Introdução aos Direitos Humanos Internacionais

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Unidade 01 - INTRODUCTION TO THE INTERNATIONAL HUMAN RIGHTS THEORY, INSTITUTIONS, AND PRACTICE OF INTERNATIONAL HUMANS RIGHTS
What makes humans human?
Possible foundations of rights include human beings rationality, their autonomy, their aspiration to happiness, their fundamentally social nature, their inherent freedom.
Common definition of human rights and natural law (we have to go back to the fundamentals of human rights – kant and locke)
 	“secular natural law theorists believe that rights inhere in human nature or are somehow inherently deducible from it”.
Neo-scholastics, such as St. Thomas Aquinas and Gabriel Vasquez, created the theory of classical natural law → “gave the initial impetus to some ideas about natural law as a ground for at leas natural rights”.
The Enlightenment Age inaugurated the theory of modern natural law, they believed that could be discovered and justify rights through reason.
Human Rights and Kant: he is often presented as one of the great human rights thinkers, because of his attempt to deduce universally valid moral principles derived from transcendental considerations.
Liberal Theories of Rights: Present the Human Rights as being the minimal requirements to be able to live the good life, in a world that has become skeptical of ever. → based on idea of the existence of a good society.
	What is a good society? Donnelly explains that “good society” is a society where what matters is that individual is able to self-determine themselves and choose their own ends.
On the other hand, Louis Henkin explains that human rights are not the equivalent of justice, or “the good society”, or, as some think, democracy, although the human rights idea declares that every individual has legitimate claims upon his or her own society for certain freedoms and benefits.
Liberalism and John Locke (1632 – 1704):
“argued that people have rights, such as the right to life, liberty and property.”;
“men are naturally free and equal as part of the justification for understanding legitimate political government”.
“the natural law concept existed long before Locke, as we saw with the “neo-scholastics”, as a way of expressing the idea that there were certain moral truths that applied to all people, regardless of the particular place where they lived or the agreements they had made”
“The most important early contrast was between laws that were by nature, and thus generally applicable, and those that were conventional and operated only in those places where the particular convention had been established”.
	Natural Law vs Divine Law: “
	- natural law is also distinct from divine law in the Christian tradition, normally referred to those laws that God had directly revealed”.
- natural law can be discovered by reason alone and applies to all people, while divine law can be discovered only through God’s special revelation and applies only to those to whom it is revealed and who God specifically indicates are to be bound.”
So, some recent researches are now oriented towards seem human rights as one of the basic requirements of global theory of justice.
Human rights are a mix of faith and politics.
The late modern thinking about human rights conducts to rediscover something that is always there, which is the value of international human rights may lie in the fact that it is the last “totalizing Grand Narrative” → give us the idea of something universal (Alves).
Universality of Human Rights 1st Part
The internationalization of Human Rights was a necessity, almost a obligation regarding of the horrors of the 2 Great World Wars. Before them, human rights was only topics in the domestic jurisdiction of the State.
It first appeared as a humanitarian efforts in order to reduce and to limit the effects of wars over the civilians and wounded soldiers (soldados feridos).
Text 2. Dinah L. Shelton – An Introduction to the History of International Human Rights Law.
	The issues for the internalization of human rights (before the great world wars):
1. The necessity of religious liberty
	a. Treaty of Westphalia in 1648 that ended with the thirty years war between protestants and Catholics in Europe. - was followed by the Congress of Vienna.
	b. Congress of Vienna (1815) which renewed the concerns religion liberty, assuming that “religious intolerance could jeopardize international peace and security”.
2. Abolition of slavery and the Slave trade
	a. Congress of Vienna introduced the slavery issue as one of fundamental moral and religious obligation;
	b. 1890 General Act for the Repression of the African Slave Trade. Further agreements on abolition of slavery and repression of the slave trade were concluded in 1919, 1926 and 1956.
3. The emergence of international humanitarian law
	 Sun Tzu wrote in “The Art of War” that an obligation exists to care for the wounded and prisoners of war.
	a. Increase of destructiveness
	b. Emergence of the press
	c. Increase of literacy
The industrial revolution had a military side that provoked an ongoing evolution of increasing destructiveness, army became more professional and larger, at the same time the emergence of the press and increase of literacy brought home the atrocities of conflicts.
All these factors conducted to the increase of concerns regarding to the conditions of war. During the 19 century, two regional conflicts were very destructive and provoked acarnage?? that let to create international and national rules forcing the care of wounded soldiers.
a) US Civil War (1861) gave rise to the Lieber Code (the first western written regulation of armed conflict)
b) The Battle of Solferino (1859) occurred in Italy during the fase of Risorgimento. The Secong Italian War of Independence. It was a nationalist struggle for unification of Italy. These was witnessed by Jean Henry Dunant, a swiss businessman and social activist, he became deeply touched with the tragic situation, so he decided to create a neutral organization to provide the care to wounded soldiers. His ideas gave birth to the International Committee of Red Cross (ICRC) in 1863. Originally it was a committee of five families called the Geneva society of Public Welfare. They came together for a conference and made proposals including: the foundation of national relief societies for wounded soldiers, neutrality and protection for wounded soldiers, the utilization of volunteer forces for relief assistance on the battlefield.
