Nationality and Human Rights: The Protection of the Individual and External Arenas

Abstract

In a world of ever-increasing transnational interaction the importance to individuals of protection within transnational processes of authoritative decision correspondingly increases. The claims with which we are concerned here are those by an individual for membership in a territorial community for the purposes both of obtaining external protection against other territorial communities and of securing richer participation in the value processes of his chosen community and the world community. The traditional linkage of the individual with territorial communities for such purposes has been through the concept of nationality. Individuals are said to be the "nationals" of a state when that state asserts, and the larger world community honors, claims to protect and control such individuals for all the comprehensive purposes of states, as contrasted with occasional particular exercises of competence under varying principles of jurisdiction. It is, thus, of critical importance how the concept of "nationality" and all the ancillary rules about the conferment and withdrawal of nationality are managed in the allocation of competence among territorial communities to protect individual human beings against deprivations by other territorial communities and in determinations of what states are authorized to impose what burdens upon individuals in different value processes. In a world arena still largely state-organized, decisions about nationality may affect both the degree to which the individual person has access to a protector and the substantive content of his rights. It is a distinguishing characteristic of nation-states that they claim a special competence to impose upon their members unique burdens with respect, for example, to taxation, military service, and subjection to civil and criminal jurisdiction; how these burdens are distributed, and maximized or minimized, through assertion by one or more states, importantly affects the aggregate enjoyment of human rights by individuals.