an international body. Access to international enforcement mechanisms is seen as a last resort, after
the State has failed to correct the violation or to carry out justice.

Before submitting a complaint to any international body, such as the United Nations or the European Court of
Human Rights, the individual or NGO must first attempt to remedy the violation using national law.

Exhaustion of domestic remedies requires use of all available procedures to seek protection from future human
rights violations and to obtain justice for past abuses. Local remedies can range from making a case in court to
lodging a complaint with local police.

A complaint to an international body should include proof that domestic remedies have been exhausted, including
information about any legal proceedings that took place in the country.

There are limited exceptions to the requirement that domestic remedies be exhausted. International law recognizes
that domestic remedies may be unavailable, ineffective (i.e. a sham proceeding) or unreasonably delayed. In these
cases, it is not necessary to first address the national mechanisms if it can be convincingly demonstrated that there
are, in effect, no local remedies available.

Countermeasure in public international law refers to reprisals not involving the use of force. In other
words, it refers to non-violent acts which are illegal in themselves, but become legal when executed by
one state in response to the commission of an earlier illegal act by another state towards the former.
The leading case on countermeasure is the International Court of Justice decision in Gabčíkovo –
Nagymaros Dams case. The court remarked that, for a countermeasure to be justifiable, it must meet the
conditions below:

1. The act constituting countermeasure must be taken in response to a previous intentional wrongful
act of another state and must be directed against that state.
2. The injured state must have already called upon the state committing the wrongful act to
discontinue its wrongful conduct or to make reparation, but the request was refused.
3. The countermeasure must be commensurate with the injury suffered, taking into account the
rights in question.
4. The purpose behind evoking the countermeasure is to induce the wrongdoing state to comply with
its obligations under international law. Therefore, the measure must be reversible.

The Calvo Doctrine

3 The Calvo Doctrine rests upon one core proposition: aliens should not be entitled to any rights or
privileges not accorded to nationals (National Treatment, Principle). The consequence inevitably follows
that, since nationals are entitled to seek redress for their grievance only before local authorities, aliens
should not be entitled to seek redress for their grievances before authorities other than local authorities.
Thus, for example, aliens should not be entitled to turn to the State of which they are nationals in order to
seek diplomatic protection.

The Calvo Clause

5 The Calvo Clause is a corollary of the Calvo Doctrine. It will be found in contracts between aliens and
States, and namely, in concession agreements. The Calvo Clause deals with settlement of disputes
between aliens and States (Contracts between States and Foreign Private Law Persons). It requires that
aliens commit themselves, by their very contract with the State, not to seek diplomatic protection from the
State of which they are nationals as against the Contracting State which allegedly caused them some
damage. The clause therefore amounts to a waiver of the right to diplomatic protection.
Generally, deportation is sending someone back to their country who is undesirable in his host country,
typically because they committed a crime, entered their host country illegally, or have overstayed their
visa; it is involuntary.
Repatriation is bringing or sending someone back to his home country, in a desirable context, typically
a prisoner of war, refugee, hostage, or someone's deceased remains; typically, with the exception of the
deceased’s remains, this is voluntary.
Extradition is bringing someone back to another country, whether his country or a foreign country or
state to answer for a crime. Extradition is also involuntary.

Doctrine of Specialty is a principle of International law that is included in most extradition treaties, whereby
a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those
offenses and not for any other pre-extradition offenses. Once the asylum state extradites an individual to the
requesting state under the terms of an extradition treaty, that person can be prosecuted only for crimes
specified in the extradition request. This doctrine allows a nation to require the requesting nation to limit
prosecution to declared offenses. US courts have been divided on allowing standing to assert the doctrine
when the other nation has not explicitly or implicitly protested certain charges.
A person who has been brought within the jurisdiction of the court by virtue of proceedings under an
extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with
which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been
given him, after his release or trial upon such charge, to return to the country from whose asylum he had
been forcibly taken under those proceedings. [United States v. Rauscher, 119 U.S. 407 (U.S. 1886)]

Double criminality is a crime punished in both the country where a suspect is being held and a country
asking for the suspect to be handed over or transferred to stand trial. It is also known as dual criminality.
Double criminality is a requirement in extradition procedures as extradition is allowed only for offenses
alleged as crimes in both jurisdictions. “For purposes of determining double criminality in an international
extradition case, the court must look to proscription by similar criminal provisions of federal law or, if none,
the law of the place where the petitioner is found or, if none, the law of the preponderance of the states. A
broad interpretation of the requirement of dual criminality is followed: The law does not require that the
name by which the crime is described in the two countries shall be the same, nor that the scope of the liability
shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act
charged is criminal in both jurisdictions. The fact that a particular act is classified differently or that different
requirements of proof are applicable in the two countries does not defeat extradition.” Heilbronn v. Kendall,
775 F. Supp. 1020 (W.D. Mich. 1991)
In an international extradition case, it is not essential that the two statutes be perfectly harmonious for the
purpose of double criminality. Double criminality exists if the necessary character of the criminal acts of each
country is same and if the laws are substantially similar.
“It is a fundamental requirement of international extradition that the crime for which extradition is sought be
one provided for by the treaty between the requesting and the requested nation. The second determination is
whether the conduct is illegal in both countries.” Heilbronn v. Kendall, 775 F. Supp. 1020 (W.D. Mich. 1991)