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NATIONALI
AND STATELESSNESS
IN INTERNATIONAL
LAW

EDITION
NATIONALITY AND
STATELESSNESS IN
INTERNATIONAL LAW

by

P. WEIS
PH.D., DR.JUR.

with a foreword
by

- SIR HERSCH LAUTERPACHT


QC., LL.D., F.B.A.

Second edition

SIJTHOFF & NOORDHOFF 1979


Alphen aan den Rijn, The Netherlands
Germantown, Maryland U.S.A.
Copyright© 1979 Sijthoff & Noordhoff International Publishers B.V.
Alphen aan den Rijn, The Netherlands '

All rights reserved. No part of this book may be reproduced, stored in


retrieval system, or transmitted, in any form or by any means, electroni a
mechanical, photocopying, recording or otherwise, without the prior permission 0~
the copyright owner.

ISBN 90 286 0329 8

First edition published in 1956 by Stevens & Sons Ltd., London, U.K., and
under the auspices of the London Institute of World Affairs as No. 28 ofth
Library of World Affairs. e

Library of Congress Catalog Card Number: 79-89781.

Printed in the Netherlands


To the memory of my parents
CONTENTS

Foreword to the first edition XI


Preface to the first edition XIII
Preface to the second edition XVII
Cases XIX
Treaties XXVII
Statutes XXXI
Abbreviations XXXVII
Note XLI

PART ONE
The Conception of Nationality
1. "Nationality" and its Synonyms 3
A. Nationality and Citizenship 3
B. Ressortissants 7
C. Note on "Enemy Character" 9
2. Nationality in Composite States and Dependencies 13
A. Composite States 13
B. The British Commonwealth 15
C. British Protected Persons 18
D. Mandated and Trust Territories 20
3. The International Functions of Nationality 26
A. The Hague Codification Conference 26
B. The United Nations 28
C. Nationality as a Term of International Law 29
D. International Protection 32
E. The Duty of Admission 45
(a ) Nationals 45
(b) United Kingdom Immigration Legislation 49
(c) Former Nationals 53
F. Summary 59
VIII Contents

PART TWO
Municipal Law and International Law
4. "Exclusive Domestic Jurisdiction" 65
5. Decisions of International Tribunals 71
A. Nationality Decrees in Tunis and Morocco 71
B. Other Decisions of International Tribunals 75
6. Decisions of Municipal Courts , 79
7. State Practice and the Hague Codification Conference 82
8. The Views of Writers 85
9. Summary 88

PART THREE
The Public International Law of Nationality
10. Limitations on Conferment and Withdrawal of Nationality 95
A. Acquisition of Nationality 95
1. Original Acquisition 95
2. Derivative Acquisition (Naturalisation) 96
B. Loss of Nationality 115
1. In General 115
2. Denationalisation 117
3. Expatriation and Substitution of Nationality 127
II. Effect of Territorial Transfers on Nationality 135
A. Introduction 135
B. Universal Succession 136
C. Partial Succession 144 ..
1. In General 144
2. Cession 152
3. Decolonisation 153
4. Option 156
12. "Conflict Rules" 161
A. Introduction 161
B. Statelessness 161
I. In General 161
2. International Action 162
(a) On Statelessness 162
(b) On the Status of Stateless Persons 168
C. Plural Nationality 169
I. In General 169
2. Decisions of International Tribunals 170
(a) Earlier cases 170
(b) The Nottebohm Case (Liechtenstein v. Guatemala) 176
(c) The Italian Conciliation Commissions 181
(d) Conclusions 184
Contents IX

3. State Practice 186


(a) The Hague Codification Conference 186
(b) Legislation and Administrative Practice 189
(c) Treaties 190
4. Decisions of Municipal Courts 193
5. The Views of Writers 196
D. Conclusions 197
13. Proof of Nationality 204
A. In General 204
B. The Practice of International Tribunals 205
l. Introduction 205
2. Municipal Law of Evidence 206
3. Rules of Evidence 210
(a ) Nature of the Evidence Required 210
(b) Admission by Defendant 212
(c) The "Best Evidence" Rule 213
(d) Specific Methods of Proof 214
(e) Evidence of Naturalisation: the Question of Fraud 218
4. Conclusions 220
C. Internationally Accepted Nationality Documents 222
1. Passports 222
2. Consular Certificates 230

PART FOUR
Summary and Conclusions
14. Summary 239
15. Conclusions 246
A. The Existing Law (De Lege Lata) 246
B. Future Developments (De Pacto Ferendo) 250

APPENDICES
1. Convention on Certain Questions Relating to the Conflict of
Nationality Laws (The Hague, 1930) 257
2. Protocol Relating to Military Obligations in Certain Cases of
Double Nationality (The Hague, 1930) 262
3. Protocol Relating to a Certain Case of Statelessness (The Hague,
1930) 263
4. United Nations Convention on the Reduction of Statelessness 264
5. Convention on the Nationality of Married Women 270
6. Convention on Reduction of Cases of Multiple Nationality and
Military Obligations in Cases of Multiple Nationality 273
X Contents

7. Protocol Amending the Convention on the Reduction of Cases of


Multiple Nationality and Military Obligations in Cases of
Multiple Nationality 277
8. Additional Protocol to the Convention on the Reduction of Cases
of Multiple Nationality and Military Obligations in Cases of
Multiple Nationality 279
9. Convention Relating to the Status of Refugees (Geneva, 1951 ) 282
10. Protocol Relating to the Status of Refugees 297
11. Convention Relating to the Status ofStateless Persons (New York,
1954) 300

Bibliography 313

Index 323

About the author 339


FOREWORD TO THE FIRST EDITION

I gladly comply with the request of the author of this valuable treatise that I
should introduce it by way of a Foreword. Dr. Weis, who in the course ofhis
long association with the work of the International Refugee Organisation
and the United Nations High Commissioner for Refugees has acquired
practical experience of many aspects of the law of nationality and
statelessness, was, for that additional reason, particularly qualified to
undertake the task of writing what I consider to be the most comprehensive
modern treatment of the law of nationality that has appeared so far in the
English language. It provides in this respect a much-needed addition to
Dr. Mervyn Jones's book on British nationality and practice.
Dr. Weis' treatise is, in my view, a happy combination of doctrinal
analysis and a thorough presentation of legislative, judicial and govern-
mental practice of a very considerable number of States as well as of
international tribunals. A study of that practice, as the author presents it on
a wide comparative basis, reveals in conspicuous fashion some of the main
tendencies in the development of the law of nationality. Foremost amongst
them is the change of emphasis with respect to the function of nationality in
relation to the individual and the State. In the past, nationality was viewed
largely as a privilege, of a somewhat rigid and almost mystical character,
conferred by the State. It is now increasingly regarded as an instrument for
securing the rights of the individual in the national and international
spheres. The changes which English law has undergone on the subject
provide an interesting illustration of these tendencies. While in the first half
of the nineteenth century the law of England still adhered to the doctrine
nemo potest exuere patriam, the Naturalisation Act of 1870 made it possible for a
British subject to divest himself of his allegiance by becoming naturalised in a
foreign country. The Nationality Act of 1948 went farther in the direction of
doing away with the absoluteness and uniqueness of nationality. It not only
permitted naturalisation; it expressly provided that naturalisation abroad
does not necessarily result in loss of British nationality. It was explained at
the time when the Act was introduced that in some cases a foreign
nationality is acquired for purposes of convenience in matters of business and
otherwise, and that such a step need not necessarily be regarded as pointing
to the desire to abandon active attachment to the country of origin. The
deliberate policy-adopted by many countries largely in pursuance of the
provisions of the Hague Convention of 1930 on Conflicts of Nationality
XII Foreword

Laws-of avoiding legislation resulting in statelessness illustrates, in a


different sphere, the desire to recognise a functional conception of
nationality as the means to an end rather than as an end in itself.
These developments must affect international law in various directions-
in particular in relation to the rule of nationality of claims. That traditional
rule of international law on the subject and the decisive importance which it
attached to the continuity of nationality of the actual claimant at the various
relevant stages had their origin in the view that a change of nationality
might be abused for the purpose of enabling a claimant to obtain the
protection by means of political pressure or armed force, of a more powerful
State. These considerations no longer apply with the same cogency when the
protection that may be thus obtained is protection not by force but by means
of recourse to an international tribunal administering rules of international
law. Some such considerations may explain the qualifying observations of
the International Court of Justice when, in the Advisory Opinion on
Reparation for Injuries Suffered in the Service of the United Nations, it drew
attention to the "important exceptions" to the rule of nationality of claims
and to the existence of cases in which protection may be exercised by a State
on behalf of persons who do not possess its nationality.
This is only one example of the problems illustrated by the practice which
Dr. Weis examines in his treatise. It is a work which, I am confident, will
firmly establish his reputation as one of the leading authorities in this branch
of international law.

The Peace Palace, The Hague H. Lauterpacht

]un£, 1955.
PREFACE TO THE FIRST EDITION

The subject dealt with in this book is that of the nationality of individuals.
The term "nationality" is also used with reference to corporate bodies such
as companies, and objects such as ships and aircraft. This use of the term
"nationality" may, however-as is done by some writers-be regarded as a
figure of speech. The term "nationality", derived from "nasci", "to be
born", is obviously meant to refer to animate beings. The acquisition,
change and loss of what is styled the "nationality" of corporate or inanimate
entities is governed by rules which are unrelated to the matters with which
this book is concerned.
The subject of nationality has been presented from the point of view of
international law. According to the unanimously accepted view, the
determination of nationality is a matter which falls within the domestic
jurisdiction of each State and is regulated by its municipal law. How, then,
does international law come into the picture? As will be seen, nationality,
though determined by municipal law, is itself a concept of international law.
The co-existence of States and the existence of international relations
constitute-at least in modern times-a prerequisite of the concept of
nationality. The very reason why States are anxious to determine who are
their nationals is their desire to distinguish and delimit them from those who
are not their nationals, who as a rule are nationals of other States. As
Professor Scelle says in his Precis de Droit d~s gens (at p. 66):
Determiner Ia nationalite des individus c'est, non seulement determiner quels sont les
nationaux, mais aussi quels sont les non-nationaux ou les etrangers. C'est done indirectement
fixer le statut international des non-nationaux et, par consequent, Ia competence a l'egard des
sujets de droit de Ia communaute intcrnationale des autorites gouvernementalcs etrangeres.
If, then, nationality is a notion of international law, the question of its
functions in in ternationallaw arises and is examined in this book. It follows,
further, from the relevance of nationality according to international law that
the way in which nationality is determined by the municipal law ofStates is
not immaterial from the point of view of international law. The question of
the relationship between municipal law and international law in this field is
also, therefore, investigated. The nature of nationality as a matter of
domestic jurisdiction does not preclude the existence of rules of international
law relating to nationality. As in any other field, the sovereign jurisdiction of
the State in matters of nationality may be restricted by the conclusion of
treaties concerning nationality, which, to that extent, make the law of
XIV Preface

ionality a question of conventional international law and, so far


na t . f"' . as
multilateral treaties are concerned, a questiOn o mternatiOnallegislation"
The most important multil~teral agreement in t~e field o~ nationality:
namely, the Hague ConventiOn .of 1930 concermn~ <:ertam Questions
relating to the Conflict ofNationahty Laws, lays down m Its first Article the
rule of the exclusive jurisdiction of States in matters of nationality, with the
following qualification: "This law ~hall be reco~nised. by oth~r States in so
far as it is consistent with internatiOnal conventiOns, mternatiOnal custom
and the principles of law generally recognised with regard to nationality.':
These three elements are analysed in this book.
The subject of nationality has been treated by writers mainly from the
aspect of municipal law, or, as for instance by Dicey, as a question of conflict
oflaws or "private international law." The question of the existence and the
nature of rules of international law, i.e., of "public international law"
relating to nationality has, so far as is known to the writer, not yet been'
thoroughly examined by publicists. While specific problems in this field have
been treated by writers, the subject does not seem to have been investigated
in its entirety. This work is an attempt at such an investigation.
Lack of nationality, "statelessness", is the result of the domestic character
of nationality law, of"negative conflicts of nationality laws". It is, therefore,
closely linked with the problem of nationality, and a part of this book is
devoted to it. Recent international efforts for the regulation of the status of
stateless persons and the elimination or reduction of statelessness are
reviewed in this connection.

The views expressed in this book, which is based on a thesis entitled


Nationality in Public International Law approved by the University of London
for the degree of Doctor of Philosophy in Laws, are solely the personal views
of the author, and they do not reflect in any way the opinion of any
organisation with which he is connected.
The author wishes to express his deep gratitude for the valuable advice
and criticism he has received from Professor Sir David Hughes Parry, M.A.,
LL.M., D.C.L., Director of the Institute of Advanced Legal Studies at the
University of London; from Dr. Georg Schwarzenberger, PH.D., Vice-
Dean, Faculty of Laws, University College, London; and from Mr. Clive
Parry, M.A., LL.B., Fellow of Downing College, Cambridge.
He would also like to thank the Legal Advisers of the Home Office,
Lo?don, for the information given to him, and to acknowledge gratefully the
as~I~tanc? rendered to him in his research by the Librarian and staff of the
Bntish Library of Political and Economic Science of the London School of
Econ~mics and Politic~ Science, by the Superintendent and staff of the
Readmg Room of the Public Records Office London and by the Director
and st~ff of t~e United Nations Library, Ge~eva. ' .
. He Is P.ar~Icularly indebted to the Foreign Office, London, for grantm.g
him ?err:mssiOn to state that, where owing to current regulations the sourc~ IS
not ~nd•cated, r~f?rences to British practice are based on informatiOn
provided from Bntish official sources.
Preface XV

The author expresses his sincere thanks to Mrs. Gladys Lyons,


B.Sc. ( Econ.), for her invaluable editorial assistance, and to Messrs. Stevens
& Sons, Limited , the Publishers, for the indulgence they have shown to him
and the care they have taken in the preparation of this book.

Geneva, P. Weis

December, 1954.

While this book was going to press thejudgment of the International Court
of justice in the Nottebohm Case (/ .C.]. Reports, 1955, p. 4) was published., in
which the Court dealt with certain questions of nationality law. References
to this case have wherever possible been inserted in appropriate places by
means of additional notes.

July, 1955. P. W.
PREFACE TO THE SECOND EDITION

Twenty-two years have passed since the first edition was published. The
decision of the International Court of justice in the Nottebohm Case became
known only when the book was in print and could therefore receive only
cursory treatment by additional notes. It can now receive the fuller
treatment it deserves.
Since 1955, many countries have enacted new nationality legislation; the
newly independent countries have embodied nationality provisions in their
Constitutions and enacted nationality laws.
In the international field and, more particularly, in that of international
adjudication, the d ecisions of the Italian Conciliation Commissions are
important. In cases of dual nationality, they give expression to the "link
concept" which underlay the decision of the World Court in the Nottebohm
Case.
As regards international legislation, the United Nations Convention on
the Nationality ofl\1arried Women was adopted and has entered into force.
On the regional level, the European Convention on Reduction of Cases of
Multiple Nationality and Military Obligations in Cases of Multiple
Nationality was adopted in 1963, has entered into force and has since been
supplemented by two Protocols. The most important development in this
field was the adoption, in 1961, of the United Nations Convention on the
Reduction of Statelessness. It constitutes a step, though a modest one,
towards the realisation of the "right to a nationality" proclaimed in the
Universal Declaration of Human Rights. It has unfortunately so far been
ratified by few States only but a tendency to avoid the creation of
statelessness is noticeable in a number of recent nationality laws. As the
International Covenant on Civil and Political Rights of 1966 stipulates in its
Article 24 paragraph 3: "Every child has the right to acquire a nationality,"
the growing number of States which become parties to this major instrument
are, indeed, bound to take action to this effect.
It is believed that a certain stage has now been reached in the
development of international law regarding nationality.

Geneva P. Weis

September, 1978
CASES

Aaland Islands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 73


A.B. v. M.B......... . ... ....... .. . .... . . ... .. ......................... .. . ...... ... 140n.
Acquisition of Polish Nationality .............. . .. .... ....... ..................... 75, 199
Administrative Decision No. I (U.S.-Austria-Hungary Tripartite Claims Commission) 14-n.
Administrative Decision No. I (U.S.-Germany, Mixed Claims Commission) ......... 30, 43
Administrative Decision No. V (U.S.-Germany, Mixed Claims Commission) ...... . 5n., 76
Afroyim v. Rusk.. .. ... . ...... .......... .. ........... . . . .... . . . .. . . .. .. . .......... ll8n.
Agapius v. Sanitary and Quarantine Council of Egypt .... . . . ........ ....... ........ 141-2
Alexander Claim....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17H
Amand, & . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . lOln.
American Insurance Company v. Canter ..... . .......................... . .. .. 146n., 150n.
Anderson and Thompson Claim .. . . . . . .. . . . . . .. . . .. .. .. . . .. .. . . . .. . . . .. . . .. .. .. 105, 106
Angarica Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209n.
Apostolides v. Turkish Government.. .. . . . . . . . . . . . . . . . . . . . . .. . . .. . .. . .. . . . .. . . .. 131, 134
Arata (Don Agustin) Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Archuleta Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216n.
Attornery-General of Canada v. Cain ......................... ... .... . .............. 45n.
Attorney-General of Palestine v. Goralschwili et Al........ . . . ...... .. . . ................ 22
Auchmuty (Doe d.) v. Mulcaster . ...... . ..................................... 146, 156n.
Austrian Nationality Case . ... ............. . ..... .. . ....... ... ........... ... . ...... .. 150
Austrian Nationality (No. 2) Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Austro-German Extradition Case . .. . . . .. . . .. . . .. . . . . .. .. . . . . .. . . .. .. . . .. . . .. . .. 150, 156
Azamel v. Panayatopoulo ....... . ............... ...... . . ..... . .. .. ....... .. . .. ... . 23H

Barcelona Traction......................... . . . .. .. . .... . .... .. . . ... ... 33n., 179n., 200n.


Barcena Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 06
Bautista, & . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n.
Bek-Marmatscheff v. Koutznetzkoff..... ... ........... .. . .......... . ... ............ 120n.
Bello Corrunes, Tlu. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Bezdikian v. Turkish Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Bicknell v. Brosnan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146n.
Blumenthal v. German State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175n.
Boubez v. Dame Edra Sabbagh Bey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
Bourbon Case. See de Bourbon-Parma, etc.
Bowen v. Mexico ....... . ....... . .......... . ............... . .................. . . . ... 106
Boyd v. Nebraska, ex rei. Thayer... ................ ... .......... 139n., 146n., 148, 157n.
Brignone Claim......... ... ....... .. ........ ... . .... . ... . . ...... .. .... .......... . . 174n.
Brockway Claim ........... . ......... . .. . ............... . ......... ... .... . .......... 233
Brown v. United States of America . ......... . ........ . ... ......... . ....... .......... 142
Bruce, Re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146n.
Bulla, Re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226, 229
Buzzi Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 218-19
XX Cases

Calvin's Case . ... ....... . .. . .... · ···· ·· · ·· · ······· · ······ IOn., 13, 30, 31, 80, l28n., 226
Cameron Claim ... . . .... . .... ... .. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · 214, 21 7, 230n., 235
Campbell v. Hall .......... · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . ..... 139
Canevaro Case .. . ....... . . .. ........ . ············· · · · ······· ·· · 170, 171, 191, 212n., 233
Cayuga Indians, The.... . ...... · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . . . . . . . . 60
Cestra Claim ..... ... ... . .. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·...... 183
Chamberlain's Settlement, Re ..... ... . · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·..... 80, 194
Chinn Case ..... . ........... · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . . . . . . 208
Chorzow Factory Case (Claim for Indemnity, Merits) · · · · · · · · · . ....... . .. . .... ... .... . 36
Compulsory Acquisition of Nationality Case.················ · ···········........... liOn.
Contzen v. United States of America . . · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·........... 143n.
Corbier, Re ........ .. . . .... · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·........ 37n.
Costello Claim ..... . .. ...... ... · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . . . . . . . . . 38n.
Criado's Claim................. . . ···· · ·················· ···· ········ ·· ···· ... .. . .. 209n.

de Born (Baron) v. The Serb-Croat-Slovene State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175


de Boubon-Parma (Prince Elie) v. Auroux es qualite et Ministere public . . . . . . . . . . . 7-8, 9
de Brissot and de Hammer's Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Delgado (United States of America) v. Spain......... . . . .... .. ................ 210n., 213
de Montfort v. Treuhaender Hauptverwaltung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174-5
de Ruiz Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Deutz (Adolph) and Deutz (Charles), Claim of......... . ....... . . . ............... . . 216n.
Di Ciccio Claim ................ . ....... .... .. .. .......... . ........... . .. . ...... . .. . 183
Dickson Car Wheel Company Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Doe v. Acklam. See Thomas (Doe d .) v. Acklam.
- v. Arkwright. See Stansbury (Doe d. ) v. Arkwright.
- v. Mulcaster. See Auchmuty (Doe d.) v. Mulcaster.
Dominguez' Claim ....................................... . ... . .................. ... 210
Dominik's Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114n.
Dyches Claim .. . . .. ....... ................ ...... . .... . . . . . ..... ..................... 217

Eakin Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216n.


Eliott v. Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Esteves Claim.. ...... . ... . ...................................................... .. .. 233
Exchange of Greek and Turkish Populations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Expropnate
. d R e1'1g10us· Properues · Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206--7 , 233
Extradition (Uruguay) Case .... . ............................. . ....................... 22

Falla-Nataf and Brothers v. German Government .... ...... ...... . .... . ... .. ........ · · · 9
Fassbender v. Attorney-General. ..... .. ...... . .. ... . . ......... .. .... . ........... 81, !94n.
Faulkener v. Hill.................. . ......... .. .................................... !46n.
Feiner, In Re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . !50
First East African Asians Case (S. M. L. Patel and 24 others) .. . .. . .. .. . . ... . ..... ··· 51n.
Flegenheimer Claim.......................... . .................. . 78, 184, 21o-12, 2351
F1utie Claim 0 0 0 o 0 o o 0 0 0 o o 010 0 o 0 0 0 0 0 O 0 0 0 0 O O 0 O O O °
O O
209, 21
O O O 0 O O O 0 0 O eO O O O O O O O O 0 0 10 0 0 0 o o 0 0 0

Fox, Re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I76n.
Freyberger, Ex p. (The King v. Commanding Officer 30th Battalion Middlesex Regiment,
ex. p. Freyberger) .. . ....... .. ............... . .. .. '........................... SOn., 194

Ganapini Claim ......... . .............. . ... . ..... . .. . .... . ... . ..... .. .......... · · · · · ;~;
Garay Claim ........................................................ · · · · · · · · · · · · · · B
221
German Interests in Polish Upper Silesia (Merits) .......................... 47n., 20 '
Germany v. Lithuania. See Nationality of Certain Persons, etc.
- v. Poland. See Interpretation of the Minorities Treaty. J95
Gilroy, Ex p. ...... . .. ... . . .. . ............ .. ..... . .. . .......... .. ........... . .. 8ln., 50
Gonzales v. Williams . .. .. ...... .. ... ..... ........ . . . ... ............. .. .. ········· ··· ·
·--------~-------~=+e

Cases
XXI
Gout and another v. Cimitian . .. .. .
· · · · · · · · · · · · · · · · · · ..... . . . ......... . ... . ...... . 146n.
Graniero C laim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Grigorian v. Bulgarian State...... ... ... · · · · · · · · · · · · · · · · · · · · · · 183
Gschwind v. Swiss Confederation ..... . . : : :::: : ::::::::::::::::: :: ::: ::::::::::: : ::. ;;7
1

Hahn v. Public Trustee .. .. ...... . ........... . ..... ... .. . . ......... .. ...... . ........ . 80
Ha~ ton CI~im ... : ...... . . .. ... . .... . ... .... .. ..... .. . ... . ............... .... ... . .. .. 2 IO
Hem v. H1ldeshe1mer Bank ... ......... . ........... . . .... .. ... ... ... ... .. . ... . 76 80 175
Hendry's Case . ...... .. ... .. ...... .... ..... . .. .. . ...................... . .. . . . . .. .' .. . ' 21 3
Hilson v. Germany.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Hilton v. Guyot....... . .... ... .. ..... .. . . ... ... . .. . · ·. · · · · · · · · · · · ·· · · . ···lOin
Hirschenhorn v. Attorney-General . .. ... . ... . ... . .. . :::::: ::::::: : ::::: :: :::::: :::: 162n:
Hoffman, Re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Honey Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187n.
Hurst (United States) v. Mexico .. ... . .. ... .... . ..... . .. :::::::::::::::: : ::::: : : :::. 38n.
Hussein v. Inspector of Prisons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140n.

Inglis v. Sailors' Snug H arbor....... . .... ... ................. .. .. 81, 146n., 150n., I56n.
Inoye Kanao v. The King......... . . ....... ..... .. ......... .. . . ... . .. .. .. . ... . .. .. 194n.
International Status of South-West Africa .... ... .. . .. ... .... .......... ... ..... . . . 22, 24n.
Interpretation of the Minorities Treaty (Germany v. Poland) . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Isaacson v. Durant (Re Stepney Election Petition) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Janson v. Driefontein Consolidation Mines, Ltd... .. . . . .. .. . ........ . ... ........... .. I ln.


J apan v. O'Gyong Hi . . . . . ... . ..... .. .... . ... . ........ . ....... . . . .... . . ... .. .. . . . . 148n.
Jarr (United States) v. Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38n.
Jaworzina Boundary Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14n.
Jessie, Thomas F. Bayard and Pescawha, The Schooners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 13
Joyce v. Director of Public Prosecutions ... . . . . . . . . . . . . . . . . . . . . . . . 8n., 22, 195, 225-6, 227
Julhiard v. Secretary-General of the United Nations............. . .. ... . . .. .. .. ....... 176
Jupiter, The.. .. ... . ... ... . .. ... .... .. .. .. . ... . . . .......... .. ... .... .. .. .. . ........ JOin.

Kahane (Successor) v. Parisi and Austrian State.... . .. . .. . . ... ... .. .. . . . . . . . .. 8- 9, 229n.


Kanda v. The State........ .... . .......... ..... . ... .......... . .. ............ .. .... 148n.
Kawakita v. United Sta tes ... ...... . .. .......... .... .. . .. .. .. . .. .... ..... . .... . ... 195-6
Kawato, Ex p. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12n.
Kennedy v. Mendoza-Martinez... . .... .... . . ...... . .. . . ...... ..... . ....... . ..... .. 118n.
Khattab v. Christo Calliafas. ... ...... .. .............. . ....... .. . . . . ............... 150n.
Kidd Cla im . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216n.
King (The) v. Home Secretary ex p. L. and Another ..... .... ..... . .... .. .. lin., 122, 143
Klemp C la im . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . .. . . 207, 208, 209, 232, 234
Kramer v. Attorney-General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 194
Kuhnagel C la im. . .. ....... . . . .... ... .. .... ..... . . . .. . . ... . .... . .. ...... . .. . . . . 209, 219
Kurz, Re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150n.

Laurent Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209n.


Lebret Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 174
Lempert v. Bonfol. . . ... ... ... ... . . ........ .. .. ......... . .. .. . . ... . .. .... . ... . 89, 120-2 1
Levenson Claim. See Turkish C la ims Settlement.
Levi d'Ascona Claim ... .. .. .... . . .. .. ... . .. ... ..... . ... · ·.····· · · .. . · .· . . ... . . . .... 12n.
Levi ta v. Federal Department of Justice and Police. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Lichnowsky (Prince of). See German Interests in Polish Upper Silesia.
Liebmann's Case (The King v. Superintendent of Vine Street Police Station,
ex p. Liebmann) .............. . .. .. . . ...... .. .. .. ...... . ...... .... . . ··· ·· .. ... . . .. . .. .. ... . . 11 n, 79
Liechtenstein v. Gua temala. See Nottebohm Case.
Lizardi Claim . . ....... .... .. .. . .... ..... .... .... ..... · . · · · · · · · · · · · · .. · . . . . . . . . . . . . 209n.
XXII Cases

Lombroso Claim . .. .... .... · ········ ···· ············· ··· ·········· ···· ············.. 183
Lotus The .. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · 96n lOin
Low~nthai ·~~d·O;h~~· ~: ·A~~~~~~y-General · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . . l i~., 122
Luczak v. Basel Stadt ........... · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . 120n.
Luria v. United States of America .. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ... 30-31
Ludlam v. Ludlam . ... .......... ··· ········· ···· ·· · ······· ······· ···· ··· ······· · ... 8In.
Lynch Claim .. . ... . . . .. .... .... ... ... .. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · 30, 210, 234-5
Lynch v. Clarke . ... . ... ... .... . · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·... 8In.

McConnell v. Hector. .. .... ... .. . . ·········· · ········· · · · ·· ·· ··· · ········· · ··· · .. . . lin.
McCready Claim ................... · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . . . . . . 39n.
Macdonald's Case.................... · · ·· ··· · · · ··· ·· · ······················ · .. . 80n., 194
MacKenzie v. Germany .. ..... ..... . ··· ·· ··· ······· ····· ········ ·· ······ ····· .... . 172-3
MacKenzie v. Hare . . . . . . . .... . . ... .... ·.········· ·· ··············· ·· ····· · .. . . ... liOn.
Madan (United States of America) v. Spain ... ····· ········ · · ·· ····· ······ ....... . . 210n.
Mangold's Patent, In the Matter of ........ . · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . .. . . ... . . . 143
Maninat Claim ..... ... ... ..... . . ... . .. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . . . . . . . 174n.
Mantin Claim .. . .. . .................. ···· · · ··· ··· · ······ ·· · ··· · ···· ·· ·· ··· · ...... . . 218
Marburger v. Minister of Finanace ............... · · · · · · · · · · · · · · · ·. · · . .. . .... . .. . .. 150n.
Markwald v. Attorney-General ..... ... . ... .. .. ... ..... · ..... · .. ·. ..... . . . ..... .. . . . 19n.
Martello Claim ..... . . ... ........ ........ . .. .... · . · · · · · · · · · · · · · · · · · · · . . . . . . . . . . . . . . . 106
Martonnelli Case .. ..... . .. ... .... .. .. . .... . ..... ..... .... · · · · · · . . . . . . . . . . . . . . . . . . . . . 50
Massiani Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174n.
Mavrommatis-Jerusalem Concessions Uurisdiction).. ...... ..... ...... .. . .. .. ...... . . . 35
Mayor of Lyons v. East India Company . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .. 148
Mazzoni's Claim.... ....... ...... .. ... ... ..... .... ............ . .. ...... . .... ....... . ... . .. ......... 183
Medina Claim.... . ... ... . . ............ .......... ... 196n., 206n., 208-9, 209n., 212, 218

Meerauge Frontier Question (Austria v. Hungary)..... ........... ..... .. .. ..... .. . .. l4n.


Memel Territory- Nationality of Certain Persons. See Nationality of Certain Persons, etc.
Menghi Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Merge Claim ... . ..... ..... ....... . ...... . ....... .. .. ... ... .... . . . .. .. 28n., 181-3, 229n.
Messih v. Minister of the Interior. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Miliani Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174n., 185
Minor v. Happersett.......... . . . ... . ........... . .. .. .. ... ....... .. ..... 4n., 3In., l46n.
Munroe Claim .................. . ...................................... . . .. . .. ...... 217
Murray v. Parkes. . .. ... . ....... .. ... . ........ . . . .. . ....... .. .......... 146, 150n., 156n.
Musgrove v. Chun Teeong Toy. .... . ............ . ..... . ......... .... ........... .. .. 45n.

Najera Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
National Bank of Egypt v. Austro-Hungarian Bank. .... .. .. .. ...... . ...... .... . . .. .... . 9
Nationality Decrees in Tunis and Morocco .... ... ... . ... .... 67n., 68, 70, 71-5, 82, 88, 91
lOin., 240n., 257
Nationality of Certain Persons (Memel Territory) (Germany v. Lithuania) . . . . . . . . . . 135n.
148, J52n.
Netherlands South Africa Ry. v. Fisher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . lin.
Nijhikawa v. Dulles .. ..... .. ......... . .. .. . . ........................... ..... ...... J34n.
Noble Claim ...... .. ....... .. .. . . ............ .. . .. ............................. .. ... 213
North American Dredging Company of Texas Claim . . ......... .. ... . ... . .. .. .... .. 4Jn.
Nottebohm Case (Liechtenstein v. Guatemala) (Second Phase) .... . ... 31, 36, 77-8, lOOn.
ll3n., 176-181, 184,201,219-20, 220n., 222n., 244

Occelli Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106


O'Mealey v. Wilson.. ..... .. . .... . .. ... ..... ..... . . .. .................. . .... . .. .. .. Jln.
Oppenheimer v. Cattermole (Inspector of Taxes).... .. ... .... ... .... .. . . . ......... 122~3
Oswald (Heirs of) v. Swiss Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Cases XXIII

Panevczy -Saldutiskis Railway Case: . . .......... .. ........ .. . . . ... ........ . . ..... .. . 3.'>--6
Parker Claim . . ......... . . . ... . ....... .... .... .... . ..... ..... . ...... 209, 210, 212, 220-1
Parounak and Parounakian v. Turkish Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Peinitsch v. Gennan State and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142, l50n.
People tJC rtl. Choulakian v. Mission of Immaculate Virgin . . . . . . . . . . . . . . . . . . . . . . . . . l34n.
Perkins, Secretary of Labor, tt AI. v . Elg. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Persit-Keller v. German Federal Republic. . . .... . . .... ..... . ......... . ... ....... . . ... . 43
Pietras, /11 Re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l34n.
Pini v. Pini . ... ................. .. . ... .... . . . . . . . ... ... .......... .. ... ... . ..... ... l4ln.
Pinson (France) v. United Mexican States .. . ... . . . .. . . . . .. 77, 106, liOn., 174, 200n., 206
207-8, 210, 217, 222n., 232, 234
Platen Hallermund (Count), Ca~ of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Pollak v. Land H~ .. .. ... . .. . ................... . . . ... .. .... . ... ... .... .... . . . .. 150--l
Porter v. Freudenberg ............ . ... . .... .. . . . . .... .. . .. . . ... .. . ..... . .... .. . .... . lin.
Prefet de la Gironde v. Lima Maytt. . . . .. ... . . . .. . . ..... . . .... . .... . . . . .... ... . ... 232n.
Puccini Claim ..... .. . . . . . . . . . . . ... .. .. .... . ....... . .... .. .. . ... .. . .. . .. .... .. .... .. 183

R. v. Brailsford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
- v. Burke, Casey and Mullady . . . . ...... .... . . ......... . ....... .. .. . ... . . . ... ... ... 228
- v. Christian . . ..... ...... ... ... .. ....... .... . .. . . .. . .. .... ... . ........ ... . . . . .... . . .22
- v. Friedmann ............ . . .. . . . ...... . .... . .... .. . . ....... . .. . . . .. .. .. .......... 194
- v. Ketter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 23-4
- v. Lynch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BOn.
- v. Schievcr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . lin.
- v. Soon Gin An .. . . ..... .... .. ... ....... ....... . .. . .. . .... .. .... .... . ... .... . 45n., 50
Rajdberg v. Lcwi ... . .... ... ........ .... . .. . . . .. ... ... .. .......... . . .... .... . .. ..... 121
Rambolcti Claim...... . .. . . . ...... . . . .. ... ...... .. .... ... .. . .... .. . . . . .. . . . .... ..... 183
Rau, & . ... .... . . . ... . ..... . ..... .. . . . ... . . ... .. .. .... .......... ... . . . . .. ... . .... .. 106
&gina v. Secretary of State for the Home Department and Others tJC p. Bhurosah .. . .. 225n.
&gi1111 v. Secretary of State for the Home Department tJC JHUII Thakrar . . . . . . . . . . . . . . . . 51
Reparation for Injuries suffered in the Service of the United Nations ..... . 36n., 39-40, 187n.
Richards v. Gttrnany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l33n.
Righu of Nationals of the United States of America in Morocco . . . . . . . . . . . . . . . . . . . . . 72n.
Rimpc:lt v. Clarkson.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Romano v. Comma ... . ..... . .. ... . .. . ...................... . ............... .. 6n., 14ln.
Rosenthal v. Eidgjustiz../und Polizeidcpartemcnt ............ . ... . ................ ... 121
Ro., & . ... ... . . .... . ... ....... . .. . . ........ . ... .. . .. . . ......... . ............ .... . 43n.
Rowe v. Tlll Brit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Ru:inan Perc and Sons v. Franzmann . ...... . ... .... ....... . .... . . . . ........ . . . . 207, 229
Ruspoli Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
RUJISC'I aaim . . . .. .. .. ... .. .... .. . . .. .. . . . ...... . .... ....... . . ...... .. .. . . 32, 204n., 207

Sa.ad v. T abet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229


Saikaly v. Saikaly . .. . ... .. . ..... ........ . ..... .. . ... ... .. . . . ... . . . . . . .. .'. . . . . . . . . . . . . 22
Salem Claim (United States of America v. Egypt} . .. . .. . .. .... .. 134, 171-2, 185, 219, 235
Salvoni Estatt (!laim...... . ... . . . . . ... ... . ....... ...... . .. . . . . . ... .. . . .. . .. . ... .... . 183
Santia ~im . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Sarli Claim. . ...... . ... .. . .. . . ..... .. . .. . .. .. . . ....... ... .. . .. . .... .. . . ..... ... .. . .. 106
Savorgnan v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195n.
Sawyer v. Kropp. . . ........... . ... . . .. .. .. .. ...... . ... . . .... ..... ... .. . . ... ..... .. 194n.
Schelling, van der v. U.S. News and World Report, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 195n.
Schncldcr v. Rudt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118n.
Sttnnd East African Asians Case (H. G. Patel and 4 others) ........... . .. .. . .... .... 51n.
Sewe-D Claim .• . . ... . ... . . . . .. . . .. . .. .... . ... . .. ........ . ... ... .... ... ...... .... .. 216n.
Shanb v. Duponr. ... . . . . .... . . .. . . . .. . . .. ....... .. ... .. . . . .. . .. ... .. .. . .... ... ... l46n.
Shedden v. Patrick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99n.
XXIV Cases

Shifris Estate of . .. ···· · ··· ·· ···· ·· · · ···· · ··· ·· ·· ··· · ··· ···· ····· ··· ···· ·· ·· · ··· ·· 140n.
Six N~tions Indians of Ontario (Logan v. Styres et AI. ).. . . . ..... . ..... . . .. . ... . .... . . 60n.
Slaughterhou e Cases. . · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · 34n.
Sobhuza II v. Miller .. · ·· ···· · ·· · ··· ·· · · ···· · ·· · ···· ·· ·· ······ ·· ·· · ·· ·· ········ · l9- 20n.
. . .. ... ... .. .. .. .. . ... ....... ... . .... 209 215 222
So lis Cla1n1 . . . . . . · · · · · · · · · · · · · · · · · · · · . ' , n.
South-West Africa, International Status of. See InternatiOnal Status, etc.
Spanish Zone of Morocco Claims· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·. . 39n.
Spaulding Claim ....... · ······· · ·· · ····· ······ · ·· ···· ···· · ·· · ·········· · ··· ·· 183, 229n.
Sparenburgh v. Bannatyne · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·.. lin.
Stansbury (Doe! d. ) v. Arkwright . · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·.... 146n.
State v. Manuel . . . ... · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·. . 4n.
Stevenson Claim ... · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · 174, 187
Stoeck v. Public Trustee . . .. . ·· · · ·· ····· · · ··· ··· ·· · ··· · ·· ·· ···· · · · · · ·· ······ · 79, 80 90n
Suwalsky the Bankrupt v. the Trustee and the Official Receiver. . .. ... ... ... . ..... .. '225n:

Taamy (Marie) et AI. v. Adele Taamy et AI. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . .. . ..... . .. 219


Tattler, The . . . . ... .. .. .. . · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · 37-38
Tcherniak v. T chcrniak ... .... · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · 120, 224n.
Tellech, Re . ... . ......... · .. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·.. .. 175-6
Thomas (Doe d.) v. Acklam . . . . .. .. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·. 146, 156n.
Three Spanish Sailors Case .. .... . .. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . . . . . . . . II n.
Tout, In re .... ..... ....... . ... .. . · . · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·...... liOn.
Toyota v. United States ............ . .... .. ·················· · ·· · · ·· · · ·· .. . ..... . .. . . 5n.
Trop v. Dulles . .. .. . .... . ....... ... .... · ·· · ··· · · ··········· ·· · ··· ··· ·····.... .. . .. 118n.
Tucciarone Claim . . . . . .. . ... . ... .. . . . . .. . . · .· ········ · · · ··· ···· · ··· · · ·· . ...... .... . . 183
Tunis and Morocco Case. See Nationality Decrees, etc.
Turri Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Treichler's Case. See Nationality of Certain Persons, etc.
Turkish Claims Settlement (United States of America v. Turkey) . .. . . ... .. ... .. . ... .. 235

Udell Claim ... .. . ... .... . .... ..... . ..... .. ........ . ............. . .... ... .... . . .... . 214
Ulleram v. City of Heidelberg. . .. . . .. .. . ...... .... . ... .. .. ............ . .... .. ..... 150-l
Ullman (Mathieu) et Nathan Ullmann v. Ministere public ... .. . ... . ...... . . ... .. .. 106-7
Underhill Claim 229
United States ex rei. d'Esquiva v. Uhl . .... . .. . .... ... .. . ... . ...... . . ... . .... ..... 142n.
- ex rei. Huda k v. Uhl. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48n.
- ex rei. Reichel v. Carusi.. ..... .. .. . ..... . . .... .... . . ....... . .... . .. .. .... .. .... 142-3
-ex rei. Schwarzkopfv. Uhl ... . .. . .. . .. . .. ..... ....... . .. . ..... ..... . .. .... . . 123, 142
-ex rei. Wrona v. Karnuth . .. . .. ... . . .. . ......... . .. . . . ....... ....... . .... .. . . .. l 34n.
- ex.rel. Zeller v. Watkins. .. . ..... .. ... ... . ...... . .... . . .. ... .. ..... . . .. .. .... . . . .. 143
- v. Wong Kim Ark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Uzan and Sultan v. Ministere Public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229n.
Uzzielli Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l 2n.

Van A., Re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Valentiner Case .. . . ... . . . . . . .. . . . . ... ..... .............. .. . . . ..... . . . . ... . . . . ..... 216n.
Vecht v. Taylor. .. . ... .... . .. . . . . .. ... .... ... ....... ... .. . . . ..... . . .... . ....... . . ... . 80
Verreano Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Von Fliedner v. Beringen . .. . .. .. .. .. .. .. . . . . ... ........ . ...... .. .... ....... . J20n., l62n.

~~~;r~~ ~~~i~~~ · · · · ·. .. .... ... .. ... .. ... .. .. ..... . ........ .. . .. . .. . ...... . lin., 30, ;~
W~tphal et Uxor ~: c~~d~~~i~~ offi~~~ -~f s~·~;h~;~ .Rh~d~~i~·:::: :::: : : ::: :::::::: :::: 23
W~ener-Weimberger v. Friedlaender a nd Oliven . .. . .. ... . .... .. . .. .. . .... . . . ... . .. · · · · · 9
W1eros v. Saleh et AI. . . . . . 232
Wildermann v. Stinnes .. . . :: : : :: : : : : : :: : : : ::: : : : : ::: : : : : : : : : : : : : : : :::. "76," i48·~-~. j 53, 209
Cases XXV

Willis v. Mexico . .. .............. .. ... ......... .. ... . . . .. ..... ......... ... .... ...... 106
Wolf, In re.......................................................................... 143
Wong Man On v. The Commonwealth....................................... . .... . 23n.

Zagdoun v. Zagdoun ........ . .... ... ............ ... .............. ... ... . . ..... . ..... 234
Zalewski, Re.... .. ......... . ......................................................... 37
Zangrelli Claim........... . .... .. ........... ...... ............... .. . .. ....... 183, 229n.
Zorniotti, Re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127n.
1

''

I,
--

TREATIES
(MULTILATERAL)

1851 Treaty of Gotha............................ . . .... ..... ........................ 57


1878 Treaty of Berlin. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1880 Madrid Convention (concerning Morocco).................................. 128n.
1906 Rio de janeiro Convention on Status of Naturalised Persons ............ . ...... 191
1907 Hague Convention respecting the Rights and Duties of Neutral Powers and Persons in
War on Land (No.V) ......................................_............. 8, JOn.
1919 TreatyofVersailles . ... ...... 7, 9, 23, 40, 43n., 75, 76, 79, 80, 133n., 153,175,194
Covenant of the League of Nations ........ . ....... 23, 24n., 66, 67, 68, 71, 73,74
Treaty of St. Germain ............... . ...... . ..... . .... . .... .. .... 7, 9, 133 n., 138
Treaty ofNeuilly .. .............. ...... .. . .................................. 133 n.
Polish Minorities Treaty....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 114, 114n.
1920 Treaty of Trianon ................................................. 127, 133n., 138
1922 Rome Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
1923 Treaty of Lausanne . . . . . . . . ..... . .. ........ . . . . . . .. . . . . . . . .. . . ... .. . . . .. 9, 21, 33
Gener-al Treaty of Peace and Amity between the Central American
Republics .................................................. . .. . ....... 5n., 132
1924 Memel Convention ... . ..... . ......... ... .. .. .... . . . . .. . .. . . ... ......... ...... 148
1925 Havana Convention on Status of Aliens...... . . . . . ..... . . . .. . .. ... ........... 46n.
Havana Convention on Private International Law ...... . ..... . .. 32, 138, 191, 198n.
1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws
26-8, 65, 70, 85, 87, 96, liOn., 116n., 130, 133, 161, 163, 182, 183, 187, 188, 200
244, 246-7, 251
Protocol relating to Military Obligations in Certain Cases of Double Nationality
26-8, 188-89, 190, 251
Protocol relating to a Certain Case of Statelessness................. 26-8, 163, 251
Special Protocol concerning Statelessness........................ 26-8, 56-7, 251
1933 Convention relating to the International Status of Refugees.................... 168
Montevideo Convention on Nationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 130, 148-9
Montevideo Convention on Nationality of Women. ............................. 98
1938 Convention relating to the Status of Refugees coming from German............ 168
1939 Additional Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168n.
1945 Charter of the United Nations. . ........ . .. .... ........... 24, 67, 68-70, 73n., 251
Statute of the International Court ofJustice. . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 193, 24 7
1946 Agreement on the Adoption of a Travel Document for Refugees ..... .223, 225n., 227
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12n.
1947 Peace Treaty with Finland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12n.
Peace Treaty with Hungary . ........... . ..... .. . . . .. . ....... . . .. ... ... . . 12n., 158
Peace Treaty with Italy................ . ......... . . . .... 12n., 97, 157-8, 181, 211
Peace Treaty with Roumania .... .. . . ..... . .. ... . . ...... · · . ·... . .......... . .. 12n.
1949 Convention Relative to the Protection of Civilian Persons in Time of War. .. ... . 202
1950 European Convention for the Protection of Human Rights and Fundamental Freedoms
. ... ... .. . .. .. · · · ·· · ·· · ·· ...... ; ..... . .. . · ·· ·· · ............................. 51-2
XXVIII Multilateral Treaties

1951Peace Treaty with Japan . . .. . · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . . . .... 148n


Convention relating to the Status of Refugees .. . . .. 70, 168, 169, 202, 224, 225n., 22 7
1954 Convention relating to the Status of St~teless Persons .. . .. . ... 168-9, 224, 225n., 227
1957 Convention on the Nationality of Ma rned Women · · · · · · · . . .. 28, 98, 247, 248, 2
50
1958 Convention on the High Seas . . · · · : . ··· ··· ··· ··· ·· · ·· · · ··· · ········ · ... .. . . . 202-3
1961 Convention on the Reduction ofStatelessness . . . . . . . .... 28, 115n., 124- 5, 144, 166-7
. 23ln:, 247, 248, 251, 253, 254
1963 Protocol No. 4 to the European ConventJOn for the Protecuon of Human Rights and
Fundamental Freedoms . .. . . ... ·. · · · · · · · · · · · · · · · · · · · · · · · · · · · ·. · ... . . . . . . . 47 51
European Convention on Reduction of Cases of Multiple Nationality and Mili;ar
Oblig~tions in Cases. of Multiple ~at.ion~lity ..... .. ... .. ... ·· · ··. 133, 191-2, 2si
1965 International Convention on the Ehmmauon of All Forms of Racaal Discrimination
46-7
1966 International Covenant on Civil and Political Rights . . . . . . . . . . . . . . . . . . . . . . . . . . .
46
1967 Protocol relating to the Status of Refugees.. ..... . . . .. ... .. .. .. . . . ... . . . . . . . . .. 168
1973 Convention for the Reduction of the Number of Cases of Statelessness . . . . .. . . ..
167
1977 Protocol to the European Convention on Reduction of Cases of Multiple Nationalit
and Military Obligations in Cases of Multiple Nationality. . . ..... . . . . . . 192 2si
Additi?nal .Protocol t?. the Eur~pea.n ~nvention on R e?uction ?f Cases of Muitiple
Nauonahty and Mahtary Obhgataons m Cases of Multaple Nataonality. . . 192, 251
- - - - - --

TREATIES
(BILATERAL AND PLURILATERAL)

Austria-Roumania ( 1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Austria-United States (1921 ).. ...... .... ....... ..... . . . ....... ...... . . ........... 132n.
Austria-Prussia (Exchange of Notes concerning Repatriation) ( 1849).... . .. . .......... 57
Austria-Hungary- United States (1870) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132, 190n.
Baden (Grand Duchy of)-United States (1868) ............................. ......... 131
Bavaria-United States ( 1868) .. . .... ... ............ . ..................... ... ....... 131
Belgium-Netherlands (concerning Indigent Persons) (1936) . .. . .. .. . . ....... .. .. . . . 57-58
Belgium-United States (1868) .. ......... .. ......... ...................... .... ...... 132
Bonn Settlement Convention (France, Great Britain, United States-Federal Republic of
Germany) 1952, 1954) . . . . . .............................. . . .. ......... . ....... ... . . 43
Bulgaria-United States ( 1923). . . . . . . . . . .. . .. . . . . . .. . . . . . . . . . . . .. . .. . . . .. . .. . . . . . . . . 132
China-Indonesia (1955) ...... . ... ..... ............ .. ...... . .. . . . ........ . . . ........ 193
China-Nepal ( 1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Czechoslovakia-Hungary (concerning Exchange of Populations) (1946) . . . . . . . . . . . . . . 158
Czechoslovakia-Soviet Union (relating to Carpatho-Ukraine) (1945) . . . .... .......... 157
Czechoslovakia-United States ( 1928) ............ . ........................... . ...... 132
Ecuador-United States (1872)....................................... . .............. 132
France--Germany (1911) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
France, Great Britain, Spain-Portugal (Arbitral Agreement) (1913) . . ..... ... . ....... 206
France--Great Britain ( 1897) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Exchange of Notes ( 1919) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
France--Great Britain (Exchange of Notes concerning Tunis and Morocco Nationality
Decrees) (1923) . .. .. ....... . .. ....... ... ... .... . .......... . . ... ........ ......... ... 74
France--Great Britain (Exchange of Notes relating to Tunis and Morocco Nationality
Decrees) (1947) . ........................... . ............ ... ......... . ..... . .... .... 75
France-Italy ( 1896) .. ............................. .. . . ... . . ..... . . .... .... . ... ... .. . 72
France-Mexico (Claims Covention) (1924) . .. .. . .. ......... . ..... . ............. 25, 185n.
Supplementary Convention (1930) . . .. .. .. . . . . .. . . . . . . . . .. . . .. . . . . . . . . . . . .. .. .. . . . . 25
France-Provisional Government of Algeria (1962).. . . . ...... .. .. . .. . ....... .. .. 154, 158
France-Spain ( 1862) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
France-Switzerland ( 1882) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Germany-Lithuania (concerning Option) ( 1925) . ................................... 148
Germany-Poland (concerning Upper Si1esia) (1922) ...... . . .. ...... . .. 114, 206, 226, 255
Germany-United States (Treaty of Berlin) (1921 ) . .. ... .... . ................ 43, 132, 172
Supplementary Agreement ( 1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Great Britain- Burma ( 1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Great Britain-Denmark (1670) ......... . .. . . ....... ..... . .... ....... ............ . .. 222
Great Britain-League of Nations (Palestine Mandate) (1922) ........ . ..... ... .. . . .... 21
Great Britain- United Nations (Tanganyika Trusteeship Agreement) ( 1946) . . . . . . . . . 24n.
Great Britain-United States ( 1793) .. . .. .. . . .. .. .. .. .. .. .. . .. . .. .. .. . . .. . .. . .. .. . .. . 146
Great Britain-United States (1870) .. .. . ............................... . ............ 132
Supplementary Convention ( 1871 ) ........................ . ............. . . .... .... 132
XXX Bilateral and Plurilateral Treaties

Great Britain-Uruguay ( 1884) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · .. · · · .......... 22


Great Britain, Greece, Turkey-Cyprus ( 1960) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . . 155, 158-9
Haiti- United States (1903) · · · · · · .. · · · · · · .. · .... · · · · .. · · · .... · · · .. · .. · .. · · .. ........ 132
Hesse (Grand Duchy of)-United States (1868) .. · · · .. · · · · · .. · · · .. · .. · · .. . ...... ... .. 132
Hungary-U nited States ( 192 1) ...... · · .... · · · · · · .. · .... .. · · .. .... · .. ...... .... . .. 132n.
Italy-Nicaragua (1907) ... · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · .... 191
Mexico-United States (Claims Convention) ( 1868) · · .. · · · · · · · · · · · · · ·. ..... . . ... .. ... 105
Netherlands-Indonesia (1949) ... · .......... · .. · ........ · .... · .... · · · .......... . .... 159
North German Federation-United States (1868) · · · · · · · · · · · · : . · · · · · ·. . ... . ... 131, 191n.
Norway-Sweden-Argentina ( 1885) .. .. ....... · · .. · · .. .. · · · .. · · · .... · · .. .. . . .. .. .. .. . 132
Norway-Sweden-United States (1868) ....... · .. · · · · .... · · .......... · .. . ............ 132
Peru-United States (1907) ... . ..... .. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · .. .. . . ... . ..... 132
Poland-Soviet Union (relating to Cession) (1945) ...... . .......... ..... ... ..... ..... 157
Portugal-United States (1908) ...... · · .... · · · .. .. .. · .... · · .......... . ............... 132
Spaip-Argentina (1863) ......... · .... · .... · .. · .... · · .... · · .... · ......... .. .. 205, 233n.
Spain-Colombia (1894) ....... .... ............... ...... ......... .... .. . .. .... .... .. 132
Spain-United States (1871 ) ...... . ................. .... ......... ...... ..... .. .. 76 218
United States-Spain (1898) ................................... ... ....... .. ......... ' 5n.
United States-Yugoslavia (1950) .. .. ........ ... ... . ................................ 193
Wiirttemberg (Kingdom of)-United States ( 1868). ... ............ ..... ...... ... 132, 211

'I
STATUTES
AND OTHER LEGISLATIVE INSTRUMENTS

Algeria
1963 Code de Nationalite of March 18 .. . . ..... . .................. . ..... ....... 158

Argentina
1853 Constitution (as amended) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
1949 Constitution... .. .. ...... ... ......... . ... .. . ..... . .... . ...... . ..... 15, 108-9
1954 Nationality Law ........ .. .. .. ........ ...... . . .. ..... .... .. ........ ... . 108-9

Australia
1948 Nationality and Citizenship Act. ...... .. .......... . ........... . .. .... ..... 15

Austria
1945 Nationality Law .. .... .... ... ..... . .. . .. ....... .. . ...... ..... .... ... 150, 151
1965 Nationality Law . ...... ...... .. ... ...... ...... .. .. . ..... . . . . ... ...... . . 14-15

Belgium
1921 Law of November 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

Bolivia
1830 Civil Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Brazil
1889 Decree...... ......... ...... .. .. .. . ...... . .. ... ... ..... ........ .. 103-5, 106
1891 Constitution ........... ...... . ...... . . . .................... .... ..... 104, 107
1967 Constitution....... ... .............. . . . .. . .............. ... .. ... ....... . .. 15

Bulgaria
1948 Nationality Law.... . ... ...... . . ..... ... . ... .. .. .... ..... . ..... ........ 199n.

Burma
1947 Constitution................ . ..... ... .............. . . . ... .... . ......... .. 158
1948 Union Citizenship (Election) Act.... ............ . ........... .. . . . ... .. ... 158
Union Citizenship Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

Canada
1921 Canadian Nationals Act (11 & 12 Geo. 5, c.4) .. .... ... . ... . . .............. 16
1946 Canadian Citizenship Act (10 Geo. 6, c. 15) ... .. .... . ...... . ...... .. .... 15, 16
1950 Canadian Citizenship (Amendment) Act (14 Geo. 6, c. 29).... .. ..... ... .... 15
1951 Canadian Citizenship (Amendment) Act (15 Geo.6, c.12) . ................. 15
1952 Canadian Citizenship (Amendment) Act (1 & 2 Eliz. 2, c. 23).... ... ... .... 15
XXXII Stat11 ~ts

Czechoslo' akia
I 926 CoII t J'tutional L..tw ofJul I · · · · · · · · · · · · · · · · · · · · · · · · · · · · · .. .... . • • • • • • • • • J')•
1945 Oet:ree of Augu t 2 · · · · · · .. · · · · · · · .. · · · · .. · · .. · · · · · .. · · · .... · ·... .. .. .. 1 ~
1949 N,uion.!lit~ La'' ··· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·· ... . . 1~
1953 La" of April 24 ..................... . ............... . . . .........•.... . I JOn_

Egr P'
1950 Nation.tlit )' La" · · · · · · · · · · · · · · · · · · · • · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · J
197 1 Con tiwrio n of ptt<rnlxr 11. .. • .. · · · · · · · · · .. · · · · · · .. · · · ·...... ... .. .. . -~~

France
Orclit~an<"c of April 2 ..... . .......•..... . ........ . ....................
181 7
192 1 D« rccs of No' cmbcr 8 rclatin,g to :\ati n;t1it' in Tunis and Fn:oc:b ~ o{

~lorucco .. . . · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ···· · ..... 10. il-~


1939 Dee re<' of Scptcntb<-r I . . . . . . . . . . . . . . . . • . . . . . . . . . • • . . . . . . . . • . . . . . . . • . . . . 10
19-1-5 Code de ~.\tionalitf ... · .... • · .. • .. · · .. ........ · .. · .... ·.... • .. • 9i 1 •
"8 .... . ,. . '
I~ l..'l' of.Juh • t ·'·Hl na ''' .. .. . . . .. .. .. . .. .. . .. . .. . .. .. • .. ... . . .. .. 1 ~
1973 Cod<" clc :\atio nalite ... ... . . • . . .. .. . . .. ... .. .. 9i . II ·n .. H I. 1>4, 1. • , 1:

Gcrnl.ln
1870 C:Ons titut ion ....... . .................... • • . • . . . • . . . . • • . . . . . . . • • . . . . •• . • . _.
1913 Nation.llit' La"' ...... · · · · · · · · • • · · · • · · • · · · · · · · · · · · ·- · • · I~ • I ..,
191 9 \\'citnar C'.oJIStituiJ n ... .. . . • .. • ................................ .:>4. t·
1933 Law ron rmi• 4Ut<'t"ll.lt~ n X;atur.alis.uioru ~nd Oc-pri' :u ioo :'\~ ...........o..:on
Jul" 1-1 ................................................. . ...... I L
1935 Rt-kh Citizenship LA"' . . • . ................................. .
NntiC\n. lit\' (AttlC'ttdntrnt \ l..t"' ....... .. . . ........................... .
1938 L""' of M.lfc h 1 \ ln tton " .\ usnu . ....................... . ... ..
N:uion.,lit' ( A\I$ltl.H\S\ ~rtt . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ...... .
19-t 1 rtiin.ml"" "". :\v,Y'mb« ~S m;ad(' und-tt R ('t('b ti-.~ L.a., . I ..
l l. ._._._ , .
1949 &.~t· Law of th<- Ft"d<'t".al Rt'ptt ..ttm.Ul' of ~.l\ - • . . . . . .
.1 95:.2 Administr..-ti,.,. R~.,ul..u"-~\S K~ the- E.,,~'Ucion of~ P~ M La-. .\ -= l '

1 ~ S«ond l.~w lbr chc:- Re~:ut.uloo ,f


l9U Natioll:llit~ {Anwudnl<'nt t.;a._ •••

• U3 1<'1lltlf3
1 ~45 lSlttllti'l:\l\ •• ,, -·· •• ,,, •• , ,,.,, •••• ,
1~9 ~i~th~ ~~ :\, ~l of M~, ,

Hondu~
\ 9:.."'4 ' '
\..~tll\l l1\)l\ ....................... "" ...... "" ................................................ "" .................................. ... ........ ............... .................. ... ...

Hm~-'r\
1~s X.aci.;."""•''' u" . . .. . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . .. . . .... . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .
h\\Ha
l~9 ''l~tlt\llir..'ll. ....... , ... , , .......... ... ........ , ........ ...... ................... , .......... ................... ... ..................... , .... ...................... ...

h~-1
·~·{' (\~'''''"""' "", ( l . ... , ......... , ... , ........... ... ......... , ...... ... .. .......... ...... , ................... ,............. ... ......... ...

lxf\\~
L ~~" ,~· R • ... .................. , . . ...... ..... , ........ ............ .. ..... ...... , ...........................
~

1.\! •) ~~•.-.~\.lht\ t....-.. .. , ,, .. ... """""'' """"' .............., I


~~' l ~,\{-...
l..""'~:2~!or ~ $ c:.l"' ........ ........... ........ ..
Statutes XXXIII

Italy
!938 Decree of December 17 • • • • • • • • • • • • • •• • • • • • • • • • • • • • • • • • • • •• • • • • • • • 0 0 •••
119n.

Jordan
1952 Constitution of January 1 .. . .. .. ... .. . . •• •• • • 0 ••••••••••••••• 0. 0 • ••••••• 45n.

Kenya
1969 Constitution (Act No. 5-1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45n.

Kuwait
1962 Constitution of November 11 • • • • • • • • • • • • 0 ••••• • • • •• •• ••••• •• 0 •••• 0 ••••• • 45n.

Liechtenstein
1934 Nationality Law ofJanuary 4. ... . . . ..... . ..... ... ............. . . ....... . 177

Malaysia
1957 Constitution of August 23 . .... ........ .. . .. ... . . .. .... .. . . . . . ....... . ... 45n.

Mexico
1857 Constitution ..... ..... . . .. . . ........ ........ .. . ....... . ... .. . . .. 103, 105, 106
1886 Aliens and Naturalisation Law . .................. . ......... 15, 103, 105, 106-7
1917 Constitution.. . ............ ... . ...... ... . ....... ...... . . . . . ..... . ......... 15

Netherlands
1910 Law of February 10 (as amended) ... ... ............ . . .. . . .......... . ... .. 5n.

Nicaragua
1948 Constitution .. ...... . .. ... ....... . .... ... . ... . .. . ....... ............ .. . . . . . 5

Peru
1839 Constitution .. .. ... . ........... .... .. . . . .... . ........... . . .. ............. 103
1852 Civil Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Poland
1920 Law of January 20.... .......... . ...... .. ... ... ... . . . ........ .. .... .... .. 113
1945 Law of May 6 (as amended) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120n.
1946 Decree of September 13 (as amended) .... . ...... ..... . .. ... . ..... ...... 120n.
1951 Nationality Law ofJanuary 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199n.

Roumania
1952 Nationality Decree. ......... . ....... . .... . ................. .. .......... 199n .

Salvador
1883 Constitution of December 6 ... ... . ..... . ..... .. ........ . ... :.............. 33
1886 Constitution of August 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Law regarding Foreigners of September 29.. .. .... ... .. .. .. .. ...... ...... .... .... . 33

South Africa (Union of)


1927 Union Nationality and Flags Act... ... . ....... ...... ................... 230n.
1949 South African Citizenship Act of September 29 . . . . . . . . . . . . . . . . . . . . . . . . . 230n.

Switzerland
1850 Law of December 3 .. ...... .. ... ......... .. ...... ..... . .................. 114
1874 Constitution (as amended 1928)... . . .. .. .. . . . .. .. . . .. . .. . .. . .. . . 15, 45n., 84
--•
XXXIV Statutes

Syria
I953 National~y Decree. ·· · ········ · ······ · ········· · · · ······· · · · ······· · · ·· 199n.

Turkey
1869 Law ofJ~nuary 19. · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·. 130, 13 1
I961 Constituuon of July 9 · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . . . . . . 45n.

Union of Soviet Socialist Republics . . . .


1921 Decree of All Russian
.
Sov1et Soc1alist Repubhc, December 15 . ... . . li 9
. c· . h" 0 b 29 · ·· · ·· · ·· ·· 101, 114,n.,119I20
1924 Ordinance regardmg Umon ltlzens 1p, cto er
1925 Union Citizenship Law of November 1_3 . · .... . ·: . . . . .. . . .. .. . .... . . .... 119 ~·
I926 Code of All Russian S._F.S.~ ..on M~rnage, Family and Guardianship . . .. ... 97
I93I Statute concerning Umon CIUzenshlp .. . ....... ... ... . . ... . ... ... . ....... 119
I938 Citizenship Law · · · ········ · ·· ·· ·· · · · · ·· ······ · · · · · ·· · · · ·· · · ·· · .. . 15, 97, 114

United Kingdom of Great-Britain and Northern Ireland


1548 Statute of (2 & 3 Edw. 6, c. 2) · · · · · · · · · · · · · · · · · · · · · · · · · · · . .. .. . . . . ..... .. 222
1793 Aliens Act (33 Geo. 3, c. 4) · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . .. ..... . .. 222
1870 Naturalisation Act (33 Viet. c. 14) . . · · · · · · · · · · · · · . lOin., 104, 128, 189-90 199
1873 Order in Council, December 12 (Consular Registration, Turkey) .. .... . .. . ' 23!
1890 Foreign Jurisdiction Act (53 & 54 Viet. c. 37) . ... . .. .. . ... . . ...... .... . 21,153
1894 Merchant Shipping Act (57 & 58 Viet. c. 60) . .... . ... . . . .... . .. ... .. .... 39n.
1914 Al_iens Restriction Act (4 & 5 Geo. 5, c.l2) .. ..... . . .. .. . . .. . . . . .. ... . lin., I9
British Nationality and Status of Aliens Act (4 & 5 Geo. 5, c. 17) . . . . . . . . I6, I9
2l n., 7ln., 99, llln., 116n., 117,, 128, 140, 190, I94
Cyprus (Annexation) Order in Council (S.R. & 0 ., 1914, No. 1629).
141-2, 142n.
19I5 Aliens Restriction (Armenians, etc.) Order (S.R . & 0., 1915, No. 4) . . . . . l2n.
I918 British Nationality and Status of Aliens Act (8 & 9 Geo. 5, c. 38) . . .. 2ln., ll6n.
Aliens Restriction (Amendment) Orders (S.R. & 0., 1918, Nos. 175, 266,
603,935, I356, 1710) .... . ......................... .. . . ..... . . . . . . . .. I2n.
1919 Aliens Restriction (Amendment) Act (9 & 10 Geo. 5, c. 92) ........ . ... . .... I9
Aliens Order (S.R . & 0., 1919, No. 1077).. . . .. . .. . . ... .. .. ... .. . ....... lin.
Treaty of Peace Order (S.R. & 0., 1919, No. 1517) .. . .. . .. . ... ... . .. 79, 194
1920 Aliens Order (S.R. & 0., 1920, No. 448) . . .... .. . .... .. . . . .. . ... 59--60, 201-2
1923 Aliens Order (S.R. & 0., 1923, No. 326) .... ......... . . ... . 59-60, 201-2, 203
1925 Palestine Citizenship Order (S.R. & 0 ., 1925, No. 777) . . .. .. . . .... . .. . . ... 21
Supreme Courtofjudicature (Consolidation) Act (15 & 16 Geo. 5,c. 49)..... 2I5n.
1931 Statute ofWestminster (22 & 23 Geo. 5, c.4) . . . .. .. .. .... . ... .. . .... ... ... 16
1933 British Nationality and Status of Aliens Act (23 & 24 Geo. 5, c. 49) .. .. .. . li6n.
1939 Trading with the Enemy Act (2 & 3 Geo. 6, c. 89) .. .. . . ... ...... . .. . . . · · · · lO
Prevention ofViolence (Temporary Provisions) Act (2 & 3 Geo. 6, c. 50) . . · ·· 48n.
1940 Aliens (Movement Restriction) Order (S.R. & 0., 1940, No. 819) . . . . . · · · I2n.
1941 Aliens (Movement Restriction) Order (S.R. & 0 ., 1941, No. 58) .. . . · ·· ·· I2n.
1943 Aliens Order (S.R. & 0., 1943, No. 1378) . ..... . . . .. .. .... .... . .. . · · · · · · · · 19
Aliens (Release from Actual Military Service) O rder (S.R . & 0., I943,
I944 N~. 94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : ;~·
Ahens (No. 2) Order (S.R. & 0 ., 1944, No. 1315) . .. . . . . . · · · · · · · · · · · · · · · SS
1947 Burma Independence Act (11 & 12 Geo. 6, c. 3) .. .. .. . ... . . . .. . . . · · · · · · · · 1
1948 British Nationality Act (11 & 12 Geo. 6, c. 56) . .. ... ... 15, 17, I8, 19, 22, 39n., 52
97, 99, 100, 116n., 117, 140, 159, 199, 215, 220, ~3 I
..
1953 E~p!nng L~ws Continuance Act (2 Eliz. 2, c.9) .. . .. ... . . . .. · · · · · · · · · · · · · I;S
4
1960 BntlSh Nationality (Cyprus) Order (S.I. 1960 No. 2245) . . . . . · · · · · · · · · · · · · 4-9
1962 Commonwealth Immigrants Act ( 10 & 11 Eliz. 2, c. 21) . . . . ... .. · .. · I 7' 20•
1965 British Protectorates, Protected Sta tes and Protected Persons Order l9
(S.I. 1965 No. 1864)_.... .. . ..... . .. ... . .... . . .. . . . . . . . . .. . .. .. . . .. . . . .. .
-
~~~ XXXV

1967 British Protectorates, Protected States and Protected Persons Order


(S.I. 1967 No. 1271 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1968 Commonwealth Immigrants Act (c. 9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 51
1969 British Protectorates, Protected States and Protected Persons Order
(S.I. 1969 No. 1832) . ... . ........... . ........... . ....... . . . .. . .. . 18, 19, 20
197 1 Immigration Act (c. 77) . ... ........ .. ..................... . ....... . 50, 51 , 58

United States of America


1866 14th Amendment of Constitution ( 14 Stat. 358) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1868 Act of july 27 (15 Stat. 223) . .... . ............ . . .. .. .. . ... . ...... . . .. ... . 129
1900 Act of April 30 (31 Stat. 141 ) ... ............ ... . .. .. . . ..... .. . . . .. ....... 139
1902 Act of june 14 (32 Stat. 386) ........ . . . .. . .. . .. . . . .. . .. . ... .... . . ...... . . 227
Act of july l (32 Stat. 691 ) . ... .. .. . ............. .. . . ........... . . ... . .. .. . 5n.
1907 Act of March 2 (34 Stat. 1228).. .. .. .. .. .. .. .. . .. .. .. .. .. .. 42, 81, ll7n., 129
1916 Act of August 29 (39 Stat. 545) . .. .. .. . .. . .. .. . .. .. .. .. .. .. . .. .. .. .. .. .. . 5n.
1918 Act of May 9 (40 Stat. 542) .. . ..... .. . .... ............. ...... . .... ...... 39n.
1920 Act of June 4 (41 Stat. 739) .......... .. ... .. .... .... ..... ...... ...... .... . 42
1922 Act of September 9 (42 Stat. 1022).................................. ... ll6n.
1933 Consular Regulations of March 5.. . .. .. . .. .. . .. .. . . . .. . . .. .. .. . . .. . . .. . .. 232
1934 Act of March 24 (48 Stat. 456) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 5n.
1938 Passport Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 227
1940 Nationality Act (54 Stat. 1137) .......................... .. .... 40n., 81, ll7n.
1941 Foreign Service Regulations .. .. .. . . .. . . .. .. . .. . . . .. . .. . .. . . .. . . . .. . .. . . 39n.
1952 Immigration and Nationality Act (66 Stat. 163) ...... 5, 40n., 48, 98, 129, l90n.
20ln., 216, 220

Vatican City
1929 Law on Citizenship and Sojourn ................ . . .. .. . ... .. . .... .. . . . . .. . 96

Yemen
1970 Constitution of December 30... .. . . .. . . .. . . . .. . . .. . .. . . .. . . .. . . .. .. . .. . . 45n.

Yugoslavia
1946 Nationality Law of july 1 .. ........ .... .............. .. .. . .. .. .... ..... 120n.
1948 Nationality (Amendment) Law of December 1 ...... .. ..... . . . . . . . . . . ... l20n.
ABBREVIATIONS

AJ. American Journal of International Law.


Admin. Decisions and Administrative Decisions and Opinions of a General Nature
Opinions and Opinions in Individual Lusitania Claims and other
Cases (.Mixed Claims Commission between the United
States of America and Germany).
Annual Digest Annual Digest and Reports of Public International Law
Cases.
Annuaire Annuaire de l'lnstitut de Droit International Public.
B.D.I.L. British Digest of International Law, ed. by Clive Parry, Con-
sulting Editor Sir Gerald Fitzmaurice, 9 vols., 1965-1967.
B.I.L.C. British International Law Cases, (British Institute Studies
in International and Comparative Law No. 1) 9 vols.,
1964-1973.
B.Y. British Year Book of International Law.
Bases of Discussion Hague Conference for the Codification of International
Law-Bases of Discussion drawn up for the Conference by
the Preparatory Committee: vol. !-Nationality (League of
Nations Doc. C. 73. M. 38. 1929. V and Supplements (a),
(b) and (c). Series of League of Nations Publications V.
Legal 1929 V. I).
Blackswne, Commtnlaries Blackstone, Commentaries on the Laws of England. 4 vols.
(1853).
Br. and For. St. Papers British and Foreign State Papers (Hertslet). Annually since
1841.
Borchard Borchard, The Diplomatic Protection of Citizens Abroad
(1922).
Clunet Journal du Droit International.
Commission Franco-Mexicaine La Reparation des Dommages causes aux Etrangers par des
Mouvements Revolutionnaires. Jurisprudence de Ia Com-
mission Franco-.Mexicaine des Reclamations (1924-1932).
Paris, 1933.
(a) Decisions and Opinions Claims Commission between Great Britain and .Mexico.
(b) Further Decisions and (a) Decisions and ·opinions of the Commissioners in ac-
Opinions cordance with the Convention of November 19, 1926,
between Great Britain and the United Mexican States.
October 5, 1929 to February 15, 1930. (H ..M. Stationery
Office, 1931.)
(b) Further Decisions and Opinions of the Commissioners in
accordance with the Conventions of November 19, 1926
and December 5, 1930, between Great Britain and the
United Mexican States. Subsequent to February 15, 1930.
(H.M. Stationery Office, 1933).
Dicey Dicey, The Conflict of Laws, 5th ed., by A. Berriedale Keith
(1932). (See footnote on p. 316, infra.)
XXXVIII Abbreviations

European Treaty Series, published by the Council of E


Eur. T.S. Foreign Office Reports. urope.
F.O.R.
Flournoy-Hudson Flournoy and Hudson, A Collection of Nationality L
(1929). aws
Feller, The M exican Claims Commissions (1935).
Feller
Grotius Transactions Transactions of the Grotius Society.
Hackworth Hack~orth, Digest ofl,ntern~ti~nal Law,. 7 vols. (1940-1 943).
Hague Recueil Recueil des Cours de 1 Academie de Drmt International de Ia
Haye.
Hale's Report Report of Robert S. Hale, .Esq., Agent and Counsel of th
United States (at the Mixed Commission on British ~
American Claims according to the Convention betwan
Great Britain and the United States of May 8, 18]e~}
Foreign Relations of the United States, 1874. ·
Hyde Hyde, International Law, Chiefly as Interpreted by the
United States. 3 vols. Second revised edition, 1945.
I.C.J. Reports International Court of Justice, Reports of judgments
Advisory Opinions and Orders. '
Int. Law Reports International Law Reports-replaces since 1950 the Annual
Digest and Reports of Public International Law Cases.
Lessing, Staadsangehoerigkeit Lessing, Das Recht der Staatsangehoerigkeit und die Aberken-
nung der Staatsangehoerigkeit zu Straf- und Sicherungs-
zwecken ( 193 7).
L.N.T.S. League of Nations Treaty Series. Publication of Treaties
and International Engagements registered with the
Secretariat of the League of Nations.
L.O.R. (F.O. )/(C.O. ) Reports of the Law Officers of the Crown.
(F.O.): made at the request of and to the Foreign Office.
(C.O.): made at the request of and to the Colonial Office.
L.QR. Law Quarterly Review.
M.L.R. Modern Law Review.
Martens Martens, Recueil des Traites. (Letters following the name are
abbreviations of the different parts.)
Mervyn Jones Mervyn Jones, British Nationality Law and Practice (1947).
Minutes of the First Acts of the Hague Conference for the Codification of
Committee International Law. Vol. 11-Minutes of the First Com-
mittee: Nationality (League of Nations Doc. No. C. 351
(a). M. 145 (a). 1930. V., Series of League of Nations
Publications V. Legal 1930. V. 15).
Moore, Digest Moore, A Digest of International Law. 8 vols. (1906).
Moore, Arb. Moore, History and Digest of the International Arbitrations
to which the United States have been a party. 6 vols. (1898).
Opinions of Commissioners Opinions of Commissioners under the Convention of
(Gen.Cl.C.) September 8, 1923 (as extended), between the United
States and Mexico. (General Claims Commission.)
Opinions of Commissioners Opinions of Commissioners under the Convention of
(Sp.Cl.C.) September 10, 1923 (as extended), between the United
States and Mexico. (Special Claims Commission.)
Oppenheim Oppenheim " International Law." 2 vols., vol. I 8th ed. (1955)
vol. II 7th ed. ( 1952) edited by H. Lauterpacht. Refer~n~es
to vol. I relate to the eighth, to vol. II to the seventh edltlon
unless another edition is explicitly mentioned. .
P.C.I.J. Publications of the Permanent Court of International]usuce.
Series A-judgments. Series B-Advisory Opinions. S_eries
AlB-Cumulative Collection of Judgments and Advisory
Opinions since 1931. Series C-Acts and Documents
Abbreviations XXXIX

relatin~ to Judgments and Advisory Opinions. Series D-


Col_lecuon ofTexts governing the Jurisdiction of the Court.
Senes E-Annua1 Reports.
Ralston, Law and Ralston, The Law and Procedure of International Tribunals
Procedure Revised Edition ( 1926). ·
Ralston, Report Ralston, Venezuelan Arbitrations of 1903 ( 1904).
Ralston, Supplement Ralston, Supplement to 1926 Revised Edition ofThe Law and
Procedure of International Tribunals ( 1936).
Recueil T.A.M. Recueil des Decisions des Tribunaux Arbitraux Mixtes.
S.l. Statutory Instruments (Great Britain).
S.R. & 0. Statutory Rules and Orders (Great Britain).
Schwarzenberger Schwarzenberger, International Law. Vol. I (Third Edition
1949) . ,
Scott, Reports, vol. I James Brown Scott, The Hague Court &ports (1916).
Scott, Reports, vol. II James Brown Scott, The Hague Court &ports, Second Series
(1932).
U.N. Reports Reports of International Arbitral Awards (Collection
published by the United Nations). 16 vols. 1948-1969.
U.N.T.S. United Nations Treaty Series. Treaties and International
Agreements registered or filed and recorded with the
Secretariat of the United Nations.
U.K.T.S. United Kingdom Treaty Series. (Annually since 1892.)
U.S. Treaties Treaties, Conventions, International Acts, Protocols and
Agreements between the United States of America and
other Powers. 1776-1909, Vols. I and II ( 1910); Supple-
ment ( 1913); 1910-1923, Vol. III (1923); 1923-1937,
Vol. IV (1938).
van Panhuys H.F. van Panhuys "The Role of Nationality in International
Law" 1959.
Whiteman Marjorie M. Whiteman "Digest of International Law"
15 vols., 1963-1975.
Y.B.I.L.C. Yearbook of the International Law Commission, published
by the United Nations (doc. A/CN.4/Ser.A).
NOTE

While this book was in print a new Soviet Citizenship Law was adopted un
December l, 19 78. 1

Re. p. 15 line 24 ss.