After that, it took places to several conferences facing the improvement of the conditions in the battlefield, as Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (1864), the Hague Peace Conference concluded a broad Convention on the laws and Customs of War on Land (1899) and in 1907, the Hague Peace Conference extended humanitarian law – agreements on land and marine warfare. Established limits to the methods used in the war.
4. Protection of citizens abroad
Throughout the history a Foreigner is very vulnerable to robbery, murder, enslavement or impressment. In the past, ships at sea were frequently looted by privateers or pirates.
“The loss of a national was and still is seen as the loss of a valuable asset belonging to the sovereign, whether prince or state.” Those who caused harm to foreign nationals diminished the wealth of the sovereign to whom such nationals were deemed to belong.
Therefore, the State was responsible for acts committed against foreign nationals within its territory and by its nationals on the high seas.
The ruler of the acting party and the state itself were deemed to be collectively responsible for the damage caused to the foreign citizen.
Still in the nineteenth century, reprisals (represálias) for injuries to aliens (estrangeiro) were removed from private hands and became the prerogative of the state, a public matter.
By the middle of that century rose the concept of peaceful, third party settlement of disputes by arbitration or claims commission. So the alleged violations should be in conformity with internationallaw.
The early twentieth century: “the turn of the century saw a wave of globalization with technological advances in communications (telephone and telegraph), and transportation (rail networks, steamships) accompanied by increasing mobility of wealth through movements of capital and labor.” The world became smaller and international awareness increased.
	The XX century NGOs:
Le des Droit de L’Homme, which published its first information in 1901, sough to ensure liberty, justice, equality and fraternity to all humanity.
	The International Office of Public Health created in 1907 advocated a global right to health.
	The XX century and regional international law and organizations:
Confederation of Latin American states in 1826 led to a series of regional meetings to discuss mutual defense and other forms of cooperation.
International Union of American Republics, later PanAmerican Union, and after the WWII it became the OAS.
In Iran and Chine authors published works promoting the rights of individuals. An example is “the Book of Great Harmony” of Kang Youwei
	The WWI – The Beginnings
The end of the 19th century and the beginning o the 20ths were marked by a great and growing feeling of nationalism. This fact, together with the need to conquer markets by certain upward economic powers, conducted the world to the Great War.
Also, internally, the revolutions (Mexico, Russia and Ireland), riots and strikes (Germany, Russia, Austria and Italy) of the early twentieth century drew the attention of all governments to the dangers of denying economic, social and cultural rights.
Even before the revolutions and World War I, governments, under pressure to reform their economic system, realized the necessity of international action in order to avoid distortions in competition coming from low labor standards. → Necessity to create a law about the protection of labor.
1. 1906 “one night work for women” (renewed by the convention no. 4 of 1919)
	“anatomy of a prohibition: ILO standards in relation to night work of women in industry. The most modern instruments dealing specifically with women’s night work in industry are the Night Work (Women) Convention (Revised), 1948 (No. 89), and its Protocol of 1990; this Convention revised Convention No. 41 of 1934 which was itself a revised version of Convention No. 4 of 1919. All three revisions were designed to make the standards of night work by women more flexible. Convention No. 171, as has already been seen, lays down standards of protection for all night workers, but its provisions fall outside the purview of this survey.”
2. The Prohibition of the phosphorus in the manufacture of matches.
By the 1933 the ILO (International Labor Organization) had adopted forty conventions, covering hours of work, maternity leave, unemployment, conditions of labor at night for women and children, equality of pay, minimum age at sea, forced labor and freedom of association.
The end of WWI was created the League of Nations and the minority treaties.
Universality of the Human Rights - parte 04
Treaty Peace of Versailles 1919.
The Paris Peace Conference redrew the Germany Territory, redrew the borders throughout Europe, ended with large multinational empires and created new minorities states through a series of Minorities Treaties provided human rights protection, as Poland, Czechoslovakia, Yugoslavia, Romania and Greece.
The minorities treaties were created by the necessity to assure full and complete protection of life and liberty to all of their inhabitants. The idea is to guarantee to them without distinction of birth, nationality, language, race or religion.
All of these rights was in discussion the Opening of League of Nations
The first case of the Permanent Court of International Justice was the rights of minorities in Polish Upper Silesia concerning the application of the racial linguistic or religious criteria to admission to the school.
Louis Henkin says that the term “human rights” suggest the rights of all human beings anywhere and anytime.
The internationalization of Human Rights was a necessity and first appeared as a humanitarian efforts in order to reduce and to limit the effects of wars over the civilians and wounded soldiers.
The Dilemma of Universalism:
The UN definition of Human Rights through the concept of universality, cooperation and freedom.
In 1948, the American Anthropological Association had issued a statement criticizing the concept of universal human rights as being in denial of cultural diversity. The problem faced by THE Commission on Human Rights of the UN in preparing its Declaration on the Rights of Man must be approached from 2 points of view:
	1. the declaration is ordinarily conceived to respect the personality of the individual as such, and his right to its fullest development as a member of his society.
