Professional Documents
Culture Documents
OF NATIONALITY
IN INTERNATIONAL LAW
SECOND EDITION
RUTH DONNER
ABBREVIATIONS ..................................... xi
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv
Chapter 1
NATIONALITY LAW IN TilE CONTEXT OF PUBLIC
INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. THE THEORY OF THE SOVEREIGN STATE IN TRADITIONAL
INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.1 The Word State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Legal Personality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4 Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.5 Territorial Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.6 Independence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. THE THEORY OF THE SOVEREIGN STATE TODAY ........ 9
2.1 The League of Nations and the United Nations . . . . . . 9
2.2 Objections to the Theory of the Sovereign State . . . . 11
3. POST-1918 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1 Politis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2 Post-1945-The Subjects of International Law . . . . . 13
3.3 The Principle of Cooperation . . . . . . . . . . . . . . . . . . . 15
4. SOVEREIGNTY AND NATIONALITY LAW IN
HISTORICAL PERSPECTIVE . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.1 Legislative Competence of the State . . . . . . . . . . . . . 16
4.2 Sovereign States as the Subjects of
International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.3 Single Nationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
iii
iv THE REGULATION OF NATIONALITY
Chapter2
THE PRINCIPLE OF THE ''LINK" IN
NATIONALITY LAW ................................. 31
1. THE DEVELOPMENT OF THE CONCEPT OF A LINK . . . . . . . 31
1.1 Acquisition of Nationality by Birth and
Naturalization in National Laws . . . . . . . . . . . . . . . . 31
1.2 Nationality Questions in Connection with
Claims Settlements before International
Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1.2.1 Naturalization and the Residence
Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1.2.2 Nationality and Domicile . . . . . . . . . . . . . . . . . 36
1.2.3 The Link and Dominant Nationality . . . . . . . . . 39
1.3 The Bancroft Treaties . . . . . . . . . . . . . . . . . . . . . . . . . 42
1.4 The Institute of International Law . . . . . . . . . . . . . . . 43
1.5 Codification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
1.5.1 The League of Nations . . . . . . . . . . . . . . . . . . . 45
1.5.2 The Harvard Draft Code . . . . . . . . . . . . . . . . . . 50
1.6 Model Statutes on Nationality and
Naturalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
2. CASES BEFORE THE INTERNATIONAL COURTS ......... 55
2.1 The Permanent Court of International Justice . . . . . . 55
2.2 The N ottebohm Case . . . . . . . . . . . . . . . . . . . . . . . . . 59
2.3 TheM erge and M azzonis Cases . . . . . . . . . . . . . . . . . 64
3. POST-NOTTEBOHM: HAS THE "GENUINE LINK"
REPLACED NATIONALITY FOR PURPOSES OF
DIPLOMATIC PROTECTION? ...................•.... 67
3.1 Individuals before the I.C.J. . . . . . . . . . . . . . . . . . . . . 70
3.2 The Barcelona Traction Company Case and the
Doctrine of Diplomatic Protection . . . . . . . . . . . . . . . 71
3.3 The Practice of Claims Settlement in Lump
Sum Agreements ............................ 74
3.3.1 National Claims Commissions . . . . . . . . . . . . . 78
TABLE OF CONTENTS v
Chapter3
THE IMPOSITION AND WITHDRAWAL
OF NATIONALITY ................................... 121
1. PRELIMINARY REMARKS .......................... 121
1.1 The Views of Writers ......................... 123
1.1.1 Imposition of Nationality ................. 123
1.1.2 Withdrawal of Nationality ................ 125
1.2 Historical Migrations ......................... 126
2. STATE PRACTICE. LEGISLATION .................... 128
2.1 Unilateral Imposition of Nationality ............. 128
2.1.1 Latin American Laws .................... 130
2.1.2 The Common Law. Perpetual Allegiance . . . . . 136
2.1.2.1 The British Naturalization Act, 1870 ....... 139
2.1.3 United States Law ....................... 140
2.1.3.1 The Right to Expatriation ................ 141
2.1.3.2 The U.S. Doctrine of the Right to
Expatriation in Relation to Turkey
and Others ........................... 142
vi THE REGULATION OF NATIONALITY
CHAPTER 4
HUMAN RIGHTS CONVENTIONS AND OTHER
INSTRUMENTS ...................................... 183
1. HUMAN RIGHTS AND NATIONALITY ................. 183
1.1 Refugees ................................... 185
1.2 World Order ................................ 185
2. THE UNITED NATIONS CHARTER ................... 187
3. THE UNIVERSAL DECLARATION OF HUMAN
RIGHTS, 1948 .................................. 188
3.1 The Universal Declaration and Nationality ........ 190
3.2 The Constitutions of the Federal Republic of
Germany, Malaysia, Spain and Portugal . . . . . . . . . . 191