Under the Citizenship Law ofthe Soviet Union ofDccembcr I, 1978, there
exists a common federal citizenship. ''Each citizen of a Union Republic shall
be a citizen of the U.S.S.R." (Article 1). A Union Republic may legislate on
issues of Soviet citizenship "within the scope of its competence by the
Constitution of the U.S.S.R., the Constitution of the Union Republic and
the present Law." (Art. 2). For authorisation of renunciation of citizenship
(Art. 17), deprivation (Art. 18) and restoration of citizenship (Art. 19), the
Presidium of the Supreme Soviet of the U.S.S.R. is competent.

Re. p. 34 Right to protection.


Art. 6 of the Soviet Citizenship Law 1978 provides:
" In conformity with the Constitution of the U.S.S.R., U.S.S.R. citizens
abroad shall have the defence and protection of the Soviet State."

Re. pp. 129 and 199.


Art. 5 of the Soviet Citizenship Law 1978 provides:
''The very fact of aU .S.S.R. citizen living abroad does not entail the loss of
U.S.S.R. citizenship." There is no provision in the Law regarding the effect
of foreign naturalisation. Renunciation of nationality requires the authori-
sation of the Presidium of the Supreme Soviet of the Union. Authorisation
"may not be granted if the person applying for renunciation has unfulfilled
~ommitmcnts to the State or property commitments involving the essential
~~terests of citizens or State, cooperatives or other public organisations" and
If the person applying for renunciation is called to account as a defendant
or _there is against him a sentence of a court of law which has taken legal
effect and is to be enforced, or ifrenunciation of citizenship of the U.S.S.R.
runs counter to the interests of the State security of the U.S.S.R." (Art. 17).

S I. ''Pravda'' December 2, 1978; an unofficial translation into English was publishf'd in a


~pple~cnt to "Moscow News" of December 24, 1978. The quotations are from the unolllcial
tran~lat1on.
XLII Note
Re. p. 192 Practice of Socialist States.
Art. 8 of the Soviet Citizenship Law 1978 provides:
"A person being a U.S.S.R. citizen is not recognised as having the
nationality of a foreign State."

At p. 96 after line 22 should be added:


The Declaration on the Rights of the Child 2 which, of course, is not legally
binding, proclaims:
"The child shall be entitled from his birth to a name and a nationality."
(Principle 3).

The International Covenant on Civil and Political Rights 3 provides in


Article 24 paragraph 3: "Every child has a right to acquire a nationality."
The Contracting States are, therefore, bound to take action to this effect.
The tendency of recent legislation, 4 based on the principle of sex equality,
to confer nationality on a child at birth if one of the parents is a national is apt
to reduce statelessness but may also lead to double nationality.

2. Proclaimed by General Assembly Resolution 1386 (XIV) of November 20, 1959.


3. Adopted by General Assembly Resolution 2200 (XXI ) of December 16, 1966; by
December 31, 1978, the Covenant had been ratified by 55 States.
4
· C( e.g. the Law of the Federal Republic ofGermany of December 20, 1974. (p. 99 n.31 ).
Part One

THE CONCEPTION
OF NATIONALITY
Chapter 1

"Nationality" and its Synonyms

A. Nationality and Citizenship

The term "nationality" in the sense in which it is used in this book is a


politico-legal t_erm deno~ing ~em?ers~ip of a State. It ~ust be distin~uished
from nationality as a h1stonco-b10logtcal term denotmg membership of a
nation. 1 In the latter sense it means the subjective corporate sentiment of
unity of members of a specific group forming a "race" or "nation" which
may, though not necessarily, be possessed of a territory and which, by
seeking political unity on that territory, may lead to the formation of a
State. 2
Nationality in that sense, which is essentially a conception of a non-legal
nature belonging to the field of sociology and ethnography, is not the subject
ofthis work. The use of the same term for two different notions, belonging to
two different branches of science, is, however, not merely accidental. It can
be explained by historico-genetic reasons and is not entirely irrelevant when
treating of nationality as a legal concept, as will be shown later. 3
The indiscriminate use of the term is, however, apt to lead to dangerous
confusion. 4 The danger is less in the English language, where the word
"nationality" is less frequently used in its ethnical sense as denoting
membership of a race. While the existence of an English or Welsh or Scottish
nation is not in doubt, membership of such a nation is not usually described
as English, Welsh or Scottish nationality; this term is used exclusively for
British nationality meaning the quality of being a subject of Her ~1ajesty,
i.e. , a citizen of the United Kingdom and Colonies or-in so far as
citizenship of a member of the Commonwealth confers British nationality-
of the British Commonwealth of Nations.5
The term " nationality" is of Latin origin; it has similar-sounding
equivalents in other languages- nationalite (French) , Nationalitaet (German),

I. Cf Vishniak, "Le Statut International des Apatrides," in Recueil des Cours, 43 (1933) (i. )
pp. 115-246, at p. 135.
2. "State Nation" : cJ. Joseph, Nationality, Its Nature and Problems, passim, esp. at p. 353.
3. Cf the concept of "active nationality"; see infra, p. 170 et seqs.
4. It has been called "tantalizingly ambiguous" by Carlton Hayes.
5. Cf van Pittius, Nationality within the British Commonwealth if Nations; Kiefe, La Nationalite des
Personnes dans l'Empire Britannique; Mervyn Jones, "British Nationality Act, 1948," in 25 B.Y.
(1948), pp. 158- 79. See irifra, pp. 15- 18.
llt•../) ( 1ta 1iau ) ' naaonaluiad ~Jlani~h , . In G trm4:1n the \o.r...-rc! .) 1,.,~ • •
1
1/fll'lOT/0 y-"A4 . -

f/11~1'hoeriJ,;keil fi .e., Sratt; rnt;rnbtr: hip, i'l U\ td O,) nf.~n ymvusl ...
lu Eu~lio,lt dw tt·rrn "~ubjt:ct " 1~ u<,cd ~., a :,pwn y~ fvr ":"- JrJna . I s.a~~
rlw q 11 ;diry of tlw individual~., bc~n~ <,ubjt~~ to t_he S(Atrtlgn, and is l.-y:c..a:
or till' fi·udal ('(JfiCt:pl of natliJrJC1hty prevaJ_lmg In A_n~lo-~axcm Ja ....·. "- tJic.
rc·~ards nalitmality ao, a territrJria_lly d_etc~rmm ed _rdauom~p ~t•·•een !.ub_;::-c.:
aiiCI Sovcn·ign by which the subjeCt 1., u cd t0 h1s So\·ere~gn h~-: lurd . ::.t
King in pt:r~on, 11 y th e h(Jnd ( Jf allcgi_ance. 8 !hU: c~nception differs from the
1{ 11 man one prevailing in States _wh1ch d enve t_h el~ Ia~· frvm R_oman ta·., _
where nationality is not d etermm ed by a temtonal hnk b ut 15 a P' :c:>.
personal rdati<mship. 7 It i.-, usually a cquired _by descen_t , and ~nnOta nv-1 .a
rela tionship to the Sovereign but mf:mbershrp of the State wh1ch in iu.e ~
conceived of as a personal aw·><:iation o r corporation of member-indi\id'Jab.
Ben ce, among other rca'¥>n~ , the pre\·alence o f jus .sanguini1 in R oman Ia·"'·
cuuntric:s and of jus soli in common law countries.' In counuies \\irn a
republican ccJnstitution the term "subject '' is rarely used and is unpopuk-:
it has been replaced by the term "citizen." This applies particularly to ti:e
United States of America.fl
One of the terms frequently used synonymously \\ith nationali~· is
citi;:.enship. Historically, this is c0rrect for States with the Roman conceprior;
ofnationality, 10 but not for States with the feudal conception ofn.ationalii' .
where citizenship is used to denote no t political status but membership of a
local community. It has, however, become usual to employ the tenn citize::1
instead of subject in republican States-incJuding common law counaic
such as the United States: "he who before was a ·subject of the King· is OO\,. a
'citizen of the State'" 11-and in that sense and in those States the t~
"nationality" and "citizenship" must be regarded as synon~molli. h ~ oo
mere coincidence that American writersl2 are prone to use the two te.n:ru-
indiscriminately and frequently alternatively. The practice is further
evidence of the historic coalescence of State and narion.l3
Conceptually and linguistically, the terms " nationality"' and ··cirize~
ship" emphasize two different aspects of the same notion: State members-hip.
"Nationality" stresses the international, " citizenship" ' the national.

6. GJ. ~la~kstone, Comrr:mlilrus, vol. I , Chap. 10, pp. 366-i S.


7. lf_abtta_tw non ne~tSsana ad emnJiam ciuililti.s, see van Panhuys, p. 33:3.
B. CJ. Ktefe, op. etl., pp. 9-16; Salmond, ' 'Citiunship and Allegiance" . Pan II. in LQR ..
I902, pp. 49-63, at p. 49.
9. "!he term 'subject' was brushed aside as a left-0\·er from feudal Ia ........ th~ ~'....~.
'"Subject,' 'Citizen,' 'National' and ' Pennanem Allegiance. .. in 1·a1, Lrr ]~. !~-4 -.
pp. 58-76, at p. 59. · '
I0. ~ h~~ been shown by Salmond, loc. cit. , Part I , in LQR.. 1901 . pp. 210-S'~. ""' bo rtf~'~'
the denvauon
. of the tenn "citizenshJ' p" from t h e La nn
· nns--ani4J.
· · · ·
II. State v. Manuel {1838) Dev. & Bat. 20, at pp. 24-6· .\lznm , .. H~t1 18--l ~ i \\ .U!
162, at p. 166. ' "
12· E.-g.,
R. W. Floumey, Jr., and M. 0 . Hudson in .-4 Collectioa of .\~:rr Lc:c;s t~Y
13. CJ. Salmond, loc. cit., Part 1, p. 272. -
J{ationality and Citizenship 5

·cipal, aspect. 14 Under the laws of most States citizenship connotes full
rnunt
rnbcrship, includmg · t h e· possessiOn
· o f po1'Itlca
· I ng
· h ts; some S tates
~;tinguish between different classes .o~ n:emb~~s (subjects an~ nationals).
In the United States, for e~ample, Phihppme ~I~Izens were, unti1.1935 when
he Philippines became mdependent, not Citizens of the Umted States
t lthough they owed allegiance to that country. 1 :> The distinction between
a.tizens and nationals still exists in the United States Immigration and
~ationality Act, 1952. 16 According to Dutch law, persons born in the Dutch
possessions (or, in certain circumstances, descendants of such persons) had
the status of " Dutch subjects" as distinct from "Netherlanders." 17 The laws
of certain Latin-American States distinguish between nationals and citi-
zens.u' The law of Honduras, for example, distinguishes between Hondurans
and "citizens".19 Similarly, Title I of the 1948 Constitution ofNicaragua, 20
is entitled "Nationality", Title III "Citizenship." Article 28 declares:
"Nicaraguans over 21 years of age and those over 18 years who know how to
read and write, or who are married, are citizens."
Another case in point was that of the Roumanian Jews, who up to 1918
were considered as Roumanian subjects ("suppusi Romani") but not as
Roumanian citizens. The same applied to the Jews in the Papal State.21
It follows even froin this brief survey that the terms "national" and
"citizen" overlap. Every citizen IS a national, but not every national IS

14. Cf Gargas, "Die Staatenlosen", in Bibliotheca Visseriana, vol. VII (1928), p. 6:


"Staatsangehoerigkeit ist die Abgrenzung der personalen Staatshoheit, waehrend Staats-
buergerschaft das R echtsverhaeltnis des Buergers zum Staat behandelt." ("Nationality is the
delimitation of personal jurisdiction, while citizenship refers to the legal relationship of the
citizen to the State.") (Author's translation. )
15. Treaty of Peace between the United States and Spain, December 10, 1898 (30 Stat.
1754); U.S. Act ofju1y l, 1902 (32 Stat. 691 ); U .S. Act of August 29, 1916 (39 Stat. 545); U.S.
Act of March 24, 1934 (48 Stat. 456). It has been held that Philippine subjects are not aliens in
the United States: Gonz;ales v. Williams, 192 U.S. 1, at p . 13 (1903); Toyota v. United States, 268
U.S. 402, at pp. 410- 2 ( 1925).
16. Public Law 414-82nd Congress, 2nd Session, 66, Stat 163; section 308 is entitled
"Nationals but no t citizens of the United States at birth". So-called non-citizen nationals; cf In
rt Bautista U.S. District Court of Guam 183 F. Suppl. 271 at p. 274, 41 Int. Law Reports p. 323.
That the term " American national" has a wider meaning than "United States citizen" was
recognised in Administrative Decision .No. V of the Mixed Claims Commission between the United
States and Germany (Decisions and Opinions, vol. I, pp. 189- 93; Hackworth, vol. III , p. 5;
Whiteman, vol. I, p. 5; Annual Digtst, 1923-1924, case No. 100).
17 · Law of February 10, 1910, as amended .June 10, 1927, Staatsblad, 1927, No. 17 5 (Art. 1).
As regards the terminology used in the British Commonwealth, see infra, pp. 15- 18.
1~. Cf H arvard Law Research (23 A..J. (1929), Suppl. II, p. 23), where reference is made to
Arttcle 6 of the General Treaty of Peace and Amity between the Central American Republics,
conclu~:d at Washington on February 7, 1923 (17 A.j. ( 1923), Suppl. p. 119), as expressly
rec~gmsmg this distinction. This provision does not, however, even if read in conjunction wit~
Article 7, bear out this contention.
19. Title II " Hondurans", Title IV "Citizens", the latter being · escribed as Hondurans over
~I years of age and those over 18 years of age who know how to read and write. (Constitution of
eptember 10, 1924: Law and Treaty Series No. 2 (1925), Pan-American Union. )
20. See Peaslee, Constitutions rif .Nations, 3rd revised ed., vol. IV, p. 959.
21. Cf infra, n. 24.
"Nationality" and its s1J'-'nonyms
6
. . . , r the State
neccssanlv a ctuzc 11 0 .
concerned; whether this is the case dcp .
. . r ·. . ends
.
on mumCipa aw,
: 1 1. . the qucsuon IS not rcle\ ant 10r mternatwnal Jaw F
. . . . . . . rorn
. f ., f'ntcrnatwnallaw It IS not mcorrect to say, m the word . f
thcpomto VICWO I . • . . 'd )'· h' )' fb. So
Oppcn1Cim.l . .22 "Nationahtv. of an mdtvJ .
ua IS Is qua Hy o emg a sub'
. . , 1 . J'k . ~ect
o f a ccrtam · State ·mel
' therefore Its citizen. . t . IS I ewisc a log,·ca1
consequence o f the exclusive · relevance of natwnahty . · for the purpose o·f
. ti'onal law that distinctions 1 1
mterna . made by mumc1pa . .aw between
. various·
, o f' nationals arc immatenal from the pomt of v1ew of mternational
c Iasses
• Z:i
law. Oppenheim states-
}11 genera. 1, 1·t rnatters
c ·
not ' as· t;1• r as• the

Law

of Nations

is concerned,
• • h . that Municipal
. Law m·ay
distinguish between different kmds of .s~lbj ects- for m stancc t ose who enJoy full potential
. 1Hs, anc1ar ron that. account
ng . named Citizens. and those who are less favoured, and arc on th at
account not named crttzcns. 2 ~

In the fifth and later editions, edited by Lauterpacht, reference is made in


this connection, by way of illustration, to the distinction between German
citizenship, which was limited to "persons of German or cognate blood",
and German nationality, which was created by the (now abolished) German
Reich Citizenship law of September 15, 1935, 25 one of the so-called
"Nuremberg Laws".
It is submitted that the thesis of the irrelevance in international law of
differentiations between nationals under municipal law requires a further
qualification, namely, that if provisions of municipal law concerning
nationality amount to an infringement of essential elements of the
conception of nationality in international law, they do become relevant
for international law. The present writer has clsewhere, 26 tried to pro\'e
that persons belonging to the specific group of "German nationals"
(Staatsangehoerige) in the meaning of the Reich Citizenship Law of 1935 were
not to be regarded as nationals in the meaning of international law. A State
may not only be restricted from differentiating between classes of subjects by
treaty 27 but such a restriction also exists under general customary
international law. Once municipal law in defining the nationals of the State
cuts across the definition of nationals under international law, once it takes
away from the meaning given to nationality according to municipal law
elements
. . which are essential under international law ' such municipal law is
mconststent with international law: its definitions of nationals must be

22. Sec pp. 642-3.


23. Sec p. 587.
24· Cj , for e?'amplc, the decision o f the Egyptian Mixed Court o f Appeal in Romano\'. Comm_a
(Ga<,ette des Trzbunaux Mixtes, 1926, p. 158; Annual Digest 1925- 1926 Case No. 195), where It
was held
. that "the enJO)ment
· , o f po I'1t1cal
· ·
nghts . 1s
wh1ch : a regular part
' ··
of c1ttzens h'1p, 15
· not
ehssenStJa! to nationality which is principa ll)· based on the idea of subiection to the so\'ereign of
t e tate." J

25. Reichsgeset;::blatt, I , p. 11 46.


26. The Underm · · ,r h u · · · I
Affi · L mzng OJ t e J•atzonalzry Concept by German Law Royal Institute of I nternauona
a1rs, ondon, 1943. ' ·
27. See Oppenheim, vol. I, p. 644.
Rr.rso r ti.I"Sn n t.r 7

disrcg-arclccl vvhcn the nationality status of an individual has to be


dctcnnincd f(x the purpose of international law by international tribunals.
\\"hat the essentials of the nationality concept under international law arc
will be discussed la tcr. 28
Other terms in foreign languages which are sometimes confused with
nationali~y are lndiger~al (in _Germa n enactments prior to 1919), Heimatrecht
(in Austnan law), Veczndad (m Spanish law). Like "citizenship'' in the feudal
State. these terms refer to a territorial relationship, to membership of a
municipality, rather than to nationality. "Denizen" is a term of English law
connoting a specific class ofsubjccts on whom this quality has been conferred
by Letters Patc nt~ 9 and who have somewhat inferior rights to those enjoyed
by other sul~jerts-a distinction which is irrelevant from the viewpoint of
international lavv.

B. Ressortissants

It remains to refer to the French term ressortissant in its relation to the English
term "national" . This seems necessary because frequently in international
instruments-as, for example, in the Peace Treaties concluded after the First
\\'oriel \Var-the term ressortissant is used in the French text where the term
"national" appears in the English text. Etymologically, the word-derived
from ressortir, "to spring from , to derive from"-refers particularly to th e
jurisdiction of origin. A ressortissant of a State is a person coming under the
so\·ereign jurisdiction of that State. From the legal point of view this
linguistic reference to jurisdiction does not lead very far: both nationals and
aliens, the latter while residing on the territory, come under the territorial
jurisdiction of the State; only in regard to personal jurisdiction is there a
distinction between nationals and aliens.
Is, then , the term ressortissant wider than the term "national", i.e., a person
coming under the personal jurisdiction of a State?
The question h as b een a nswered in the affirmative by the French Cour de
Cassation in Prince Elie de Bourbon-Parma v. Auroux es qualite et Ministere
public.ao The issue was whether the property situated in France of the
applicant, who contended that h e was not an Austrian national, was subject
to liquidation according to Article 294 of the Treaty of St. Germain and to
French exec utive laws and orders. In the text of the Trea ty the term
ressortissant is, as mentioned above, used in place of the English "national" .
In contradistinction to the Treaty of Versailles, of which both the English
and the French texts arc au thentic (Article 440), the Trea ty of St. Germain
contains the provision tha t in the case of divergencies between the English,
French and Italian texts (with the exception of Parts I and XIII ), the

28. See infra, pp. 29 et seqs.


29. CJ Dicey, The Conflicts if Laws, 5th ed., pp. 142, 143. B.D.I.L. vol. 5, pp. 214-220.
30. C lunet, 1923, pp. 904- 30. Cf the a rticle on this decision by Audinet in the same volume,
pp. 785- 96.
"Nationality" and its Synonyms
8
French version shall prevail (Article 381 ) . It was held, confirming the
.· fth e lower courts. ' that the appellant,. who had volunteered for the
d eCIS!OnS0
Austrian army and had served as an officer durmg the war, was an Austrian
ressortissant. The court examined the status of members of the e~emy's armed
forces in the light of other provisions of the Treaty as w.ell as m the light of
other international agreements, and came to.th~ conclusiOn. that members of
these forces who we're not nationals, were assimilated to nationals. The Cour
de Cassation whose opinion was supported by French legal authorities,3I
gave the ter~ a wider meaning than "national" so as to include, besides
nationals, other classes of persons coming under the protection of the State
concerned (proteges, protected persons). How far the term covers resident
aliens, who are temporarily under the protection of the State of residence, is
not clear.
Audinet, in his article, criticises this dictum of the court. He contends that
a presumption exists that the French and English texts are synonymous and
that terms in international treaties used in connection with the imposition of
restrictions and charges (mesures de rigueur) must, in case of doubt, be
interpreted restrictively. In spite of this argument, he approves of the
judgment on the ground that certain classes of aliens must in fact be treated
like nationals. The au thor refers in this connection to Article l 7 of the Hague
Convention of 1907 concerning the Rights and Duties of Neutrals in Case
of War, which excludes from the rights of neutrality nationals of neutral
States who, by their conduct, identify themselves with an enemy State. This
raises the important problem of the relevance of personal conduct, of
manifestations of the will of the individual, in questions of nationality, a
problem which will be discussed later, in the chapter dealing with plural
nationality. 32
The decision of the French court has been mentioned first because it deals
most thoroughly with the problem and has evoked the widest comments.
The same view has also been taken by international tribunals. Thus it
was held by the Austro-Roumanian Mixed Arbitral Tribunal in Kahane
(Successor) v. Parisi and Austrian State, 33 that a Roumanian Jew is to be
regarded as a Roumanian ressortissant in the meaning of the Treaty of St.
Germain. The reasons given by the Tribunal were-
(a) that the Roumanian Jews, though not considered as citizens, did not
have the status of stateless persons in Roumania;
(b) that the fact that the term "national" was used in the English text did
not show that the term ressortissant could not have a wider meaning;

31. ~ee Pillet, Traite Pratique de Droit International Prive, vol. I, para. 63, p. 163; Valery, Manuel
de Drozt International Prive, para. 124, p. 125.
~2. The question of personal conduct played an iwportant part in a modern English case
which aroused great interest in its legal and political aspects (Joyce v. Director ofPublic Prosecutions
[l9~6] ~.C. 347; Annual Digest, 1948, Case No. 31 ). The international aspect of this case-
wh•~h, m .the main, deals with questions of municipal law- will be discussed in the chapters
deahng Wit? conflict rules (infra, p. 195) and passports (infra, pp. 225-6).
33. Recuezl T.A.M., p. 943; A,mual Digest, 1929- 30, Case No. 131.
.Note on Enemy Character 9

(c) that it had been the object of the Treaty to include persons coming under
Roumanian jurisdiction, and that the native Roumanian J ews were such
persons in respect of matters d ealt with by the Treaty of St. Germain;
(d) the analogy with other treaties which use the term in a wider sense, such
as the Treaty between Austria and Roumania ofjuly 26, 1924, concerning
the R egulation of Oebts; 34
(e) that, historically, the signatories of the Treaty ofSt. Germain were partly
identical with the signatories of the Treaty of Berlin of 1878 who had
intended to secure citizens' rights for native Jews of Roumania.
The Tribunal referred to the Bourbon case (see supra, pp. 7-8).
In another case, National Bank of Egypt v. Austro-Hungarian Bank, 35 the
Anglo-Austrian Mixed Arbitral Tribunal held that a national of Egypt
(which at the time was under British protection) was a British ressortissant
within the meaning of the Treaty of St. Germain.
In the case of Falla-Nataf and Brothers v. Germany, 36 in which the claimants
were Tunisian nationals, the Franco-German l\1ixed Arbitral Tribunal
assumed jurisdiction on the ground that, as Tunis was a French Protectorate,
Tunisian nationals had to be considered as French ressortissants in the
meaning of Article 297 (e) of the Treaty of Versailles.
The Anglo-Turkish Mixed Arbitral Tribunal held in the cases of
Parounak and Bedros Parounakian v. Turkish Government 37 and Mme. Shah;:,ade
Sarkis Bezdikian v. Turkish Government, 38 that Cypriots were to be considered
as allied ressortissants in the sense of Article 64 of the Treaty of Lausanne,
by virtue of the British Protectorate over Cyprus.
In Wiener-Weimberger v. Friedlaender and Oliven, 39 the German-French
Mixed Arbitral Tribunal held that in spite of the wider meaning given to the
term ressortissant than to the term " national", the heimatlos (stateless persons)
cannot be considered as ressortissants in the meaning of Article 299 of the
Treaty of Versailles. 40

C. Note on "Enemy Character"

While the question of "enemy character" does not strictly fall within the
field of nationality law but belongs rather to the law of war, it seems

34. L.N.T .S., vol. 85, p. 223.


35. 3 Recueil T .A .M., p. 236; Annual Digest, 1923-24, Case No. 10.
36. 7 Recueil T .A .M ., p. 642; Annual Digest, 1927-28, Case No. 24.
37. 9 Recueil T .A .M. , p. 748; Annual Digest, 1929-30, Case No. II.
38. 9 Recueil T.A .M ., p. 757.
39. 2 Recueil T.A.M., p. 798.
40. Sir j ohn Fischer Williams, in his article entitled "Denationalization" in 8 B.Y. (1927),
pp. 45- 61, declares that the word can hardly be translated into English but that "dependent" is
the most congruous term (at p. 56). Cf also Schwarzenberger, vol. I, pp. 377-78.
"Nationality" and its Synorryms
lO
. h 41
. . 1 d a brief note on t h e su b~ ect ere m order t
0

appropnate to me u . e b h o
. h d " t"nction tha t must be made etween t e two notions of
emphasise t e IS I . d . "d 1
·
" natwna - "
1tty and "enemy character" of m IVI ua s.d
Hardl any rules of internatio~al law have been eveloped defini~g the
y ter ofindividuals.42 fhe reason must probably be sought In the
enemv c h arac .. . .
: . · s of States on the declSlve test m questions of status
con ftICtmg VIeW . . ,
. .
nauona1Ity em b · g the predominant test m the countnes of the European
. .. .
· t d icile in the Anglo-Saxon countnes. fhese tests have hkewise
Contmen, om f' d' 'd 1 · ·
been applied to define the en emy character. o m r~'l ua s, nati.on~lHy being
· test flor example in France, residence m Great Bntam and the
t he mam , ' · 1·
U me't d States of America . Provisions of conventwna mternational law
f h ..
· down rules are rare. 43 In the absence o · sue provisiOns the matter is
Iaymg " I . h .
left to municipal law. The old rule of common 1aw- t IS t e Kmg that
maketh an alien enemy"-remains true today. 44 The only parallel between
nationality and enemy character is that prima fa~ie national~ of a ~elligerent
State are deemed to be enemies by the other belhgerent, while nationals of a
neutral State are prima facia not regarded as su ch. This rule is, however,
subject to important qualificatio~s. As has ~ee~ stated a bove, the Anglo-
Saxon countries are inclined to giVe the terntonal test preference over the
nationality test. Even this rather outstanding difference between the
countries of continental Europe, on the one hand, and Great Britain and the
United States, on the other, has become blurred, particularly in the First
and Second World Wars. 45 France, in a Decree of September l , 1939,
deviated from the strict nationality test by exempting enemy nationals in
neutral countries from the provisions applicable to enemy nationals. In
Great Britain, the Trading with the Enemy Act, 1939, 46 provides explicitly
that no person shall be deemed an enemy solely because he is an enemy
subject. The definition given in the Act is the result of a long historical
development which cannot be d escribed here. While still basing its definition
on the common law test of residence and commercial domicile, the Act
tends to extend it by adding the conception of the enemy house of trade
and by the wide powers granted for placing persons on statutory lists and
so-called "black lists" .47 While the territorial test is still the main basis
for determining enemy character for the purpose of the Trading with the

4l. For a more detailed treatment cf. McNair, The Legal Effects of War, pp. 24-5, 29-32,
35-4~; Pa:ry, "The Trading with the Enemy Act", in M.L.R., 1940- 41, pp. 161 - 82; Domke,
.~radm~ u:z~h the Enerrry in World War II (1943), pp. 24- 119; van Pa nhuys pp. 11 3-125; Weis,
Recogmtwn of Changes of Nationality", in Solicitors' Journal, 1945, pp. 193- 5, 205, 206.
42. Cf Oppenheim, vol. II, pp. 268- 275.
4~· Mainly Articles 16- 18 of Hague Convention No. V of 1907 respecting the Rights and
Duties of Neutral Powers in War on Land .
. ~- Cj, e.g., Calvin's Case (1608) 7 Co.Rep. 25b; "Wars do make aliens enemies and bellum
mdzcere belongeth only and wholly to the King."
45 · L~uterpacht, "The So-called Anglo-American and Continental Schools of Thought in
International Law", in 12 B.Y. (1931), pp. 31-62, at pp. 36-7.
46. 2 & 3 Geo. 6, c. 89, s. 2.
47. Cf Parry, "The Trading with the Enemy Act", loc. cit.
]\ole on Enemy Character ll

Enemy R egulations, the nationality test plays an important role for purposes
of public security. 48 It is, however, a modified nationality test, which tends
to give the t~rm "~ational " a wider meaning. This may be explained by
security con~Iderauons and apparently accounts for a number of decisions
where the question of nationality was at stake and where persons who could
not or who could no longer be regarded as nationals of the enemy State
under its laws were held to be enemy aliens. 49 Brownlie speaks in those cases,
when a person is regarded as an "enemy alien" independently of his
technical nationality, of " functional nationality". oo
To sum up, it may be said that, while for the determination of the
nationality of a person the law of the State whose nationality is in question
has to be applied, each belligerent State is free to apply-without prejudice
to existing treaty obligations- its own laws for determining enemy character.
It follows that results may differ for different purposes, under different
provisions of municipal law.
Moreover, nationals of a neutral State acquire enemy character if they
have, in some way, identified themselves by their conduct with the enemy,
e.g., by joining his armed forces: they have become "assimilated to enemy
nationals". 51 This applies even to the belligerent's own subjects.~>2
While these instances may create the impression that the notion of
"enemy" is wider than that of "enemy national", a belligerent State is
equally free to exempt enemy nationals or certain classes of them from
the treatment applied to persons vested with enemy character, e.g., the
exemption of enemy nationals resident in neutral territory by virtue of the
territorial test. It may create a class of ''friendly enemies". It was held by
Treby C.J. in Wells v. Williams53 that "the King may declare war against one
part of the subjects of a prince and may except the other part". During the
First \Vorld War certain classes of enemy subjects were granted exemption
from the enemy aliens restrictions by virtue of powers conferred upon the

48. Cf the Aliens R estriction Act, 19 14 ( 4 & 5 Geo. 5, c. 12), the Aliens Order, 19 19 (S.R. &
0., No. 1077) as amended, and the imernment of aliens under the Royal prerogative.
49. Ex p. Liebmann [1916] K.B. 268; Ex p. Weber [1 9 16] I K.B. 280, [1 9 16] I A.C. 421; The
King v. The Home Secretary, ex p. L. and Another [1945] I K.B. 7; Lowenthal and Others v. Att.-Gen.
[1948)1 All E.R. 295. See on these decisions McNair, op. cit., p. 59, and infra pp. 122, 143.
50. See Brownlie "The Relation of Nationality in Public International Law" in 39 B.Y.
(1963), pp. 284- 364, at p. 344; id. " Principles of Public International Law" 2nd ed. ( 1973) p. 392.
51. Cf the decision cited supra, at p. 7; see also R . v. Schieuer ( 1759) 2 Burr. 765; The Three
Spanish Sailors (1779) 2 W.Black. 1324, Sparenburglz v. Bannaryne (1797) I Bos. & P. 163.
52. See Netherlands South African Ry. v. Fisher ( 1901 ) 18 T.L.R. 116; McConnell v. Hector (1802)
3 Bos. & P. 113, 114; 0' Mealey v. Wilson ( 1808) I Camp. 482, 483; Janson v. Driefontein Consol.
Mines [1902] A.C. (H .L.) 484; and Lord Reading's dictum in Porter v. Freudenberg [1915)
l K.B. 857, at p. 868.
53. (1617) I Ld.Raym. 282.
12 "Nationality" and its S
rynonyrns

competent authorities by Order in Council. 54 This practice became


. ld W . . even
more general dunng the Second Wor ar, owmg to the 1deolo · ,
. . . . h All" gical
character of the conflict and to the presence m t e 1ed countries of
. . . h great
1
numbers of refugees of enemy natlona lty w o were opposed to the en emy
Governments. 55
The Peace Treaties co~~.lud~d after ~he Seco.nd ~orld War provide
explicitly that the term Um~ed. Natw~s natiOnals also includes all
individuals, corporations or associatiOns wh1ch, under the law in force in
(the enemy State concerned ) ... during the war, have been treated ~·
enemy", i.e. in particular Jews and corporations and associations considere~
as J ewish. 56

54. For example, the Aliens Restriction (Armenians, etc.) Order, 1915 (S.R. & 0., No.4);
Aliens Restriction (Amendment) Orders, 1918 (S.R. & 0., No. 175 and No. 603). By s. 4 of the
former, power was given to exempt alien enemies of Polish race from any or all enemy aliens
restrictions; by the latter, Turkish subjects fulfilling certain conditions as to race or religion,
who were opposed to the existing Turkish regime, could similarly be exempt.
55. Cf Aliens (Movement Restriction) Order, 1940 (S.R. & 0., No. 819), Article 5; the
same, 1941 (S.R. & 0., No. 58); Aliens (Release from Actual Military Service) Order, 1943
(S.R. & 0., No. 94), Art. 2; Aliens (No.2) Order, 1944 (S.R. & 0., No. 1315). Cf also, for the
United States, Ex p. Kumu:.o Kawato ( 1942) 317 U.S. 69, at pp. 73, 74, 76 (63 S.Ct 115), and the
following articles: Wilson, "Internment", in 33 A.j. ( 1939), pp. 736-7; Kempner, "The Enemy
Alien Problem in the Present War", 34 ibid. ( 1940), pp. 943- 58; Cohn, " Legal Aspec~s. of
Internment", in M.L.R. (1941), pp. 200-9; Feist, ibid., pp. 51-3; and see Weis, The Undermmzng
of the Nationality Concept by German Law ( 1943).
56. Peace Treaty with Italy Article 78 sec. 9 (a), with Roumania Art. 24 sec. 9 (a).,
Bulgaria Art. 23 sec. 8 (a), Hungary Art. 26 sec. 9 (a), Finland Art. 25 sec. 8 (a);.
cf. also e.g. the Ua.ielli Claim, Italian-U.S. Conciliation Commission vol. 7, No. 229, Levt
d'Ascona Claim, vol. 7, No. 234, 33 Int. Law Reports p. 169.
Chapter 2

Nationality in Composite States and Dependencies

A. Composite States 1

Nationality connotes the quality ofbeing a member of a State which is vested


with the character of a subject of international law (international person).
It is through the medium of the subject of international law to which an
individual belongs that he is connected with international law, 2 that he
acquires his Voelkerrechtsindigenat. 3 The internal composition of the State is, it
should be noted, not relevant unless it affects the quality of the State as a
subject of international law.
Where, however, a State is composed of elements which are themselves
international persons, then membership, i.e., nationality, of any one such
element may exist.
In the case of Personal Unions, identity of nationality exists because of the
identity of the sovereign. 4 Such common nationality ceases, however, to exist
on the severance of the two Crowns. Subjects of one State hitherto belonging
to the Union become, from the date of severance, aliens in the other State,
and are, for example, not entitled to vote there. This was decided in 1886 in
Re Stepney Election Petition (Isaacson v. Durant), where it was held by Coleridge
C.J. that persons born in Hanover before the accession ofQueen Victoria to
the throne of the United Kingdom and not naturalised were, though resident
in the United Kingdom, aliens and not entitled to vote at the election of
members of Parliament. Dicta in Calvin's case,!' which may give rise to the
opposite view, regarding the anti-nati were dissented from: the main reason
being that according to modern doctrine allegiance is due to the King "in
his politic and not iri his personal capacity". 6
In the case of a Real Union, as distinct from a Personal Union, something
more than the person of the sovereign binds the two sovereign States

l. Cf Oppenheim, vol. I, pp. 169- 188.


2. Ibid., pp. 583-671, at p. 588: "Nationality is the principal link between individuals and the
benefits of the Law of Nations."
3. See Stoerk, "Staatsunterthanen und Fremde" in Holtzendorff, Handbuch des Voelkerrechts,
vol. II, pp. 583-671, at. p. 588.
4. Calvin's Case, 7 Co.Rep. 16b.
5. 7 Co.Rep. 27b.
6. 17 QB.D. 54, at p. 65, cJ. 5 B.D.I.L. vol. 5, pp. 61- 65, McNair " International Law
Opinions" (1956), vol. I, pp. 33- 35.
Nationality in Composite States and De~>end .
14 r enczes

together. Usually it is a treaty ~nde~ w~ich the ~wo St~tes agree to act as
one in certain matters, includmg f~re1gn rela~10ns. 1~ ~r the purpose of
international law the R eal Union 1s one subje~t of mternational law.
Nationality of the Union is, therefore, mem bersh1p. of the Union as such.
Under the municipal law of the mem?e.r St~tes ~or.mmg th~ Union different
nationalities may exist, but such d1stmcuon 1s :mrr:atenal and may be
disregard ed under international law. The question IS only of theoretical
interest as no Real Unions exist at present. In the case of the most important
R eal Union of recent history, the Austro-Hungarian Monarchy, distinct
Austrian and Hungarian Nationalities existed. This distinction was
recognised by other countries for .reasons, it is. t~ought, of international
comity, which would not lightly disregard mumopal law unless it was in
flagrant violation of international ~a'; . •
7

vVhile it is possible to draw a d1stmct1on between Personal Unions and


Real Unions, it is more difficult to draw the line between Confederated
States and Federal States. The view taken by earlier writers that a
Confederation is a Union of international law created by international
treaty, and a Federal State a Union of constitutional law created by
municipal law, is not borne out by the historic examples. The view taken by
Kelsen s that no clear borderline exists and that the distinction depends on
the degree of decentralisation is probably correct.
For the purpose of the law of nationality the decisive factor is whether
the Union has direct jurisdiction over the subjects of the member States.
There cannot be a double link, resulting from Union and member-State
nationality, between the individual and international law. If the Union has
jurisdiction over the individual, Union nationality is the decisive link; if not,
member-State nationality.
All the Unions at present in existence (which are Federal States) provide
for a Union nationality common to all subjects of the member-States. The
method of acquiring such nationality, however, varies. In some Unions
member-State nationality is of primary importance and its acquisition
automatically carries Union nationality. To this category belong-
Austria, until 1938. The Nationality Law of August 18, 1965 does not refer to

7. In the Advisory Opinion concerning the Question of the Jaworzina Boundary (P.C.I.J ., Series
B, No. 8), the Permanent Court of International Justice described (at p. 43) Austria and
Hungary before 1918 as " distinct international units" and the frontier between them as an
"international fronti er", referring to the Arbitration Award of September 13, 1902, with regard
to the "Meerauge question". In Administrative Decision No. 1 of the Tripartite Claims
Comm~ss~on (United States, Austria, Hungary) (see 21 A.j. (192 7), p. 599), it was held ?Y
C~m.mtsSIO~er Parker that " the former Austrian Empire and the Kingdom of Hungary while
extstmg as m~ependent S~ates had no international status" (at p. 607). In his description _of_ the
pre-war relatiOns of Austna and Hungary the Commissioner called them "separate and dtstmct
States"· He mentioned the fact that the citizenship of each was distinct from the other and that
Austro-Hu?garian citizenship did not exist. Quaere: What is meant with reference to existing
well-estabhs~ed States by an " independent State having no international status"?
8. Allgememe Staatslehre, p. 194; Principles of International Law, p. 172.
The British Commonu:ealth 15

I
ne mber-State nationality. Questions of nationalitv. come ' howe\ er ' within
the jurisdiction of the member-State (Land) Governments.
Germany, as it was constituted before 1945: Law of july 22, 1913, s. 1.
Both Austria and Germ~ny_ had, however, also direct federal nationality.
Su.:itzerland. Federal Constitution of l\1ay 29, 1874, as amended, Article 43.
In the following States nationality is a matter of exclusive jurisdiction of
the Union, and nationality of the Union carries, therefore-subject usually
to certain additional conditions such as, for instance, residence-member-
State nationality-
A1gentina. Constitution of l\1arch 16, 1949, Article 68.
Brazil. Constitution of January 24, 1967, Article 8.
Mexico. Law ofMay 28, 1886; Constitution of.January 31, 1917, Articles
30-32, 34-38.
Republic of South Africa. South African Citizenship Act, 1949, (No. 44).
United States of America. Fourteenth Amendment to the Constitution, of june
16, 1866 ( 14 Stat. 358), section 1.
In the British Dominions of a federal character questions of nationality come
under the jurisdiction of the Union-
Australian Commonwealth. Nationality and Citizenship Act, 1948 (No. 83 of
1948).
Canada. Canadian Citizenship Act, 1946 ( 10 Geo. 6, c. 15), as amended 1950
(14 Geo. 6, c. 29), 1951 (15 Geo. 6, c. 12) and 1952 (1 & 2 Eliz. 2, c. 23).
India. Constitution of November 26, 1949, Article 11.
The Soviet Union has, according to the citizenship law of August 18, 1938, a
mixed system, with nationality falling within the jurisdiction both of the
Union and of the Union Republics. There cannot be any doubt, however,
that Union nationality is the overriding consideration. 9

B. The British Commonwealth

The question of nationality in the British Commonwealth of Nations,


which is of great complexity, comes mainly within the purview of British
Constitutional Law and has generally been dealt with by constitutional
lawyers. 10 It can only be briefly referred to here so far as it is of relevance for
international law.
By the British Nationality Act, 1948, 11 a development in the conception
of British nationality running parallel with the constitutional development
of the British Commonwealth of Nations, has been embodied in a statute.
The Common Law doctrine was that of a common status ofBritish subjects.

9. Cf Sandifer, "Soviet Citizenship" , in 30 A.J. (1936), pp. 614- 63.


10. Cf van Pittius, .Nationality within the British Commonwealth of Nations; Wheare, The Statute of
Wes~minster and Dominion Status; Mervyn Jones, British Nationality Law ( 1956); "The British
Nationality Act, 1948", in 25 B.Y. (1948), pp. 158-79; Parry, British Nationality (1951).
"Nationality and Citizenship Laws of the Commonwealth and the Republic of Ireland" ( 1957); Cuthbert
Joseph "Protection and .Nationality- The Commonwealth of Nations" ( 1968).
11. 11 & 12 Geo. 6, c. 56.
16 Nationality in Composite States and Dependenczes
·

That sta tus applied to all persons born within the King\ dominions a d
allegiance. The Imperial Parliament of \1\'estminster was competent~
legislate for any part of the British Empire. When the British Nationalito
and Status of Aliens Act12 was enacted in 1914 a certain evolution in th~
relations between the Members of the Commonwealth had already taken
place. Though still a n Act of the Imperial Parliament, only Parts I and
III of the Act were intended to apply to all parts of the Empire. Part 11
relating to naturalisation, was to b e adopted by the Dominions. In fact, mos~
of the Dominions enacted their own legislation relating to nationality, but
that legislation was largely identical or very similar to the Act of 1914
including Part I I I. Thus legal unity was replaced by factual uniformity of
nationality laws: different enactments resulted in a "common code ofBritish
nationality" . 13
After the First World War the self-governing Dominions attained the
status of international p ersons. This factual development found legal
expression in the Statute of W estminster of 1931.14
Apart from the Dominions which are international persons, there remains
the British Commonwealth of Nations as a unit sui generis in international
law. 15 The sovereign independence of the Members of the Commonwealth is
qualified by political agreement for prior consultation between the members
on certain important political questions, resulting in recommendations
reached at Commonwealth Conferences. This resulted in a certain degree of
uniformity of legislation, reached through mutual understanding.
In the field of nationality this means that nationality falls within
the jurisdiction of the member States. By common agreement however,
nationality, being a question which may affect the interests of other self-
governing parts, is considered as a matter of concern for all members of the
Commonwealth. At the Imperial Conference of 1930 it was agreed, by the
adoption of the Report of the preceding Conference on the Operation of
Dominion Legislation, that " no Member of the Commonwealth either could
or would contemplate seeking to confer on any person a status to be
operative throughout the Commonwealth save in pursuance of legislation
based upon common agreement .. . " 16 Nationality thus became a matter of
separate, but concerted, legislation.
Certain divergencies in this legislation developed, however, in the period
between 1914 and 1947, the most important being the creation of a separate
Canadian citizenship, by the Canadian Citizenship Act, 1946, a develop-
ment which had been initiated by the Canadian Nationals Act, 192 1.
This situation made new legislation necessary, and the principles of this
legisla tion were, in accordance with the constitutional rule providing for

12.4 & 5 Geo. 5, c. 17.


13. Mervynjones in 25 B.Y. (1948), at p. 158.
14. 22 Geo. 5, c. 4.
15. Oppenheim, vol. I, p. 210.
16. Cmd. 3479 (1929), paras. 77-8.
The British Commonwealth 17

prior consul~ation, agreed t? at a Conference of Legal Experts held


in London m 1947, at whtch representatives of all members of the
Commonwealth, including Eire, took part. A draft was adopted to be
recommended for legislation by the Governments of all Members of the
Commonwealth.
In the United Kingdom this legislation was enacted in the form of the
British Nationality Act, 1948. The other independent members of the
Commonwealth also enacted legislation which took account of the
recommendations of the 1946 Conference of Legal Experts or amended their
legislation in the sense of these recommendations. Though of greater
diversity than the concerted Nationality Acts, they still showed a
considerable degree of uniformity, being based on jus soli.
Subsequent developments, in particular the process of decolonisation and
the legislation enacted by the newly independent States, have largely done
away with this uniformity. The common code has been abolished. The
newly independent States became members of the Commonwealth, with the
exception of Burma and South Yemen. They enacted their own nationality
legislation which is not based on the common code.
The concept of allegiance to the common Crown is no longer the basis
of British nationality since a number of Commonwealth countries have
become Republics, although the Queen is recognised as the Head of the
Commonwealth. The citizens of Commonwealth countries have this in
common: that they are not regarded as aliens in other Commonwealth
countries. Moreover, they were, in the United Kingdom, entitled to
privileged treatment as regards acquisition of citizenship; such acquisition
takes place not by naturalisation but by registration and was conditional
on minimum residence qualifications only. In the United Kingdom the
residence period required for registration since the entry into force of the
Commonwealth Immigrants, 196217 is five years' ordinary residence-the
same period as required for naturalisation. Registration nevertheless still
constitutes a simplified method for the acquisition of citizenship as compared
with naturalisation. In the United Kingdom Commonwealth citizens have
the right to vote in Parliamentary and local elections. It has so far been
the normal practice that citizens of a member of the Commonwealth
which is not diplomatically represented in a foreign country are, in
the country concerned, protected by the Representative of the United
Kingdom government acting as agent for the Commonwealth government
concerned.1s
In this way, the common status of British subject or Commonwealth
citizen has been maintained. It connotes membership of that unit sui generis
in international law "the Commonwealth of Nations", and is derived from
the possession ofthe'nationality of a member State. While it has, as has been

17. 10 & II Eliz. 2 c. 21.


18. Cf Cuthbertjoseph op.cit. pp. 213-220.
18 N ationality in Composite States and Dehend
r
·
enczes

mentioned , certa in legal consequences, it is probably true to say tha t th'15.


sta tus has today greater poli tical than legal significance.19
For the purpose of the British Na tiona lity Act, 1948, the expression
" British Subject" a nd the expression "Commonwealth Citizen" have th
same meaning (s. l (2)) . In addition , there exists the citizenship 0~
na tionality of one of the l\1embers of the Commonwealth (in the United
Kingdom called "citizenship of the United Kingdo.m a~d Colonies").
As in interna tiona l law these l\1embers a re Sta tes, na twnah ty in the sense
of international ·law must, in rela tion to the British Commonwealth of
na tions, be considered to refer to nationality of a Mem ber Sta te of the
Commonwealth. It is determined exclusively by the law of that Sta te.
The status of a British subject attaches in addition-
(a) to citizens of Eire, who, before the commencem ent of the British
Na tionality Act, 1948, were British subjects, who fulfil certain conditions of
association with the United Kingdom a nd who by written notice to the
Secretary of Sta te elect to retain their status as British subj ects (s. 2);
(b) as a transitional measure, until all Commonwealth countries have
enacted na tionality laws, to persons who were British subjects before the
commencement of the Act, but whose citizenship has not yet been
ascertained (so-called British subjects witho ut citizenship) (s. 13).
British protected persons, as defin ed by successive British protectorates,
Protected States and Protected Persons Orders in Council, at present by the
Order of 1969,20 are British nationa ls without being British subjects.21
The special situation of citizens of Eire, which has seced ed from the
Commonwealth, has been taken into account in the Act (ss. 2 and 32 (i) ). It
must be noted , however, tha t British subj ects who are citizens of another
Member State of the Commonwealth and citizens of Eire are not considered
as aliens under the law of the United Kingdom; British subjects who are not
citizens of Eire are, however, considered as aliens under the law of Eire.

C. British Protected Persons 22

R eference must be m ade here to the status of British protected persons.


T echnically, as d efined in the British N a tionality Act, 1948, the term
" means a person who is a member of a class of p ersons d eclared by Order in
Council made in rela tion to any protectora te, protected sta te, mandated
territory or trust territory, to be for the purpose of this Act British protected
persons by virtue of their connection [ita lics added] with the protected state or
territory" (s. 32 (i) ). The na ture of the connection , and the territories which

19. Cf J ones " British Nationality Law" p. IX .


20. S.l. 1969, No. 1832.
2l. But this is subject to qualifications: see infra, pp. 18- 24.
22. Cf Jones, " Who are British Protected Persons?" in 22 B.Y. ( 1945), pp. 122- 9; "The
British Nationality Act, 1948", 25 ibid. ( 1948), pp. 158- 9 and 175- 6; British Nationality Law,
pp. 185- 9, 192 and 195; Parry, British Nationality, pp. 10- 11 , 94- 7, 153- 5 id. Nationality and
Citizenship Laws of the Commonwealth, pp. 356- 427.
British Protfcted Pt·rsons I~

are British Protectorates o r British Protected States, arc ddinecl by the


British Protec torates, Protec ted States and Pro tected Persons Order in
Council , 1969 whic h replaced the Orders of 1965 and I~)() 7. Whnc a loca l
citizenship or nationality law exists, the conJH'Ction is possession of the
citizenship or nat ionality of the te rritory (s. 19).
The territories arc those in which Her Majesty exercises jurisdic tio n but
which do not belong to the Queen's dominions. The status of British
protected persons within the m ea ning of the Order in rela tion to the
Protectorate or Protec ted State to which they belong is the same as tha t of
nationals in rela tion to their State of nationality, whic h is a subj ect of
interna tional law. To these, numerically the la rgest group of British
protected persons, must be added persons to whom the status of ''British
Protected Persons" has been granted individually. Persons who in the past
had been granted " local naturalisation'' in a British territory were no t
regarded as British subjects in other parts of the Commonwealth. 2 :1 Such
persons naturalised locally in a colony or protectorate under ad ministration
by the United Kingdom were made citizens of the United Kingdom and
Colonies, under s. 12 ss. ( l ) (b ) of the Act of 1948. Previously, persons locally
naturalized in any part of the Commonwealth were granted passports as
British protected persons a nd their passports were endorsed to the effect that
the holder was "entitled as a matter of courtesy to the general good offices
and assistance of H.M. R epresentatives abroad". 24 Protection is also given
in. those rare cases where a person has been recognised as a British subject
and been granted a British passport in error. Such persons arc, as a favour,
and in order to avoid hardship, given passports; until 1949 they were
considered as British protected persons and thus continued to enjoy British
nationality.25
The position of the first group of British protected persons from the point
of view of British Constitutional Law has been clarified b y the British
Nationality Act, 1948, in so far as such persons are no longer considered to
be aliens for the purpose of the Act (s. 32 (i)) nor for the purpose of the
Aliens Restric tion Acts, 1914 and 19 19, and Orders made thereunder (s. 3
(3) ). (In the past they were treated as aliens for certain purposes, e.g., for
the purpose of the British·Nationa lity and Status of Aliens Act, 191 4, but
not for others; thus the Aliens Order, 1943,26 provided that "an alien who is
a British protected person shall be deemed not to be a n alien for the purpose
of any provision having effect by virtue of this Order" .) 27

23. Cf Markwald v. Attorney General ( 1920) I C h. 348 where it was held by the English Court
?f Appeal that a German-born subject locally naturalised in Australia " was .. . an alien when
m the United Kingdom".
24. Cf B.D.I.L. vol. 5, pp. 332, 334, Law Officers' Reports quoted at pp. 443- 5.
25. So-called defacto protected "-British registered" persons, if. jones op. cit. p. 193; id., in 22
B.Y. ( 1945) pp. 123-4
26. S.R. & 0. 1943, No. 1378, Article 2, amending the Aliens Order 1920.
27 · In Sobhu~a 11 v. Miller [1926] A. C. 518, the judicial Committee of the Privy Council held
that a Crown grant in the British Protectorate of Swaziland was an act of State and could not
N ationalil)l in Composite Stales and Dependencies
20

In addition to British protected persons under the law of the U nited


Kirwdom there exist British protected persons under the law of other
MeJ~bers,ofthc Commonwealth. The common fea ture of the various groups
of British protected persons is tha t they ha~ituall y a nd permanently enjoy
British protection without being British _subjeCts. . . .
I· rom the point of view of internatlo~al l~w th~ dts_unctJOn between
British protected persons a nd British s~bjeCts Js. ~f little Importance, with
the exception of those connected w1th a Bnt1sh M a nda ted or Trust
T erritory.2s There are, however, a~ prese~t no longer any mandated or trust
territories administered by the Umted Kmgdom or by other members of the
Commonwealth.
For the purpose of interna tional law, British protected persons are
" na tionals of the Commonwealth" and nationa ls of that member State of
the Commonwealth under whose law they have the status of protected
persons.29 •
While they were, prior to the entry mto force of the Act of 1948, treated
as aliens for the purpose of their entry into the United Kingdom, they had,
in view of s. 3 ss. 3 of the Act, the same right of entry as British subjects.
The right of entry has, however, been made conditional on leave being
granted by the United Kingdom Immigration Acts, in particular by the
Commonwealth Immigrants Act, 1962.30

D. Mandated and Trust Territories

The problem of the nationality status of the inhabitants of mandated and


trust territories may soon be of historical interest only as no mandated and
few trust territories, administered by the United States, are left. It
nevertheless deserves treatment here on account of the questions of
international law involved and the conflicting views taken. The question of
the status of inhabitants of mandated territories was the subject of discussions
in the Council of the League of Nations.
On April 22, 1923 the Council adopted the following resolution: 31
The Council of the League of Nations.
Having considered the i eport of the Permanent Mandates Commission on the national status of
the inhabitants of territories under B and C mandates
In accordance with the principles laid down in Art. 22of the Covenant resolves as follows:-
( 1) The sta tus of the native inhabitants of a mandated territory is distinct from that of the

be questioned in a court of law. In upholding the plea of " act ofState", which is only available
in respect of acts done outside H .M. Dominions and in relation to persons who are not British
subjects, the Privy Council by implication regarded the inhabitants of a British Protectorate as
aliens.
28. See as regards these persons sec. D of this chapter, infra pp. 20-25.
29. Cf Jones, British .Nationaliry Law, p. 193.
30. 10 & II Eliz. 2, c. 21; on the question of the right of entry see infra pp. 49-53.
31. League of Nations, Official Journal, 1923, p. 604. ·
.\/(lndntrd a11d Trust 7 errilories 21

~ taud.tlol') Power a nd ~·anrtot b · identified thet·cwith br any procc.: ha\'ing gcnt'ral


·' ppl ir .II io u. . . . . . . . . . .
(:!) The nalt \'t' rnh a btlant~ o l a m ,mda ll:d tl'l'ntory arc no trnn· ted with the natton a ht ) ofthc
1\l:andatory P t iWt'l' by reason or the protrc tinn extended to them .
(:\) It is not inconsistent with ( I ) and (2) above £ha t ind ividual inha bitants of the ma nda ted
«r rri hll' · should \'11luntaril) obtain na tura lisa tion fro m the l\landatory Po\\ cr in accorda nce
with . 1 rr.tn~elllt'nts which it is op en to such Po wer to m.tke. with thi o bjec t. under its o wn law.
( 1) It i · rk sirabk that na ti \'l' inhabitant · who rl'ccive pro tectio n of the \l.111da to ry P O\\(' r
shnuld illl':tCh C IS!' be de·ig-na tcd U)' SOIII C form of cfescriptivc title which will spcci() their Sta tuS
1111der tht' ma nda i<'.

The lega l sig nifica nce of resolutions of interna tional organs is a m oot
question, but on e must agree with the o pinion expressed in Oppenhcim 32
that this resolution embodies the ·orrcct doc trin e. It must be no ted that it
deals will1 the national status of native inhabitants only. No agreement
existed in the Council of the League of Nations o n the question whether the
mandatory system applied to inha bitants of a different origin. 33
The national status of a n a ti\·e of an "A" l\1andatc beca m e the subj ect of
judicial d ec i~ion by the English High C ourt in R. \'. J(eller,34 where it was
·hdd that a Palestinian nationa l in Great Britain was not a British subject. It
was held that the appellant , a nath·c of Pa lestine born at a time '"'· hen tha t
tl'rrit ory was und er Turkish sovereignt y, but holding a passport marked
''British passport- Palestine" had not become a British subject by virtue of
Article 30 of the Treat y of Peace with Turkey 35 nor under the terms of the
Mandate of July 24-, 1922,36 since Palestine was no t transferred to and,
consequently, was not a nnexed 37 b y Great Britain by either the Trea ty or the
Mandate. Palestine na tionality was regulated by the Palestine Citizt'nship
Orcier, 1 9~5, 311 an Order in Council maci e by virtue of the Fore ign
Jurisdiction Act 1890. The court h eld tha t e\·en if it accepted the
contention of t he appellant tha t the Order was of no fo rce or va lidity be ause
it had been made by the Mandatory Power and not by the Administration of
Palest in· who were responsible under Article 7 of the l\1andate, the
appdlant would remain a Turkish subject and would no t b ecome a British
subj ect.
As to tlw chang · of sovereignty over Palestine by the Treaty of Peace with
Turkey and the mandate, it is the prevalent view that this was an act of
dereliction and not of cession on the part of Turkcy. 311 Wha tever view one

32. 7th ed ., pp. 203- 4.


33. Lc·ague of Natio ns Official Journal, 1913. Annex 497a.
:H. [1 940) 1 K .B. 787; 55 T.L.R. H 9; [1 9:59) I All E.R. 729.
:~5. Tn·aty or Lausanm· of .July 14, 1923 (U.K.T.S., No. 16 ( 19:2:3) ).
3G. Of which the Preamble and Artidcs I , 5, 7 and 1:2 han· a bcnring on the questio n of
nationa lit y.
:37. In the m eaning of s. '27 ( I ) of the British Na tionalit y a nd Status o f Alit>ns Act, 19 H , a..<;
amended by the llritish Natio nalit y and Status of Aliens Act. 19 18.
3R. S.R. & 0 ., 1925. No. 25.
:59. C'.J. McNair, "Manclah·s," in Camhl'itlf!~ /.aw J oumnl, 192R, pp. 149- 60, at p . 155; Hak'S,
''Snmc Legal Aspc<·ts of the Manclah'S Sys~t·m, ' ' in Gl'olius Transactions, 19:JR, pp. 85- 126. at
p. 95 .
N ativualit_y in Compo.1itl' States nnr/ /) r't'Jt'fl/ .
22 ( 1:1/C11' .\

mav take on the diflic ult qu estion .in whom so\'l'J' ·ignty <JV IT a marr tl<tll'd
tcn:itory is vested , so much is ccr~a.n~, that the Mandatory ~~oes llot pc,s-;css
full sovereignt y over the territory. I ~11~ wa~ stated by.J~tdgc Str 0r~told (lat er
Lord ) ~'lcNair in his sepa ra te opmto n m . th e i\cl v rsor~ Opuuon of tlu·
I ntcrnational Court ofjustice on th e l~ttematwnal Status q(Sou~h- West A./rica in
these words: ''the doctrine of soverergnt y has no apphcatton to this new
system . . . sovereignty over ~ ~and.atcd territory. is in abeya nce ... the
rvland atory acquires onl y a hmlled title to th e tcrntory entrusted to it".4n
The d ecision in R. v. Ketter is, therefore, in accorda nce with international
law. The court cited the decision of the High Cou rt of Pa k stin c in Att.-Gen.
v. Goralschwili et al.,4l where it was held tha t a Palestinia n national could
be surrendered to Ita ly notwithsta nd ing. a n c~i.sting ~xtradition Trea ty
between Great Britain a nd Italy under whrch Bnush subj ects were not to be
surrendered to Italy, a nd vice versa. In Saikaly v. Saikaly 42 the Egyptian Mixed
Court of M ansoura h d ecided, on demurrer to its jurisdiction , that a
ressortissant of Palestine, a former Ottoman terri tory, was a foreign subject in
Egypt. Further, there may be cited the decision of the High Court of
U ruguay of March 7, 1928, 43 in which it was held tha t the Treaty of
Extradition between Great Britain a nd Uruguay of 1884 could not be
applied to territories und er British Mandate. The court adopted the opinion
of the Attorney-Gen eral in the m a tter.
In practice, Palestinian na tiona ls were treated in Great Britain on the
same footing as British Protected P ersons. In the Second World War they
were first issued with Aliens' Certificates of R egistration, which were later
withdrawn; they were exempt from the special restrictions applicable to
aliens but, on the other ha nd, they were not subject to the obligations of
National Service in the same way as British subj ects.
The question of Palestinian n a tionality, though now obsolete, has been
referred to here in some detail as it is m ainly with reference to this territory
that the problem of nationality in mandated territories has been elucidated
by judicial d ecisions. The d ecision in R. v. Christian,44 where it was held that
a n inhabitant of the Manda ted Territory of South-West Africa could
commit high treason against the Union of South Africa, ha rdly sheds any
light on the question of nationality, particularly in view of the later decision
of the H o use of Lords in Joyce v. Director of Public Prosecutions, where the
accused, who was not a British subj ect but who held a British passport, was
held guilty of treason.4a

40. I.C.J . Reports, 1950, p. 128, at p. 150.


41. Annual Digest, 1925-26, Case No. 33.
42. Ga<_elte des Tribunaux Mixtes, 1926, p. 119; Clunet, 1926, p. 1069; Annual Digest, !925-26,
Case No. 34.
43. I Supp. ( 1928) ]urisprudencia de La Alta Corte de Justicia, p. 36; Annual Digest, 1927- 28, Case
No. 27. Cj a lso Schwarzenberger, Das Voelkerbundmandat fuer Palestina; id., in M.L.R., 1939 •
PP· 164, 165; Stoyanovsky, The Mandatefior Palestine pp 263-279· van Pittius oh. cit., PP· 20- l,
37, 190. ' · ' ' r
44. ( 1924) S.A.L.R. (A.D .) 101 ; Annual Digest, 1923-24, Case No. 12.
45. See infra. pp. 225- 6.
}.,fandated and Trust T erritories 23
Another ~ccisi~:m , given by the Tr~nsva al Provincial Division, relating to
the nationa hty of former G erman na tiona ls who were in South-West Africa
is more illumina ting. It was said in Rimpelt v. Clarkson:46 '
T he effect of the a ccep tance of the M a nda te is, however, governed by Article 119 of the
Trea ty of Versailles... . As was poin ted out in R. v. Christian, a nd is indeed mention ed in most if
not all of the textbooks a nd c~mmentaries on the subject, this renuncia tion [i.e., the
renunciation by ~erm any of he~ n ghts over her overseas possessions in favour of the Principal
Allied a nd Assocta ted Powers] d td not amount to a cession of a ny of such overseas territories to
the Allied Powers as a body or to a ny one of them . ( C.) .. R. v. Ketter [1 939] I All E. R . 729.) And it
is upon cessi~n of a ter~itory tha t ~he s~b_j ects of the ceding sta te lose their former nationa lity
and become mvcsted wllh the na t10na hty of the new sovereign . ...
Both in this case a nd in Westphal et Uxor v. Conducting Officer of Southern
Rhodesia,47 before the Capetown Provincia l Division, it was therefore held
that German na tiona ls resident in South-West Africa had not become British
subjects by virtue of Article 11 9 of the Treaty ofVersailles, coupled with the
fact that South-West Africa became a Manda te of the Union of South
Africa. 48
Mervyn J ones, commenting on the decision in R. v. Ketter,49 remarks that
Ketter was ". . . rightly held not to be a British subject. The court failed ,
however, to point out tha t h e was nevertheless a British na tional. If this
distinction had been apprecia ted , there would have b een a short a nd simple
answer to the argument on behalf of K etter, based on the Treaty of
Lausanne: he was a British na tional, but not a British subject" .
The present writer believes that this question requires closer examination.
The conferment of the status of British protected persons on ressortissants of
Mandated and Trust T erritories administered by the United Kingdom is
undoubtedly consistent with interna tional law,50 but one can ha rdly
conclude therefrom that they thereby become na tionals of the :Ma nda tory or
Trustee (Administering Authority) . 51
In the case of composite persons in international law, such as Protectorates
or Manda ted Areas, the power of the Protecting State or l\1andatory to alter
relevant facts of international relations by its own legisla tion, e.g. , to regulate
or alter the na tiona l status of the inhabita nts, is subj ect to international law.
The position differs little from the case of single international persons, where
municipal legisla tion, in order to have effect in international law, must be
recognised by other States. The only difference is tha t relations between a

4ti. Annual Digest, 194 7, Case No. 12.


47. {1948) 2 S.A.L.R. 18; Annual Digest, 1948, C ase No. 54.
48. In Wong Man On v. The Commonwealth it was held by the Austra lia n High Cou rt tha t a
person born in the A ustralia n T rust T erritory of New Guinea was a n a lien in Australia ( 19 Int.
Law Reports, p . 327).
49. In 22 B.Y. ( 1945), at p. 127, n. 2; British Nationality Law and P~actice, p. 2~6, n. 2.
50. Cf Point 4 of the R esolution of the Council of the League of Nauons of Ap nl, 1923 (supra,
p. 21).
51. CJ Point 2 of the above-mentioned R esolution (supra, p . 21) and the dictum in RimfJtlt v.
Clarkson (supra, p . 2'3).
Nationality in Composite States and De~>end .
24 f' enczes
Protecting State (Mandatory) a~d the Protected State (Mandated Area) are
themselves relations of international law.
The status of Mandated and Trust Territories is regulated by in-
ternational law.52 It is recognised that the Mandatory . . or
h Trustee may not
f h
annex or otherwise change the status o t e terntory wit out the consent f
the competent organ.53 The Trusteeship ~gr~ements ?onfer on t~e
Administering Authority "~u.ll powers of legislatiOn, admmistration and
jurisdiction, subject to ~he Pr~vzswns of the Charter and the Agr~e~ent, ~nd entitle it
to constitute the terntory mto a customs, fiscal or admimstrative union or
federation with adjacent territories under its sovereignty or control, wher
such measures are not inconsistent with the basic objectives of the international trusteeshipe
system and the terms oif the agreement.."54 .
In the view of the present wnter, It follows from the special status of
Mandated and Trust Territories that the conferment by t~e Ad.ministering
Authority of the status of protected persons on the mhabitants of a
Mandated or Trust Territory does not confer on those persons the status of
nationals of the administering State according to international law. The
position of these persons is somewhat anomalous whether one regards them
as having no nationality in the sense of international law or as being "for
various purposes of international law . . . attributable to the territory
itselP'; 55 they are protected by the Mandatory or Trustee.
Whatever view one takes on the character of Mandated and Trust
Territories, the nationality status of the inhabitants is distinct from that of
the nationals of the Mandatory or Trustees. The fallacy of the thesis of the
identity of the nationality of the Mandatory or Trustee and the Mandated or
Trust Territory becomes clear in those cases where the territory is
administered by several Powers.
The Institute oflnternational Law declared in Article VI of its Resolution
on l\.1andates, adopted at Cambridge in 1931: "les collectivitis sous mandat sont
des sujets de droit international ... leurs membres jouissent d'un statut international,
distinct de celui de l' Etat mandataire". 56

52. In the case of Mandated Areas principally by Article XXII of the Covenant of the
League of Nations, in the case of Trust Territories by Chapter XII of the United Nations
Charter and the agreements concluded with regard to each Territory under Articles 75, 79, 83
and 85 of the Charter.
53. Cf Oppenheim, vol. I, pp. 214, 236. The International Court ofjustice held in its Advisory
Opinion on the International Status of South- West Africa (I. C.]. Reports, 1950, at p. 144) that
". · · the Union of South Africa acting alone has [in spite of the disappearance of the League of
Nations] not the competence to modify the international status of the territory of South-West
Africa .. . ."
54. Italics added. Cf, for example, the Trusteeship Agreement for the Territory of
Tanganyika, adopted by the General Assembly of the United Nations on December 13, 1946
(U.N. Treaty Series, vol. 8, No. 116).
55. Brownlie in 39 B.Y. at p. 316; he cites a decision of the German Court of Restitution
Appeals ~fNovember 15, 1951 (18/nt. Law Reports, p. 55) where a person of Czech origin who
had acqmred Palestinian nationality was held to be a "United Nations national".
56. Annuaire 1931-2, p. 234.
Mlllttlnll'f/llflrl '/ tu1t '/ u rltories 25

;\ , t•rt ;ait• p:•rallf' l ltJ th(' Htat11. (Jf inhabi ant.., of 'M andated or Tru t
'f' ,.;ft,,;,. t·xi '' in rlw lit:ttu ufr ·fug " r-1 who du nut enjoy the protection of
:111 Y "'IIVf'l II II Will :.u1d who art; placed und :r th ' protection of the United
N :Hitlll I)Jf(lllf<l h '" . prute{' tion want ·d to them by the United Nation High
( :ouuui itlllf'l f(, Rd'u~ ; ·~. Ma rsd a t ·d T erritories were administered on
lwlt:.lf' qfllw J,,·agllt' HfNatitms, Trust Territories are administered " under
tlw a utlsMity " tl rlt · Unit ·d Nations. It would seem that the protection
accorded lu til · illh a iJitaJJ t~ by tb · Administering Authority is equally
ext· l'i. cd o1s hrf,;df ()f the international organ concerned. In practice, their
la tuH iH fn:qut:ntly asHimilat ·cl to that of nationals of the Mandatory or
'f'rwll r .
Mt·nlion rmty h · mad·, in this connection, of the case of Pablo Najera
lwfi,rc tis · Frau ~o- M ·xi<.:an Iaims Commission. Najera was a person of
Syrc,· Lchan •sc nationality, and the question arose whether he was a person
t·nlitl ·d lO ' )aim und ·r the Franco-M exican Convention of September 25,
I !J~H." 7 Artid · I I I of the Convention refers to "les reclamations contre le
Mexiquc tl raison des pertes ou dommages subis par des Franfais ou des proteges
frrznfais ... " Th · M ·xican con t ·n tion was that the term proteges franfais did
not. in ·I uti· su~j c tq of a territory under French Mandate. The jurisdiction of
th · 'om mission was sustained against the dissenting opinion of the Mexican
'ommission r. 6" The reorganised Commission, constituted under the
Suppl·rn ·ntary Convention of August 2, 1930, 59 dismissed the claim on the
ground that th Commission had jurisdiction only over French nationals, as
th Supplementary Convention does not refer to protiges. 60

57. L.N. T.S., vol. 79, p. 417.


58. Commission Franco-Mexicaine, Decision 30A, p.l56; U.N. Reports, vol. V, p. 466; Annual
Digest, 1927- 28, Casl·s No. 30, 169, 206. Cf Feller, The Mexican Claims Commissions, 1923-34,
pp. 102- 3.
59. Br. and For. St. Papers, vol. 132, p. 766.
60. Decision No. 13 (unpublished). Cf Feller, pp. 103-4.
Chapter 3

The International Functions of Nationality

A. The Hague Codification Conference

As the International Conference for the Codification of International Law


held at The Hague in March and April, 1930, must certainly be regarded a~
a landmark in any investigation into the problem of nationality in
international law, and will have to be referred to frequently hereafter, it
seems pertinent to begin the present chapter by an appraisal of the unique
importance of the Conference for a critical analysis of international law on
the subject of nationality.
There is, in such an appraisal, an obvious danger of both overestimating
and underestimating the significance of that part of the Conference which
dealt with nationality problems. 1 The practical results were certainly not
conspicuous. The number of rules adopted was comparatively small; the
number of those adopted with the two-thirds majority required by the rules
of procedure for the adoption of Conventions, still smaller. These rules are
laid down in the Convention concerning Certain Questions Relating to the
Conflict of Nationality Laws 2 and in three Protocols, namely, the Protocol
Relating to Military Obligations in Certain Cases of Double Nationality,3
the Protocol Relating to a Certain Case of Statelessness, 4 and the Special
Protocol concerning Statelessness.5 The Agreements adopted by the
Conference were to enter into force on the ninetieth day after a prods-verbal
had been drawn up by the Secretary-General of the League of Nations as
soon as ratif-ications or accessions by ten States had been deposited.
The Convention entered into force on July l, 1937. It was signed by
twenty-seven States, a nd has been ratified or acceded to by the following
thirteen States: Australia, Belgium (with reservations), Brazil (with
reservations), Canada, China (with reservations), Great Britain and

I. Cf L. N. Docs. C. 73, M. 38. 1929. V, C. 224. M. Ill. 1930. V. 3-7, C. 225. M. 112,
C. 226. M. 113, C. 22 7. M. 114, C. 228. M. 115, C. 229. M . 11 6, C. 35 1. M. 145, C. 35 1 (a). M.
~45 (a). See als~ J-:Iudson_ in 24 A.j . ( 1930), pp. 447-66; Flournoy,Jr. , ibid., pp. 467-85; Kostcrs
m Revue de Droll znternatwnal privi, 1930, pp. 412-43, 599- 620.
2. L.N.T.S., vol. 179, p. 89; reproduced in Appendix I.
3. L.N .T .S., vol. 178, p. 227; r~produced in Appendix 2.
4. L.N .T .S., vol. 179, p. 115; reproduced in Appendix 3.
5. L.N. Doc. C. 227. M. 114, 1930. V.
The Hague Codification Conference 27

Northern Ireland, India, l\1onaco, the Netherlands (with reservations),


Norway, Pakistan, Poland, and Sweden. 6
The Protocol Relating to Military Obligations in Certain Cases ofDouble
Nationality came into force on May 25, 1937, and has been ratified or
aceded to by the following thirteen States: Australia, Belgium, Brazil (with
reservations), Colombia, Cuba (with a reservation), Great Britain and
Northern Ireland, India, the Netherlands, Pakistan, Salvador, Sweden,
the United States of America and the Union of South Africa (with
reservations). 7
The Protocol Relating to a Certain Case of Statelessness entered into force
onjuly l, 1937. It has been ratified or aceded to by eleven States: Australia,
Brazil, Chile, China, Great Britain and Northern Ireland, India, the
Netherlands, Pakistan, Poland, Salvador, and the Union of South Africa. 8
The Special Protocol Concerning Statelessness has been ratified by nine
States only (Australia, Belgium, Brazil, China, Great Britain and Northern
Ireland, India, Pakistan, Salvador (with a reservation), and the Union of
South Africa), and is therefore not in force. 9
The Convention and the Protocols cover between them only a small
section of the field of nationality, and they make law only as between the
contracting States: they create only particular, not general or universal,
international law.
On this point, however, the following provision contained in the
Convention 10 and the Protocols 11 should be borne in mind-
The inclusion of the above-mentioned principles and rules in the Con~ention [Protocol] shall
in no way be deemed to prejudice the question whether they do or do not already form part of
international law.

The question whether some of the provisions are only declaratory of existing
customary international law or whether they make new law is not easy to
determine.
While the direct and immediate effect of these Agreements was not great,
their indirect significance is considerable, as they may be taken to reflect
the views of two-thirds, or at least of the majority, of the Governments
represented at the Conference. Moreover, the subsequent nationality
legislation of a number of States, including States which did not become

6. League of Nations, Official Journal, Special Suppt., No. 193, p. 63. After the Secretary-
General of the United Nations had become the depositary Cyprus, Fiji, Lesotho, Malta,
Mauritius, Pakistan and Swaziland acceded.
7. Ibid. p. 64. Austria, Cyprus, Fiji, Lesotho, Malawi, Malta, Mauretania, Niger, Nigeria
and Swaziland acceded subsequently.
8. Ibid. p. 62. Fiji, Jamaica, Lesotho, Malawi, Malta, Mauretania, Niger, Pakistan and
Yugoslavia acceded subsequently.
9. Ibid. p. 61. China, Fiji and Pakistan acceded subsequently.
10. Article I8 (2).
II. Protocol Relating to Military Obligations in Certain Cases of Double Nationality, Article
4 (2), Protocol Relating to a Certain Case of Statelessness, Article 2 (2), and Special Protocol
Concerning Statelessness, Article 2(2).
28 The lnlernatt:onal Functions or
:; N:atz·ona1try
.

parti s t th . Tr ·;Hit·s. m ·ntion ·d , has be ·n influenced by th · principles


adopt -d at th unfercncc. Lautc.rp~c ht ha:o:; stat·~ that the 1930
Convention was on · of th most s1gmficant mternational instrument .
b. ·a us . it not only rdl ·ctcd the i~tflucncc of public ?~inion on the matter ~, 0
nationality but had also b ·en follow ed by a dcfmitc trend towards the
am ndrn ht o f nallona. )'1ty l aws. 12
Similarly, the car ful pr ·pa ratory work done, at the request of the Council
of th ·· Leagu ~ first by the Committee of Experts for the Progressive
Codification [International Law, and then by the Preparatory Committee
for the Codification Conference, throws cons~derablc light on the subject;
and the repli es of the Governments to the pomts made by the Committee,
the bas s of discussion drawn up by the Committee in the light of those
replies, and the proceedi~gs in the First Committee d~aling :With nationality
and in the Plenary SessiOn of the Conference, are highly mstructive. The
Governments' replies, quite apart from the valuable information they
ontain on the legislation and court practice of the various countries, give
proof of the practice of the individual States in matters of nationality which
itself is a source for the ascertainment of international law. Taken as a whole
and read with a critical eye, the preparatory documents and transactions of
the Conference contain important information as to existing international
law in the field of nationality. The voeux and recommendations to be found in
the Final Act of the Conference, the Convention and the Protocols-in so far
as these are not merely declaratory of existing international law-may be
taken as evidence of the prevailing trends in internationall~w in this matter.