	2. a world order, however, respect for the cultures of differing human groups is equally important.
Conclusion1: these are 2 facets of the same problem, since it’s a truism that groups are composed of individuals, and human beings do not function outside the societies of which they form a part.
Conclusion2: the problem is thus to formulate a statement of human rights that will do more than just phrase respect for the individual as an individual. It must also take into full account the individual as a member of the social group of which he is a part, whose sanctioned modes of life shape his behavior.
 It’s not possible a universal concept of human rights, of good, etc.
Arguments in defense of universality:
- culturalists reify and simplify cultures
- human rights emerges from inter-subjetctive consensus
- it’s not a synthesis between the insights of relativism and universalism
- human dignity is an intuitive appeal in many cultures.
- the idea is to build bridges between non-Western traditions and human rights (particular with Islam, African and Asian Values)
The Status and Nature of Rights:
Domestically: translates into demands for constitutionalization
Internationally: it’s associated with “jus cogens” and/or “erga omnes” status.
The universality issue:
The term “human rights” suggest the rights of all human beings anywhere and anytime.
The principal contemporary articulation of human rights, the Universal Declaration of Human Rights, claims and prescribes universality.
International Human Rights Law UN concept:
“Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law , general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.”
	Forms: - treaties; customary international law, general principles, and other sources of international law.
Pergunta 1 - 3 pts
The notion of human rights derives from the INTERSECTION between a moral and political philosophy.
All the following options are correct as principles of human rights. However, there is only one which better explains the above assertive.
1 Human Rights are the expression of the political relationship that should prevail between individual and society.
2 The idea of human rights is a political idea with moral foundations.”
3 There are limitations on government, including limits on what can be done to the individual even for the welfare of the majority.
4 A visão tradicional é que os direitos humanos são baseados em uma forte reivindicação de verdade ou validade.
2 Which is the author correctly related to philosophical thinking about human rights?
1 St Thomas Aquinas – introduced the universally valid moral principles derived from transcendental considerations.
2 Locke – used the claim that men are naturally free and equal as part of the justification for understanding legitimate political government.
3 Grabriel Vasquez, a liberal, created the theory of human rights based on reason classicalnatural law.
4 Kant – thought human rights based on the natural law.
3 The following assertives contribute for the creation of an International law focused on the protection of the human being, except:
1 The creation of Meteorological Organization (1878) (IMO) to facilitate the exchange of weather information across national borders.
2 religious liberty, because “religious intolerance could jeopardize international peace and security”
3 The emergence of international humanitarian law–as consequence of concerns regarding to the conditions of war.
4 Protection of citizens abroad. “the loss of a national was and still is seen as the loss of a valuable asset belonging to the sovereign to whom such nationals were deemed to belong.”
4 The first international organizations arouse in the end of the 19th Century and continued right after the beginning of the 20th Century and until the end of the World War I.
In the following options we have examples of these organizations, except:
1 League of Nations
2 International Labor Organization
3 Red Cross
4 United Nations
5 All the following issues are related with the concept of universality of the human rights, except:
1 “human rights” suggests rights of all human beings anywhere and anytime.
2 Human dignity is an intuitive appeal in many cultures.
3 It is associated with “jus cogens”and/or “erga omnes” status
4 The concept of universal human rights was created taking into account the cultural diversity of the peoples in the world.
Unidade 02 - WHAT IS NATIONALITY, TYPES OF NATIONALITY NATIONALITY AND CITIZENSHIP DUAL NATIONALITY STATELESSNESS
Is our identity still defined by our nationality, or is the nation state dead?
Robert Skildesky: Talks about European identity, ‘cause it’s very difficult to define. It’s hard to define national identity.
In British schools it’s common to teach “British values” → democracy, tolerance and the rule of law.
The can’t get an agreement to get anything substantial. One of the values that he thinks it’s the most striking, a missing value, is free speech. It would be a great British value, but it might cause offense to a lot of people who are living in Britain.
Caroline de Gruyter: The Netherlands tried to draw up a list of the Dutch values → recently, Luxembourg, tried to draw up a list, ‘cause the country’s identity is under attack, and its whole business model.→ but they can’t agree on what makes Luxembourg Luxembourg. → in the end they came up with one word “bridge” (between Germany and France, between everything else).
Arnon Grunberg: (Idea of built Europe based on regional identities) In many areas of Germany we can distinguish people, because there are a diversity kind of identities, even the language is different. → So, in order to build this already existing regional identities, that’s very good, because region has never had its own army and nationalistic feelings in this region are “mine” by definition.
Philipp Blom: Nation-states are a recent invention → makes an analogy with the Edgar Allan Poe’s histories, it’s like that person who is already dead, but he didn’t realize it yet, so he continues to walk around.
Our identity is regional.
Has a proposal of redrawing European boundaries according to what people call ‘things sold in bakeries’, cause weather you eat in a german-speaking countries a ...”say sth in german”, which are all the same, they really mark what people think about their lifes, but inner nation-states we should regional and European. I think the nation-state is a completely expendable entity in between we have (it’s the only thing we have).