4. THE CONVENTION ON THE REDUCTION OF
STATELESSNESS, 1961 ............................ 193
TABLE OF CONTENTS vii
ChapterS
NATIONALITY AND STATE SUCCESSION .............. 247
I. INTRODUCTORY REMARKS . . . . . . . . . . . . . . . . • . . . . • . . 247
1. I Definition of State Succession .................. 248
viii THE REGULATION OF NATIONALITY
CHAPTER 6
NATIONALITY AND INTERNATIONAL
ORGANIZATIONS .................................... 313
1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
1.1 Development of the United Nations .............. 313
1.2 Development of International Organizations ....... 316
1.3 The Problem ................................ 318
2. THE STAFFING OF INTERNATIONAL TRIBUNALS
AND QUASI-LEGAL BODIES . . . . . . . . . . . . . . . • . . . . . . . . 318
2.1 Arbitration ..... ·............................. 319
2.2 Judicial Settlement ........................... 322
2.3 The P.C.I.J. and the I.C.J....................... 325
2.3.1 Dual Nationals .......................... 327
2.3.2 National Groups ........................ 328
2.3.3 Ad Hoc Judges ......................... 330
2.3.4 Criticism of Ad Hoc Judges ............... 332
2.3.5 The Nationality Factor ................... 333
2.4 The International Law Commission .............. 336
2.5 Administrative Tribunals ...................... 339
2.5.1 The Bank Group ........................ 339
2.52 The Law of the Sea Tribunal ............... 339
2.6 Regional Courts ............................. 341
2.6.1 The European Court of Human Rights ....... 341
2.6.2 The European Court of Justice ............. 342
2.6.2 Conclusions ............................ 343
3. THE INTERNATIONAL CIVIL SERVICE . . . . . . . . . . . . . . . . 344
3.1 Charter Provisions ........................... 346
3.1. 1 Recruitment-Independence ............... 348
3.1 .2 Geographical Distribution ................. 348
3.2 Dual Nationals .............................. 353
3.3 Stateless Persons ............................. 355
3.4 Determination of Nationality ................... 356
3.5 Concept of "Place of Origin" ................... 360
4. THE UNITED NATIONS ORGANIZATION ...•..••....... 361
4.1 Legal Personality ............................ 361
4.2 The Reparations Case and Functional
Protection .................................. 363
4.2.1 Later U.N. Practice-The Procedure
Followed in Functional Protection .......... 368
4.2.2 Functional Protection and Dual Nationality ... 369
4.2.3 Claims Against a National State ............ 370
4.2.4 Right of the Individual ................... 370
X THE REGULATION OF NATIONALITY
xi
THE REGULATION OF NATIONALITY
xii
Ruth Donner
Helsinki, October 1993
xlit
INTRODUCTION
1
Lauterpacht, Oppenheim's International Law (8th ed., 1955) at 645.
XV
xvi THE REGULATION OF NATIONALITY
1
See van Panhuys, The Role of Nationality in International Law ( 1959), especially
20-22.
INTRODUCTION xvli
1
See Brownlie, Principles of Public International Law (4th ed. 1990) at 287.
1
See, in general, Suontausta, La Souverainete des etats (Helsinki, 1955);
Friedmann, Legal Theory (l%7); and Butler and Maccoby, The Development of
International Law (1928).
1
2 THE REGULATION OF NATIONALITY
1.2 Sovereignty
3
Baty, International Law in Twilight (Tokyo, 1954), Appendix "The Word
'State"' (301-314) at 312.
4
Jean Bodin, Six Books of the Commonwealth, translated and selected by M.
J. Tooley (1955). Bodin begins his lectures with a discussion of the tenn sovereign.
See also van Kleffens, "Sovereignty in International Law," 82 Recueil des Cours
(1953- 1) 5- 130.
5
Brierly points out that Bodin's sovereign "was not an absolute ruler above any
kind of law." Brierly, "The Sovereign State Today," The Basis of Obligation in
lntematimzal Law (Oxford, 1958) 348-58.
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW
3
" ... [l~t is the distinguishing mark of the sovereign that he
cannot m any way be subject to the commands of another, for
it is he who makes law for the subject, abrogates law already
made, and amends obsolete law. " 6
The supreme legislative capacity thus lies in the sovereign prince who
makes laws superior to custom.
It was this artificial person, the sovereign, on whom the rules of the
jus gentium were binding and who participated in international
intercourse. Dean Roscoe Pound has described this legal personality
of the sovereign State in the following manner:
6
Bodin, op.cU. (1955) at 3.
7
See Dickinson, The Equality of States in lntemational Law (1920), who points
out that Grotius was not the originator of the theory of the sovereign State.
8
Pound. "Philosophical Theory and International Law," Bibliotheca V isseriana,
Vol. I (1923 ), 71-90 at 78. This quotation follows on the argument that the rise of
international law occurred with "the rise of modem nations as centralized political
organizations, each under a single personal ruler."