B. The United Nations

The International Law Commission of the United Nations included the item
"Nationality, including statelessness" in the list of subjects selected for
codification. It dealt mainly, but not exclusively, with the question of the
elimination or reduction of statelessness. This work resulted in the adoption,
on September 28, 1961, by a Conference of Plenipotentiaries held under the
auspices of the United Nations in New York, of a Convention on the
Reduction of Statclessness.•a
The Commission on the Status of Women of the United Nations
considered at several sessions the question of the nationality of married
women and approved, at its ninth session in 1955, a draft Convention on the
subject which was opened by the General Assembly for signature and
ratification on January 29, 195 7.a

12. Y.B.I.L.C. 1952-1, p. 125. CJ. also the dictum in the Mergi Claim (22 Int. Law .~e~orts
P· 332): ''The Convention although not ratified by all Nations, exposes a communis 0P 1~10 JUr:s,
by reason of the near unanimity with which the principles referring to dual nationahty were
accepted" (at p. 450).
13. U.N. doc. A/Conf. 9/15, text reproduced in Appendix 4.
14. Resolution l040 (Xl); text of the Comention U.N.T.S. vol. 309, p. 117 reproduced in
Appendix 5.
.Vationality as a T emz of 111/fma tional Law 29

The instruments \\ hich resulted from this work will be reviewed in the
relevant chapters of this book.
From the aspect of the role of nationality in international law the
proceedings of the International Law Commission are of particular
importance. The views on the subject of nationality expounded by the
members of the International Law Commission-who, according to its
Statute 15 are to be " persons of recognised competence in international law"
(Article 2, para. l ofthe Statute) representing " the main forms of civilisation
and of the principal legal S) stems of the world" (Article 8 of the Statute)-
are significant, not only as opinions on international law; they can also be
regarded , in conjunction with the debate which took place in the Sixth
(Legal) Committee of the General Assembly on the draft instruments
prepared b) the Commission, as indications of the tendencies of its
development.
The studies prepared by the Secretariat contain valuable material on
the subject.
The information provided and the comments made by governments at the
request of the bodies of the United Nations mentioned and the statements
made by government representatives at the Conference of Plenipotentiaries
pro\ ide evidence of the practice of States and also of existing trends for the
development of the law on the subject of nationality.

C. Nationality as a Tenn of International Law

Nationality as a term of municipal law is defined by municipal law. The


meaning of the term and its content, i.e., the rights and duties which it
confers, depend on the municipal law-as a rule. the constitutional law--of
the State concerned. There is, therefore, not one definition of nationality as a
conception of municipal law, but as many d efinitions as there are States,
unless one wishes to choose a general definition such as "nationality denotes
a specific relationship between individual and State conferring mutual rights
and duties as distinct from the relationship of the alien to the State of
sojourn". 16
Makarov, in his book, Allgemeine Lehren des Staatsangehoerigkeitsrechts, devotes
some space to the question of the legal nature of the concept of nationalityY
H e contends that there exist two opposing theories in modern legal thought:
nationality is either considered as a legal relationship (Rechtsverhaeltnis) or as
a legal status (Rechtliche Eigenschaft).
As a legal relationship nationality connotes the relationship between a
State and its nationals, consisting of material rights and obligations.

15. Gen. Assembly Resolution 174 (II).


16. As suggested by the present writer (see The Undermining of the Nationality Concept by German
Law, at p. 3).
17. At pp. 19-28; id. "Rtgles glnlrales du droit international de La nationalitt" in Hague Recueil
1949- 1, pp. 273- 377, at pp. 279- 282.
The /nt motional Functions of N ationality
30
Ma ka ro trac ._ thi. th ~ory back to the feud al relation hip of ' perpetual
;-tllrgianc .' in Engli ·h ommon Ia' ~nd to .' ·ario~ . Frcnc~ ~t~thor , who
c1 ·~ rib ·d na ti ona lit a a contract, hen or hen pohtzque et yundzque.1s It is,
ac or ling to som writer ba ed on a contract. between State and
indi idual. Th on ept of nationality a a tatu IS traced back by the
author to R man law (status civitatis ) and i found to be reflected in French
i illaw and G rman con titutional theory. 19 Certain right and obligation
arc r Ta rd d as a consequence of the po se sion of that status. 20 Makarov
him. lft ak ·sa middle view, and suggests that in assessing the legal nature of
nati na lity both clements have to be considered.
H · onclud ··s that it is irrelevant what particular rights and obligations
are inherent in th , "status of nationality". This conclusion is logical from the
point of view of municipal law, since the conception of nationality in
municipal law depends upon the law of each State.
In the Anglo-Saxon countries, with which we are mainly concerned here,
the conception of nationality is based on allegiance, and nationality is
conceived of as a mutual relationship between State (Sovereign) and
individual. Coke21 said: Ligentia.. . [est] . .. duplex et reciprocum ligamen, a
dictum paraphrased in modern times by Buckmaster L.C. in Ex p. Weber,22
where he stated: "It is a commonplace that nationality confers rights as well
as imposes obligations." In Administrative Decision No. 1 of the Mixed Claims
Commission between the United States and Germany, 23 the Umpire, Mr.
·Parker, described as an American national " a person wheresoever domiciled
owing permanent allegiance to the United States" . He went on to say-
Nationality is the status of a person in relation to the tie binding such person to a particular
sovereign nation.24
In the Lynch Claim25 before the Mixed Claims Commission between Great
Britain and Mexico, an important case on nationality law, it was held-
The fundamental basis of man's nationality is his membership of an independent political
community. This legal relationship involves rights and corresponding duties upon both-on the
part of the citizen no less than on the part of the State.
In Luria v. The United Stat~s, 26 the United States Supreme Court enlarged on
the mutual character of the nationality concept-

18. For example Cogordan, Weiss, Valery, Niboyet.


19. See Albrecht, Gerber, Laband, G . Jellinek.
. 20. Cf Fis~her .Williams, loc. cit.: " Nationality . .. is not based on contract, but is a status
unposed at bmh mdependent of the will of the individual" (at p. 53).
21. In Calvin's Case, 7 Co. Rep. Sa.
22. [1916) I A.C. 421, at p . 424.
23. 18 ~.J- (1924), p. 175-6; Hackworth , vol. III, p. 4.
24. ~n v~ew ofw~at has been said above (at p . 3), exception may be taken to the use of the
term nat_I~n , whiCh should not be used as a synonym for " State".
No~5j ~~clSlons and Opinions, p . 20; U.N. Reports, vol. V, p. 17; Annual Digest. 1929-30, Case
3
26. ( 1913 231 U.S. 9, at p. 22.
.Nationality as a T erm of International Law 31

Citizenship is J'lll'lnlwr~llip in a puliti ·aJ society and implies a d uty of a lkgiancc on th part of
the rnt·n1hcr and a dut y o fprott>c tio n on th ·part of th · soci ·ty. Th cs ·arc n.:c iprvca l IJIJiigatiom,
one being a r nrnpcnsa tion fur the otltn.~ 7

This theme was elaborated hy the U nitcd St a tes District Court for the
Southern District of California in Re Holfman2B _
It is uniformly lwld tha t the right o f c itizenship is not an inherent right, but a privi lege xt ·nd ed
by th sovcrr·ign power. It is fo unded upon rccipro al relations, protection to the subj ect and
a llcgia11ce to the sovereign. Allegiance may involve man y duties , hut it assum e a condition on
the part of the subject that will make this rendition possible. It is no t conceiva ble that the
sovcr ·ign agrees to extend protect.io n with the certainty that the a pplica nt's condition makes
impossible the perfi>rma ncc of many o f them . . .. .
This, in fact, is a modern variation of the old dictum: Protectio trahit
su~jectionem, et subjectio protectionem. 29
In Messih v. Minister of the Interior the Egyptian Conseil d'Etat held that
" nationality is the juridical and political link which unites an individual
with a state. Now, a state is composed of subjects, and nationality being the
link which unites them to it, the rules of nationality form part ofpublic law
and do not concern personal status. " 30
That the rules relating to acquisition and loss of nationality, although
contained in the Code Civil, are rules of (French) public law has been held
by the French Cour de Cassation in its Plenary Session of February 2, 1921. 31
In the Nottebohm Case 32 the International Court of justice defined
nationality as follows-
According to the prac tice of States, to arbitral and judicial decisions and to the opinions of
writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine
connection of existence, interests and sentiments, together with the existence of reciprocal rights
and duties. a3

The definition given by international and national judicial authorities is


supported by writers of high standing, such as, for example, Blackstone, 34
who describes the idea of nationality as a tie of public law to the State and
declares 35 that change of sovereignty means change of nationality.
Similarly, the Harvard Law Research, in trying to give a definition of the
term in its Draft Convention on Nationality, 36 defines nationality as "the
status of a natural person who is attached to a State by the tie of allegiance".

27. Cf also the dicta of the same court in Minor v. Happersett ( 1874) 21 Wall. 162, at
pp. 166- 8 .
28. ( 1963) 3 F .Supp. 907; Annual Digest, 1935-37, Case No. 118.
29. Calvin's Case, 7 Co. Rep. 5a.
30. Int. Law Reports p . 291 at p . 292, quoted by Plender "International Migration Law "
(1972) p. 30.
31. Revue Darras 1921, p. 282.
32 . .Nottebohm Case (Liechtenstein v. Guatemala) -Second Phase, I.C.J. Reports, 1955, p. 4.
33. At p . 23.
34. Commentaries, vol. 1, Chap. 10.
35. Article 18.
36. 23 A.J. (1929), Special Supplement.
32 The International Functions of Nationality
It defines a national of a State as "a natural person attac~ed to that State by
the tie of allegiance" (Article 1 (a) of the Draft Convention), and " the tie of
allegiance" as "a term in general use to denote the sum of the obligations of a
natural person to a State to which he belongs". 37
The Code of Private International Law annexed to the Convention signed
at Havana on February 20, 1928, 38 (called, after its distinguished author, the
"Bustamente Code") likewise defines nationality as "the national character
of a person in his connection with a nation, being one of its members, as
explained in this chapter" (Article 248), and allegiance as " the obligation of
fidelity and obedience which a person owes to the nation of which he is a
member or to its sovereign" (Article 261 ).
Both sources purport to define nationality for the purpose of international
law, but rely for their definition entirely on conceptions of municipal law,
basing it on the internal relationship between State and national.
Nationality as a term of international law cannot be defined in terms of
municipal law. In order to understand nationality as a conception of
international law only that part of the relationship between State and
national, only those rights and duties of the State in relation to the national
and vice versa, may be considered which are, in their character, basically
international. Under international law, at least according to the traditional
doctrine, this is a relationship between a subject of international law and
objects ofinternationallaw. 39 Out of this relationship those elements have to
be extricated which presuppose the co-existence of States, which confer
rights or impose duties on the State in relation to other subjects of
international law. It is only by a process of elimination that these
international functions can be abstracted from the manifold rights and duties
which, in their totality, make up the concept of nationality under the
municipal law of individual States.

D. International Protection

The first of these functions is the right of the State whose national a person
is to grant him protection in relation to other States. As stated by
Commissioner Nielsen in the United States-Mexican Special Claims
Commission in the case of Naomi Rusself40: "Nationality is the justification in
international law for the intervention of one government to protect persons
and property in another country." This protection, which has been termed
diplomatic protection, is different from the internal, legal protection which

37. Ibid., at p. 23.


38. Hudson, International Legislation, vol. IV, No. 186a, p. 2283.
39. Cf, e.g., Schwarzenberger, vol. I , pp. 142, 354; Manual of International Law, P· 53.
The traditional theory that individuals are not subjects ofinternationallaw has been challenged
by various writers, in particular by Lauterpacht, International Law and Human Rights (if.
esp. p. 27).
40. Opinions of Commissioners (Sp.Cl.C.) (1931 ), p. 44, at p. 51; U.N. Reports, vol. IV,
p. 805, at p. 811.
International Proifction 33

every uational may claim from his State of na tionality under its municipal
law,4t i.e., the right of the individua l to receive protection of his person,
rights and interests from the State. 1nternational diplomatic protection is a
right of tlw State, accorded to it by customary international law, to intervene
0 11 beha lf of its own na tionals, if their rights a rc violated by another State,
in order to obtain redress. Its exerc ise involves the resort to a ll fo rms of
diploma tic intervention for the settlement of disputes, both a micable and
non-amicable, from diplomatic negotia tions a nd good offices to the use of
forcc.42 As a rule, only amicable means will be resorted to. The usual agents
to aflord protection are the consular offi cers of the State, or in more serious
cases, its diplomatic representa tives. The nature of " diplomatic protection"
has been fully discussed by Borch ard in his book, The Diplomatic Protection of
Citizens Abroad, the lead ing treatise on the subject.
States have a lways j ealously guarded this right against any restriction by
municipa l law or administrative practice. When, for example, Salvador
embodied in its Constitution ofDecember 6, 1883,43 a provision interpreting
" denial of justice" in a manner d esigned to restrict the interventions of
foreign Powers on behalf of their nationals on this ground, and a provision
designed to exclude claims against the Government for indemnification for
damage suffered in consequence of political disturbances, the diplomatic
corps protested on December 24, 1883,. and stated that-
Whenever the rights of su~j ccts of the Governments of which they were the representatives
should be affected, they would not fail to require that these rights be respected, that they would
sustain all just claims, and would demand redress in a ll cases in which diplomatic intervention
might be justified by internationallaw. 44
On the advice of the Law Officers,45 the British Government protested
against similar provisions in the Salvadorian Constitution of August 13,
1886,46 and in a Law concerning Foreigners of September 29, 1886.47
Provisions making recognition of foreign nationality dependent on
registration with local authorities and creating a presumption of re-
nunciation of foreign nationality by the acceptance of a public appointment
were equally found open to objection. 48
Since, according to the traditional theory, individuals do not possess rights

41. Termed Rechtsschut~ (legal protection) by G. J ellinek. He considers the right of the
individual to d emand protection an individual right gra nted by public law (subjektives Recht). Cf
Jellinek, System der subjektiven otifentlichtn Rechte, esp. pp. 349- 51.
42. Cf the dictum in the Barcelona Traction Case (Judgment) (l.C.J . R eports 1970, p. 3) which
concerned the qu estio n of the protectio n of a corporate entity: " The Court would have to
observe that, within the limits prescribed by international law, a State may exercise diplomatic
protection by whatever means and to whatever e xtent it thinks fit, for it is its own right that
a State is asserting ... " (at p. 44).
43. Br. and For. St. Papers, vol. 75, p. 884.
44. /hid., pp. 886, 889.
45. L.O.R.(F.O.), 1887, No. 52, p . 78.
46. Br. and For. St. Papers, vol. 77, p. 1317.
47. Ibid., p. 116.
48. Ibid., and L.O.R .(F.O .) , 1888, No. 46, pp. 60, 61.
The International Functions of Na tionafil),

und er in terna tiona l law, at lea t not unles they a re conferred on them bv
treaty, a nd in pa rticular not in rela tion to their own State,49 a n? hence d~
not ha ve a right to d iploma tic protection, tha_t Sta te _h a full d t ·cretion to
exercise this right or not a nd to employ any dt ploma uc mean thought fit.
It is not a legal right, bu t a n extraord inary legal remed y.50 T his is the
position under internationa l _law, n<?twiths ta ~ding the. pos i~il_ity tha t
nationals may have a right to dtploma uc protection by the1r mumClpallaw.
Few Sta tes gra nt their na tiona ls such a right by their constitutional law.
The Constitution of the German Empire of 18 70 provided : " Against foreign
Sta tes a ll Germa ns equa lly have the right to d ema nd the protection of the
Reich" (Article 3, para. 6), a nd the \Veima r Constitution of 19 19 laid down
simila rly tha t "Against foreign Sta tes all R eich nationals have both within
a nd without the R eich a claim to the protection of the R eich" (Article 11 2).
But German constitutional lawyers5 1 d eny the legal character of this
norm because the na tiona l has no legal cla im to protection and cannot
enforce its exercise. 52
Drawing a logica l conclusion from the nature of diplomatic protection as a
right of the State, Borchard is of the opinion that the State is fully sovereign
in employing its right and is not in any way bound by or subject to the
exercise or non-exercise of his rights by the protected national. In fact, the
ratio of this right seems not so much the protection of the individual national
against violation of his rights, as the interest of the Sta te to protect the
national community as a whole-the nation-against other States, whether
violated in its rights collectively or in the person of individual members.
According to Borchard 53 the protecting Government which takes up the
claim of one of its nationa ls is neither the agent nor the trustee for the
claimant. He contends tha t the individua l has no enforceable control over
the claim either in its presentation or in the distribution of any award which
may be made as a result of protective intervention. 54 The Government
has, therefore, power to settle, release or abandon the cla im without the
claimant d eriving a claim against his own State for such action. 55 It would
seem equally to follow that, once diploma tic action has been resorted to,
renuncia tion of the claim by the na tiona l is irrelevant for its exercise by
the Sta te. 56

49. See ante, p. 32, note 39.


50. Borchard, pp. 352, 356.
51. E.g. J ellinek, op. cit., pp. 11 9, 120.
52. ln the Slaughterhouse Cases, Mr Justice Miller of the U nited States Supreme Court said:
" Another privilege of a citizen of the United Sta tes is to demand the care a nd protection of the
~e~er~l _G overnmen_t over his life, liberty and property when on the high seas or within the
JUnsdtctwn of a foretgn government. Of this there can be no doubt, nor tha t the right depends
upon his character as a citizen of the U nited Sta tes." (1873) 83 U .S. ( 16 Wall.) 36, at p. 79.
53. At p. 358.
54. At p. 359.
55. At p. 366.
56. But this is controversial: see infra, pp. 37- 38.
International Protection 35

The question of the nature of protection was touched upon by the


Perma ncn t Court of In tern a tiona l Justice in the M avrommatis case.''7 The
Court had to d eal with the British contention, advanced by Sir Cecil Hurst,
that it had no jurisdiction seeing that the issue was not a dispute between two
States but between a priva te person a nd a State. The Court held, on this
point, in favour of the plaintiff, in these words 58 -
Subsequently the G reek Government took up the case. The dispute then entered upon a new
phase; it entered the domai n of internationa l law and became a dispute between two States .. .
I t is an elementa ry principle of interna tional law tha t a State is entitled to protect its subjects,
when injured by acts contra ry to interna tiona l law committed by another Sta te, from whom
they have been unable to obtain satisfaction through ordina ry cha nnels. By taking up the case
of one of its subjects and by resorting to diploma tic action or internationa l judicial proceedings
on his beh all~ a Sta te is in reality asserting its own rights-its right to ensure, in the person of its
subjects, respect for the rules of international law.
T he q uestion , therefore, whether the present dispute originates in an inj ury to a private
interest, which in point of fact is the case in m any in terna tional disputes, is irrelevant from this
standpoint. Once a Sta te has ta ken up a case on behalf of one of its subjects before an
internationa l tribunal, in the eyes of the la tter the State is the sole claimant. The fact that G reat
Britain and Greece are the opposing parties to the d ispute arising out of the M avrommatis
concessions is sufficient to ma ke it a dispute between two Sta tes within the meaning of Article 26
of the Palestine M a nda te.
The Court followed , in this r egard , the Greek a rgument presented by
M. Politis 59-
Le Gouvernement hellenique s'est substitue a son nationa l et a fait sienne sa cause . .. Dans
Ia longue pra tique de Ia protectio n des na tiona ux a l'etranger qui a abouti a Ia theorie des
clai ms si particulicrem ent connue d u monde anglo-saxo n, les chases se sont toujours passees
ainsi. Un particulier, s'estima nt lese par !'attitude d' un gouvernement etranger, commence par
reclamer, puis, quand il a epuise tous les moyens connus de !'organisation du pays a upres
duquel il reclame, il s'adresse a son gouvernement, il sollicite son intervention, et, si celui-ci
troll\·e prima facie Ia cause juste, ilia fait sienne, ilia prend en mains, il essaie un arrangement
diplomatiq ue; et, s'il ne reussit pas, il cherche des j uges. Le confiit existe des que le desaccord
certifie entre les deux gouvernem ents est deve nu defini tif.
In the Panevezys-Saldutiskis Railway Case, 60 the Permanent Court of
Internationa l Justice d escribed the na ture of diplomatic protection in the
following terms -
In the opinion of this Court, the rule of interna tional law on which the first Lithua nian
objection is based is that in taking up the case of one of its na tionals, by resorting to diplomatic
action or intern a tional jud icial proceedings on his behalf, Lithua nia is in reality asserting its
own right, the right to ensure in the person of its own na tionals respect for the rules of
interna tional law. This right is necessarily limited to intervention on beha lf of its own nationa ls
because, in the a bsence of a specia l agreement, it is the bond of na tionality between the State
and the indi" id ua l which a lone confers upon the State the right of diploma tic protection, and it
is as a part of the function of diploma tic protection that the right to take up a claim and to
ensure respect fo r the rules of international la w must be envisaged. When the injury was done to

57. P.C.I.j., Series A, No. 2.


58. At p. 12.
59. P.C.I..J. , Series C, No. 5- I , p . 51.
60. Ibid., Series A/B, No. , 76.
International Protection 37

authority in charge of Swiss interna tional relations must be unfettered and fina l. ... For a State
which intervenes with a foreign State on account of a breach of international law- whether of a
convention or of a re~ognised p~in_ciple of customa ry international law-a nd claims repara tion
therefor, asserts a clatm appertammg to the Sta te and arising out of the non-performance of the
convention entered into with the foreign Sta te or the disregard of the consideration due to it
under the recognised cu_stoma ry law governing intern ational relations. ... That being so, no
relation of agency can anse where a State, by intervening with a foreign government on account
of a breach of international law, asserts a right appertaining to it, or where such State d ecides to
intervene a nd notifies the national concerned of this fact. It also follows that the competent Sta te
authority must be able to make decisions independently of the wishes of the injured nationa l,
both as to whether diplomatic protection sha ll take place at all and as to how far it shall be
pur.;ued, for instance, by invoking arbitration in case of a negative attitude of the foreign State.
The Court referred to its earlier decision in Heirs qf Oswald v. Swiss
Government, 65 where it held-
( 1) ... the fact that such violation [i.e., viola tion of territory ] caused injuries to an individual,
so that the intervention leads to a defence of the injured person's rights, does not give this act
the legal character of the execution of a mandate even if the step is taken on the initiative of
the injured person.
(2) Since the State is free to intervene or not as it pleases, the fact that in such an intervention
it defends the interests of its subjects does not imply the acceptance of a mandate under the
rules of civil Jaw. Moreover, the rules by which civil law is interpreted cannot be applied to
diplomatic action.66
United States cot!rts, in a long list of decisions and dicta beginning with an
opinion of Justice Story in Rowe v. The Brig, 67 the leading case being The
Bello Corrunes, 68 have upheld the rights offoreign consular representatives to
sue or intervene in any other way in United States courts on behalf of their
nationals, a typical means of exercising international protection. In a more
recent case, Re ,(alewski,69 a Consul exercising a " personal right of election"
to claim succession to a part of an estate against the will of the deceased on
behalf of his national was described by the New York Court of Appeals as
personal agent of his national "charged with doing what the individual
himself might do to defend his interests under the local law if he were present
and competent". This decision cannot, however, be relied upon as an
authority for the nature of protection, since the consular right at issue was
based on a treaty, not on international custom. Furthermore, a strong
minority of the court dissented.
A difficult question is whether renunciation of rights by the national is
binding upon the protecting State. The question was decided by an
international tribunal in The Tattler, 70 where it was held by the American-

65. 0./]icial Collection of Decisions, vol. 52 (II ), p . 235; Annual Digest, 1925-26, Case No. 180.
66. Cf also the decision of the French Conseil d ' Etat in Re Corbier, where it was held that
protection was an " acte de gouvernement" and the national had no·cJaim on the ground of
refusal of such protection: Annual Digest, 1943-45, Case No. 51 .
67. Fed.Cas. No. 12093.
68. (1821 ) 6 Wheat. 152.
69. (1944) 292 N.Y. 322; A.J. (1944) p. 733.
70. 15 A.]. (1921 ), p. 297; Annual Digest, 1919-22, Case No. 163.
The International Functions oifN:at· t·
38 zonazry

British Claims Tribunal that-


. h h' . tl e Go\'ernment of the United States wa · supporting in the prese
the onlY n g t w I< 11 J • . S ld I nt case
· •. . . . . 1 Consequent!\' the U ntted . tales cou not re y on legal ground h
was tha t 0 1 1ts na uona . · '' . . 71 sot cr
· those wh1c
than . 11 wou IIr 1I ii\ ·e been open to llS na llo na1.
·
I n t h etr ·actice States and in particular the British Government w'll
pt . '. . f . . . ' 1
.
usua II ) no t take action m the exercise o mtcrnat10nal protectiOn if th
. . r • • e
. ·
nauona 1 11as retlounced h1s clatm. fhe Bnttsh
. .
Government refrained , ctOr
: pk from taking action against Spam m the case of one .Jencken wh
exam ' b h'l . L . o
h a d b een savacrely o
attacked b y a mo w 1 e m orcta (:Murcia) on legal
. f . 72
business because of his disclatmer o compensat10n.
Borch,ardn maintains that waiver of a claim by the national does not affect
the riaht of his Government to resort to diplomatic action. He asserts that the
individual cannot renounce or contract away the right of his Government to
intervene on his behalf.
The correct answer probably is that the right of protection and the right
of the individual are on different planes: the former is a right under
international law, the latter a right under municipal law. The effect of
renunciation of a claim depends on the nature of the right of the national. If
this may be renounced according to municipal law, as, for instance, a claim
for damages under civil law, no diplomatic action can be taken after the
national's renunciation . This, however, is not because the renunciation is
binding upon the State, but because, in view of renunciation , the right whose
infringement has been complained of has been destroyed or extinguished
and there is thus no longer any violation of a right which would warrant
diplomatic action-provided, of course, that the renunciation was made in
full freedom without any pressure from the authorities of the State against
\·v hom the claim was directed. Such pressure would in itself constitute a
violation of international law.
R enunciation or waiver of a claim must not be confused with renunciation
of protection , e.g., by the so-called Calvo Clause. According to the
commonly accepted view, the Calvo Clause does not have the effect of
reno uncing international protection by the State of nationality. Inter-
nationa l protection is a right of the State, not of the national, and therefore
cannot be renounced by him. The right persists as long as the person remains
a national. 74

. 71. Cj. a ls? Dudging Co. of Texas Case (Annual Digest, 1925-26, Case !'\o . 2 18) and J arr
& Hurst (Umted States) \', Mexico (M oore, Arb., p . 2713).
7'2. Cf Ba ty international Law, pp. 156- 7; Br. and For. St. Papers, \'Ol. 62, p. 9,~8, L?rd
Clarendon to t\1r. La yard , April 7, 1870. pp. 1003--l l\1r. Hammond to :\lr. I omkms.
Nowmber 2, 1870 and ~1ay 29, 1871.
73. At p. 372.
74 · ~n the Coste~lo case ,(Opinions of Commissioners (Gen.Cl.C.) , p . 252; L'.. V. Reports. ,·ol. .1 ~~
P· 496, (Annual Drgest, 1929- 30, Case No. 115) it was held .. that the D epartment ofState mig
? a\'e been unwilling to pro tect Costello had he' sought its protert ion shortlY before his death can
~n no w~y be d eterminati,·e of the right of the U1~ited States at this time. to im·oke the rulr of
mtern a uona l .law · .· en·ecu,·e
. req unmg · measures wJth . respect to apprc henswn · an<· 1pun i"hment
~
of
persons who lTIJUre an a lien, ..
In! 11u1tionaL P1'ole lion 39

lntcrnatioua l J.>rot · ~ tion f national ·, as distinct from other cases of


States c ·crc i:-it.lg prote ti n over individuals, is normally permanent and
1111 ivct.. <~l.
7
It ts n. t prop~s d to deal.h.erc at any length with protection of
110 n- uattonal~, wlu h a :ra m can be dt\ tded into temporary and, as a rule,
lut·;d p.rotc ·tton. a o~·dcd to persons who at the same time enjoy the
prott' ·ttnn of th c t~ national State, and protection accorded to non-nationals
in lieu of prole tton by the State of nationality. To the former category
bcloug-
1. Prott'rlion of de far to subjects (proteges), i.e., the protection granted by
lipl< rna tic representatives of European States to nationals of Eastern States
who arc in their service- a practice based on custom which has become
obsolete.· ov. ing I the abolition of Capitulations and the progressive
cfe\·cloprncnt of th Eastern States concerned to full membership of the
c mmunit} of nations. 76
2. Prott'flion ofproltgts in the strict sense, i.e., the protection accorded by the
clipl mati or consular representatives of a State to nationals of another State
in cou ntri ·s v. her the latt er has no diplomatic representation, under
agreements con luded between the two States. Into this category there falls
also the prot ··ction of nationals of a belligerent in the territory of the other
accorded b~ a n utral State, the so-called "Protecting Power", under
a recment or upon request.
3. Prolrrlion accorded to alien seamen serving in a warship or merchant vessel
, rrying the flag of the protecting State, a practice based on international
custom and municipal law· such protection is limited to the period
f sen ·ice. 77 This protection is purely temporar} and does not affect
the p liti al status of the seamen who remain aliens and retain their
nati nalin .78
-!. Ftmrlional protection of its agents afforded by an international organisation.
A r rdina to the aforementioned Advisor} Opinion of the International
Court of Justice on Reparation for Injuries Suffered in the Service of the United
.\'ations thr nited Nations as an Organisation has, in the e\ent of one ofits
. aents in the performance of his duties suffering injury in circumstances

5. As to the doubts on the universality of the right to diplomatic protection by the State of
nationality rn.·:ued by the judgment of the C.ourt of I nternationaJ Justice in the ft ottrbohm Case
stt' in a p. 1-9· as to protection in the country of second nationality see infra pp. 170 et stqs.
6. '{. panr:. ;, .(ont of M orO<-co Claims: U .. . Reports Yol. II p. 615· Annual Digest 1923-~4
C:.tse l'\o. 1:..8. And see Opp<-nht·im YOI. I p. 647. A certain analogy exists in the acceptance of
Cro,,.n st·rYice in lit·u f rt"Sidence as a qualification tor naturalisation in British nationality law
( Briti~h l'\. tionality Act 1948. Sched. 2, s. 1).
H. . B1iti~h :\krdmnt Shipping Act 189-l (57 & 58 ict. c. 60) , s. 687· Foreign Service
Rt·gul.ui n· fthe nitro tate-s. 19-tl. s. X\ 1-~ . 2 Fed .Reg. 2238 ( 1938)· Rr Ross 1891 ) 140
l ,. . p. -l" " . a t pp. 47:.. - 8. As to the c:ustomary title to such protection if. Sir Edward Thornton
t ·m iff' in .\1 rr d·/ s Cl im ~loore Arb .. pp. 25 6-7 .
- . A 'nitt-d t.lt · Acr ofConi.;rNS ofl\lay 9 1918 (40 Stat. 542 since repealed, prO\·ided
ha t •Hl alien st'. man sh ulcl. , fin his declaration of intention and after serving for three years
d f tht" nitro t:He-s. bt- deemed a citizen of the 'nited States for the purpose of
>n bo:nd any su h mt"rrhant or fishing Yt"SSel of the U nited Statt"S.
The International Functions of N ationality
40
im·olving the responsibility of a S~at e, the capacity to bring an ~nternational
claim ao·ainst the r sponsible de JUre or d_e facto Government wtth a view to
obtaining the r ·para tion due i~ respect of the damage ca used to the victim or
to persons entitled through }urn.
Ca ·es of the latter category are (or wcre)-
1. The int ernationa l protection_ of the citizens of .the Free_ City of Danzig
exercised by Poland on behalf of the League ofNations (Article 104, para. 6,
of the Treaty of Versailles).
2. The protection accorded . unti! 193.4 by .the Leag~e of Nations to the
inhabitants of the Saar regiOn. fh e mhab1tants retam ed , however, their
German nationality. (Treaty ofVersailles, Article 45, and Annex to Part 11,
Section I B, paras, 21 , 2 7. )
3. The protection accorded to inhabitants of a Mandate or Trust Territory
when abroad, by the :M an d atory or rr rustee. 79
4. The protection exercised successively by th~ High Commissioner of the
League of Nations for Refugees, the InternatiOnal Refugee Organisation,
and at present the United Nations High Commissioner for Refugees, over
certain classes of refugees.80
5. British Protected Persons.81
6. Certain developments in the field of protection took place during
the Second World War, such as the protection exercised by the
Intergovernmental Committee on Refugees, after the League ofNations had
virtually ceased to function, and extended to new classes of refugees not
coming under the protection of the League of Nations; and the protection
accorded by Great Britain to Frenchmen who joined General de Gaulle and
who were, for this reason, deprived for the time being of French protection. 82
It may be appropriate to add, at this point, some remarks on what is
classed as a special kind of protection related and equivalent to the
protection of nationals, i.e., the protection of domiciled aliens who have
declared their intention to become citizens.
The practice is peculiar to the United States, whose earlier law made such
a declaration of intention obligatory for obtaining naturalisation. 83 The
argument for an existing practice of affording international protection on the
ground of domicile is based almost exclusively on two well-known cases and
the official statements made in connection with them:
Thrasher's case and Kos.<:,ta's case.
Thrasher84 was a person of United States origin, who had taken out
79. See supra p. 24.
80. See Weis in 48 A.J . (1954), pp. 193- 221.
81. See supra, pp. 18-20.
82 · Memorandum of Agreement between H.M. Government and General de Gaulle of
Au?u~t 7, 1940, s. III, subs. (6 ) (Journal Ojficiel de la France libre, No. I of January 20, 194 ~ ).
~ s~;.~~~r status was granted to the Government of M . Venizelos and its followers by the Allies
83 · Nationality Act, 1940, s. 333. Under the Immigration and Nationality Act, 1952 (s. 334)
the declaration is optionaL
84. Cf Moore, Digest, vol. III, pp. 817-9.
International Protection 41

''letters of domiciliation" in Cuba which involved the taking of an oath of


allegiance to Spain. He was arrested, sentenced and imprisoned for political
reasons itl Cuba, and the question arose whether the United States was
entitled to intervene by the exercise of diplomatic protection of one of its
nationals. The then Secretary of State, Mr. Webster, based his decision not
to accord United States protection to Thrasher on the ground that, even if it
was assumed that the oath of allegiance had not had the effect of making him
a Spanish subject and dissolving his allegiance to the United States, he had,
by establishing his permanent residence animo manendi in Cuba, forfeited his
right to protection by the United States. On the question of nationality,
however, the Secretary of State decided that the taking out of letters of
domiciliation did not involve expatriation.
The facts in Koszta's case 85 were as follows. Koszta, a Hungarian
revolutionary and political refugee, had fled to Turkey and then to the
United States. Since the Austrian Government could not secure his
extradition from Turkey he was released from custody on condition that he
did not return to Turkey. He established his permanent residence in the
United States and declared his intention of acquiring United States
citizenship; he was therefore regarded, under Austrian law, as being
deprived of all civil and political rights as an unlawful emigrant, but
the Austrian authorities maintained that he had retained his Austrian
nationality. He returned to Smyrna in Turkey, where a regime of
Capitulations was in force, having succeeded in obtaining the protection of
the United States consular authorities, who granted him a letter of safe-
conduct. While in Smyrna, he was seized by thugs and forced on board the
Austrian brig Huszar, where he was held prisoner. The commander of the
United States sloop St. Louis demanded his release under the threat of
resorting to force. By an agreement reached between the representatives of
the two States he was finally transferred to the custody of the French Consul-
General in Smyrna, pending a settlement, and ultimately released and
returned to the United States. In his Note to the Austrian Charge
d'Affaires, 86 Secretary ofState Marcy based the claim of the United States to
be entitled to protect Koszta on his domicile in the United States and on the
right of consular representatives in countries under Capitulations to declare
certain persons as their proteges. He gave the added reason of humanitarian
intervention in a Note to the United States Minister in Turkey, Mr.
Marsh. 87
Much has been read into these cases to the effect that they, or the official
statements quoted as to the attitude of the United States, have established a
right of protection of domiciled aliens or of aliens who have declared their
intention of becoming American citizens. It must be noted, however, that
United States protection has been refused in similar cases.

85. Moore, Digest, vol. III, pp. 820- 54.


86. September 26, 1853, H.Ex.Doc. 1, 33 Cong. 1st sess, 30.
87. No. 27, August 26, 1853, MS. lnst. Turkey, 1,371.
The International Functions of N ationality
42
. h tection of declaran ts, the view taken by Mr. ~Marcy, at any
As .to lt .e pro S bsequently a right to protectiOn · was exp1'ICH· 1y granted to
1
rate, IS o >SO ete. u ~ . f :M h 2 19 88 ·
, ·l .., ts under certain conditiOns by an Acto arc ' 07' whtch Act
d ecatan l92089
was itself repealed by an Act of June 4. ' · . .
The right of the State of natio.nahty to protect .Its national~ .notwith-
stand mg · declaration of intention
. . tl1eir . to become U mted. States Citizens was
recogmse · d b Y the united States m the .Cases of the ltalzans. 90 In these cases
redress had been demanded by the I tahan Government for .th~ lynching of
certain Italian citizens, some of whom had de_clared their mtentions to
become United States citizens. Although the Umte~ States Government at
first repudiated the claim on the ground that t~e I tahan Government had no
right to protect perso~s .domici.led in the t!~tted ~tates who had declared
their intention of acqumng Umted States cittzenshtp, they finally agreed to
pay indemnities in three of the cases, ~hile the Walsenburg case ended with
an apology by the United States .. Whil~, therefore, these cases provide no
authority for maintaining that a nght extsts to protect declarants-that any
pro~ection accorded to such persons is no~ tanta ~oun~ to the protection ?f
9
natiOnals was made clear by Mr. Marcy himself -neither do they con tam
full authority for the existence of a right of protection of domiciled aliens.
Although some of the statements made by responsible officials in connection
with these cases may lend themselves to such an interpretation, the
significance of the date at which they were made must not be overlooked.
They belong to the period before the Bancroft Treaties when the United
States, as a typical immigration country, was still involved in controversy
with the European emigration States with regard to the recognition of the
right of voluntary expatriation, and when the doctrine of inalienable
allegiance was still upheld by some States, in particular Great Britain. 92 For
all these reasons the cases quoted must not lead to hasty generalisations
applicable to the present time, and one cannot but agree with the reasoned
and cautious view taken of them by Moore and the reservations made by
him, 93 and accepted by Hyde.94
An opinion of the Queen's Advocate, Sir Robert Phillimore, on the
question whether a British subject who had declared his intention to become
a cit~ zen ~f th~ United States could claim British protection may be
mentiOned m this connection. It was stated that no theoretical answer could
?e ?iven. "It is not to be expected that H.M. Government can directly or
mdirectly countenance the doctrine that a subject may play fast and loose

88. 34 Stat. 1228.


89. 66 Con g. 2nd Sess. 223 (41 Stat. 739).
90 · New_Orleans case, 1891 , Walsenburg case, 1894, Colorado case, 1896; and in particular,
the Hahnvrlle case, 1896. See Moore, Digest, vol. III , pp. 344- 53.
9 1. Mr. Mar~y to Mr. Jackson, Charge d 'Affaires in Vienna, No. 17 , September 14, 1854,
145 lnst. ~ustna, 1,100. (Moore, Digest, vol. III, p. 839.)
92. See mfra, pp. 127- 34.
93. See Moore, Digest, pp. 843- 4.
94. Hyde, p. 1183.
International Protection 43

with his allegiance, or that he may attain at one and the same time, the
protection oftwo Governments." 95 It seems to have been the B~it.ish pr~ctice
to normally refuse protection to persons who had declared the1r mtent10n to
become United States citizens but to grant it where the act had remained
one of mere intention. 96
A case shedding some light on the status of declarants and alien seamen
is that of Hilson v. Germany, decided by the United States-German Mixed
Claims Commission. 97 The issue was whether Hilson, a British national
who had served on an American merchant vessel and had suffered injury on
the sinking of that vessel by a German submarine and who, at the material
time, had declared his intention of becoming an American citizen, was
an "American national" in the meaning of the Treaty of Berlin, The
Umpire, Mr. Parker, decided that Hilson was not an American national for
the purpose of the Treaty. In its Administrative Decision No. 1,98 the
Commission had defined an American national as "a person wheresoever
domiciled owing permanent allegiance to the United States of America."
The Umpire held that, notwithstanding the provision of United States law
that a foreign seaman declaring his intention of becoming a citizen of the
United States "shall for all purposes of protection as an American citizen be
deemed such", the claimant did not owe permanent allegiance to the United
States and was therefore not an American national.
That the problem is not entirely obsolete is shown by the decision of
the Arbitral Commission on Property Rights and Interests in Germany
established under the Bonn Settlement Conventions 1952-1954 in Persit
Keller v. German Federal Republic99 where it was held that the obtaining of first
papers and the declaration of intention did not constitute American
citizenship for the purpose of the Convention.
Protection may be accorded and is in fact granted to non-nationals, but
the exercise of such protection need be recognised by other States only if it is
consistent with international custom100 or treaties. 101 Protection of nationals
is distinct from any such protection accorded to non-nationals in that it is
unconditional, and unlimited as to time. It is an inherent element of the
personal jurisdiction of States over their nationals, and its exercise has
to be recognised by other States, who can only question it by denying the
existence of that specific relationship between State and individual which it
presupposes, or the existence of the situation for which redress is claimed by
the protecting State, i.e., a breach of international law by another State in
the person of the protected national or his rights.

95. L.O.R. (F.O.) , 1862, No. 240, p. 254.


96. Cf 5 B.D.I.L. p. 323.
97. 19 A.J. (1925), pp. 810-5.
98. 18 A.J. (1924), p . 175.
99. Decision I ( 1958) case No. 10, p. 139; 28 Int. Law Reports p. 234.
100. For instance, the protection granted to alien seamen: see supra, p. 39.
101. For example, the protection accorded to Danzig citizens by Poland under Article 104 of
the Treaty of Versailles.
The International Functions of Nationality
44
The potential accordance of. interna tional protectio~ is an essential
.onal status. Its withdrawal does not termmate the specifitc
e1ement of na tl . · · 1 h" h · d ·
.
re1atiOns 1p h. between State and mdividua w . 1c.. ISc. escnbed . by the
term natiOna · l"t
1 Y, but creates an . anomalous
. . situah tion
· •rom· the viewpoint
• .
o f mterna IO t. nal law ·
The maxim, .
subjectzo .
tra zt prolectzonem .
et protectz·o
subjectionem, is true as a rule, but not m marg~nal cases. Protect1o.n may be
withdrawn without the withdrawal of natiOnal status; but smce such
withdrawal is rarely made explicitly, it has to be conc_luded from the absence
of any manifestations that the State concerned IS prepared to accord
international protection. . .
The most usual of these manifestations, the grantmg of passports, will be
dealt with in a separate chapter. 102 . • .
Protection may be withdrawn from md1v1duals or from groups of
individuals. Since withdrawal of international protection often goes hand in
hand with the withdrawal of internal legal protection, it characterises the
status of specific groups who, for various reasons (usually political), are
denied internal, legal protection, and who have to leave their country of
nationality, i.e., exiles and refugees. 103
Lessinglo4 asserts that the denial of international protection to political
refugees is not a withdrawal or renunciation of protection but merely a
suspension, since the State of nationality may resume its exercise on a change
of the political regime. The distinction has become blurred by the emergence
of totalitarian regimes claiming permanency and identity of the regime with
the State. It is submitted that, owing to the uncertainty of the resumption of
protection the date of which is a dies incertus an incertus quando and to the
discretionary character of its exercise, this suspension is tantamount to
withdrawal.
It is evidence of the importance attached to international protection as an
element of nationality that persons deprived of protection, i.e., refugees, are
frequently classed together with persons destitute of nationality, i.e., stateless
persons, under the common denomination of unprotected persons. 105
Conflicts of protection may arise from the simultaneous enjoyment by the
same i.ndividual of national protection and other types of habitual
protect.IOn. Examples have been given above. They may also result from the
pos~essw~ of more than one nationality, i.e., in cases of double or multiple
nat~onal~ty. A special problem is the exercise of protection by the State of
nationality against the State of former nationality in the case of naturalised
persons. These cases will be discussed in the chapters dealing with these
special subjects.

102. Infra, pp. 222-30.


!03
· RSeimatlos de f?it. ~f. Colaneri, De la Conditions des Sans-Patrie, p. 32.
04 · taatsangehoenglcezt, p. 106.
105. See infra p. 164.
The Duty of Admission 45

E. The Duty of Admission

(a) Nationals

One of the functions inherent in the concept of nationality is the right to


settle and to reside in the territory of the State ofnationality or, conversely,
the duty of the State to grant and permit such residence to its nationals. This
right is frequently laid down in the constitutional law of the State_l06 It is a
right of the national which he possesses under municipallaw.lo7 There exist
in fact a few exceptions to this rule, in the form of municipal laws which
permit the expulsion of nationals as a penal sanction in connection with
conviction for a crime. 108 Thus the ancient penal measure of banishment still
forms part of French criminal law, but since the nineteenth century it has
only been resorted to in isolated instances (such as the banishment of one
Malvy in 1921). It may now only be imposed for certain political offences as
a penalty of limited duration, not exceeding ten years.1os
As between national and State of nationality the question of the right of
sojourn is not a question of international law. It may, however, become a
question bearing on the relations between States. The expulsion of nationals
forces other States to admit aliens, but, according to the accepted principles
of international law, the admission of aliens is in the discretion of each
State-except where a State is bound by treaty to accord such admission. 110
It is likewise an accepted rule of international law that States are not-
unless bound by treaty obligations-under an obligation to grant to aliens
an unconditional and unlimited right of residence, though they may not

106. E.g. the Weimar Constitution of Germany of 1919 (Article Ill) , the Swiss Constitution
as amended in 1928 (Article 44 (I)), Constitution of the Turkish Republic of July 9, 1961
(Article 18), Constitution of the Arab Republic of Egypt of September II, 1971 (Article 51 ),
Constitution of Iraq of July 17, 1970 (Article 24), Constitution of the Hashemite Kingdom of
Jordan of January I, 1952 (Article 9) , Constitution of Kenya (S.I. 1963 No. 1968 Schedule
Article 25 (d)) , Constitution of Kuwait of November 11, 1962, (Article 27), Constitution of
Malaysia of August 23, 1957 as amended (Article 9(1)), Interim Constitution of Yemen of
December 30, 1970 (Article 27).
107. Cf the dictum of the Court of Appeal ofBritish Columbia in R. v. Soon Gin An: " If the
applicant was fortunate enough to have been born in Canada, then indeed he is possessed of a
very precious heritage of which he is not lightly to be deprived. One of the rights that flow from
his Canadian citizenship is the right to return to his native land ... " (1941) 3 Dominion
L.R. 125; Annual Digest, 1941- 42, Case No. 72.
108. Cf Castren, " Die gegenseitigen Pflichten d er Staaten in bezug auf den Aufenthalt und
die Aufnahme ihrer Staatsangehoerigcn und der Staatenlosen," in Zeitschrijt fuer auslaendisches
oeffentliches Recht und Voelkerrecht, 1943, pp. 325-417, at p. 366.
109. See the criticism of such measures by Lehr (La .Nationalitt dans les principaux Etats du Globe,
at p. 16), and Delessert (L'Etablissement et le Sljour des Etrangers ). The latter writes, at p. 52: "Elle
[Ia peine de banissement) est en contradiction flagrante avec cette faculte elementaire, accordee
au national, de resider perpetuellement sur le sol de sa patrie. On ne saurait done assez Ia
critiquer puisqu'elle atteint Ia nationalite a sa base meme et vient detruire les effets de cet
important rapport de droit."
110. Cf Musgrove v. Chun Teeong Toy [1891] A.C. 272, at pp. 282-3, and Oppenheim, vol. I, p.
675.
4G '/ hr· lnlnnotional Funrtiflln t!f .No tionu[l/~

cxp ·I them arbitrarily and witl~•,.ttjwu •:ausc. 111 It fi ,Jinw~ th:ll .tiH· (·xpul j,, 11
of a nationa l may only hl' earn ·d (lilt wtth.tlw co.mH't~l olt.lti· :~t; 1 tt· ,,, wl 11 ,, 11 •
t Tritory h. is to be CX ))i'llcd, and that tlw St :tt l' olu:lltonah ty m uucll'l' a dttl
towards oth T Stat s to rc ~e,· vc IlK . uattolla
. I11 IJac k 011 1 y
. t 11 h'I' I' ·Jt 1,ry ." ~ 1 iM
1
significant that on AJ~ril 2, IB.I7 , Franc:c ·nac t cc~ a n Onlin:ull ·~· JH'ovidinK
that a sent ·n -. of bamshmcnt 1s to be ·ommtttl'cl 111tu tli-t ('llttoll 111 a fi 'r'II'<·K:i
if oth ~r States refus ~ Lo admit the person f!t· ut cuced to IJa nislirn,·JJt .t•a
When a national of one Stat • is t:xpdlcd to anot h 'r Statt· wlticJ. l1a11 0111
consented to admit him, or wh ~u n Stat(: is pn:v ·nt ·d from n·tlt rrti 11 K i:l
foreign national to th, Stat· of' his nationality 114 hy tht: lau ·r's rd'usal lo
receive him back, the for ign Stat· may d ·maud fmrn t lw St at . ,,r
nationality that it should refrain from ·xpulsion or, as tht; cast· may IJt:, n·~
admit its national, on the ground of the duty of th · St at · to gTallL t11 it s
nationals the right to reside on its t ·rritory. That duty ofth" Stat· towards it s
nationals under municipal law becnm •s a duty towa.n.ls other Statts; it
becomes an obligation of international law. 1111 The right of sojourn in the
form of the converse duties of Stat s resulting from it hash~ ·n mentioned by
Finland in her observations on the points drawn up by the Pr ·paratury
Committee to the Conference for the Codification of Int rnational law.11•1
Authorities in positive international law on this point hav · b ·en rare IJUt
have been increasing lately. The Universal 0 claration of Human Rights-
which, though not a legally binding instrument, carries consid rabl •
weight-provides in Article 13: "I. Everyone has the right to freedom of
movement and residence within the borders of each State." ''2. Ev •ryonc
has the right to leave any country, including his own, and to return to his
count1y'' (emphasis added).
The International Covenant on Civil and Political Rights 117 provides in
Art. 12, para. 4: "No one shall be arbitrarily deprived of the right to ent r
his own country."
The International Convention on the Elimination of All Forms of Racial
Discrimination 118 obliges the States Parties 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 certain rights, inter
111. Cf Att.-Gen.for Canada v. Cain [1906) A.C. 542, at p. 546, and Oppenheim, pp. 69 1- 3.
112. Cf van Panhuys pp. 55, 5b.
113. Cf Lessing, Staatsangelwerigkeit, p. 113.
114. So-called " reconduction" (droit de renvoi, refoulement ) of a non-resident, as distinct from
expulsion, i.e., an order to a resident to leave the territory.
115. Cf Havana Convention on the Status of Aliens, February 20, 1925, Article 6: "Stat~s
arc .reqmred to receive their nationals expelled from foreign soil who seck to enter their
terntory." (U.S. Treary Series, vol. IV, p. 4722, at p . 4724. )
116. Bases of f:!~~~sion, p. 16. Cf Fischer Williams! loc. cit. p. 55; Blunt~chli, Das moder~e
~oelkerrecht der zwzlmerten Staaten als Rechtsbuch dargestellt, p. 215; Oppenheim, vol. I • P· 64 '
Sieber, Das Staatsb~Urgerrecht im internationalen Verkehr p A
' • T. f
117. Annex to General Assembly Resolution 2200/XXI of December 16, 1966; as 0
August 31, 1978, 50 States had become Parties. . b
ll8 U.N.T.S. vol. 660, p. 195; as of August 31, 1978, the Convention had been rauficd Y
100 States.
The Duty of Admission 47

alia the right to leave any countr., including his 0\>\11 and to return to one'·
country (Article 5 (a )(ii)) .
Protocol No.4 to the European Convention for the Protection of Human
Rights and Fundamental Freedoms securing certain rights and freedoms
other than those already included in the Convention and the First
Protocol 119 contains Article 3 which reads:
·' 1. No one shall be expelled by mea ns either of an individual or of a collccti c measu re, frum
the territory of the State of which he is a national. "
''2. No one shall be deprived of the right to enter the territory of the State uf which h · is a
national. "
The reason why the duty of admission and of non-expulsion of nationals
has until recently been rarely stipulated in positive international law is
obviously not that the existence of this duty under international law is in any
way denied or disputed, but rather that it is generally accepted as an
inherent duty of States resulting from the conception of nationality.12o It is
based on the territorial supremacy of States. If States were to expel their
nationals to the territory of other States without the consent of those States or
were to refuse readmission, thus forcing States to retain on their soil aliens
whom they have the right to expel under international law, such action
would constitute a violation of the territorial supremacy of these States. It
would cast a burden on them which, according to international law, they are
not bound to undertake, and which, if persistently exercised, would
necessarily lead to a disruption of orderly, peaceful relations between States
within the community of nations.l 21
Leibholz rightly points out 122 that expulsion of a State's own nationals is
inconsistent with international law because it creates, at least potentially,
dutiesJor other States and encroaches thereby on their jurisdiction without
any internationally valid reason. However, he describes this violation of
international law as an abuse of the discretionary power of the State, as
Ermessenmissbrauch-a construction which seems to be unnecessary, since the
reason for this rule is simply the exclusiveness of territorial supremacy, quite
apart from the need for caution in the resort to analogies between municipal
law and international law .123

119. European Tr. S. No. 46; adopted on September 16, 1963; as of.January 15, 1978, the
Protocol had been ratified by Austria, Belgium, Denmark, France, the Federal R epublic of
Germany, Iceland, Ireland, Luxembourg, Norway and Sweden.
120. CJ van Panhuys p. 56: "The duty to ad mit nationals is considered so important a
consequence of nationality that it is almost equated with it" .
121. " Hospitality of a nation should not be turned into a burden": if. the Despatch of the
U.S. Secretary of State to the U .S. Minister in Russia, February 18, 189 1 (quoted from Adler
and 1\-fargalith, With Firmness in the Right, p. 220).
122. In "Verbot der Willkuer und des Ermessensmissbrauches im Voelkerrecht," in
,(eitschrift fuer auslaendisches oejfentliches Recht und Voelkerrecht, 1929, I , pp. 77- 125, at p. 95.
123. On the application of the principle of abuse of rights in international law cf. German
Interests in Polish UpperSilesia (Merits) Case, P.C.I.J., Series A, No.7, at pp. 37- 38, and Politis,
"Le Probleme des Limitations de Ia Souvcrainete et Ia Theorie de l'Abus des Droits dans lcs
Rapports lnternationaux," in Hague Recueil, 1925-1 pp. 5-121. And sec Lautcrpacht, Private
Th btfenwtionnl Funrtion- of . \ .ationalitv

. •._ recoil luc titw a lin r· will , therefore. u ·ually retu rn th ..:m to the
I •1 1l . ::-. f - 'bl I.
untrY of th ei r n.tti na lit y. "hi lc in the case u lo rCI <-: cxpu s'.. 1\ the alien is
1\0 t infi~eq u c ntl y t·1k..:n to th fro ntier a_n~l tltl~r:c kft to hL_fat . 1 h e proccd.ure
i- usua ll y regulate 1 b · intet:nal admtmst ra ll\T _rcgu_l_a tto n ·. In the U 111 tcd
~ 1 • te~ the countri es 10 w l11ch ~ n expel led a hcn .Is t _be d eported are
dctnmine 1 by law. which, howe, ·cr. lc~\\'C th Exccutl\'C a fairly wide
amount of disrrction .' 2"
ectiun 24 uf the nit cd ta tcs I mmi r. ti n and Na ti nalit · Ac t 195_,
pro,·idc.:s tha t in th e ab~ ·n c of a country of the a lien ' own choic ·being
willing to rccei\'c him.
u h dep n a tion h.tll be dire ted by the Auomey-Gcner:~l within hi di~~reti01~ a nd ~vithout
~c"' aril\' gi,·ing anv nri ritv or prt>fcrt'nce becau~e of their order a herem et forth ellhrr-
nt ~;, • r · · d
( I) 10 t h~ cou ntry from which uch alien last ~n t ered the n.lle Hiles:.
(. ) to the country in which is lo~. ted the f~rc1gn port a t wh1ch uch a hen embarked for the
'nit ed t.. lt' or for foreign contPuou terntory·
( .>) to the rountr · in which he was bu~n ;_ . . . . .
(4) to the country in whi h the place ol h1s b1nh 1- 1tuated a t the ume he 1- ordered deponed ·
(5) to an . cou ntr · in which he re .. ided prior to en tering the country from which he entered the
nit cd t. tcs:
(6) to the country which had O\Treignt · O\'Cr the binhpl.1 e oft he alien a t the time of hi birth;
or
(7 If deportation to any of the foregoing places or cou ntri i impracticable, inacl\'isablc, or
impo.sible then to any country whi h i willing t accept such alien in to it territory.
Betwern neighbouring States the proced ure re la ting to illegal entry is
som etimes regulated b) bilateral agr eem ent o n the ba i o f reciprocity. The
dul\ of a State to grant to its own natio n a ls a rig ht of re idence to the extent
outlined h ere is uni ersally recognised and is n o t likely to g i,·e ri e normally
to questio ns of p a rticular significance in internationa l relations and
international law .12:>

Law Sources and Analogits of bttrrnational Law, where he stresses not only the need for applying
principles of pri\'ate law to internationa l law but also the limits of the application of such
analogies (passim, particularly a t p. 85). In The Function of Law in the International Communi!)', the
same author d eclares indiscriminate dena tionalisation coupled with refusal to receive back as an
abu e of rights (at p. 301). Cf further Cheng, G1'71rral Principlrs of Law, passim, esp. p . 133. The
author distinguishes between abuse of rights and a buse of discretion; he considers the theory of
abuse of rights as an application of the principle of good faith which governs international
relations to the exercise of rights.
124. In Unitrd Statu rx rei. Hudak v. Uhf. District Director of Immigration et al. (1937) 20
F.Supp. 928; (Annual Digest, 1935- 1937, Case No. 161 ) the United States District Court for the
Northern District of New York refused to interfere with the authority of the Commissioner of
Immigration vested in him by statute, to select the country to which an alien should be
deported.
125. A legislative measure seemingly viola ting this principle, namely, the extraordinary
power conferred on the Secretary of State to make prohibition (i.e., refusal of admission) and
expulsion ord ers against persons not ordinarily resident in Great Britain and believed to be
c~ncerned in the preparation or instigation of certain ac ts of violence, by the Prevention of
\ 10lence (T emporary Provisions) Act, 1939 (2 & 3 Geo. 6, c . 50) , s. 1, has been criticised. on
the ground that it may affect British subjects, by Mr. Clive Parry in Annual Survey of English Law,
1939, pp. 93-94. .
According to the Expiring Laws Continuance Act, 1953 (2 Eliz. 2, c. 9) , the power to make
such orders (other tha n orders revoking previous orders) m ay not be exercised after
December 31, 1953.
The Duty of Admission 49
The question became topical when Germany resorted, after 1933, to a
deliberate policy of expulsion of certain group· of her nationals, who were
regarded a~ of "non-German ?lood': or "non-Aryans", in particular .Jews.
The situation created by this action was the subject of international
conferences which resulted in the conclusion of certain international
agreements. It i~, however, proof of the universal acceptance of this duty
that Germany did not resort to open expulsion of the nationals concerned
but for~ed then: to emigrate, usually under the cloak of voluntary
emigration. Dunng the. S~cond World War, after the occupation by
Germany of many countnes m eastern Europe, this practice was replaced by
mass deportation to such eastern territories under German control. In the
event of reconduction of such evicted German nationals by other States,
Germany did not, as a rule, refuse readmission, but subjected the returned
nationals to cruel measures of persecution, such as indefinite detention in
concentration camps, which led, directly or indirectly, to their
extermination.

(b) United Kingdom Immigration Legislation

Turning to some entirely different circumstances, the question of the duty of


the State to admit its nationals has more recently been raised in connection
with immigration legislation lately enacted in the United Kingdom ofGreat
Britain and Northern Ireland which has been criticised in and outside
Parliament as violating the duty of the State of nationality to admit its own
nationals.
According to the Commonwealth Immigrants Act, 1962, Commonwealth
citizens, British protected persons and citizens of the Republic of Ireland,
were made subject to control of entry unless they were born in the United
Kingdom, were citizens of the United Kingdom and Colonies holding
United Kingdom passports wherever issued, or (not being connected with
the United Kingdom in this way) held United Kingdom passports issued
in the United Kingdom or the Republic of Ireland or were included in the
passports of such persons.
According to the Commonwealth Immigrants Act, 1968126 certain citizens
of the United Kingdom and Colonies became subject to control unless they
or one of their parents or grandparents was born, naturalised or became a
citizen of the United Kingdom and Colonies by virtue of adoption in the
United Kingdom, or became such a citizen by registration in the United
Kingdom. The measure-which was rushed through Parliament-was
designed to control the mass influx of citizens of the United Kingdom and
Colonies of Asian origin from Kenya who had retained their nationality
status when Kenya became independent in 1963 and who had become
subject to restrictive measures by the Kenyan government in the course of
the execution of its policy of Africanisation. 127
126. 1968 c. 9.
127. Cf P1ender op. cit. "The Kenyan Asian Controversy" at PP· 88- 93.
50 The International Functions of Nationality

In the 1mmigration Act, 1971, 128 a distinction is made between persons


who have the right of abode in the United Kingdom, termed "patrials"
who therefore have a free right of entry, and others whose entry is subject l~
control. The right of abode is accorded to citizens of the United Kingdom
and Colonies, who obtained their citizenship by birth, adoption, naturali-
sation or registration, in the United Kingdom, the Channel Islands or the
Isle of Man, citizens who have specified connections with the United
Kingdom or the Islands by parentage or grandparentage, or who have
settled in the United Kingdom and Islands and been ordinarily resident
there for the last five years; further to Commonwealth citizens born to or
legally adopted by a parent who at the time of birth or adoption was a
citizen of the United Kingdom and Colonies by birth in the United
Kingdom or the Islands; and to the wives of the aforementioned categories of
persons.
Nationality is, thus, not the sole criterion for the right of entry.
Immigration policy is not based on citizenship.
As to the consistency of this legislation with international law, this
question was raised during the debate on the Commonwealth Immigrants
Act, 1968, in the House of Commons on February 28, 1968. When
l\1r. Paget, M.P., quoted Oppenheim's statement: "The home state of
expelled persons is bound to receive them on the home territory" (8th ed.
p. 646), 129 the Solicitor General replied that there was some authority for the
wide proposition that the State has a duty to admit its nationals in any
circumstances, without qualification. As a matter of law, this was not a
refusal of entry bill. It could not be regarded as contravening the principle of
international law (as stated by Oppenheim), even if it is expressed in the
widest terms. 130
In accepting the duty of the United Kingdom to admit nationals expelled
by another State under an obligation to the expelling State, the
requirements of international law as a law between States would appear to
have been complied with.
There is, however, a growing tendency to regard the right to enter the
country of nationality as a human right of the national. 131 It was held in a
Canadian case 132 and a case in the United States 133 that the citizen had a
constitutional right to enter his own country.134

128. 1971 c. 77.


129. Hansard, House of Commons, vol. 759, col. 1556.
130. Ibid., col. 1581.
131. Cf P1ender op. cit. pp. 72-74.
132. R. v. Soon Gin An (1941) 3 D.L.R. 125; see supra p. 45n. 107.
133. The Martonelli Case (63 F.437 ( 1894)) ; cases cited by Plender p. 73.
134. In a recent book: Goodwin-Gill "International Law and the Movement of Persons between
States" (1978), the author declares that patriality is but one example of the way in which States
may, for the purposes o~ control.li~g i~migration, distinguish betwee~ various classe: ~~
nat~onal~ (at P· 14). He nghtly distmgUishes, however, between such different concep.t
natiOnality
. under mumctpa · · 11aw and the nght · ·
of entry under general mternatwna· ]law "m so
far as this affirms the duty of the State to receive back its nationals expelled from other States or,
The Duty of Admission 51

The application of the United Kingdom Acts of 1968 and 1971 has been
challenged before the Courts and the European Commission of Human
Rights, in pa~ticular in .c?nnection with the mass expulsion of Asians who
were not considered as citizens ofUganda, from that country. It was held by
the English Court of Appeal in Regina v. Secretary of State for the Home
Department ex parte Thakrar 135 that there was no rule of international law
incorporated into English law which required that the United Kingdom
should receive on its home territory British protected persons expelled from
Uganda. Even if there had been such a rule between States, the Immigration
Act, 1971, applied to British protected persons and they could not enter the
United Kingdom without leave. As to Oppenheim's statement the l\1aster of
the Rolls, Lord Denning, referred to the exceptional situation of the
existence of millions ofBritish protected persons who lived in countries which
had no connection with England except that they were once a British
protectorate. It could not be said that every one of them had, by
international law, a right to come into these small islands. Even if there were
such a rule, it would be a rule between States, and not between an individual
and a State. Uganda could insist on it against England, but no one
individual could do so.
A considerable number of persons, particularly East African Asians,
whose admission or whose relatives' admission had been refused under the
United Kingdom immigration legislation, petitioned the European
Commission of Human Rights on the ground of alleged violation of certain
provisions of the European Convention of Human Rights and Fundamental
Freedoms, in particular Art. 3 (prohibition of inhuman or degrading
treatment), Art. 5 (right to liberty and security of person), Art. 8 (right to
respect for family life), Art. 12 (right to marry and to found a family) and
Art. 14 (freedom from discrimination). 136
A number of cases were declared admissible by the Commission. It held
that, quite apart from any consideration of Article 14, discrimination based
on race could, in certain circumstances, of itself amount to degrading
treatment within the meaning of Article 3 of the Convention. On the
complaint of the applicants that the United Kingdom authorities refused to
admit them to the United Kingdom when they were citizens of the United
Kingdom and Colonies or of equivalent status, and holders of United
Kingdom passports, and at a time when they had no other country to go to,
the Commission held that the United Kingdom had not ratified the Fourth
Protocol to the Convention and no right for persons to enter, in particular,
the territory of the State of which he is national is as such guaranteed by the
Convention or the First Protocol.

possibly, i11 so far as it recognizes the human rights aspect and the right of entry as belonging to
the individual citizen" (at p . 21).
135. (1974) 2 All E.R . 241 A.C.
136. Cf inter alia the First African Asians Case, S.M.L. Patel and 24 others (Application
Nr. 4409/70, Yearbook of the European Convention on Human Rights vol. 13 p. 928), the
Second East African Asians Case, H . G. Patel and 5 others (Application Nr. 4501/70, Yearbook vol. 13
p. 1014).
52 The lnternatioual Functions cif Nationality

The great majority of the applicants have now been admitted to th


United Kingdom . The first two groups. of cases ~h.ich hac~ been declare~
admissible were decided by the Committee of Mm1sters of the Council of
Europe in the following way: there had been no violation of Article 3 as
regards six presented by British protected persons; there had been no
violation of Article 5 nor of Articl.es 5 a~d 14 taken together; and that, being
noted that the majority of two-thirds of the members had not been a ttained
no action was called for in the cases of 25 applications of citizens of th~
United Kingdom and Colonies with regard to Article 3 and in the cases of
three applications with regard to Articles 8 and 14 of the Convention, and
accordingly the examination of the cases was removed from the agenda. The
251 applications in the other groups were either declared inadmissible or
were struck ofT the list as most of the applicants had been admitted to the
United Kingdom. 137
The situation described is, in fact, exceptional. The Nationality Act, 1948,
created the transitional status of "British Subject without Citizenship",
pending the enactment of nationality legislation by the newly independent
members of the Commonwealth; inasmuch as these persons did not acquire
the citizenship of the countries concerned they became citizens of the United
Kingdom and Colonies. There are thought to be I ,490,000 persons living
abroad in this condition. 138 There are, moreover, believed still to exist about
250,000 British Subjects without Citizenship and 274,000 British Protected
Persons. All these persons who are not closely connected with the United
Kingdom became subject to immigration control as the United Kingdom,
the territory of which consists only of Great Britain, Northern Ireland and
the remaining dependencies (and for this purpose the Isle of Man and the
Channel Islands), was considered not to be in a position to absorb them all,
particularly in the case of a mass influx.
It is nevertheless invidious that the immigration legislation has created a
class of citizens of the United Kingdom who do not have a right of free entry
into the United Kingdom. In the aforementioned Green Paper the British
Government has made suggestions for the replacement of the citizenship of
the United Kingdom and Colonies by a "British Citizenship" and a "British
Overseali Citizenship" . British citizenship would be conferred, in general, on
those citizens of the United Kingdom and Colonies, who were born,
naturalised or registered in the United Kingdom, the Isle of l\1an and the
Channel Islands, on those who hold that citizenship by descent and have at
present the right of entry; and on those citizens of the United Kingdom and
Colonies and British Protected Persons from dependencies or former
dependencies and British Subjects without Citizenship who have settled in
the United Kingdom for a specified period.
British Overseas Citizenship would be conferred on those citizens of the

137. Council of Europe docs. DH(77)3 pp. 76- 8 and DH (77)2, B(78) 10.
138. The figures are taken from the Green Paper on British Nationality Law presented by the
Home Secretary to Parliament in April 1977 (Cmnd. 6795).
/he J)uty of Admi.fjion

United Kingd om a nd Colonies who ':t.:t'(' born , na t ura list:d or n.:J4istcn.:d in


an existing dependency, _o~· whose fa thers were so born , na ltl ra)i')CU or
registered , and, as a trans t ~t on a l ~ rra n gc m cu t, on tltosc o ther pc·rsons whu
. r~· now citizens of the U mtccl Kmgdom a nd Colo ni es or British Protectn l
~crsons bu t who wo uld not q ua lify as British C itizens. British Overseas
Citi:tcnship would not ca rry with it the right of en try in to the U nited
Kingdom.

(c) Former nationals

While in(ernationa l pro tec tion of their nationa ls is a right which Sta tes a rc
entitled to exercise uncond itionally a nd perma nently, b u t which may a lso be
exercised conditio na lly a nd tempora rily in fa vour of certa in classes of non-
nationals, the duty of readmission is a n a bsolute duty imposed on States with
regard to their own nationa ls only: it is a specific function of na tiona lity. It
seems more a ppropriate to speak of a duty of admission, since the Sta te of
nationa lity is a lso und er an obligation to admit a nationa l born a broad who
never resided on its territory if his admission sho uld be d ema nded by the
State of residence. Both pro tection and d uty of admission commence with
the acquisition of na tionality, i.e., usua lly with the birth of the individual.
Protection may be withdrawn or suspended while na tiona lity still persists,
but may be reassumed a t a n y time during the continua nce of na tional status.
The duty of admission as a n attribute of nationa lity does no t terminate
during the con tinued existence of na tiona lity, but the question arises
whether•it docs no t, in certa in circumsta nces, survive the na tiona l status.
Nationality is considered as " the link between the individua l and
international law" . 13 9 The place of the individual in interna tional law is
normally d etermined by his m embership of a particula r State, which secures
to the individua l the Voelkerrechtsindigenat.140
The contention that the duty of admission continues after the termina tion
of nationa lity a nd ends only on the acquisition by the individua l of a nother
nationality (which imposes on the State of new nationality the duty to admit
him to, or to receive him back on, its territory) is based on the sound
conception of na tionality as an element of order allocating individuals to a
specific State as its m embers, and t hereby m a king norma l intercourse
between States possible. It is d oubtful if the duty of readmission can be held
to persist in case ofloss of na tionality by unilateral action of the na tional, i.e.,
by voluntary expatria tio n. H owever, the question is of little p ractical
importance, since such voluntary expa triation is usually linked with
simultaneous acquisition of a no ther na tiona lity by na turalisation. It may be
~rgued that the persistence of a right of sojourn in this case would be
mconsistent with the nature of the interna l relationship between State and
national, and that a State could not be compelled to grant such a right,

139. Oppenheim, vol. I, p. 645.


140. See Stoerk, op. cit., p. 588.
54 The International Functions of Nationality
inherent in nationality, to persons who so obviously throw off their tie of
allegiance. Such argument is, however, not relevant where the external
relations of the State are concerned.
The question raises a far more practical and grave issue in the case ofloss
of nationality by unilateral action of the State, that is by deprivation of
na~ionality. ~t seems fitting to ~all s_uc~ depriv~t~on of nationality by
umlateral action of the State denauonahsauon, as d1stmct from renunciation
(which includes expatriation). 141 In the case of denationalisation, the
doctrine of the survival of the duty of readmission after the loss of nationality
follows, in fact, from the principle of territorial supremacy: this supremacy
might be infringed by such unilateral action in so far as that action would
deprive other States of the possibility of enforcing their recognised right to
expel aliens supposing that no third State, acting in pursuance of its
legitimate discretion, was prepared to receive them.
Since States are under no obligation to permit aliens to reside on their
territory, the right of sojourn of nationals is necessary for the maintenance of
peaceful relations among States. It is maintained by publicists that, in the
interests of international order, loss of this right, in consequence of loss of
nationality, should only take place if it is followed by the granting of the
same right by another State, i.e., by the acquisition of another nationality.
Loss of nationality by denationalisation should therefore, by itself, not entail
the loss of the right of sojourn; it should not relieve the State from the
obligation to receive the former national back on its territory.
Following this line of thought, several modern writers maintain the
existence of a duty to readmit former nationals which persists until they have
acquired another nationality. 142 A rule to this effect was incorporated by the
Harvard Law Research in its Draft Convention (Article 20), but it does not
appear from the Comment that it was considered as being part of existing
international law .143 Such rules are also to be found in several Resolutions of
the Institute of International Law.14 4 Leibholz argues that this duty
continues to exist, but bases it on the illegality of the abuse of discretionary
powers. 145
Since the question only becomes practical if the denationalised individual
is forced to leave the country of his former nationality or if, being abroad, he
is expelled by the State of residence and refused admission, two cases must be

141. See infra, pp. 115-6.


142. Cf Cogordan, La .NationaliU au Point de Vue des Rapports internationaux, pp. 262- 3; Fischer
Williams, loc. cit., pp. 55- 6, 61; Hold-Ferneck, Lthrbuch des Voelkmechts, vol. II, P· 26;. Hy~e,
p. 1169; Lessing, Staatsangehoerigkeit, pp. 114- 132; Preuss, "International Law and Depn\'auon
of Nationality", in Georgetown Law Journal, 1934-1935, pp. 250-76.
143. Loc. cit., p. 78.
144. For example, Resolution concerning Admission and Expulsion of Aliens, adopted at the
14th Session at Geneva, 1892, Article 2 (Annuaire, 1892, p. 219); Resolution concerning_S tatel;:
Persons and Refugees, adopted at the 40th Session at Brussels, 1936, Article 8 (Annuarrt, 19 '
vol. II , p. 298).
145. Loc. cit., p. 101.
The Duty of Admission 55

distinguished: d ena tiona lisation before leaving a nd denationa lisa tion after
leaving the Sta te of na tiona lity. In both cases it is generally considered tha t
the duty to permit residence or to readmit the former na tiona l persists, but in
the la tter case a n additiona l a rgument may be adduced : tha t the good fa ith
of the Sta te of residence would be betrayed by such d ena tiona lisation. The
good faith of a State which has admitted a n a lien on the assump tion tha t th e
State of his na tiona lity is under a n obligation to receive him back would be
deceived if by subsequent d enationa lisation this duty were to be
extinguished. 146
There is therefore, in the view of the present writer, greater force in the
doctrine that the duty of the State of former na tiona lity to admit a
denationalised person to its territory exists only if dena tionalisation has taken
place while the person concerned was on the terri tory of a nother Sta te. It
has, however, to be examined whether the alleged rule of a duty (absolute or
qualified ) of readmission of former nationa ls forms in fact part of existing
interna tiona l law so far as it can be ascertained from the practice of Sta tes,
including their treaty practice. The most important source of this knowledge
consists in the proceedings of the Hague Codification Conference of 1930
relating to nationality, a nd the interna tiona l instrum ents resul.ting
therefrom.
On the question of readmission of form er na tionals, the Preparatory
Committee drew up the following Basis of Discussion 147-
If a person, after entering a foreig n country, loses his na tionality without acquiring a nother
na tionality, the State whose na tional he was remains bound to admit him to its territory a t the
request of the Sta te where he is residing.
It can be seen that the Prepara tory Committee restricted the duty of
readmission to cases of loss of nationality after d eparture from the Sta te of
nationality.
In their observations the Committee remarked tha t -
this point does not fall direc tly within the scope of a codifica tion of the rules governing
nationality, but relates rather to the consequences of the deprivation of na tionality which has
befallen the particular person.
This view was shared by a number of delega tes, as shown by the
deliberations of the First (Nationality) Committee of the Conference. The
Soviet observer argued that this was entirely a political question 148 "outside
the scope of the system of rules for the definition of nationa lity", while many
delegates m ainta ined tha t it was a matter of police regula tions, 149 which
ought not to be discussed in connection with na tionality. (As to the
frequently expressed view tha t certain ma tters are not a mena ble to

146. A sort of estoppel o n the part of the Sta te of na tiona lity. Cf regarding this analogy,
Lauterpacht, Private Law Sources and Analogies if International Law, pp. 203- 6.
147. No.2, p . 21.
148. Minutes if the First Committee, p. 38.
149. France (ibid., p. 37), Chile (pp. 39, 244), Yugoslavia (p. 39), Ita ly (pp. 37, 4 1- 2),
Portugal (p. 39).
The International Functions of Nationality
56
international legislation because they are of a "political" character, the
.
per tmen t remarks of Flournoytso may be referred r to. Every. question. of
international legislation-and the sa~~ app Ie~, mutatzs "!utandzs, to
municipal legislation-is, in fact, a pohu~al questi~n, a. question of legal
policy. What 'is apparently me~nt by this contentiOn IS that ov~rri~ing
considerations of national sovereignty prevent the State from entenng Into
international commitments on the question concerned. Since any treaty
obligation involves a restriction o~ nationa.l so~ere~gnty, the "political"
nature of any problem of international legislatiOn IS merely a matter of
degree.) . .
Certain delegates, in particular the delega.te of the Umte.d Kmgdom,ISI
took the opposite line and supported the v1ew expressed m the Basis of
Discussion.1s2 Some of them went even further, by proposing to omit
altogether the qualification "after entering a foreign country" .153
The British delegate contended in favour of the rule contained in the Basis
of Discussion-
because a kind of contract or obligation results from the granting of a passport to an individual
by a State so that when that individual enters a foreign State with the passport, the State whose
territory he enters is entitled to assume that the other State whose nationality he possesses will
receive him back in certain circumstances. 1M
It may be inferred from this statement that Great Britain was not in favour of
an unqualified duty of admission, including cases of loss of nationality prior
to departure. The delegate of the United States, however, clearly advocated
that the duty of admission of the State of former nationality was
unconditional. 155
The discussions resulted in the adoption. of a "Special Protocol concerning
Statelessness", the operative Article of which reads-
Article I. If a person, after entering a foreign country, loses his nationality without acquiring
another nationality, the State whose nationality he last possessed is bound to admit him, at the
request of the State in whose territory he is:
(I) if he is permanently indigent either as a result of an incurable disease or for any other reason;
or
(2) ifhe has been sentenced, in the State where he is, to not less than one month's imprisonment
and has either served his sentence or obtained total or partial remission thereof.
. In .th~ first case the State whose nationality such person last possessed may refuse to receive
him, 1f It undertakes. to meet the cost of relief in the country where he is as from the 30th day
from the date on wh1ch the request was made. In the second case the cost of sending him back
shall be borne by the country making the request.