Arnon Grunberg: It’s worth remembering that the 3 largest nations originally creating the European Union (Germany, France and Italy) now they’re all deresist? resist nations, entirely constructed by an elite. There was the French Revolution and Napoleon creating France out of a whole lot of bore provinces, which didn’t speak French. It took something like 15 constitutions and 150 years before that became a convincing democracy. And you’ve got Massimo des L saying ‘we have created Italy, now we have to create Italians’, that was a 150 years ago and I rest my case.
In Germany, Bismarck said ‘we don’t need speeches or majority decisions, we need blood and iron’, and I rest my case again. These are the elites of those countries, based on those experiences, that have been trying to like, you know strauss-kahn saying ‘we have created Europe, now we must create your appearance and I don’t think is the right way to go around, I hope there will be one day something that one can identify as European, but at the moment I think you have to start from the grassroots upwards and the baker model, is a very good one. You know, let’s start there, why do young Europeans go off to America? or go off to the next best thing, which is London? Is because they feel free, they feel they can do things they feel can express themselves, you know, in European they feel tight, they feel they’re over-regulated, they’re supposed to be doing things and overtaxed.
Nationality
It’s one of the most difficult and complex issue.
To draw a possible definition for nationality, we first need to understand what nation is:
Eric Hobsbawn, in Nation and Nationalism since 1870: programme, mith and reality (1990), concluded that “no satisfactory criterion can be discovered for deciding which of many human collectivities should be labeled in this way”
And he continues challenging the traditional ideas based on some criterias: “the usual criteria of ‘language, ethnicity, whatever (…) are fuzzy, shifting and ambiguous and (…) useless.”
Actually, nationality is holding hands to national concept.
What is nationality? (recommended text): Philip and Michael White bring to us some of the most prominent writers about this theme.
Well, as difficult as to define nation is to define nationality. However, it can become easier if we limit it in the juridical definition.
So, after we saw the concept of nation, we can infer that the idea is a historical construction defined by social, ethnic, cultural, language, whatever, but certainly a government determination.
Think about it: who says who can be a national and who can be not? The state.
But only in terms of a civic and legal necessity to define who is the people of a country and, consequently, who has some exclusively rights inherent of those who belong to it. So, let’s see what concluded the authors in our first test: “It’s a relation of a civil and political meanings”.
Nationality, for centuries, had two distinguish meanings: an ethnic group and a civic group.
“The right to a nationality is of paramount importance to the realization of other fundamental human rights. Possession of a nationality carries with it the diplomatic protection of the country of nationality and is, also, often a legal or practical requirement for the exercise of fundamental rights. Consequently, the right to a nationality has been described as the ‘right to have rights’” (Trop vs. Dulles, 356, US (1958)
Many international instruments, of regional and global levels, include the right to a nationality.
	Article 15 of the Universal Declaration of Human Rights states that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”.
Is nationality a right?
1954 Convention relating to the Status of Stateless Persons
1961 Convention on the Reduction of Statelessness
1951 Convention relating to the Status of Refugees
1967 Option Protocol relating to the Status of Refugees International Covenant on Civil and Political Rights (art. 24(3)).
Convention on the Elimination of all Forms and Racial Discrimination (art. 5 (d)(iii)).
Convention on the Rights of the Child (arts. 7 and 8)
1997 European Convention on Nationality
Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession American Declaration of the Rights and Duties of Man: art. 19.American Convention on Human Rights (art. 20)
Convention on the Elimination of All Forms of Discrimination against Women (art. 9)
African Charter on the Rights and Welfare of the Child (art. 6)
Protocol to the African Charter on Human and People’s rights on the Rights of Women in Africa (Maputo Protocol) (art. 6 (g) and 6 (h)).
Arab Charter on Human Rights (art. 24)
Convention on the Rights of Persons with Disabilities (art. 18)
	Article 5 of the Convention on the Elimination of all Forms of Racial Discrimination requires States to “In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights (…) the right to nationality”
Nationality is related to the idea of identity.
Identity and Citizenship
What is identity? (personal, ethnic, civil and national)
Personal identity deals with philosophical questions that arise about ourselves by virtue of our being people (or, as lawyers and philosophers like to say, persons). This contrasts with questions about ourselves that arise by virtue of our being living things, conscious beings, material objects, or the like. Many of these questions occur to nearly all of us now and again: what am I? When did I begin? What will happen to me when I die?
Ethnic identity: the extent to which one identifies with a particular ethnic group(s). Refers to one’s sense of belonging to an ethnic group and the part of one’s thinking, perceptions, feelings, and behavior that is due to ethnic group membership. The ethnic group tends to be one in which the individual claims heritage (Phinney, 1996). Ethnic identity is separate from one’s personal identity as an individual, although the two may reciprocally influence each other.
	Ethnic identity and nationaly: Sauvigny explains that in the 19th Century, Germany was not yet a national in political terms, but already a nation in ethnic terms. Though, the foundation of the Germany Country was built based on the idea of a territory delimited by the presence of German people. They call it the ‘volksgeist’ (spirit of the people).