4 THE REGULAnON OF NATIONALITY
the positive and the negative, the one being the exerds of supreme
power and the other the absence of superior control. H. then
continued that the sixteenth and seventeenth century jurists uppem-ed
to take their view of sovereignty front the Roman law of donr.ittium.
or ownership, regarding .. the civilized world as u space of soil divided
between a number of Roman proprietors.,, International law paid
regard to sovereigns only, as would a Roman tribunal disregard the
slaves and freedmen of a Roman estate. He found that the assumed
individuality of sovereigns enabled the founders of the modern
international legal system to regard States as moml beings bound by
moral rules, and doubted whether the system could have been
constructed if it had been based on units of tribes or collections of
men. As internal sovereignty was transferred from the king to the
people the international personality of the sovereign ntler wns
transferred to the sovereign people.
1.4 Equality
9M.
ame, lntemational Law (1888), Lecture Ill, "State Sovereignty," at"·
10
Hobbes, Leviathan, Chapter XV.
11
Ibid.
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 5
" ... (Tjhe rightly ordered government rJf only three hcJu~
holds, provided they arc hubjcct to a c,ovcrcign authority, i\
just as much a commonwealth as a great empire. The princi-
pality of Ragusa, which ix one of the c,mallcht in Europe. i<) no
less a commonwealth than the empire)) of the Turk ~ and the
Tartars, which are among the grcatec,t in the world." 12
"A dwarf is a'i much a man a<; a giant i<i; a small republic i
no less a sovereign state than the most powerful kingdom." 13
A defined territory, whatever the size, was also essential for the
existence of a State, for the legislative capacity of the sovereign was
exercised over a certain territory. This territorial character of the
modem international community of States was confirmed in the
Treaties of Munster of 24 October 1648, which began:
u Bodin, op.cit. (1955) at 7-9. Pufendorf also refers to the internal exercise of
sovereign authority over a given territory when defining a sovereign prince: "A prince
whose lands are only one hundred miles in length is as much a sovereign in his own
territory, and as capable of exercising the acts necessary to the end of civil societies
as another whose jurisdiction extends over 600 miles of country.'' (1672) at 1055 et
.veq.
13
E. de Vattel, Droit des Gens in Cla.uics nf lntematinnaJ Law No. 54 (1916).
"Introduction" at paragraphs 18-21.
14
So, too, for example, in the nineteenth century Travers Twiss wrote that "[t]he
Principality of Montenegro is as much a sovereign independent state as the Empire
of all the Russias." The Law of Narinn.f (2d ed. 1884) at 11-12. Wheaton wrote that
"[a]ll sovereign states are equal in the eye of international law. whatever may be their
relative power." Elements nf lntematinnal Law (3d ed. 1836) at 49, 247.
6 THE REGULATION OF NATIONALITY
1.6 Independence
This community of sovereign and equal States was further
strengthened by the doctrine of independence, and nonintervention.
Sovereign States being equals in the international community, each
exercising supreme power within its territory, must be independent for
no other sovereign could be its superior. In the Island of Palmas
Arbitration, u; the Arbitrator, Judge Huber, defined sovereignty in the
relations between States as signifying independence and his opinion
may be quoted here as an authoritative presentation of the basic
principle:
1.5
See Mangone, The Elements of lntemaJional Law (1954).
16
Island of Pa/m{Lf Arbitration, United States v. The Netherlands, Permanent
Court of Arbitration, 1928. 2 R.I.A.A. 829 et seq. Lawrence defines independence,
being the natural result of sovereignty, as "the right of a State to ·manage all its
affairs. whether external or internal without control from other States." Lawrence, The
P1inciples of lntemaJional Law (7th ed. 1925) at 115. See also Statu.~ of Eastern
Carelia, P.C.I.J. Ser. B No.5 (1923) 27.
J'-
17
Christian Wolff, Ju.f Gentium M ethodo S cientifica Penractatum 1764 ed.,
translated by J. H. Drake, The Cla.uics of International Law No. 13 (1934 ). Chapter
I §256 is entitled "Of the wrong done to a nation by interfering with the exercise of
its sovereignty," and §257 "Of not interfering in the government of another," at 131.
18
H. Lauterpacht, "Revolutionary Propaganda by Governments'' in Collected
Papen. Vol. Ill, E. Lauterpacht, ed., at 279, 290.
19
Brownlie, op.cit. (1990), at 507.
21
84 S.Ct. 923.
8 THE REGULATION OF NATIONALITY
21
bztemational Legal Materials (I.L.M.), Vol. II, 5 Sept. 1963. The case is dealt
with in Simmonds, "The Sabbatino Case and the Act of State doctrine,'' 14 l.C.L.Q.
(I %5) 452-82. Judge Dim mock, in his judgment in the initial Sabbatino action in the
U.S. District Court for the Southern District of N.Y., stated: "'The crucial question
remains, however, whether this court can examine the validity of the Cuban act under
international law and refuse recognition to the act if it is in violation of international
law." Concerning acts of State and nonjusticiability in English law, it has been
suggested that acts of State, other than acts of treaty-making, could be subjected by
the courts to scrutiny under the rules of international Jaw, i.e., public international
law. See Cane, "Prerogative Acts, Acts of State and Justiciability,'' 29/.C.L.Q. (1980)
680, 699. This is a way also of expressing the territoriality of jurisdiction. See
Morgenstern, "Recognition and Enforcement of Foreign Legislative, Administrative
and Judicial Acts which are contrary to International Law,'' 4 J.L.Q. (1951) 326:
"[T]here is general agreement that municipal courts are debarred from exercising
jurisdiction over claims against States for public acts committed in their own
territory."