150. In 24 A.J. (1930), p. 467.


151. Minutes of the First Committee, pp. 40- l.
l 52. Also Belgium (ibid., PP· 38, 41), Switzerland (pp. 39- 40), Greece (p. 40), the
Netherlands (p. 37).
!~!: ~~~~i; ~~id.,
4 P· 38), Germany (p. 41), the United States (p. 243).
155. Ibid., p. 243.
The Dury of Admission 57

The Protocol has not come into force owing to the lack of the required ten
ratifications. 156
Furthermore, the following voeu was embodied in the Final Act of the
Conference157-
The Conference recommends States to examine whether it would be d esirable that in cases
where a person loses his nationality without acquiring another nationality, the State whose
nationality he last possessed should be bound to admit him to its territory, at the request of the
country where he is, under conditions different from those set out in the Special Protocol
relating to statelessness which has been adopted by the Conference.
It is, as Hyde has said,158 regrettable that
the Special Protocol concerning Statelessness made the duty of admission so narrow a one that
that body itself [i.e., the Conference] recommended in the Final Act that States consider the
desirability of enlarging it.
This cannot, however, alter the position de lege lata as it emerges from the
results of the Conference, vi~., that at present no rule of universal customary
international law can be proved to exist which binds States to admit former
nationals who have not acquired another nationality.
There exists a- probably theoretical-exception, following from the
general principles of international law, to the principle that loss of
nationality terminates the duty of admission. If a State were to resort to
denationalisation of nationals abroad solely for the purpose of denying them
readmission or to prevent their return, for instance, in the case of a national
threatened with deportation, such action taken in fraudem juris internationalis
would be contrary to international law not only as an abuse of right but as a
direct infringement of the sovereign rights of the State of residence, i.e., of the
right to expel aliens, which follows from its territorial supremacy.
The view that customary international law does not normally impose on
the State of former nationality a duty of readmission is supported by the fact
that it has been found necessary to stipulate such a duty explicitly in bilateral
treaties, so-called "Repatriation Treaties''. The first of such treaties were
the Exchange of Notes between Austria and Prussia of September 2-30,
1849, concerning the admission of original subjects,159 and the Treaty of
Gotha ofJuly 15, 1851 , between Austria, Holstein-Lauenburg, the German
Bund and Liechtenstein, to which Luxembourg acceded in 1855. 160 An
enumeration of such Treaties may be found in Lessing's bookl61 and in
Heinrich's Deutsche Niederlassungs- Vertraege und Uebernahmeabkommen.
A more recent example is the Convention between Belgium and the
Netherlands concerning Assistance to and R epatriation of Indigent Persons,
concluded at The Hague on May 15, 1936162 which provides in Article 3-

I 56. See supra, p. 27.


157. Resolution A II (L.N. Doc. C. 228. M . I 15. 1930. V.) .
158. Cf Hyde, pp. 11 69-70.
159. Cf Martens, N.R.G., vol. XIV, p. 600.
160. Cf Lessing, Staatsangehoerigkeit, p. I 32.
161. Ibid., pp. 132, 133.
162. L.N.T.S., vol. 179, p. 41.
58 The International Functions of Nationality

La C irconstance que !'indigent


, a perdu Ia. nationalitc d e Ia Pa rti..e req
. uise, ne. pourp'' etre
.,
invoqucc pour rejcter Ia demande de repatnemcnt,. pou~· a u tant que 1 me1Jgent n 'an acquis en tre
temps Ia na tionalite de Ia Partie rcquerantc ou d un uers Etat.
The view taken by Lessing 163 that such _treati es are merely d eclaratory of
existing law and do not create new law, IS not borne out by the practice of
States.
With regard to the U nited States of America, its law governing the
deportation of a liens is so fl exible ~ha t ~n e . cannot sp:ak of a practice to
d eport or a policy to seek deportation of a hens to their country of former
nationality. 164
As to the United Kingdom, Schedule 3 to the lmmigrat~on Act, 1971 ,
prO\·ides that the Secretary of State rna y, where a deportation order is in
force against an y person, give directions for his removal to a country or
territory specified in the directions, being either
(a) a country of which he is a nationa l or citizen; or
(b) a country or territory to which there is reason to believe that he will be
admitted. (para. 1( 1))
In the case of persons refused leave to enter and of illegal entrants
the owner or agent of the ship or a ircra ft in which the person arrived
may be directed that the person- apart from the countries or territories
mentioned-be removed to a country or territory in which he has obtained
a passport or other document of identity; or to a country or territory in which
he embarked for the United Kingdom (Second Schedule para. 8( 1) (c)) .
A person may appeal to an adj udicator against the directions on the
ground that he ought to be removed-if a t all-to a different country or
territory specified by him (sec. 17 ( 1) and (2) of the Act). Against the decision
of the adjudicator leave to appeal lies (with consent) to the Immigration
Appeal Tribunal (sec. 20 of the Act) . It is not the policy of the United
Kingdom to deport sta teless aliens to the country of their former nationality.
It was so stated in a communica tion to the Intergovernmental Advisory
Committee on R efugeest6s_
H .M. Government observe the principle that an a lien should not be deported except to the
co~ntry ?f which ~e is a national. Accordingly it is not the practice to deport stateless aliens
resident m the Un11cd Kingdom.

And it was declared by the Home Secretary in the H ouse of Commons on


M ay 19, 1949, that:
The only place to which I can legally deport a person is his country of origin, b ut I try 10. h~lp
refugees as fa r as I can by allowing them to get out under their own power, if they are wJlhng
to do so. 166

According to the practice of the United Kingdom , a n alien will only . be


deported to a country willing to admit him: in the case of a person possessmg

I63. Op. cit., p. 132.


164. Cf supra, p. 48.
l65. See L N. Official Journal, I 934, p. 373.
166. See Hansard, H.C., vol. 465, col. S9Q.
Summary 59

a nationa lity, normally therefore to the country ofhis nationality. In case of


loss of nationality, the claim against the country of former nationality for
readmission would, as the present writer understands, if refused , hardly be
pressed, except in the event that the person had been deprived of his
nationality after a deportation order had been made against him.

F. Summary

~n summing up it may be said that there is an important difference between


the conception of nationality as a term of international law and nationality
as a term of municipal law. For the purpose of international law, only the
rights and duties of States arising from the status of nationality, i.e., of the
State of nationality in relation to other States, are relevant; for the purpose
of municipal law, nationality connotes a specific relationship between
national and State of nationality, conferring mutual rights and duties on
both.
The obligation resting on the State of nationality in relation to other
States is the duty to allow the national to reside on a territory under its
sovereignty (unless another State is willing to admit him) and to admit him
to such territory.
The right is the right of the State of nationality to exercise permanent and
unconditional protection of its national in relation to other States and,
conversely, the duty of other States to recognise the existence of this right.
Nationality in the sense <;>finternationallaw is a technical term denoting the
allocation of individuals, termed nationals, to a specific State-the State of
nationality-as members of that State, a relationship which confers upon
the State of nationality the above-mentioned rights and duties in relation
to other States. Nationality is normally the link between the individual
and international law. Since in international law as it is constituted at
present, rights of international law are such rights as are-in the absence of
any supra-national legislative authority-recognised by the subjects of
international law or have to be recognised by such subjects, it may be more
accurate to speak of a relationship whose conferment upon States of the
rights and duties mentioned has to be recognised by other States, i.e., is
accepted by international law.
It can be seen from this definition that the international law concept
of nationality has developed from municipal law, from the municipal
conception of nationality. While in the great majority of cases identity of
terminology denotes an identity of substance, this is not necessarily so here.
The meaning of the term nationality in international law-while usually
coinciding with nationality in municipal law-may be both wider and
narrower than its meaning as defined by municipal law. Persons may be
regarded as nationals in the usage of international law who, for some reason
or other, are not deemed to be nationals under the municipal law of the State
concerned as long as that State is under a duty of international law to
grant them a right of sojourn on a territory under its sovereignty and to
The International Functions of Nationality
60
admit them to such territory, and as long _as its right of protection is
· d by international custom. A specific example are the Cavu
recogmse .. b- . h ld · . ;r ga
. · Canada who were not Bntish su ~ects. 1twas e man arbnratio
1ndzans m . S . 1926 167 "Th n
between Great Britain and the Umted t~tes m : ese Indians are
British nationals. They have been settled m c.a~ada, under the protection of
Great Britain and subsequently, of the Dommwn of Canada, since the end
of the eightee~th or early years of the. nin.ete~nth century. Nationality is the
status of a person in relation t~ the tie ~mdmg. s.uch person to a particular
sovereign nation (Parker, Umpi~e, Admm. DeclSlon 5 ofOctober 31, 1924).
Such tribes are in a state of pupilage... They were and are dependent upon
Great Britain or, later on, upon Canada, as the New York Cayugas were
dependent on and wards ofNew Yo~k. ~f, ther~fore, th~ Canadian Cayugas
have aJ·ust claim, according to the prmc1ples ofmternatwnallaw and equity
• • • "168 '
Great Britain is entitled to mamtam It.
On the other hand, persons may be considered not to be nationals of a
certain State according to international law, although for certain reasons
they may be deemed to be nationals under the municipal law of that State.
This was the case with the German Jews during the latter part of the
German National-Socialist regime, who were under German law regarded
as German nationals, as distinct from citizens, 169 but from whom Germany
withheld protection and to whom she did not grant an effective right of
sojourn. This situation was recognised by other States, which refrained from
resorting to refoulement of these persons and which entered into international
commitments to this effect by the conclusion of multilateral treaties in which
these persons were, quoad definitionem, described as not, in fact, enjoying
German protection.
The present writer cannot, therefore, agree with Koessler's statement that
"'nationality', as a conception of international law, does not mean any
specific rights and/or duties, nor an aggregate of either or both, but is a
purely formal proposition" .170 Nor does he agree with the so-called
"Cardenas doctrine", formulated by a Commission of Mexican Lawyers in
1938 and enunciated by Sr. Cardenas, then President of Mexico, that
"nationality, as a personal status, lacks extra-territoriality, and its effects are,
therefore, suspended in every instance when a moral and physical person
moves to foreign soil". 171 Mexico was at that time involved in a dispute over
th~ ~onfiscation of the property of foreigners by Mexico, and, as stated. by
~hdip Marshal Brown,172 this "doctrine" was a political declaration wh1ch,
~f accep~ed, would result in a general attack on the rights of foreigners and
mternatwnallaw as such.

167. U.N. Reports vol. VI p. 173, Annual Digest 1925-1926 Cases No. 147, 149, 173, 181.
168. U.N. Reports, at p. 177; cJ. also the Six Nations Indians of Ontario (Logan v. Styres et al.),
1959 (20 Dominion L.R. (2d) 1959, p. 416, 27 Int. Law Reports p. 239.)
169. Cf supra, p. 6.
170. Yale Law Journal, 1946-47, p. 58, at pp. 75-6.
171. 34 A.J. (1940), p. 300.
172. In 34 A.J. (194{)), pp. 301-2.
Summary 61

The term nationality, as developed from and based on municipal law-


as is the case with many terms originating from and based on municipal
law-has assumed a specific meaning in international law owing to the
fund amentally different structure of that legal system from the system of
municipal law . 173 It has been integrated into international law.

173. Cf Burckhardt, Die Organisation der Rechtsgemtinschaft ( 1927), pp. 361-5, and Lessing,
Staatsangehoerigkeit, pp. 97-100, who describes nationality as "a category of international law"
("tine voelkmechtliclu Kategorie", p. 98); also Brownlie in 39 B.Y., p. 353: " to settle issues on the
plane of international law, principles have to be applied apart from roles of nationality
laws." Cf also judge Read in his Dissenting Opinion in the .Nottehohm Case (I.C.J. Reports 1955,
P· 4, at p. 47).
Part Two

MUNICIPAL LAW AND


INTERNATIONAL LAW
Chapter 4

"Exclusive Domestic Jurisdiction"

Nationality is one of the subjects which are considered as falling within


the domestic jurisdiction, within the internal legislative competence, of
the individual State. That rule is recognised by both customary and
conventional international law.
Article 1 of the Convention on Certain Questions relating to the Conflict
of Nationality Laws1 provides.
It is for each State to determine under its own laws who are its nationals. This law shall be
recognised by other States in so far as it is consistent with international conventions,
international custom, and the principles oflaw generally recognised with regard to nationality.
Article 2 adds:
Any question as to whether a person possesses the nationality of a particular State shall be
determined in accordance with the law of that State.
The second sentence of Article 1 refers to what is indeed the crucial problem,
the problem which is the subject of this book, namely, the question whether
there exist rules of international law which impose limitations on the
sovereign right of States to determine the incidents of acquisition and loss of
their nationality.
There cannot be any doubt that this right is a concomitant of State
sovereignty. Sovereignty, in its modern conception, is described as the
supreme and independent authority of States over all persons and things in
their territory; independence and territorial and personal supremacy are
considered as the elements of sovereignty. 2 Personal supremacy is the power
exercised by a State over its nationals wherever they may be. The right to
delimit this group of individuals termed nationals, and to determine their
status in the sense of their rights and duties, is, indeed-unless personal
supremacy were to become co-extensive with territorial supremacy-a
prerequisite of personal supremacy and, therefore, of sovereignty. The right
of a State to determine who are, and who are not, its nationals is an essential
element of its sovereignty. This is recognised by theory and practice.
In Oppenheim's International Law it is stated3 :

I. L.N.T.S., vol. 179, p. 89.


2. See Oppenheim, vol. I, p. 186.
3. Vol. I, at p. 643.
"E.\:dusim• Domestic Jurisdiction"

lt Is '"'' R'l' hllt'l'tmtlntt.tl 1.:1\\ hut 1\1r ~lunidpnl ' "'"'Ill ~ktrnninc who is. and who is not, to be
\'\ltlsldr t>t'\1 .1 sut~k,·t .
1.. \utc..Tp.\dlt-' d,\b\w.Hc..·s this point as tollow!\:
~l.\t h't'$ ,,f tmti~~nnlln· ''"''. ~ul~it'\'t t\l tlw illh'l'l\ati,lltal obliga tions of the State, left to its
munldr,all.l" . A Scntt· m.w m1t \'"'" hw t\,1\\'11 rult·s t'Oitrt:ming the acquisition of nationality.
h m.w ·''~'' ,kprh"· its ::nl~j{'\'ts ~~r thrir.natil'll.tlity i11 a \',ll'it·ty of ways.
\\' ds.'\~ says:
\ .'l-:t.lt esl m.litt'{' dll'~ lui. il a k ,h·oit in~ltlll'stabk ck tlxn. par une loi. les reglcs qu'il entend
.tppliqut.::r ,\ l'.h'qnisiti''" r t .'t 1.1 pntt" dr I 1 nationnlitc.
This t'\\1\et'ption of nationality as n matter falling primarily into the
d\mwstil' k~islntin' spht'rt' of the State is just as consistent with the existence
~,f ruks of intt'rnational law in the fidd of nationality as the conception of
Sll\'t't't'ignty is CN\sisH'nt with international law itself. Nationality cannot be
n mnttc.·r n\llin.g within the {'Otnpetence of municipal law tO the exclusion of
imt'nmti~mal law.
Tht" ronet'ption of mnttt't'S of a n exclush·ely domestic character acquired
n new signiHcnnr~ with the adoption of this terminology by the Covenant of
the Le:'agn~ of Nntions. in which it was incorporated at the instance of the
.-\merican delegation to the Peace Conference of 1919. Article 15 (8) of the
C.on·rmnt rend:
lfthr di!>putC' ~twttn the.- p..•utie\ is dnimed by one of them. and is found by the Council to arise
l"IUt of a m:mc:-r whi\·h by intt"mntional law is soldy within the domestic jurisdiction of that
p.my. tht" C'.ouncil !\hall so report and shall make no recommendation as to its settlement. The
Council m~ty in any cru."t' under this artide rt'fer the dispute to the Assembly.
The di$pUtC' shall ~ SQ rclcrn-d at the n:-quest of either party to the dispute, prm>ided that
sud\ rt:qu('St ~ made.- within 14 da~~ after submi~on to the C.ouncil.

The matters primarily thought of in this connection were tariffs and


inunigr.uion. The wording of the Article has led to the assumption that there
is a domain~ rism·i-a resern:·d sphere which by international law, is left to
the exdu~iYe jurisdiction of the State. The term which is now in general use,
would se-em to ascribe to international law a role '"ihich it does not at present
possess. namely. that of a law of superior order which allocates to States the
field of their acti,·ity.
There is a strong indination among writers on this subject to identify
"matters of domestic jurisdiction" with " matters of domestic concern" . Such
an equation is undoubtedly unwarranted. ~latters of domestic jurisdiction,
such as customs and tariffi migration and nationality are at the same time,
frequently maners of great interest to other States-they are matters
of international concern. It betrays an underi~;ng political tendency to
include in the term all matters in respect of which~ owing to their character,
States are partit'ularly apprehensh·e of e..~ternal influence and particularly
reluctant to renounce their exdush·e jurisdiction. In this sense the phrase

4-. r;, Farlit• eJ L.:.r U. 1M h~mtt.tli.wJ! C• a iry. p. S(X}.


5. T rwitl J# DMt I~ Pri....;.. p. 11.
"Exclusive Domestic Jurisdiction" 67

used in the Covenant of the League of Nations has, in fact, merely replaced
the conception of " honour and vital interests" which prevents States from
tolera ting interference with certain affairs. 6 Article 15 (8) of the Covenant
constituted, however, a highly important step forward in so far as it made the
determination of matters of domestic jurisdiction subject to the criterion of
international law, whereas previously each State used to consider itself the
sole arbiter as to what matters were to be regarded as affecting its honour
and vital interests.
That nationality should be conceived of as one of the matters which States
are desirous of reserving to their own jurisdiction is only too obvious, for it
concerns one of the elements of statehood, namely, the definition and
circuri1scription of the population of the State regarded as the aggregate of
its subjects. In the words of :M.J. G. Guerrero, speaking as Rapporteur of
the First Committee at the Hague Conference for the Codification of
Interna tional Law with reference to a statement made by the Chairman of
that Committee (:M. Politis), at the opening of the proceedings:
[It is] essentially a political problem which affects the life of the State throughout the course of
its development. The very formation of the State requires a population which will ensure its
preservation and continuity. The necessity gives rise to a clash between the conceptions on
which the municipal law of the various countries is based. 7
The progress represented by the formula adopted in Article 15 (8) of the
Covenant of the League of Nations seems to have been lost by the omission of
the reference to international law in the corresponding provision of the
Charter of the United Nations. Article 2 (7) of the Charter reads:
Nothing contained in the present Charter shall authorise the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any State or shall require the
members to submit such matters to settlement under the present Charter; but this principle shall
not prejudice the application of enforcement measures under Chapter Vll. 8
A certain development may, on the other hand, be seen in the replacement
of the word "solely'..' (within the domestic jurisdiction of a State) by
"essentially", in so far ::J.S this may be understood to signify the recognition
that today there are no fuatters which are "solely" within domestic
jurisdiction, as was the opinion of the American delegate. 9
The change of terminology has, on the other hand, been criticised on
the ground that a matter may be "solely" within the domestic jurisdiction
of a State because rules of customary ~~ conventional international law on
the matter are lacking, but that it cam~ot be "essentially" within that
jurisdiction. The latter term may be interpreted as excluding intervention

6. Cf Goodhart in Grotius Transactions, 1945, p. 68.


7. L.N. Document C.229.M.ll6, 1930, V. p. 2. Cf also Lapradelle in the Tunis and Morocco
Case, P.C.I.J., Series C, No.2, pp. 83-4.
8. Cf the remarks of the delegate of Uruguay in Committee I of Commission I of the San
Francisco Conference, 1945: Conf. Document 1167/1/10.
9. Cf Robinson, Human Rights and Fundamental Freedoms, p. 44, quoting The New York Times
newspaper of June 16, 1945.
68 "Exclusive Domestic Jurisdiction"

by the United Nations even m a matter which is in fact regulated by


international law.l0
1t would appear that the failure to declare international law to be the
determining criterion of whether a matter falls essentially within the
domestic jurisdiction of a State has revived a controversy which seemed to
have been settled in connection with the Aaland Islands question, namely,
whether a matter ceased to be essentially within the domestic jurisdictions of
a State by the mere fact that it was raised before an international forum by
another State. It was then held by a Commission of Jurists, consisting of
Professors F. Larnaude, A. Struycken and M. Huber, that:
. . . the legal nature of a question cannot be dependent on such a fact. A question is either of an
international nature or belongs to the domestic jurisdiction of a State, according to its intrinsic
and special characteristics. 11
This opinion was referred to by the Permanent Court of International
Justice, and in the French Counter-memorandum addressed to the Court,
in the Tunis and Morocco .Nationality Decrees Case. The argument which was
repudiated in the Aaland Islands Case was put forward again by the delegate
of the Soviet Union in the General Assembly of the United Nations in
December, 1946, in the debate on the dispute between India and South
Africa concerning the treatment of Indians in South Africa.
The description of a matter as being "essentially within the domestic
jurisdiction" has principally a negative meaning, viz., that it is not a matter
primarily regulated by internationallaw. 12 It does not exclude the existence
of rules of international law on the matter.
It must not be overlooked that both in the Covenant of the League of
Nations and in the Charter of the United Nations the reference to domestic
jurisdiction has been made for the purpose of determining the competence of
an international organ. The fact that international law was mentioned in
Article 15 (8) of the Covenant as the criterion for the domestic character of a
dispute may have led the Council of the League of Nations to the practice of
consulting a judicial organ on the question of the nature of a particular
dispute. The decision as to its nature was, however, that of the Council. The
practice of the United Nations has so far been that the issue of whether a
matter is essentially within the domestic jurisdiction of a State has in each
particular case been decided by the organ seised of the case, without such
consultation. The decision of a political organ is naturally influenced by
political considerations.
On the meaning of the term "intervene" different views were expressed by
representatives of member States in various organs of the United Nations.
Some representatives held that "intervene" was a technical term tradition-

10. Cf Kelsen, The Law qf the United Nations, pp. 778-9; id., Principles qf International Law,
pp. 198- 200.
11. L.N. Journal, 1920, Special Supplement No. 3, p. 4.
12. Cf, with reference to Article 15 (8) of the Covenant, Brierly in 6 B.Y. (1925), p. 9.
{C Exclusive Domestic Jurisdiction" 69

ally defined in international law as "dictatorial interference.'' 13 It was


maintained that a recommendation (by the General Assembly) did not
constitute intervention.14 Certain representatives drew a distinction between
recommendations addressed to a particular Member of the United Nations
and those addressed to all Members. The former constituted intervention. 15
It was pointed out that the Security Council alone was empowered by
the Charter to "interfere dictatorially". The other United Nations organs
could only recommend. The drafters of the Charter had used the word
"intervene" in its ordinary dictionary meaning of "interfere"; recommen-
dations and other non-coercive action by the Organisations could constitute
interference. 16
For the expression "Matters essentially within the domestic jurisdiction of
any State", some representatives advanced a general definition. They held
that a matter was essentially within the domestic jurisdiction of a State
only if it was not regulated by international law or if it was not capable
of regulation by international lawY It was stated that the duties of a
State under customary international law did not fall within its domestic
jurisdiction. 18
The General Assembly of the United Nations dealt with a number of
human rights questions even in the absence of treaty obligations of the
member State concerned, e.g., with the question of the right ofSoviet wives
of foreigners to depart from the Soviet Union, 19 the question of racial
discrimination in the Union of South Africa. 20 On the other hand, the
Security Council refused to deal with the Greek question (allegation of
terrorism and mass executions). 21 It was stated that the Charter imposed
obligations on member States in the field of human rights but this view
was disputed.22 It was contended that the word "essentially" represented
a broader idea under which the parties enjoyed greater latitude in
determining what matters were within the domestic jurisdiction. 23 It was
stated that Article 2 (7) could not be invoked to prevent the international
community from fulfilling its obligations and could not be used as an excuse
for shirking international responsibilities.2 4
Certain questions of nationality law or questions related to it were dealt

13. Repertory of Practice of United Nations Organs vol. I, para. 342 (U.N. doc. 1955, 2.V
1-2); the same view has been taken by Lauterpacht.
14. Ibid. para. 359.
15. Ibid. para. 360.
16. Ibid. para. 343.
17. Repertory Supplement I, para. 133, (doc. 1957. V.4 1-2.)
18. Ibid. para. 139.
19. Repertory paras. 101-7.
20. Repertory paras, 41- 75, Suppl. I, paras. 42-52, Suppl. II, paras. 7-15, 16-23, (doc. 1964,
V.5), Suppl. III, vol. I, paras. 1{}-17, 2{}-33, 6{}-77, (doc. 1972, V.2.)
21. Repertory para. 319.
22. Repertory paras. 412-21.
23. Suppl. III, para. 31 7.
24. Ibid. para. 331.
70 " Exclusive Domestic Jurisdiction"

with by organs of the United Nations over objecti? ns that ~hey fell within the
domestic jurisdiction of States: the draft Convention relatmg to the Status of
R efugees,2s the draft Protocol relating t~ .the Status of St.ateless Persons,2s
statelessness,27 simplification of formalities and reduction of costs for
migrants.28
Even as to matters considered as falling within this reserved domain, one
qualification appears to be obvious: the domestic. jurisdiction of a State is
limited by its treaty obligations. Most States have, m fact, concluded treaties
and thereby undertaken international obligations in matters deemed to be
within their domestic jurisdiction, such as tariff treaties, immigration
conventions, etc. By such action the specific subject-matter regulated in the
treaty has been removed from the domestic sphere into the field of
international law, without altering, in principle, the essentially domestic
nature which international law ascribes to the subject as a whole.
The main question, however, is whether, apart from treaty obligations, a
State is absolutely sovereign in these matters, whether it possesses legislative
omnipotence, or whether this sovereign right is in any way restricted by
international custom, and-if, in accordance with the wording of Article 1
of the Convention on Certain Questions relating to the Conflict of
Nationality Laws, this is regarded as a special source-by the generally
recognised principles of law with regard to the subject. In other words, the
question is whether international law imposes limitations on the juris-
dictional freedom of States in a particular field . This question has to be
examined with regard to each subject.
It is a fortunate circumstance that a dispute over a point of nationality
law, viz., the dispute between Great Britain and France over the question
whether the Nationality Decrees enacted by France in Tunis and Morocco
(French Zone) on November 8, 1921, were, by interna tional law, solely
a matter within the domestic jurisdiction of France, came before the
Permanent Court of International Justice and tha t Court was given an
opportunity to state its authoritative views on the na ture of nationality law. 29
The next .. chapter is devoted to an examination of the Court's decision .

25. General Assembly R esolution 429 (V) .


26. Economic and Social Council Resolution 733 (VIII ).
27. General Assembly Resolution 896 (IX), Economic and Social Council Resolutions:
11 6 (V I ), 248 B (IX), 526 A (XVII ).
28. Economic and Social Council Resolution 526 (XVII ); Repertor y Annex, pp. 157- 9,
Suppl. I, p. 70.
29. P.C.I.J ., Series B, No. 4.
Chapter 5

Decisions of International Tribunals

A. Nationality Decrees in Tunis and Morocco

The dispute between Great Britain and France arose over a provision in
identical French Decrees enacted in Tunis and the French Zone ofMorocco
on November 8, 1921, to the effect that:
Every person born in the Regency of Tunis (the French Zone of the Sherifian Empire) of
parents of whom one, justiciable as a foreigner in the French courts of the Protectorate, was
himself born in the Regency (the French Zone) is a Frenchman provided that his filiation has
been established before the age of21 years in conformity with the provisions of the national law
of his father or mother or French law.
This provision was challenged by the British Government, which
contended that it imposed French nationality on certain British subjects,
namely, the children of British subjects born there, as both Tunis and
Morocco were, in the opinion of His Majesty's Government, territories
where His Majesty exercised jurisdiction, 1 and that this action was in
violation of international law and comity. The dispute was brought before
the Council of the League ofNations, which requested the Permanent Court
of International Justice to give an Advisory Opinion on the question
whether the dispute between France and Great Britain as to the Nationality
Decrees issued in Tunis and Morocco (French Zone) on November 8, 1921,
and their application to British nationals was, or was not, by international
law, solely a matter of domestic jurisdiction within the meaning of Article I 5
(8) of the Covenant of the League of Nations.
In its Advisory Opinion delivered on February 7, 1923, the Court held
that the dispute was not, by international law, solely a matter of domestic
jurisdiction and, therefore, replied to the question submitted to it in the
negative. The decision was based on the following reasons:
1. (a) The extent of the powers of a Protecting State in the territory of a
Protected State depends on the Treaties between the Protecting State and
the Protected State establishing the Protectorate and on the conditions
under which the Protectorate has been recognised by third Powers as against
whom there is an intention to rely on the provisions of these Treaties. The
question whether the Protecting State possesses exclusive jurisdiction in the
Protected State depends, therefore, on the examination of the whole

I. British Nationality and Status of Aliens Act, 1914, s. I (1).


72 Decisions of International Tribunals

situation of the specific Protectorate concerned from the standpoint of


international law.
(b) With regard to the French conte?tion ~hat the powers exer.cised by the
Protecting State, taken in conjuncti~n with t~e local soveretgnty of the
Protected State, constitute full sovereignty eqmvalent to that upon which
international relations are based, and that these powers may be divided
between the two States by virtue of an agreement, the Court observed that in
any event it would be necessary to have recourse to in.ter~ational law in
order to decide what the value of an agreement of thts kmd may be as
regards third States. 2
2. (a) France contended that the Treaties concluded between Great Britain,
on the one hand, and Tunis and Morocco, on the other, before the
establishment of these territories as French Protectorates, and which granted
extraterritorial rights to British subjects in these territories, had lapsed by
virtue of the clausula rebus sic stantibus.
(b) As far as Tunis was c~:mcerned, a further d~fference of views existed
between Great Britain and France with regard to the scope of Declarations
made by Great Britain in 1883 concerning the renunciation of her rights of
jurisdiction in Tunis and the construction to be placed on an Agreement of
1897 between the two countries.
(c) With regard to Morocco, there was a dispute as to the interpretation of
the Franco-German Convention of November 4, 1911, and Great Britain's
adhesion to that Convention. The Permanent Court of International justice
held3 that as these were differences about the validity and interpretation of
international engagements, the dispute fell outside the sphere of domestic
jurisdiction.
(3) The reliance by Great Britain on a provision in the Franco-Italian
Consular Convention of September 28, 1896 (by which British subjects
should benefit by virtue of a most-favoured-nation clause contained in the
J\nglo-French Arrangement of September 18, 1897, and the Exchange of
Notes of March 8 and May 23, 1919) and the denial by France of the
applicability of that provision, raised a question of internationallaw. 4
4. The two Governments differed as to the construction of Article 1, para. 2
of the Arrangement of September 18, 1897, which, according to the French
contention, was to be interpreted as recognition by Great Britain of the
competence ofFrance to legislate with regard to the nationality of persons in
Tunis under the same conditions as in France. s
The Court held that, even assuming the French contention to be correct,
since the question of the legislative competence of France would still depend,
a'i regards Great Britain, on the interpretation to be placed on the most-

2. P.C.I.J., Series B, No. 4, pp. 27, 28; see supra, pp. 23-4.
3. Ibid., at pp. 28-30.
4. At pp. 30-l.
5. ~his question ~f extraterritorial rights of foreign nationals in Morocco has 1at~1y
occupted the I nternattona1 Court ofJustice in the case concerning Rights ofN ationa/s ofthe Umud
States of America in Morocco: l.C.]. Reports, 1952, p. 176.
Nationality Decrees in Tunis and Morocco 73

favoured-nation clause, this question was not, according to international


law, solely a matter of domestic jurisdiction. 6
This brief survey of the case is believed to show that in holding that the
question of the Tunis and Morocco Nationality Decrees was not solely a
matter of domestic jurisdiction, the Court based itself exclusively on the facts
of the particular case _(which involved the question of sovereignty in a
Protectorate, and in which the parties invoked international agreements)
and that it cannot be taken as a decision on the nature of nationality law
as such. However, in its reasoning the Permanent Court made some
observations on the question of exclusive State jurisdiction in matters of
nationality law in general which are of the greatest significance. 7
In ·the first plac.e, it re-affirmed the principle adopted by the Council of
the League of Nations in the Aalands Islands Case, that the mere fact that a
State brings a dispute before the League ofNations does not have the effect
of giving the dispute an international character calculated to except it from
the application of Article 15 (8) of the Covenant. 8 The Court went further,
by maintaining that the mere fact that one of the parties to a dispute appeals
to engagements of an international character in order to contest the
exclusive jurisdiction of the other, was not enough to render paragraph 8
inapplicable. It was, however, of the opinion that if the validity and
construction of international instruments (titres) appears, prima facie, to be
of judical relevance for the decision of the dispute, the matter ceases to be
one solely within the domestic jurisidiction of the State and enters the
domain governed by international law.
The Court described as matters "solely within the domestic jurisdiction"
of a State "matters which, though they may very closely concern the interests
of more than one State, are not, in principle, regulated by international law.
As regards such matters each State is sole judge". It continued:
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 upon the development of international
relations. Thus, in the present state of international law, "questions of nationaliry are, in the opinion
of the Court, in principle within this reserved domain". (Italics added. )
For the purpose of the present decision it is enough to observe that it may well happen that in
a matter which, like that of nationality, is not, in principle, regulated by international law, the
right of a State to use its discretion is nevertheless restricted by obligations which it may have
undertaken towards other States. In such a case,jurisdictiQn which, in principle, belongs solely
to the State, is limited by rules of international law. To hold that a State has not exclusive
jurisdiction does not in any way prejudice the final decision as to whether the State has a right
to adopt such measures. 11

6. P.C.I.J., Series B, No.4, at pp. 31- 32.


7. In quoting these observations today, it must be borne in mind that they constitute an
interpretation of Article 15 (8) of the Covenant and that they must not, without further
examination, be taken as necessarily valid in relation to Article 2 (7) of the Charter of the
United Nations.
8. P.C.I.J., Series B, No. 4, at p. 25; see supra, p. 68.
9. At pp. 23, 24.
74 Decisions of International Tribunals

In the course of the oral and written pleadings of both parties, interesting
observations on questions of nationality law were made. The British and
French Governments were agreed that tariffs and immigration were matters
solely within the domestic jurisdiction, but there was a difference of opinion
as to the character of naturalisation and nationality. 10
The British Government maintained that the power of a State to confer or
impose its nationality is inseparably linked to, and exclusively derived from
its sovereignty.n Only by virtue of its territorial sovereignty can a State be i~
a position to affect by such legislation the relation between a foreign State
and its subjects. The British Government submitted that the domestic
jurisdiction of a State is limited to matters within the ambit of its territorial
sovereignty. 12
Against the British contention that the imposition of nationality by a State
upon the subjects of another State without giving them an opportunity of
opting against such nationality was not in accordance with international
comity,1a the French Counter-memorandum argued that the right of option
was not a principle of international law, and that the decisive question was,
which nationality was the effective nationality. 14
The French Government contended that, according to international
practice, in conflicts between nationality based on jus sanguinis and
nationality based on jus soli, the latter should prevail: in pari causa melior est
causa possidentis. 15 This was conceded by the British Government. 16
Both Governments had agreed in advance that, in the event of the Court
deciding that the question was not solely one of domestic jurisdiction the
dispute should be referred to arbitration or to judicial settlement under
conditions to be agreed between the two Governments.
After the opinion of the Permanent Court of International Justice had
been delivered the dispute was, in fact, settled by direct negotiations.
By an Exchange of Notes17 the French Government undertook to make
arrangements before January 1, 1924, whereby a British national who was
the child born in Tunis of a British national who was himself born in Tunis
should be entitled to decline French nationality; such right would not,
however, extend to succeeding generations. It was stated on behalf of France
that it was not claimed that children born in Tunis of a British national born
elsewhere possessed French nationality, and that French nationality would
not be imposed on any British national born in Tunis before November 8,
1921, without an opportunity being afforded to him to decline it. (While

10. P.C.I.j., Series C, No. 2, p. 24. Suppl., pp. 19, 64, 467.
II. British Case, ibid., Suppl., p. 60.
12. See infra, p. 101.
13. British Case, Series C, No. 2, Suppl., p. 63.
14. P.C.I.J., Series C, No. 2, Suppl., p. 219.
15. French Case, ibid., p. 23; Counter-case, ibid., p. 249. ..
16. Speech by the Attorney-general, Sir Douglas Hogg; Series C, No. 2, p. 44. and Bnush
Counter-case, ibid., Suppl., p. 469.
17. U.K.T.S., No. II (1923) [Cmd. 1899].
Other Decisions of International Tribunals 75

both parties reserved their respective points of view and rights, it was
understood that the question was of no practical importance in Morocco. )
The agreement reached in 1923 was superseded by an Exchange ofNotes
of February 20, 1947, 18 by which time-limits were set for the filing of
applications for release from French nationality and for the granting of such
applications.
The manner in which the dispute was settled shows that the violation of
international law claimed by Great Britain to have been committed by
France by the unilateral imposition of her nationality on British nationals
was considered to be remedied by the granting of a right of option
(repudiation) to the affected individuals. This is of significance for the
question of the limitations imposed by international law on the right of
States to confer their nationality on individuals.l9

B. Other Decisions of International Tribunals

In the Acquisition of Polish Nationality case, 20 the Permanent Court of


International Justice had to decide whether the Council of the League of
Nations was competent to deal with a question arising out of Article 4 of the
Treaty between the Principal Allied and Associated Powers and Poland of
June 28, 191921 (the Polish Minorities Treaty), an Article dealing with
acquisition of nationality, and if so, what was the precise interpretation of
that Article. In its reasoning the Court referred to the jurisdictional freedom
of States to decide who are their nationals in these words:
Though generally speaking it is true that a sovereign State has the right to decide what
persons shall be regarded as its nationals, it is no less true that this principle is applicable only
subject to the Treaty obligations referred to above. 22
In the arbitration between Germany and Poland of july 10, 1924,23 on the
issue whether the question of the acquisition of Polish nationality was one to
be determined exclusively by the Polish authorities or was one of an
international character, the Arbitrator, M. Kaeckenbeeck, held that:
... although in matters of nationality the jurisdiction of each State is, in principle, exclusive,
when the acquisition of nationality is regulated by international treaties the autonomy of the
State is limited by the contractual engagements it has undertaken. It follows from the fact that
Polish nationality is regulated in Article 91 of the' Treaty of Versailles which forms part of a
group of provisions relating to the cession of territories by Germany to Poland, that this question
is not purely unilateral in character, but concerns both contracting States. The recognition of
Polish nationality as regards certain German nationals is, for Poland, an international
obligation. Likewise, the recognition of the loss of German nationality, as the result of the
acquisition of Polish nationality, is for Germany an international obligation. So long as there is
no infraction, the international character remains, as it were, latent.

18. U.K.T.S., No. 30 (1947) [Cmd. 7117).


19. See infra, pp. 103 et seqs.
20. P.C. I.J., Series B, No. 7.
21. U.K.T.S., No. 8 (1919).
22. P.C.I.j., Series B, No. 7, at p. 16.
23. Interpretation of the Minorities Treaty: Annual Digest, 1923-24, Case No. 117.
Decisions of International Tribunals
76
· Advisory Opinion on The Exchange of Greek and Turkish Populations
I n Its . d h " h · '
the Permanent Court oflnternationalJusttce state t at t e national status
of a person belonging to a Sta~e .can only be based o~ the law of that State".24
The Mixed Claims Commission between the Umted States and Germany
recognised in Administrative Decision No. V that:
. .t is the status of a person in relation to the tie binding such person to a particular
... nauona11 y . . ll f h · H h
sovereign nation. That status is fixed b~ the mumCip~ aw o .t at natiOn. ence t ~existence or
non-existence of American nationality at a particular tlme must be determmed by the
municipal law of that nation.26
In Wildermann v. Stinnes, 26 a case which is particularly relevant to the
question of nationality in connec.tion with territorial chang.es,~7 the German-
Roumanian Mixed Arbitral Tnbunal re-affirmed the pnnc1ple by stating
that "except in a case of a conflict on this poin~ from State to State, the
nationality of a person depends on the sovereignty of the State which
recognises him as its national" . The Tribunal denied that international law
had any effect in rem.
Such conflicting nationality laws of two States were at issue before the
Anglo-German Mixed Arbitral Tribunal in Hein v. Hildesheimer Bank.2s The
Tribunal declared that the claimant, who had become a British subject by
naturalisation before the outbreak of war, was entitled as a British national
to recover money under Article 296 of the Treaty of Versailles despite the
fact that, under German law, he had retained his German nationality.
An interesting argument arose between the United States and the United
States-Spanish Claims Commission, set up under the Agreement between
the United States and Spain of February 12, 1871,29 as to the powers of the
Commission to examine the nationality of claimants. 30 In the Case of Buzzi
the then Secretary of State, Mr Blaine, protested against the decision of the
Umpire that the claimant had no right to appear as an American citizen
since it was shown that during the five years immediately preceding his
naturalisation he had lived for about four and a half years in Cuba. Since a
court of competent jurisdiction had issued a regular certificate of
naturalisation to Buzzi, the Secretary of State declared that he refused to
recognise the power of the Commission to denationalise an American
citizen. 3I The controversy was ultimately settled by agreement between the
Arbitrators.32

24. P.C.I.J ., Series B, No. 10, at p. 19.


25. Admin. Decisions and Opinions, vol. I, pp. 189, 193; Hackworth, vol. III, p. 5; Annual Digest,
1923-24, Case No. 100.
26. 4 Recueil T.A.M. (1925), p. 842 6 ibid. (1927) p 485· Annual Digest 1923-24 Case
No. 120. ' ' . ' ' ,
27. See infra, pp. l48n. and 153.
28. 2RecueilT..A.M. (1923),p. 71;AnnualDigest, 1919-22, CaseNo. 148;seealsoinfra,p. l75.
29. U.S. Treatus, p. 1661.
30. See Moore, Digest, vol. III, pp. 506-9; id., Arb., pp. 2590-2621.
31. See Moore, Digest, vol. III, p. 508.
32. See infra, pp. 218-9.
Other Decisions of International Tribunals 77

In the Georges Pinson case, the Franco-l\1exican Claims Commission33 in


1928 rejected the contention of the l\1exican Agent that it had no right to
examine the provisions of the Mexican Constitution relating to nationality
from the point of view of their compatibility with customary international
law. The Presiding Commissioner, Professor J. H. W. Verzijl, stated:
"Car s'il est vrai que, en regie generale, tout Etat est souverain pour d eterminer quelles
personnes il considerera comme ses ressortissanL~, il n'en est pas moins vrai, que ainsi que l'a
constate Ia Cour permanente de Justice internationale dans son avis consultatif concernant les
decrets de nationalite, promulgues au Maroc et en Tunisie, que cette souverainete peut etre
limitee par des regles du droit des gens, regles qui peuvent s'enraciner non seulement d ans
des traites formels, mais encore da ns une communis opinio juris sanctionnee par le droit
coutumier .... tout tribunal international, de par sa nature, est oblige et autorise a les [les lois
nationales] examiner a Ia lumiere du droit d es gens, these, d'ailleurs, qui a ete maintes fois
soutenue et appliquee par differentes jurisdictions internationales." 34
In the Nottebohm Case between Liechtenstein and Guatemala35 which will
be dealt with in greater detailla ter36 the International Court ofJustice had
this to say on the question of domestic jurisdiction:
" It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the
rules relating to the acquisition of its nationality, and to confer that nationality by
naturalization granted by its own organs in accordance with that legislation. It is not necessary
to determine whether international law imposes any limitations on its freedom ofd ecision in this
domain. Furthermore, nationality has its most immediate, its most far-reaching and, for most
people, its only effects within the legal system of the State conferring it. Nationality serves above
all to determine that the person upon whom it is conferred enjoys the rights and is bound by the
obligations which the law of the State in question grants to or imposes on its nationals. This is
implied in the wider concept that nationality is within the domestic jurisdiction of the
State... " 37
" T o exercise protection, to apply to the Court, is to place oneself on the pla ne of international
law. It is international law which determines whether a State is entitled to exercise protection
and to seise the Court.
The naturalization ofNottebohm was an act performed by Liechtenstein in the exercise of its
domestic jurisdiction. The question to be decided is whether that act has the international effect
here under consideration." 38
and:
"The character thus recognized on the international level as pertaining to nationality is in
no way inconsistent with the fact that international law leaves it to each State to lay down the
rules governing the grant of its own nationality. The reason for this is that the diversity of
demographic conditions has thus far made it impossible for any general agreement to be
reached on the rules relating to nationality, although the latter by its very na ture affects
international relations. It has been considered that the best way of making such rules accord
with the varying demographic conditions in different countries is to leave the fixing of such rules
to the competence of each State. On the other hand, a State cannot claim that the rules it has
thus laid down are entitled to recognition by another State unless it has acted in conformity with

33. Commission Franco-Mexicaine. p. I; U.N. Reports, vol. V, p. 327; Annual Digest, 1927-28,
Cases No.4, 194, 195, 324; see also infra, pp. 106, liOn, and 174.
34. U.N. Reports, vol. V, at p. 393.
35. I.C.J. Reports 1955, p. 4.
36. See infra pp. 176-81.
37. At. p. 20.
38. At pp. 20-21.
78 Decisions of International Tr•b l
• una s
this general aim of making the legal bond of nationality accord with the individual's .
. assumes t h e d e.ence
connection with the State whtch r.
o f.1ts Clt1zens
.. b y means of protecti
genume
· ot her states... " av
agamst on as

In the Flegenheimer Claim 40 the Italian-United States Conciliatio


Commission declared that it was an "unquestionable principle ~
international law" that each State had the sovereign right to determine
should be its nationals. 41 0
w:

39. At p . 23.
40. 25 Int. Law Reports p. 91. see irifra p. 184 and pp 210-12
41. At pp. 97, 98. · ·
Chapter 6

Decisions of Municipal Courts

"(he attitude of English courts on the right of States to confer or withdraw


their nationality was stated with the utmost clarity by Lord Russell in Stoeck
v. Public Trustee.1 It was there held that Stoeck, who had been a German
national but had lost his nationality under German law, was not a German
national within the meaning of Article 297 of the Treaty of Versailles and
section 1 of the Treaty of Peace Order, 1919, and that his property was
therefore not subject to charge. The fact that Stoeck had lost his German
nationality and was, according to German law, stateless, had to be
recognised by the English courts. The language used by Lord Russell is
significant:
Whether a person is a national of a country must be determined by the municipal law of that
country. Upon this I think all text writers are agreed. It would be strange were it otherwise.
How could the municipal law of England determine that a person is a national of Germany?
It might determine that for the purpose of English municipal law a person shall be deemed to be
a national ofGermany; but that would not constitute him a national of Germany, if he were not
such according to the municipal law of Germany. In truth there is not and cannot be such an
individual as a German national according to English law . . . . 2
This decision clearly showed that statelessness was recognised in English
law. It constituted a departure from earlier decisions: Ex p. Weber3 and Re
Liebmann4 were distinguished.
In the cases of Weber and Liebmann, who, according to German law, had
lost their German nationality, applications for writs of habeas corpus against
their internment as alien enemies had been refused. It had been held by the
House of Lords6 in Weber's case that he had not " .. . discharged the burden
that is cast upon him of showing that he has so completely divested himself of
German nationality that he can be treated, for the purposes of this
application, as though he no longer remained a German citizen".6
The reasons underlying the wide interpretation of German nationality in
these decisions were the provisions of the German Nationality Law of 1913
(the so-called lex Delbriick), which granted a right of re-admission to German

I. [1921] 2 Ch. 67.


2. At p. 82.
3. [1916) I K.B. 280; [I916] I A.C. 421.
4. [I9I6] I K .B. 268.
5. Per Buckmaster L. C.
6. At p. 425.

)
Decisions t.if Municipal Courts
80
nationality to former German nationals; the~ led ~oreign courts to. ~se special
caution in recognising loss of German natwnahty. These provlSlons were
repealed by an amending law o~ May 15, 1935. In fa:t, t?e ~nglish
7

decisions cited merely refused to give effect to such denatwnahsatiOns for


certain purposes of English law, i.~., in relation to the com~on Ia~ definition
of an enemy alien and the exercise of the royal prerogative of mternment.
They do not derogate from the basic rule that. a p~rso.n's ~ationality is
determined by the law of the country whose natwnahty IS at Issue, as was
correctly stated in Stoeck's case.8 • . ,
The rule in Stoeck's case was followed m Re Chamberlazn s Settlement,s Kramer
v. Att.-Gen.,10 and Hahn v. Public Trustee.U In Re Chamberlain's Settlement
(which concerned the well-known English writer and germanophile, H. S.
Chamberlain, who had become naturalised in Germany in 1916)., it was held
that:
the true view of the construction of the Treaty is that the expression " German nationals"
includes all persons who answer to that description according to German law whether they also
had any other nationality or not .. . . Whatever decision might be reached by the courts of this
country would not alter the fact that according to German law he did become a German
subject. 12
It is interesting that the Anglo-German Mixed Arbitral Tribunal in Hein
v. Hildesheimer Bank and the English High Court in Re Chamberlain (both of
which cases concerned persons of double, i.e., British and German,
nationality) came to opposite conclusions on the question whether the
property of the person was to be considered as the property of "German
nationals" in the sense of the Peace Treaty. It should be noted, however,
that in Hein's case British naturalisation had been effected before the War
and that Hein was resident in Great Britain, while Chamberlain had resided
in Germany.
Following a continuous practice already referred to obiter in Calvin's Case,13
English courts have refused to recognise the effects of acquisition of the
nationality of an enemy State by British subjects, 14 or the loss of British
nationality by a declaration of alienage made in time of war by a person who
also possessed the nationality of an enemy State.1s (The rule was also applied
to the acquisition of the nationality of a neutral State in Vecht v. Taylor, 16 but
here its validity is doubtful.) The principle underlying this practice is that

7. R.G.Bl., 1953, I, p. 593; cj. Feist in M.L.R. (1941-42), pp. 51-3, and Law Times, vol. 186,
p. 143.
8. Cf McNair, op. cit., pp. 29-32, 56- 60.
9. [1921] 2 Ch. 533; see also infra, p. 194.
10. {1923] A.C. 528. See also infra, p. 194.
11. [1925] Ch. 715.
12. At pp. 545, 547.
13. (1608) 7 Coke's Rep. 9a.
14. Cf Macdonald's Case (1749), Foster;s C.C. 59 18 How State Trials 858 and R v. Lynch
[1903] 1 K.B. 444. ' . ' .
15. Cf Ex p. J:reyberger [1917] 2 K.B. 129· see infra p 194
16. (1916) 116 L.T. 446. ' ' . .
Decisions of Municipal Courts 81

naturalisation in an enemy State in war time constitutes treason, and that a


British subject could not divest himself of his allegiance by treasonable
activities. It is not the foreign naturalisation nor foreign municipal law, but
merely the effectiveness of the naturalisation under English common law,
which is denied recognition by English courts.
It was, on the other hand, held in Fasbender v. Attorney General 17 that a
British woman marrying an alien during war was an alien and that her
property was subject to charge.
Considerations of public policy and of security undoubtedly play a role in
decisions concerned with change of nationality in time of war.
The common law principle of English law was laid down by statute in the
United States. Section 2 ofthe Act ofMarch 2, 1907, 18 contains at the end of
the second paragraph the following provision:
That no American citizen shall be allowed to expatriate himselfwhen this country is at war.
The rule is broader than the rule of English common law, as it is not
restricted to naturalisation in an enemy State; but it has been repealed by
the Nationality Act of 1940.
The leading United States case laying down the rule of"the inherent right
of every independent nation to determine for itself and according to its own
Constitution and laws what classes of persons shall be entitled to its
citizenship ... "is the decision of the Supreme Court in United States v. Wong
Kim Ark.l9 It was also stated as a dictum in Inglis v. Sailors' Snug Harbor 20
that:
Each government had a right to decide for itself who should be admitted or deemed citizens. 21
l\1r. Stanbery, United States Attorney-General, stated in 1867:
Questions as to citizenship are determined by municipal law in subordination to the law of
nations. 22
Reference may also be made to a decision of the District Court of
Amsterdam in Re Van A., 23 where it was ruled that:
the naturalisation of the defendant as an Estonian citizen by the competent authorities in
Estonia in conformity with Estonian law was unassailable in the Netherlands courts.

17. (1922) I Ch. 237, Appeal Court (1922) 2 Ch. 85-(5 B.I.L.C. p. 440.)
18. 34 Stat. 1228.
19. (1898) 169 U.S. 649, at p. 668.
20. (1830) U.S. 3 Pet. 99.
21. At p. 162. Cf also l:Jnch v. Clarke, I Sandf. 483, 660; Ludlam v. Ludlam, 89 Am.Dec. 193,
195; Ex p. Gilroy, 253 Fed. 110, 124.
22. 12 Op. 319; Moore, Digest, vol. III, p. 275.
23. Annual Digest, 1935-37, Case No. 126.
Chapll'l' 7

State Practice and t.hc Hague odifica tion Conf ·renee

The n:plics given by the Govcrmncnts to the first q.ucstion pu.t to them by the
Preparatory Committee for the Hag~e C~nfc.rcn~e of, 1930 .for the
Codification of International Law ar c highly mcllca t.IVC of the altitude or
States in particular of Great Britain and the U nitcd Stal~.:s, to the question
of thc'.·clationship between municipal and internationa l la w in the fi eld or
nationality law.
Taking as the point of d epa rture the doctrine that questions ofn ationalily
are in principle ma.ttcrs within the sovereign authority of each State, and
that in principle every State must recognise the right of all other States to
enact such legislation as they consider proper with regard to the acq uisition
and loss of their nationality, the Governments were asked whether there
were limits to the applicability of these two principles, in particular, was
there no limit to the right of the State to legisla te, and was a State bound in
every case to recognise the effects of the laws of other States? 1
The British answer, 2 with which some of the answers of the Dominions and
India were identical and the others conformed in substance, after accepting
the general principle of exclusive jurisdiction, stated:
The mere fact, however, that nationality Hdls in general within the domestic jurisdiction of a
State does not exclude the possibility that the right of the State to use its discretion in legislating
with regard to na tionality may be restricted by duties which it owes to other States (sec Tunis
and Morocco Case, P.C.I..J. publ., Series B, No. 4, p. 24). Legislation which is inconsistent with
such duties is not legislation which there is an obligation upon a State whose rights arc ignored
to recognise. It follows that the right of a State to legislate with regard to the acquisition and loss
of its nationality and the duty of another State to recognise the cfl'ects of such legislation arc not
necessarily coincident.
Even ifthe discretion of the State in the (ormer case may be unlimited, the duty of the State in
thc.latt.er cas~ is.n?t unli.mited. It may properly decline to recognise the effects ofsuch legislation
whtch ts preJudtctal to Its own rights as a State .
. It is ?nly i~ exceptional cases that this divergence between the right of a State to legislate at its
dtscrellon wtth regard to the enjoyment or non-enjoyment of its nationality and the duty of
?t~:r States t~ recognise such legislation would occur. The criterion is that the legislation must
mfn~ge the nghts ~f the Stat~ as apart from its interests. It is not enough that it should be
detnmental to the. mterests of the State or its nationals. So long as the legislation enacted by
States on the subJ~Ct of nationality does not depart from the general principles normally
followed by States m the past, the question is not likely to be of prac tical importance.

I. Bases <if Discussion, p. 118.


2. Ibid., pp. 17, 169.
State Practice and the Hague Codification Conference 83

The United States Government replied: 3


While, as indicated, the Government of the United States has always recognised the fact that
the acquisition or loss of the nationality of a particular State are matters which pertain primarily
to domestic policy and are therefore to be determined by the domestic law of that State, it does
not admit that a State is subject to no limitations in conferring its nationality on individuals. It
has proceeded upon the theory, which is believed to be sound, that there are certain grounds
generally recognised by civilised States upon which a State may properly clothe individuals
with its nationality at or after birth, but that no State is free to extend the application of its laws
of nationality in such a way as to reach out and claim the allegiance of whomsoever it pleases.
The scope of municipal laws governing nationality must be considered as limited by
consideration of the rights and obligations of individuals and of other States.
Most Governments recognised that the right to determine nationality was
not unlimited (Austria, Czechoslovakia, Denmark, France, Germany, the
Netherlands, Norway, Poland and South Africa said so explicitly); some
denied the existence of general principles in this field (Egypt, Estonia,
Hungary, the Netherlands, the Soviet Union), and there was no unanimity
on the nature of these principles among the States admitting their existence
(Belgium (as principles of comity), Bulgaria, Denmark, France, Germany,
the Netherlands, Norway). Most Governments acknowledged the duty to
recognise foreign nationality law provided that it did not infringe
international obligations. 4
On the basis of the answers given by the Governments the Preparatory
Committee did not find it possible to formulate the limitations imposed by
international law fully and precisely. It tried, however, to enumerate in the
Basis of Discussion No. l a number of generally recognised principles upon
which nationality might be acquired and lost. The principles with regard to
acquisition of nationality were the following:
... bestowal of nationality by reason of the parents' nationality or of birth on the national
territory, marriage with a national, naturalisation on application by or on behalf of the person
concerned, and transfer of territory.
With regard to loss of nationality, the following were mentioned:
Voluntary acquisition of a foreign nationality, marriage with a foreigner, de facto attachment
to another country, accompanied by failure to comply with provisions governing the retention
of nationality, transfer of territory. 5
This enumeration was dropped during the discussion in the Committee on
Nationality by a vote of 18 against 17,6 and does not appear in the Final Act
and the Convention adopted by the Conference. In the Report of the
Committee7 it was stated that although nationality "is primarily a matter for
the municipal law of each State, it is nevertheless governed to a large extent
by principles of international law".

3. Bases of Discussion, pp. 16, .145-6.


4. Ibid., pp. 13-20.
5. Ibid., p. 20.
6. Minutes of the First Committee., p. 33.
7. Acts ofthe Conference II Report of the 1st Committee (1930) V.B 2-3.
84 State Practice and the Hague Codification Conference

The Swiss Government, in a message to ~ar~iament of November 9, 1920,


regarding Article 44 of the Federal Constltutwn, 8 stated:
.Th.e comp~tence o~a State to legislate i.n the field of its nationality. law at will is limited by one
pnnc1ple of mternauonal law only, wh1ch shall govern the relatiOns both of public and of
private law: "the principle of good faith" ... 9

8. qJ]icial Gazette, 1920, V, pp. 68, 69.


9. "Gutglaubigkeit" (author's translation). (see Makarov, p. 69).
Chapter 8

The Views of Writers

Every State is limited in its sovereign jurisdiction with regard to nationality


by any treaty obligations it may have undertaken in this particular field-a
self-imposed limitation. Although this is self-evident, it shows the fallacy of
the argument of the omnipotence of the State in the field of nationality. The
question with which theorists have been faced is whether, beyond and apart
from conventional international law, such limitations exist, i.e., whether
there are rules of customary international law on nationality. Following the
phraseology of Article I of the Convention on Certain Questions relating to
the Conflict of Nationality Laws, the problem may even be subdivided into
two, viz., "rules of international custom" and "the principles of law
generally recognised with regard to nationality". The parallelism in the
wording of Article I of the Convention and Article 38 of the Statute of the
Court of International Justice is apparent.
Writers are likely to be influenced in their answer to this question by their
basic attitude towards international law. Positivists are evidently inclined to
deny the existence of such rules and principles. Monists and supporters of the
theory of the supremacy of international law, on the other hand, maintain
the existence of such rules and tend to widen their scope to the extent of
limiting the sphere of State jurisdiction in this field. Representatives of the
latter view are in particular: Ian Brownlie,• W. E. Hall, 2 J . L. Kunz,3 Sir
Robert Phillimore,• H. Rauchberg, 6 G. Scelle,6 and H. Triepel.7 Others
have laid particular emphasis on the limitations imposed on States by the
generally recognised principles of law. 8
Mervyn Jones, in his book British Nationality Law and Practice, takes the
view that:

I. In 39 B.Y.I.L., pp. 284-364, id. "Principles of Public International Law" 2nd ed. (1973)
pp. 381 et seq.
2. International Law, p. 275.
3. " Zum Problem der doppelten Staatsangehoerigkeit", in .?,eitschrift fuer Ostrecht, 1928,
pp. 401-37, at p. 406.
4. Commentaries upon International Law, vol. I, 443.
5. "Wille und Weg" (1926), pp. 112-8.
6. "A propos de Ia loi allemande du 12 juillet 1933 sur Ia decheance de Ia nationalite", in
Revue critique du droit international, 1934, pp. 65- 6.
7. "lnternationale Regelung der Staatsangehoerigkeit", in .?,eitschrift fuer auslaendisches
oiffintliches und Voelkerrecht, 1929, pp. 185-99, at p. 195.
8. For example, Politis and Leibholz.
The Views of Writers
86
· very limited , though
. .. th ere are cer tam . .perhaps
. ill-defined,
- 9principles of international law
which limit a State's right to frame 1ts nauonahty law at WI 11 •
He mentions some of these principles, but expresses the view that certain
rules should at present be regarded as usages rather than as rules of
international law.1o Makarov recognises the existence of some, but few
rules. 11
Lord l\1cNair has stated:
"Nationality stands on the frontier which is common to ~nte.rnation~llaw and municipal law,
and so far but little authority exists as to the extent to which mternatiOnallaw can control, and
in extreme cases refuse to recogmze,. . . I reguIauons
mumc1pa . on the rna tter" .12
Van Panhuys distinguishes between specific principles of international law
on nationality and extrinsic principles, derived from other principles of
internationallaw.13 He considers that the limitations imposed by unwritten
international law are difficult to define. 14
The Advisory Committee of the Harvard Law School which in 1929, in
anticipation of the Hague Codification Conference, prepared draft
conventions on the subjects selected for codification, was of the opinion that
limiting rules of customary international law existed. It stated in Article 2 of
its Draft Convention on the Law of Nationality:
Except as otherwise provided in this Convention each State may determine by its law who are
its nationals, subject to the provisions of any special treaty to which the State may be a party;
but under international law the power of a State to confer its nationality is not unlimited. 15
At the Conference of the Institute of International Law at Stockholm in
1928, Professor de Lapradelle proposed the insertion in the preamble of the
resolution on nationality of a considerant referring to the role of international
law in matters of nationality:
L'institut, fidi:le au principe que les questions de nationalite ne sont pas laissees a !'appreciation
exclusive des diflhents Etats, mais soumises a la competence croissante du droit
in tern a tiona!. . . .

However, in view of the opposition which this motion aroused, this part of
the preamble was suppressed.16
The Secretariat of the United Nations in its "Survey of the Problem of
Multiple Nationality" enumerated limitations imposed by international law
on the principle of absolute competence of States in the field ofnationalityY
Mr. ~ordova in his "Report on Multiple Nationality" to the
InternatiOnal Law Commission declared that, although aware that States

9. At p. 12.
10. At pp. 19-22.
11. Op. cit. pp. 95-105, id. in Hague Recuei/1949-1 at pp. 304-6.
12. International Law Opinions, vol. II (1956), p. 3.
13. Op. cit. p. 161.
14. At p. 178.
15. 23 A.J. (1929), Special Suppl., p. 27 .
16. Annuaire, 1928, pp. 11, 12, 680-685, 706.
17. Y.B.I.L.C. 1954-11, p. 61.
The Views of Writers 87

have the sovereign right to legislate on nationality as they deem it most


advantageous t_o their particular interests, he strongly believed that "the
right is not unhmited but subordinated to internationallaw".IB
Considerable thought has been given to the problem, and in particular to
the question of general principles of law with regard to nationality, by
Rundstein, 19 whose opinion may be treated as authoritative as he was one of
the three members of the Sub-Committee on Nationality of the Committee
of Experts, which was charged by the Council ofthe League ofNations with
the task of reporting on the questions which were sufficiently ripe for
codification. He was also the Polish delegate in the Committee on
Nationality at the Codification Conference itself.
After examining the contention that, by international law, certain modes
ofacquisition ofnationality are "allocated" to State legislation, Rundstein
concludes that there are no rules of international law determining the nature
of these links. He maintains that the "qualifying authorisation"
( Q_ualifikationsermaechtigung) granted to municipal law by international law in
the field of nationality is neither limited nor unlimited, but indefinable. No
general rules imposing limitations on municipal law should be sought, but
consistency with international law had to be examined in every case. He
agrees with Leibholz that the deliberately arbitrary use of State authority
without regard to the legislation of other States constitutes a violation of
general principles of international law as an intentional abuse of rights. It
would not have to be recognised by other States, being an act ultra vires. He
calls the right of each State to enact rules concerning its own nationality and
the converse duty to recognise foreign nationality law "opposability"
(Opposibilitiit).
Rundstein envisages three stages by which nationality could be dealt with
by conventional international law:
( 1) rules for the solution of conflicts if they occur;
(2) the devising of rules to prevent conflicts of municipal nationality laws;
(3) the creation of a uniform international law of nationality.
He shows by an analysis of the results of the Hague Conference that only the
first and second methods have been used, and concludes that "generally
recognised principles with regard to nationality" which would justify a
measure of uniformity are lacking. He makes a reservation for the principle
of active or effective ·nationality, which he regards as a generally accepted
test for the decision of nationality disputes by international tribunals.
Rundstein explains the reference to these non-existent principles in the
Convention as an act of legal policy envisaging, and destined to encourage,
the future development of such rules by way of case law.

18. Y.B.I.L.C. 1954- 11, p. 42.


19. " Die allgemeinen Rechtsgrundsaetze des Voelkerrechts und die Fragen der Staats-
angehoerigkeit", in .<:,eitschrijt fuer Voelkerrecht, 1932, pp. 14-71.
Chapter 9

Summary

It may be said that the d~cta of.the Permanent Co~rt ofl?terna.tiona.ljust~ce


in the Nationality Decrees zn Tums an1 Morocco Case, taken m conJunctlO.n with
the views propounded by Rundstem~ broadly represent the cor~e~t view ~n
the question of the relation between mternatwnallaw ~nd ~u~Icipallaw m
the field of nationality. In principle, i.e., as a rule, natiOnality IS a matter of
exclusive domestic jurisdiction. It ceas~s to be such wh:re a Stat~ has. by
treaty entered into international commitments on questions of nationality.
But even apart from treaty obligations, the right of States to regulate
nationality is not absolute and unlimited. It is limited by the principles and
rules of customary international law. At the present stage of development of
international Jaw, few specific rules on nationality have emerged. The
general rules of international law, particularly those concerning sovereignty,
territorial and personal supremacy, extra-territoriality, etc., have, however,
certain effects on nationality law. 2
As yet, there exist few, if any, general principles of law having specific
regard to nationality. The development of such principles has been
hampered by the great diversity of municipal nationality laws, by the
cleavage between countries whose nationality law is based on jus soli and
those in which it is based onjus sanguinis, and by the frequently noticeable
tendency of States to uphold, for political reasons, their own law even if it is
at variance with that of the majority of States. The general principles oflaw
recognised by civilised States provide, as in any other field of international
law, a subsidiary source of law in addition to international conventions and
custom.
It ought to be added here that neither international conventional law nor
international customary law can be considered in isolation. Uniform-or
fairly uniform-conventions are evidence of State practice, and, as such,
help to shape customary international law. The value of the proceedings
and results of the Hague Conference transcends therefore the intrinsic
significance of the international conventional instr~ments the~e arrived at. 3

1. See supra, p. 73.


2. Cf: the Po:ish answer to the first question of the Preparatory Commission: "It is essential to
rec?gn~se the nght of.every State to regulate the acquisition and loss of its nationality by its own
leg~slat10n and from Its own standpo'm t, su b'~ect to t h e reservat10n· that the sovereign
· ng· h ts of
oth er S tates,h shall be respected as far as possible" (Bases oif D zscusszon,
· · p. 18) .
3. See surra, pp. 27 - 8 .
Summary 89

It i~ in this scm · unly, that one may speak of an international law of


nationali ty. It incl ud e~, apart from treaties, those rul es of international law
which, as corollari es to certain principles of international law, have a
bearin g on qu estions of nationality. They are derived both from
international custo m and from the generally recognised principles of law.
How<.:ver, they do not directly result in acquisition of nationality or cause loss
of nationality, and it is then..{ore more accurate to speak of a "so-called"
international law of nationality.
It is necessary a lways to bear clearly in mind the fundamental rule that
nationality is a matter of domestic jurisdiction in order to see the relationship
between municipal and international law in the field of nationality in its true
perspective. The instances given in this Part should serve to establish this
relationship in the following terms:
Acquisition and loss of nationality are determined by the municipal law of
the State concerned. Such municipal law must be consistent with
international law. Within the jurisdiction of the State concerned, this
municipal law is supreme. Out'lide it'l jurisdiction, before international
tribunals and the authoritie.'l of other States, the question of its consistency
with international law has to be examined. If the municipal law is found to
be inconsistent with international law this means that the State which
enacted it has incurred responsibility for the violation of an international
legal duty. The State is obliged, by international law, to take remedial
action, i.e., to bring its municipal law into accordance with international
law, to revoke any decisions made under the inadmissible law, and to render
such satisfaction for the breach ofinternationallaw as may be imposed on it.4
So long as remedial action has not been taken, the law remains valid though
unlawful, and the national status of the individuals concerned continues to
be governed by that law. This has been stated with great cogency by the
Swiss Federal Court in the case of Lempert v. Bonfol: 5
. .. the assertion that national law is in conflict with international law is irrelevant for the
determination of nationality. Internatiopal law is law between States-it can at best entitle
other States to ask for revocation.•
A'l has been shown above in Chapters 6, 7 and 8, and as will be shown
below, international tribunals and other States will not, however, recognise
such inadmissible municipal law; they will refuse to admit its effects within
their juri'ldiction. For the determination of national status the municipal law
is decisive; if such determination is merely incidental for the issue-as is the
rule before international tribunals which are called upon to decide on the
nationality of claims-the inadmissible municipal law will be disregarded.
This difference may easily be overlooked.
The distinction also becomes blurred by the fact that municipal courts of
other States have frequently to decide questions of nationality for a specific

4. CJ Lessing, Staatsangehoerigkeit, p. 200.


5. Official Collectwn of Deciswns, vol. 60, p. 67; Annual Digest, 1933- 34, Case No. 115.
6. See infra, pp. 120-1.
Sutntllatl'

r\H'\, ~ , ~~f lh\•1\• t~\\'1\ \1\llll ll..' tp.\1 nnd .'' ill thn't'lt 11:t· h.l:\t' tht'i r dn·i~ion
1.1\\ ,
''"\ , nh ,,,, th(• tnunkip.tl '·'" ~\ '\'t'''"'"~ tht· '-~~".\\:,~~~ ~ ~ t.Htl~ nnd (Hl
\nh'I'\\.H t''''·" \.\\, , h\lt .1 1~,, , 111 thdr ' '" 11 h1" , Mr lt.' .~""· llu~ ~~~:t y , hm,·,·wr,
l{w.t \ nh to tlw l't'~\lh th.tt tlw !Wt .'l'\\ i~ dc't'IIH'd t,n· 1 i\IW~' lhr purpnst' to
\"-'"" ~~ , 1 1 mt\,~nnl ~t.\t\1~ dil\\-1'\'1\1 th' l\1 tlw :<~ .\1\ lll he· l.lt\S~t'SSt's \IIHkr. tl~t· I 1w
~\I\ 'l'nin,~· h\~ \t.\ttt'n \1 ~tnt us~ n rt':\ult wlud1_ ,., ,,~stll\l~t·s 1 It·~ _d hrth''~ ·
l'lw rnl·:< nf tlw :\1.1•,':\lktl ttlh'rn.ttll.'\\.tll.t\\' ttl n \llllll:thl \' !trc nt \ !ltrt•eh,ld
~.·h.n'.\ l.' trr~
l , Rnk~ r,f i nt \''1'1\<\t tt'~ll.ll I\\\' i mpn.~i n~· limiwtion~ 11pllt1 tlw tl·t·nlnm nf'
~t ;lt\'~ t\ r~:~ulntt' tlwir n.uiunnlit y lw nHmit'ipnl lnw. l\ l uniripa l il'gi~l n tiun
l:ll' ,,tlwr .n~~-~~~IH't':\ thr tht• (ktt•nninnti''" of the m·qui~itiun 111rl h1s~ nf
n.\ti\m.tlit\ whkh \'tt,httt' thn~~.: r11ks nrt' tmt in\'11lid, hut inYoln·
il\l ('l'l\~lti,~n.\l \'t'~P~.)tr~ihi l it\' llw tht· SH\It' whirh t 1ke~ tlh'St' 1\\(' ISIIITs: thry
" 'ill "''t ht' \'t'\'f'~·nist'< l lw intt·nmtit'IHII trihtiiH\Is, a nd till.')' mny nnt be
\'t'\.'\~n\s('\l lw ,,th,·r St;\l~'s. Tht'St' rrstrirti\'t' ruks m I)' lw n llkrl nt,~nlii'l'
i ·tt :,}t:i :.:1 1uc ~r ~ :ti,)uaNt''-
~ - Hv ntsmman· inH'\'1\~Hion n l I\\\', mHi<,nality is II.' br arrpttrt'd or lt'st on
t't'rt,~in t'l.'mlitit·m~. Thi~ dtw~ IWt. nw:m thnt indi\'idunls ncquirr or h•e
n~U i\)lmlit y i'pst j t rr by intanntinna l lnw. lt 11wrdy nwn n~ that Stat('~ ar<'
umkr ,m t'bli.g-:.Hit'n w s1.'(' th 1t tht·ir 11\\miripnl k gislation ronfi.mns "'"ith th('
rult'$ t\f inh'rtmtiomd lnw . Likt· tlw ('liS<' of nH·n~un·s inconsistt' nt with
1\\'~-:.\ti\·~· ruks. nu·n~m'r~ of llHmir ip tl law contrary to thrsr rules a re Yalid
bm I.T'(' m· intl.'rt U\ti\m nl rt·~p<msibility lh r th(' Statt' t'nar ting th<'m. In th<·
.th.'I.'IK~' of ~·xplidt prt.wisions tn tlw rt,ntrary, municipal law is p1TS\ltned to
C'\'Hf(,rm with tht·~t· rules: thry nn· ronsi<"kred to lw pnrt of the 111\lniripal
I. w. T ht')' may lw trrnwct positil t intrmational /me Q/' twtionalit}'.
1

3. T ht't't' at' t', finally. ruks of cn~t0nmry intnnnti0na llnw for the solu tion of
f'(lllflir~ Of lltltlOI\:1\it\' laws and thr dt<t('t'll\ination of nationalitY in doHhtfltJ
\'US('~. T he l't'latin ,' fr~t'<it"'m of Sta tes to rq.tulntf' nationalit y is b.o und to lend
to t"onflicts. of municipal na tionality laws n·~ulting iu plural (dual or double)
n uinnality or hu·k of m\ti,,tmlity (sta trlessness). ']"he rules \•vhich hmT
d~.·n·lopt>d t<.w the solution \.lfsur h conflicts o r, in the absence ofsurh rule~. fOr
tlw ~t·ttlenwnt of diflin1hies arising frum that nbst-11et'. are. IC.1 r the sake 0f
~

brt"\'ity. hete t'allt'<i l'M!flicl m/rs qf tllre inltmwtional lau of 11alionali~r. (This
tt'nninulogy ~ht,uld not. howeYe r, k ad to the assumption that thry bel0ng to
tha t le-gal discipline which is called Conflict of Laws or PriYa te International
Lnw . .-\s rult' S which haYe bc<'n estnblished b('t\·VCt'n Sta tes b y their practice
or by trt>atit'S, tlwy m .' rules of public international law. )
4. In addition to tht'SC ruks of n matnial charactn, the practice of
int~rnati{mul trilmna ls has begun to dc\:rlop crnnin rules to r the proof of
nationa lity. H ;:w ing been de,·elc>ped by intl'rnational tribuna ls, they ar<'
rules of international law as d istinct from munic ipa l rules of evidence.
Although of a procedural na ture, thev are dosdv ass0cia t.ed with tlw
substantin" rules of int erna tiona l law oi· na tiona lit y ' a nd form a nccc!\sary

I. q : tht' d ictum or Lnrd Russt'll in Slt~t'k v. Puhlic Tru.r/(( ; .1'11/U '(I , p. 79.
Summary 91

supplement to them. In view of the relative scarcity of decisions and the lack
of uniformity, they are still of a rudimentary character. Certain municipal
documents giving evidence of nationality which are of an essentially
international character, such as passports and certificates of consular
registration, will also have to be considered. These questions will be dealt
with under the heading of proof of nationality.
As has been pointed out, it is difficult to ascertain the international law of
nationality, which-as was recognised by the Permanent Court of
International J ustice8 -is continuously changing. It is not expedient-and,
in view of the primarily domestic character of nationality law, it is indeed
impossible-to develop ab initio general rules applicable to every situation.
Rules of international law can only be derived empirically, from the
decisions of international tribunals and from the attitude of States and
international institutions to given situations as they have arisen. One has to
look at the history of international law and international relations in order to
ascertain international law in its present stage of development- whether
such examination results in the assertion of existing rules or merely leads to
the recognition that there are no relevant rules.
By historical situations are meant both municipal measures-such as
legislative, judicial and administrative acts, to which other States have
defined their attitude, and which have thus led to the development of State
practice- and facts of international relations-such as territorial changes,
which compelled the States involved in the transfer to consider its effects on
nationality, and other States to define their attitude towards these
consequences on nationality. The word "situation" has been used
deliberately in this connection. One may also say that questions of
nationality have only led to the development of international law if they
gave rise to conflicts, but such a statement raises immediately the question of
the meaning of the term "conflict". Only if used in a very wide, and
therefore vague, sense, as embracing conflicts of law and differences between
States, both potential and actual, can it be considered as correct.