“In 1835, the Academie française defined nationality rather vaguely as ‘State, condition, of a group of people forming a nation distinct from others” (Sauvigny, 1970).
	Ethnic Identity and other nation-states: Many other States developed theories to define their ethnic identities in order to build their States. Mainly in the 19th Century, nationality was a synonym for self-government of self-determination, because nationality carried on the feeling to belong to the same people.
However, Britain, France and Spain didn’t accept this conception because of a pragmatic motive. They were colonial empires around the world with severe ethnic components.
So, the idea of “large tribe” (ethnic) would cause a fragmentation inside their domains.
Therefore, they preferred to be called in a civic manner ‘small empires’.
After the WWI, self-determination became very popular of its ethnical component, as a suggestion of Woodrow Wilson’s 14 points for peace.
Finally, after the WWII it became a principle of Human Rights, but not only in an ethnic sense, but also in a civic sense.
All people has the right to be self-governed and began the period of decolonization (mainly in Africa and Asia) during the, so-called, Cold War (1945-1990). Countries looked for their freedoms from Europeans empires, mostly.
“The disintegration into presumed ethnic entities of the Soviet Union, Yugoslavia, and the split of Czechoslovakia into Czech and Slovak sovereignties have provided dramatic examples of the power of ethnic identities and rivalries. Ethnic separatism has plagued Britain, Spain, and France. Hundreds of thousands have died from ethnic violence in Sri Lanka, Rwanda and elsewhere in Africa and Asia. Francophone ethnic separatism came very close to dismembering Canada in the 1990s, while the United States faced increasing pressures from multiculturalists to "empower" ethnic groups to preserve their cultural identities.” (what is nationality? Text)
	Ethnic identity – today: After the end of Cold War, 1990, the world turned again to redeem the concept of ethnic identities, also in an opposition of the globalization.
And this movement seems to be in a continuous growth, but now because of the huge amount of people moving from their homeland to other countries for a variety of reasons.
Nationality vs. Citizenship:
Definition of citizenship: In accordance with Isin and Turner, in our text “Investigation citizenship: An Agenda for Citizenship Studies”: Citizenship is an “inherent concern of political thought”. It’s something related to rights and duties.
Citizenship in the history of Western World:
- can be sought in the political cultures of ancient Greece and Rome;
- It is also significant as an aspect of modern politics and democratic States;
- some historical events highlight it as a leitmotiv for their ideals of freedom and independence. We are talking about the Republican Revolutions (French Revolution and The American War of Independence).
Contemporary Citizenship: “A citizen is a member of a political community who enjoys the rights and assumes the duties of membership”.
Dimensions of Citizenship:
The concept of citizenship is composed of three main elements or dimensions (Cohen 1999; Kymlicka and Norman 2000; Carens 2000).
The first is citizenship as legal status, defined by civil, political and social rights. Here, the citizen is the legal person free to act according to the law and having the right to claim the law’s protection. It need not mean that the citizen takes part in the law’s formulation, nor does it require that rights be uniform between citizens.
The second considers citizens specifically as political agents, actively participating in a society’s political institutions. The third refers to citizenship as membership in a political community that furnishes a distinct source of identity.
Well, in a simplicity manner, citizenship is related with the legal situation of an individual before a State and Nationality is related with the idea of belong to a country as an intrinsically part of it.
However, sometimes both terms are used interchangeably.
Text: Investigating Citizenship: an agenda for citizenship studies: Hannah Arendt (1951) developed the most devastating criticism of “the rights of Man”. She complained that these inalienable rights are said to exist independently of any government, but once the rights of citizenship have been removed, there is no authority left to protect people as human beings.
For Hannah Arendt the public sphere comprises two distinct but interrelated dimensions.
The first is the space of appearance, a space of political freedom and equality which comes into being whenever citizens act in concert through the medium of speech and persuasion. The second is the common world, a shared and public world of human artifacts, institutions and settings which separates us from nature and which provides a relatively permanent and durable context for our activities.
Both dimensions are essential to the practice of citizenship, the former providing the spaces where it can flourish, the latter providing the stable background from which public spaces of action and deliberation can arise. For Arendt the reactivation of citizenship in the modern world depends upon both the recovery of a common, shared world and the creation of numerous spaces of appearance in which individuals can disclose their identities and establish relations of reciprocity and solidarity.
Hannah Arendt gave us the whole idea of the universality of Human Rights.
Types of nationality
(video watched): put us to think about a better world, in terms of the relationship between the individuals and the nation state. It suggest thatracial or ethnical identity are not important, because we are human beings.
Who defines the nationality of the individual is the State. Nationality is not a free will, but a determination of an internal law of a country (quote Massimo d’Azeglio ‘we have made Italy. Now, we must make Italians’.
The relationship between the state law and the individual
- A highly sensitive issue
- A manifestation of a country’s sovereignty
- A manifestation of a country’s identity
- Cause disputes and conflicts within and between States
Book→ “Nationality and Statelessness A Handbook for Parliamentarians.”→ In principle, questions of nationality fall within the domestic jurisdiction of each State. However, the applicability of a State’s internal decisions can be limited by the similar actions of other States and by international law.