21
See Suontausta, op.cit (1955). For general support for this classic concept of
the sovereign State by nineteenth century writers. see Maine, op.cit. (1888)~ Lawrence,
op.c:it. (1925) at 118, 199; and Hall, A Treatise of International Law (8th ed. 1880,
by A. Pearce Higgins, 1926) 23.
23
Cassese, lntemaiional Law in a Divided World (1986) 36-38.
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 9
24
Brownlie, op.cit. (1990) at 109.
25See Zimmem The League of Nations and the Rule of Law 1918-1935 (1936)
36 et seq. See also Scott, The Hague Peace Conference (3d ed. 1918) 90.
26 Choate, The Two Hague Conference.f (1913; Reprint, New York 1969) 78-79.
27Treaty of Peace between the Allied and Associated Powers and Gennany,
signed at Versailles, 28 June 1919. See Temperley, History of the Peace Conference
of Paris, Vol. Ill (1920) 99 et seq.
...............
18
See Temperley, op. cit., Vol I, at 192.
19
France v. Turkey, P.C.I.J. (1927) Ser. A, No. 10, at 18. What was "found ...
by international law" to be solely within the domestic jurisdiction under article 15 (8)
by the Covenant was to be interpreted by the Council of the League, thus opening the
way for limitations on this doctrine.
30
Article I (2) of the Covenant provided that, in addition to the original
Members of the League, also any "fully self-governing State, Dominion or Colony not
named in the Annex may become a Member of the League if its admission is agreed
to by two-thirds of the Assembly, and provided it intends to observe its international
obligations and accept such regulations as may be prescribed by the League in regard
to its military, naval and air forces and armaments."
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 11
3. POST-1918
3.1 Politis
Objections to the theory of the unfettered discretion of the
sovereign State arose also with the new urgency for a change in the
conduct of international relations following the end of World War I.
31 Res. 2131 (xx). Adopted by the U.N. General Assembly at its 1408th Plenary
Meeting. Dec. 21, 1965, by 109 in favor to none against. one abstention (the U.K.).
6fJ A .J.I .L . (1966) 662-64.
31
Ibid.. provision 7.
33 Politis, The New Aspect.f of International Law (1928) 7.
34
Cous and M oterial.f on World Law. edited by Louis B. Sohn (1950), at 671
et seq.
..
12 THE REGULATION OF NATIONALITY
35 p •. .
o 1ttts, op elf.
36
Ibid. at 7.
37
Ibid. at 9.
38
Ibid. at 15. This is the sociological school of jurisprudence.
39
He referred, inter alia, to the rules relating to piracy, to traffic in negroes,
~o.men, and children, and to trade. in alcoholic beverages and opium. He cites other
JUnsts who have argued that the nghts and duties of States are the rights and duties
of th~ people who co~JJ?s.e them. It may be noted, however, that nationality remains
the ltnk between the mdtvtdual and international Jaw c0
· ,,. Ch
f · s
'' r purposes o protectiOn. ee,
m1 ra, apter 2.
·---
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 13
J
14 THE REGULATION OF NATIONALITY
42
Ibid. at 119.
43
Reparations for Injuries Suffered in the Service of the United Nations, I.C.J.
Reports 1949, 174. See, infra, Chapter 6.
44
S ee Jessup, "The Present State of Transnational Law" in The Present State of
International Law (Deventer 1973), M. Bos, ed., for the Centenary of the International
Law Association, 339~. See also Jessup, Transnational Law (1956), and the 1968
"Preface" to the reprinting of his book, The Law of Nations.
45
The tenn would include "all law which regulates actions or events that
transcend national frontiers, .. . both civil and criminal aspects ... what we know
as public and private international law and . . . national law both public and
private . . .. Transnational situations .. . may involve individuals, corporations, states,
or other groups." The Present State 339.
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 15
tive tribunals as that of the I.L.O.," emphasizes the need for the new
term ..transnational law" to cover these changes in the Jaw. It may,
however, be noted that his term has not achieved general acceptance. 46
This is partly due to the use of synonymous terms, but it is also, it is
submitted, due to the fact that it refers to the widening scope of
international law to cover the newer "vertical" international law of
cooperation rather than to the substitution of the international law of
interstate relations by a new body of law. 47
46
See Friedmann, "Human Welfare and International Law-A Reordering of
Priorities" in Tra11.ma1ional Law in a Changing Society, edited by Friedmann, Henkin,
and Lissizyn ( 1972), 113- 34.
47
See Judge Tanaka, "Some Observations on Peace, Law and Human Rights"
in ibid., 242- 56 at 243-44.
48
General Assembly document A/45/430 of September 12, 1990, at 66-70. The
Letter is reproduced in 4 Hague Y BIL (1991) 274-79.