8. In the Tunis and Morocco .Nationality Decrees Case.


Part Three

THE PUBLIC
INTERNATIONAL LAW
OF NATIONALITY
Chapter lO

Limitations on Conferment
and Withdrawal of Nationality

A. Acquisition of Nationality

1. Original Acquisition

The two principles on which acquisition of nationality (original acquisition )


is based are jus soli and jus sanguinis-acquisition of nationality by birth in
the territory of the State, and acquisition of nationality by descent whereby,
as a rule, an illegitimate child acquires at birth the nationality of his mother,
a legitimate child that of his parents or, if the parents arc of diflcrcnt
nationalities, that of the father. The number of States which, in their
legislation, combine both systems into a mixed system, is increasing.
According to the Harvard Law Research the nationality laws of seventeen
States were, in 1929, based solely on jus sanguinis, of two equally on jus
sanguinis and jus soli, of twenty-five principally on jus sanguinis, and of a
further twenty-six principally onjus soli and partly onjus sanguinis. 1 Sandifer,
in 1935, counted forty-eight States whose nationality law was based onjus
sanguinis and twenty-nine whose law was based on jus soli while in two it was
based equally on the two rules. 2
According to a study, carried out by the International Union for Child
Welfare, on the law of forty-nine countries, 3 the law of four States was in
1950 based solely on jus sanguinis, the law of ten States principally on jus
sanguinis, and the law of thirty-five States principally onjus soli. Some writers
have deduced from this position that, under international law, States are not
entirely free in the choice of the modes of acquisition of their nationality but
are bound to choose between the two principles.4
The Harvard Law Research proposed in Article 3 of its Draft Convention
that States should be obliged to choose betweenjus soli andjus sanguinis.5 At

I. See 23 A.J. (1929), 2nd Suppl., p. 29.


2. "A comparative study relating to nationality by birth and loss of nationality" in 29 A..J .
(1935), pp. 248- 79, at p. 256.
3. Stateless Children, Revised Edition; 1950.
4. Cf Triepel, "lnternationale Regelung der Staatsangehoerigkeit", loc cit., p. 30; Kunz,
" Zum Problem der doppelten Staatsangehoerigkeit" , in -?,eitschrift fuer Ostrecht, 1928, pp.
4<>1- 67, at p. 4<>7.
5. Loc. cit., p. 27.


96 Limitations on Conferment and Withdrawal of Nationality

the Hague Conference of 1930 the ?elegates of France and ~r~guay' took
6

the view that the mutually exclusive character of these prmc1ples was a
general principle of international law within the .mea~ing of Article 1 of the
Convention. The very fact, however, that the natwnahty law of a majority of
States combines both principles makes their exclusive character a matter of
degree. In the absence of historical exampl~s it i~ a m~tter of ~o~jecture
whether a nationality law based equally on JUS solz and JUS sanguzms would
be regarded as inconsistent with international law or the general principles
of law.
It has been pointed out8 that the law of the Vatican City State, under
which nationality is determintd neither by jus soli nor by jus sanguinis but by
and subsequent to both the holding of an office and residence on the
territory,9 is not considered as inadmissible according to international law.
Jus soli and jus sanguinis are undoubtedly the predominant modes of
acq4isition of nationality by municipal law. Whether there is a generally
recognised principle of law to that effect is a moot question. It is not a rule
of international law. Concordance of municipal law does not yet create
customary international law; a universal consensus of opinion of States
is equally necessary. It is erroneous to attempt to establish rules of
international law by methods of comparative law, or even to declare that
rules of municipal law of different States which show a certain degree of
uniformity are rules of internationallaw.10

2. Derivative Acquisition (Naturalisation)

Apart from acquisition of nationality by birth, nationality may be ac-


quired by naturalisation in the wider sense of the term, which, according
to Oppenheim, includes acquisition by marriage, legitimation, option,
acquisition of domicile, entry into State service, and, finally, grant on
application, i.e., naturalisation in the strict sense. The same author mentions
three further modes of acquisition of nationality, namely, redintegration or
resumption of nationality, acquisition of nationality by subjugation after
conquest, and acquisition by cession of territory. 11 It is submitted that
r~dintegration into a nationality formerly possessed is not fundamentally
d1fferent from the aforementioned methods of acquiring nationality by
naturalisation in the wider sense. Acquisition of nationality in consequence
of territorial changes will be treated later.12
The laws of the various countries differ in their rules regarding the effect

6. Minutes of tlu First Committee, p. 207.


7. Ibid., p. 209.
8. By Lessing, Staatsangehoerigkeit, p. 185.
9. Cf Flournoy-Hudson, p. 636.
10. See the di~enti~g. opinions of Judge Nyholm (P.C.I.J., Series A, No. 10, at pp. 60-1)
and Judge Altamua (tbtd., p. 96) in the Lotus Case. Cf also Makarov, op. cit., pp. 92-3, 99.
ll. See vol. I, pp. 650, 656-7.
12. See infra, Part III, Chapter 11, pp. 135-160.
Acquisition of Nationality 97

of marriage on nationality. The principle of family unity, under which the


wife's nationality follows that of the husband, and the principle of
emancipation or sex equality, under which the nationality of the wife
remains unaffected by marriage or by a change in the nationality of the
husband, oppose each other. Thanks to the vigorous efforts of women's
organisatiom;.13 the latter principle is increasingly gaining ground. As a
reflection of the general emancipation of woman it can, at present, be
regarded as the prevailing principle in the field of nationality.14
The Convention concluded at the Hague Codification Conference
contains several provisions dealing with the nationality of married women:
Article 8,15 Article 9, 16 Article I 0, 17 and Article 11.18 Of these, Articles 8 and
9 are motivated by the desire to avoid statelessness and to achieve an element
of continuity in nationality rather than by the principle of sex equality. The
latter was clearly the decisive reason for the incorporation of Article 10, and
partly for that of Article II, although these provisions do not amount to a
recognition of that principle as regards nationality.
The principle of sex equality governs the provisions concerning the
nationality of married women in most modern enactments, such as the
British Nationality Act, 1948 (s. 6 (2), also ss. 14, 19 (2)), the United States
Immigration and Nationality Act, 1952 (sec. 319), the French Ordinance of
October 19, 1945 for the Codification of French Nationality Law,I9 the
nationality provisi~ns of the Treaty of Peace with Italy of 1947, 20 the Code of
the All Russian Soviet Socialist Republic on Marriage, Family and
Guardianship of 192621 and the Soviet Union Citizenship Law of 1938. 22
According to a survey made by the Secretary-General of the United
Nations in January, 1953, an alien woman by marriage automatically
acquired the nationality of her husband according to the law of twenty-two

13. Cf Report by the Select Committee on the Nationality of Married Women, appointed to
join with a Committee of the House of Commons, July 24, 1923, H.C. 115. From the vast
literature on the subject cf. a paper presented by Lord (then Dr.) Schuster to the 32nd
Conference of the I ntemational Law Association ( 1924) (Conference Report, pp. 9-50); the
Report on Nationality and Naturalisation adopted by the 33rd Conference ( 1925) (Conference
Report, pp. 25-53); Hudson in 27 A.J. 1933, pp. 117-22; "Nationality of Married Women"
Report submitted by the Secretary-General of the United Nations (U.N. Publication 1950,
IV, 12).
14. Cf Hegi "La nationalite de Ia femme mariee" (1954), Dutoit "La nationalite de Ia
femme mariee", 3 vols., vol. I "Europe" (1973).
15. Loss of nationality by the wife conditional on her acquiring her husband's nationality.
16. Loss of nationality by the wife upon change of nationality of husband conditional on her
acquiring her husband's new nationality.
17. Naturalisation of husband to effect change of wife's nationality only with her consent.
18. Resumption of wife's previous nationality after dissolution of marriage only on
application, and involving loss of the nationality acquired by marriage.
19. Ordinance No. 45-2441 Ooumal Officiel, p. 6700), as amended by Law No. 73-42 of
January 9, 1973, Articles 37-39 and 94, and Expose des motifs, paras. A III, B II.
20. Article 19 (2), Annex VI, Article 6 (2): U.N.T.S., vol. 49, p. 3.
21. Article 8.
22. Article 5.
98 Limitations on Conferment and Withdrawal of Nationality

countries; according to the law of forty-four cou~trie~ the alien husband or


wife could, on certain conditions, acquire the natwnahty of the other spouse;
and according to the law of four countries marriage to a national had no
effect on the nationality of an alien. 23
The Commission on the Status ofWomen of the United Nations has, since
its establishment, made efforts, to bring about the adoption of the principle
of sex equality in all fields. In the field of nationality, these efforts led to the
adoption by the General Assembly of the United Nations on January 29,
1957, of the Convention on the Nationality of Married Women. 24 The
Convention 25 entered into force on August 11, 1958 and had, by August 31,
1978 been ratified by 52 States. It provides that the nationality of the wife
remains unaffected by marriage, the dissolution of marriage or change of
nationality by the husband during marriage (Article 1). The alien wife may,
at her request, acquire the nationality of the husband through specially
privileged naturalisation procedures (Article 3).
As to regional international law, the principle of sex equality has been
incorporated in the Montevideo Convention on Nationality of Women,
signed on December 26, 1933,26 which has been ratified by fourteen
American States, 27 and the Montevideo Convention on Nationality, of the
same date, 28 which implements the principle of sex equality enunciated in
th~ first Convention and is in force between five American countries. 29 Most
recently, a tendency has become noticeable to treat both spouses equally as
to the acquisition of the nationality of the other spouse, as is already the case
in the United States Immigration and Nationality Act, 1952.
The Committee of Ministers of the Council of Europe adopted, on May
27, 1977, two Resolutions on the nationality of spouses of different
nationality and on the nationality of children born in wedlock.30 The
first Resolution recommends to member governments to move towards
eliminating distinctions in the conditions under which their nationality may
be acquired by the foreign husbands of their nationals, as compared with the
foreign wives; to proceed towards according to the foreign husband a
treatment as close as possible to that granted to foreign wives for the
acquisition of nationality; not to require, for the acquisition of their
nationality by the foreign spouse, more than five years' residence in their
territory, including not more than three years of residence after the

23. U.N. Doc. E/CN.6/206.


24. Res. 1040 (XI).
25. U .N.T .S. val. 309, p. 117; the text is reproduced in Appendix 5.
26. Hudson, International Legislation, vol. VI, p. 589.
27. In force between Argentina, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador,
El Sa_lvador, Guatemala, Honduras, Mexico, Panama, Uruguay and the United States of
Amenca: see Status l!f the Pan-American Treaties and Conventions (revised to December 31, 1973),
p. 7.
28. fbi~. , p. 593. See Scott, International Conferences l!f American States, 1889-1928 ( 1931), p. 108.
29. Chile, Ecuador, Honduras, Mexico and Panama: Status of the Pan-American Treaties, etc.,
p. 7.
30. Res. (77) 12 and (77) 13.
Acquisit£on of Nationality 99

marriage; and to provide, in any event, that foreign spouses may acquire
their nationality on more favourable conditions tha n those general1 y
required of other aliens.
The second Resolution recommends to member governments to grant or
to fa cilita te the acquisition of their na tionality to children born in wed lock if
their father or their mother possesses such nationality; and to insert
provisions in their internal legislation for the purpose of avoiding dual
nationality resulting either directly or indirectly from descent or resulting
from the place of birth.:11
There is no rule of international Jaw limiting the freedom ofStates to grant
or withhold nationality in case of legitimation.
According to the law of some States, 32 na tionality is acquired auto-
matically by legitimation. Under the English common Jaw legitimation did
not affect the nationality of the child. 33 This had not been changed by statute
owing to the absence of any special provision in the British Nationality
and Status of Aliens Act, 1914. Under the British Nationality Act, 1948
(s. 23 ( 1)), however, a person born out of wedlock and legitimated by a
subsequent marriage of his parents is to be treated as if he had been born
legitimate, as from January 1, 1949, or from the date of the marriage,
whichever is the later. Under the law of the United States legitimation by
subsequent marriage or recognition does not affect the nationality of the
child.
The practice of States regarding acquisition of nationality by adoption is
also not uniform.
The question whether rules ofinternationallaw exist regarding option will
be discussed in connection with the rules of international law concerning the
effect of a change of sovereignty on nationality.34
According to the law of some States, acquisition of domicile (immigration
animo manendi) and entry into State service entail, ipso facto, acquisition of
the nationality of the State concerned. However, the practice is far from
uniform.
Naturalisation in tlv narrower sense may be defined as the grant of
nationality to an alien by a formal act, on an application made for the
specific purpose by the alien or, if he is under a disability, by a person
acting on his behalf It is generally r ecognised as a mode of acquiring

31. In the Federal Republic of Germany where the principle of sex equality is enshrined in
the Constitution, the Federal Constitutional Court held the provision of the Na tionality Law of
19 13 according to which legitimate children acquire the na tionality of the father, illegitimate
children that of the mo ther, to be unconstitutiona l ( I BvL 22/7 1-1 BvL 21/ 72 of May 21, 1974).
An amendment to the Nationality Law was enacted on December 20, 1974 (B.G.Bl.I , p . 3714)
according to which the legitimate child has German nationality if one of the parents is of
German natio nality.
32. For example, Austria, Belgium, Germany.
33. Cf Shedden v. Patrick (1854) I Macq. 535, at pp. 611- 4 (Dicey, p. 159 (s)) .
34. See infra, pp. 156-60.
JOO LimiUJ.tion.s fJTl CO'Tljemzent and Withdrawal of ~·ationaliry

nationality.a.; The conditions to be complied with for the grant of


naturalisation vary from country to country, but residence for a certain
period of time would seem to be a fairly universal prerequisite.as Some
writers have concluded from this uniformity that prolonged residence is a
condition of naturalisation prescribed by international law.37 This
contention must be rejected for the same re~n for which the view thatjus
soli and jus sanguinis are mutually exclusive modes of acquisition of
nationality under international law had to be rejected. Uniform municipal
legislation does not, by itself, create international custom. In fact
nationality laws frequently provide for the possibility of exemption fro~
residence qualifications, or stipulate other personal links with the State of
naturalisation as qualifying conditions, e.g., the rendering of military or
other special services to the State, to science or to the State community,
special family or economic connections, etc. The British Nationality Act,
1948, which follows in this respect the preceding Acts, makes Crown service
a qualification for naturalisation equivalent to residence in the United
Kingdom (Article 10, Second Schedule). Such laws prescribing other
requirements for naturalisation than residence are recognised by other States
in their practice.
In addition to residence, certain personal requirements are frequently
stipulated, e.g., knowledge of the language of the country, self-support, etc.
It has been said that the grant of naturalisation without the existence of
specific personal or territorial links is inconsistent with international law.38
Certain relationships have been declared by the Harvard Law R esearch as
insufficient to serve as conditions for naturalisation. 39
It is probably true to say that international law requires the existence of
substantial links with the naturalising State 40 but there is no rule of
international law restricting the qualifying conditions for naturalisation
as long as the naturalisation is based on a voluntary act made with the
objective of acquiring the nationality of the State concerned. 41 It is an
entirely different question whether the State of nationality of the naturalised
person is bound, in all circumstances, to release him from his tie of
allegiance, whether acquisition of the new nationality involves loss of the old
nationality. 42

35. " . .. as a general principle of law" according to the French delegate at The Hague
Conference: Mirwks of the First Commitue, p. 207.
36. For an analysis of nationality laws on the point of the period of residence or domicile
required (or naturalisation cf Harvard Law Research, App. 1, printed in 23 A.J., 1929, Sp. Suppl.,
pp. 89- 91.
37. CJ. Lessing, StaatsangeiUJerigluit, p . 19 1. The delegate of Uruguay at The Hague
Conference regarded " a sufficient period of residence" as necessary (loc. cit., p. 209).
38. Lessing, Sttuztsangelwerigluit, pp. 187- 8.
39. Loc. cit., p. 26.
40. CJ. the .Notubohm Case, supra p. 31 and infra pp. 176-81; Brownlie in 39 B.Y. at PP· 324-5.
41. Brownlie ibid. at p. 310.
42. CJ. infra, pp. 127-34.
Acquisition of Nationality 101

The power of a State to confer its nationality is derived from its


sovereignty. 43 It is an attribute of its territorial supremacy. 44 By conferring
its nationality on the national of another State the naturalising State
purports to deprive the other State of its right of protection. It succeeds in
that purpose in so far as the State of origin is henceforth prevented from
exercising its right of protection against the naturalising State regardless of
whether the former recognises the naturalisation or not, i.e., whether it
results or does not result in the concurrent loss of the former nationality. It is
probably because the right to confer nationality is part of the territorial
supremacy of the State that a certain period of residence is usually required
for the grant of naturalisation; in other words, there has been a preceding
and continuing exercise of territorial jurisdiction over the person to
be naturalised. There is, however, no mandatory rule of international
law to this effect, and States are not prohibited by international law
from naturalising persons not coming by residence under their territorial
jurisdiction, i.e., persons residing outside the State territory. 45
Certain writers46 maintain that there is a difference in the position of
stateless persons and nationals with regard to naturalisation; they assert that
the naturalisation of stateless persons residing outside the territory of the
naturalising State does not require the consent of any State, while that of
nationals depends on the consent of the State of origin. It is submitted that
any such naturalisation-whether of nationals or of stateless p ersons-
requires, in order to be effective, the consent of the State in whose territory
it shall have effect, as it means giving extraterritorial effect to municipal
legislation. 47
A case in point was the naturalisation by the Soviet Union .in 1934, under
the Soviet Nationality Decree of October 29, 1924, of one Dimitroff, a
Bulgarian national, who was accused by Germany of setting fire to the
Reichstag and was tried in Leipzig. Germany gave consent to the
naturalisation by allowing the extradition of Dimitroff to the Soviet Union.
Another case is the Israel Nationality (Amendment No.3) Law of 1971 48
which provides:

43. Cf the British counter-case in the Tunis and Morocco Nationality Decrees Case (Series C,
No. 2, Suppl., p. 461 ).
44. British case: ibid., see supra, p. 74.
45. The British Home Secretary stated in a letter to the Under Secretary for Foreign Affairs of
August 8, 1902 (No. B.33014/41), that the Home Office had "repeatedly expressed the view
that domicile in the foreign country is not necessary" (for the loss of British nationality upon
voluntary naturalisation in a foreign State under Article 6 of the Naturalisation Act, 1870
(33 Viet. c. 4) ). Cf F.O.R. 2, vol. 980.
46. For instance Lessing, Staalsangehoerigkeit, pp. 196-7.
47. On the extraterritorial effect of municipal law, cJ. the dissenting opinions ofjudge Weiss
and judge Nyholm in The Lotus: P.C.I.J., Series A, No. 10, pp. 35, 44 and' 59, respectively. Cf
also the dictum in Hilton v. Guyot (1895) 159 U.S. 113, at pp. 163-4; The Jupiter (No.3) [1927]
P. 122 (C.A.} 250; Re Amand (No.2) [1942] 1 K.B. 445, at p. 451: [1943] A.C. 147, at p. 159.
48. Off. Gazette No. 624 of May 26, 1971.
102 Limitations on Conferment and Withdrawal of Nationality

Wh a person has expressed his desire to settle in Israel, or is entitled to receive an oleh's
. e~e nigrant's) visa under the Law of Return, 5710- 1950, the Minister of the Jnterior may
(I.e. lffil · f '
at his discretion, grant him, upon application, nationality by v1rtue o return even before his
aliya (i.e. immigration).
The substantial link is, apparently, seen in the person's desire to settle in
l srael. 49
In the case of Elise Lebret, 50 before the United States-French Claims
Commission, it was stated by the United States Commissioner:
Such laws do not operate extraterritorially. The natura~isatio~ laws of the United States do
not operate within the territory of France upon persons res1dent 1_n F_rance, except so far as they
are in harmony with and are recognised by France. The naturahsat10n laws of France, like the
civil code of France, do not operate within the territory of the United States upon persons
resident in the United States, except so far as they are in harmony with and are recognised by
American law .... 51
The demurrer of the United States on the ground that Mme. Lebret was
an American citizen was upheld by the decision of all the Commissioners,
without argument or reasons. The opinion of the United States Com-
missioner seems, therefore, to have been accepted.
Conferment of nationality by operation of law, ipso facto upon the
' fulfilment of certain prescribed conditions without application by the person
concerned, lies on an entirely different plane. It is sometimes called
"compulsory", "involuntary" or "collective" naturalisation, but it must be
understood that when employed in this sense the term "naturalisation" is
used in its wider meaning, as denoting any derivative acquisition of
nationality or change of nationality. In the narrower sense naturalisation
means voluntary naturalisation.
While every State has the right to determine the conditions on which its
nationality is acquired, this right is not unlimited. The contention, on the
other hand, that every kind of conferment of nationality by operation of
law is inconsistent with international law52 cannot be upheld. We have
enumerated above certain modes of automatic acquisition of nationality
which are recognised by the practice of States and which do not require the
explicit consent of the individual concerned to the conferment of nationality,
e.g., acquisition of nationality by marriage or legitimation.
Theoretical cases have frequently been adduced in which the conferment
of nationality would constitute a violation of international law. The Harvard
Law Research, for instance, declares 53 that a law naturalising "all persons
living outside the territory but within 500 miles of its frontier" or of "all
persons in the world holding a particular political or religious faith or
belonging to a particular race" would have exceeded the limits set by

49. Boi_m "The Soviet Law of Nationality and its Application to Jews" in 3 Israel rearbook of
Human Rzghts (1973) PI_>· 173-201, has questioned the legality of the enactment.
50. Moore, Arb., p. 2488.
51. At p . 2498.
52. Hall, op. cit., p . 275; Rundstein, loc. cit., p. 36.
53. Loc. cit., p. 26.
Acquisition of Nationality 103

international law. Kunz54 gives as another example "the naturalisation of all


inhabitants of a certain foreign town". In fact, the examples quoted refer to
compulsory acquisition of nationality rather than to naturalisation.
It is necessary to approach the investigation of the rules of international
law relating to compulsory conferment of nationality in an empiric way,
namely, to examine the attitude of States and of international tribunals to
given historical situations, such as the unusual conditions of ipso facto
acquisition of nationality which can be found in legal enactments of certain
Latin-American States of the last century. 5 5
According to the Constitution of Peru ofNovember 10, 1839, 56 foreigners
who had resided in the country for four years became Peruvians by
naturalisation upon marriage to a Peruvian (Article 6, sec. 4); by the
acquisition of real property a foreigner became ipso facto subject to the
obligations of a citizen, whose rights he was at the same time to enjoy
(Article 168). The British Charge d'Affaires at Lima, Mr. Wilson, entered a
strong protest, in which it was stated:
The Government of General Gamarra has afforded the first instance on record of a Nation
advancing the singular Pretension of rendering compulsory upon a Foreigner the Citizenship of
a State in which he may accidentally be residing... J•7
He went on to declare in a renewed protest:
It is sufficient for this purpose that it is an incontrovertible principle of the law of nations that
the consent of a foreigner is necessary to legalise his naturalisation in another State whatever
may be the provisions of the civil law of that State on the subject.... 68
In the case of Mexico, the Constitution of 1857 provided:
Mexicans are ... 3. Foreigners who may acquire real estate within the Republic, or who may
have Mexican children; on the understanding always that the desire to retain their own
nationality is not manifested. (Title I, Sec. 2, Article 30.) 69
Chapter 1, Article 1, sec. 10, ofthe Law ofMay 28, 1886, declared that the
following should be held to be Mexicans:
Foreigners who may acquire real estate within the Republic provided they shall not make a
formal declaratiOn of wishing to retain their nationality. 60
Article 1 of a Decree of December 15, 1889,61 of the Provisional
Government ofBrazil declared that all foreigners who were residing in Brazil
on November 15, 1889, would be considered as Brazilians unless within six
months from the publication of the Decree they should make a declaration
to the contrary before the proper authorities. The Decree aroused much

54. "Zum Problem der doppelten Staatsangehorigkeit", in .{,titschrift fuer Ostrecht, 1928,
pp. 405-6.
55. CJ. Moore, Digest, vol. III, pp. 302-ll.
56. Br. and For. St. Papers, vol. 28, p. 236.
57. F.O.R. 61, vol. 69, Dispatch:N"o. 63.
58. F.O.R. 61, vol. 70, Dispatch No. 68.
59. Br. and For. St. Papers, vol. 78, p. 983.
60. Ibid., vol. 77, p . 1271.
61. Ibid., vol. 81 , p. 233.
104 Limitations on Conferment and Withdrawal of Nationality

criticism from other Governments. Italy reacted partic.ularly strongly,


and prohibited the emigration of Italians to Brazil. Th~ I tal~an Government
suggested that the Powers should act in conc?rt vls-a-vzs the Brazilian
Government. Joint protests were lodged agamst the Decree by the
diplomatic representatives of Austria-Hungary, France, Great Britain,
Portugal and Spain. They did not lead to a repeal of the Decree, but the
period for making the declaration of retention of foreign nationality was
extended and the procedure therefor facilitated. 62 The provisions of the
Decree of 1889 were embodied in the Brazilian Constitution of February 24,
1891, which allowed a period of six months from the coming into force of the
Constitution for the declaration of retention of nationality (Article 69) .sa
The Foreign Office consulted the Law Officers of the Crown as to what
should be the attitude of Great Britain in the matter. The Law Officers
expressed the opinion that
. .. [it was] for H.M. Government ... to protest against the terms of the Decree [ofDecember 15,
1889] upon the ground of the shortness of the period within which the foreigners must make the
proposed declaration and that the Decree proposes to change the status of foreigners already
resident who fail to make a declaration within that period, whether they have notice of the .
terms of the Decree or not. H.M. Government should reserve to themselves liberty of future
action, and also reserve their right to protect any persons whose rights of British nationality are
unduly prejudiced by the Decree or its operation.... In our opinion a person who, with notice of
the law and an opportunity of making the declaration therein mentioned, abstains from making
such declaration, would properly be held to have voluntarily become naturalised in Brazil
within Sec. 6 of the Act of 1870, and to have thereby lost his status as a British subject."
The Italian Ambassador in London asked the British Government to join
in the protest, the draft of which declared that the Decree was
... restrictif du droit de liberte individuelle, contraire aux principes generalement acceptes de
droit international ... ,
and that the Italian Government
. .. considerera le Decret du 15 novembre 1889 comme nul et non avenu et qu'il conformera sa
conduite aux principes du droit international et aux interets de ses ressortissants.as

As regards this, the Law Officers advised:


... that, in ~ur opinion, the note pr~posed by the Italian Government places the protest on
somewhat higher grounds, and goes rather beyond that which, if the note had been framed by
H.M. Government, "!e should have suggested; but that there is nothing in it inconsistent with
the ~oun_ds upon w~Ich a protest should be based, as stated in our Report of February 11 , 1890,
and, m view of the Importance of concerted action, H.M. Government may, in our opinion,
properly join therein."

62. Ibid., vol. 82, pp. 1028-30.


63. Ibid., vol. 83, p. 503.
64. L.O.R. (F.O.) 1890-No. 3, p. 5.
65. F.O.R. 13, vol. 673.
66. L.~..R. (~.0.) 1~90-No. 4, p. 1: For the correspondence between the Foreign Office and
H.M. Mmister m Brazd and the rephes of the Brazilian Government to the protests made, cf.
F.O.R. 13, vols. 673, 832.
... -
Acquisition of Nationality 105

The view that a sta tute conferring na tionality on foreigners by reason of a


certai n number of years' residence, provided they were given a possibility of
declaring their intention to reta in their original na tionality was not open to
objection fro m an interna tional point of view, had alread y been taken by the
Law O fficers earlier in connectio n with a Hungarian Law to the same
d fect. 6 7
The United States took separa te action. In his instruction of Febr uary 19,
1890, to the American Minister in Brazil, Mr. Blaine, the then United States
Secretary of State, d eclared tha t by the Brazilian D ecree the principle of
voluntary action had been wholly discarded. The mere residence of an
individual in a foreign country could not be regarded as conclusive evidence
ofhis desire and intention to become one of its citizens. The Decree sought to
effect by operation of law wha t could be accomplished only by the positive
act of the individual. 68 In a Note to the M exican ~1inister with regard to the
Mexican Law of 1886, ~1r. Bayard, the then United States Secretary of
State, declared :
The law in question, having been adopted for the purpose of dena tiona lising certain classes of
foreigners in that country unless they took some affirmative action to preserve their nationality,
contained a principle which the U.S. Government was compelled to regard as inadmissible.6 9
The United States, while claiming for aliens within its jurisdiction the right of expatriation,
has always maintained that the transfer of allegia nce must be a distinctly voluntary act, and
that the loss of citizenship cannot be imposed as a penalty nor a new status forced as a favour by
one governm ent upon a citizen of another.
Not only is this believed to be the generally recognised rule of interna tional law but .. .70
The United States Secretary of State went on to quote, in support of his
view, decisions of the United States-~1exican Mixed Commission established
under the Convention of July 4, 1868. 71 The Umpire, Dr. Lieber, rej ected
the demurrer of ~1exico against the jurisdiction of the Commission in the
matter ofthe claim of two United States citizens, Anderson and Thompson, on
the ground that by virtue of the Constitution of 1857 they had become
Mexican subjects by purchasing land in ~1exico in 1863. He said:
This law clearly means to confer a benefit upon the foreign purchaser of land, a nd equity
would assuredly forbid us to force this benefit upon claimants (as a pena lty, as it were, in this
case), merely on account of omitting a declaration of a negative; that is to say, they omitted
stating that they preferred remaining American citizens, as they were by their birth-one of the
strongest of all ties. . ..
The umpire ... decides that they were citizens of the United States and that they have a full
right under the present Convention to present their claims to the j oint United States and
Mexican Commission. 7 2

67. L.O.R. (F.O.) 188 1- No. 4, p. 3.


68. 17 MS. Instr. to Brazil 441-4, 473, 474; Moore, Digest, vol. III, pp. 307- 10.
69. H .Doc. 551, vols. 3-20; Moore, Digest, vol. III, p. 305.
70. Mr. Bayard to Mr. Manning, Minister to M exico, November 20, 1886; For.R el. 1886,
723; Moore, Digest, vol. III, p. 306.
71. U.S. Treaties, p. 1128.
72. Moore, Arb., vol. III, pp. 2479-8 1.
ltltl t,11111 totio 11 1 1111 (,'M!fnmt•ul mul W itlulmmoL of NatioTtality

Tlli1~ dc•c'iNiu 11 w:t'l lolluwc·d in /~'~/loll ~ · Nlt•'W11, • iHid l1y tlw lil l ('( '!·c·dj 11 ~
711

l )111 pin·. Sit' Edward Th111'1111111 , 111 1¥ 11/J,\ v, Ml',t u o, llt){(Jt'fl v. Ml'xuo a 11 d
Ill Ill' I' l':t .·H'~ . '1
7

'1'111' q 11 nHiun r 111111 · up aMain lwfi,rr till' .< :l:~iu•x C;11111111i!{xiu~':< whid 1 wen·
c·s tai 1 Ji ~hnl in till' 1 ~)'20~ lwtw<·c·u Mn<J ' II aud S("V('ral Statc·M (( 11• tht
.uljudil'atiull of rlailll.'l ari11i11~ fi·o111 tlw Mt'xin111 rc·vcJiutiou. Tlw M ·xi< an
/\grut ul\jc-•·tbllwfill'l' till' (;,.l',llliiii· Mt'Xicall (,:lflilll~ (,;OIIIIIIiHsi<lll, in_th~ CWH;
11 f'U 1111 , an :tllqotnl ( :c·nn:lllll:ttlollill, that tlw CoiiiiiiiSS IOII had IIOJUnsd•cthm

1111 till' gr11111 ul that tlw daiiiiHIIt hml acquirl'd Mrxica11 11atio11ality under
,J\ 1·tirlr :HI of'tiH' Mc·xi('all ( :IJIIStitution IJy hi!{ al'quisitiou ofla11d in M<·xi ' (I,
'1'111' (;l'l'lllall /\~c·ut plc-atlc-d that ac('nl'llinK to thf' Mcxi <:a11 Law of IUHG
Mt'xira 11 uutiouality had not l,c·c·n al'quii'C'd autcunatindly. h was held that
the Con11tlissio11 h:~d jurisdi('tio11 fllld that tlw Law of IOHlj rnust he
,·onsidcTc:d as intc·rprC'tinK tiH· Constitutio11 so as ru1t to cunf'·r Me xican
natio11ality autonJatic:ally. Su<'h intC'rprrtation was, as th · C.:ommi.'lsion said,
in arronlann· with intrrnational law, whic-h d(l(·s not permit <.:ompulsory
dtang{' of nationality. 7"
l>C'dsions to thl' same t•flt·ct w ·rc given by th(· halian-Mcxican Claims
'o1mnission in tiH· ·ases of Occelli, Sarli and Martello, and uy the Spanish-
Mrxil'an Claims Commission in tlw cas· of Barcenfl. 1"
Th · /\ward in Rc Anderson rmd TlwmJJ.ron was us ·d as a precedent by the
Frcuch-M.-·xiran Claims Commission in Georges Pinson (France) v. United
Mcxicnn Stale.r. '1'h Commission h ·ld that th · contention of double
nationality ou the ground that, in addition to French nationality, Pinson had
Mcxicau natiouality, i.e., that of the defendant State, had to be disregarded
by au international tribunal if the municipal law of the respondent State
relating to a<.:quisition of nationality was in contradiction with international
law. 77
A Fn·nrh court, th" Civil '['ribunal of the Seine (First Chamhcr), statcu on
.July 13, 1915, in Mathieu Ullmann et Nathan Ullmann v. Ministere Public18 that:
... lc·s clisposilion~ ll·galc•s brcsiliclllws dunl il11'agit sunl des dispositions cxorbitantcs du droit
comlllllll illtc·rnaliollal . .. qui cxpliquc'raic·rH k~ prutcslaliouH (·levees par Ia pluparl des Etals
curopl·c·11s I'll raison Iaiii dell dil!po~iliolls de kur11 lois particulicn·ll que dc:s principes du droil
inu·rual iunal; . ' ' que· llllllc pari Hi non au Urcsil M. u' ne !laurait ctrc wmidcrc comrne clrvenu
Hrcsilit·u c·11 IHII!.J par lc· Mc·ul f:1it de Ia loi hrl·silicnuc et en opposition avec sa lui na1ionalc .. · ·
It was held on the question of the nationality that BMathieu Ullmann n'est
pas Brcsilicn." While the reasoning in this case seems correct, the finding
that he was not a Brazilian national seems not to be in line with the basic
principle that nationality is determined by municipal law. In accordance

7 ~i. /hid., p. :l1·BI.


71. Ibid., p. 21H:l.
7:-, , Rr Rau, (irrmaii-Mcxican Claims Commil\sio11 ,.January 4, J!J:iO; Annual Digest, 193 1- 32,
Case No. 124.
76. Cited in Armual DigeJt, I!l3 I- :i2, Case No. 251.
77 · U.N. Reports, vol. V, p. :~27, ul. p. 3111; sc·c also 5upra, p. 77, infra, pp. 174, 206.
7H. Rrvue de Drnit intemational privl, 1!)15- 16, pp. 67- fiO.
. lrquiJititm of Nationrdi~y 107

with tlw reasoning it W l)Uid havl' bc.·en more appropria t<' to say tha t the
person was not to be ronsidnnl as u Brazilia n natinna l. 711 Tilt' Bra zilia n
Supreme Clntrt is n ·portt·ct to have construrd the provisions of the Bra zilian
Constitution rl'strinivd y Sl) as to nvnid thr imposition uf na tionali ty. RO
'l'h<' cases cited above show tha t it was considererl It> b · a ru le of
intt•rnntional law tha t the compulsory ronf(Tmcllt ut' nationalit y under the
hn of Mexil'u a nct Brazil coulct not dc.·privc tlu· State of' origin of its right of
protl'ction . l\1orrover, the validit y of the onftTmcnt of na tiona li ty in those
cases where thl' persons concnned had ta kt·n up r<'sidcncc: or acquired real
pr,)perty before the r nanmr nt of legisla tion d -·claring these fa.cts to result in
ipso jatto acq uisitio n of na tiona lity, could have been cha llenged as being a
,·iobtion of tlw genera l princip le of the non-retroactivity of' la ws, since the
indi,·id ua ls tonccrned could no t. have known a t the time they took up
residt•nre or acquired r a l pro pert y that they wo uld thereby acquire a new
nationa lity. and the duties r ·suiting therefrom, by virtue of subsequent
k g isla tion.
In its rt'ply to the Hrst qu<'stio n put by the Prepara tory Committee for the
H agut· Conference of 1930, the Government of the U nited States d eclared :
T hr G~._wernnwnt oft he U nit ed Stntes has ta ken the position tha t, as a general rule, no person
$htluld hn\'1.' the na tiona lit y of a l~m·ign coun try tortt·d upon him after birth without his consent,
t'XPI'l'SS or im plied.~ ~

Tlw Gt•rmnn ('J'Q,·crnnH·nt point ed out tha t:


. .. n Stntr has no powt'J". by means of a law or adm inistra tive net, to confe r its na tionalit y on a ll
thr inhnbitnn r:; of nnotlwr Stntt• or on nil foreignns entering its territory. Further, if a Sta te
ronfen>•its na tiona lity on thl" su~jects of other Stnti'S without their request, when the persons in
q ue-;tion arc not ntt adwd to it by nny p articular bond, as, for instance, origin, d omicile or birth,
tht" Stntt· eonct·m ed will not be bo und to n "Cognise such natura lisation .u
\Yhen a n Inter-departmenta l Committee appointed by the H ome
Secretary considered inter alia, the question wha t, for the purpose of loss
of British na tionality, should be considered as constituting volunta ry
natura li~a tion in a foreign country, the Committee recommended tha t
British natio na lity should not be lost unless the person concerned had
"expressly app lied for na tura lisation or done some act from which
accepta nce of the foreign na tiona lity may reasona bly be inferred. " 83 Sir
Dennis Fitzpatrick, a member of the Committee, disagreed on the la tter
point. He took the view tha t '' . .. a man should not be invested with a new
nationa l cha racter unless he a.c tua lly a pplies for or accepts it," a nd

79. St•e on this cnse ibid., pp. 80-4.


80. Stutemem of the Brazilia n member, Mr. Amado, in the Interna tiona l Law Commission
(S~ewaMry Rtrords of tltt Fourth Srs.rion. U .N. Doc. A/C N.4/SR . l 56, pp. 9, IO).
81. Bas-ts of Disru.r.rio11, pp. 14-5, 146.
8::?. Ibid., p. 13.
83. R eport of the lnter..depurtmcm a l Com m ittee appointed by t.he Secreta ry of State for
tht" H ome De-partment to consider the doubts and dilllculties which have a risen in connection
with the int~rpretation a nd administra tion of the Acts relating to Na turalisation (( 1901)
Cd. 723. p. IS) .
Limitations on Conferment and Withdrawal of Nationality
108

that loss of British nationality should be consequential on


recom mended . . ". if .
acquisition of a foreign natwnahty zn pu~suance o . an ojficzal procedure
established for that purpose and in the course of whzch he applzed for or accepted that
nationaliry." 84 .
The issue arose again on the occasiOn of the amen~ment of the Argentine
Constitution in 1949. A Bill introduced by Parhament provided that
aliens should acquire Argentinian nationality automatically after two
years' continuous residence in t?e c~untry. ~ proposed amend~ent had
provided that, after two years residence m the country, ahens must
either opt for Argentine nationality or leave the country. In view of the
criticism which this proposal evoked abroad and among foreign residents in
Argentina, the Argentine Ministry of Foreign Affairs. felt compelled to
announce that the provisions would apply only to foreigners who entered
Argentina after the coming into force of the new Constitution. The relevant
provision of the Argentine (Peron) Constitution of 1949, read (Article 31 ):
Foreigners who enter the country without violating the laws shall enjoy the civil rights of
Argentinians, as well as political rights, five years after having obtained Argentinian
nationality. Upon their petition they may be naturalised if they have resided two consecutive
years in the territory of the Nation, and they shall acquire Argentinian nationality
automatically at the end of five years' residence in the absence of express declaration to the
contrary.
The Law shall establish the causes, formalities and conditions governing the granting of
Argentine nationality and the withdrawal thereof, as also the expulsion of foreigners from the
country. 85
The implementing Law, the Law on Nationality, Citizenship and
Naturalisation of September 28, 1954, 86 promulgated on October 19,
1954, provided in Article 9:
Foreigners with five years' continuous residence in the Republic acquire such naturalisation
automatically provided they are not affected by any of the obstacles [exclusion grounds] listed
in Article II .
These exclusion grounds were according to Article 11: (a) being found
mentally defective; (b) lacking means of an honest livelihood; (c) non-
observance of good conduct; (d) being a national of a country at war with
the Republic; (e) engaging in activities contrary to Articles 15 and 21 of the
National Constitution; and (f) having lost Argent1rie nationality, except
according to Article 20.
Article 14 provided:
Foreigners over 18 and under 70, with more than five years' continuous residence in the
country, must present themselves within the period to be fixed by the Executive Power in order
that ~he~ may be granted Argentine nationality, or to state expressly that they do not desire to
acqmre 1t.

According to Article 15, if the absence of the exclusion grounds prescribed

84. Ibid., pp. 19, 20 (italics supplied).


85. Peasl.ee, Constit~tions of Nations, first ed. vol. I, p. 67.
86. Boletzn lnformatwo de Legislacion Argentina, No. 34, Year XIV, pp. 3- 6.

....
Acquisition of Nationality 109

by Article II was confirmed , nationality was to be granted after an oath of


loyalty to the nation and of respect for its Constitution a nd Laws had been
taken.
Failure to make a declaration within the specified time, as required by
Article I4, involved the penalty of imprisonment for ten to sixty days. A
person who did not make the declaration in spite of punishment was to be
regarded as being illegally in the country (Article 2I ).87 He would therefore
be liable to expulsion.
As the present writer is informed, no written representations were made
by the British Government with regard to the implementing Law. However,
the operation of certain of its provisions, in particular Articles 9, 14 and 21,
was discussed with the Argentine Ministry of Foreign Affairs by the British
Ambassador. He was assured that the period within which aliens may, under
Article 14, be required to present themselves for the purpose of receiving or
refusing Argentine nationality would be of reasonable duration. He was also
assured that there would be no discrimination against British subjects who
might not wish to accept Argentine nationality.
It is understood that the Ministry was similarly approached on behalf
of other interested Governments. As a result, the Ministry issued a
communique on October 5, 1954, in which it was stated that the provisions
do not compulsorily impose Argentine nationality; foreigners who declare
their wish to retain their nationality would preserve the prerogatives and
facilities implicit in the civil rights granted by the Argentine Constitution to
resident foreigners.
It would appear to follow from the wording of the relevant provisions of
the Nationality Law of 1954-and this interpretation was corroborated by
the Presidential Message88 with which the Bill was introduced in Parliament
and the parliamentary debate itselfll9 that the so-called automatic
naturalisation after five years' residence was not in fact entirely automatic. It
required a declaration by the person concerned, the taking of an oath of
allegiance, and confirmation of the granting of nationality by the Argentine
authorities. While the Law made provision for the consequences of failure to
make a declaration seeking or refusing acquisition of nationality, it did not
provide for the consequences of failure to take the oath of allegiance.
The Argentine Constitution of 1853 as amended, which has again been
put into force after the downfall of the Peron regime, provides explicitly in its
Article 20:
They (i.e. foreigners) are not obliged to assume citizenship nor to pay extraordinary
taxes. .. 90

The Inter-American Juridical Committee, an organ of the Pan-American

87. The quotations are from an unofficial translation of the Law.


88. Records of the Chamber of Deputies, 1954, pp. 2021, 2022.
89. Ibid., pp. 2024-41.
90. Peaslee, Constitutions of Nations vol. IV, p. 10.
110 Limitations on Conferment and Withdrawal of Nationality

union, declared in 1952, in its report 91 and draft ~onvention 92 on the


Nationality and Status of Stateless Persons, that the ~es1re to a~qu.ire a new
nationality should be specific and that so-called tacit naturahsat10ns were
not to be recognised. The Argentinian member, Mr. Bonastre, dissented.9a
It appears difficult to deduce fro~ these instances ~f State practice and
official opinions and from the few arbitral awards on this problem, a general
rule of international law concerning the conditions on which States may or
may not confer their nationality, which goes beyond the rule already
mentioned, namely, that the acquisition of a new nationality must contain
an element of voluntariness on the part of the individual acquiring it, that it
must not be conferred against the will of the individual. Legislation
providing for ipso facto acquisition must not be regarded as a compulsory
conferment, but as a permissive rule offering naturalisation subject to
acceptance. In support of this interpretation the presumption against the
existence of a conflict between municipal law and international law may be
referred to. 94
In this sense Cicero's maxim, ne quis invitus civitate mutetur, remains true
today. The Harvard Law Research declared that:
... the general principle that no state is free to acquire the allegiance of natural persons without
their consent is believed to be generally recognised. 9s
Acceptance of the offer may be explicit or implied. The rule covers,
therefore, a wider field than voluntary naturalisation, which requires an
explicit request by the person wishing to acquire the new nationality. Other
cases ofrecognised ipsofacto acquisition ofnationality, such as acquisition of
nationality by marriage, by acceptance of public office, etc., appear to be
included. 96
Some other cases of automatic acquisition which are not of a universal
character but which have been recognised by the practice of States, such as

91. Report and Draft Convention on the .Nationality and Status if Stateless Persons (Dept. of
International Law, Pan-American Union, Washington, 1952), p. 26.
92. Article II.
93. Loc. cit., pp. 12-3.
94. On this presumption see Oppenheim, vol. I, pp. 45-47. It was adduced in the Pinson Case:
U.N. Reports, vol. V, at pp. 392-3. ~
95. Loc. cit., p. 53
96. CJ the reply of the United States to the Preparatory Committee for The Hague
Conference (Bases of Discussion, p. 146); with regard to marriage see also Mackenzie v. Hare
(1915) 239l!.S . .297, at p. 311, where the wife's consent to the acquisition of nationality was
regarded as 1mphed. The Court of Taranto invoked in a decision of March 20 1954 in re Tout
(39 Rivista di diritto internazionale 117, at p. 124) the Universal Declaration of Human Rights
as a~ exp.ression of the modern tendency to regard citizenship as an essentially voluntary
relatmnsh1p.
The Court of Appeal of Cologne held in 1961 in the Compulsory Acquisition if .Nationality Case
(32 Int. Law Reports, p. 166) that a Czechoslovak law of April24, 1953, providing that persons of
"?erman ethnic origin" then resident in Czechoslovakia reacquired Czechoslovak nationality
with effect from May 7, 1953, was contrary to international law and, in particular, to Article 1
of the Hague Convention on Certain Questions relating to the Conflict of Nationality Laws.
Acquisition of Nationality III

acquisition of nationality by legitimation or adoption or of minors through


acquisition of nationality by one parent, are, at first sight, not easi ly
reconcilable with this rule. They may be construed as exceptions made in the
interest of family unity; it can also be said that in these cases the will of the
parent or guardian replaces the will of the minor. 117
It may be useful to quote here the opinion of Hall on the subject:
A State has necessarily the right in virtue of its territorial jurisdiction to confer such privilege
as it may choose to grant to foreigners residing within it; and when the status of subject or citizen
is accepted by a foreigner according to the forms prescribed by the State legislation, he becomes
in every respect as between State and himself a member of the State communit y. But apart from
the assent of the individual privileges alone can be conferred; a State has no right to impose the
obligations of nationality; still less to insist that the foreign subject shall abandon in its favour his
nationality of origin.
Whether or not a fair presum.ption of consent has arisen must always be a matter of deduction
from the facts of the case .. . but it cannot be admitted, so long as it is exceptional for States to
impute their nationality to resident foreigners, that a provision to this effect (i.e., for a
declaration of retention of nationality) can bind other countries to recognise the validity of
imputed naturalisation, unless the period is of considerable length, and unless the terms of the
law are brought to the individual notice of all foreigners establishing themselves in the
territory. 98
Makarov99 takes the view that:
... as a minimum demand the rule must be applied that the State may not impose its nationality
on persons who have not one relation to its legal system.
This seems hardly consistent with the fact that certain specific relations were
considered insufficient by international and national tribunals and the
practice of States.1oo
The view taken by Parry is more precise: "Today there is a strong current
of international legal thinking to the effect that, apart from the cession of
territory or in very special circumstances, international recognition need not
be accorded to the nationality of a State conferred on the recipient not at his
request or without his consent, unless, by both parentage and permanent
domicile, he has a genuine connexion with that State." 101
It is believed that the exposition of the legal position as given by Hall is
broadly correct; but the arguments he adduces in support ofhis opinion are
determined by an extremely individualistic point of view, in accordance

97. Cf the British Nationality and Status of Aliens Act, 1914, s. 5 (I) of which conferred upon
a child naturalised during minority on the application of the parent the right to make a
declaration of alienage within one year after attaining his majority. Cf also the above-
mentioned reply of the United States (toe. cit., p , 146).
98. The Foreign Powers and Jurisdiction of the British Crown, pp. 46 and 47. Cf also id.,
International Law, pp. 267, 268, 275. Mervyn Jones (British Nationality Law and Practice ) states (at
p. 15): "The general principle underlying nationality is the voluntary choice by an individual of
a particular nationality. There is evidence from the practice of States that to impose nationality
upon individuals against their will, either collectively or individually (unless it be a special case
like that of annexation) is a departure from the accepted principle of international law . . . ."
99. Op. cit., p. 95 (author's translation) id., in Hague Recueil, 1949 (i), pp. 273-377, at p. 305.
100. See supra, pp. 104- 110.
101. 5 B.D.I.L. p. 25 and practice cited at pp. 26-30.
112 Limitations on Conferment and Withdrawal of Nationality

with his own liberal outlook and that of his age. It is not the freedom of the
individual whose nationality is at issue, but the rights of the State of which he
is a national that are the primary considerations in international law. The
State is enti~led to protect its nationals. By the compulsory imposition of
nationality, violence is done to the individual's rights just as if he were
arbitrarily arrested or forced to marry. 102 Such treatment of an alien gives
the State of his old nationality a right to intervene on his behalf in the
exercise of the diplomatic protection of its nationals abroad.
If the national accepts-explicitly or tacitly-the new nationality, his
rights have not been violated, and there is no reason therefore for the.
recourse to diplomatic protection. Volenti nonfit injuria. Voluntary acceptance
of an offer of collective naturalisation amounts to a renunciation of the
former nationality and the rights resulting therefrom. Owing to the absence
of violation of a right the question of diplomatic protection does not arise at
aluoa
Whether or not a particular act or omission is recognised, by international
law,. as capable of resulting in acquisition of a nationality, i.e., as denoting
implied or tacit acceptance of an offer of collective naturalisation, depends
on the development of international law, 104 At present, acquisition of real
property, for instance, is not so recognised, while marriage is still recognised
as being capable of leading to the acquisition of the nationality of the
husband by the wife. It may well be that the universal acceptance of the
principle of sex equality in this respect will make this mode of acquisition of
nationality obsolete.
In the case of the theoretical examples given above, 105 in which the
conferment of nationality by operation of law is meant to apply to the
nationals of a particular foreign State or States, such conferment is
inconsistent with international law for an additional reason: it purports to
deprive other States of a number of their nationals, of the right of protection
over a number of their subjects. It constitutes an encroachment upon the
personal jurisdiction of these States and must be regarded, if it affects a
considerable number of nationals, as an unfriendly or even hostile act against
the State of nationality comparable to a violation of the State's territorial
jurisdiction: it constitutes a threat to peaceful relations and is as such illegal.
By a similar reasoning the Harvard Law Research sees the ground for the
inadmissibility of compulsory conferment of nationality in "the disregard of
t~e interests of the State of which the person is a national, particularly in
view of the fact that nationality involves obligations as well as rights or
privileges" .1 06
It follows also from the general principles of territorial and personal

102. Cf Rundstein, loc. cit., p. 36.


103. On the influence of renunciation of rights on diplomatic protection cJ. supra, pp. 37-38.
104. Cf Harvard Law Research, loc. cit., p. 26. -
105. See supra, pp. 102-3.
106. Loc. cit. p. 53.
Acquisition of N ationality 11 3

supremacy that a State rna) not Impose its nationa lity on aliens resident
abroad. 107
In view of the overriding importance of the right of the State to
independence, even a possible tacit acceptance by the persons concerned
would be irrelevant. This factor would be not without significance in the
hypothetical case of a State granting its na tionality to all persons speaking its
language and belonging to the same race as its own population; in such a
case tacit acceptance might be assumed.Ios It is perhaps remarkable that
such cases have not so far occurred in practice.
At the Hague Conference the d elegate of Uruguay referred to "the
limitations of abuses under certain laws which might grant naturalisation on
so wide and liberal a scale as to constitute an abuse of a recognised right", 109
i.e., the right to determine acquisition and loss of nationality. 110 It seems,
however, unnecessary to resort, for the establishment of this rule', to general
principles of law, in this case to the principle of abus de droit, a principle of
somewhat doubtful validity in international law,111 as long as one can derive
the rule from a principle of customary international law, in this case from the
principle of personal supremacy.
It follows from what has been said that nationality may be conferred by
operation oflaw, without the consent of the individuals concerned and even
against their will in those cases where no State entitled to exercise diplomatic
protection exists, i.e., in the case of stateless persons. The laws of various
States have in fact imposed their nationality on stateless persons within
their territory without the admissibility of this course being questioned.
Some writers 112 assert, however, the existence of an absolute principle of
international law that conferment of nationality must be a voluntary act.
If such a rule of international law existed it would apply to all individuals,
whether foreign nationals or stateless persons.
The Polish Law of January 20, 1920, for instance, provided in Article 1:
As soon as this law is published persons, without distinction as to age, religion or race, in the
following categories shall have the right to Polish citizenship:
(I ) Those domiciled within the boundaries of the Polish State, provided they are not citizens of
another State ....
(2) Those who were born in the boundaries of the Polish State, provided they are not citizens of
another State.

107. Cf Lauterpacht in jewish Yearbook of International Law, 1948, p. 211, Morgenstern


in Annual Digest 1948, p. 259, Brownlie in 39 B.Y., p. 344.
108. Cf Triepel, "Virtuelle Staatsangehoerigkeit", in Abhandlungen <;um Friedensvertrag, vol. I,
p. 3, ibid., "Internationale Regelung der Staatsangehoerigkeit", in <_eitschriftfuer auslaendisches
oeffentliches recht und Voelkerrecht, 1929, p. 196.
109. Minutes of the First Committee,· p. 209.
110. Judge Read in his dissenting· opinion in the Nottebohm Case also referred to the principle
of abuse of rights which, however, he did not consider applicable in the case at issue. ( I.C.J.
Reports 1Y55, at p. 37) .
Ill. See supra, p. 47.
112. For example, Hall, and Mervyn jones (see supra, pp. 111, llln).
114 Limitations on Conferment and Withdrawal of Nationality

(3) Furthermore, those who were entitled to Polish citizenship by virtue of international
treaties. 113
Article 6 of the Minorities Treaty with Poland 114 provided:
~
I
All persons born in Polish territory who are not born nationals of another State shall ipso
facto become Polish nationals.
The Convention concerning Upper Silesia between Germany and Poland of
1922115 contains a similar provision in Article 28, which reads:
Toutes Ies personnes nees dans le territoire plebiscite avant Ia date du transfert de Ia
souverainete et dont Ia nationalite ne peut etre etablie, sont considerees comme ressortissants de
l'Etat auquelle lieu de leur naissance est attribue en raison du partage de Ia Haute Silesie.ll6
In Switzerland, a Law ofDecember 3, 1850, provided for the acquisition of
Swiss nationality by stateless persons (Heimatlose) by their incorporation into
a canton (Article 10). The Law defined as Heimatlose all persons residing in
Switzerland who do not belong to a canton as citizens or to a foreign State by
right of origin ("toutes les personnes resident en Suisse qui n'appartiennent
pas a un canton comme citoyen ou a un Etat etranger comme ayant droit
d'origine"). According to the official Swiss collection, Recueil systematique du
lois et ordonnances, 1848-1947, Article 10 of the Law of 1850 is now obsolete.
The Soviet Decree of October 29, 1924,11 7 and the Soviet Law of 1931
regarding Union Citizenship provided in Article 3:
Every person in the territory of the Soviet Union is deemed to be a citizen of the Soviet Union
in so far as he does not prove that he is a foreign citizen.
These enactments were, however, repealed by the Soviet Citizenship Law of
1938, 118 which recognises statelessness (Article 8) .119
The Nationality Law of Israel of 1952120 is of particular interest in that it
provides for the acquisition of Israel nationality by operation of law upon
immigration, and draws a distinction between foreign nationals and stateless
persons in this connection. Article 2 of the Law, entitled " Nationality by
Return", provides:
(a) Every oleh [i.e., jewish immigrant] under the Law ofReturn, 5710-1950, shall become an
Israel national.

113. Flournoy-Hudson, pp. 4 79, 480.


114. U.K.T.S., No.8 (1919).
115. L.N.T.S. vol. 9, p. 466.
116. L.N. Doc. C.396. M .243, 1922; Br. and For. St. Papers, vol. 118, p. 378.
In Dominik's Case (Official Collection ofDecisions, vol. II , p. 60), the Arbitral Tribunal for Upper
Silesia gave, however, a binding interpretation of Article 28 which differs from the meaning of
Article 6 of the Minorities Treaty with Poland; it held, against the Polish contention that this
provision applied only to stateless persons or persons whose nationality could not be determined,
that it regulated only the change of nationality of persons who, at the time of the transfer of
sovereignty, were German nationals..
117. No. 202.
118. No. 198.
119. Cf Taracouzio, "The Soviet Citizenship Law of 1938", in 33 A.J. (1939), pp. 157- 60.
120. Official Gazette, No. 93, p. 22.
Loss of ft ationality 115

(b ) I rael nationali ty b y Return is acquired-


( I ) . .. .
(2) by a person having come to Israel as an " oleh' after the establishment of the State-with
effect from the day of his '"aliJ'ah" [i.e., his immigration to the Land of Israel];
(3) ....
(4) by a person who has received an " oleh's" certificate under section 3 of the Law of Return,
5710-1950, with effect from the day of the issue of the certificate.
(c) This section does not apply-
( I) .. . .
(2) to a person of full age who, immediately before the day of the coming into force of this
Law or, if he comes to Israel as an " ouh" thereafter, immediately before the day of his " aliyah"
or the day of the issue of his " oleic's" certificate is a foreign national and who, on or before such
day, declares that he does not desire to become an Israel national;
(3) . . ..
Why, one may ask, when foreign nationals may repudiate the acquisition of
Israel nationality, is this possibility not open to stateless persons? Such an
imposition of nationality on stateless persons leads to the reduction of
statelessness, which is considered as desirable. 121 On the other hand, the
Law discriminates between foreign nationals and stateless persons to the.
disadvantage of the latter inasmuch as it exposes the latter, but not the
former, to compulsory imposition of nationality. These are, however,
considerations of legislative policy. From the point of view of international
law as it exists at present, the compulsory conferment of its nationality by a
State on stateless persons coming within its territorial jurisdiction is, in the
view of the present writer, admissible. 122

B. Loss of Nationality

1. In General

Nationality may be lost by an act ofthe State or by an act of the national. In


the first instance it is called deprivation of nationality or denationalisation.
Deprivation of nationality may be automatic, by operation of law, i.e., the
law may provide that a certain situation, or certain conduct of the national
(e.g., entry into the service of a foreign army), entails ipso facto loss of
nationality, or it may require an individual act of the State, such as
deprivation of nationality by way of penalty imposed by a court in
connection with conviction for a serious crime. Deprivation of nationality
by way of penalty is sometimes considered as a special kind of denational-
isation.123 It is not easy, however, to define the term. In a narrower sense,
denationalisation by way of penalty may be considered to include only loss of
nationality by decision of a court as a punishment inflicted for the

121. See infra, p. 162.


122. Cf Zebafl~, La .Nationalitt au point de vue de Ia Ugislation comparee et du Droit privi humain,
vol. I, pp. 238-40.
123. Cf Article 8 of the Convention on the Reduction of Statelessness (reproduced in
Appendix 4) .
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Sl \ll'lt'SSIIt'SS. 1117

124. Vol. I, p. Ll~ll.


I:J!), l~id. , p. tioltl.
11 l . (j. ~ uflta , p. II~~ .
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117

l'hc .lll:th sis l l f tht• nttitude ur international law to municipal law


rc~·.11·din~,· k;ss of nat iiJnality must tart fi·o rn the considera tion that it is
irrl'ln ,1111. l(u· du· purpose uf internati< nal law , whether the loss of
n.lli,)n.dit\' is dllYtnl h · an a ·t ofthc State or of the individual, whether by
dt'll,ttiollaiis:llinll ur rclluHciation. 121) In practice, investigations into the
qtH'Siitlllufthc admissibilit of measures of municipal law resulting in loss of
n.tti, lll.dit v ha\'<' been ronlincd almost exclusively to d enationalisation. The
rt·:.lsnns li..;r this :m· ub,·iow : whil · deprivation of nationality by the State
111.\\' result in statelessness and the refi..tsal to take back form er nationals, and
111 •.1) · thus lead to rlisputcs lJ twrcn States, voluntary abandonment of
nati,nl:liit • will as :1 rule, only take place upon acquisition of another
n.ui,ln:dity nnd is no t. likely to lead to international friction . 129
The pussibilit , of a declaration of alienage resulting in statelessness, as
w.ts the case l()r persons born outside H.M. Dominions, under the Act of
1~ll-1 s. 14 1 has be ·n remoY d b the British Nationality Act, 1948. The
distinniun bc.· tween loss of nationality by an act of the State and loss of
n.llionalit ' by an act of the individual does not necessarily coincide with the
distinction between 'oluntary and involuntary loss. Rules of municipal law
inflicting loss of nationality on nationals on t.he ground of their actions
or conduct) such as for instan e loss in consequence of entry into
t(weign pub lit' sl'n·ice, a bsence O\ cr a prolonged period, etc., are based on
the assumption that the national by his action or conduct tacitly expresses
thl' will to :-;ever the ties connecting him with his country of nationality. This
ma y be callt•d implied exp:ttriation. 130

.:. . Drnatitmnlisatiotl

Dt·pri,·at.ion of citiz nship as a penal measure is not a new phenomenon; it


existt"<i in R oman Lav. in connection with banishment (aquae et ignis
i11terdictio and deportation in its severe form (deportatio in insulam), while the
k ss se,·cr' re/ront£o did not entail loss of Roman citizenship. 131 Citizenship
of the ancient Roman Empire is not, however, easily comparable with
nationalit in the modern sense which presupposes the co-existence of
t. tt'S. The pena l measure of banishment of pre-revolutionary French law
did not mean los of nationality.l32
Dt>priv. tion of nationality by a unilateral act of the State was known in
the municipal legislation of the nineteenth century almost exclusively as a

1:!~ . Cf fitther Williams /oc. rit. p. 55.


l ~>9. Cf the British Na tionalit y Ac.:t 1948, s. 19, which admits of renunciation of citizenship
of th<' 'nitt>d Kingdom and Colonit'S only in the case of persons who are subjects of another
't~ue (sujt'ts m1:-rus).
L'O. Cf. the nited Smte; At.·t of Congress of March 2, 1907 34 Stat. 1228), s. 2, para. 2,
which pro"ided for a rebuttable presumption of expatriation on the ground of prolonged
absence abroad. This provision has been rt:(>('aled by the Nationality Act of 1940.
131. Cf Lt~ing, StlwlsangtltotTigkrit pp. 32- -4-.
132. Cf Fis...·her \\'illi:uns loc. cit. , p. 49, n. 6; Lessing Staatsangtltoerigkeit, pp. 37-8.
Limitations on Conferment and Withdrawal of Nationaliry
118
tial upon conviction for certain crimes. Since then
pena1 measure Consequen . . . . ,
stautory legislation providing for depnvatwn ofnatwnahty has d?velo~ed.on
similar lines in many countries. A number of grounds for denatwnahsat1on
have been created which are common to many systems, although one cannot
speak of uniform legislation.133 Moreover, legislation va~ies from country to
country as to whether loss of nationality ~esults automatic~lly, by ope~a~ion
oflaw from a certain act or conduct (which may also consist of an omiSSion,
e.g., f~ilure to register with a diplomatic. ~r co?sular rep~ese?tative~, or
whether a decision by a judicial or admmistrative authonty 1s reqmred.
Within different States the law varies to the extent of providing for
automatic loss of nationality on certain grounds (for instance, entry into
foreign military service) and for deprivation by an individual act of State
134
only on other grounds (such a~ ?isloyal con~uct! . . . .
Some States make no provlSlon for depnvatwn of natwnahty m their
legislation. These States are China, Colombia, Denmark, Ethiopia, Federal
Republic of Germany, Japan, Liechtenstein, (except if acquired by fraud)
Norway, Siam, Sweden, Uruguay, and the Vatican City. Other States
provide for the deprivation of nationality of naturalised subjects only
(denaturalisation), e.g., Great Britain and the other member States of
the Commonwealth which have accepted the recommendations of the
Conference of 194 7, 135 and Venezuela.
The following grounds for deprivation of nationality are common to the
legislation of a number of countries but are by no means universally
accepted .136

(i) Entry into foreign civil or military service or acceptance offoreign distinctions:
Austria, Brazil, Bulgaria, Cuba, Dominican Republic, Egypt, France,
Guatemala, Honduras, Hungary, Indonesia, Iraq, Italy, Luxembourg (in
the case of naturalised persons), Mexico, Monaco, the Netherlands,
Panama, Peru, Portugal, Roumania, Spain, Syria, Turkey, United States of
America.

133. Cf f~r ?rounds of denationalisation based on a comparative survey: Lessing,


Staatsangehoengkezt, pp. 232-4, Harvard Law Research, loc. cit., p. 101 ; A Stuc!J of Statelessness
(U.N. Docs. E/1112 and E/1112/Add.l), pp. 140-2 (U.N. Publications No. 1949. XIV.2;
.Nationaliry Legislatio~ concerning Grounds for Deprivation of .Nationaliry (U.N. Doc. A/CN.4/66).
134. In the Umted States certain grounds for deprivation of nationality were held
unconstitutional by the Supreme Court: Trop v. Dulles, Secretary of State et al. ( 1958) (356 U.S.
86, 78 Sup. Ct. 590, 26 Int. Law Reports, p. 426), (desertion in time of war; denationalisation
may not be used as a P~~alty) , Kennec!J v. Mendo~a-Martine~ (1963) (372 U.S. 144, 34 Int. Law
Reports, P· 108) (remammg abroad during wartime to evade military service), Schneider v. Rusk
(~~64)pn U.S. 162,84 Sup. Ct. 1187, 35 Int. Law Reports, p. 197) (residence of naturalised
Citizen m country of former nationality) , Afroyim v. Rusk (1967) (387 U.S. 353, 32 LW 4503, 62
A.J. (1968), p. 189) (voting in foreign elections).
135. See supra, p. 17.
136. ~his ~urvey is mainly based on the paper "Nationality Legislation concerning Grounds
for Depnvat1~n of Nationality". (~J.N. doc. A/CN.4/66) prepared by Mr. Kerno in 1953 for
~he International Law CommiSSion. It does not include, therefore States which became
mdependent after that date. '
Loss of Nationality 119

(ii) Departure or sojourn abroad:


(a) Applicable to all nationals-Bulgaria, Czechoslovakia , Egypt ,
Hungary, Indonesia, Ireland, Poland , Roumania, Turkey, Yugoslavia.
(b) Applicable to nationals by naturalisation only-Australia, Burma,
Canada, Costa Rica, Cuba, Greece, Guatemala, Israel, Mexico, New
Zealand, Nicaragua, Pakistan, Sri Lanka, United Kingdom, Republic of
South Africa, United States of America.

(iii) Convictionfor certain crimes:


(a) Applicable to all nationals-Ecuador, Syria, United States of
America.
(b) Applicable to nationals by naturalisation only-Afghanistan,
Australia, Burma, Canada, Cuba, Egypt, France, Haiti, Ireland,
Luxembourg, New Zealand, Pakistan, Sri Lanka, United Kingdom,
Yugoslavia.

(iv) Political attitude or activities:


Denationalisation for political reasons increased sharply during and
after the First World War. Such grounds as disloyalty or disaffection,
acts prejudicial to the State or its interests, collaboration with the enemy,
advocacy of subversive activities, etc., are frequently stipulated in municipal
legislation as grounds for deprivation of nationality. Denationalisation on
political grounds assumed large proportions when, after the Bolshevik
Revolution in Russia, first the All Russian Soviet Socialist Republic 137 and
then the Union of Soviet Socialist Republics 138 resorted to legislation
providing for the loss of nationality by operation of law by nationals abroad
who had opposed the Bolshevik regime or who were considered as being
opposed to it. These measures, which affected some two million persons, 139
amounted to mass denationalisation.

(v) Racial and national grounds:


National-Socialist Germany, in the course of its racial policy, first
deprived a great number of naturalised persons, particularly Jews, of
German nationality. 140 In 1941 all German Jews residing abroad were
deprived of German nationality. 141 Similar measures were taken against
Jews in the satellite countries of the Axis. In Italy, all naturalisations granted
to Jews after January 1, 1939, were revoked during the Fascist regime. 142

137. Decree of December 15, 1921, No. II.


138. Ordinance regarding Union Citizenship of October 29, 1924, No. 202; Union
Citizenship Law of November 13, 1925, No. 581.
139. See Fischer Williams, loc. cit., p. 46.
140. By virtue of the Law of July 14, 1933, concerning Cancellation of Naturalisations and
Deprivation of Nationality (R.G.Bl., vol. I, p. 480).
141. lith Ordinance by virtue of the Reich Citizenship Law of November 25, 1941 (R .G.B.,
vol. I, p . 722) concerning Denationalisation of Jews resident abroad.
142. Decree of December 17, 1938, No. 1728.
1 ~0 /.imitations ()n CfJnferrnent and Withdrawal rif .Nationality
M a~s dcnatitmalisatiiJn for nation a l r ·ascms, that is, for the purpose of
the ·x lusion of national minoriti s (Jllsid ·red a <; hostile, is a n even more
rc ·nt ph enomenon. Thus in Cz ·chcJslovakia 14a nationa ls of German and
Hungarian ra · · w ·rc d ·n ation ali~>ed ; in Poland 144 a nd Yugosla via 145 persons
of' ,crman ra .
D na tion alisation gav · ris · to ha rdly any disc~ssion as to. the consistency
of this measure wi th internationa l law as long as It was applied on a limited
s al J' mainly as a penal measure in connection with criminal convictions.
Th · question ofthe admissibility ofd cnationalisation arose only when States
began, for political r ·asons, to d eprive great numbers of their nationals
of th ·ir nationality, and particularly when Soviet Russia resorted to mass
d enationalisation by the abovc-'lllentioned D ecrees. 146
The courts of different countries took different views as to the validity of
denationalisations resulting from these Decrees. In examining the decisions,
account must be taken of whether the Soviet Union had been recognised by
the State before whose courts the question was in issue. Thus, for example,
after the formal recognition of the Soviet Union by France, in accordance
with a circular letter by the Garde des Sceaux of April 28, 1925, French courts
held form er Russian nationals affected by the Decrees to be stateless, while
earlier decisions had d eclared that the Decrees were "measures violating the
law of nations", to which effect should be denied. 147
The Swiss Federal Court held in 1928 in Tcherniak v. Tcherniak 148 that the
Soviet Denationalisation Decrees had no effect in Switzerland. This decision
was overruled by the decision in Lempert v. Bonfo/, 149 which may be regarded
as the leading case on that question. The issue in this case was whether the
child of a Swiss mother and of a father who had been denationalised by the
Soviet Decree of 1921 was to be regarded as being of Swiss nationality
according to Swiss law, which provides that the child of a stateless father and
a Swiss mother is a Swiss national. The court held that the child had Swiss
nationality. The representatives of the Canton ofBerne pleaded, on behalf of
the defendant, a municipality in that Canton, that:
.. . the decree in question wa, irrelevant because it was contrary to international law. For it was
a universally recognised principle of international law that a State could not simply deprive of

143. By Presidential Decree of August 2, 1945.


144. By the Law of May 6, 1945, as amended by the Decree of February 2, 1946; Decree of
September 13, 1946, as amended by the Law of November 18, 1948.
145. Nationality Law of July 1, 1946, as amended by the Law of December I , 1948.
146. Cf Abel, " Denationalisation", in 6 Modern Law Review, 1942-43, pp. 57-67.
147. Sec Abel, toe. cit., p. 66. See also Bek-Marmatsche.ffv. Koutznetz/coff, Trib. de la Seine,
March 7, 1929 (Revue de dr. int. privi, 1929, pp. 297- 307), Opinion by M. de Lapradelle, ibid.,
pp. 308- 13.
148. Official Collection of Decisions, 54, vol. II, p. 225; Annual Digest, 1927-28, Case No. 39. See
Clunet, 1924, pp. 4- 62, 1925, pp. 318- 30, pp. 36-69. Cf also the decisions of the same court
in von Fliedner v. Beringen (Off. Colt. of Dec. 60 vol. I, p. 263; Annual Digest 1933-1934,
Case No. 113); Luczak v. Basel Stadt (Off. Colt. of Dec. 72, vol. I, p. 407; Annual Digest 1946,
Case No. 58).
149. Official Collection of Decisions, 60, p. 67; Annual Digest, 1933-34, Case No. 115.
Los cif aI iv nati ~)I 121

their n.11ion.di1 . citil<'ll'' ho arc out of sympathy with the regime and so force them on other
' tales.
Th · Federal Court held:
It is not nc e·sar to express any opinion as to whether the fundamental sovereign right of an
individual Stat· to prcscrib , according to its own discretion, the conditions of acquisition and
of loss fits nation, lity is in any way limited by considerations of international intercourse; nor
as to h0w t: r ther · ar · to be gathered from international law precise and relevant principles
which would permit of the designation of a provision of this nature as inadmissible. For even if
this wcr · th · case here, this would, in view of the essential nature of international law, as an
order b tween States, at the most constitute a breach of duties towards other States prejudiced
by the decision in question. The idea of such a breach of duties is practically meaningless if the
foreign State has no legal means of compelling the former home State to revoke the deprivation
of citizenship and receive back the person affected . It will not alter the fact that he is stateless
according to the law thus criticised , that is, that his former home State does not regard him as a
citizen .. ..
In the case of Rajdberg v. Lewi, 150 decided by the Supreme Court of
Poland it was held that:
... the plaintjff who had been deprived under Soviet law of Soviet nationality, could not be
considered a Soviet national by other States, least of all by States (such as Poland) which had
recognist.-d de jure the Soviet Republic.
The court added that "the plaintiffs plea that he is a stateless person living
in Berlin under the protection of the League of Nations could not be
disregarded ... "
The denationalisation by Germany of German Jews resident abroad by
virtue of the 11th Ordinance to the Reich Citizenship Law, ofNovember 25,
1941, was held to be contrary to Swiss public policy by the Swiss Federal
Tribunal in Levita v. Federal Department of Justice and Police; 151 this decision
was, however, overruled by the decision in Rosenthal v. Eidg. Justiz- und
Polizeidepartement 162 where the person concerned was held to have become
stateless.
In the United Kingdom the denationalisation was not recognised during
the war in either administrative and judicial practice. Men affected by the
Ordinance were interned as enemy aliens. Speaking on the subject in the
House of Commons the Home Secretary gave the following reasctn for the
refusal to recognize the effects of the Ordinance:
While persons who can. be identified as coming within the terms of the Ordinance may, under
German law, lose their German nationality, it would, in the view of H.M . Government, be
contrary to public policy to recognise the power of an enemy State by its legislation in time of
war to relieve persons who were its nationals at the outbreak of war from any disabilities,
liabilities or restrictions imposed by our law on aliens of enemy nationality. 163
It was however, admitted that owing to the exclusiveness of State
jurisdiction in matters of nationality, such non-recognition of the effects of
150. Zb.O.S.N., 1927, No. 107; O.S.P., vol. VII, No. 61; Annual Digest, 1927-28, Case
No. 209.
151. Off Coli. of Dec. (1946) 72 vol. I p. 407; Annual Digest 1946 Case No. 58.
152. Ojf Coli. of Dec. (1948) 74 p. 346.
153. Hansard, H .C ., vol. 382 cols. 707/8.
Limitations on Conferment and Withdrawal or
~
.
Natz'o na1zry
122
dena tionalisation could not m a ke the d ena tional.isation invalid. This Was
sta ted on behalf of the British Government by VIscount Cra nborne in the
House of Lords:
Nearly all Germa n J ews in this country. lost Germ an na tiona lity before C?crman law under
th II th Ordinance of the Reich Citizenship Law of November 25, 1941 ' which provides that .
J c: who has his or~inary abode abroad may.~ot b~ ~o?crman na tiona l. T he vast majority o~
German J ews in this country arc, therefore, stateless.
As to judicial d ecisions, it was held in. The King v . .The Home Secretary, ex
parte L. and Another:Iss "Th~ Co~rts of this country will not in time of war
recognise any change of nationality b~ought. abo~t by a decree of an enemy
State which purports to turn any of Its subj ects mto a sta teless person or a
subje~t of a neutral state. Therefore, an alien e.n emy, _who. in consequence of
such d ecree has become a stateless person, still retams, m law, his enemy
status, and if interned in this country cannot move for a writ of habeas
corpus."
This decision was applied by the Chancery Division in Lowenthal and Others
v. Attorney General. 156
In Oppenheimer v. Cattermole (Inspector of Taxes) 157 the plaintiff who had
been affected by the German Ordinance had become naturalised in Britain
in 1948. He claimed that his German pension was not subject to income tax
in Britain under a Double Taxation Agreement with Germany as he was still
a German national. The Court of Appeal, reversing the decision of the lower
court, decided that he was subject to tax.
Lord Denning, M.R., held that Oppenheimer did not lose his German
nationality under the decree of 1941 not only because it was "an atrocious
and objectionable law" but because English law would not recognise a
decree of an enemy power which purported to deprive its citizens of their
enemy nationality in time of war; he was, therefore, still a German national
until he became naturalised in England in 1948.
The other two members of the Court considered that the question whether
a person is a German national had to be decided according to German, not
En~lish law. Oppenheimer remained a German in the eyes of English law
while a state of war subsisted between England and Germany solely because
of the rule of public policy that an enemy alien could not be allowed to
escape from the disabilities of that status by virtue of a change of nationality
effected by his domestic law in time of war. Once the state of war came to an
end-which was the case in 1951-that rule of public policy ceased to

154. Hansard, H .L., vol. 121 cols. 698/9.


155· (1945) I K.B.7; cf for a criticism of this decision Weis in Solicitors' Journal vol. 89 (1945)
pp. 193-195, 205- 206; see also infra p. 143.
156. (1948) 1 All E.R. 295.
157 · ( 19 72) Ch. 585, Appeal Court (1972) W.L.R. 815; cJ. on this case Kerslcy in International
Bar Journal November 1972 p. 24, May 1973, pp. 51- 52.
Loss of v'vationality

operate and the 19-t-l German decree had to be recognised as havin~ the
same eiTect a a ny other foreign law.
The practice ofnot recogni ' ing the denationalisa tion ofG nnau.Jcws has
been widel) criticised. 1Ml
The eflects of the German Decree of November 25 1941. wen· rt'Ulg'ttis(·d
bv the United States Circuit Court of Appeal for the Second Circuit in l nitl'fl
States ex rel. Paul Sclu ar;:.kopf v. hi. District Direflor of Immigration, 1"'1 a case
which will be discussed in greater detail later. uw It was held that:
. .. there is no public policy of this cou1Hry to preclude a n \mnican nun ti·orn rct:ngnising the
power of Germany to disclaim r hwarzkopf as a German citizl'n.
\Vhile the practice of States and judicia l decisions s em to recognise the
right of each State to d etermine frc I th' conditions for th loss of its
nationality municipal m easures"' hich lead to dcpri ation of nationality are
looked at askance by most writers on international law, and publi ist.s have
frequently endeavoured to prove the existence of rule of int ~rna tiona! law
restricting this right. 161 Dictated by the desire to avoid stat lcssncss a
" principle of continuity of nationality" ha · been ass ~rted, a cording to
which loss of nationality was only to b admissible on the simultaneous
acquisition of another nationality. 162 Deprivation of nationalit y, in
particular mass denationalisation has been declared to be inconsistent with
the international obligations of States.l 63 Other writers have tried to prO\·e
the existence of a rule prohibiting esp ecially dcnationalisation for penal or
political reasons 164 as being inconsistent with the notion of the human being
as a person in law . 165 Others again have disowned the right of State' to resort
to denationalisation as an abuse of rights if it constitutes an attempt to throw
off the duty of admission and \>\ould cast an illegal burden on the State of
residence. 166 This was declared to be inconsistent with the general principles
of law. Brownlie has stated correctly that deprivation of nationality must be
regarded as illegal if it is part and parcel of a breach of an international
duty.l 67 He also takes the view that denationalisation of groups of citizens is
not entitled to recognition because it disregards the doctrine of eHecti e link

158. Cf Lauttrpacht in Jewish Yearbook of International Law ( 19-18) pp. 16-l- 185, van Panhuys
pp. 116-7, Brownlie in 39 B.Y. at p. 338, Parry ''The Duty to Recognizt• Foreign Nationality
Law" in 19 ,(eitschrift for ausliindisches offnztliches Ulld ViJ'lkml'cht pp. 336- 368 at p. 3G6.
159. (1943) 137 F.2d 898; 37 A.]. ( 1943) p. 634; Annual DigtSI, 19-!3- -!5, Case No. 5-l.
160. See infra p. 142.
161. For a survey of the literature sec Lessing, Staatsangehonigkeit, pp. 73- 9-l.
162. See lsay in Hagut Rtcutil 1924 (iv), pp. 429- 68, at p. HI ; a nd RatKhbt•rg in Wille rmd
Weg, 1926, pp. 112- 8, at pp. 116- 7.
163. See Niboyet in 22 Revue de Droit international pn·vi 19:27, pp. 245- 50, at p. 246.
164. See the legal opinion by d e Lapraddle in Remu de Droit irrtemalional pri11l, 1929,
pp. 308-13, at p. 311.
165. See Scelle in Revue Critique de Droit international prive, 193-l, pp. 63- 76, who describes it ns
" profondemmt antirwmique avec Ia notion d'etat des personnts" (at p. 68).
166. See Leibholz, loc. cit. (cited supra, p. 47n. ), at p. 101 , and Lauterpacht, The Function of
Law in the International Communiry, pp. 300-1.
167. In 39 B.Y. at p. 339.
Limitations on Conferment and Withdrawal of Nationality

and rcptTscuts an attempt to avoid t~u.: . responsibilities of ter~itorial


SO\'tTcignty ami statehoud.'os Learned soctcllcs h~ve a~opted resoluttons to
prohibit d ·nat_iou ali~:;atio n and to make loss of natJOnahty dcp.ende~t on the
acquisition of a new nationality: "Nobody should lose hts nationality unless
he acquires another. ' ' 169
Following the pronouncement in Article 15 of the Universal Declaration
of Human Rights:
'' ( 1) Everyone has a right to a natio~ality.. . . . .
(2) No one shall be arbitrarily depnved of hts natiOnahty nor demed the
right to change his nationality", there is a notable tendency to outlaw
denationalisation or at least to limit it by treaty. The Convention on the
Reduction of Statelessness, 170 which will be referred to later, 171 freezes
deprivation of nationality if such deprivation renders the person stateless:
Contracting States may deprive a person of his nationality only on
grounds constituting disloyalty or repudiation of allegiance, being grounds
existing in their national law at the time of signature, ratification or
accession, provided such grounds are specified at that time. (Article 8,
paras. 3 and 4) Otherwise a person may not be deprived ofhis nationality so
as to render him stateless except if, in the case of a naturalised person, he has
resided abroad for seven consecutive years and has failed to declare his
intention to retain his nationality; in the case of a person born abroad,
retention of nationality may after the expiry of one year after attaining
majority be made dependent upon residence in the territory of the
Contracting State or a declaration of intention to retain his nationality.
(Article 8, paras. 1 and 2 in conjunction with Article 7, paras. 4 and 5)
Renunciation ofnationality shall not result in loss of nationality unless the
person concerned possesses or acquires another nationality, but these
provisions shall not apply where their application would be inconsistent with
the principles stated in Articles 13 and 14 of the Universal Declaration of
Human Rights (freedom of movement, right to leave any country and to
return to one's country, right of asylum). (Article 7, para. 1)
A national who seeks naturalisation in a foreign country shall not lose his
nationality unless he acquires or has been accorded assurance of acquiring
the nationality of that foreign State. (Article 7, para. 2)

168. Ibid. p. 340.


169: Resolution of th~ Institute of International Law, adopted at Cambridge, 1895, XIV
Annuazre, p. 195; ResolutiOn ~dopted at Venice, 1896, XV Annuaire, p. 271; Report on the 33rd
Conference of the .InternatiOnal Law Association at Stockholm, Resolution No. 3, Report,
PP· .28- 32; Res~luuon of the Institute of International Law adopted at Stockholm, 1928
Arucle 2, Annumre, 1928, P· 760; Report of the Committee on the Status of Stateless Persons of
the Grotius Society, Grotius Transactions, 1943, p. 157.
170. U.N. doc. A/Conf. 9/15.
171. S~e infra PP: 1.66-7; the. text of the Conwntion is reproduced in Appendix 4. On this
Convenl!on cf. We1s m lnternatzonal and Comparatiut Law Q_uarttrry 1962, pp. 1073-1096.
Loss of Nationality 125

Article 9 of the Convention absolutely prohibits discriminatory de-


privation in these words: "A Contracting State may not deprive a person or
group of persons of their nationality on racial, ethnic, religious or political
grounds,"
Considering that the principle of non-discrimination may now be
regarded as a rule of international law or as a general principle of law,
prohibition of discriminatory denationalisation may be regarded as a rule of
present-day general international law. This certainly applies to discrimi-
nation on the ground of race which may be considered as contravening a
peremptory norm of international law but also, in the present writer's view,
to discrimination on the other grounds mentioned in the Charter of the
United Nations, i.e., sex, language and religion.
With this possible exception, however, the views of those who regard
denationalisation or, at least, denationalisation for penal or political reasons
as inconsistent with the law of nations, find no justification in the present
state of international law.
Neither the view that denationalisation is inconsistent with international
law because it creates statelessness nor the view that it encroaches upon the
rights of the individual finds support in the rules of international law.
Statelessness is not inadmissible under international law-although it may
be considered undesirable. 172 The long-established doctrine that individuals
have no rights under the existing law of nations is subject to challenge
today, 17 3 but it can hardly be maintained that there are any rights attribl;lted
to individuals by present international law which are infringed by
denationalisation as such. The objections raised against loss of nationality by
unilateral act of the State only, or even only against denationalisation on
specific grounds, are inconsistent also because, for the purpose ofjudging the
admissibility of denationalisation under international law, the methods and
grounds of loss of nationality according to municipal law are immaterial-
unless the denationalisation, particularly mass denationalisation, is clearly
discriminatory.
The considerations mentioned above regarding the extra-territorial effect
of rules concerning acquisition ofnationality174 do not apply in the same way
to rules concerning loss of nationality; as distinct from conferment of
nationality, withdrawal of nationality does not involve a direct infraction of
the rights of other States. The assertion that denationalisation is contrary to
international law because it affects the right of other States to demand from
the State of nationality the readmission of its nationals (reconduction) is the
most serious argument 1n favour of the alleged rule.
It cannot be questioned that States are entitled to provide in their laws for
the loss of their nationality by their own nationals resident within their
territory and, in particular, to deprive them of their nationality unilaterally.