In its Advisory Opinion on the Tunis and Morocco Nationality Decrees of 1923, the Permanent Court of International Justice stated that:
“The question whether a certain matter is or is not solely within the domestic jurisdiction of a State is an essentially relative question; it depends on the development of international relations.”
This case was related to France and England in the region.
The Hague Convention of 1930, held under the auspices of the Assembly of the League of Nations, was the first international attempt to ensure that all persons have a nationality.
Article 1 of the Convention states that:
“It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.”
In other words, how a State exercizes its right to determine its citizens should conform to the relevant provisions in international law. Throughout the 20th century, those provisions gradually developed to favour human rights over claims of State sovereignty.
The Hague Convention Fo 1930 on Nationality
- An international legal reaction to the Advisory Opinion of 1923 that was saw as a limitation on the applicability of a State’s nationality when those decisions conflict with nationality-related decisions made by other States.
- Was the first international attempt to ensure that all persons have a nationality.
Article 1: “it is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.”
Nottebohm Case – 1955 (the first time the link between the individual and the state was knowledge of the base of citizenship was in the case decided by the International Court of Justice in 1955) This case introduces the effective of nationality.
“According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is:
- a legal bond having as its basis a social fact of attachment;
- a genuine connection of existence, interest, and sentiments, together with the existence of reciprocal rights and duties.”
	Nottebohm Case and its effects in the States legislation and in the International Law today.
- The principle on the existence of a genuine and effective link between an individual and a State, made manifest by: birth, residency, and/or descent.
- It is now reflected in the provisions of most States’ nationality legislation
- As well as in recent international instruments relating to nationality, such as the 1997 European Convention on Nationality.
Inter-American Court of Human Right’s Definition of Nationality
“The political and legal bond that links a person to a given State and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that State” (Castillo-Petruzzi et al v. Peru Judgment of May, 1999).
Nationality Acquisition
In accordance with Eric Fripp (text book):
“Nationality may be acquired in any one of a number of ways”;
Traditionally, the doctrine distinguishes between “original” and original acquisition: occurs in the time of birth.
“Form most States, one or both of these will provide the back-bone of their domestic nationality law”.
Most common types of nationality original acquisition
- by birth on a State’s territory (jus soli)
- by descent from a State’s national (jus sanguinis)
“In 1929 researches at Harvard found that 17 States had nationality laws based exclusively upon ius saguinis, another 25 had nationality laws based equally upon ius soli and ius sanguinis, and 26 States based principally upon ius soli with influence of ius sanguinis”.
“In 1935, another comentator found that 48 states had nationality laws based upon ius sanguinis, 29 states had nationality laws based upon ius solis and 2 states had nationality laws based upon ius soli and ius sanguinis”.
In Americas the ius soli remains dominant.
Example of State not using either exist
“Vatican City depends not by birth or by descent but upon appointment to a specified employment coupled with residence”.
Derivative nationality acquisition naturalization
Acquisition by circumstances such as:
- marriage;
- subjugation after conquest;
- acquisition of domicile;
- legitimation
“(…) thus, derivative nationality could include both the voluntary and the involuntary acquisition of nationality”.
Derivative nationality acquisition and International Law
- Redintegration: “restoration of the whole of something from a part of it”
- Annexation and Cession: Where a territory is ceded by one State to another which annexes it the inhabitants of that territory are considered by customary international law to acquire the nationality of the annexing State and to lose that of the ceding one, subject to realization by municipal laws”
Derivative nationality acquisition and Human Rights
Derivative nationality was included as a rule of International Law after the WWII and Universal Declaration of Human Rights in 1948, defined in the article 5, as we saw before. The idea was to constraint the exclusive state competence to recognize a nationality of an individual.
In certain situations, it is needed to guarantee a nationality to the individual who is in vulnerable situation, such as asylum, refugee and stateless.
Can an individual loose his nationality? Is there any possibility of an individual being denationalized?
TEST 2:
1) What is nationality? 
Nationality is an ethnic identity
Nationality is a family heritage
Nationality is undermined by the State Sovreignity.
Nationality is a juridical and political relation between the individual and the State
3) A Stateless person is:
Someone who lost its nationality because comited an international crime.
someone who is located in the territory of a country which is not of his own country.
Someone without anykind protection, nationally or internationally.
Someone with no effective or nationality.
4) Article 15 of the Universal Declaration of Human Rights (1948) establishes:
that every person has the right to change his nationality.
that everyone has the right to a nationality
that “no one shall be arbitrarily deprived of his nationality
that the State can deny its nationality for security reasons to its enemies.
5) The following itens define types of nationality regard to their original acquisition, except:
marriage
ius soli with influence of ius sanguinis
ius sanguinis
ius soli
6) All the the following options are related to migration. However only one better describe this fenomenon (choose the better answer):
“Migration is a freedom of movement and is the first and most fundamental of man’s liberty.”
"International migration is as old as human history and continues to define and reshape nations, cultures and the day-to-day life of many millions of people.”