49
General Assembly Resolution 2625 (XXV), October 24, 1970. See
McWhinney, "The Concept of Co-operation" in lntemaJional Law: Achievements and
Prospects ( 1991) 415-23, and Salmon, "Introduction to the Law of Friendly Relations
Between States," idem .. 415- 23.
51
su Pinto, "The Duty of Co-operation and the United Nations Convention on
the Law of the Sea" in Realism in Law-Making: Essays in Honour of Willem
Riphagen (8os and Siblesz, eds., 1986) 131-54.
16 THE REGULATION OF NATIONALITY
51
McWhinney, op. cit. at 435
51
Delupis, International Law and the Independent State (1974) 23.
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 17
"The rules of law binding upon States ... emanate from their
own free will. ... [R)estrictions upon the independence of
States therefore cannot be presumed." 5 ~
It follows from this rule that disputes over questions of nationality are
normally within the competence of national tribunals/'' and, further,
that "any question as to the acquisition or loss of a particular
nationality by any person is to be decided by application of the law
of the State of which the person is claimed to possess, or not to
possess, the nationality."57 International tribunals, applying inter-
national law, cannot, unless there is a conventional basis of juris-
diction, deal with questions of nationality. Nationality may only be
handled as a problem of the choice of Jaw, when a tribunal has to
decide what nationality law to apply, and thus, for example, in French
textbooks the question of nationality is normally dealt with in treatises
on private international law and, indeed, most of the draft codes on
nationality have been concerned with the problems of private inter-
national law.
53
See, .mpra, note 29.
54
I.C.J. Reports (1950) 274-75.
55
P.C.I.J. Ser. B, No.4 (1923) 24.
56
See Sibert, Traite de Dmit lntematinnal, Vol II (1951) at 534.
57
Schedule of Points Drawn up by the League of Nations Preparatory
Commission, Feb. 15. 1928. League of Nations Doc. C44.M.21. 1928. V.
18 THE REGULATION OF NATIONALITY
Ttu· thc.·ory of the sovereign State also means that only sovereign
Stull's nn.· full mcmhers of the international community, deriving rights
110111 m1tl owing duties, if any, to it. This has heen stated to mean that
Stntt·s ouly aw the suhjeds of international law while individuals are
the ohjcds. This has been described by van Asbe<.:k, in his farewell
lc.·dufl" at Lcidt•n University, referring to the society of States as it
l'~iskd nhout the year I H60:!1"
"In the solar system of the world of those days the sun was
till· sovereign national State.. . . Man entered upon the stage
only in his capadty as a subject or dtizen of his State, being
himself only an 'ohject' of the law, without legal status; his
protection abroad, according to international law, could be
gracefully shouldered by his government, without, however,
there being any obligation on its part so to protect him."
- -- - -- - -
...
-
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 19
5. WRITERS ON NATIONALITY
The rise and decline of the positivist concept of the sovereign
State have been reflected in the treatment of nationality by writers on
international law.
a way that was later unknown in the works of the later nineteenth and
early twentieth century textbook writers. It must be remembered that
the classical writers were mainly writing theoretical expositions and
though these were influential they are in no way authoritative for
today. They do, however, serve as historical illustrations of the issues
involved.
Bodin, the writer on sovereignty and the nature of the sovereign
State deals with questions of nationality as coming within the sphere
of constitutional law.112 Whereas in English law the inalienable nature
of allegiance to the sovereign is based on birth within the territory of
the King, Bodin stresses allegiance to the prince. This allegiance is
inalienable. In his discussion of denaturalization he cites a case from
the Parlement of Paris of the 13th June, 1554, by which a Frenchman
who had lived for fifty years in Venice was still considered to be a
French subject and so could inherit from his parents. He remained still
"sujet du Roy de France."63 Earlier he had argued that the basis of the
commonwealth is a family, where the father has complete authority,
so avoiding anarchy. When a woman marries she submits to her
husband instead of her father, for a household can accept only one
head or master. 64 Similarly a person wishing to change his nationality
must obtain the consent not only of his new prince but also of his
former one. If the alien who has been granted naturalization does not
wish to reside in that country whose nationality he has acquired then
he has lost that right "car Ia fiction double n'est pas receui en droit."65
The law accepts only one nationality because only allegiance to ·one
prince is possible.
Whereas Bodin's influence on the development of international
law was indirect, it is possible that the Spanish writers, particularly
Vitoria and Suarez, deal directly with international law as the law
applying between States. This is the argument of Scott, who
considered that modem international law began with the Spaniards,
who were the forerunners of Grotius. Before them the canonists and
theologians of Europe had discussed questions of the law of nature or
u Bodin' s work is not counted among the classics of international law in the
series under that name where the classics are defined as "those works which can be
said to have contributed either to the origin or to the growth of international Jaw."
J.B. Scott' s " Introduction" to Vattel' s Droit des Gen.v.
63
Bodin, op. cit. (French ed., 1583) 91.
64
Ibid. at 21.
