8/17/2019 Transcript - Nationality Principle
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March 5, 2016
Nationality principle:
- This principle is highly controversial as basis to justify
jurisiction co!pare to objective an
subjective territorial principle "hich are "ell accepte#
$ctive nationality- the lin% is that the offener is the national
of the state "here the court is
situate# g# $!erican court, there is a la" per!itting it to
e'ercise jurisiction over the case for
the reason that the offener is an $!erican#
(assive nationality- base on the nationality of the victi!# This
ho"ever is sparingly applie by
the )* to justify jurisiction# This is usually applie in the
area of terroris! just li%e the case of
+in aen# This principle "as applie in this case# There "as a
bo!bing in enya in 1../, the
victi!s "ere $!erican nationals# $lso, the universality
principle "as applie, but "e have to be
careful in applying this because this "oul !ean that any court
of any state can prosecute
regarless of "here the cri!e "as co!!itte#
- +efore a court can e'ercise appropriate jurisiction on the
basis of nationality, the
effective nationality theory !ust be co!plie "ith# ith
particular reference to iplo!atic
protection, effective nationality is a pre-conition to
e'ercise jurisiction#
n international la", the nationality lin% is not eter!ine by
citienship: this is the
i!port of the Notteboh! case# iechtenstein vs# 3uate!ala#
Notteboh! "as a 3er!an "ho live
in 3uate!ala since chilhoo because they ha business there# hen
3er!any beca!e an
ene!y state uring the "orl "ar, the other countries "ho "ere
ene!ies of 3er!any, they can
seie the assets of 3er!any# The possibility of forfeiture an
seiure of properties "as pre-e!pte by the 3er!an nationals, an this
"orrie Notteboh!# 4ence, he visite his brother in
iechtenstein to be naturalie an he "as grante the citienship#
hen he "ent bac% to
3uate!ala, he "as arreste an etaine on the basis that he is a
citien of 3er!any, an ene!y
state# iechtenstein sai that 3uate!ala cannot etain Notteboh!
because he is a national of
iechtenstein an not of 3er!any# hen this reache the , the issue
"as "hether
iechtenstein ha the personality to e'ercise iplo!atic protection
involving Notteboh!# :
"hile all states can eter!ine their o"n citiens through the
passage of la", such eter!ination
of citienship "ill bin only that state an not the international
court# The !ere grant of
citienship oes not necessarily establish the nationality lin%
because "hat is re7uire is the real
an effective lin% "ith the state of nationality# Notteboh! "as
foun out to have a brief stay at
iechtenstein an such ac7uisition of citienship "as for !ere
convenience# )ner the
circu!stances, he ha a !ore real an effective lin% "ith
3uate!ala than "ith iechtenstein#
8/17/2019 Transcript - Nationality Principle
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(rotective (rinciple- a state can legislate cri!es that it
consiers to be a threat to the security,
integrity an econo!ic interests 8)*9# This is also reflecte in
our (, those provisions for
espionage an counterfeiting#
- ertain conucts outsie its territory !ay be subject to a
state;s jurisiction if it is irecte
against the security of a state or against a li!ite class of
other state interest#
&ffects octrine- a state has jurisiction over an act
co!!itte outsie, the effects of
"hich is in the territory the court is situate#
-&'a!ples of conuct that co!e uner the protective
principle:
-security 8espionage, counterfeiting, falsification of official
ocu!ents9-terroris! 8still an e!erging nor!9
-custo!s an i!!igration
-perjury in i!!igration < before consular officials
- econo!ic interests = not settle 8use by the )* but not by
other states
)nite *tates vs# olu!ba-ollela
>acts: $ +ritish citien living in Me'ico agrees to sell a car
that is in Me'ico but "as stolen fro!Te'as by so!eone else# The
cri!e of carnapping co!!itte by )*, but the property reache
Me'ico# This is a case of fencing "hich "as co!!itte by the
+ritish national an not the cri!e
of carnapping#
ssue: an the +ritish citien be prosecute uner the )* la"?
Protective principle analysis 8inapplicable9: the protective
principle oes not bear in this case
because the case oes not involve a threat to national
security or irectly interfere "ith
govern!ent operations#
O bjective territoriality principle analysis 8also
inapplicable9: the !an i not steal the car an
"hile the selling of the car !ay !a%e it harer for the victi! to
get his car bac%, this connection
to har! the )* is "ith only !ini!al effect#
Passive nationality principle analysis: Not applicable# (assive
personality covers only narro"
category cri!es oes not usually inclue !urer, let alone car
fencing# This has a very narro"application, usually in terroris!#
g# $n $!erican national is !urere here in the (hilippines
an the only lin% bet"een hi! an the )* is his nationality since
he is not a iplo!at# Most
li%ely, the )* "ill not invo%e passive nationality, "hat "ill
usually prevail is territoriality principle#
&n at 2@:@0