“securitization is a technique of government which retrieves the ordering force of the fear of violent death by a mythical replayof the variations of the Hobbesian state of nature.”
“Migration is the oldest action agaisnt poverty. It selects those who most want help. It is good for the country to which they go.”
7) Universally migration is recognized by the following values, except:
Hospitality
Humanity
economic matter
Mutual Aid
8) In accordance with the International Organization for Migration (IOM), “the international law must draw many conventions at the international and regional levels” in order to guarantee the following, except:
human rights
humanitarian assistance
protection for the refugees
territory protection
9) The term migrant is usually understood to cover all cases where the decision to migrate is taken freely by the individual concerned for reasons fulfilled with the following elements, except:
necessity to improve their material or social conditions
personal convenience
necessity to improve the prospect for themselves or their family
intervention of an external compelling factor
10) Migrant can be “any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of": 
whether the movement is only involuntary
what the causes for the movement are
what the length of the stay is
the person’s legal status
11) It is a population movement, encompassing any kind of movement of people, except:
displaced persons
economic migrants
group of tourists
migration of refugees
Unidade 03 - MIGRATION LAW
What is migration?
The net migration rate is the difference between the number of immigrants (people coming into an area) and the number of emigrants (people leaving an area) throughout the year. When the number of immigrants is larger than the number of emigrants, a positive net migration rate occurs.
Many ways to face migration: statistically, historical, social impact, economic impact, labour, ECC.
Human Migration: John Kennedy Galbraith, an north American and Canadian native economist, a follower of the post-keynesian economics from an institutionalist perspective, said once about human migration, that, in my opinion, it’s a very good way to begin our lesson today and to summarize our map:
“Migration is the oldest action against poverty. It selects those who most want help. It’s good for the country to which they go; it helps break the equilibrium of poverty in the country from which they come. What is the perversity in the human soul that causes people to resist so obvious a good”.
(Indian guy talks about migration):
	Freedom of movement is “the first and most fundamental of man’s liberty”.
	Without it, other rights are precarious.
	Universally recognized values, such as: mutual aid, humanity, hospitality, comity, mutual intercourse, good faith.
	The world order depends on freedom of movement;
	Peace depends on freedom of movement;
	Freedom of movement has a central role to play in the modern global order.
	In sum, all are fundamentally interconnected and indivisible from one another.
“Migration has been an integral part of human activity for as long as people have inhabited the earth. Whether moving as individual, families or tribes, migration is an age-old response to the physical need for food, shelter and security and the psychological need for adventure and exploration”.
Understanding International Human Migration.
Migration has marked all periods of human history, but the phenomenal occurred just after the reordering of the geopolitical landscape with the creation of nation states.
It was after the Treaty of Westphalia when the state of nation was founded, that migration was introduced in the idea of something related with limits of the boundaries of the nation-state.
It was in the Treaty of Westphalia (1648) and the following new models of State that allowed human beings access to an incredible freedom of movement. As consequence, the way of hospitality to strangers, a characteristic of ancient cultures changed to the new society based on the idea of cosmopolitanism.
The Industrial Revolution, on its turn, highlighted this cosmopolitanism and a good example of this new pattern of relationship between “strangers” and nationals was a decision of the Supreme Court of the United States, in 1891, who upheld the right of the legislature to exclude foreigners if they were considered dangerous to the peace of the country.
How was the development of the international migration institutions?
It was during the 1st and 2nd world war, and the genocide crises that occurred, provoked an enormous impact on migration. 
During the 1st WW, in Ottoman Empire, the Muslims moved from the Balcony to Turkey, while Christians moved to other way.
The Ottoman Empire and the Armenians (1915)
International Organization for Migration (IOM) highlights the necessity of a regulation of a migration law, and then international law must guarantee and ensure that migration across international borders takes places in a human and orderly manner. The International Law must to draw many conventions in international and regional levels that apply to those involved in the migration process, creating the rights and responsibilities of the states in the protection of the human rights of migrants.
However, there is no center source where overall information is easily accessible. Legal instruments are spread across a variety branches of law: human rights, humanitarian law, migrant workers law, refugee law, law of the sea.
Who is the migrant? (IOM definition)
There is “no universally accepted definition of migrant”.
The term is usually understood to cover all cases where the decision to migrate is taken freely by the individual concerned for reasons fulfilled with the following elements:
	“personal convenience”
	None intervention of an external compelling factor
	Movement motivated by the necessity to improve:
	Their material or social conditions
	The prospect for themselves or their family
Migrant can be: “any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of: 
	The person’s legal status
	Whether the movement is voluntary or involuntary
	What the causes for the movement are; or
	What the length of the stay is”.
What is migration?
“The movement of a person or a group of persons, either across an international border, or within a state”.
It’s a population movement, encompassing any kind of movement of people, whatever its length, composition and causes; it includes migration of refugees, displaced persons, economic migrants, and persons moving for other purposes, including family reunification”.
Migration x Immigration
“A process by which non-nationals move into a country for the purpose of settlement”.