65
Ibid. at 92.
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 21
write upon this subject."6' The purpose of war is to right a wrong and
to secure peace. In Book 11 he discusses the causes of w.ar, and.things
which belong to men in common. In Chapter II he cla1ms a nght of
t.emporary sojourn and,
Grotius continues:
First comes the right to buy things at a fair price and then
This matter has in recent years become topical in connection with the
movement for human rights, for the problem raises the question of
whether a State has a duty to recognize the acquisition of nationality
through marriage, with the consequent change in nationality that
marriage may entail.
In his De Jure Nature et Gentium Libri Octo, Pufendorf deals in
Chapter Eleven of Book Eight with "The ways in which a man may
cease to be a subject,"71 or, in other words, loss of nationality. He dis-
cusses some of the points raised by Grotius.
In Chapter Six of Book V, Pufendorf treats the characteristics of
supreme sovereignty and argues that because sovereignty is supreme
it is "not dependent upon any superior man upon earth," nor can its
acts "be made void at the discretion of any other human being."71 The
only limitation on sovereignty is that granted by treaty, but this must
69
Hugo Grotius, "De Jure Belli et Pacis Libri Tres," in The Classics of
International Law No. 3 (Francis W. Kelsey, trans., 1925), Prolegomena at 20.
71
Ibid. at 201 .
71
The Classics of International Law, No. 17 (1934) at 1055.
71
Ibid.
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 23
73
Ibid. at J349.
24 THE REGULATION OF NATIONALITY
advantage than other countries." The conclusion from this is that the
State has no legal claim against exiles.' 4
Pufendorf quotes with approval the first part of Grotius' argument
that citizens should not leave if a heavy debt has been contracted or
if there is a war or state of siege. But he finds little force in the
argument of Grotius that the nationals of a State cannot depart in large
bodies, because:
He dismissed the thought that a State should find it necessary "to have
so many myriads of citizens."75
Consideration for the individual also pervaded his treatment of the
question whether a State may eject at its pleasure a citizen who has
not committed any offence. He reaches the conclusion that arbitrary
banishment is not permissible because when a man takes up his resi-
dence in a State he entrusts to it all that he has, and that trust would
be broken by banishment:
74
Gmtius, Book II, Chapter V, §25.
75
Pufendorf at 1352. It is interesting to note how "modem" both these views
are, Pufendorf's according with the spirit of human rights Jaw and Grotius' with the
facts of contemporary life. Though individuals may leave their country in large
numbers, there is no assurance that they can be settled elsewhere.
-- --- -- - - -- -- -
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 25
"usua lly c laim that they were forced by injurie~ beyond their
endurance." For even where a <.:itize n exerci~e<, hi 'i right to migrate he
"should feel it obligatory, or at least honorable, to give notice of his
departure."
Emer de Vattel deals at some length with the question of
nationality in hi'i D m it de.<t Gens, for to him, as to Pufendorf, the
existence of a State is ba~ed on the social contract between ruler and
ruled. The State is not a patrimony because it is not created for the
good of the ruler but for the good of the State.7 ' As a consequence of
this, changes may be made to the succession to the throne to avoid a
pernicious sovereign. Vattel takes his illustrations from contemporary
practice, and succession to the throne of England had been changed,
in 1688 and 1701. Unlike Grotius, Vattel argues that "Le but de I' Etat
c'est le bonheur du peuple et non celui du prince: m From this it
follows that the connection between the prince and his people must be
defined. Not only is the good of the people the aim of the State but,
in addition, mutual assistance is the aim of the great society establish-
ed by nature between the nations;78 in other words, international
relations are governed by the comity of nations. There are rules
governing a State and in addition rules governing relations between
States.
A s a State is based on the social contract Vattel defines citizenship
a~ that bestowed on the children of citizen parents, by natural Jaw.
This allegiance does not, however, have to be perpetual for the State
exists for the good of the people, so a citizen has a right to leave his
country. He also discusses the nature of domicile as residence with
intent to remain, and the right to domicile as a fonn of inferior
citizenship. Further, the extent of territory is discussed. Children born
on a ship on the high seas may take the nationality of the vessel, or
those born outside their country of parents in public service may have
the nationality of the parents.
It is the possible changes in nationality he wishes to define more
closely. The prince has a right to naturalize a foreigner, and every
man has the right to leave his country, but only under certain
76
Vattel, "Droit des Gens OU, Princ ipes de Ia loi naturelle appliques a Ia
conduite et aux affaires des nations et des souverains (1758)'' in Classics of
lntematinnal Law No. 4 (Fenwick. trans., 1916), Book I, Chapter V, at 61. See also
Remec, The Position nf the Individual in International Law A ccording to Grotius and
Vattel (J 960).
11
Ibid., "Introduction" by de Lapradelle at ix.
78
Ibid.. "Preliminaires" at 12.
,
"Each country defines for itself by its municipal law what cir-
cumstances of birth shall make a person its subject.''81
79
Ibid., Book I, Chapter XIX at 211, 222.