172. See infra, p. 162.


173. See supra, p. 32n.
174. See supra, pp. 101 - 2.
126 Limitations on Conferment and Withdrawal of .Nationality

Such action, in the view of the present writer, terminates the right of
residence of the former national, or, in other words, the duty of the State to
grant him residence and to re-admit him to its territory. 175 In fact, States
rarely resort to expulsion of their former nationals. If, however, the national
is abroad at the time of the loss of his nationality, the State of residence is
deprived ofits potential right of reconduction. Whether, however, this right
is infringed d epends on whether, in the case of actual resort to reconduction
the State of former nationality were to refuse admission. '
While it is true that the State has a duty to grant residence to its nationals.
the connection between nationality and residence is not of the sam~
automatic character as that between nationality and the right of protection
of the State of nationality. While loss of nationality terminates the right of
international protection which the State of nationality possesses according to
international law, loss of nationality does not necessarily entail loss of
residence. It is not by d enationalisation as such, but only by the denial of
residence or of admission, that a State can cast a burden upon other States; it
may thereby infringe their right to regulate the admission and residence of
aliens and thus violate their territorial supremacy.
The precarious character of the doctrine of abus de droit as applied to
international law has already been stressed. This doctrine, as well as the
existence of generally recognised principles of law regarding loss of
nationality, was hotly disputed by the delegates of many States at the
Hague Conference.1 76
To sum up: the right of a State to make rules governing the loss of its
nationality is, in principle-with the possible exception of the prohibition of
clearly discriminatory deprivation-not restricted by international law,
unless a State has by treaty undertaken specific obligations imposing such
restrictions. 177
The exception, mentioned earlier, 178 to the rule of the termination of the
duty of admission by deprivation of nationality does not amount to an
exception to the right to regulate loss of nationality. Such depriYation
in order to refuse admission would be valid according to international law in
that it would result in a renunciation of the right to protection, but its extra-
territorial effect would be denied as regards the duty of admission.
The fact that a State can legislate almost freely as regards loss of its
nationality does not confer on it the right to determine the subsequent
national status of the persons who have lost its nationality: it cannot ascribe
to them another nationality. This is left to the personal jurisdiction of the
State concerned, and any legislation or administrative practice imputing to
an individual the nationality of another State would exceed the limits of
territorial jurisdiction, since the personal jurisdiction is terminated by the

175. See supra, pp. 53-7.


176. Minutes of lM First Committee, pp. 197- 9 and 206-9.
177. Cf Fischer Williams, foe. cit., p. 55; and see Kuhn in 30 A.J. ( 1936), pp. 495-9.
178. See supra, p. 57.
Loss of Kationality 127

Io s of nationality. Such an imputation would constitute a breach of


intern a tiona l law and doe · not have to be recognised by other States. In spite
of the ·elf-evident nature of this rule, States have violated it frequently in
their legislative and administrative practice. 179 An instructive illustration is
the interpreta tion given to Articl e 7 of the Czechoslovak Constitutional Law
of .July I, 1926 (No. 152), concerning the admission of certain persons to
Czechoslovak citizcnship. 18o This Article provided that the ~1inister of the
Interior may declare null and void any acquisition of Czechoslovak citizen-
ship in accordance with the provisions of the Law if it had been obtained by
the use of false or incorrect documents or statements. According to the
official interpretation given by the Czechoslovak authorities, such persons
regained the nationality which they possessed before their naturalisation,
that is, in accordance with the provisions of Article 61 of the Treaty of
Trianon, the nationality of the State in the territory of which they possessed
rights of citizenship (pertinenz.a, Heimatrecht). This imputed re-acquisition of
nationality was not recognised by the States whose nationality was to have
been regained , particularly by Hungary: the persons concerned therefore
became stateless.
Another example of measures ultra vires in the field of nationality is
Article 14 of the Peruvian Civil Code of 1852, 181 which provides that " a
Peruvian woman married to a foreigner acquires by her marriage the
nationality of her husband ". Article ll of the Bolivian Civil Code of 1830,
which provides that " A Bolivian woman married to an alien will follow the
status of her husband", 182 must equally be regarded as being ultra vires.

3. Expatriation and Substitution of Nationality

It seems expedient to investigate the questions of expatriation and


substitution of nationality together from the point of view of international
law. While in municipal law they are distinct modes ofloss of nationality, the
question to be examined by the international lawyer is whether any, and if so
what, rules of international law have developed regarding loss of nationality
upon acquisition of a new nationality. The attitude taken by States has
varied throughout history and is still far from uniform.l83

179. Cf Lessing, Staatsangehoerigkeit, pp. 204-7, for further examples. And see the decision of
the French Court of Appeal of Lyons in Re <:_orniotti, where it was held that "the [lower] Court
exceeded its powers in deciding that Zorniotti was Italian. Article 129 of the Ordinance of
O ctober 19, 1945, provides that judicial decisions should only state whether an individual is
French or not". The Court of Appeal held that Zorniotti was not a French national. (Recueil
General des Lois et des Arrets (Sirry) 1948, II, p. 29; Annual Digest, 1947, Case No. 40).
180. As to which see Flournoy-Hudson, op. cit., p. 208. Cf Schwelb in Prager Archiu fiir
Gmt~ebung und Rechtsprechung, 1926 pp. 625-30; id. in <:_eitschrift fiir Ostrecht, 1927, pp. 35-49.
181. See Flournoy-Hudson, p. 478.
182. Ibid., p. 46.
183. For a detailed exposition of the question of expatriation through naturalisation, see
Hyde, pp. 1143-69. On the question of the effect of foreign naturalisation and the status of
naturalised persons in the event of their return to the country of former nationality, cf also the
12H Limitations on Conferment and Withdrawal of Nationality

1n Roman law, the pri~cipl~s nemo potest .e~~ere patriam and s~el civis semper
civiJ applied. Loss of natiOnality by acquJSitiOn of a new natiOnality was
however, not en tirely unknown. Moreover, the Roman law of citizenship h '
to be understood in the light of the "one empire" doctrine of antiquity an~
. o f cltlzens
the specific conception .. h'Ip m
. R oman Iaw. ts4
Even more emphatically than in Roman law, the principle of th
inalienability of nationality has found expression in Anglo-Saxon commo~
law in the form of the doctrine of perp~tual an~ indelible allegiance.
According tq this doctrine, the natur~l allegiance which the subject owes to
his sovereign cannot be lost even with the assent of the sovereign.tss The
doctrine led to constant friction with countries of i~Tn~igr~tion, particularly
the United States, and was abandoned by Great Bntam with the enactment
upon recommendations made in 1869 in the "Report of the Royal
Commissioners appointed for inquiring into the Laws of Naturalisation and
Allegiance", 1116 of the Naturalisation ~ct of 1870. The British Nationality
and Status of Aliens Act, 1914, provided that voluntary acquisition of a
foreign nationality by a British subject when in a foreign State and not under
any disability, involves the loss of British nationality (s. 13).
The British Nationality Act, 1948, does not contain a corresponding
provision. Since 1949, foreign naturalisation no longer, therefore, causes
automatic loss of British nationality, but a citizen of the United Kingdom
and Colonies of full age and capacity who is a national of a foreign country,
may make a declaration of renunciation of citizenship; upon the registration
of the declaration by the Secretary of State such person ceases to be a citizen
of the United Kingdom and Colonies (s. 13). That provision marked a
change of policy. A number of States no longer consider prevention of dual
nationality as an aim of legislative policy.
It is, however, noteworthy, that the British Government, in a Green
Paper187 published in 1977, suggests to revert to the principle of automatic
loss of British nationality on voluntary acquisition of another nationality. 188
As a common law doctrine, the principle of permanent allegiance was also
part of the law of the United States, but was gradually abandoned. As early
as 1859 Attorney-General Black upheld in an Opinion the existence of the
right of expatriation. 189 In the same year Secretary of State Cass, in an
Instruction to the United States Minister to Prussia called naturalisation "a
'

statements made by the representatives of the Governments at the Madrid Conference on


Morocco: Meeting of June 21, 1880, Protocol No. 10 (Martens, N.R.G., II, vo.l. .6,
PP· 593 - 8), and the text adopted in Article 15 of the Convention of July 3, 1880 (zbzd.,
pp. 628-9).
184. See supra, p. 4; Fischer Williams, loc. cit., p. 49, n. 6.
185. GJ. Calvin's Case, 7 Co.Rep. 25a and 27b. Cockburn, Nationtllity, pp. 63-4.
186. Pari. papers, vol. XXV (1868-69), Appendix.
187. Cmnd. 6795, presented to Parliament by the Secretary of State for the Home
Department.
188. Para. 64.
189. 9 Op. of Att.-Gen., 356, 357, 365, 367.
Loss of 'Vationali9 129

new political birth" . 190 This principle was embodied in the statute book in
most solemn form by the Act of July 27, 1868, 191 which d eclared:
Whereas the right of expatriation is a natural and inherent right of all people, indispensable
to the enjoyment of the Rights of life, liberty and the pursuit of happiness... .
This statute applies to the naturalisation of aliens by the United States. The
Immigration and Nationality Act of 1952, folldwing section 2 of the Act of
Congress of March 2, 1907, provides conversely in section 349 (a) that a
national of the United States .
. . . shall lose his nationality ... by obtaining naturalisation in a foreign state, upon his own
application ....
Like Great Britain between 1870 and 1948, and the United States, a
number of other States recognise the automatic loss of their nationality by
foreign naturalisation. Nationality is lost upon the voluntary acquisition of
another nationality by persons resident abroad under the law of many
countries such as Australia, Austria (retention possible by special
authorisation), Belgium (renunciation required), Bolivia, Brazil, Burma,
Canada, Costa Rica, Cuba, Denmark, Ecuador, Eire, Finland, Germany,
Guatemala (subject to exceptions), Haiti, Honduras, Iceland, Italy, japan,
Mexico, Monaco, Nether1ands, Nicaragua (subject to exceptions), Norway,
Peru (subject to exceptions), the Republic of South Africa and Sweden.
Others make such loss dependent on the express consent of the State's
authorities, either by authorisation of the foreign naturalisation or by formal
release from the nationality (expatriation permit) : among these States are
France (in certain cases), Switzerland, Turkey and the Soviet Union.192
During the Hague Conference the opposing views of delegates on this
question, mainly as between those of the emigration and of immigration
countries, clashed sharply,193 and the Conference did not succeed in
embodying the principle of automatic loss of nationality by acquisition of
another nationality in international legislation. It was merely accepted as a
recommendation, 194 and even then with the reservation that, pending its
complete realisation, States should endeavour, before conferring their
nationality, to ascertain that the person concerned has fulfilled, or was in a
position to fulfil, the conditions required by the law ofhis country for the loss
of its nationality.

190. Senate Ex. Doc. 38, 36 Cong. 1st sess. 132; see Moore, Digest, vol. III, pp. 574-5. On
the right of expatriation in general cf. ibid., pp. 552-711, and Hackworth, vol. III,
pp. 161-207.
191. 15 Statutes 223, as re-enacted in 1999 Rev. Stat.
192. According to a study made by Sandifer in 1935, the laws of 43 countries provided at
that time for the unconditional loss of their nationality upon foreign naturalisation; according to
the laws of 24 countries, the consent of the authorities was required : see 29 A.J. (1935),
pp. 248 - 79.
193. Mirwus of the First Committee, pp. 68-85, 91-102.
194. Cf Final Act, para. A. V.
130 Limitations on Confemzent and Withdrawal of Nationality

The Convention con erning Certain Que ·tions relating to the Conflict of
Nationalit Laws it ·elf pro\'ide · in Artid 6, para. 2 :
Thi authori a tion [i.e. to rcnoun ·e nationality] m~ y not be r~f.'u scd ir~ the cas of a person
who has his habitual and principal residl'll e auroaci , rf the condrtrons lard down in the law of
the State , hose nationality he de ires to surrender are satisfied.
This pro ision is almost meaningless since it does not prevent States from
imposing whatever conditions they p~ease on the gra.ntm~ ?f authorisation,
by legislation. It was mainly the reference to and 1mphc1t recognition of
expatriation permits in Article 7 which p~evented the. U ni~ed States from
signing the Convention. 195 The ConventiOn. on. ~atlonahty adopted at
Montevideo in 1933, 196 on the other hand, wh1ch IS m force between Chile
Ecuador, Honduras, Mexico and Panama, provides in Article l : '
Naturalisation of an individual before the competent authorities of any of the signatory States
carries with it the loss of the nationality of origin.
The Inter-American Juridical Committee, meeting in 1952, considered
that renunciation of the nationality of origin should be a necessary
requirement for naturalisation. 197
Among decisions of international tribunals there may be cited the Salem
case (United States v. Egypt), 198 decided by a Special Arbitral Tribunal in
1932. Salem was a naturalised American citizen who had been born in
Egypt. The Egyptian Government disputed the jurisdiction of the Tribunal
on the ground that under the Turkish Law of 1869, which was in force in
Egypt at the time of Salem's naturalisation, the consent of the Egyptian
Government was necessary to his naturalisation, and that in the absence of
this consent he had never lost his Egyptian nationality. The subsequent
Egyptian Law was based on the same principle. It was held that:
The Turkish law which makes the acquisition of foreign nationality dependent on the
permission of the Government is internationally not to be objected to. Indeed it is generally
admitted that every person of age is entitled to choose his nationality. This rule, however, does
only mean that the State which he leaves cannot reclaim him from the State the nationality of
which he acquires, and that the State of origin shall not be entitled to contest the other State's
right to bestow nationality on an immigrant. But the above-mentioned principle does not
prevent the State of origin making by its nationality legislation the loss of its nationality
dependent on a special permission of its Govocnment, which means that it may treat the
emigrant again as its national as soon as he returns into its territory.
On the other hand the arbitral tribunal cannot admit that where such a return occurs the
State of origin be entitled by international law to maintain that its claim is more important in
justice than the claim of the new State.l99
The Egyptian plea failed, and the Tribunal assumed jurisdiction.

195. Cf Borchard in 32 A.J . ( 1938) , p. 126.


196. Hudson, International Legislation, vol. VI, p. 593.
197 · Cf Report on the Na tionality and Status of Stateless Persons, 1952, p. 4; Draft
Convention, Article 5.
_198. ll Revue de droit international ( 1933), pp. 760- 816; U.N. Reports, vol. II, p. 1161; Annual
Dtgest, 1931- 32, Case No. 98.
199. U.N. Reports, vol. II, p . 1187.
Loss qf Na tionality I3 I

In Apostolides v. Turkish Government,2 oo decided by the Franco-Turkish


Mixed Arbitral Tribunal in 1928, the respondent Government pleaded tha t
the claimant had not obta ined the previous authorisation of the Imperial
Turkish Government to his French naturalisation; tha t, according to
Article 5 of the Turkish Law of.January 19, 1869, the naturalisation had to
be considered as null and void ; that the claimant was still of Turkish
nationality ; and that the Tribunal had no jurisdiction. It was held that the
Tribunal had jurisdiction, and that
According to the principles of interna tiona l law, the effects of the naturalisation granted by
one State ought to be recognised not only by the authorities of that State, but also by the judicial
and administrative authorities of all other States. In the exceptional case where the laws of a
State require previous authorisation for the naturalisation of their subjects abroad it is only the
authorities of that State who are bound by an y effects of the failure by its national to comply
with the requirement of such authorisation. In the present case the Turkish authorities were
entitled to refuse to recognise the French naturalisation of the cla ima nt. But all other judicial
authorities, including the international tribunals, far from being bound in this matter by
Turkish municipal legislation, were under public international law under a duty to recognise
the validity of the naturalisation and to treat the claimant as a French subject.
The fact that States have on occasions withheld expatriation permits and
refused to recognise naturalisations granted without their authorisation was
bound to lead to conflicts between the States concerned. Disputes arose in
particular if such naturalised persons returned to their countries of origin,
where they were forced to perform military service or prosecuted for evading
their duty to perform military service. 201
A great number of Conventions, mainly but not only initiated by the
United States, have been concluded in order to remove the cause of conflicts
between the State of origin and that of naturalisation . The first of these
Naturalisation Conventions were those concluded between the United States
and certain German States. They are called Bancroft Treaties after
Mr. George Bancroft, United States Minister to Germany, who negotiated
them. These treaties are:
The Convention between the North-German Federation and the United
States concerning the nationality of immigrants and the extension of the
Convention on extradition: Berlin, February 22, 1868.202
The Convention between Bavaria and the United States, ofMay 26, 1868. 203
The Convention between the Grand Duchy ofBaden and the United States,
of July 19, 1868. 204

200. Recueil T.A .M., vol. VIII , p. 373; Annual Digest, 1927-28, Case No. 207.
201. See on this question and on the underlying difference in the conception of nationality,
the correspondence between France and the United States concerning military service of
Frenchmen naturalised in the United States, November 13, 1884, to D ecember, 1888 (Martens,
N.R .G ., II , vol. 16, pp. 618- 49) .
202. See Martens, N .R.G., vol. 19, p . 78; Flournoy-Hudson, p. 669.
203. See Flournoy-Hudson, p. 661.
204. Ibid. , p. 663.
132 Limitations on Conferment and Withdrawal of Nationality

The Convention between the Kingdom of Wiirttemberg and the United


States, of July 27, 1868. 205
The Convention between the Grand Duchy of Hesse and the United States
'
of August 1, 1868. 206
These Conventions are no longer in force, since the United States did not
make use of the right accorded to her after the First World War, by
the Treaty restoring friendly relations between the United States and
Germany,207 to give notice of their revival, failing which all bilateral treaties
between the United States and Germany were abrogated.
They were followed by many more treaties of the same character, such
as the Convention between Belgium and the United States of November
16, 1868,208 between Norway-Sweden and the United States of May
26, 1868,209 between Great Britain and the United States of May 13,
1870, and Supplementary Convention of February 23, 1871, 210 between
the Austro-Hungarian Empire and the United States of September 3,
1870,211 between Ecuador and the United States of May 6, 1872, 212 between
Sweden-Norway and Argentina of July 17, 1885,213 between Spain and
Colombia of April28, 1894, 214 between Haiti and the United States of
March 2, 1903,215 between Peru and the United States of October 15,
1907, 216 between Portugal and the United States of May 7, 1908,217 the
Treaty between Costa Rica, Guatemala, Honduras, Nicaragua and El
Salvador signed at Washington on February 7, 1923, 218 the Convention
between Bulgaria and the United States of November 23, 1923,219 and the
Convention between Czechoslovakia and the United States of July 16,
1928.220
These Treaties have in common that they contain mutual recognition of
naturalisations by the contracting Powers, which undertake to consider and
to treat former nationals who have been naturalised by the other party as

205. Ibid., p. 665.


206. Ibid., p. 666. Cf also Moore, Digest, vol. III, pp. 358-64.
207. U.S. Treaties, p. 2596.
208. See Flournoy-Hudson, p. 667.
209. Ibid., p. 667.
210. Ibid., p. 672; Br. and For. St. Papers, vol. 60, p. 36, vol. 61, p. 38.
211. See Flournoy-Hudson, pp. 670-1. Abrogated by the Treaties restoring Friendly
Relations between the United States and Austria and Hungary respectively of August 24 and
29, 1921; U.S. Treaties, pp. 2493, 2693.
212. See Martens, N.R .G., II, vol. I, p. 93.
213. See Flournoy-Hudson, p. 676.
214. Ibid., p. 679.
215. Ibid., p. 681.
216. Ibid., pp. 683-4.
217. Ibid., p. 684.
218. Ibid., p. 651.
219. Ibid., p. 698.
220. Ibid., P· 705. Cf further the correspondence between the Governments of France and the
United States concerning the United States military service of Frenchmen naturalised in the
United States (1884-88), referred to supra, n. 201.
Loss of Nationality 133

nationals of that party. They also contain, as a rule, provisions for a right of
renunciation of the new nationality on resumption of residence in the
country of origin, without the intention to return to the country of
naturalisation, and provisions as to liability for offences committed prior to
emigration, in particular failure to comply with obligations of military
service.
The Peace Treaties concluded after the First World War contain a general
clause for the recognition of naturalisations. The vanquished States
undertook to recognise any new nationality acquired by their nationals
under the laws of the Allied and Associated Powers and to regard such
persons as having, in consequence of the acquisition of such new nationality,
in all respects severed their allegiance to their country of origin.221
The European Convention on Reduction of Multiple Nationality and
Military Obligations in Cases of Multiple Nationality, 222 which will be
reviewed later, 223 provides for ipso facto loss of nationality by persons who of
their own free will acquire the nationality of another Contracting Party.
(Article l, para. l)
It is submitted that this consistent treaty practice has not remained
without influence on customary international law. While it is not sufficient to
establish the principle of automatic loss of nationality by acquisition of a new
nationality as a principle of international law, the practice has, it is believed,
restricted the right of States to refuse release from their nationality on
acquisition of a new nationality. In the opinion of the present writer, this
restriction by international customary law goes further than the obligation
imposed on the parties to the Convention on Certain Questions regarding
Conflicts of Nationality Laws by Article 6, para. 2, of that Convention.
Under present international law a State should not withhold discharge
from its nationality if:
(a) the acquisition of the new nationality is not inconsistent with
international law 224 and has been sought by the person concerned in good
faith;
(b) the person concerned has his ordinary residence abroad;
(c) he is of full age and not under a disability;
(d) the discharge would not result in failure to perform specific obligations
towards the State (national, military or civil service) to which the person was
liable at the time of the acquisition of the new nationality;
(e) the State is not at war. 225

221. Article 278 of the Treaty of Versailles; Article 230 of the Treaty of St. Germain;
Article 213 of the Treaty of Trianon; Article 58 of the Treaty of Neuilly.
222. European Tr.S. No. 95, U.N.T.S. vol. 634, p. 221; the text of the Convention is
reproduced in Appendix 6.
223. See infra p. 191-2.
224. See supra p. 101- 13.
225. Cf the dictum of Umpire Pa rker in the case of Richards v. Germany before the United
States-German Mixed Claims Commission : " While the American rule clearly recognises the
Limitations on Confenn nt and I I ithdrau al of . rationalitv
134
It is probabl y in thi . sense that the al~lrmation :n Article,~ 5 para. 2 of the
Uni\Trsal D eclaration of Huma n R1ght of 194.8 that .No one shall b
arbitrarily dcpriYed of hi nationalit nor denied th~ nght to chanoe his
nationality" (italics add ·d) must be und.erst.ood. ~u ch a n ? ht can onl y be aid
· t 1·f the State of former nationality 1:, b mternalional law, undrr an
t0 eXJS · 1' h'
obligation to discharge a national fr~m its. na.uona Jt y u~on 1. a~quisiti~n of
another nationality. Such a duty exiStS ~~~hm the d esc nbe~ ln~Jts provJd ·d
the acquisition of the new nationality IS m ac~ordance wilh mt~r~ational
law, and has taken place bona fide. 226 A.n y n~tlonal law. or a?mmJstrativc
practice prohibiting such change o~ natlonaht~ ?r d enymg discha rge from
nationality although the aforemen_twned ~ondmons have b een fulfill ed, is
irrelevant from the point of view ofmternatJonallaw and does not have to be
recognised by other States. This wa~ the opini.on of the int~rnational
tribunals in the Salem case and Apostolzdes v. Turkzsh Govemment· It has also
been taken by national courts 227 and is supported b y writers. 228

general right of expatriation, that right does not exist while the United States is at war." (See 20
A.J. (1926), pp. 599-681, at p. 601. )
226. The long-standing Turkish-American controversy over the recognition of United States
naturalisation was partly due to the fact that many Turkish nationals had acquired United
States citizenship mala fide, in order to evade their obligations towards the Ottoman Empire, and
with the intention of returning to Turkey. See Gordon in 25 A.J. (1931 ), pp. 658-69.
227. Cf People ex rei. Choulakian v. Mission of Immaculate Virgin (U .S. Supreme Court,
December 30, 1974, 14 Int. Law Reports p. 119), U.S. ex rei. Wrona v. Kamuth (U.S. Court for
the Western District, New York, April 6, 1936, Annual Digest, 1935-7, Case No. 132), N ijhikawa
v. Dulles (U.S. Supreme Court, March 31, 1958,26 Int. Law Reports p. 451 ). A Belgian court
referred specifically to the Universal Declaration: In re Pietras Civil Court of Courtrai, First
Chamber, November 11, 1951 (U.N. Yearbook of Human Rights, 1951 , p. 14.) .
228. Cf, for example, Zeballos, op. cit. , vol. I , pp. 234, 238; Schwarzenberger, A Manual of
Inter:rzatio?al Law, p. 54; cj. van Panhuys, p. 222, who regards the right to change o~e's
nat10nahty as a human right; Uibopoo "Das Recht des Einzelmenschen auf eme
Staatsangehorigkeit, Artikel 15 der Allgemeinen Erklarung der Menschenrechte " in A.W.R.
Bulletin vol. 16 ( 1978) pp. 35-4 1.
Chapter 11

Effect of Territorial Transfers on Nationality

A. Introduction

As its title shows, this chapter will deal with the effects on nationality of
territorial transfers, i.e., of changes of sovereignty over territory. There is, in
the author's view, a direct connection between positive rules of international
law providing for the conferment and withdrawal of nationality, and transfer
of territories. As nationality is in principle a matter of domestic jurisdiction,
there are no positive rules of international law governing conferment and
withdrawal of nationality where such conferment or withdrawal is, from the
outset, solely the concern of one State. The situation is different in the case of
territorial transfers: in this case the question of the nationality of the
inhabitants of the territory subject to the change of sovereignty becomes ipso
facto the concern of at least two States; it becomes a matter affected by the
rules of international law relating to the transfer of territories and ceases,
therefore, to be solely a matter of municipal law. 1
It has therefore to be investigated whether there exist any positive rules of
international law prescribing collective acquisition and loss of nationality in
case of territorial changes. It is evident from what has been said earlier that,
even if such rules were found to exist, they do not in principle have a direct
effect on the nationality of individuals, such nationality being solely
determined by municipal law. They only impose a duty on States to confer
or withdraw their nationality, failing which they commit a violation of
international law. Certain qualifications of this principle, resulting from
particular situations, will be mentioned in the text.
As it would be inexpedient to break up the subject of territorial changes, it
will be inevitable to refer in this Chapter to negative rules also, i.e., rules of
international law limiting the freedom of action of States in the field of
nationality in the case of territorial transfers, wherever such rules are found

I. See the Arbitral Award given by Dr. Merz between Germany and Lithuania of August 10,
1937 (Zeitschrift fuer auslaendisches oeffentliches Recht und Voelkerrecht, 1937, p. 908). "While in
individual cases the question of acquisition and loss of nationality is regulated freely by each
State, change of nationa lity in case of territorial transfers is determined by international law, in
particular by the rules established in connection with the transfer resulting therefrom."
Author's translation from the German. Cf also U.N. Reports, vol. III, pp. 1721-64, at p. 1752,
where a slightly different French version may be found.
Eifert of Territorial Tranifers on Nationality

to exist. !l 1n dealing- with tran ·fer of territory one m ay adopt what is believed
to be the accepted d trine. namely, tha t it i the o\·creignty over the
territor · which i · ·ubjec t t the transfer.
In order to cxamit;c the cflcct of transfer of territory on nationality a
distill ·tion has to be drawn between universal and partial State ucces ion.
uivcrsal succcs ion i · th rc. ult of total subjugation by annexation or
incorporation , partial succession the result of partial annexation, secession or
occupatio n f llo,..,in<T dereliction or cession of territory. In the case ofpartial
SlteCt'S ·i n som · writers make a di tinction between original and derivative
modes of acquisition. 3 0 colonisation may either be regarded as secession,
dismemberment or e en cession or as a special mode of State succession.4

B. Universal Succession

In the as of universal succession, the predecessor State is extinguished and


its nationality ceases to exist. All persons who were nationals of the
predecessor State cease to be such. It is possible therefore to speak here of a
direct effe t of international law on nationality. In fact, the general
principles oflaw and logic rather than any specific rule ofinternationallaw
lead to this conclusion: as nationality is a relationship between a State and
indi iduals, this relation ceases to exist as a result of the disappearance of one
of the parties-extinction by total annexation or incorporation in the case of
the State d eath in the case of the individual. The question whether the
predecessor State is, in fact, extinct is often difficult to determine. While
belligerent occupation does not entitle the occupant to annex the territory
and therefore to change the nationality of its inhabitants, he may do so by
subjugation after conquest (debellatio ) 5 To quote examples in recent history,
the occupation by Germany of Poland in 1939 and ofYugoslavia in 1940 was
occupatio bellica but the incorporation (" reunion ") of Austria in G ermany in
1938, in the view of the present writer, constituted annexation.
As to the question of the acquisition of the nationality of the successor
State, we may disregard as obsolete the feudal conception of transfer of
territory as a change of ownership over territory. According to this
conception change of nationality was automatic, as the subject or national
was part of the territory, glaebae adscriptus, and followed its fate.

2. The whole question is part and parcel of the problem of territorial changes, which has been
thoroughly explored by writers; in the literature many references to the effect of territorial
changes on nationality may be found. It will be sufficient here to refer to these works; and the
present Chapter, which deals with the problem exclusively from the aspect of public
international law relating to nationality, will be kept as short as possible.
3. Cf, for example, Hudson "Report on Nationality, including Statelessness" in Y.B.I.L.C.,
1952- 11, pp. 8- 9.
4. On the legal nature of d ecolonisation cJ. Zemanek "State Succession after Decolonisation"
in Hague Recueil, 1965- 1, pp. 187- 300; Bedjaoui considers it as a special type of state succession.
(Hague Recueil, 1970- 11, pp. 457- 585, esp. p. 489).
5. Cf Schwarzenberger, vol. I, p. 297.
Universal Succession 137

Whether we admit the theory of singular succession as defined by K eith in


his Theory of State Succession, 6 or the so-called replacement of sovereignty
theory of Schoenborn/ we cannot assume that th e nationality of the extinct
State is ipso facto replaced by that of the successor State. It is widely held,
however, that on a change of sovereignty over territory the persons affected
ipso facto change their nationality. Hans Jorg Jellinek, who has devoted a
book8 almost exclusively to this qu estion, comes to the conclusion that in
cases of genuine State succession change of nationality is automatic. 9 The
present writer cannot, for reasons which will be given presently, share this
view. As has been rightly pointed out, 10 there is a certain inconsistency in the
view of writers who simultaneously assert the existence of a rule of
international law to this effect and of a right of the persons affected to decline
the new nationality. In order to justify this contradiction it is said that the
nationals of the predecessor State who remained in the territory at the time
when the change of sovereignty took place have acquiesced in it. 11 The
conferment of the nationality of the successor State is construed as an offer of
collective naturalisation which requires acceptance.12 Many authorities
deny the existence of rules of international law regarding nationality in case
of state succession or the theory of automatic change of nationality. 13
The Harvard Law Research proposed in its Draft Convention a provision
reading:
When the entire territory of a State is acquired by another State, those persons who were
nationals of the first State become nationals of the successor State, unless in accordance with the
provisions of its law they decline the nationality of the successor State. (Article 18, para. 1.)

In the Comment it is stated:


This article is believed to express a rule of international law which is generally recognised,
although there might be differences of opinion with regard to its application under particular
conditions. The cases of collective naturalisation provided for in this article are the only cases in
which international law, without an applicable provision in the municipal law of the State,
declares that a person has the nationality of the State. It might be said that international law

6. Passim. Cf also Oppenheim, vol. I, p. 158.


7. See "Staatensukzessionen," in 2 Handbuch des Voelkerrechts (1913), Part 5.
8. Der Automatische Erwerb und Verlust der Staatsangehoerigkeit durch Voelkerrechtliche Vorgaenge
( 1951 ). •
9. Cf also Brownlie in 39 B. Y. at pp. 324-5, Mann, "Studies in International Law", ( 1973),
p. 520.
10. By Graupner, "Nationality and State Succession", in Grotius Transactions, vol. 32 (1946),
pp. 87-120, at p. 90.
II. The so-called acquiescence theory: cf Halleck, International Law, 1st ed. (1861), p. 816,
similarly 4th ed. ( 1908), vol. II, pp. 509- 10; Westlake, International Law, vol. I, p. 70, and
Collected Papers, p. 987.
12. Cf the United States reply to the questionnaire drawn up by the Preparatory Committee
for the Hague Codification Conference (Bases qf Discussion, p. 146).
13. Spiropoulos in Y.B.I.L.C., 1953- 1, p. 209, O'Connell, "The Law of State Succession"
(1956), p. 245, Gettys in 21 A.J. (1927), pp. 268-278, Moore Digest, vol. III, p. 312, Graupner
I.e., Berber, "VOlkerrecht", 2nd ed. ( 1975), vol. I, p. 269, Verdross, "Viilkerrecht", 5th ed. ( 1964),
pp. 256-7.
138 Effect of Territorial Transfers on Nationality

assumes th at the successor State confers


. its nationality
. upon the nationals
. 14
of the predecessor
State residing in the annexed tcrntory at the ume of the annexatlon ... .
It remains to be seen whether the alleged rule has any basis in positive law
and whether it is borne out by the practice of States and judicial decisions.
As in the case of universal succession the predecessor State is extinguished, it
is not surprising that treaties regulating the question of.nationality are rare.
An interesting illustration in the form of a multilateral. convention,
legislating for potential rather than for actual transfers ?f terntory, may be
found in Article 13 of the Annex to the ConventiOn of Havana of
February 20, 1928 (the so-called Bustamente Code). 15 Article 13 provides:
In collective naturalisations, in case of the independence of a State, the law of the acquiring
or new State shall apply, if it has established in the territory an effective sovereignty which has
been recognised by the State trying the issue, and in the absence thereof that of the old State, all
without prejudice to the contractual stipulations between the two interested States, which shall
always have preference.
It will be noted that this Article-in conformity with the character of the
Code as a codification of rules of conflict of laws-provides which shall be
the governing law rather than whether the nationality of the successor State
is to be acquired or not. This problem does not exist in the case of extinction
of a State. It is noteworthy that the term collective naturalisation is used in
this connection.
Examples of treaties relating to universal succession may be found in the
Peace Treaties of St. Germain and Trianon, concluded after the
dismemberment of the Austro-Hungarian Monarchy. Both Treaties
provided that:
... every person possessing rights of citizenship (pertinro.{a )in territory which formed part of the
territories of the former Austro-Hungarian Monarchy shall obtain ipso facto to the exclusion of
Austrian (Hungarian) nationality the nationality of the State exercising sovereignty over such
terri tory .18
Both Treaties allowed for a right of option by the persons affected "for the
nationality of the State in which they possessed rights of citizenship before
acquiring such rights in the territory transferred" .17 Acquisition of the
nationality of the successor State was therefore, in this case, not entirely
automatic, but conditional on the possession of rights of citizenship, though
it is admitted that in the case of dismemberment the establishment of a
specific link with a particular successor State is indispensable. The link
chosen led to the fact that the new nationality was conferred on the majority,
though not on all, of the inhabitants of the transferred territory, and also on
persons who were outside the territory at the time of the transfer.
As to the practice of States, many examples can be quoted where the

14. 23 A.J . (1929), Special Suppl., p. 61.


15. Flournoy-Hudson, p. 654.
16. Article 70 of the Treaty of St. Germain; Article 61 of the Treaty of Trianon.
17. Articles 78 and 63 respectively. Cf Gettys, "The Effect of Changes of Sovereignty on
Nationality", in 21 A.J . (1927), pp. 268- 78.
Universal Succession 139

successor State conferred its nationality without exception on the former


nationa ls of the extinguished predecessor State. However, there exist other
instances where nationality was conferred only on those nationals of the
predecessor State who resided in the territory at the time of the transfer. This
is stated to be the practice of the United States.l8 Even there the practice
docs not seem to be uniform, as is shown by the annexation ofHawaii by the
United States, when "all persons who were citizens of the Republic of
Hawaii" acquired United States citizenship by Act ofCongress, 19 regardless
of their residence.20
As to Great Britain, Dicey d eclares the rule to be that
. .. on the acquisition of territory by the Crown, whether by annexation or cession, all persons
nationals of the annexed or cessionary State, resident in the territory annexed or ceded, become
British subjects unless another provision is made in the instrument of annexation or cession, or is
t'nactcd by the Crown, 21 and that on annexation by a foreign State British subjects resident in
the territory become aliens, so far as provision regarding their nationality is not made by
treaty. 22
There is ample authority for that rule in the judicial decisions cited by Dicey.
The Law Officers of the Crown stated repeatedly, in connection with the
annexation of Burma in 1886 and the annexations resulting from the Boer
War in 1900, that the nationals of the conquered State became British
subjects. 23 No distinction existed, it was said, between naturalised and
natural-born citizens of the conquered State, but it was qeclafed
" reasonable and in accordance with international usage" to grant such
naturalised citizens of the conquered State as retained their origil)al
nationality a right to decline the nationality of the annexing State. 24
While it has been well established in common law, at least since Campbell
v. Hal/, 25 that the inhabitants of territory acquired by conquest acquire
British nationality, it seems also to be established by later decisions that this
rule does not automatically apply to non-residents or to inhabitants who left
the territory prior to the transfer. 26 The matter has been decided principally

18. See Moore, Digest, vol. III, pp. 311 et seq.; Oppenheim, vol. I, p. 523; Halleck, op. cit.,
vol. II, p. 510. Cf also Boyd v. Nebraska ex rei. Thayer (1892) 143 U.S. 135, and the cases there
cited. And see Opinions of Attorneys-General of the United States, 26 Op. 376, 380, 525, 536.
19. Act of April30, 1900; 31 Stat. 141.
20. In an Opinion given in 1871 , Akerman, the United States Attorney-General, on the
annexation of Texas-one of the few instances of annexation by treaty-advised that all
persons who were citizens of Texas at the date of annexation became citizens of the United
States (13 Op. 397; Moore, Digest, vol. III, p. 314).
21. Dicey, rule 26, p. !59.
22. Ibid., rule 38, p. 173.
23. L.O.R. 1897, No. 33, pp. 104, 105; L.O.R. (Col.Off.) 1900, No. 100, pp. 19-22, 18 A,
pp. 42-4; (F.O.) No. 21, pp. 49, 50; 1901 (F.O.) No.8, pp. 21, 22.
24. L.O.R. (F.O.), 1901, No.8.
25. ( 1774) 20 State Trials 323, I Cowp. 204.
26. This has been stated to be the "general view ofH.M. Government " in a despatch of the
Foreign Office to Marquis Imperiali of October 28, 1912 (F.O . 370/54), quoted in 5 B.D.I.L.,
p. 165.
140 Effect of T erritorial 'rrwq fiu.\ rm Natiurwlity

in connection with the a nnexation of th r South Aff'i ·a11 t trri torir~ ill
consequ ence of the Boer We:.~r:
27
. . • • .
As to sta tutory law, the Hnllsh Natiottahty and ~talus of AlltWI I\tt, l!li !J,
defined as a British subject, inter alia, "a ptrson who has become a ~o~ul 1 j 1 • ·t qf'
His Majesty by reason of a n annexati?n ?ftenitury" ,(Arti ·lc '27, s: .1). Llntl,t
British Na tionality Act, 1948, power Is gtven tu th · Grown to spcr lfy j 11 cww~o~
of incorporation of territ~)ry, by Ord er. in c:ou ncil , the pcr~ons.whu shaiiiH·
citizens of th e United Kmgrlom and Colontc:; by r ·ason ul th ·1r conJH·ctiiJII
with that territory, and those persons shall be citizens of' the Unill:d
Kingdom and Colonies as from a dat: .specifi ed in th e Ord er (s. 2 I ). It would
seem that the Act has merely codtftcd wh at has he ·n the cornrr1o11 law
doctrine, but it is obvious from its wording that acquisition of uationality is
not considered to take place automatically, in con seq ucn ·' ul' the transf ·n,f
territory but that it requires legislative action. Consequ ently, Parry's British
.Nationaliry, which constitutes a supplement tn the sixth edition of Dkcy' 11
work and replaces that part of it d ealing with British nationality, no lo11g -r
contains any rules corresponding to Dicey's rules 2G and 33 I(Jr th · time after
J anuary I, 1949, when the British Nationa lity Act, 191-B, ·amc into f(m; .. 27;,
There does not appear to be a ny unifcn·m State prac tice in th · Uuitt~d
Kingdom as to the exact delimita tion of the lorm ·r subjects of the
predecessor State who acquire the nationality of the successor Stat·, though
residence in the transferred terri tory seems to be regard ed as essential. In
connection with the annexation of the South African territories iu 1900, it
was stated by the Foreign Office in a circula r letter of .January 9, 190 I:
H.M . Government arc advised that tht· cflcct of' tlwsc anucxation~ is tu corder tlw ~tatus of
British subjects upon such persons as were either· (a) natura l-born or (b) actually wi1hin the
limits of the territories annexed at the time of the publicat ion of the Proclamation~ . H.M.