	This process can be spontaneous, guided or forced but what is essential is the intention of settlement. Immigrants are motivated to leave their countries, or habitual residence, for a variety of reasons (lack of local access to resources, desire for economic prosperity, to find or engage in paid work, to improve their standard of living, family reunification, retirement, weather, exile, conflict or natural disaster, or simply the wish to change one’s quality of life).
Unidade 04 - REFUGEES LAW
Maha, uma refugiada apátrida no Brasil: uma mensagem de esperança
A laissez-passer (French for "let pass") is a travel document issued by a national government or certain international organizations, such as the United Nations, European Union and the International Committee of the Red Cross (ICRC). A laissez-passer is often for one-way travel to the issuing country for humanitarian reasons only such as Restoring Family Links. Some national governments issue laissez-passers to their own nationals as emergency passports. Others issue them to people who are stateless, or who are unable to obtain a passport from their own government, or whose government is not recognized by the issuing country
Difference between Immigrants andRefugees.
Migration and the protection of the human rights law: 
	
Environmental change and natural disasters have always been major drivers of migration. However, climate change predictions for the 21st century indicate that even more people are expected to be on the move as weather-related disasters such as extreme precipitations and temperatures become more frequent and intense (IPCC, 2014), and changes to climate conditions impact on livelihoods.
While no internationally accepted definition for persons on the move due to environmental reasons exists to date, IOM has put forward a broad working definition which seeks to capture the complexity of the issues at stake:
“Environmental migrants are persons or groups of persons who, predominantly for reasons of sudden or progressive change in the environment that adversely affects their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad” (IOM, 2011:33).
People migrating for environmental reasons do not fall squarely within any one particular category provided by the existing international legal framework. Terms such as "environmental refugee" or "climate change refugee" have no legal basis in international refugee law. There is a growing consensus among concerned agencies, including UNHCR, that their use is to be avoided. These terms are misleading and could potentially undermine the international legal regime for the protection of refugees.
All persons moving for environmental reasons are protected by international human rights law. In addition, persons displaced within their country due to natural or human made disasters are covered by provisions laid out in the Guiding Principles on Internal Displacement. This coverage is contingent on the extent to which a country has adopted the Guiding Principles.
ULTIMA PROVA
When refugees stop being migrants?” except:
Their plea for asylum — admission across a border as protection against persecution — is not necessarily a humanitarian claim and should not be recognized as such.
Refugee, in the broad terms that were used before the 1951 definition, can not return ‘home’ or access rights guaranteed by a meaningful state-citizen relationship.
If a refugee's claim to asylum is a moral claim that is intended to separate refugees (who need admission) from migrants (who want admission) (Walzer 1983: 48).
When a refugee’s claim to freedom of movement goes beyond development to encompass humanitarian motives.
All the the following options are related to migration. However only one better describe this fenomenon (choose the better answer):
“Migration is a freedom of movement. It is the first and most fundamental of man’s liberty.”- coloquei conforme correção da prova online feita em abril
“International migration is as old as human history and continues to define and reshape nations, cultures and the day-to-day life of many millions of people.”
“Migration is the oldest action against poverty. It selects those who most want help. It is good for the country to which they go.”
“Securitization is a technique of government which retrieves the ordering force of the fear of violent death by a mythical replay of the variations of the Hobbesian state of nature.”
About International Humanitarian Law we can affirm that: 
It is a synonym to the international human rights law.
It is concerned with the development of education and health systems in all countries.
It is also known as ius in bello and intends to limit the use of force in the context of armed conflicts.
It is also known as ius ad bellum and dictates the circumstances in which international law authorizes states to go to war and exercise their sovereignty.
Universally migration is recognized by the following values, except: 
Mutual Aid.
Humanity.
Economic matter.
Hospitality.
The term migrant is usually understood to cover all cases where the decision to migrate is taken freely by the individual concerned for reasons fulfilled with the following elements, except:
Necessity to improve the prospect for themselves or their family
Intervention of an external compelling factor.
Necessity to improve their material or social conditions.
Personal convenience.
Considering the main characteristics of human rights, chose from the options bellow that which best fulfils the blanc space: “One of the main characteristics of human rights is ___________. In that sense, human rights refer to all members of the human species, without disctinctions of ethnical, national or social origin, nationality, age, religion, sexual orientation or any other condition. "
Universality
indivisibility
interdependence
historicity
What is nationality? 
It is an religious identity.
It is a juridical and political relation between the individual and the State.
It is undermined by the State.
It is a family heritage.
It is correct to say that: 
Humanitarian Law is a synonym of ius ad bellum and dictates the circumstances in which international law authorizes states to go to war.
Humanitarian Law is recognizable as ius in bello and intends to limit the use of force in the context of armed conflicts.
Humanitarian Law is a synonym to the international human rights law.
Humanitarian Law is responsible for the development of education and health systems in all countries
Someone with no effective or de jure nationality is: (choose the best answer) 
An imigrant.
A refugee.
A stateless person.
A citizen.
The following itens define types of nationality regard to their original acquisition, except:
ius soli.
ius sanguinis.
Ius soli with influence of ius sanguinis.
marriage.