80
Ibid. at 224-26.
81
Lawrence, The Principles of International Law (7th ed., revised by P.H.
Winfield, 1925) 199.
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 27
81
Ibid. at 202.
83
See Hall. A Treatise on International Law (1880) (8th ed. by A. Pearce
Higgins, 1926) 275, 293.
THE REGULATION OF NATIONALITY
28
84
. See Wheaton, The Elements of International Law (1936), text of 1866 in
Class1<:s
8S
of International Law, No. 19 ( 1936) 119 e 1 seq.
, ~~~epel, "lntemationale Regelung der Staatsangehorigkeit," 1 Z.a.o.R. V. (1929)
185
86
. Schwa~enburger, A Manual of International Law (5th ed. 1967) 141. He
contmues to potnt out that th · f · · · 1
. . e rneamng o nationality in international and rnumc1pa
Iaw need not be adenttcal.
87 "Th p
88 e rogress of International Law," 34 By IL (1958) 334.
League of Nations Doc
12 1930 L NT S V
c 2 M
· · 4 · 13. 1931 V. Signed at The Hague on Apn
·1
' · · · · · oJ. 179 at 89.
IN THE CONTEXT OF PUBLIC INTERNATIONAL LAW 29
"It is for each State to determine under its own law who are
its nationals. This law shall be recognized by other States in
so far as it is consistent with international conventions, inter-
national custom, and the principles of law generally recog-
nized with regard to nationality."
Article 2 continues:
6. CONCLUSIONS
89
See Yearbook of the I.L.C. ( 1952-11) 3, 7. Quoted in Brownlie, op. cit.(l990)
at 81.
,....
2 CHAPTER
THE PRINCIPLE OF THE "LINK" IN
NATIONALITY LAW
1
"Laws Concerning Nationality.'' U.N. Legis. Series ST/LEG/SER.B/4 (1954)
at 470. This collection contains the relevant laws of eighty-four countries and is the
most recent collection of its kind.
31
32 THE REGULATION OF NATIONALITY
2
Ibid. at I 3 (insertion). These laws are quoted merely as examples of the form
in which nationality Jaws may be drafted.
3
For example, Honduran Constitution of28 March 1936, Article 7. Ibid. at 214.
4
Law No. 325, 1941. Ibid. at 149. See also the Finnish Nationality Act 1968,
No. 40 I, Art. 1.
s
Ibid. at .132 ~nd 134. Ordonnance no 45-2441 du 19 octobre 1945, portant
Code de Ia Nattonahte Fran~aise.
6
Ibid. at 60.
-
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 33
7
See, e.g., Moore, Digest of International Law Vol. Ill (1906) 276.
8
Laws Concerning etc., 152, 159.
9
lb;d., Article 8 II 152 at p. 54
10
Ibid. at 288.
34 THE REGULATION OF NATIONALITY
11
Ibid. at 150.
12
For example, the U.S.-Mexican Mixed Claims Commission of 1868 settled
more than two thousand claims between 1871 and 1876. See Nussbaum, A Concise
History of the Law of Nations (rev. ed. 1954) 219.
13
Estonia v. Lithuania, P.C.I.J., 1939, Ser. AlB No. 76.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW
35
"No alien be admitted to become a citizen who has not for the
continued term of five years next preceding his admission
resided within the United States."
After hearing the evidence before it the Commission held that the
claim must be dismissed for want of jurisdiction as Flutie had not
complied with the above provision, and therefore the certificate of
naturalization was improperly granted.
The tribunal did as a matter of fact find the Fluties' connection
with the United States, the country of their alleged naturalization, to
be inadequate, but not on the grounds of an international standard.
The tribunal looked to the law of the U.S., and found the plaintiffs'
14
Ralston, Venezuelan Arbitrations of 1903 at 38 et seq.
36 THE REGULATION OF NATIONALITY
"·ast~ hast~d on a fraud on the law. They maintained the view that a
n·rtifil'ah.· of naturali zation is primafaci~ evidence of nationality, but:
15
S u the Medina case. Moore International A rlJitmtion.f Vol. Ill, at 2583-89.
and Li:.ardi 'J case, ibid. at 25R9. The Commission acted against the Government of
Costa Rica. without prejudice to their rights and actions to be brought before
municipal trihunals.
16
The A ll!(arica case, in Moore, lmemational A rbitmtimu Vol. Ill, at 2621-22.
quoted in Ralston, Law and Pmadurt of lnrnnarional Tribuna!J ( 1926) at 177.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 37
and Sweden and Finland favored the law of the country of domicile
as the individual's personal law. 17 A similar assimilation of the
concepts of nationality and domicile, or of the extent to which status
is conferred by nationality or domicile, arose in a number of cases.