~7 . Gj. th~ cases cited by Craupntr in L.Q.R., 1945, pp. )(j J- 78, at pp. 164, IG5, alth.ough
Ke1.t~ (op . .czl., pp. 47, 48) d<.)CS not find them convincing. The Law Officer~ dccla~·cd, ":' ar:
Opnnon g•ven to the Colorual Office on the question of the cflcct or
the iiiHH'X tlliOII ol the
Orange Free State on the status of its citi:tcns: "The transfi·r of nationality ough t not tu he
imposed on inhabitants who arc not within the Statt·, uuks~ tiH'y rt'tu rn to it alic·rwardx."
(L.O.R. (Coi.OIT.), 1900, No. IAA, p. 44.)
27a .. The question of the automatic acquisi tion of the nationality of the succc~~or State a.r~sc
als~ ahe.r the establishment of the Sta te of Israel 0 11 a part of the territory of Pakstine. 1he
nauonahty. ofth.e inhabitants of the territ ory forming the State of lsrad haM since hccn rc~ula~cd
by the Nallonahty Law of 1952. Prior to this enactment, the courts seem to havl' taken ddf~·r~nl(
v~~ws. T.he Supreme Court of Israel held in f/u.rsein v. JnsfJector of Prisons tha t Palcst.nmn
Citizenship ceased to exist, in the territory of lsrat:l and in the other parts of the for~cr
mandated territory of Palestine, after the: establishment of the Sta tc of Israel and the anncxa!•on
o~th~ other parts to ne~ghbouri.ng States (Piskei JJin , vol. 6 (1952), p. 8~7. ~t P· .90 l): fh~
Dlstnct Court of Tel-~v1~ hel?: 111 Estate of Shifris, tha t in the absence of a NatJonalrty ~.~w ~
Israel, .~ former Palesttman Citizen who died in 1950 was to be regarded as statck ss (l e.rakrc
M~h~<.ttm, vol. 3 ( 1950- 51), P· 222). However, the same court in A. B. v. M. 8 ., cxprcs~c'd thf
optmon th ~ t th e 111 · . b'11 a nl~ n3
· ha b'Jtants. of the form er mandated territory ' who were also the mha
~~~;Oe~ii ll1de~endent State, bcc~me ipso facto national~ of th~t State (Pesakim Meho;,ii~, ~~~fl2
and T h ), p. 63 • at P· 271 ). (Cllcd from Ro!!ennc, "The Israel Na tionality La.w, :.>? l:.l
e Law of Return, 5710- 1950", in Clunet, 1954, pp. 2- 63, at p. 3.)
Universal Succession 141

Government do not, however, claim to impose the status of British subjects on persons belonging
to either of the abovementioned categories who were not within the limits of these territories at
the time of an nexation , unless th ey subsequently re turn thereto or voluntaril y claim the status of
British subjects, by virtue of the annexation. 2s
Field Marshal Lord Roberts' Proclamation ofSeptember 1, 1900, declaring
to be British subjects burghers of the Orange Free State resident there,
excluded "those burghers who were attached to some Commando prior to
the annexation and who have continuously since then been in arms against
Her Majesty". 29
In France, the question has been regulated in the Nationality Law itself.
Article 11 of the French Nationality Code of 1973 provides:
Les effets sur Ia nationalite fran<yaise des annexions et cessions de territoires sont reglees par les
dispositions qui suivent, a defaut de stipulations conventionelles.
and Article 12 reads:
Les nationaux de l'Etat cedant, domicilies dans lcs territoires annexes au jour du transfert de
Ia souverainete acquierent Ia nationalite fran<yaise, a moins qu'ils n'etablissent effectivement
leur domicile hors de ces territoires. Sous Ia meme reserve, les nationaux fran<yais, domicilies
dans les territoires cedes au jour du transfert de Ia souverainete perdent cette nationalite.
The effects of the accession to independence of former French depart-
ments or overseas territoi:ies is regulated by special provisions. (Article 13
and title VII )30
There have, however, been cases of annexation or incorporation in which
nationality was not conferred on all the inhabitants of the transferred
territory. Without going into the question of the legal nature of the transfer,
the de facto changes of sovereignty after the Second World War may be
mentioned, when certain territories belonging to Germany or annexed by
Germany during the war came under the control of other States. Far from
conferring their nationality on all the inhabitants of these territories, the
occupying States resorted, in fact, to the eviction to Germany of persons of
German ethnic origin, a practice which · was sanctioned by the Postdam
Agreement.
As to decisions of international tribunals, the Egyptian Mixed Court of
Appeal has held in two cases 31 that even nationals of the predecessor State
who were not present in the territory at the time of the transfer acquired the
nationality of the successor State automatically, by the operation of
international law. In Agapios v. Sanitary and Quarantine Council of Egypt, 32 the
same court held, on the question of the nationality of a former Ottoman
subject from Cyprus residing abroad, that the Order in Council of 1914

28. F.O .R. 2, vol. 681.


29. F.O.R. 2, vol. 980.
30. See infra p. 154.
31. Pini v. Pini (Gazette des Tribunaux Mixtes d'Egypte, 1926, p. 161; Annual Digest, 1925-26,
Case No. 196); and Romano v. Comma (Gazette des Trihunaux Mixtes, 1926, p. 158; Annual Digest,
1925-26, Case No. 195).
32. Gazette des Trihunaux Mixtes, 1920, p. 49; Annual Digest, 1919-.22, Case No. 136.
142 Effect of Territorial Transfers on Nationality

which declared Cyprus annexed to Great Britain did not r:nder all persons
born in Cyprus ipso facto British subjec~s. 33 Ottom~ns b~r.n m t~e island but
residing elsewhere from 1914 to 1919 d1d not acqmre Bnti~h nationality, but
remained Ottomans.
In Peinitsch v. German State and Others, the German-Yugoslav Mixed
Arbitral Tribunal stated:
It is a rule of international law that when a territory passes to a new sovereign it must in case
of doubt be assumed that those inhabitants of the territory in question who are not domiciled
(domicilies) there do not acquire the new nationality.34
The Case of Count Platen-Hallermund, decided by the Supreme Court of
Prussia in 1868, which is frequently cited by writers, seems to support the
opposite view.35 The accused, a former. Hanoverian subject, had left
Hanover with his King before the annexatiOn of Hanover by Prussia. The
court held that he had become a Prussian subject by virtue of the annexation,
and he was convicted of high treason. As is suggested by Graupner,ss too
much reliance has probably been placed on this decision by publicists.
The United States Court of Claims held, in Brown v. United States, 37 that
a national of Hanover had become a Prussian national by the annexation of
Hanover, even though he was domiciled in the United States at the time of
the transfer. After Austria was incorporated into Germany in 1938, the
United States Court of Appeals of the Second Circuit held, on the other
hand, in United States ex rel. Paul Schwarzkopf v. Uhl, District Director of
lmmigration, 38 that an Austrian national who was resident in the United
States at the time of the incorporation of Austria into Germany was not a
German national, and his application for a writ of habeas corpus against his
detention as an enemy alien was granted. On the question of the relationship
of municipal law and international law in questions of nationality law, the
language of the court is significant:
It would be a strange judgment for aU nited States court to find that the relator was a German
citizen when the German Government had on at least two occasions repudiated the relation.
Each country determines for itself who are its nationals, subject to certain limitations on
expansive claims to nationality imposed by international law.ae
In the cases of United States ex rel. Reichel v. Carusi,4o in which relator was

33. In Gout and anotlur v. Gimitian ( 1922), I A.C. 105, the Privy Council held on October 18-
Nove~ber 17? 1921 that an Ottoman subject present in Cyprus on November 5, 1914 and ~ho
remamed until October 1915 was a British subject according to the relevant Orders in Council (4
B.I.L.C., p. 246).
34. 2 Recueil T.A .M. (1923), p. 610, at p. 621; Annual Digest, 1923-24, Case No. 121.
35. See Oppenheim, vol. I, p. 572, n. 3.
36. Loc. cit., p. 88, n. 1.
37. (1869) 5 U .S.Ct.Cls. 521.
38. (1943) 1~7. F. 2d 898; Annual Digest, 1943-45, Case No. 54. .
39· That deciSion was followed by the same court in 1943 in United States ex rei. D'Esquwa v.
Uhl: 137 F. 2nd 903; Annual Digest 1943-45 Case No 8
40 D · · ' · ' . . .
· e~Ided by the Umted States C1rcuit Court of Appeals 3rd Circuit; 157 F. 2nd 732,
Annual Dzgest, 1946, Case No. 49. '
Universal Succession 143

originally of Czechoslovak nationality and was resident in the United States


at the time of the transfer of the Sudeten territories to G ermany, and United
States ex rei. Zeller v. Watkins, 41 which concerned a former citizen of Danzig
who resided in the United States at the time of the annexation of Danzig by
Germany, it was held that the relators were enemy aliens on the ground that
they had elected for German nationality; in view of this attitude of the
persons concerned, it was immaterial whether the territorial transfers in
qu estion had been recognised by the United States. These cases show the
importance which courts of the United States attach to the will of the
individual, to the right of election, in questions ofnationality, particularly in
connection with a change of sovereignty.42
.. In contradistinction to the American decisions relating to the annexation
of Austria by Germany, an English court held in 1944, in The King v. The
Home Secretary, ex p. L. and Another, 43 that a former Austrian national who was
detained by Great Britain during the war as an enemy alien was not entitled
to a writ of habeas corpus but in this case it was conceded that the applicants
were enemy aliens at the outbreak of the war. Similarly, in Matter of
Mangold's Patent, 44 an Austrian national was refused the extension of a patent
on the ground that he had become an enemy national. Both these decisions
have been subjected to criticism. 45
There is unanimity in practice and in theory that the change of
sovereignty does not affect residents of the transferred territory who have
another nationality than that of the predecessor State, in other words, alien
residents. Masson v. Mexico, 46 decided by the United States-Mexican Claims
Commission in 1876, is usually cited as the leading caseY Similarly, in
connection with the annexation of the Orange Free State and the South
African Republic, the Law Officers of the Crown have stated:
... the burghers and citizens of these two territories, as well as any foreigners resident in them who do
not claim to be nationals of some civilised foreign Power [italics added} and their children will become
British subjects. This is one of the effects of acquisition of territory by conquest. 48
The French Cour de Cassation held in re Woif49 that a cession of territory
resulting from a treaty of peace does not automatically have any influence,
according to the principles of international law, on the nationality of subjects
of a third State.
To sum up, it may be said that there is no rule of international law under

41. Decided by the United States Circuit Court of Appeals, 2nd Circuit; 167 F. 2nd 279;
Annual Digest, 1948, Case No. 51 .
42. See infra, pp. 156-60.
43. [1945) 1 K.B. 7; Annual Digest, 1943-45, Case No. 59.
44. (1951) R.P.C. I; 18 Int. Law Reports p. 214.
45. Cf 23 B.Y. (1946) pp. 378-81, 28 ibid. (1951), pp. 406-7 and Lauterpacht, "The
Nationality of Denationalised Persons", in Jewish Yearbook of International Law, 1948, p. 164.
46. Moore, Arb., p . 2542.
47. Cf also Contzen v. United States, 33 Ct.Cis. 475; (1900) 179 U .S. 191.
48. L.O.R. (Col.Off.) 1900- No. 10 pp. 21-22.
49. Recueil Sirry-Jurisprudence 1952-1, pp. 84-85.
144 Effect of Territorial Transfers on Nationality

which the nationals of the predecessor State acquire the nationality of the
successor State. International law cannot have such a direct effect, and the
practice of States does not bear out the contention that this is inevitably the
result of the change of sovereignty. As a rule, however, States have conferred
their nationality on the former nationals of the predecessor State, and in this
regard one may say that there is, in t~e absence of statu~o.ry provisions of
municipal law, a presumption ofinternat10nallaw that mumc1pallaw has this
effect. 50
As to the question of the effect of such conferment on non-residents, it has
been asserted that the successor State may confer its nationality on such
persons also, as it assumes personal jurisdiction over them. 51 The question
whether such assumption of personal jurisdiction is possible is, however,
largely theoretical. As by the extinction ofthe predecessor State its nationals
become stateless, the successor State may, subject to acquiescence by the
State which exercises territorial jurisdiction over them, 52 confer its
nationality on them, if they reside outside the transferred territory, unless it
is held that such imposition of nationality requires-under a rule of
international law-the consent of the individual concerned.5 3
The Convention on the Reduction of Statelessness imposes on the
Contracting States the obligation to include or, in the case of treaties with
non-Contracting States, to endeavour to include, in every treaty providing
for the transfer of territory provisions designed to ensure that no person
shall become stateless as a result of the transfer. In the absence of such
provisions the Contracting State to which the territory is transferred or
which otherwise acquires territory shall confer its nationality on such persons
as would otherwise become stateless as a result of the change of sovereignty.
(Article 10)

C. Partial Succession

1. In General

As has been indicated above, a distinction can be drawn between original


an? derivative modes of acquisition of territory, but this distinction is not
umversally accepted. It is oflittle influence on the question of the nationality
of t.he i~habi~ants, and the question of the effect of partial succession on
nationality will, therefore, be treated as a whole. Differences arising in the
cases of cession of territory and of decolonisation will be referred to specially.
Most of the principles referred to in connection with universal succession
ap~l~, mutatis mutand~s, to the effects of partial succession on nationality.
This Is, however, subject to two qualifications: (a) questions of nationality

50. Cf Harvard Law Research; see supra, pp. 137-8.


51. By Schoenborn; op. cit., p. 36 and passim.
52. See supra, p. 101.
53. Cf supra, p. I L3.
Partial Succession 145

will, in cases of partial succession, more frequently be regulated by treaty;


and (b) since the predecessor State continues to exist, two nationalities, the
nationality of the pred ecessor and that of the successor State, are involved.
There thus arises not only the question of acquisition of the new nationality,
but also that of the loss of the old nationality. 5 4
The Draft Convention of the Harvard Law Research contains the
following provision on nationality in cases of partial succession:
When a part of the territory of a State is acquired by another State or becomes the territory of
a new State, the nationals of the first State who continue their habitual residence in such
territory lose the nationality of that State and become nationals of the successor State, in the
absence of treaty provisions to the contrary, unless in accordance with the law of the successor
State they decline the nationality thereof. (Article 18, para. 2.)
As in all other cases, the effect of the succession on nationality depends upon
the municipal law of the States affected by the transfer of territory. Where
the transfer is based on treaty, the treaty frequently regulates also the
question of the nationality of the persons attached to the transferred
territory, or the question of their nationality may be regulated in a separate
treaty. Obviously such treaties affect the nationality of the persons
concerned only in so far as the treaty becomes part of the municipal law of
the State whose nationality is to be lost or acquired, either according to the
constitutional procedure of the country concerned or by legislative measures
based on the treaty. Where such municipal law of a State party to the treaty
is inconsistent with the provisions ofthe treaty, this is, of course, a violation of
internationallaw.ss
Th~t part ofthe rule of the Harvard Law Research which provides for the
acquisition of the nationality of the successor State corresponds to the rule in
the first paragraph relating to universal succession, which has been quoted
earlier. 56 It is subject to the same qualification which has been made in
connection with universal succession: the acquisition of the nationality of the
successor State is not automatic, but depends on the municipal law of that
State. In the absence of statutory provisions to the contrary, the municipal
law of the successor State is presumed to provide for the acquisition of its
nationality.
As, in the case of partial succession, not all nationals of the predecessor
State are affected, a qualifying link is required, and this is found in habitual

54. It was rightly stated in a letter by Sir (then Mr.) Francis Bertie, Assistant Under
Secretary of State, to the Law Officers req uesting an opinion on the question of the nationality
of naturalised burghers of the Orange Free State of German origin after annexation of that
territory by the Crown: "The radical difference between cases of partial and of entire
annexation is that, where a part only of a State is annexed, the old nationality survives and it
becomes necessary to consider what classes of the persons who were before the annexation
invested with that nationality become invested after the event with the nationality of the
annexing State". (L.O.R. (F.O .) 1901- No. 8, p. 21.)
55. For examples of such treaty violations see Graupner, ''Statelessness as a Consequence of the
Change of Sovereignty over Territory after the last War", in The Problem of Statelessness,
pp. 27- 40. See also Bentwich in 21 B.Y. (1944), pp. 171- 6, at p. 174.
56. See supra, p. 137.
146 Effect of Territorial Transfers on Nationality
residence in the transferred territory. This would seem to be a sound rule. In
the absence of treaty regulations the successor State may confer its
nationality on such nationals of the predecessor State as come under its
territorial supremacy, i.e., on those physically present on the territory at the
time of the transfer. It seems reasonable, however, to exclude persons who
happen to be in the territory accidentally or temporarily, and to restrict the
rule to habitual residents, namely, those usually called the inhabitants of the
territory, it being understood that physical presence at the material time is
essential.
After Great Britain had recognised the independence of the United States
of America in 1782', there was a striking accord between the decisions of
English and American courts as to the effects of this change on the
nationality of the inhabitants. In Doe d. Thomas v. Acklam, 57 it was
established that a British subject domiciled in a territory which had ceased to
be under British sovereignty ceased to be a British subject unless he
transferred his domicile to a territory which remained British within the
time-limit fixed for that purpose by treaty, or immediately if no such time-
limit was fixed. 58 This was also the rule laid down by the American courts,s9
although there is a difference between the English and American decisions as
to the date of the change of nationality, the former declaring that it was the
date of the Treaty ofPeace, September 3, 1793, the latter that it was the date
of the Declaration of Independence, July 4, 1776.
The cases of Doe v. Acklam and Doe v. Mulcaster were cited in the more
recent and widely discussed case of Murray v. Parkes, 60 a test case on the
question whether citizens of Eire living in the United Kingdom were liable,
as British subjects, to be called up for military service. It was held that, even
on the assumption that there had been a complete separation of Eire from
the British Commonwealth, the appellant would not have ceased to be a
British subject because he was resident in England.61 Humphreys J., who
concurred in this judgment, stated:
The word "inhabitants" in this connection must receive its ordinary meaning, namely the
people residing in the territory lost to the Crown . ... He was not and is not an inhabitant of
Eire··· The question of his domicile is quite irrelevant to the consideration of his nationality.62
Residence, not domicile, was therefore held to be the decisive test for the
question of change of nationality.sa

57. (1824) 2 B. & C. 779, 4 B.I.L.C. p. 353.


58. Followed in Doe d. Auchmu~ v. Mulcaster ( 1826) 5 B. & C. 771, Doe d. Stansbury v. Arkwright
(1833) 5 C. & P. 575. Re Bruce (1832) L.C.J. 736; 4 B.I.L.C. p. 368.
59. American Insurance Company v. Canter (1828) I Peters 511 542· Shanks v. DuPont (1830)
3 Peters 242; Inglis v. Sailors' Snug Harbour ( 1830) 3 Peters 99; Minor v.' Happersett ( 1874) 21 Wall.
162; Boyd v. Nebraska, ex. ret. Thayer (1892) 143 U .S. 135.
60. [1942] 2 K.B. 123; [1942] 1 All E.R. 558.
61. Per Viscount Ca1decote C.J., at pp. 129-31· or for that matter in Scotland: Faulkner v.
Hill (1942), j.C. 20. ' ' '
62. At P· 13~; also Bicknell v. Brosnan (1953), 2 QB. 77, 20 Int. Law Reports, p. 286.
63 · Cf on this case Mann in 5 M.L.R . (1942), pp. 218-24, Graupner in 61 L.QR. (1945),
pp. 161-78; and 21 B.Y. (1944), pp. 219-21.
Partial Succession 147

The delimita tion of the persons subjected to the change of nationality, as


formulated by the Harvard Law Research, comes very close to the conception
of Hall, who speaks (in connection with conquest) of "such subjects of a
partially conquered State as are identified with the conquered territory at
the time when the conquest is definitely effected". 64 The rule that the persons
concerned lose the nationality of the predecessor State requires closer
examination from the point of view of international law. It is subject to the
general objection, which has been raised before, that it is not by
internationa] law but only by municipal law that nationality can be
conferred or withdrawn. But is there a rule of international law which
imposes an obligation on the predecessor State to withdraw its nationality?
Writers on the subject have referred to the practice of States and to
judicial decisions in order to uphold such a rule. To assess these sources
rightly, the nature of the transfer must, however, be taken into account. The
practice of States in this matter, and the decisions of municipal courts, will
depend on whether the State concerned recognises the transfer as such.
Where the transfer has taken place in accordance with international law,
i.e. , where the successor State has a valid title to the territory, it is incumbent
on the predecessor State to recognise the transfer. Third States, in their
attitude to the question of the effects of a change of sovereignty on
nationality, will obviously also be guided by their recognition or non-
recognition of the territorial change. Does it follow, therefore, that, in the
absence of an obligation specifically undertaken by treaty, the predecessor
State is bound by international law to withdraw its nationality from the
inhabitants of the transferred territory? In the opinion of the present writer,
the predecessor State is so bound. With the loss of sovereignty, personal and
territorial supremacy over the inhabitants of the transferred territory has
ceased. In so far as the successor State confers its nationality on the
inhabitants, then the predecessor State, by not withdrawing its nationality
from them, is in the same position as a State which confers its nationality on
foreign nationals outside its territory. Such action, affecting persons outside
the territorial jurisdiction, purports to have extraterritorial effect; and in
order to have such effect the consent of the State of residence which has
territorial supremacy is required. It amounts, at the same time, to an
infringement of the personal supremacy of the State of nationality. By
conferring its nationality on the inhabitants, both territorial and personal
supremacy are vested in the successor State. The latter would not suffer, and
is by international law under no obligation to suffer, such infringement of its
sovereignty-which embraces the right to protect its new nationals abroad,
wherever they may be, including the territory of the predecessor State.65
In this sense one may speak of a positive rule of international law on
nationality to the effect that, under international law and provided the

64. International Law, 8th ed. (1924), p. 685.


65. This view has been taken by Hudson as Rapporteur of the International Law
Commission (I.e. p. II) .
14·H FJJect r!f T erritnrial 'fron.ifi'rs on .NtLtionfllity

territorial transfer is has ·don a va lid title, tlw pr ·dec ·ssnr Stat· i:o; uudn an
obliga tiou vis-a-vi.1• th ·successor State'.(~ withdra w. its raatiou:dity .frtm 1 riH;
iuhahita nts of the transfcrr ·u territory rf I bey acqurrc the na tronall ty of the
successor Stat ' . In th ·absence of ·xplicit provisions of' muni ·ipal la w th<·r.
exists a presu mption of iuternational law tha t the mu11i ·ipal la w of rh .
prcclcccssor Sta te has this ·ffcc t. 611 • •
Where, however, the predecessor State docs not rccognrsc the transfer
he ·ausc it was inconsisteut with international law, no such du ty to withdraw
its nationality ·xists. Double nationality may be the result. This view is
supported by the practice of States and by judicial d ecisions, e.g., in the
United Kingdom hy the d ecision in Mayor rif Lyons v. East India Co.67 a nd the
cases cited above, 68 in the United States by the case of American Insurance
Company v. Cante~ 9 and later cases, particularly Boyd v. Nebraska ex rei.
Thayer.1o It is clear, however, that decisions of municipal courts which refer
to a particular case of territorial transfer will be d etermined by the attitude
of the State of the forum to the transfer.
As to decisions of international tribunals, it was held in the Arbitration
between Germany and Lithuania concerning the Memel Territory (case of
Dr. Erich Treichler)1 1 that the Government of Lithuania was obliged to
recognise Treichler's Lithuanian nationality under the terms of the M emcl
Convention of May 8, 1924. 72 It was stated obiter that as the Convention did
nat provide for ipso jure loss of German nationality by the acquisition of
Lithuanian nationality, "it could be defended" that Treichler had retained
his German nationality until the conclusion of the Agreement relating to
options signed by the two States on February 10, 1925. 73 The German
authorities were therefore free not to consider as an alien a former German
national who had accepted a judgeship in Germany. 74
The rule contained in Article 4 of the Convention on Nationality adopted
at the Seventh Conference of American States in Montevideo on
December 26, 1933,76 that the inhabitants of the transferred territory must
not consider themselves as nationals of the State to which they are

~· It _has ?een held by Japanese courts that persons of Korean origin had lost their Japanese
nauonahty smce Japan had renounced sovereignty over Korea by the Treaty of Peace of
September 8, 1951: Kanda v. tlu Stale (Supreme Court (Grand Bench), April 5, 1961; 32 Int.
Law Reports P· I 70), Japan v. O'Gyong Hi, March 13, 1958 (Materials on Succession of StattS U.N.
doc. ST/Leg/Ser. B/141 pp. 63/64).
67. (1836) I Moo.P.C. 175.
68. At p. 146.
69. (1828) I Peters 51 I, at p. 542.
70. (1892) 143 u.s. 135.
71. U.N. Reports, vol. II I, at pp. 1721, 1763.
72. L.N.T.S., vol. 39, p. 200.
7~. Ibid., vol. 42, p. 17.
74: Cf also the aecision of th_e derman-Roumanian Mixed Arbitral Tribunal in Wildermann
v. Stmnes, see supra, p. 76 and infra, p. i53.
;i4)Sc;tt, Tlu International Conferences of American Stales, First Supplement, p. lOR; 28 AJ.
( 1 · , uppl., p. 63.
Partial Succession 149

transferred unless they expressly opt to change their original nationality,


constitutes a d eviation from the general principle.76 In 1952, the lnter-
Americanjuridical Committee, in accordance with its view that nationality
must not be imposed, also considered that " the transfer of territories does not
imply the acquisition, either individually or collectively, of the annexing
State's nationality". The bond of nationality was inherent, and nationality
acquired under pre-existing laws could not be invalidated by subsequent
legislation. 77
The position is more complicated as regards persons who were outside the
transferred territory at the time of transfer. There is no legal difference
between the position of persons who are in a part of the territory of the
predecessor State which is not subject to the transfer and those who are
abroad, i.e., outside the territory of the States affected by the transfer. The
situation is different from that which obtains in the case of universal
succession, when the nationality of the predecessor State ceases to exist
owing to its extinction, i.e. , where such persons become stateless unless they
acquire the nationality of the successor State.
In the case of partial succession, it depends on the municipal law of the
predecessor State whether such persons lose their nationality. As to their
acquisition of the nationality of the successor State, conferment of
nationality on persons who, owing to their absence from the transferred
territory, do not come within its territorial jurisdiction constitutes an act
purporting to have extraterritorial effect and which therefore requires
recognition by the State of residence. 78 In so far as such persons have not
been released by the predecessor State from its nationality, such action
constitutes, however, also an infringement of the personal jurisdiction ofthat
State, that is, of its right of protection. The action of the successor State
amounts, therefore, to an attempt at compulsory natura-lisation of persons
residing outside its territory, and has to be treated according to the rules
applicable to such naturalisations.79 It follows from what has been said
earlier that such nationality may not be conferred against the will of the
individual, and one may therefore construe a measure of this kind on the
part of the successor State as an offer of collective naturalisation. 80 In the
absence of an explicit or implied acceptance of that offer, the individuals
concerned retain the nationality of the predecessor State. Return or travel to
the transferred territory with the intention of establishing residence there
may be regarded as implicit acceptance.

76. " It very happily modifies existing practice", according to james Brown Scott (in 28 A.J.
(1934), at p. 222).
77. Cf &port, pp. 6-7 (Draft Convention, Article 15).
78. See supra, pp. 101 , 144, 147.
79. See supra, pp. 101-13.
80. Harvard Law Research, p. 65.
150 Effect of Territorial Transfers on Nationaliry

The view presented here is supported by the decisions of international


. 83
tribunals,s 1 national courts, 82 and by wnters. .
In this connection it is of interest to draw attention to some decisions of
German superior courts, both because of their intrinsi~ significance for the
issue discussed in this chapter, and because they received much publicity
and have led to legislative action.
These cases concerned persons of Austrian origin who had acquired
German nationality under German legislation following the incorporation of
Austria into Germany in March, 1938, and who were considered as Austrian
nationals under legislation enacted in Austria on July 10, 1945.
The German Courts consistently held that those persons who were
resident in Austria were not German nationals. 84
As regards persons resident in Germany, on the other hand, the Federal
Supreme Administrative Court held in two decisions85 that certificates of
German nationality must not be refused to the plaintiffs who were Austrian
nationals by birth and who had resided in Germany on April 27, 1945, the
date of the reestablishment of the Austrian Republic, and ever since that
date. The Court declared in its judgment that the plaintiffs were not
"inhabitants" of Austria. They had acquired German nationality by virtue
of the Law of March 13, 1938, concerning the incorporation ("reunion") of
Austria into Germany and the ensuing Nationality Decree of July 3, 1938.
Even assuming that the plaintiffs had reacquired Austrian nationality-a
question which the Court was not competent to decide-they had not
thereby lost German nationality according to German law. Plural
nationality was not excluded under German law. There was no generally
recognised rule of international law which provided for the automatic loss of
nationality as a result of territorial changes and, more especially, of
succession. Even if the acquisition of German nationality by the plaintiffs in
1938 had constituted a violation of international law, it remained effective
under German municipal law until it was withdrawn. It was true that
territorial transfers entailed changes of nationality of the population

81. See Peinitsch v. German State and Others, decided by the German-Yugoslav Mixed Arbitral
Tribunal (2 Recueil T.A .M . (1923), p. 610; Annual Digest, 1923-24, Case No. 121); Khattab v.
Christo Calliafas, decided by the Mixed Court of Appeal of Egypt (Bulletin de Ugislation et de
Jurisprudence Egyptiennes, 47 (1934-35) , p. 221); Re Kurz, decided by the Arbitral Tribunal for
Upper Silesia (see Kaeckenbeck, The International Experiment of Upper Silesia ( 1942), pp. 172-4).
82. (England) Mu"ay v. Parkes [1942] K.B. 123, [1942) 1 All E.R. 558; (South Africa)
Marburger v. Minister of Finance (1918) C.P.D. 183; (United States) Inglis v. Sailor's Snug Harbour
(1830) 3 Peters 99, 122; American Ins. Compa'!Y v. Canter (1828) 1 Peters 511, 542.
8~. See, e.g., Westlake, International Law, vol. I, p. 71; Fauchille, Traitt de Droit international
publzc, vol. l, pp. 856-7; Oppenheim, vol. I, p. 572.
84. A~trian .N_ationality Case, Court of Appeal of Frankfurt, June 2, 1953 (20 Int. Law Reports
P· 250); zn re Fezner, Federal Supreme Court, January 18, 1956 (23 Int. Law Reports p. 367),
Austro-German Extradition Case, Federal Supreme Court, January 18, 1956 (23 Int. Law Reports
p. 364).
85. Pollak v. Land Hesse and Ullerman v. City of Heidelberg, October 30, 1954 (21 Int. Law
Reports p. 175).
Partial Succession 15 1

affected , but the nature of such changes had been regulated in various ways
by the practice of States and treaties. The question of the na tionality of
persons who had remained in the territory of the predecessor State was one of
the marginal questions which had been settled in different ways in the case of
past territorial transfers and which, therefore, required special legislation.
The German Federal Constitutional Court, on the other hand, held in the
Austrian Nationality (No.2) Case86 that an Austrian citizen who had acquired
German nationality as a result of the incorporation of Austria into the
German Reich had lost his German nationality as a result of the Austrian
Law ofjuly 10, 1945, and that he was, therefore, subject to extradition. The
Court did not share the view that Austrians who had been permanently
resident in Germany since April 27, 1945, had not lost their German
nationality. It was true that there was no general rule of international law
governing all cases of State succession or the present case of the
reestablishment of a State which a few years previously lost its independence
and was incorporated into a neighbouring State. On considering the
politico-historical circumstances and the interpretation of the attitudes
adopted by all concerned when the Republic of Austria was reestablished,
one was inescapably forced to the conclusion that all former Austrians, upon
the reestablishment of Austria, ipso facto lost the German nationality they
had acquired upon the incorporation of Austria. The reestablishment of an
independent Austria was a "special case of State succession, an act to restore
the status quo ante". Persons formerly belonging to Austria as citizens had lost
their German nationality resulting from the incorporation of Austria
regardless of their place of residence on the day of declaration of
independence.
The decisions of the German Supreme Administrative Court were widely
criticised in Austria as implying recognition of the incorporation of Austria
into Germany. They led to official statements by the Austrian Government
and a debate in the Austrian Parliament. The Austrian Government
declared that Austria's incorporation into Germany was considered by
Austria as null and void and the compulsory naturalisation of Austrian
nationals by Germany was to be considered as invalid. Austria "claimed" all
its nationals whether they resided inside or outside Austria. The issue thus
centred principally around the legal construction of the incorporation of
Austria into Germany in 1938 and of her subsequent reestablishment in
1945.
The German Federal Government introduced special legislation for the
settlement of the question of the nationality of Austrian nationals in
Germany. The Second Law for the Regulation ofQuestions ofNationality87
of May 17, 1956, provides in essence that the nationality legislation enacted
after the incorporation of Austria into the German Reich is abrogated. The
German nationality of those who were German nationals on April 26, 1945,

86. November 9, 1955; 22 Int. Law Reports p. 430.


87. B.G.Bl. 1956- 1 p. 431.
152
Effect of Territorial Transfers on Nationality

is declared extinct as from the end of that day (par~gra~h 1) . Such. persons
have, however, the right to reacquire German na.tiOnahty retroac.tlvely by
making a declaration to this effect if they have their permanent residence in
the German Federal Republic since April 26, 1945 (paragraph 3).

2. Cession

The rules which it has been attempted to develop here also apply generally to
cession. Since, in the case of a cession of territory, the title to the acquisition
of sovereignty by the successor State is the tr~aty of cession. ?etween the
ceding and the acquiring State, the questiOn of recogmt10n by the
predecessor State does not arise. The ceding State is, therefore, even in the
absence of agreement concerning the effects of the cession on nationality,
obliged to recognise any law of the acquiring State by which its nationality is
conferred on the inhabitants of the ceded territory. The ceding State is
consequently obliged to withdraw its nationality from those persons who
acquire the nationality of the acquiring State. If it does not do so, the persons
affected are not to be considered by third States as retaining the nationality
of the ceding State: of the two nationalities in question, only that of the
successor State has to be recognised by third States, according to
international law.
The ceding State is obliged, however, to recognise only such measures of
the acquiring State as are in accordance with international law. Should the
acquiring State attempt to confer its nationality on persons who do not come
within its territorial jurisdiction, the ceding State need not, in the absence of
a treaty obligation, recognise their new nationality according to the
principle extra territorium jus dicenti non paretur. The ceding State is not bound
to withdraw its nationality from persons outside the jurisdiction of the
acquiring State on whom that State attempts to confer its nationality. 88
Where a cession is based on a multilateral treaty, third States which are
parties to the treaty will have to recognise the measures regarding
nationality taken by the States directly concerned in accordance with the
treaty, i.e., as a rule, that the inhabitants change their nationality. 89 Such
third States will frequently even recognise measures of the acquiring State
which purport to have extraterritorial effect and will give them effect in
their territory, as, for instance, the conferment of the new nationality on
persons born in the territory but not resident there at the time of the cession.
This must be taken into account in order to understand such decisions as that

88. Cf Treichler's Case: supra, p. 148. Graupner (in Grotius Transactwns, 1946, p. 116) goes so
far as to declare that treaty provisions cannot by themselves have the effect of conferring the
nationality of the acquiring State on persons outside its territory, and that such treaty provisions
have merely the effect that those persons lose the nationality of the ceding State, i.e., ~hey
become stateless unless they voluntarily accept the new nationality. Treaties providing that,
e.g.,. persons born on t~e ceded territory (regardless of residence) lose the nationality of the
cedmg St~t~ and acqm~e that of the acquiring State, are, however, frequent.
89. Th1s 1s also the v1ew of Hudson ( l.c.p.8)
Partial Succession 153

of the German-Roumanian Mixed Arbitral Tribunal in Wildermann v.


Stinnes. 90 In that case it was held that a person born in Bessarabia but who
resided abroad at the time of the acquisition of that territory by Roumania
was a Roumanian national, since Germany was bound, under Article 117 of
the Treaty of Versailles, "to recognise the full force of all treaties or
agreements entered into by the Allied and Associated Powers with States
now existing or coming into future existence in the whole or in part of the
former Empire of Russia" and since the Roumanian Nationality Law in
question gave effect to a demand concerning the nationality of the
inhabitants of Bessarabia which had been made by the Allied Powers and
accepted by Roumania. 91

3. Decolonisation92

In the case of decolonisation, questions of nationality have been regulated


unilaterally, by legislation of the former colonial Power, Mandatory or
Trustee, on the one hand, the newly independent States on the other
hand. In a few cases independence was the result of a Treaty (Algeria,
Burma, Cyprus, Indonesia) which also regulated questions of nationality.
Negotiations in most cases preceded independence and in a number of cases
devolution agreements were concluded after independence.
In the case of Colonies under British administration an Act of the
Parliament ofWestminster is required for the achievement of independence,
in the case of Protectorates a Royal Proclamation or Order in Council under
the Foreign Jurisdiction Act, 1890. The Independence Acts which contain
provisions relating to British nationality are usually accompanied by
Independence Orders in Council to which, in a number of cases, the
Constitution of the newly independent State is annexed and which contains
provisions concerning the nationality of the new State. A similar method is
followed where provision is made for independence by Proclamation or
Order in Council.
The instruments providing for independence usually stipulate that subject
to certain exceptions citizens of the United Kingdom and Colonies and
British protected persons shall cease to be such if "on the appointed day"
they become citizens of the new State and if they, their fathers or fathers'
fathers were born in the new State.
Statelessness is thus normally avoided although cases of statelessness have
occurred after the accession of Burma to independence. In Uganda a
"verification" of Ugandan citizens of Asian origin was carried out by the

90. 4 Recueil T.A.M. (1925), p. 842; 6 ibid. (1927), p. 485; Annual Digest, 1923-24, Case
No. 120.
91. Cf Graupner, loc. cit., pp. 110- l.
92. Cf Breunig, Staatnzlosigkeit und Entkolonisierung (1947), de Burlet, Natwnaliti des personnes
P~ysiq_ues et decolonisatwn ( 1973), ~atz~pine,. Le droit ~e La natio~alit~ des Ripubliques francophones
d Afnque et de Madagascar ( 1963), 1d. L tvolutzon des drotts de La nattonaltti des Ripubliques francophones
d'Afrique et de Madagascar in 84 Recuei1 Penant (1975) pp. 147- 201, 346- 80.
154 Effect of T erritorial Transf ers on N, .
a/zonality
Uga nda n a uthorities in 1972, i.e. , ten years after independ ence in th
of which it is reported , out of 23,000 Asia ns claiming U gandan cit"e cou~se
' . d Izenslup
the citizenship of 12 000 was no t rccogmsc ; most of the persons c ,
' oncerned
became sta teless.
In the case offormer French territories the question ofFrench nat· .
Iona1Hy
has been r~gulated in a ~eneral way by a a~ of J_u~y 28, I ~6093 which has
L
since been mcorpora ted m th~ Cod e d e ~a n~tlonahte fran<;atse of 19 73 ,94 as
title VI 1. The relevant Articles provide m essence: Every French
. d d . h . man
domiciled on the date of m ep en ence m t e terntory of a State which
previously had t.he s~atu.s of an ,~ versea~ dep~~~m.ent of the Republic
mainta ins his natiOnality ~pso facto ( d e plem drott ) 1f no other nationality
has been conferred on him by that State. The same applies to children
under 18 years of such persons. (Art. 155, para. 1) It follows a contrario th
those acquiring a n ew natwna. 1·1ty Iose F rene h natwna
. 1Ity.
· at
French citizens " originaires du territoire d e la Republique fran <;aise" a
constituted on July 28, 1960, their spouses, widows or widowers an~
descendants, maintain, however , Frenc h nationality (Art. 152).
Those domiciled in the territory of a n ew State to whom the foregoing
does not apply may be r eintegrated into French nationality by a declaration
requiring the authorisation of the Minister in charge of naturalisations
provided they have previously established their domicile95 in France. The
authorisation is not required from persons who held public office or were
members of the armed forces (Art. 153).
Form~r members of certain Parliamentary Assemblies, their spouses,
widows or widowers and their children who have lost French nationality and
have acquired a new nationality may be reintegrated into French
nationality by simple declaration once they have established their domicile
in France (Art. 156).
Special provisions apply in the case of Algeria where certain questions
of nationality were regulated in the Evian Agreement of March 18,
1962 between France and the Provisional Government of the Algerian
Republic. 96
The newly independent States which had before been under British
administration became, with the exception of Burma and South Yemen,
members of the Commonwealth. 9 7 The formerly French territories, with the
exception of Algeria and Guinea which later seceded, had befor~
independence enjoyed certain sovereign rights within the "Communaute
fran<;aise."
. A:s t~ the acquisition of the nationality of the new States there exists a
distmctwn between formerly British territories and those which had be.en
under French or Belgian administration. As to the former, British nationality

93. No. 60-752.


94. No. 73-42.
95. In the sense of habitual residence (author's remark).
96. French Journal Officiel March 20 1962 p 301 9
97 p k" .' ' ' . .
· a rstan and the Umon of South Africa seceded subsequently.
J'arti£d Succession 155

(citizt>n:)hip of the United Kingdom and Colonies or the status of British


prntt·cted person) before independence is one of the requirements for the
ipso farlo acquisition of the new nationa lity, while the corresponding
n·quircment d oes not exist in the ex-French and cx-Belg.i an States.
Ethnic considerations normally played a r6le in the determination of the
criteria for the con!Crrnent of na tiona lity a lthough they are explicitly
mentioned in the legisla tion of a few States only (e.g. Burma "belonging to
any of the indigenous races of Burma" , C had "etat tchadien", Gabon ''of
parents of Gabonese origin", Indonesia " belonging to the indigenous
popula tion of Indonesia", Mali "eta t ma lien", Sierra Leone " persons of
negro- AI'n.can race " ) .
In most cases the na tiona lity laws of the newly independent States are
based on a combination of jus soli a nd jus sanguinis: birth in the territory of
parents or grandparents born there (Central African R epublic, Chad,
Dahomey, Gambia, Ivory Coast, K enya, Malawi, Malta, Niger, Nigeria,
Senegal, Tanganyika, Uganda, Upper Volta) .9s
In certain formerly British territories nationality has been conferred on
the basis of jus sol£, by virtue of birth in the territory (Barbados, Botswana,
J amaica, Lesotho, Seychelles, Swaziland , Togo, Trinidad and Tobago,
Zambia) .
The cases in which nationality is conferred by virtue of residence are rare
and, in these, qualified residence is required (Ceylon, Cyprus [5 years'
residence before entry into force of the Treaty of August 16, 196099 between
the U nited Kingdom , Greece, Turkey on the one hand and Cyprus on the
other], Malta).
In a few cases nationality has been conferred on p ersons from
neighbouring States habitually resident in the territory (Gabon, Togo). The
admissibility under international law of this practice is doubtful.
A d ecision of the Court of Appeal of Bujumbura (Burundi) of August 10,
197 Jl 00 is typical of the concept of nationality of the new States. The Court
held tha t, in the absence of a nationality law "est considere comme Murundi
par !'ensemble d e Ia population celui qui est ne dans le pays, en parle Ia
la ngue, vit selon ses coutumes et se considere lui-meme comme Murundi" .
The practice followed by the newly independent States shows, in the
present writer's view, the lack of foundation of the doctrine of automatic
change of nationality.I 01 They did not confer their nationality ipso facto on
all the "inhabitants" of the territory in question. The territorial principle
has virtually been abandoned. The newly independent States were
understandably little inclined to confer their na tionality automatically on
the white population which had settled in the territory during the colonial
period. They rather conferred their nationa lity on the local population , on

98. Cf de Burlet p. 153.


99. U.N.T.S., vol. 382, p. 8.
100. Zatzepinc in 84 Recueil Penanl (1975) p. 154.
10 I. O f the same opinion Zemanek loc. cit. p. 277, de Burlet pp. 20 I et seq.
Ejfecl of Territorial Transfers on Nationality
156

those who constituted, m the terminology of French writers ' ttHCtr


.
"patrimoine humain" ·

4. Option

It may be appropriate to add at this point so~e words on the so-called right
of option or election. It has been s~e.n that, m the ca~e of persons who arc
outside the jurisdiction of the acqum~g State at ~he. t~me o~ the transfer, a
certain freedom of decision is indee~ given to the mdividual m that he may,
by an explicit or implicit act (includmg remo~al to the transf~r.red territory),
accept the offer of naturalisation made ~o him by the acqumn? State. But
this possibility of option by persons outst?e the t~ansferred terr~tory follows
indirectly from certain gener~l .rules of mter~atwnal la~, whtch we have
sought to outline above; 102 It IS not a special rule of mternational law
granting a specific right to indi~iduals. .
The existence of a right of optiOn, to be enjoyed by ~ll persons affected by
territorial changes, has frequently been alleged by wnters. 103 The Harvard
Law Research made provision in its Draft Convention for the possibility of
the inhabitants of the transferred territory repudiating the nationality of the
acquiring State "in accordance with the law of the successor State" (Article
18, paras. 1 and 2). It may be well, in examining this question, to distinguish
between what has been called by Kunz 104 the "older right of option" , i.e., the
right of the individual to emigrate from the transferred territory (option of
emigration) and thereby implicitly to repudiate the nationality of the
acquiring State, and the "modern right of option", i.e., the right to make a
declaration of refusal to acquire the nationality of the acquiring State
(option of nationality). In the latter case the acquiring State may, and as a
rule does, demand the removal of the optant from its territory. This removal
is not an essential part of the process of option of nationality, 105 but it may be
made a condition for the exercise of the right of option and will usually be
the consequence of an exercise of the right.
Many States have accorded a right of option in cases of territorial changes,
particularly in the case of cessions with which they were concerned. English
and United States courts have held obiter that there was a rule that the
inha?itants of a transferred territory were to be granted a right of election. 106
But lt should be remembered that the right of election referred to was
considered to consist merely in the right to decline the nationality of the
acquiring State implicitly by leaving the transferred territory after the

102. See supra, pp. 100 et seqs., 149.


103. Cj ~estlake, op. c~t., vol. .1' p. 71 , Fauchille, op. cit. , p. 857. .
104. In Dze Voelkemchtlzcht Optwn, vol. I ; see also his "L'Option de Nationalite," m 31 Hague
Recueil (1930-1), pp. 107-76, at p. 113.
105. See Kunz, op. cit., p. 134.
l06. CJ Doe d. Thomas v. Acklam (1824) 2 B. & C. 779, Doe d. Auchmury v. Mulcaster (l~Z6 )
5 B. & C. 771 • Murray v. Parkes [1 942)2 K.B. 123. As to the United States see Inglis v. Sailors'
Snug Harbour ( 1830) 3 Peters 99.
Partial Succession 157

change of sovereignty had taken place. This course was advocated by the
Law Officers of the Crown in their Opinion of May 17, 1900, referred to
above. 107 This may indeed be regarded as a useful qualification of the rule
that presence on the territory at the time of transfer is the determining factor
for the change of nationality, as it avoids the imposition of the nationality of
the acquiring State on persons who, by clear inference, express unwillingness
to acquire the new nationality. One may construe it (as Halleck did 108 ) not
so much as a right of election as the establishment of domicile as the criterion
for the change of nationality. The courts have not gone so far as to assume, in
the absence of treaty or statutory stipulations, a right of option in the modern
sense, i.e., a right to decline the new nationality and to remain on the
territory.
Fauchille has shown 109 that a right of option has been accorded in a great
number of treaties concluded in Europe and America during recent
centuries. The British practice in cases of incorporation of territory, as
reviewed by MervynJones110 shows several instances where a right to decline
British nationality was given. Such a right has been granted by the United
States in most, though not all, its treaties of cession.l 11 The granting of such a
right is also stated to be the policy of the Soviet Union.l 12 Treaties concluded
by the Soviet Union have included provisions relating to option, and this is
also true oftwo Treaties of Cession concluded by the Soviet Union after the
Second World War, namely, the Protocol accompanying the Treaty with
Czechoslovakia of June 29, 1945, relating to the cession of the Carpatho-
Ukraine, and the Agreement with Poland of July 6, 1945.
While this treaty practice is widespread, it is by no means universal. A
right of option is often granted in treaties to certain categories of persons and
not to all. The practice of granting a right of option seems to have reached its
climax after the First World War, and since then to have receded. All the
peace treaties concluded after the First World War contain provisions
relating to the nationality of persons affected by the territorial changes
stipulated by the Treaty, and detailed provisions as to options. Of the
Treaties concluded after the Second World War only the Peace Treaty with
Italy deals with the question of nationality. It provides for a right to opt for
Italian citizenship on the part of the inhabitants of the territories ceded by
Italy (Article 19, para. 2) 113 and of the inhabitants of the Free Territory of

107. Supra, p. 140n.


108. Op. cit., vol. II , p. 510.
109. Op. cit., pp. 858-76.
110. Op. cit., lst ed., pp. 40-56.
Ill. See Moore, Digest, vol. III, pp. 311-27, and Boyd v. Nebraska , ex rel. Thayer (1892)
143 U.S. 135, at p. 163.
112. See Taracouzio, The Soviet Union and International Law, p. 97, where he states that the
right of option is granted in Soviet practice also to the inhabitants of annexed territories as
"a slight mitigation of the evils of the annexation which is ex principio contrary to communist
philosophy".
113. U.N.T.S. vol. 49, p. 3.
Effect of Territorial Transfers on Nationality
158
. (A V to the Treaty Article 6, para. 2) whose customary
Tneste nnex
. 1 1.
' b c
According to the Agreement etween zechoslovakia
language IS ta Ian. . f F b
ning Exchange of PopulatiOn o e ruary 27 1946
and H ungary cone er T . ' '
· A t'cle 1 para 4 (e) of the Peace reaty With Hungary of
referred to m r I ' · . .
10 l947 u4 change ofnationahty was to take place zpsofacto by the
F eb ruary , ' Sl k
r
transter of resi'd enee . Persons of Czech. or ova race
. rest'd ent m
· Hungary
were to be transferred to Czechoslovakia after havt~g _made a ~eclaration to
this effect before a special Czechoslovak Commis~Ion (Arttcle 1 of the
Agreement), but for the tr~nsfer of persons ofHunganan race to Hungary no
such declaration was reqmred. . .
A to territorial changes in the process of decolomsat10n where
inde~endence was the cons~quence of a formal treaty of cession, the treaties
provided for a right of option:
In the case of Algeria the Evian Agreement between France and the
Provisional Government of the Algerian Republic of March 18, 1962
provided that "les citoyens franc;ais de statut civil ~e droit commun" who
had resided in Algeria for ten years on the day of mdependence and had
certain other links with Algeria could acquire Algerian nationality after
three years by declaration. In Article 27 of the Code de la nationalite
algerienne of March 27, 1963 this option was made subject to being justified
from the national point of view. It ceased, thereby, to be an option in the
legal sense and became a claim to privileged naturalisation.
According to the Treaty between the United Kingdom and Burma of
October 17, 1947, 115 British subjects who acquired Burmese nationality by
virtue of the Constitution of the Union of Burma were entitled to reject
Burmese nationality by a declaration of alienage (Art. 3 of the Treaty).
Further rights of option in favour of the status of British subject were granted
to certain categories of persons by the Burma Independence Act, 194 7116 and
in favour of Burmese citizenship by the Constitution of the Union of Burma
ofSeptember 24, 1947 (Art. 11), the Union Citizenship (Election) Act 1948
(Act No. XXVI of 1948) and the Union Citizenship Act 1948 (Act No.
LXIV of 1948) which provides for a declaration of alienage in case of double
nationality (Art. 17).
_As regards Cyprus the Treaty of August 16, 1960 between the United
~.1?gdo~, Greece, Turkey and Cyprus provided that those losing their
Cttlzenshtp cou~d opt for that of the United Kingdom and Colonies within
t~o years as tf they were British subjects (non-citizens of the United
Ku~gdo~ and Colonies) (Annex D s. 7). This constituted a right to
regtstratiOn which was provided for by the British Nationality (Cyprus)
Order' 1960. 117 The optants and those acquiring Cypriot nationality who

114. Ibid., vol. 41. p. 135.


!!~·· ~-~eo.T.S6. No. 16 (1948) Cmnd. 7360, Br. and For. St. Papers 1947- 1 p. 695.
c.3 S.2 and First Schedule
117. S.I. 1960 No. 2245. .
Partial Succession 159

also possessed United Kingdom or another nationa lity were entitled to


renounce Cypriot nationality by declaration (Annex D. s.8).
R egarding Indonesia the "Agreement covering th e Assignment of Citizens"
annexed to the Treaty between the Netherlands and Indonesia ofDecembcr
27 , 1949118 provided that Netherlands nationals maintained their nationality
but were entitled to opt for Indonesian nationality provided they were burn
in Indonesia or had been resident there for at least six months (Art. 3).
Netherlands subjects-not Netherlanders, born outside Indonesia and
resident in the Netherlands or a territory not under the jurisdiction of the
Netherlands and Indonesia, and belonging to the indigenous population
of Indonesia-were entitled to opt in favour of Netherlands nationality
(Art. 4). Netherlands subjects of other than Indonesian ethnic origin born
or resident in Indonesia, particularly Chinese, were entitled to reject
Indonesian nationality and to reacquire Dutch nationality (Art. 5). Such
persons not born in Indonesia and resident in the Netherlands retained their
nationality but were entitled to opt for Indonesian nationality (Art. 6).
Those born in the Netherlands and resident outside the Netherlands and
Indonesia retained Netherlands nationality but were entitled to opt for
Indonesian nationality if born of parents who were Netherlands subjects by
birth in Indonesia (Art. 7).
Where citizenship of the United Kingdom and Colonies is concerned
there exists for British subjects the possibility of registration under s.S A (2)
or s.6 ss. 1 of the British Nationality Act 1948 as amended once they have
legally settled in the United Kingdom and remained ordinarily resident
there for five years. As the citizens of the new States which remained in the
Commonwealth are British subjects, this possibility is open to them.
Most of the newly independent States provide for a right of option to
acquire the nationality of the State concerned (positive option) for certain
categories of persons, in formerly British territories by way of registration;
in certain cases a right to repudiate the nationality of the new State is
provided for (negative option) . In the States which had been under French
administration, the acquisition of nationality by way of option may, in most
cases, be opposed by the competent authorities. In these cases there does not
exist, therefore, a genuine right of option but a claim to privileged
naturalisation. Such opposition may lead to statelessness. 119
In the view of the present writer-and this is largely also the opinion of
Kunz, 120 who considers that the right of option is "international law in
development" and states that it cannot be implicitly presumed in the
absence of treaty provisions-it cannot be concluded, from the widespread
but not universal treaty practice and from other instances of State practice,
that there exists a rule of international law imposing a duty on the States
concerned in a transfer of territory to grant to the inhabitants of the

118. U.N.T.S. vol. 69 p. 272.


119. Cf Hudson Y.B.i.L.C. 1952- 11, p. 19.
120. Op. cit., vol. I, p. 90.
160
Effect of Territorial Transfers on Nationaliry

transferred territory a right of option. t~ decline (or acquire) the nationality


of those States. It is clear from the Optmons of the Law Officers of the Crown
that they regarded the granting oft~is r.i ght as a matter of policy rather than
of law.121 It is inevitable that terntonal transfers may cause hardship to
individuals affected by them, and it seems justifiable to demand that such
adverse consequences be reduced as much as possible. ~ t is this liberal
humanitarian spirit which inspired those who ~lead that a nght of option be
accorded to all inhabitants of a transferred tern tory, and probably also those
international lawyers who have tried to establish the right of option as a
principle of existing international law rather than a~ a desideratum of legal
policy. In the same spirit, the claim is made that cessiOns should be preceded
by plebiscites of the affected population, or .even ~hat the ~alidity of cessions
should be conditional on the consent of the mhab1tants bemg ascertained by
plebiscite. One must agree with Kunz 122 that even the general adoption of
plebiscites as a condition for territorial transfers would not dispense with the
need for a right of option, as only by option could the minority avoid the
consequences of the majority decision being imposed on them. While
plebiscites have not been infrequent in the liberal nineteenth century and
were held in many territories after the First World War, with the intention of
giving effect to the principle of self-determination proclaimed by President
Wilson, the practice seems later to have considerably declined. None of the
Peace Treaties concluded after the Second World War provide for the
holding of a plebiscite in ceded territory.
It is submitted that the situation in the field of territorial transfers as here
described, which may be said to constitute the position in international law
as it exists at present, will give little satisfaction to those-and the author is
among them-who consider freedom to shape one's own fate an essential
element of human dignity. The reasons may be found not so much in any
specific rules governing changes of sovereignty over territory as in the fact
that present international law is determined by the action of States rather
than by the will of individuals affected by that action. In particular, in so far
~ conq~est remains a valid title for the acquisition of territory in general
~nternat~onal law, 123 the fate of the conquered is of little relevance in
mter~atwnal law. Institutions such as plebiscite and option may alleviate
certam consequences of this situation, but they cannot remedy it entirely.

121. Cf Mervyn Jones, op. cit., 1st ed. pp. 43, 45 and 46
122. Op. cit., vol. I, p. 96. ·
123. As stated in Oppenheim, vol. I (8th ed. by Lauterpacht, 1955), p. 574.
Chapter 12

"Conflict Rules"

A. Introduction

The terminology used in the title to this Chapter has been explained above. 1
It is used here because it has received official sanction (cj., e.g., the
Convention on Certain Questions relating to the Conflict of Nationality
Laws adopted at the Hague Codification Conference), and because .it
constitutes a convenient "short title" for the discussion of problems of
public international law arising from plural nationality and statelessness.
Admittedly, the term lacks precision, and perhaps assumes too much. The
legal phenomena which are considered to be the consequence of the conflict
o£ nationality laws, i.e., statelessness and plural nationality, result in the
individual being placed in an anomalous position in international law by
reason of the exclusive but concurrent competence of States to regulate
nationality. We are not here concerned with the reasons for the existence of
these phenomena in so far as they are solely the result of municipalla w, nor
with the rules of private international law which individual States may apply
i'n such cases.
The only question to be examined here is whether there exist any rules of
public international law for the solution of conflicts arising from plural
nationality and for the solution of difficulties resulting in international law
from the existence of persons whose position in international law is either not
determined by the link of nationality (stateless persons) or not determined
unequivocally (persons possessing more than one nationality-so-called
sujets mixtes).

B. Statelessness

1. In General

A person not having a nationality under the law of any State is called
stateless, apatride, apolide, or heimatlos.
A person may either be stateless at birth, as a result of the fact that he
does not acquire a nationality at birth according to the law of any State,
or he may become stateless subsequent to birth by losing his nationality

I. See supra, p. 90.


162 " Conflict Rules"

without acquiring another. One can thus distinguish between original and
subsequent statelessness;2 original statelessness may also be termed
·'absolute" statelessness, and subsequent statelessness "relative" stateless-
ness in so far as in the latter case the relation of the stateless individual to the
Stat~ whose nationality he formerly possessed is of some legal relevance.a
To the extent that there are no rules of international law imposing a duty
on States to confer their nationality, 4 and few, if any, rules denying o.r
restricting the right of States .to with?ra~ their .nationality,~ one may say
that statelessness is not inconsistent with mternat10nallaw. Smce, however
nationality is the principal link between the individual and international
law, and since "the rules of international law relating to diplomatic
protection are based on the view that nationality is the essential condition for
securing to the individual the protection of his rights in the international
sphere" ,s there cannot be any doubt that statelessness is undesirable. 7 The
legal position of stateless persons is precarious: they have been compared
with a res nullius. 8 This is well illustrated by the dictum in the Dickson Car
Wheel Company Case before the Special Claims Commission between the
United States and Mexico in 1931: 9
This [i.e., the bond of nationality] is the link existing between the law and individuals and
through it alone are individuals enabled to invoke the protection of a State and the latter
empowered to intervene on their behalf.
A State, for example, does not commit an international delinquency in inflicting an injury
upon an individual lacking nationality, and consequently no State is empowered to intervene or
complain on his behalf either before or after the injury.
Statelessness is, therefore, undesirable from the point of view of the
individual, but the existence of "stateless persons" is also undesirable from
the point ofview ofStates and of the international community as a whole, as
it may lead to friction between States.

2. (a) International Action on Statelessness

As we have seen, efforts for the elimination or the reduction of statelessness


by international action, mainly by treaty, have been frequent. It is obvious
that jus sanguinis is more apt to lead to statelessness since it makes it
hereditary. The adoption of jus soli as a secondary principle for the

2. Cf the author's "Statelessness as a Legal-Political Problem" , in The Problem of Statelessness,


pp. 3- 26.
3. See supra PP· 53-59. A Chart of possible causes of statelessness may be found in Y.B.I.L.C.
1953-11 p. 195; see also Hudson in Y.B.I.L.C. 1952-11 pp. 17-19.
4. See supra, pp. 95- 6.
5. See supra, pp. 123-6.
6. Oppenheim, vol. I, p. 669.
7. It has been held that statelessness is not to be presumed by the Swiss Federal Tribunal in
von Fliedner v. Beringen (supra p. 120n.); by the Israel Supreme Court in Hirschenhorn v. Attorney
General (2 1 Int. Law Reports p. 168).
8. See Schwarzenberger, 2nd ed. vol. I, p. 171.
9. U.N. Reports, vol. IV, p. 688; Annual Digest, 1931-32, Case No. 115.
Statelessness 163

acquisition of nationality by jus sanguinis countries, and the adoption of the


rule prohibiting loss of nationality except concurrently with the acquisition
of another nationality, would lead to the elimination of statelessness. So far,
States have not, however, been willing to accept these rules.
The Convention on Certain Questions relating to the Conf-lict of
Nationality Laws, 10 adopted by the Hague Codification Conference on
April 12, 1930, contains provisions designed to reduce statelessness: in
Article 7 dealing with expatriation permits, Articles 8 and 9 relating to the
nationality of married women, Articles 13, 14, 15 and 16 dealing with the
nationality of children, and Article 17 dealing with adoption. These
provisions do not, however, touch the main causes of relative statelessness,
i.e., statelessness in consequence of deprivation of nationality or in
consequence of territorial changes, and only to a small extent absolute
statelessness, i.e., statelessness arising at birth. The Protocol relating to a
Certain Case of Statelessness, 11 of the same date, supplemented these
provisions by the rule:
In a State whose nationality is not conferred by the mere fact of birth in its territory, a person
born in its territory of a mother possessing the nationality of that State and of a father without
nationality or of unknown nationality shall have the nationality of the said State. (Article 1.)
The Conference adopted, in its Final Act, the following recommendation:
The Conference is unanimously of the opinion that it is very d esirable
that States should, in the exercise of their power of regulating questions of nationa lity, make
every effort to reduce so far as possible cases of statelessness,
and that the League of Nations should continue the work which it has already undertaken for
the purpose of arriving at an international settlement of this important matter. 12
The League of Nations did not act upon this recommendation, but the
United Nations has resumed the efforts for the reduction and elimination of
statelessness.
The Commission on Human Rights of the United Nations adopted at its
Second Session in 194 7 a Resolution on Stateless Persons in which it expressed
the wish
I. (a) that the United Nations make recommendations to member States with a view to
concluding conventions on nationality;
(b) tha t early consideration be given by the United Nations to the legal status of persons who
do not enjoy the protection of any government, in pa rticular pending the acquisition of
nationality as regards their legal and social protection and their documentation. 13
The Universal Declaration of Human Rights of December 10, 1948
proclaims the "right to a nationality" and that
No one shall be arbitrarily deprived of his nationality. 14

I0. See below, Appendix I.


II. See below, Appendix 3.
12. Resolution A I.
13. U.N. Doc. E/600. para. 46.
14. See supra, p. 124.
164 "Coriflict Rules"

In pursuance of the recommendation m~de by the_ Commiss!on on Human


Rights at its Second Session, the Economic and SoCial Council of the United
Nations instructed the Secretary-General to undertake a study of
statelessness. Is The Social Department of the Secretariat, which elaborated
this study, 16 gave the term "stateless persons" a wider meaning by including
in its study not only de jure stateless persons but also de facto stateless persons,
i.e., persons who "without having been deprive? of ~heir nationality no
longer enjoy the protection and assistance of their national authorities".17
Refugees, who are, in this sense, stateless, were accordingly included in the
study. It is submitted that the term "de facto stateless persons" is a
misnomer. 1s It would be more appropriate to speak of" de facto unprotected
persons", i.e., refugees, as distinct from "de jure unprotected persons", i.e.,
stateless persons.
An Ad Hoc Committee appointed by the Economic and Social Council of
the United Nations recommended to the Council a draft resolution on
statelessness: 19 The representative of Denmark also submitted a draft
Convention on statelessness, 20 on which the Committee took no action. The
Economic and Social Council adopted, on August 11, 1950, on the basis of
the draft Resolution recommended by the Ad Hoc Committee, a Resolution
on Provisions relating to the Problem of Statelessness.21 This Resolution
reads:
The Economic and Social Council,
Recalling its concern with the problem of statelessness as expressed in its resolution 248B (IX)
of August 8, 1949, in which it established an ad hoc committee to study this problem,
Having considered the report of the Ad Hoc Committee and its recommendations concerning
the elimination of statelessness,
Taking note of Article 15 of the Universal Declaration ofHuman Rights concerning the right
of every individual to a nationality,
Considering that statelessness entails serious problems both for individuals and for States, and
that it is necessary both to reduce the number of stateless persons and to eliminate the causes of
statelessness.
Considering that these different aims cannot be achieved except through the co-operation of
each State and by the adoption of international conventions,
Recommends to States involved in changes of territorial sovereignty that they include in the
arrangements for such changes provisions, if necessary, for the avoidance of statelessness;
Invites States to examine sympathetically applications for naturalisation submitted by
stateless persons habitually resident in their territory and, if necessary, to re-examine their
nationality laws with a view to reducing as far as possible the number of cases of statelessness
created by the operation of such laws;
Requests the Secretary-General to seek information from States with regard to the above-
mentioned matters and to report thereon to the Council;

15. Resolution 116 D (VI), March 1 and 2, 1948.


16. A Study of Statelessness, United Nations P~:~blication No. 1949. XIV. 2.
17. At p. 9.
18. Cf the author's review of this study in 27 B.Y. (1950), pp. 510-2; see also id., in 30 B.Y.
( 1953), pp. 4 78- 89, at p. 480.
19. Doc. E/1618, para. 26.
20. Doc. E/1618, Annex V .
21. Resolution 319 B III (XI).
1aIf' Iess nus 165

Notes with satisfa tion that the lntnnationa l Law Connnission int ends to initiate as soon as
pos~ibk work on the subJc~ t of nationality, including statelessness, and urges that the
Jutt•nwtional Law Commts~ton prcpar · at the earliest possible date the necessary draft
intt·rnational tlll\'l'11lion or conventions for the elimination or statelessness;
lnvit ·s the Secretary- _,-cncral to transmit this resolution to the International Law
Conunission.
In a ordanc' with this and a subsequent Resolution,22 a consolidated report
incorporating the replies received from Governments in compliance with the
request of the Secretary-General, made in pursuance of the above-
mentioned Resolutions, has been published by the Secretary-General of the
United Nations. 23 •
The International Law Commission of the United Nations decided at its
First Session in 1949 to include " nationality, including statelessness" in the
list of topics provisionally selected for codification. 24 It discussed the subject
at its Fourth Session in 1952, on the basis of a Report prepared by one of its
members, Professor Manley 0. Hudson, as special rapporteur. 2 5 The
Commission decided to request Mr. Roberto Cordova, who succeeded
Professor Hudson as special rapporteur, to prepare a draft convention on
elimination of statelessness and one or more draft conventions on the
reduction of future statelessness, for consideration at its next Session. 26 On
the basis of his report, 27 which contained a Draft Convention on the
Elimination of Future Statelessness and a Draft Convention on the
Reduction of Future Statelessness, the Commission adopted, at its Fifth
Session in 1953, provisional drafts of both Conventions and decided to invite
Governments to submit their comments on the Draft Conventions. 28 The
Economic and Social Council of the United Nations endorsed, in April,
1954, the principles underlying the work of the International Law
Commission concerning statelessness. 29 The Commission revised the drafts in
the light of the comments made by fifteen Governments and by interested
organisations. 30 The Commission also examined the problem of present
statelessness on the basis of a report by the special rapporteur, Mr.
Cordova, 31 and adopted certain suggestions on this subject. 32 At the request

22. 352 (XII) of March 13, 1951.


23. Doc. E/2230.
24. Report of the International Law Commission covering its First Session (Doc. A/925,
para. 16).
25. Doc. A/CN.4/50. Y.B.I.L.C. 1952- 11 p. 3.
26. See Report of the International Law Commission covering the work of its Fourth Session
(Doc. A/2163, paras. 31, 34). Y.B.I.L.C. 1953- 11 pp. 67, 68.
27. Doc. A/CN.4/69. Y.B.I.L.C. 1953-11 p. 167.
28. See Report of the International Law Commission covering the work of its Fifth Session
(Doc. A/2456, para. 19). Y.B.I.L.C. 1953- 11 p. 200.
29. Resolution 526 (XVII) B of April 26, 1954.
30. See Report of the International Law Commission covering the work of its Sixth Session
(Doc. A/2693, paras. 10 and 11). Y.B.I.L.C. 1954-11 p. 41.
31. Third Report on the Elimination or Reduction of Statelessness (Doc. A/CN.4/81 ).
Y.B.l.L.C. 1954-11 p. 26.
32. See Report of the Commission, paras. 26, 27 and 37.
166 " Conflict Rules

of the special rapporteurs, the present writer assisted them in their work. 33 .
The Sixth (Legal) Committee of the General .Assembly, at its Ninth
Session in 1954, discussed the Draft Co~ventwns prepared by the
International Law Commission. On the basis of the R eport of the Sixth
Committee the General Assembly decided to request the Secretary-General
to conven~ an international Conference of Plenipotentiaries for the
conclusion of a Convention for the reduction or elimination of future
statelessness as soon as at least twenty States have communicated to the
Secretary-General their willingness to co-operate in such a conference.34
The Conference was held in Geneva from March 24 to April 18, 1959· it
took as a basis the draft Convention on the Reduction of Future Statelessn~ss
prepared by the International Law Commission. The ~onference .had to be
adjourned owing to lack of agreement on the questiOn of depnvation of
nationality and reconvened in New York on August 15, 1961 ; it adopted on
August 28 a Convention on the Reduction of Statelessness. The Convention
entered into force on December 13, 1975; it had , by August 31, 1978, been
ratified by Austria, Australia, Canada, Costa Rica, Denmark, the Federal
Republic ofGermany, Ireland, Norway, Sweden and the United Kingdom
of Great Britain and Northern Ireland.
According to the Convention a Contracting State shall grant its
nationality to a person born in its territory who would otherwise be stateless
at birth, by operation of law, or upon application; in the latter case the
Contracting State may make the grant of its nationality subject to one or
more conditions, stipulated exhaustively in the Convention-a concession to
the jus sanguinis countries. Subject to these conditions, no application may be
rejected. (Article l paras. 1 and 2)
A child born in wedlock in the territory of a Contracting State whose
mother has the nationality of that State shall acquire at birth that
nationality if it otherwise would be stateless. (Article l para. 3)
Where a person born in the territory of a Contracting State has not been
granted the nationality of a Contracting State jure soli, because he has failed
to make the required application by the prescribed age or because he has not
fulfilled the required residence conditions, he shall acquire the nationality of
that State jure sanguinis if the nationality of one of his parents at the time of
the person's birth was that of the Contracting State. In this case, too,
acquisition of nationality may be made subject to one or more exhaustively
enumerated conditions, somewhat more generous than those required for the
grant of nationality jure soli. (Article l paras. 4 and 5)
A person who was not born in the territory of a Contracting State but one
of whose parents was, at the time of the person's birth, a national of a
Contracting State, shall receive the nationality of that State either at birth,
by operation of law, or upon application; in the latter case, too, acquisition
of nationality may be made subject to the fulfilment of one or more

33. See Y.B.I.L.C. 1959-11 p. 149.


34. General Assembly Resolution 896 (IX), of December 4, 1954.
St (/I t'l(',\ j llf'SS 167

cxh au~ ti vd stipula t ·d condition ·. Sin e 110 agreement could be reached as


tu the deri vation of na tionality from the fath er or the mother, this is left to
the natiunt'll law of the Contractin )' State. (Article 4)
If the law of a Contra ting State entails loss of nationality as a
consequence of ·ha n rc of personal status, such loss shall be conditional upon
poss('ssion or atquisition of another nationality. (Article 5 para. I )
Loss of nationality by a person's spouse or children as a consequence of
that p<'fson 's loss or d eprivation of nationality shall be conditional upon
posse ·sion or acquisition of another nationality. (Article 6)
The Contracting States undertake to promote the establishment within
the fi·arnework of the United Nations of a body to which a person claiming
th ·benefit of the Convention may apply for the examination ofhis claim and
for assistance in presenting it to the appropriate authority. (Article 11) By
Resolution 3274 (XXIX) ofDecember 10, 1974 the General Assembly ofthe
United Nations requested the United Nations High Commissioner for
Refugees to assume provisionally these responsibilities; by Resolution 31/36
of November 30, 1976 the Assembly requested the High Commissioner for
Refugees to continue to perform these functions.
The provisions of the Convention relating to renunciation, loss of
nationality by operation of law, deprivation and transfer of territory have
been mentioned earlier.35
It is interesting to note from the foregoing that two different methods have
been adopted by the United Nations in their efforts to eliminate or reduce
statelessness: first, by recommendations to Governments in the form of
resolutions adopted by the Economic and Social Council, and secondly, by
the preparation of binding multilateral agreements, i.e., the method of
international legislation.
The "Commission internationale de l'Etat civil", an intergovernmental
organisation formed by a number of European States, adopted on
September 19, 1973 in Bern, a Convention designed to reduce the number of
cases ofstatelessness. 36 The Convention provides that the child whose mother
possesses the nationality of a Contracting State acquires at birth the
nationality of that State if it otherwise would be stateless. (Article 1) For the
application of this provision, a child whose father has the status of a refugee is
to be considered as not possessing his father's nationality. (Article 2)
The Convention had, by June 30, 1977 been ratified by Turkey only and
is not in force.

35. See supra. pp. 124-5. For the text of the Convention see Appendix 4.
36. Commission internationale de l'Etat civil "Conventions et Recommendations"
(Frankfurt, 1976) Convention No. 13.
168 ·• C01if/irt Rules''

2. ( b) Intenzational Actio11 on the Status of Stateless Pnsons


In the absence of international measures to abolish stat ck ssncss, efforts
have been made to mitigate th e consequences of statclcssncss:17 by the
improvement of the status of stateless persons by treaties. It is significa nt to
note that until recently, international agreements concluded for this purpose
affected only refugees, i.e. , specific groups of unpro tected persons. There are
a considerable number of such agreements, 38 of which the Convention
relating to the Internationa l Status of R efugees of October 28, 1933, 39 the
Convention relating to the Status of Refugees coming from Germany of
February 10, 1938"0 may be men tioned. The most important is the
Convention relating to the Status of R efugees of.J uly 28, 1951 ,41 which has
been supplemented by a Protocol relating to the Status of Refugees of March
31 , 1967.42 There exist also a number of agreements concluded between
international organisations charged with the protection of refugees and
individual States.43
The Ad Hoc Committee of the Economic and Social Council which drew
up the 1951 Convention Relating to the Status of Refugees also elaborated
and recommended the conclusion of a Protocol relating to the Status of
Stateless Persons, by which certain provisions of the Convention would be
made applicable to stateless persons who are not refugees as defin ed in the
Convention. 44 The General Assembly requested the Economic and Social
Council to study this draft Protocol and the comments received from
interested Governments and, in the light of these comments, to take
whatever action might seem useful in order that a text might be opened for
signature after the Convention relating to the Status of Refugees had entered
into force. 45 The Economic and Social Council decided to convene a second
Conference of Plenipotentiaries for the revision and adoption of the
Protocol. 46 The Conference, which was held in New York in September,
1954, agreed that the instrument should be in the form of a Convention
rather than a Protocol. A Convention relating to the Status of Stateless

37. See Oppenheim, vol. I, p. 669.


38. See, for these agreements, the Annexes to Part I of A Study ofStatelessness, referred to above
(n . 16).
39. L.N.T.S., vol. 159, p. 199.
40. Ibid., vol. 192, p. 196. The scope of the Convention was extended to refugees from Austria
by an Additional Protocol of September 15, 1939 (ibid., vol. 198, p. 141 ).
41. U.N.T.S. vol. 139 p. 137-the Convention had, by August 31 , 1978, been ratified by 76
States. The text of the Convention is reproduced in Appendix 9.
42. l!·N.T.S: vol. 606 p. 267- the Protocol had, by August 31, 1978, been ratified by 71
States; Its text IS reproduced in Appendix 10.
43. See the author's article on "International Protection of Refugees" in 48 A.J. (1954),
pp. 193- 221.
44. U.N. Doc. A/1908.
45. Resolution No. 629 (VII) of November 6, 1952. The Convention entered into force on
April 22, 1954.
46. Resolution No. 526 A (XVII) of April 26, 1954.
Plural .Nationality 169

Persons similar to the 195 1 Convention R elating to the Status of R efugees


was consequently adopted and opened for signature on September 28,
1954.47

C. Plural Nationality

1. In General

In cases of plural nationa lity it is more appropriate to speak of a conflict of


nationality laws. The fact that a person possesses, under municipal law, more
than one nationality, raises a conflict in a sense similar to that in which the
term is used in private international law, i.e., it raises the question what
nationality is to be ascribed to such persons, and what law applied to them.
The absence of far-reaching limitations of municipal nationality law by
international law and the scarcity of positive rules of international law in the
matter of nationality, which become apparent from preceding chapters,
is bound to lead to those conflicts of nationality which are the subject of this
chapter. But they also result in giving States considerable freedom to
prescribe rules for the solution of these conflicts, in the absence of treaty
obligations. It is obvious that in cases of plural nationality the attitude of
individual States may vary according to whether one of the nationalities at
issue is the nationality of the State concerned. Moreover , their attitude will,
in general, be dictated by their own legal system, and not infrequently also
by demographic and political considerations: it will often merely be directed
towards solving the conflict for a specific purpose of municipal law and not in
general. 48 The decisions of municipal courts on questions of plural
nationality have to be viewed in this light. For these reasons the question will
be examined here mainly in the light of the decisions of international
tribunals.
The Reports of the Special Rapporteurs of the International Law
Commission on nationality, including statelessness, Professor Hudson49 and
Professor Cordova, 50 and the Survey of the problem ofmultiple nationality51
prepared by the Secretariat of the United Nations provide useful material.
For the sake of precision the term plural (or multiple) nationality is used
in this chapter although dual (or double) nationality is, of course, the most
frequent case of plural nationality.

47. U.N.T.S. vol. 360 p. 117- the Convention had, by August 31, 1978, been ratified by 32
States; for the text of the Convention see Appendix 11 ; on the Convention cf. Weis in Int. and
Comparative Law Quarter!J 1961 pp. 255-264.
48. CJ the statement of the delegate of the Netherlands, Mr. Kosters, mthe First Committee
of the Hague Codification Conference ( Minutu of the First Committee, pp. 61, 62).
49. Y.B.I.L.C. 1952- 11, p . 3 at pp. ll-12.
50. Report on multiple nationality, Y.B.I.L.C. 1954- 11 p . 42.
51. Y.B.I.L.C. 1954-11 p. 52.
170 " Conflict Rules"

2. Decisions of International Tribunals ( a) Earlier cases

The problem of plural nationality has frequently. arisen before international


tribunals but not as a rule in the form that the tnbunals were called upon to
determine 'the nationality of persons holding more than one nationality in
favour of one or other of the natio.nalities, but rath~r as a preliminary
question in order to enable the tnbunal to .determme whether it had
jurisdiction. Most of these cases arose out of claims, and the question of the
nationality of the individuals concerned had to be examined in order to
establish the so-called " nationality of the claim".
The Canevaro Case between Italy and Peru, decided by the Permanent
Court of Arbitration on May 3, 1912,52 may be regarded as the leading case.
1t concerned a monetary claim of three brothers named Canevaro against
the Peruvian Government, which contested the claim of one of them to
Italian nationality on the ground that he was to be considered a Peruvian
national. According to the terms of the compromis, one of the questions to be
decided by the Court was:
Has Don Rafael Canevaro a right to be considered as an Italian claimant?
The Court held that Rafael Canevaro was of Peruvian nationality jure
soli but of Italian nationality jure sanguinis, but that as a matter of fact Rafael
Canevaro had on several occasions acted as a Peruvian citizen, both by
standing as a candidate for the Senate, to which only Peruvian citizens were
admitted, and particularly by accepting the office of Consul General for the
Netherlands with the authorisation of both the Peruvian Government and
the Peruvian Congress, and that
... under these circumstances, whatever Rafael Canevaro's status as a national may be in Italy,
the Government of Peru has a right to consider him a Peruvian citizen and to deny his status as
an Italian claimant.
The Court thereby accepted the so-called principle of active or effective
nationality, i.e., that in cases of plural nationality a person should be
considered as having the nationality which in fact he exercises. It is
interesting to note that the President of the Court was M. Louis Renault,
who as Rapporteur had been instrumental in securing the adoption of this
principle by the Institute of International Law in 1888. The question arose
m connection with the candidature for membership of the Institute of
Dr. Felix Stoerk, who had both German and Austrian nationality. 53
M: Rena~lt proposed, on behalf of a sub-committee appointed to exam~ne
this question, that the test should be which was the active nationality, z.e.,
the one existing not only in law but also in fact, and that according to this

52. Scott, ~eports, vol. I, pp. 284- 96. U.N. Reports vol. XI, p . 405.
53. Accor~mg to the Constitution of the Institute, the nationals of any one State may not
exceed one-sixth of the total number of members and associates of the Institute, which was at
that time 40. As there were already six German members or associates it was necessary to
determine whether Dr. Stoerk should be considered as a German or an Austrian national.
Plural Nationaliry 171

test Dr. Stoerk was a German national. These conclusions were unanimously
adopted by the Institute at its Lausanne Session.54
The Italian-Peruvian Claims Commission decided in 1901 in the case of
Don Agustin Arata: 55
Considerant .. . 4. Que sans doute quand il se souleve une question de competence par suite
de cette circonstance que Ies lois de deux Etats attribuent a un meme individu une nationalite
diflhente, Ies tribunaux de chacun des deux Etats appliqueront leur loi propre; mais qu'il n'est
plus de meme lorsque Ia question se pose devant un Tribunal Arbitral, Iequel decide
conforement aux principes du droit international, et qu' un de ces principes, universellement
admis, etant que !'enfant legitime acquiert, a!'instant de sa naissance, Ia nationalite que possede
le pere a ce moment.
The question of double nationality also played an important role in the
Salem Case between the United States and Egypt, decided by a Special
Arbitral Tribunal on June 8, 1932. 56 Salem was an Egyptian national who
had been naturalised in the United States; it was also alleged that he
possessed Persian nationality. The Egyptian Government contested the right
of the Government of the United States to espouse Salem's claim, on the
grounds that he had acquired American nationality by fraud and that, even
if his American nationality was admitted, the nationality which was his
effective nationality, namely, the Egyptian, should prevail. The United
States Government maintained, inter alia, that the question whether Salem
had obtained American citizenship by fraud could only be decided by a
competent American court, and that if double nationality were admitted
then the principle of effective nationality could not be acknowledged.
In its reasoning the Tribunal dealt first with the question of Salem's
retention of Egyptian nationality under Egyptian law, as the consent of the
Egyptian Government to his naturalisation had allegedly not been
obtained. 57 It went on:
The principle of so-called "effective nationality" the Egyptian Government referred to does
not seem to be sufficiently established in international law. It was used in the famous Canevaro
Cast, but the decision of the Arbitral Tribunal appointed at that time has remained isolated. In
spite of the Canevaro Cast, the practice of several governments, for instance the German,~ is that
if two powers are both entitled by international law to treat a person as their national, neither of
these powers can raise a claim against the other in the name of such person. 59
The Tribunal assumed that Salem held Persian nationality, but considered it
. . . beside the point to ask whether Salem lost his Persian nationality or not by the acquisition
of American nationality ... the rule of international law being that in a case of dual nationality
a third power is not entitled to contest the claim of one of the two powers whose national is
interested in the case by referring to the nationality of the other power. 80

54. See Annuairt, 1888-89, pp. 23-25.


55. U.N. Reports vol. XV at p. 401.
56. U.N. Reports, vol. II, p. 1161; Annual Digest, 1931-32, Case No. 98.
57. See supra, p. 130.
58. The President of the Tribunal, Dr. Walter Simons, was a German national.
59. U..N. Reports, vol. II, at p. 1187.
60. At p. 1188.
172 "Conflict Rules"

In this connection the Tribunal cited the case of Mackenzie v. Germany, to


which reference will be made hereunder. Dr. Nielsen, the American member
of the Tribunal in a dissenting opinion, emphatically denied that the
principle of effec,tive nationality had obtained that. general_ assent of nations
which was required in order to make it a rule of l~ternatl~nal law. 61
In the case of Mackenzie v. Germany, before the Mtxed Clatms Commission
between the United States and Germany in 1925,62 the question of double
nationality arose from a different point of view. The juri~diction of the
Commission was contested not on the ground that the clatmant had the
nationality of the State of the respondent Government, but that he had the
nationality of a third country, that is, British nationality. The Commission
was set up in pursuance of an Agreement between the United States and
Germany of August 10, 1922,63 supplementary to the Treaty of Berlin of
August 25, 1921.64 The claim was lodged by the United States against
Germany on behalf of the administrator of the estate of Robert
A. G. Mackenzie, who had lost his wife by the sinking of the Lusitania by the
German navy.
Robert Mackenzie was a native-born American citizen, but he was also a
British subject by parentage. The German Agent claimed that by his
continued residence in England and Canada Mackenzie had elected to
remain a British national, that he had forfeited his American nationality by
expatriation, and that the Commission therefore had no jurisdiction.
Umpire Parker decided that the Court had jurisdiction and held that the
German contention was based on a confusion between nationality and
protection:
The American law made no provision for the election of nationality by an American national
by birth possessing double nationality. The American Department of State might decline
protection to an American by birth of foreign parents, so long as he resided in the country of the
nationality of his parents, but it could not deprive him of his American citizenship. Much might
be said in favour of adoption by the United States and other nations of a multilateral treaty,
supplemented by municipal legislation, looking to the abolition of dual nationality or its
termipation through enforced election under appropriate restrictions. But it is not competent for
this international tribunal to consider what the municipal law of the United States with respect
to its citizens should be, but only to find and declare that law as it is....
The Umpire nevertheless went into the question of election. Continued
residence in the country ofwhich the parents were nationals was, he agreed,
strong evidence in favour of election of that nationality, but it 'was not
conclusive evidence; election was a fact and had to be established like any
other fact. The American Department of State contended that Mackenzie
never elected to become a British national but at all times elected to remain,
and did remain, an American national. The Umpire found as a fact that the

61. At pp. 1209, 1210.


62. 20 A.J. (1926), pp. 595-9; Annual Digest, 1925-26, Case No. 200. CJ. Schwarzenberger,
vol. I, pp. 366-7.
63. L.N.T.S., vol. 26, p. 358.
64. Ibid., vol. 12, p. 192.
Plural .Nationality 173

evidence presented sustained this contention. These obiter dicta are of interest
as demonstrating the weight which the U mpire attached to the question of
"effective nationality".
The number of decisions of international tribunals in cases of plural
nationality is very great. In citing these decisions it is necessary to distinguish
between cases where the na tionalities at issue were those of the claimant and
the respondent Governments, and cases where the nationality of a third
State was involved. It is further possible to group the decisions according to
whether they gave effect to the principle of effective nationality or whether
they were based on other considerations.
One of the oldest cases, and one often cited, is that of de Brissot and de
Hammer , which came before the United States-Venezuelan Claims
Commission in 1885.65 This was a claim by the widows and children of two
American citizens killed in an attack by Venezuelan rebels against the
steamer Apure, of which the deceased had been captain and chief engineer
respectively. Mrs. de Hammer and Mrs. de Brissot were Venezuelan
nationals by birth and American nationals by marriage. The Venezuelan
Commissioner, Mr. Andreade, contested the jurisdiction of the Commission
on the ground that the widows of the deceased were Venezuelan nationals.
He maintained that the citizenship they had subsequently acquired by
marriage should be disregarded as not being acquired "consciously and
voluntarily" . Moreover, by their continued residence in Venezuela they
had, he said, shown their preference for Venezuelan nationality, which
should prevail according to "the general principles of international law".
The children, too, ought to be regarded exclusively as Venezuelans:
In case of a conflict between several citizenships that is to be preferred which is more in
accordance with the actual position of the person, namely that of his actual residence and
domicile."
The American Commissioner, Mr. Little, also disputed the jurisdiction of
the Commission on the ground that the widows of the deceased were not
citizens of the United States within the meaning of the Treaty under which
the Commission was established.
The presiding Commissioner, Mr. Findlay, held that the Commission had
no jurisdiction. As Mrs. de Hammer and Mrs. de Brissot were native-born
Venezuelan nationals and domiciled in Venezuela, he held that the law of
the United States, under which they were American citizens, could have no
influence on this case. Though the Commission was here clearly influenced
by the idea of the greater importance of the nationality acquired by birth in
the territory, the territorial test, i.e., the question of domicile, seems, in fact,
to have determined the issue.
In the Alexander Claim 67 jurisdiction was denied by the United States-

65. Moore, Arb. , p. 2456.


66. At p. 2459.
67. Moore Arb. vol. III , p. 2529.
174 "Conflict Rules"

British Claims Commission in 1872 on the ground that the claimant had
both United States and British nationality.
In the case of Elise Lebret,68 decided by the French-United States Claims
Commission in 1882: which concerned a claimant holding French and
United States nationality, the French Commissioner conceded that, since
the claimant had not effectively shown her attachment to France, the French
Government would not espouse her claim. 69 The American Commissioner,
on the other hand, contested the jurisdiction of the Commission on the
ground that there was a conflict of nationality laws and that the claimant
should be deemed to be an American citizen since she had her domicile in
the United States.
The territorial test was also applied in the Mathison Case 70 before the
British-Venezuelan Claims Commission; Umpire Plumley called it the "test
of nature". 71
The Venezuelan Mixed Claims Commissions of 1903 to 1905 were, in
general, inclined to give preference in cases of double nationality to the
nationality of the State in which the claimant had his habitual residence,72
although their decisions were also based on other grounds. 73 Umpire
Ralston, in particular, favoured the principle of the prevalence of the
nationality of the respondent State. 74
In the Pinson Case before the Franco-Mexican Claims Commission in
1928,75 the question of double nationality also played a role, although in this
case the assumption of double nationality was subject to the claimant's
possession of Mexican nationality according to Mexican law, which was
denied by the Commission, and also to the validity of the relevant Mexican
law according to international law. The Commission held that:
... even if the case were recognised as one of double nationality from the strictly legal point of
view, it would be very doubtful if the claimant could not have invoked the Convention
notwithstanding, owing to the fact that the Mexican Government itself had always considered
him, officially and exclusively, as a French subject. 76
Among cases before the Mixed Arbitral Tribunals established by the Peace
Treaties concluded after the First World War, the case of Mme. Barthez de
68. Referred to supra, p. 10'2.
69. Moore, Arb., p. '2497.
70. Ralston, Report, p. 429.
71. At p. 438.
72. For example, the British-Venezuelan Claims Commission in the case ofStevenson (Ralston,
Report, at p. 438), the Italian-Venezuelan Commission in the cases of Brignone (ibid., p. 710,
U.N. Reports, vol. X, p. 542} and Miliani (ibid., p. 754, U.N. Reports, vol. X, p. 584), and thr
Franco-V enezudan Claims Commission in tlw cas<·s of .\1aninat (Ralston, Report of the Franco-
Vene~uelan Mixed Claims Commission of /902, p. -1-4, U .N. R<·ports, vol. X, p. 55) and J1assiani
(Ralston, p. '211 ).
73. Cf on these arbitrations Basdevant, "Conflits de Nationalite dans les Arbitrages
venezueliens, 1903-1905" in Reuue de Droit international prive, vol. V ( 1909) , pp. 41-63. .
74 · Cf his dicta in the Brignone Case (at p. 717, U.N. Reports, vol. X, p. 584) and the Miliam
Case (at P· 762), where he gave the effective choice of Venezuelan nationality by the claimant's
father as an additional reason; and see Ralston, Law and Procedure, p. 172.
75. Referred to supra, pp. 77, 106, liOn.
76. Annual Digest, 1927-28, Case No. 195.
Plural Nationality 175

Montfort v. Treuhander Hauptverwaltung 17 may be cited. The claimant


possessed both French and German nationality; she had never abandoned
her domicile in France, where she continued to reside at Montpellier. The
Tribunal, after referring to the Resolution adopted by the Institute of
International Law in 188878 on the question of the nationality of Dr. Felix
Stoerk, held that although a municipal tribunal was bound in such cases to
apply the laws of its own country, an international tribunal was not bound
by such rules; that the pt·inciple of active nationality, i.e., the determination
of nationality by a combination of elements of fact and of law, must be
followed by international tribunals; and that the claimant was a French
national and entitled to judgment accordingly. 79
The British-German Mixed Arbitral Tribunal decided in the case of Hein
v. Hildesheimer Bank, 80 in which the claimant was a German national by birth
and a British national by naturalisation, in favour of the claimant, on the
ground that:
... as the creditor had become a British national, and as he was residing in Great Britain on
January 10, 1920, he has acquired the right to claim under article 296 [of the Treaty of
Versailles].
and that "it is immaterial whether he has or has not lost his German
nationality". 81
While in these cases the nationalities of the interested States were at issue,
the Yugoslav-Hungarian Mixed Arbitral Tribunal was faced with the issue
whether it had jurisdiction in the case of a claimant possessing German and
Hungarian nationality. It held, in Baron Frederic de Born v. The Serb-Croat-
Slovene State, 82 that the claimant was of Hungarian nationality and that it
had jurisdiction:
It was the duty of the tribunal to examine in which of the two countries existed the elements
in law and in fact for the purpose of creating an effective link of nationality and not merely a
theoretical one, and it was the duty of a tribunal charged with international jurisdiction to solve
conflicts of nationalities. For that purpose it ought to consider where the claimant was
domiciled, where he conducted his business, and where he exercised his political rights. The
nationality of the country determined by the application of the above test ought to prevail.
The question of the consequences of double nationality came before the
Tripartite (United States- Austro-Hungarian) Claims Commission in 1928,
in Re Tellech. In that case the issue was whether the Austrian Government
was entitled to subject Tellech, an Austrian national by parentage and an
American citizen by birth, to compulsory military service. It was held that as

77. 6 Recueil T.A.M. ( 1927), p. 806; Annual Digut, 1925- 26, Case No. 206.
78. See supra, p. I 70-1.
79. In the same sense Blumenthal v. German State ( 3 Recueil T.A.M. p. 616) .
80. 2 Recueil T.A.M. ( 1923), p. 71; Annual Digest, 1919- 22, Case No. 148. See supra, pp. 76, 80.
81. 2 Recueil T.A.M. ( 1922), at p. 22. The Greco-Bulgarian Mixed Arbitral Tribunal held in
Grigorian v. Bulgarian State (3 Recueil T.A.M. ( 1924) p. 977, cited in Bar-Yaacov "Dual
Nationality" (1961) p. 215) the original nationality of the claimant who had become
naturalised in Bulgaria without the authorisation of Greece to be predominant.
82. Recueil T.A.M., vol. VI, p. 499; Annual Digest, 1925- 26, Case No. 205.
" Conflict Rules"
176

T ellech had voluntarily subjected himself to Austrian J~risdiction .by. taking


,·d ce in Austria the Austro-Hungarian authont1es were Withm their
up re:s1 en ' · · h A ·
· h
ng ts m · reqmn · 'ng h1'm to perf4orm military service m t e ustnan army.sa
In ]ulhiard v. Secretary-General of the Unite~ Nations .the ~dministrative
84

T n'b una 1ofthe United Nations had to determme the nationality


· 1· status of the
plaintiff, a staffmember of the. United. Nations. ofdua1 natwna tty, under the
Staff Rules of the United Nations whtch provtde that where a staff member
has been legally accorded nationality status of more than one State, his
nationality for the purpose of the Staff Reg~l~tions and Rules shall be the
nationality of the State with which, in the opmwn ~f t.he Secretar~-General,
he is most closely associated. (Rule 104.8! . The pl~t?ttffwas a Umte? States
national jure soli and a French nationalyure sangumzs. Sh~ was. marned to a
Frenchman and was of French mother tongue. She had hved m the United
States since 1941 and in 1937/38, on attaining majority, had applied for a
United States passport. The Secretary-General had determined that her
nationality was that of the United States for the purpose of the Staff
Regulations and Rules. The Tribunal decided on December 3, 1955 that the
Secretary-General had exercised his discretion reasonably.

(b) The Nottebohm Case (Liechtenstein v. Guatemala)

Strictly speaking, this Case may not belong in this chapter as one nationality
only, that of Liechtenstein, was at issue. It seems nevertheless justified to deal
with the Case here on account of the views expressed by the International
Court of justice on the relevance, from the aspect of international law, of
substantial links in questions of nationality and the exercise of protection.
The case concerned a claim by Liechtenstein on behalf of Friedrich
Nottebohm against Guatemala that the Government of that country, in
arresting, detaining, expelling and refusing to readmit Nottebohm and in
seizing and retaining his property without compensation, acted in breach of
their obligations under international law and consequently in a manner
requiring the payment of compensation. The measures had been taken
against Nottebohm and his property on the ground that he was an enemy
alien; Liechtenstein regarded them as contrary to international law as
Nottebohm, as a na tional of Liechtenstein, was the national of a neutral
country.
The International Court ofJustice held on April 6, 1955 on a plea in bar,
by. el~ven. votes t? three, that the claim submitted by the Government of the
Prmc1pahty of Liechtenstein was inadmissible.ss
The facts were as follows : Friedrich Nottebohm was born at Hamburg in
1881 as a German national. In 1905 he went to Guatemala where he carried

83. Final Report of Commissioner and Decisions and Opinions (Washington 1933) (Parker's
Report), p. 71. CJ. also Re Fox, p. 73. ' '
84. 22 Int. Law Reports, p. 809.
85. I.C.J. Reports 1955, p. 4, at p. 26.
Plural .Nationality 177

on successful business acttv1t1es and where he had his . fixed abode.


Guatemala entered the Second \.Yorld War on the side of the Allies on
December II 194 1, a.nd in 1943 Nottebohm was arrested as an enemy alien,
deported to the Umted States and interned there. During his stay in
Guatemala Nottebohm went on various occasions to Germany with which
he had business connections and paid a few visits to one of his brothers who
had lived in Liechtenstein and had become a national of that country.
Early in 1939 Nottebohm left Guatemala when he seems to have gone to
Hamburg and to have visited Liechtenstein a few times. On O ctober 9,
1939, a little more than a month after the outbreak of the war, his lawyer
submitted on his behalf an application for naturalisation by Liechtenstein
which was granted. On October 20, 1939, Nottebohm took the oath of
allegiance. A total amount of 40,500 Swiss Francs was paid in fees for the
naturalisation; Nottebohm further undertook to pay an annual tax of
naturalisation of l ,000 Swiss Francs which would be set off against ordinary
taxes if he took up residence in Liechtenstein, and to deposit as security
30,000 Swiss Francs. Having obtained a Liechtenstein passport Nottebohm
returned to Guatemala at the beginning of 1940 where he resumed his
former business activities.
The Liechtenstein Nationality Law of January 4, 1934 specifies that the
applicant for naturalisation should, inter alia, prove that his former
nationality will be lost as a result of the naturalisation, although this
requirement may be waived under certain specific conditions. It further
makes naturalisation conditional upon compliance with the requirement of
previous residence for at least three years in the Principality although "this
requirement can be dispensed with in circumstances deserving special
consideration and by way of exception".
Guatemala asked to declare the claim inadmissible on the grounds
(a) that Nottebohm had not properly acquired Liechtenstein nationality in
accordance with the law of the Principality;
(b) that naturalisation was not granted to Nottebohm in accordance with
the generally recognised principles ofinternationallaw regarding nationality;
and
(c) that in any case Nottebohm appeared to have solicited Liechtenstein
nationality fraudulently, i.e. with the sole object of acquiring the status of a
neutral national before returning to Guatemala, and without any genuine
intention to establish a durable link, excluding German nationality, between
the Principality and himself. 86
In the oral pleadings it was claimed that in granting naturalisation
Liechtenstein had been guilty of an abuse of rights, if not of fraud. 87
The Court stated that it did not depend on the law or the decision of
Liechtenstein whether that State was entitled to exercise protection. "To
exercise protection, to apply to the Court, is to place oneself on the plane of

86. At p. II.
87. I.C.J. Nottebohm Case, Pleadings vol. II, p. 226.
178 "Coriflict Rules"

international law. It is international law which determines whether a State·


. t h e C ourt. "88
entitled to exercise protection and to setse IS

The Court declared:


International arbitrators have decided in the same way numerous cases of dual national"t
where the question arose with regard to the exercise of protection. They had given t~ ~,
preference to the real and effective nationality, that which accorded with the facts, that bas~~
on stronger factual ties between the person co.ncern~d and one ~f ~he States wh~se nationality is
involved. Different factors are taken into consideration, and their Importance Will vary from 0
case to the next: the habitual residence of the i~d~vidual con~erne~ is a.n im~ortant factor, b~~
there are other factors such as the centre of his mterests, his family ties, his participation i
public life, attachment shown by him for a given country and inculcated in his children et;
Similarly, the courts of third States, when they have before them an individual who~ tw~
other States hold to be their national, seek to resolve the conflict by having recourse to
international criteria and their prevailing. t~ndency is t~ ~refer th~ real an? effective nationality.
The same tendency prevails in the wntmgs of publicists and m practice. 89
After having defined nationality in the terms mentioned earlier9o the
Court went on to say:
It may be said to constitute the juridical expression of the fact that the individual upon whom
it is conferred, either directly by the law or as the result of an act of the authorities, is in (act
more closely connected with the population of the State conferring nationality than with that of
any other State. Conferred by a State, it only entitles that State to exercise protection vis-a-vis
another State, if it constitutes a translation into juridical terms of the individual's connection
with the State which has made him its national.
The Court concluded:
These facts clearly establish, on the one hand, the absence of any bond of attachment between
Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close
connection between him and Guatemala, a link which his naturalisation in no way weakened.
That naturalization was not based on any real prior connection with Liechtenstein, nor did it in
any way alter the manner of life of the person upon whom it was conferred in exceptional
circumstances of speed and accommodation. In both respects, it was lacking in the genuineness
requisite to an act of such importance if it is to be entitled to be respected by a State in the
position of Guatemala. It was granted without regard to the concept of nationality adopted in
international relations.
Naturalisation was asked for not so much for the purpose of obtaining a legal recognition of
Nottebohm's membership in fact in the population of Liechtenstein, as it was to enable him to
substitute for his status as a national of a belligerent State that of a national of a neutral State,
with the sole aim of thus coming within the protection of Liechtenstein but not of becoming
wedded to its traditions, its interests, its way of life or of assuming the obligations-other than
fiscal obligations-and exercising the rights pertaining to the status thus acquired.
Guatemala was "under no obligation to recognize a nationality granted in
such circumstances". 9 2
The decision of the Court has evoked a great deal of comment, 93 much of

88. At pp. 20-l.


89. At p. 22.
90. Supra at p. 31.
91. At p. 23.
92. At p. 26.
93. See the bibliography on the case at pp. 318-21.
--
Plural Nationality 179

it critical. The criticism was, in particular, directed against the dissociation


of diplomatic protection from nationality which, in the view of the critics,
resulted from the decision. 94 In the view of the present writer this criticism is
not justified. The Court declared explicitly that it would not consider the
question of the validity ofNottebohm's naturalisation according to the law of
Liechtenstein, 95 and that merely the question was involved whether that
naturalisation had to be recognised for the purpose of the admissibility of the
Application and whether it had to be recognised by Guatemala. The Court
did not pronounce either on the general validity of the naturalisation under
international law. It merely held that Nottebohm's nationality was not
opposable by Liechtenstein against Guatemala in international judicial
proceedings. 96
The majority of the Court may have been impressed by a Circular letter of
the German Foreign Office of July 4, 1939 submitted by Guatemala97 to
German representatives in Latin America in which it was said that "a
preponderant German interest may call for the acquisition of a foreign
citizenship by German nationals. In this case, if the granting of approval for .
the retention of German nationality is not compatible with the law of the
respective foreign State and does not need to be considered, there are
no objections to accommodating the person involved for the purpose of
acquisition of foreign citizenship by granting him an assurance that a
possrble future application for renaturalization in Germany will receive
favourable consideration". The lex Delbriick98 was also frequently mentioned
in the pleadings. Professor Henri Rolin's allusions, in his eloquent pleadings
as Counsel for Guatemala, that Nottebohm had bought his naturalisation;
that he had been a member of the Nazi party, and the emphasis on his dose
business connections with Germany may also have left an impression. The
Court refrained, however, from expressing a view on the validity of
Nottebohm's naturalisation under municipal law and under international
Iaw in general. It limited itself to the question of opposability.
In this writer's view-and this was the view of the dissentingJudges 99-the
examination of the question of Nottebohm's nationality should have been
joined to the Merits. The measures complained ofwhich were taken against
Nottebohm and his property were taken on the ground that he was an enemy
alien. Legislative Decree No. 690 of May 25, 1949100 enacted by Guatemala

94. Cf e.g. Kunz in 54 A.J . (1960) pp. 536-71 ; M. Jones in Int. and Comparative lAw Quarter?J
( 1956) pp. 230-44; Makarov in 16 Zeitschriftfur ausliindisches Ojfentliches and Volkerrecht ( 1956) pp.
407-26; cJ. also the dissenting Opinions of Judge Klaestad (at p. 30) and of Judge ad hoc
Guggenheim (at pp. 60, 62-3).
95. At p. 20.
96. Cf Maury in Festgabejfir Makarov 23 Zeitschrijtjfir ausliindisches und internationales Privatrecht
pp. 515-34, Plender op. cit. p. 86; Juage Fitzmaurice in his separate Opinion in the Barcelona
Traction Case (I.C.J. Reports 1970 p. 3, at p. 81).
<J7. Nottebohm Case. Pleadings vol. I p. 228.
98. See supra, pp. 79- 80.
99. Judge Klaestad at p. 33, Judge Read at p. 49, Judge ad hoc Guggenheim at p. 80.
100. Pleadings vol. I pp. 138-9.
180 "Conflict Rules''
. t d I· I. ts Article 7 that " for the purpo es of Article 3 of this L
supu 1a e 11 . aw and
·
A rue e 1 39 of the Constitution
. all . the assets are considered . enemy p ropert y
I . h belong inter alza to: a ) Pnvate persons or corporatiOns hold' h
"" liC . . . mg t e
·
nauona 1 l'ty of any of the countnes vnth which the R epublic was at war or
who held such nationality _on ~ctober 7, 1938, _e ven though they clai~ to
I1ave acquired another nauonahty .
subsequently, ....
h fi . h "
c) Private persons ~r corporations w o gure m t e Pron:ul?ated Lists"
(Listas Proclamadas) Iss~ed by the ~over~ment of the Repubhc, m their own
name or indirectly, with the nommal hst, complete or mcomplete, of their
assets".
Friedrich Nottebohm's name was on the British and United States' bl k
'd . I ac
lists. The Guatemalan lists were I enuca .
As has been seen, 10 I enemy nationality and enemy character are not
necessarily identical.
In the ~iew of this writer the importance of the decision in the Nottebohm
Case lies in the fact that the principle of effective link was applied in a case
where only one nationality was at issue.
The Institute oflnternational Law adopted at its Warsaw session in 1965
on the report of Professor Briggs, a Resolution on " The National Characte;
of International Claims Presented by a State for Injury Suffered by an
Individual".l02 The Resolution proclaims, in cases of dual nationality, the
principle of equality when the nationalities involved are those of the
claimant and respondent State, and the principle of effective link when the
nationalities are those of the claimant and a third State. It then goes on to
say:
4c) An international claim presented by a State for injury suffered by an individual may be
rejected by the respondent State or declared inadmissible when, in the particular circumstances
of the case, it appears that the nationality has been conferred on that individual in the absence
of any link of attachment.

This constitutes a generalisation of the "link theory" as applied by the


Court in the Nottebohm Case. The circumstances of Nottebohm's
naturalisation were, however, quite exceptional and do not lend themselves,
in this writer's view, to such a generalisation. " Bad cases make bad law."
The ~forementioned rule, if generally applied, would constitute, i~ is
subm1t~ed, a further limitation of the principle of the nationality of clatms
and bnng a further element of uncertainty into it. 103
In the words of Professor Jennings:
"If courts were tempted without the aid of presumptions to investigate the genuineness of
every case of naturalisation, the only effect would b e to erode clear rules of traditional law and

10 I. Supra pp. 9-12.


I02. Annuaire 1965-II pp. 269-?l .
p. ~~~- CJ .Judge ad hoc Guggenheim .in his dissenting Opinion, at p. 63; Cuthbert Joseph op. Cll.
-
Plural ]\ ationality 18 1

10 ubstitute a ·ort of equi t n:mini ·c l1l of the ·a rt tage ofcq uit in Engli·h courtg, which, il
was aid , \·aried according to the I ngth of the C ha ncellor' · fuot." toa
It would, moreo\ er , it is believed , be unju tifi ed to crea te uch a
distinction between born and na tura li ed na tiona ls to the disadvantage of
the latter. This would onl y add to the tendency, noticeable in the legislation
and practice of some States, to regard na turalised person as second-rate
nationals-a tendency which has rightly been objected to. 105 Naturali ation
is norma lly accorded only after a thorough examination a nd evidence of
attachment to the country of adoption is required, not only by residence but
also by such factors as knowledge of the la nguage of the country, of its
Constitution, centre of persona l interests and of professiona l activities etc.
Na tionality at birth a cquired jure soli, on the other hand , m ay be a pure
accident of birth and does not prevent the person from spending all his life
abroad, and nationality may be acquiredjure sanguinis although the person's
ascendants never lived in the country of nationa lity and he may not li\ e
there himself. 106

(c) The Italian Conciliation Commissions

These Commissions were set up under Article 38 of the Peace Treaty with
Italy of February I 0, 194 7107 to decide on disputes concerning property
claims arising in giving effect to the Treaty. Many of the cases before the
Commissions related to claims of dual nationals, holding the nationality of
the claimant State and of Italy.
The Merge Claim, 108 decided by the United States-Italian Conciliation
Commission on June 10, 1955, is the leading case. The third member
(Umpire) was Professor Messia of Madrid University.
Mrs. Strunsky-Merge was born in New York City in 1909; in 1933 she
married an Italian national, a translator in_ Government service, and
acquired thereby Italian nationality. During the following four years she
lived in Italy, then accompanied her husband to Tokyo, travelling on an
Italian passport, where she registered with the American Consul General as
a United States national in 1940. On December 10, 1946, she was issued with
an American passport valid only for travel to the United States which was,
however, later validated for travel to Italy. On September 19, 1947, Mrs.
Strunsky-Merge arrive~ in Italy where she had since resided with her
husband . Immediately 'fter returning to Italy she registered as a United
States national at the Consular Section of the United States Embassy in
Rome. On September 10, 1950, she applied for and was granted an

104. In Hague Recueil 1967-11 p. 459.


105. E.g. by Zourek, Y.B.l.L.C. 1952-1 pp. 136, 139, Lauterpacht, Y.B.I.L.C. 1954-1 p. 17;
Sandstrom, ibid. p. 9; Konvitz "Civil Rights in Immigration" ( 1953) pp. 111-114.
106. Cf judge ad hoc Guggenheim in his dissenting Opinion, at p. 56.
107. U.N.T.S . vol. 49 p . 3.
108. 22 Int. Law Reports p. 443.
182 "Conflict Rules"

American passport. In her application she stated that h er " legal residence"
was in New y ork and that she intended to return to the United States to
reside there permanently.
The Commission held unanimo~sly that Mrs .. Merge. co.uld in no way be
considered to be dominantly a Umted States na~IOn~l Withm the meaning of
Article 78 of the Peace Treaty because the family did not have its habitual
residence in the United States and the interests and the permanent
professional life of the head of the family were not established there. Mrs.
M erge had not lived in the United States since her marriage, had travelled
to .Japan on an Italian passport and it did not appear that she was ever
interned as a national of a country enemy to Japan.
The Petition of the Agent of the United States was, therefore, rejected.
The Commission noted that the problem raised had the importance of a
question of principle and "deemed it, therefore, advisable to take up the
examination of the complex problem of dual nationality in all its
aspects" . 10 9 The Commission reviewed the Hague Conference of 1930, the
decisions of international tribunals and legal literature. It concluded that
there was "no irreconcilable opposition between the principle of equality
and of effective or dominant nationality; in fact, they complemented each
other reciprocally" .110
The principle based on the sovereign equality of States, which excludes diplomatic protection
in the case of dual nationality, had to yield before the principle of effective nationality whenever
such nationality was that of the claiming State . ... habitual residence can be one of the criteria
of evaluation, but not the only one. The conduct of the individual in his economic, social,
political, civil and family life, as well as the close and more effective bond with one of the two
Sta tes must also be considered".lll
On the basis of this reasoning the Commission established the following
principles as a guide: (the reference to United States and Italian nationality
would, in the Commission's view, apply mutatis mutandis whenever the
nationalities of the claimant and respondent State were at stake).
7) (a) The United States nationality shall be prevalent in cases of children
born in the United States of an Italian father and who have habitually lived
there.
(b) The United States nationality shall also be prevalent in cases involving
Italians who, after having acquired United States nationality by natural-
isation and having thus lost Italian nationality, have reacquired their
nationality of origin as a matter oflaw as a result of having sojourned in Italy
for more than two years, without the intention of retransferring their
residence permanently to Italy.
(c) With respect to cases of dual nationality involving American women
married to Italian nationals, the United States nationality shall be prevalent
in cases in which the family has had habitual residence in the United States

109. At p. · 444.
I 10. At p. 454.
Ill. At p. 455.
/'!uraL N atiunalit 183

alld the inll~n·:-,t. ~~lid rh . r · ~man ~ nt prof<.:s io na llife of the head ufthc fam ily
wcr · estahlrsh ·I rn th nrtcd Stat ' S.
(d) In case of di~su l.ution of marriage, if the family was e tabli hed in I talv
~ nci 1he widow tra nsfer. h ~ r resid ence to the U nited State- of Am eric;,
wlt~' lh tr or nut th ·new r ·. id ·n - is of an ha bitual nature must be evalua ted
. . '
ca. c hy ·asc, bc:anng m mind al. o the widow' conduct, especially with
rl·ga rd to the raising of h T c hildren, for th e purpose of d eciding which is the
prevalent na tio na lity.
8) United States natio nals who did not possess Italian nationality but the
na tiona lity of a third State can be consid ered "U nited Nations nationals"
under the Treaty, even if their prevalent nationality was the na tionality of
the third State.
9) In all other cases of dual nationality, Italian and United States, when,
that i. , the United States nationality is not prevalent in accordance with the
above, the principle of international law, according to which a claim is not
admissible against a State, Italy in our case, when this State also considers
the claimant as its national and such bestowal of nationality is, as in the case
of Italia n law, in harmony (Article 1 of the Hague Convention of 1930) with
international custom and generally recognized principles of law in the
matter of nationality, will reacquire its force. 112
The Commission d ecided Mazzoni's Claim 113 with the same line of
reasoning. It subsequently decided the Spaulding Claim 114 the :(angrilli, Cestra
and Puccini Claims, 115 the Salvoni Estate Claim,116 the Ruspoli, 117 Verreano, 118
Ganapini 119 Santia 120 Turri 121 Di Ciccio 122 and Tucciarone123 Claims according
' ' '
to the principles established in the Merge Case. The Graniero Claim 124 was
also decided by the Commission according to the principle of the prevalent
link but without reference to the "Merge principles".
The Franco-Italian Conciliation Commission decided several claims of
dual nationals according to the "link theory" without, however, referring to
the "Merge principles": the Ramhaldi Claim,125 the Menghi Claim 126 and the
Lombroso Claim.1 27

112. At pp. 455- 6.


113. 22 Int. La w Reports p. 457.
114. 24 Int. Law Reports p. 452.
115. Ibid. p. 454.
116. Ibid. p. 455.
117. Ibid. p. 457.
118. Ibid. p. 464.
119. 30 Int. Law Reports p. 366.
120. Ibid. p. 368.
12 1. Ibid. p. 371.
122. 40 Int. Law Reports
p. 148.
123. U.N. Reports vol. XIV p. 398.
124. U.N. Reports vol. XIV p. 393.
125. U.N. Reports vol. XIII p. 786.
126. Ibid. p. 80 I.
127. Ibid. p. 804.
184 "Coriflict Rules"

In the Flegenheimer Claim 12s before the United Stat.es-ltalian Conciliation


Commission decided on September 20, 1958, the Issue was whether the
claimant possessed American nationality and the question was largely one of
evidence. The case will, therefore, be reviewed in the next chapter. 129 The
Commission, however, also expressed its views on the doctrine of effective
nationality. It was of the opinion that it is doubtful that the International
Court of.J ustice intended to establish a rule of general .internationa.llaw in
requiring, in the Nottebohm Case, that there must exist an effective link
between the person and the State in order that the latter may exercise its
right of diplomatic protection on behalf of the former. The Court had
"distinctly affirmed the relative nature of its decision". The theory of
effective or active nationality had been established for the purpose of settling
conflicts between two States regarding persons simultaneously vested with
both nationalities. 13o
After reviewing some precedents and the Hague Convention the
Commission went on to say: "But when a person is vested with only one
nationality ... the theory of effective nationality cannot be applied without
causing confusion. It lacks a sufficiently positive basis to be applied to a
nationality which finds support in a state law. There does not in fact exist
any criterion of proven effectiveness for disclosing the effectiveness of a bond
with a political collectivity, and the persons by the thousands who, because
of the facility of travel in the modern world, possess the positive legal
nationality of a State, but live in foreign States where they are domiciled and
where their family and business center is located, would be exposed to non-
recognition, at the international level, of the nationality with which they are
undoubtedly vested by virtue of the laws of their national State, if this
doctrine were to be generalized. "131
The Commission refused to determine Flegenheimer's nationality on the
basis of the link theory.
It is perhaps not irrelevant to remark that the third Member of the
Commission, Professor Sauser-Hall of Geneva and Neuchatel University,
had been Counsel for Liechtenstein in the Nottebohm Case.

(d) Conclusions

It seems difficult to try to derive any general rules from the decisions
reviewed-to which many more decisions could be added-but this is
ha~dly surp~ising. In assessing them, the terms of the treaty or compromis
which constituted the terms of reference of the tribunal the time when the
decision was made, and even the composition of the t~ibunal have to be
taken into account. It has to be considered whether the trib,unal had to

128. 25 Int. Law Reports p. 91.


129. See infra pp. 210-12.
130. At p. 148.
131. At p. 150.
-
Plural Nationality 185

decide according to strict law or was authorised, by the treaty or compomis,


which established it, to decide ex aequo et bono. 132 The so-called rule of
equality excluding from the jurisdiction of international tribunals, claims of
persons possessing two or more nationalities, if one of these nationalities was
that of the respondent State, seems not to have been followed throughout.t='3
In earlier decisions there seems to have been an inclination to weigh the
various nationalities according to the mode of acquisition; to attach greater
weight to the nationality acquired at birth than to one subsequently
acquired; to prefer nationality acquired jure soli to that acquiredjure sanguiniJ
or vice versa; and to prefer the nationality acquired by naturalisation.
However, this tendency does not seem to have persisted. The view of the
Italian Commissioner in the Miliani Case, that nationality acquired jure
sanguinis should prevail over nationality acquired jure soli as it was the
original one, acquired even prior to birth at the very moment of conception,
shows the absurd lengths to which this tendency might be stretched. 134
As to the test of effective nationality, the scepticism expressed by the
majority, and particularly by Dr. Nielsen, in the Salem Case does not seem
borne out by the practice of international tribunals. The preference given to
the territorial test in some of the Venezuelan arbitrations is hardly a basic
deviation from the tendency to give weight to the individual's factual
attachment in solving positive conflicts of nationality-a tendency which
seems to the present writer the most striking and uniform in the practice of
international tribunals in questions of plural nationality. The importance
attached to domicile in the Venezuelan cases can probably be explained 135
by the legal background of some of the Umpires. As Americans, they may
• have been influenced by the decisive role which domicile plays in common
law for determining questions of personal status. It may also be ascribed to
the tendency of international law to consider, in principle, the law of the
State having territorial jurisdiction as applicable. The domicile, or more
precisely the habitual residence of an individual certainly constitutes an
important element in assessing his factual attachment to a particular
country, that is, his effective or active nationality. If taken as the only
criterion, it is bound to fail in those cases where the habitual residence of an
individual is outside the territories of the States whose nationalities are in
question. 136

132. The Venezuelan Claims Commissions were, according to the compromis, called upon to
decide "on the basis of absolute equity"; according to the Franco-Mexican Arbitration
Convention the members of the Commission undertook to examine all claims "according to the
principle of equity". Cf Ch. de Visscher "De l'Equite dans le reglement arbitral et judiciaire
des litiges du droit international public" ( 1972) pp. 69, 76.
133. See infra, pp. 200-l. On the application of this rule to the "nationality of claims", cJ. an
article under this title by Sir Cecil.J. B. Hurst in his Collected Papers, pp. 88-110.
134. Cf Ralston, Report, p. 756.
135. As is done by Pfeiffer in Das Problem de effektiven Staatsangehoe.rigkeit im Voelkerrecht,
pp. 28-9.
136. Cf the Belgian answer to point I I .3 of the questionnaire drawn up by the Preparatory
Committee for the Hague Codification Conference (Bases of Discussion, p. 31 ).
186

Tl \ C d e'r i:s·io n in the. \ ottt·bohm Casr h,\S r crt,l


. •
i lll~ ~j , l'll .I St l'll llg i liiJ ll' (ll\ 1
• I I I' II
the ''link theory' ' as CYid L'IlLTd uy the d Ct' I:\1\ )II S t)l I H' t.l 1.111 C\111\'ili.ltinll
Commissions.

3. State Practiu: tl T in' H tWIIt' Codifi((ltion Con};'lfll( t'

The Prepa ratory Conunitt cL' to r the (\.ll~illl'a tinn .Conkrcnn· h.1 ~~ r,·q llt'stc·d
the views ofGovernmc nts o n thrct' questio ns rt'l a ttn~ to plurnlwlttllll:t lity: 1a 7
1. \ Vhc ther in ca ·es of this kind cad1 St:\lc had the ri~ht to appl ) its 11 ,, 11
law.l 38
2. Is either of the States wlw~c natio nality a pcrsnn ptlssrs:-:cs r ntitlnl 111
exercise the right of diplo ma tic pro tec tio n o n his beh a lf ag'.tinst th ~· t•tl h·r
Sta te? If no answer cmTring· all cases can l>e g·i,·cn , can sur h protr,·ti0 11 lw
exercised as aga inst a tate of whi c h the pnso n cnucenH·d has lh'l'll ,1
na tiona l since birth or ao·a inst a ta te o f,,, hic h hr is a na ti ona l thro 11~h
na tura lisa tion or in w hich he is domi cikd, or o n l>ehalf nf w hich he ism h a~
been ch a rged with political fun ·ti o ns o r is the qut·stion g\ n 'nnnl by nthrr
considera tions capa ble o f being fo rmulated ?
3. W h a t principles d ecide w hich n a tio nality is to pn·\'ai l on ·r thl· nlltn when
the question presents itself to a third State?
On the first question the G overnments a pproved a lmost un a nimnu~ l y the
principle tha t each State m a) a ppl) its w n la w, a nd this principle has l~ll t lld
expression in Article 3 of the Conventio n o n Certain Questions n·lati11p: to
the Conflict of Nationa lity Laws. This A rticle read s as fo llows:
Subj ect to the provisio ns of this Conven tion , a person h avi n~ two or llltll'l' llll tilln.tlitirs 111.11
be regard ed as its na tio nal b y each o f the States whose natio na lit y he vossessrs. m
The G overnment of the United S tates, w hile recognis in~ the prilll'ipk.
stated tha t " the United States d oes not recognise th<' existellt'l' of du:tl
na tio na lity in the cases of pe rsons of a lie n o rig·in w ho ha ve oht.ai11rd
na turalisation in the United Sta tes", a nd referr ·d to Moore's JJ£grsl. 1411
On the second question , the G overnments of the U nion o f ou th \frira.
G erma n y, Austra lia , Austria, Bulgaria, Czechoslovakia , Eg-ypt , J.a t,·ia.
Pola nd , Siam a nd Swed e n accepted the pri ncipl · tha t no S ta te should
exercise its rig ht of diplom atic pro tec tio n o n beh a lf of a na tional a~a i11s 1
a nother Sta te of whic h tha t person was a lso a na tional.
The British Government, with whose reply th e Governments of In lia and

137. Bases of Discussion, pp. 'L'L, 25, 30.


138. As e~ vi~aged by Article 5 of th e Preliminary Dra ft Convc111 iun, allll'lldr~l 1~>'
Mr. Rundstem m the light of the discussio n in th e Committee of Exp<'rts (L.. N. IJor. C. .tJ.
M . 18 . 1926. V . p. 20 ). •
" 139. Cf Isr~el Nation~lity La w, 1952 (Official Journal, No. 93, p . 2:l), Article 14 , (~;,:
An. Israel national who IS also a foreign nationa l sha ll , for th ·· purpose of th e l ~rad Lo" '
considered as a n Israel na tional."
140. VoL III , p . 5 18, cf Bases of Discussion, p. 147.
Plural Nationality 187

New Zealand associa ted themselves, stated tha t each of the States concerned
was entitled to regard its own nationality as the dominant nationality (a) on
its own territory, and (b) in a ll questions which might arise as between that
State and the person concerned. 141 It was concluded therefrom that a State
may not claim to accord diplomatic protection to its national against another
State of which that person also is a national. The Stevenson Case decided by the
British-Venezuelan Claims Commission,t42 was cited in support.
The Government of the United States quoted examples to show that its
practice was in line with the principle referred to, but stressed the
importance of domicile as a sign of the election of the individual, which
election affected, however, ra ther his protection by one of the States
concerned than his nationality. It advocated the conclusion of international
agreements in order to define the right of one of the States concerned to
extend diplomatic protection as against the other State, particularly if the
sujet mixte had his domicile in the first State, and in order to determine which
nationality should be recognised by third States. In this determination, the
reply went on, the domicile of the person concerned should be given
consideration. 143
The Governments of Belgium and France stressed, in their replies, the
importance of the effective exercise by the person concerned of one of the
nationalities involved for the determination of the question.l 44
The relevant provision of the Convention (Article 4) gives expression to
the principle of equality, which was accepted by a large majority of States,
in these words:
A State may not afford diplomatic protection to one of its nationals against a State whose
nationality such person also possesses.
During the discussion of this question in the First (Nationality) Committee,
the Yugoslav delegate moved the following additional provision:
Similarly, a person possessing two or more nationalities may not plead that he is a national of
one State, in order to bring a personal action through an international tribunal or commission
in respect of another State of which he is also a national. 145
Although in the ensuing debate several delegates expressed their agreement
with this principle, it was not incorporated in the text of the Convention,

I 4 I. Bases of Discussion, p. 28.


142. See supra, p. 174n.
143. Bases of Discussion, pp. 147-9.
144. Ibid. , pp. 26, 28.
145. Minutes of the First Committee, p. 57. Cf also the dictum of the British-Mexican Claims
Commission in the Honey Claim: "It is an accepted rule of international law that such a person
[a person possessing dual nationality] cannot make one of the countries to which he owes
allegiance a defendant before an international tribunal." (Further Decisions and Opinions, p. 13,
at p. 14.)
The International Court of.Justice referred in the Reparation/or Injuries Case (I.C..J. Reports
1949 p . 174) to "the ordinary practice whereby a State does not exercise protection on behalf
of one of its nationals against a State which regards him as a national" (at p. 186).
188 "Corif!ict Rules''

. . d 'th a case that is so rare as to be of little interest to th


"smce lt ea1s WI e
. . of s tates".146
maJonty . . c .
. d question namely, that of the pnncip1e •Or the attnbution .
0 n t h e t h IT ' • • . h ld b · · In
third States of one of the several nati?nahties e . y su;ets mzxtes, the replies
wed a similar divergence of views to that found in th e
0 f G overnmen ts Sho .
decisions of international tnbunals..A number of ?overnments wanted
c · t be given to the nationality of the State m whose territory th
pre.erence o . . h e
as domiciled or habitually resident; ot ers, among them the United
person w ' . fS h Ac. · 147
Kingdom, Australia and the U mon .o out . htncaf, hs~ggested that the
· d' 'd al concerned should be given a ng tb'o c. mce between the
In lVl U
nationalities he possessed , or recommended a com m~t10n of both methods.
The French Government advoca_red. the test of effectiveness of nationality,
while others suggested further cntena.
In the discussion in the First Committee, the Dutch delegate pointed out
the difference between public and private law: questions of nationality were
often relevant in questions of private law, where, however, they were
frequently regulated in a different way with regard to different aspects of
personal status. In giving preference to any particular nationality of sujets
mixtes in third States, the purpose for which the choice was made and the
interests of the third State were important. All these considerations
militated, in his view, against leaving the choice to the individual, and the
matter could, be felt, best be regulated within the framework of conventions
on private law.148
The relevant clause in the Convention (Article 5) provides for two
alternative criteria: that of habitual residence and that of effectiveness.
It reads:
Within a third State a person having more than one nationality shall be treated as if he had
only one. Without prejudice to the application of its law in matters of personal status and of any
conventions in force, a third State shall, of the nationalities which any such person possesses,
recognise exclusively in its territory either the nationality of the country in which he is
habitually and principally resident or the nationality of the country with which in the
circumstances he appears in fact to be most closely connected.
The efforts of the Conference to reduce cases of plural nationality were not
very successful. They resulted in the incorporation of provisions relating to
renun~iation of nationality (Article 6) and expatriation permits (Article 7),
to which reference has been made earlier, 149 and in the adoption of certam
recommendations 150 in the Final Act of the Conference .
.A_s to. the consequences of plural nationality, in particular the difficulties
ansmg m the field of compulsory military service, the Conference adopted a
Protocol Relating to Military Obligations in Certain Cases of Double

146· Cf Re~rt of the Rapporteur of the First Committee, Mr. J. Gustavo Guerrero, to the
Conference (Mmutes of the First Committee, p. 305).
147. Se~ Bases of Discussion, pp. 30 and 33.
148. Mznutes of the First Committee, pp. 60-2.
149. See supra, p. 130.
150. Resolutions A.II, III, IV and V.
Plural Nationality 189

Nationality .151 The Protocol provides, in essence, for exemption of sujets


mixtes from military obligations in countries other than that of their habitual
residence a nd effective nationality.

3. State Practice: (b) Legislation and Administrative Practice

As to British State practice, it has always been held that in those cases
where a British su~ject also had another nationality the British courts and
authorities were entitled to accept him exclusively as a British subject, and
that he was therefore, in the United Kingdom, subject to its laws, e.g., as
regards military service. This was stated by the Foreign Secretary in a
dispatch of March 13, 1858, to the British Ambassador in Paris, Lord
Cowley. 152
It follows, conversely, that the British Government will not afford
diplomatic protection to a British subject in or against a country of which he
is a national. 153 This principle is also laid down in the General Instructions
to British Consular Officers. 154 It has been repeatedly expressed by the Law
Officers of the Crown in their Opinions given at the request of the Foreign
Office.l55 As regards claims, rule VII of the General Instructions for the
British Foreign Service provided explicitly:
Where the claimant is a dual national, H.M. Government will not take up his claim as a
British national if the respondent State is the State of his second nationality, but may do so if the
respondent State has, in the circumstances which give rise to the injury, treated the claimant as
a British national. 1H

The present writer understands that the confidential "Diplomatic Service


Procedure" which has superseded the General Instructions for the British
Foreign Service contains a similar provision.
The Naturalisation Act, 1870, provided in section 7 (3):
An alien to whom a certificate of naturalisation is granted shall in the United Kingdom be
entitled to all political and other rights, powers, and privileges, and be subject to all obligations,
to which a natural-born British subject is entitled or su~ject in the United Kingdom, with this
qualification, that he shall not, when within the limits of the foreign State of which he was a
subject previously to obtaining his certificate of naturalisation, be deemed to be a British subject
unless he has ceased to be a subject of that State in pursuance of the laws thereof, or in
pursuance of a treaty to that effect.

151. See Appendix 2.


152. Referred to in the British reply lO the questionnaire of the Preparatory Committee of the
Hague Codification Conference (Bases of Discussion, at p. 23).
153. Cf ·'Report of the Inter-Departmental Committee appointed by the Secretary ofState
for the Home Department to consider the doubts and difficulties which have arisen in connexion
with the interpretation and administration of the Acts relating to Naturalization" . (1901 )
Cd.723, p. 27.
154. Chap. XXII, ss. 13- 15 (cited from Feller and Hudson's Diplomatic and Consular Lllws and
Regulations, vol. I, p. 202).
155. L.O.R. (F.O .), 1866, No. 58, p. 31 , No. 105, p. 64, No. 157B, p. 199; 1867, No.9, p. 10;
1880, No. 72, p. 80, No. 74, p. 81 ; 1887, No. 35, p. 55; 1889, No. 37, p. 69.
156. Quoted from Sinclair, " Nationality of Claims; British Practice", in 27 B.Y. ( 1950), pp.
125-44, at p. 141.
190 " Conflict Rules''

.1•111s. provtst
· ··on became obsolete with the . enactment of f the British National·lt v
.-~ c t
a nu v la us o
f' Alt'ens Act ' 19 14 ' by whtch
. . the Act o
18 70 was repealed b ·
' Ut
the underlying doctrine still prevails. Bnush passports, for example, bear the
following endorsement:
Unit ed Kingrlom nationals who arc a lso nation.a.ls of ano ther country ca nnot be protected bv
Her Majesty's representa tives agains~ th~ authonues of ~~at count~)'- If, u nder the law of tha·t
cou n t q ,. thc'Y arc liable for a ny obhgatwn (such as
fi m!luary
. servtce), the fact that thev. are
United Kingdom natio na ls does not exempt them rom It ...
The u nited Sta tes, too, will as a rule not accord protection to an American
citizen against a country whose nationality he also possesses, although it will
do so in exceptional circumstanc~s . 1 5 7 It recognises t.he ex~lusive right of
protectio n of the othe~ country tf ~he person has hts habtt~al re~idence
there tos It is the doctnne of the Umted States that the Sta te m wh1ch the
indi\·idual retains his residence after attaining his majority has the superior
cJaimJ59 A proposal of the United States at the Hague Conference that such
residence should create a presumption of election of nationality failed.tso A
person w ho acquired at birth the nationality of the United States and of
another Sta te and who has volunta rily sought or claimed the benefits of the
nationality of any foreign State, loses his United States nationality after three
years' continuous residence in tha t foreign State unless he complies with
certain conditions. 16 1 As regards military obligations of dual nationals, the
policy of the State Department is similar to tha t embodied in Article 1 of the
Protocol relating to Military Obligations in Certain Cases of Double
Nationality. 162
The relevant endorsement of American passports reads:
A dual national may, while in the jurisdiction of the o ther country which considers him its
national, be subject to all its laws, including being conscripted for military service. Dual
na tiona ls who encounter pro blems should contact the nearest American consular office.
American protection in the country whose na tionality the passportholder
also possesses does not, therefore, seem to be entirely excluded.

3. State Practice: (c) Treaties

The number of bila teral treaties d esigned to reduce the cases of plural
nationality or to solve conflicts arising therefrom is considera ble. In this

157. The Assistant Secretary of State (Carr) to Minister Hart, M ay 2, 1933, MS. Dept. of
State, file 89 1.~ 12/3 1 (H ackworth, vol. III, pp. 353-4).
158. The Assistant Secretary ofState (Oids) to Minister McMurray, No. 202, Apri11 9, 1926,
MS. Dept. ofSta te, file 393. 11 21 (H ackworth, vol. III, p . 354).
159· No. 9 19, General Consular Instructions (Diploma tic Serial No. 225-A) (Hyde,
p. 11 34).
160. Cf "1inute: of tlu First Committee, Ann. II, p. 295.
:61. lmm1grauon a nd Nationality Ac t, 1952, s. 350.
62. See supra, P· 189; and cJ. the Assistant Secretary of State (Messerschmidt) to Consul-
General Bowman, June 13, 1938, MS. D ept. of State, file 365.117/2042 (Hackworth, vol. Ill,
p. 364).
--
Plural }fationality I!) I

a tegorv belong the num erous naturalisation conventions, beginning with


~he Ban.croft Treaties.16:J They a re of two kinds: they either provide whic h of
the na tionalities held shall be recognised as prevailing as bet ween thr
Contracting States, ~ or . they contain provisions regulating 1he ck-
16

tcrmination of the natlona hty of the persons concerned , i.e., the nationalit y
law of a t least one of the Contracting Sta tes is a mended in order to a void
double nationality . 165
Other treaties regulate conflic ts of nationality laws as between the
Contracting States, apart from conflicts a rising from naturalisa tion, 0 11 a
broader basis, e.g., the Treaty between Italy and Nicaragua of
September 20, 1907}66
The problem of the nationa lity of naturalised persons who return to the
country of their original nationality has been regulated between a number of
American Sta tes by the Convention on the Status of Naturalised Citizens,
signed at the Third International Confer ence of American States a t Rio d e
Janeiro on August 13, 1906. 167 Naturalised persons who take up residence in
their native country without the intention of returning to the country in
which they have been naturalised are to be considered as having resumed
their original nationality and as having renounced the nationality acquired
by naturalisation (Article 1). The intention not to return will be presumed
when the na turalised person has resided in his native country for more than
two years. This presumption may be destroyed by evidence to the contrary
(Article 2) .
The Bustamente Code, equally, contains provisions for the solution of
conflicts arising from plural nationality (Articles 9- 11 ) . 168 It establishes the
test of domicile, and in its absence the principles accepted by the law of the
trial court, as criteria for the attribution of nationality to plural nationals in
third States. The Inter-American Juridical Committee in 1952 followed this
rule in its Report 169 and draft Convention. 170
The adoption by the Conference on Private International Law, held at
The Hague in 1928, of the principle that in third States the nationality of the
State in which the individual had his habitual residence should be
considered as prevalent may also be mentioned in this connection.
Within the Council of Europe a Convention on R eduction of Cases of

163. See supra, pp. 131-2.


164. For example, the Treaty between the United States and the North German Federation
of February 22, 1868 (Flournoy-Hudson, p. 660).
165. See, e.g., the Treaty between the United Sta tes and the Austro-Hungarian Empire of
September 20, 1870 (ibid., p . 670).
166. Ibid. , p. 686.
167. U.S. Treaties, p. 2882; Flournoy-Hudson, p . 645. The Con\'ention is in force between
Argentine, Chile, Columbia, Ecuador, El Salvador, Honduras, Nicaragua, Panama and the
United States of America: Status of the Pan-American Treaties and Conventions (Revised to
December 31 , 1973), p. 3.
168. Flournoy-Hudson, p. 654.
169. At pp. 2-3.
170. Article 4.
192 "Conflict Rules''

Multiple ~ationality and M~litary Obligations in Cases of Multiple


Nationalityi7I was adopted at Strasbourg on May 6, 1963.
According to the Convention nationals of the Co?tracting States who
acquire the nationality of another P_arty shall lose t~eir former nationality.
(Chapter 1, Article 1) The Convention further p~ovid es t?at a person who
possesses the nationality _oft~~ or ~ore Contractmg Parties may renounce
one or more of these nauonahues with the consent of the Contracting Party
concer:ned. Such consensus may not be withheld by the Party whose
nationality a person offul~ age poss~es ipso jure, provided he had for the past
ten years his ordinary residence outside the tern tory of that Party and that
he has his ordinary residence in ~he territory of the Party whose nationality
he intends to retain. (Ch. I , Arucle 2, paras. l and 2)
Military service shall be perfo~ed i? th_e terr~tory of the Contracting
Party in whose territory the person 15 ordmanly resident unless he chooses to
volunteer for service in the territory of another Party of which he is a
national. A person not ordinarily resident in the territory of a Party of which
he is a national or in that of a State which is not a Party may choose to
perform his military service in the territory of any Party of which he is a
national. (Ch. II , Article 6, paras. l and 2)
The Com·ention entered into force on March 28, 1968 and had, by
January 15, 1978, been ratified by Austria, Denmark, France, the Federal
Republic of Germany, Ireland, Italy, Luxembourg, Norway, Sweden and
the U nited Kingdom of Great Britain and Northern Ireland.
U nder a Protocol to the Convention adopted on November 24, 1977,172
the requirement of ten years ordinary residence outside the territory of the
Party for the consent to the renunciation of its nationality has been replaced
by ordinary residence. Moreover, while under the Convention, Chapter II
relating to military obligations may be accepted in isolation, but not
Chapter I relating to multiple nationality, the Protocol provides that each
Party may choose ,to apply Chapter I or Chapter II only.
According to an Additional Protocol adopted on the same date 173 each
Party undertakes to communicate to another Party any acquisition of its
nationality by an adult or minor who is a national of that State, which has
taken place according to the conditions contained in Article l of the
Convention.
The Socialist States are, by their very structure, averse to plu:al
nationality. The legislation of a number of them prohibits dual nationality
but such legislation cannot unilaterally prevent dual nationality from
arising; it only has the effect that persons possessing dual nationality are, by
the State concerned, treated as possessing its nationality only. A more
effective means is the conclusion of treaties for the avoidance of dual or

171. European Tr. S. No. 43, U.N.T.S., vol. 634, p. 221; the text is reproduced in
Appendix6.
172. European Tr. S. No. 95; the text is reproduced in Appendix 7.
173. European Tr. S. No. 96; the text is reproduced in Appendix 8.
Plural Nationality
193
plural nationality. The Soviet Union, in particular, has concluded a
ronsidcrab~e ~lumber of such bilateral com·entions with Socialist States but
other SoCiahst States have a lso concluded such conventions a
t•.a S h mong
themst·h-es. ' ome ave also concluded such treaties with non-Socialist
States, t.g. the Agreement between Yugoslavia and the United States of
Marc~ 23, _1 950 175 an~ the Agr~ements concluded by the People's Republic
ofCluna wlth I n~ones1a ?f Apnl 2~, 1955,176 and Nepal of April 20, 1956. In
esse_nce, ~he treattes p~ov1~e for a nght of option by the person holding dual
nauonahty. The treat1es differ as to whether the option requires approval or
not.•n
If the option is no~ exercised the person is deemed to be exclusively a
national of the P arty m whose territory he is resident or, according to some
treaties, if resident in a third State, of the Party in whose territory he was
resident before going abroad. All treaties provide that the nationality of a
new-born child who could have dua l nationality shall be determined by an
agreement between its parents so as to avoid cases of dual nationality from
arising in the future.
It should also be mentioned that the principle of effective nationality has
been embodied in the Statute of the International Court of Justice as the
determining test for the nationality ofjudges of plural nationality. Article 3,
para. 2, of the Statute provides: "A person who for the purpose of
membership in the Court could be regarded as a national of more than one
state, shall be deemed to be a national of the one in which he ordinarily
exercises civil and political rights." A corresponding provision is to be found
in the Statute of the International Law Commission (Article 2, para. 3).

4. Decisions of Municipal Courts

As to the decisions of municipal courts, the difficulty of extracting from


them rules of international law relating to plural nationality has been
mentioned earlier.l79 Only some of the most important will be cited here.
They show a great diversity of approach to the problems raised by plural
nationality, depending on the specific question of municipal law for which t?e
nationality issue became relevant. The principle that each _of the com~tnes
whose nationality is in question may consider the person as Its ~wn natlon~l
has not been followed in all cases. It was applied by the Enghsh courts m

174. Cf Gelberg " Problems of Dual Nationality i~ the Light of Legislation and Treaties of
Socialist Countries" in Polish Yearbook of InternatiOnal Law, val. I (1966/67), PP· 86-109,
Sipkov "Settlement of Dual Nationality in European Communist Countries" in 56 A.J . (1962)
pp. 1010- 1019.
175. U .N.T.S. val. 98, p. 195.
176. Mezhdunarodnaya Zhizn 1955, No. 6, pp. 205-29. .. .
177. Gelberg maintains that approval merely means that the competent authonttes venfy the
existence of the relevant facts (l.c.p. 104).
179. See supra, p. 169.
194 " Cariflict Ruler''

A~Jacdonald's case tllo in conne<.;tion with the ques tio n whether a pcr~on havin ,
double nationa lit y born within the a llegiance of the Crown may be hel~
lia ble to the pena lties fo r treason for being fo und in a rms against his native
country.Ull 111 Ex p. Freyberger 1B2 it ~as h~ld that th: de c~jus, a na tural-
born British subj ect who was a lso a s~bject of a n e nemy ?tate coul:J not in time
of war make a declaration of a henage und er S('CtJOn 19 of the British
Na tiona lity a nd Status of Aliens ~ct, 19 14, a nd th creb~ ceas~ to b_e a British
subject. His application for a wnt of habeas c_orpus agamst h1s enlistment in
the British Army was dismissed , i.e. , he was, for the purposes of English law
1113
relating to military service, trea ted as a Britis_h subject.
The case of Kramer v. Attorney-General,1114 d ec1ded by the H o use of Lords-
although admittedly concerned with the constru ction of the relevant
Sta tut e- is often cited as a leading case o n the questio n of double
nationality. There the appellant who was a British subject jure soli and a
G erman national jure sanguinis, fa iled in his a c tion for a d eclaration that his
property in the United Kingdom was not subject to charge under the Treaty
of Versailles (Article 297) or the Treaty of Peace Order (s. l ).1 85 Against the
appellant's argument that "within the realm the applicant is not and cannot
be considered or treated otherwise than as a British subj ect", it was held that
"the appellant is in fact by G erman law a G erman national nonetheless
because he is a British subject"; 186 h e fell, therefore, within the express
provision of Clause I , para. XVI, of the Treaty of Pea ce Order. Their
Lordships seem to have been mindful of the questio n of the effective
nationality of Kramer, having regard to the statement by Viscount Cave
L.C. that he was "predominantly a G erma n though with a scinti lla ofBritish
nationality" . 187 The court below referred to Re Chamberlain's Settlement,tss
where a natural-born British subject naturalised in G ermany during the war
had been treated as a German national. 18 9
English courts have not infrequently considered the question of an
individual's association with a particular cou ntry, as shown by his conduct,
as being oflegal relevance. It was stated, for example, in R. v. Friedmann 190
that a Russian who had lived in England since the age of five was an alien
only in the technical sense, and an expulsion order against him was quashed.

180. ( 1749) Foster's C.C. 59; 18 How. State Tr. 858.


181. Also in lnoye KaMo v. The King ( 1947); Annual Digest 194 7 Case No. 39.
182. [1917] 2 K.B. 129.
183. In ~awy~r v. Kro~p (( 1916) 115 L.T. 232) it was held that a British subject who also had
enemy natJOn_ahty washable to military service during his minority although when offull age he
would be ent1tled to a declaration of alienage.
184. [1923] A.C. 528.
185. S.R. & 0., 1919, No. 1517.
186. At p. 537.
187. At p. 538.
188. [1921] 2 Ch. 533.
189. Cf also Fassbender v. Attorney General (1922) I Ch. 232 (supra p. 81) .
190. ( 1914) 49 L.J. 181, 10 C.A.R. 72.
Plural Nationality 195

The well-known case of Joyce v. Director of Public Prosecutions 191 involved


primarily a question of municipal law - whether an alien who had been
resident within the realm could be held guilty of high treason in respect of
acts committed by him outside the realm. It raised, however, also qu estions
of interest from the point of view of international law. In so far as they
related to the m eaning of passports, the case will be discussed later under that
heading. 192 In this connection mention may be made of the significance
attached by their Lordships to .Joyce's factual association with the United
Kingdom , although he was not a British subj ect. It was stated by Lord.Jowitt
L.C.:
In the present case the appellant had long resided here and appears to have had many tics
with this country. 193

And again:
Here there was no suggestion that the appellant had surrendered his passport or taken any
other overt step to withdraw from his a llegiance .... 194
As to decisions of courts of the United States, it was held by the District
Court for the Southern District of New York, in Ex p. Gilroy ,195 that in the
case of a person born with the nationality of two States under their respective
laws, the authorities of either of the two States must determine his
nationality with regard to it in accordance with its own laws. 196 In Perkins,
Secretary of Labor, et al. v. Elg, 197 it was stated by the Supreme Court that: " it
follows that p ersons may have a dual nationality" . The court went on:
It has long been a recognised principle in this country that if a child born here is taken during
minority to the country of his parents' origin, when his parents resume their former allegiance,
he does not thereby lo~e his citizenship in the United States provided that on attaining majority
he elects to retain that citizenship and to return to the United States to assume its duties. 198
In Kawatika v. United States, 199 decided by the Supreme Court of the
United States, the issue was whether a person of dual, United States and
J apanese, nationality was liable for treason. Kawatika was charged to have
committed atrocities against American persons injapan during the Second
World War. H e had his American passport renewed in 1941 and had
registered in the .Japanese family census when he came of age. After the war

191. [1946 ) A.C. 347.


192. See infra., pp. 225- 6.
193. At p. 369.
194. At p. 371.
195. (1919) 257 Fed. 110.
196. At p. 124.
197. (1939) 307 U.S. 325.
198. At 329. The Court maintained , however , its aversion to the concept of dua l nationality:
cf. Savorgnan v. United Stales (November 9, 1950,338 U.S. 491), Annual Digest 1949 Case No. 59;
van der Schelling v. U.S. News and World Report Inc. ( 1906) 84 Sup. Ct. 11 66, 34 Int. Law Reports,
p. 99.
199. (1952) 342 U .S. 932, 72 Sup. Ct. 378, 18 Int. Law Reports, p. 265.
196 "Conflict Rules"

he applied for registration as an American . citizen and returned to the


United States on an American passport.
The contention that Kawakita, being a na tional and a resident ofJapan
owed no allegiance to the United States even though he was an America~
citizen, was rejected and the death sentence for treason confirmed.

5. The Views of Writers

Writers have discussed the question of plural nationality mainly from the
point of view of whether any principles exis.t for .t~e solution of c.onflicts in
order to determine which of the several natiOnalities held by an mdividual
should prevail. The Canevaro Case, in particular, has been extensively
reviewed by writers. 200
Of English authorities, Westlake takes the view that in cases of double
nationality the nationality acquired jure sanguinis should yield to that
acquired jure soli, as the latter principle is the older in the history ofStates.2ot
American writers have generally declared themselves in sympathy with
the individual's right of election "involved in the application of the test of
domicile" 20 2 or habitual residence. 203 The weight attached to habitual
residence by American jurists is also evinced in the draft Convention
prepared by the Harvard Law Research. 204
Authoritative French writers have advocated the principle of effective
nationality, e.g., de Lapradelle and Politis, who recommend that preference
should be given to the nationality law
... qui dans l'espece cadre le mieux avec la situation et le sentiment de !' interesse, celle qui dans
Ia cause accorde plus que toute autre le fait et le droit: soit la loi du domicile soit toute autre.~
Basdevant,jezes and Politis, in an Opinion on Consequences au point de vue de La
nationalite de la creation d'un nouvel etat, declare:
La situation generalement adoptee par Ia jurisprudence est que !'on doit donner Ia preference
a Ia nationalite active, c'est-a-dire a celle qui est a Ia fois de droit et de fait, a celle qui, dans un
cas donne, correspond a Ia situation de fait de l' interesse.2oe
Other French writers have recommended other preferences, e.g., Pillet that
of the older nationality,207 Weiss that of the nationality law most closely

200. On Canevaro cf .Zittel~ann in Das Werk vom Haag, 2nd series, vol. I , p. 169; de Boeck in
Revue ginirale d~ Drotl rnter~at10~al p~blic, 1913, pp. 3 17- 32; Kohler in -?,eitschrijt fur Volkerrecht,
1913, PP· 1- 10, Wehberg m D1e Frudenswarte, 1912, pp. 208- 10· on Nottebohm see bibliography
at pp. 318- 21. '
201. lnternatumal Law, vol. I , p. 230.
202. Borchard , p. 588.
203. H yde, pp. 1134, 1141 and 1142.
204. Articles II, 12, 14 and 16.
. 20~ . .Recuei.l des ~rbitrag~s internationaux, vol. 11, p. 173 (Medina Claim). Also A. de Lapradelle
m D1ct1onna1re D1plomat1que " Nationalite"
206. At p . 10. .
207. TraiU pratique de Droit international privl , vol. I , p. 252.
Conclusions 197

resembling that of the third State. 20s


German writers, too, favour the principle of effective nationality, e.g.,
210
Neuma nn,209 Niemeyer, and Wolff,211 which is declared by Makarov to be
dominant in prese~t legal theory. 212 It was considered as a general principle
213
of law by Rundstein, who can certainly be regarded as an authoritative
source.
Under the impa~t of the de~ision in the Nottebohm Case the principle finds
many advocates m recent literature, e.g., Brownlie, who contests the
freedom of States in the field of nationality; he declares that the "doctrine of
effective link may be classified either as a rule of customary law or as a
general principle of (international) law".2I4

D. Conclusions

The space which has had to be devoted to the question of conflicts of


nationality laws is relatively large. This is due to the fact that these
problems are not only the result of, but are aggravated by, the antinomy
inherent in the conception of nationality: presupposing, as it does, the co-
existence of States, it is in itself a concept of international law, but its
determination falls, in principle, within the domestic jurisdiction of each
State. It follows that negative conflicts of nationality, i.e., statelessness, and
positive conflicts, i.e., plural nationality, cannot be entirely prevented by
customary international law.
The term "conflict of nationality laws" is reminiscent of that field of law
which is usually called Conflict of Laws or Private International Law, and
there are indeed certain links with this legal discipline. It seems nevertheless
necessary to say a few words about this relationship in order to avoid possible
misunderstandings. The question of conflict rules, i.e., the question what
nationality is to be ascribed to a person in case of a conflict of nationality
laws, may be relevant under municipal law either in itself (e.g., whether a
person having the nationality of the State concerned and the nationality of
an enemy State is to be treated as an enemy alien) or it may be relevant in
order to determine what law is to be applied to an individual in a specific
legal relationship (e.g., as regards his personal status). In the latter case it
becomes relevant for the purpose ofPrivate International Law. This system,
which is also called " Conflict of Laws", is considered as the body of rules
determining which of several municipal laws is to be applied to a given

208. Trait! de Droit international privi, vol. I (Nationalite), p. 327.


209. Internationales Privatrecht in Form tines Gmtzentwurfes (1896), pp. 46-7.
210. Das /nternationale Privatrecht des B.G.B., pp. 65-6.
211. Intemationales Privatrecht, p. 29.
212. Op. cit., p. 312; id., in Hague Recueil, 1949 (i), pp. 273-377, at p. 356.
213. In "Die allgemeinen Rechtsgrundsaetze des Voelkerrechts und die Fragen der
Staatsangehoerigkeit", in <:_eit.schrift Juer Voelkerrecht, 1932, pp. 14-7 1, at p. 61. Cf supra,
p. 87.
214. In 39 B.Y. at p. 314. Cf alsop. 364.
198 "Conflict Rules''

. ·
situation havi·ng· "contact points"
. with. more than one country
. . · The terrn
Private International Law IS really a m~snomcr ' as the ~ltuatwns involving
several legal systems need not necessanly refer to questions of private law
only.z•s . . .
These conflict rules are normally rules of mumctpallaw which on cert .
I {; . I 216 U am
conditions oblige the co~rts to app Y . oreig~ a~. . nder th_e lex fori,
foreian law is to be apphed. The law IS foreign m Its content; 1t derive
how:ver, its legal validity from municipal Ia~. " The law of a State direc~~
its organs to apply to certain cases norms whicl~ are of the State's own law,
but which have the same content as correspondmg norms of another State's
law. " 21 7
.
In so far as confltcts of laws are regu Iated b y treaties,
. 2Is t h ey constitute
particular interna tional law. In so far as there exist conflict rules of
customary interna tiona l law they are part of general public international
law. The fallacy of the term Private International Law thus becomes
evident. The number of such rules of customary interna tional law is limited.
One of them is the rule that the question whether a person possesses the
nationality of a particular State has to be determined by applying the law of
that State, a rule which, since the Hague Conference, has also been laid
down by treaty. In so far as a State applies any other law, in particular its
own law, to this question-as is sometimes done for specific purposes of
municipal law (e.g., in time of wa r belligerent States may refuse to recognise
nationality laws of the other belligerent) -it resorts to a legal fiction. A
person cannot have another nationality than that which he possesses under
the law of the State of nationality-but he may be deemed by another State
to have a different national status.
The position as to rules of international law relating to negative and
positive conflicts of nationality laws may be summed up as follows:
1. There are no rules of customary international law for the avoidance of
negative conflic ts, i.e., statelessness, with the possible exception of the
prohibition of discriminatory denationalisation, unless one maintains, as
some writers do, that a State is in certain circumstances (e.g., either jure
sanguinis or jure soli, or the successor State in the case of State succession)
obliged by international law to confer its nationality on certain persons.
There exist treaties for the reduction of statelessness which have already been
referred to.219
. ~· ~s ~he c~nferment of nationality falls, in principle, within the dom~s.tic
Juns~Ictwn of e~ch State, customary international law can prevent positt~e
conflicts of natiOnality laws, i.e., plural nationality, only in so far as n

215. CJ Kelsen, Principles of International Law, pp. 254-5. ·


21
~· CJ Beckett, "What is Private International Law?" in 7 B.Y. (1926), pp. 73- 9G pass:m,
particularly at p. 85.
2 17. Kelsen, op. cit., p. 255.
218 · For example, the Code of Private International Law (known as the Busta mente Code).
219. See supra, pp. 163, 166- 7.
Conclusions 199

imposes .limitations on the. conferment and retention of nationality. 220


Nationahty c~nferred or retamed under municipal law which is inconsistent
with international law does not have to be recognised by other States
nor by int~rnation~l tribunal~. Plural nationality is reduced, moreover, by
particular mterna~10nal l~w, z.e., by treaties.22t
3. From the pomt of. view of legal policy plural nationality is, as a rule,
considered to be undesirable, though less so than statelessness222. This was
certainly the case before the Second World War. It was stated by the
Permanent Court of International .Justice in 1923 in its Advisory Opinion in
the question of Acquisition of Polish Nationality 223 that, in view of the position
in customary international law, "only an international agreement between
the interested Powers could produce this desirable result", i.e., the
elimination of cases of double nationality.224
The Hague Codification Conference, in its Final Act, considered
reduction of possible cases of dual nationality as "very desirable " .22s
Subsequent developments appear to confirm this policy but there are
exceptions.
In the United Kingdom the principle that British nationality is lost by the
voluntary acquisition of another nationality by a person resident abroad and
not under any disability-which had been part of statutory law since the
Naturalisation Act, 1870-has been abandoned by the British Nationality
Act, 1948, and has been replaced by the possibility of voluntary renunciation
(section 19). In the absence of such renunciation United Kingdom citizens
naturalised in a foreign country become double nationals. 226 A number of
recent laws of other States make loss of nationality on acquisition of another
nationality dependent on governmental authorisation, i.e., on an expat-
riation permit. 227 The enactments cited are apt to lead to double nationality

220. See supra, Chaps. 10 and 11.


221. See supra, pp. 190--3.
222. Cf Lauterpacht in Y.B.I.L.C. 1954- 1, p. 53.
223. P.C.I..J., Series B, No. 7.
224. At p. 20.
225. Resolution A III.
226. But legislation providing for automatic loss of British nationality has been advocated; see
supra, p. 128.
227. Cf for Bulgaria, Nationality Law of March 19, 1948, Articles 6 and 14 (permission
required for acquisition of foreign nationality); C~tchoslovalcia, Law No. 194 of.Ju1y 13, 1949,
Article 6 (permission required for release from nationality), Article 7 (facultative deprivation of
nationality of persons retaining another national allegiance); Egypt, Law No. 160 of
September 13, 1950, Article II (authorisation required for acquisition of foreign nationality),
Article 15 (facultative deprivation of nationality on unauthorised acquisition of foreign
nationality); France, Code de Ia Nationalite franc;aise, Articles 87 and 89 (loss of French
nationality on acquisition of foreign nationality dependent on declaration to this effect;
declaration may be made by men under 35 years ofage only if they have complied with military
service obligations); Hungary, Law No. LX of December 24, 1948, Article 14 (permission
required for release from nationality);· israel, Nationality Law of April 1, 1952, Article 10
(consent required for renunciation of nationality); Poland, Law ofJanuary 8, 1951, Article 11
(permission required for acquisition offoreign nationality); Roumania, Decree No. 33 ofjanuary
200 "Conflict Rules"

but efforts are being made to avoid this result by treaties providing for a right
. .· d 22s
of option for one of the nauona11~1es co~c.erne . . .
4. As to the solution of conflicts ansmg from plural nat1onahty, the
principle that each of the States whose na~ionality th~ individual possesses
may regard him as a national can be recogmsed as formmg part of customary
international law.
Another rule contained in the Co~vention o? ~ertain Ques~ions..relating
to the Conflict of Nationality Laws, z.e., the prmc1ple of equahty: A State
may not afford diplomatic protection to one of its nationals against a State
whose nationality such person also possesses" was considered as "well
.
established" in customary mternationa . llaw some time
. ago. 229 I tIs,
. h owever
doubtful whether this is still correct today in view of the practice of
international tribunals to apply the concept of"effective link", i.e., to assume
jurisdiction where the link with the claimant State is considered as the more
effective as exemplified by the jurisprudence of the Italian Conciliation
Commissions. 230 In assessing the practice of international tribunals a number
of factors have, however, to be taken into account such as the terms of
reference of the tribunal or whether it was entitled to decide ex aequo et
bono. 231 Moreover, there is a difference between protection by the institution
of judicial or arbitral proceedings and more informal methods of diplomatic
protection. 232
The rule as to nationality of claims, i.e., that an international claims
tribunal has no jurisdiction unless the person who suffered the injury, or his
legal successors, were nationals of the claimant State from the time the claim
originated until its presentation, or even up to the date of the award, 233
excludes by its rigidity many claims from international adjudication. It has,
for this reason, been frequently criticised; it has been declared to be, in some
of its aspects, an anachronism at a time when the rights of the individual
become, to an increasing degree, embodied in internationallaw. 234
When applied to the nationality of claims, the rule that international
jurisdiction is excluded in the case of plural nationals who possess the
nationality of the respondent State, increases the rigidity of the current rule

24, 1952, Article 6 (approval required for renunciation of nationality); Syria, Legislative Decree
No. 21 of February 4, 1953, Article 12 (loss ofnationality on acquisition offoreign nationality
only if authorisation has been obtained). As to the validity of such municipal laws according to
international law, see supra, pp. 133-4.
228. See supra, pp. 191-3.
229. Felle~ "The Mexican Claim~ Commissions" (1935), p. 58. Cf also Pinson Case (U.N.
Reports, vol. V, at p. 381) and Hurst op. cit., pp. 109, 110.
230. See supra, pp. 181-3.
231. See supra, pp. 184-5.
232. As pointed-out by Judge Fitzmaurice in his separate Opinion -in tht Barcelona Traction
Case (I.C.J. Reports, 1970, p. 3, at p. 82).
233. Cf Hurst, op. cit., pp. 107-110.
234. Cf Lauterpacht, International Law and-Human Rights, p. 55.
:ond tlsitJI/..1' 201

.1~ ti l the na tionality or claims a nd imposes a further limitation on


intcrna t i1m:d j urisd inion. 2 il5
5. O n the qu estion wha t nationa lity is to be ascribed by the authorities of
a thirrl State to sujds mixtes, or where this qu estion is relevant for an
internationa l tribuna l it may be doubted whether any of the principles has
maturt•d into a rule of international law. It is often claimed, particularly
since the rlecision .in the r'ottebohm Case that the principle of effective or active
nationality applies, i.e. tha t the indi\'idua l is to be considered as having the
nationalit y f th~ ta te with which he is most closely connected. While the
prinripk undoubtedly is of grea t importance it can hardly, in the view of the
present writer. be rega rded as forming part of customary international law in
the tonn of a rule that und er international law, third States and
interna tional tribunal a re bound to recognise, ofse\ eral nationalities which a
person possesses. only the na tiona lity of the State to which he is, in fact, most
clost'l · a tt ached· or. com·ersel) not to recognise any other nationality.
If applied in this way as suggested by the Institute of International
Law~~6 it would add to the rigidity of the rule concerning the nationality of
claims and could lead to a furth er limitation on the adjudication of claims .
.\s Lauterpacht has declared in the International Law Commission " it is
possible to exaggerate the conception of nationality as based on a link" .237
The question of d~ f acto attachment or effectiveness of nationality plays,
ne,·ertheless a n important role in the practice of States in questions of
nationality. This trend has been strengthened by the decision in the
.\'ollrhohm Casr. Examples are numerous. The nationality laws of most States
make dr f acto attachment by specific residence or other requirements, a
c nditi n for acquisition of nationality where such nationality is not
acquired merely by birth in the territory or b~ parentage. The same applies
to the retention of nationality. The residence requirements for acquisition of
.-\.merican citizenship by children born outside the U nited States of
American parents 1!3 8 and the comple.x provisions of American nationality
law relating to the circumstances in which American citizenship may be lost
are cases in point. !3t
.\s to the weight attached to effectiveness of nationality by English stature
law .-\.rticle 2 1 section l ( I) of the Aliens Order, 1920, as amended 1923, uo
may be quoted:

- , . . Cf R od~ .. Dual :"arionaJs and th~ Doctrine of Dominant Nationality' in 53 A.]. ( 1959)
PP. I~ - --H Kho mention.s the hardshi p caused by the rule in cases wh~r~ th~ dual natio nal is
affe:-rred by measures of persecution, na rionalis.a rion or confiscation of property in one of the
t::m:s whose nati nality he possesses.
-36. Stt . . . p. 180.
2:3 . Y.B.I.L..C. 1952-1 p. 121.
38. Immigration and Nationality Ac~ 1952, s. 301 (a), paras. 3-7 (b) and (c) .
- . I mmigntion and f\;ationality Act, 1952, ss. 349-356· these pro\isions have, however
~' been bdd unooostitutiooal by the Sup~e Coun; see SIIJir• p. 134n. For a critical
a.rtalysis of tk A~ cf Kom>itt, CUi/ Ritlus ia 1.-i~trl:itna..
:.. &.R. & 0 ., ~o. 326 (no longer in force).
202 "Conflict Rules"

For the purpose of this Order . .


( 1) When an alien is recognised as a nat.ional. by ~he law ?fmore tim~ one foreign ~tate or where
for any reason it is uncertain what nauonahty (If any) IS to be ascnbed to an ahen, that alien
the national of the State with which he appears to be most closely connected
rnay b e trea ted a S · f .. · · ·
for the time being in interest or sympathy or as bemg 0 uncertam nat10nahty or of no
nationality.
The tendency to assimilate defacto stateless persons (i.e., persons who do
not enjoy the protection of the Governm~nt ?f the. State of their nationality
and who have, as refugees, severed their ties wtth that State) to de jure
stateless persons, 241 is further evidence of the importance of the question
whether the nationality which an individual possesses in law is effective.
More and more frequently, in States in which personal status is, in principle,
governed by the law of the country of nationality, the personal status ofsuch
persons is determined by the law of their country of residence, rather than by
the law oftheir State ofnationality, and they are treated, as regards certain
rights, not according to their formal national status but in the same manner
as nationals of the country of their residence. This tendency has found
expression in international agreements relating to the status of refugees and
stateless persons.24 2
Article 8 of the Convention relating to the Status of Refugees ofJuly 28,
1951, is significant in this connection. It reads:
With regard to exceptional measures which may be taken against the person, property or
interests of nationals of a foreign State, the Contracting States shall not apply such measures to a
refugee who is formally a national of the said State solely on account of such nationality.
Contracting States which, under their legislation, are prevented from applying the general
principle expressed in this article shall, in appropriate cases, grant exemptions in favour of such
refugees.
A similar provision may be found in Article 44 of the Geneva Convention
relative to the Protection of Civilian Persons in Time of War of August 12,
1949. That Article reads as follows:
In applying the measures of control mentioned in the present Convention, the Detaining
Power shall not treat as enemy aliens c;xclusively on the basis of their nationality de jure of an
enemy State, refugees who do not, in fact, enjoy the protection of any government.m
As regards personal status, Article 12 of the Convention relating to the
Status of Refugees provides:
. The personal st.a~us of a refugee shall be governed by the law of the country of his domicile or,
tf he has no domJctle, by the law of the country of his residence.
A~ regards the nationality of ships, Article 5 of the Convention on the
Htgh Seas244 provides:

241. See supra, p. 164.


242. See supra, pp. 168- 9.
243.,11International
ll Committee of the Red Cross, The Geneva Conven1zons
· oifl2 A ugust ]949. See
a lso suyra, pp. - 12.
244. U .N.T.S. vol. 450 p. 11.
Conclusions 203

Each State shall fix the conditions for the grant of its nationality to ships, for the registration
of ships in its territory and for the right to fly its flag. There must exist a genuine link between the State
and the ship; in particular, the State must effectively exercise its jurisdiction and control in
administrative, technical and social matters over ships flying its flag (author's italics).
It follows that the principle of effective nationality in the form in which it
was stated in the Aliens Order, 1923, in contradistinction to the form in
which it has been expressed above, 245 is widely practised and recognised
today. 246 It is, in this form, both wider and narrower than the above-
mentioned rule. It is narrower in so far as it does not absolutely exclude other
tests for ascribing a particular nationality to sujets mixtes, and it is wider in so
far as it applies not only to cases of plural nationality but to cases of doubtful
nationality also. While it is undoubtedly considered as "right", it is not, in
all cases, considered as "obligatory". Whether it can therefore, in this form,
be considered as part of international customary law or only as usage, may
be a moot point. 247

245. Supra, p. 201.


246. The Special Rapporteur of the International Law Commission, Mr. Cordova, suggested
in his "Report on Multiple Nationality" (Y.B.I.L.C. 1954-11 p. 42) that in dealing with present
multiple nationality the principle of effective link, based on residence, should be followed.
247. Cf Oppenheim, vol. I, p. 25-27, who speaks of"custom in contradistinction to usage" .
The application of the principle can hardly go so far as to enable an international tribunal to
ascribe to a person a nationality which he does not possess under the law of the State concerned.
Two decisions of the Franco-German Mixed Arbitral Tribunal, by which two Alsatian
claimants who, at the material time, had German nationality, were considered as "citoyens
franfais virtuels" although they could not, at that time, be considered as French nationals
according to French law, have, rightly it is submitted, been criticized by Triepel ("Virtuelle
Staatsangehoerigkeit" in Abhandlungen zum Friedensvertrag, No. I).
Chapter 13

Proof of Nationality

A. In General

The question of proof of nationality will be here co~~id ered solely fr?m the
point of view of public international law. The question to be exammed is,
therefore, whether any rules have been developed in international law as to
the proof of nationality, and what is the relationship of such rules to
municipal law rules as to proof of nationality. The main source for the
development of customary international law in this particular field is the
decision and dicta of international tribunals, and it is their practice to which
we shall have to refer. Treaties regulating this question are rare; they are
mainly bilateral treaties, and therefore give little guidance as to the practice
of States-which, however, in this matter, can hardly be derived from any
other source except possibly from the attitude of the competent organs of
States to the practice of international tribunals.
Opinions of writers are largely limited to analytical deductions from the
practice of international tribunals. Such practice has not always drawn a
clear distinction between questions of evidence and questions of substance.
The attitude of international tribunals to certificates of naturalisation
obtained by fraud or misrepresentation of facts is a case in point which will
have to be considered.
The question which law of evidence is to be applied in municipal courts
when proof of a nationality which is not that of the lex fori becomes relevant,
is a question of Conflict of Laws. The choice lies, as a rule, between the lex
fori and the lex causae, i.e., the law of the State whose nationality is to be
proved. 1
In so far as there exists rules of municipal law to determine this choice,
they are conflict rules. To call them rules of Private International Law is
clearly inappropriate as they are part of the law of procedure; to speak of
international procedural law would be as misleading as to call rules of
municipal law international private law.2
In the absence of means of evidence prescribed by international law, that
is, by treaty, international tribunals have to rely on means of evidence
prescribed by municipal law. The question of the weight to be attached to

l. Makarov op. cit. pp. 323 et seq., particularly p. 325; id. in Hague Recuei/ 1949-1 p. 361.
2. See supra, pp. 197-8.
Tht Pmcticl' qf lnlt'malivnal Tribunals 20.1

such means of ·vid ·nee, in particular to documentary f'vidence, has


frequentl y been the su~ject of - often conflicting- decisions of international
tribunals. As these m ·ans of evidence arc rc rulated by municipa l law, they
do not fall for examina tion here.
Two types of documentary ·vidence are, however, of a special nature in
view. of their specific importance in international rela tions and consequently
in international proceedings: passports and consular certificates. The
statement by Borchard, as regards such documents issued by the United
States, that "they arc documents operating internationally as a primary
evidence of the citizenship of its [the United States] citizens abroad and of
their right to diplomatic protection" 3 is of general application. Although
they arc documents established under municipal law, it seems, therefore,
fitting to deal with them in greater detail in this connection, particularly
from the viewpoint of their relevance as evidence of nationality.

B. The Practice of International Tribunals

I. Introduction

The following review of decisions of international tribunals purports to


examine whether any rules of general, customary, international law can be
derived from them as regards proof of nationality. Any existing rule of
particular international law would, of course, take precedence, but in
general the treaties and compromis for the establishment of the tribunals are
silent on this point.
As far as can be ascertained, treaties containing provisions as to the means
of evidence which shall constitute proof as between the contracting States for
the establishment of a person's nationality are rare.
The Treaty between Spain and Argentina of 1863, which provides in
Article 7 that inscription in the register of nationals at the Legation or
Consulate of the State concerned shall be proof of the respective nationality,
is one ofthem. 4 The so-called Rome Convention of April 6, 1922,6 i.e., the
Treaty on questions of nationality signed by the successor States of the
Austro-Hungarian Monarchy and Italy, contains in Article 2 provisions as to
the kind of certificate which was to be considered proof of nationality
between the Contracting States. The Treaty also contained provisions for
the settlement of disputes as to the nationality of individuals by arbitration,
but the ,a rbitration procedure envisaged did not, as the present writer
understands, become practical. The Treaty was ratified by Austria, Italy
and Poland only.
Settlement of disputes concerning nationality by arbitration has, in

3. Op. cit., p. 485.


4. Br. and For. St. Papers, vol. 53 (1862- 63), p. 310.
5. Austrian Official Journal, No. 175 ( 1924); see also Hudson, lnln'national Legislation, vol. II, p.
866.
. · -1 I( • )Jt" sl> fitr be ·n tlw ,.x.,~c pti on n th(:r rha11 IJ w rJJ l ·. 'JJ,,.
. ·I·,1 1IC
lllh't'll:IIIUII.I ·' • · , C.' 'J • , . _,
-
l'(\111pt' l!'ti (.T ()
I' tl·<·
I
AriJa'tr·•J T ribunal fur J)JJ ·r .;, t ( · •a, a curd uw t(J 1I11,_,
- I . • • :

• ( .,_ - • •.. c f' M·ty 1.1 I 22,(' to ck term lll · (jJJ ·x to11 x oftl£tLHJn;, Jity
tC ' IH ' \ ,:l •O il t: 1111 v 11 1 ' I • , ,
"-ith dl ·ct ~r.ea <JmniiS in the v·rritori ·s of tit· Contra ' Ung S tat·:;, J11 ;; iL . l1,
IHJtabk ex ·cption. . . .
l ' h, ·as ·:; r ·vi ·wed accord ingly largel y one ·rn cfann s m wh1 h the
qu ·stion f th. natioll'i lity ofth~ claima nt, or ~~th ~ .P ·~s~n on whosf; b-~4 u·
th Jaim was J dged by the clatma nt Sta te, was prcJudJ.cJa l for the qu<:stton
of the na tionality of the claim and consequently for. the q u<.'stion of
jurisdiction of th ~ tribunal! rather tha.n cases w~ere t.he !nbunal was called
upon to adjudicate on a d1spute relatmg to natiOnality.

2. Municipal Law of Evidence

It was stated by the President of the Franco-Mexican Claims Commission


(Professor J. H. W. Verzijl), in the Pinson Case, 8 that in regard to proof of
nationality three different systems had been propounded:
(I) the international tribunal has full freedom of appreciation of the
evidence produced which is not limited by rules of evidence of municipal
law;
(2) the international tribunal has to follow the law of the claimant's State;
(3) the international tribunal has to follow the law of the defendant State.
The third system finds support in certain individual awards of the
Permanent Court of Arbitration in the Expropriated Religious Properties Case,9
decided in 1920. It will be recalled that the jurisdiction of the Court in this
case was based on a compromis between the Governments of France, Great
Britain and Spain, on the one hand, and the Portuguese Government, on the
other, concluded in Lisbon on July 31, 1913. 10 Of the eighteen individual
claims espoused by the Spanish Government, seventeen were declared
inadmissible on the ground that the Spanish nationality of the claimants had
not been proved. With slight variations the Tribunal rejected each of them
in the following terms:
Whereas, the Portuguese Government makes the objection in the first place that this claim
does not come under the jurisdiction of the Tribunal because the aforementioned claimant does
not in any manner prove his nationality; '
Whereas, the Spanish Government has had knowledge of this exception through the
Portuguese counter-case and has not drawn up any statement·
Where~, the T~ibunal is charged, by virtue of Article I of the compromis, to render j udgment
upon claims rel~tlve to the property of nationals of Spain, France and Great Britain but
whereas the claimant does not prove in the manner prescribed by the Spanish Cizil Codt and tlu

6. L.N.T.S. vol. 9 p. 486; Articles 55-63, 588, and 591.


7· On the _ques~ion of the national character of the claim see, amongst others the . rticks by
Hurst and Smclair referred to above (pp. 185, 189).
8. U.N. Reports, vol. V, p. 361; Annual Digest, 1927-28, Case No. 194.
9. Scott, Reports, vol. II, p. 2; U.N. Reports vol I p 7
10. Br. and For. St. Papers, vol. 107, p. 392 ,' · ' · ·
The Practice of International Tribunals 207

Portuguese Ciuil Code [italics added] that he belongs to one of the aforementioned
.. 11
nationaI1Ues . . · ·
The _Court did. not g~ve r~asons why the claimant ought to have proved
possessiOn o_f ~~amsh nat1onahty accord~ng to Portuguese law; and its reasoning
has been cnuetsed b y the Franco-Mexican Claims Commission in the Pinson
Case,l2 by Schwarzenberger13 and by Feller.u
In the Russell Claim, decided in 1931 by the United States-Mexican
Special Claims Commission, Commissioner Nielsen said:
The rights of American citizenship are not matters constituted by Mexican law, either as
regards the definition of such rights in the light of constitutional or statutory provisions oflaw, or
as regards methods of proof. u
Mention may also be made of the case of Ruinart Pere & Sons v. Fran;:,mann,
decided by the Franco-German Mixed Arbitral Tribunal. 16 In that case the
Tribunal held that it had no jurisdiction as the defendant had proved that he
did not possess Gennan nationality according to German law, although a
Belgian Court of Appeal had held that he was a German national under the
provisions of a special Belgian Law of November 17, 1921, concerning the
Sequestration and Liquidation of Assets of German Nationals (Article 2).
The second system, i.e., that nationality has to be proved before an
international tribunal in accordance with the law of evidence of the State
whose nationality is to be proved, has frequently been asserted by the parties
before international tribunalsY It was upheld by the German-Mexican
Mixed Claims Commission in an interlocutory resolution made by the
Umpire, Senor Cruchaga Tocornal, in 1927, in the Klemp Claim. 18 The
question was whether a consular certificate issued by a German Consul in
Mexico was sufficient proof of German nationality. The Umpire held that it
was not. He based his findings on the ruling that
... the nationality of a person is an integral part of his civil status and must be proven in the
manner established by local law of the country whose nationality the interested party claims, is
a principle accepted by both parties to the present claim and is in accord with the general
doctrine of international law .111
This reasoning was criticised by the Presiding Commissioner (Professor
Verzijl) in the Pinson Case, on the ground that (a) the authorities quoted lent
little if any support to the view taken, and (b) the opinion that nationality
was an integral part of the civil status of an individual had to·be taken cum

11. Scott,Reports,vol. II,p. 20,similarlyatpp. 10,11-12,12-13,14, 15,16,17, 18, 19, 21,


22, 2~ 25, 2~ 27, 2&
12. U.N. Reports, vol. V, at pp. 368-9.
13. Vol. I, p. 383.
14. The Mexican Claims Commissions, p. 272, n. 64.
15. U.N. Reports, vol. IV, p. 805, at p. 808.
16. 7 Recueil T.A.M. (1928), p. 599; Annual Digest, 1927-28, Case No. 198.
17 · Cf the Mexican Commissioner in the Russell Claim ( 1931) at p. 850.
18. 24 A.J. (1930), p. 610; U.N. Reports, vol. V, p. 579; Annual Digest, 1931-32, Case No. 121.
19. 24 A.J . ( 1930), at p. 620. He cited Fiore, Derecho Internacional Priuado, s. 345; Borchard, p.
486, and Ralston, Law and Procedure, p. 160, in support.
208 Proof of Nationality

grano salis. It formed , he said, at the same time an integral part of his
" public'' or "political status" . 20 It was further pointed out by Professor
Verzijl that the application of this principle might lead to practical
difficulties. If the same tribunal should have to consider proofs of different
nationalities (for instance, a tribunal dealing with claims by persons of
different nationalities), it would have to apply several local laws of evidence.
The municipal law of evidence of nationality was often difficult to ascertain
and it would become necessary for an international tribunal to interpret
municipal law and decisions, and to examine documents in various
languages.21
It is submitted that the criticism of the reasoning in the Klemp Case is
justified. The view taken in that case that an international tribunal is bound
by municipal law of evidence of nationality appears to have remained rather
isolated. It is the first system which appears to have been followed most
consistently by international tribunals. This was the conclusion reached by
the Presiding Commissioner in the Pinson Case.22 As a general principle
relating to the taking of evidence by international tribunals, it was succinctly
stated by Judge van Eysinga in his Dissenting opinion in the Chinn Case
before the Permanent Court of International Justice, 23 when he said:
... the court is not tied to any system of taking evidence, whether proceedings are begun by
Special Agreement or by Application. Its task is to co-operate in the ascertainment of the
truth ....2'
As regards evidence of nationality, the court expressed its view, in
connection with the question of the nationality of the Prince of Lichnowsky
in the case concerning Certain German Interests in Polish Upper Silesia (Merits),25
in the following terms:
In the opinion of the Polish Government, proof of the acquisition of Czechoslovak nationality
can only be established by means of a certificate from the Czechoslovak Government recording
the fact.
The court cannot take this view .. .
Moreover, these data, furnished by the Applicant, relate at least in part to matters of common
knowledge. Poland does not dispute their accuracy, she merely asks for documentary proof
The court is entirely free to estimate the value of statements made by the Parties .. . .21
In the Medina Claim decided by the United States-Costa Rican Claims
Commission, 27 Umpire Bertinatti expressed the opinion of the Commission
as follows:
An act ofnaturalisation, be it made by a judge ex parte in the exercise ofhis voluntariajurisdictio,
or be it the result of a decree of a king bearing an administrative character, in either case its

20: U.N. Reports, vol. V, at pp. 364-7.


21. At p. 363.
22. At p. 361.
23. P.C.I.J ., Series A/B, No. 63.
24. At pp. 146-7.
25. P.C.I.J., Series A, No. 7.
26. At pp. 72-3.
27. See Moore, Arb., p. 2583.
The Practice of International Tribunals 209

value, on the point o~ evidence, befo~e an international commission, can only be that of an
element of proof, s ub~ec_t to be_ cxammed according to the principle "locus regit actum" , both
intrinsically and extrmsJcally, m order to be admitted or rejected according to the general
principles i~ such a m~tt~r. . . .
The ceruficates exh1b1ted by them bemg made in due form, have for themselves the
presumption of truth, b~t when it becomes _evident that the statements therein contained are
inaccurate the presumption of truth must y1eld to truth itself. 2s

These words were quoted by Commissioner Bainbridge in the Flutie Case,


decided by the United States-Venezuelan Claims Commission in 1903. 29
The cases referred to by the Commissioner were those of persons whose claim
to nationality was based on naturalisation but where the fact or validity of
the naturalisation had been questioned before the international tribunal,
particularly on the ground that the naturalisation had been obtained by
fraud. This special problem will be discussed later. 3 o
With the exception of the interlocutory resolution in the Klemp Case, the
Mexican Claims Commissions did not consider themselves bound by
municipal law of evidence, and accepted any kind of evidence for the
establishment of the nationality of the claimants. 31 Thus it was stated in the
case of William A. Parker, before the United States-Mexican G eneral Claims
Commission: 32
While the nationality of an individual must be determined by rules prescribed by municipal
law, still the facts to which such rules ofmunicipal law must be applied in order to determine the
fact of nationality, must be proven as any other facts are proven . ... 33
This same view was also taken by the Commissioner in the case of Solis, 34 but
he added that "it is certain that an international tribunal should not ignore
local law and practices with regard to proof of nationality". 35
The German-Roumanian Mixed Arbitral Tribunal declared in
Wildermann v. Stinnes that a final finding of the municipal authorities on the
nationality of the claimant did not dispense the tribunal from examining the
conditions of such official recognition. 36

28. Ibid., p. 2587. The decision has been criticised by A. de Lapradelle and Politis (Recueil des
Arbitrages Intmuztionaux vol. II p. 176).
29. Ralston, Report, p. 38; U.N. Reports, vol. IX p. 148. Besid~ M~dina's C~~ the
Commissioner cited (at p. 42) Laurent's Case (Moore~ ~rb., p. 2671 ), Lu:.a~d1 ~Case (1~1~., p.
2589), Kuhnagel's Case (ibid., p. 2647), Angarica's Case (1h1d., p. 2621 ), and Cnado s Case (zbzd., p.
2624) in support.
30. See infra, pp. 218-20.
31. Cf Feller, p. 273.
32. U.N. Reports, ·vol. IV, p. 35; Annual Digest, 1925-26, Case No. 176.
33. U.N. Reports, vol. IV, at p. 38.
34. Ibid., p. 358.
35. At p. 360. .
36. 6 Recueil T .A.M. (1927}, p. 485, at 493.
210 Proof of Nationality

3. Rules of Evidence
(a) Nature of the Evidence Required
The first question which arose in claims cases before internatio 1
tribunals as to evidence of nationality was that .of the conclusiveness of~
proof to be furnished .. Convincin? .pro~f was re~Uired by the United States~
Mexican General Claims CommiSSion m Hatton s Case. 37 The case of Willi
A. Parker has also been cited in support, 38 but it was explicitly stated in t~:
case:
... the Commission rejects the contention that evidence put forward by the claimant and not
rebutted by the respondent ~ust n~cessarily be considered as conclusive. But, when the
claimant has established a pnma facie case and the respondent has offered no evidenc .
rebuttal the latter may not insist that the r.aormer pi'I e up evi'dence to estabhsh
· its allegat'em
' • . r. d b. IOns
beyond a reasonable doubt without pomung out some reason aor ou tmg.. . .ae
That prima facie evidence is sufficient was indeed the view held by
international tribunals in the majority of cases. It was held "with practically
unbroken uniformity" that a certificate of naturalisation was prima facie
evidence of nationality. 40 This view was also taken in the Dominguez Case
decided by the United States-Spanish Commission. 41 More recently, prim~
facie evidence was considered sufficient by the Mexican Claims Commissions
in the cases of Lynch42 and Pinson. 43 In both these cases the Presiding
Commissioners took the view that to ask for conclusive evidence would be to
ask for a "probatio diabolica". 44
As pointed out by Feller,45 the difference between the requirements of
"convincing proof' and "prima facie evidence" of nationality is superficial.
The furnishing of absolutely conclusive proof frequently being impossible,
the claimant has to furnish satisfactory evidence, which may be challenged
by the defendant Government.
In the Flegenheimer Claim46 before the United States-Italian Conciliation
Commission the facts were as follows: Albert Flegenheimer's father had
emigrated in 1864 from the Grand Duchy of Baden to the United States
where he was naturalised in 1873. In 1874 he returned to Germany and
settled in Wiirttemberg where he was naturalised in 1894. Three of his
children, including Albert, were included in his naturalisation. The latter
lived in Germany until 1937 when, being Jewish, he was ordered to leave
Germany. He went to Italy, then, in 193