Two rather surprising decisions of Bates, Umpire of the United
States-Great Britain Claims Commission, set up under the Convention
of February 8, 1853, dealt with the question· of whether domicile
could be equated with citizenship for the purposes of diplomatic
protection. The first is the Laurent case. 18 This was a claim brought
by British-born subjects who had settled in Mexico, residing there for
some twenty years. During the Mexican War, in 1847, the United
States forces entered the city of Mexico and confiscated money to
which the claimants had legal title. For this they now, as British
subjects, claimed compensation. When he dismissed the claim, Umpire
Bates held that as a matter of fact the Messrs. Laurent had expatriated
themselves by residing in Mexico with every intention of remaining
there. The first reason for his rejection of their claim, however, was
that the law of war recognizes that in certain cases an individual may
acquire the character of the country in which he is resident. 19
Umpire Bates reached a similar decision in the Uhde case. 20 The
Messrs. Uhde, British subjects by birth, had resided in Matamoras,
Mexico, as merchants, since 1842. They made a claim against the U.S.
Government for wrongful seizure of their goods in 1846, after the
U.S. forces had captured Matamoras. Again, Mr. Bates, as Umpire,
dismissed the claim on the grounds that as they were not British
subjects the claim should be excluded from this Commission. The
reason for this was that it is generally recognized that a neutral
residing in a belligerent country after the commencement of hostilities
loses his character as a neutral subject.
17
See Schmidt, "Nationality and Domicil in Sweden" in 4 ILQ (1951) 39-52.
18
Moore. International Arbitrations Vol. Ill, at 2671 et seq. Van Panhuys says
of Laurent (Eng.) v. United States (Dec. 10, 1854), that it "seems to bear the mark
of an earlier day, when nationality and domicile (or residence) were sometimes
difficult to disentangle." The Role of Nationality in International Law (1959) 26.
19
Moore. foe:. cit. 2690. The U.S. Agent argued, i.a., that in accordance with the
constituent Convention the Tribunal should not define the words "citizens" and
"subject" looking to the municipal law of either country, but to "that international law
which is always understood as furnishing the rule of interpretation in the construction
of treaties." Ibid. at 2674.
20
Ibid. at 2690--95.
>
38 THE REGULATION OF NATIONALITY
21
No date. See Ralston, op. cit. (1926) 146.
22
Ibid. at 142.
23
Moore, A rbitrarions at 2695.
24
Ibid. at 2696 et seq.
25
Ibid. at 2721.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 39
26
Ibid. at 2727.
27
U.N. R.I.A .A., Vol. XI, at 397-410.
40 THE REGULATION OF NATIONALITY
28
Ibid. at 406. "Considerant qu' en fait, Rafael Canevaro s' est a plusiers reprises,
comporte comme citoyen peruvien. .. ."
29
It may be noted that the President of the Arbitral Tribunal was M. Louis
Renault, who argued for a determination of dominant nationality in cases of dual
nationality before the Institute of International Law. S ee, infra, this book, "1.4 The
Institute of International Law."
30
U.N. R.I.A .A ., Vol II., at I 163 et seq.
31
Ibid. at 1187.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 41
32
Ibid. at 1185- 86. The facts averred in support of this were of an unusual
nature. They were: his residence was in the U.S. "for a succession of years," and that
his son by his divorced wife gets his education in the U.S., and, even, that "his
connection with his American acquaintances have never been broken," and that he has
kept up "friendly rel ations with several prominent American citizens."
33
Basdevant wrote of the Venezuelan Claims Commissions of 1903 and 1905
that they were inclined in cases of dual nationality to recognize .the effe~tive
nationality. He defined this in a manner similar to the Notteboh"! ~ase, d1scussed rnfra
at "2.2 The Nottebohm Case," and distinguished it from dom1c1le. See 5 Revue de
Droit International Prive (1909) 61.
34
3 A.D. (1925), Case No. 205.
42 THE REGULATION OF NATIONALITY
de's. ·'~ tht' l''-''urt hdd that in tlw ~a~<.' ,,,. n nmflid of nationality
pn-ft'l\'lll'C must bt' ~iVl'll tll that nati,mality whid1 was l'lll'l'tivdy
manifc:·stl·d hy domirik ami pt.'I'I1U\11l'llt rt•sitknn·. It would nppl·nr thnt
the l''-'urt did m't consider itsdf to lw npplying a ruk· of puhlic
intt•mational law. A similnr dt•dsion n·adu.·d hy thl' Frcm:h-Ocrmun
~1ixt•d Arhitral Tribunal in 19:!6, 8 w1lu·:. df' M mt(fin1 ,.. Trr'ulttmdn
Hmq>n·t•m·a/run.~:'lln.·quiring that n dual national must for purposes of
diplomatk protl'<.'tion he n·gankd as a national of the State in which
he has th~ most real and suhstantial connections. must be tn·atcd us
hast•d 0n publk international law. Thl' court held in part:
3
~ Decided by the Portugll('se Supr~me Court on July 10. 1936. 10 A.D.
(1941-1942). Case No. 83.
36
3 A.D. (1925-1926). No. 206 at 279.
37
Reproduced in Scott. ed., Cau.f on lnttmarional Law ( 1922) 156.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 43
"when any naturalized citizen shall have resided for two years
in the foreign State from which he came, or for five years in
any other foreign State, it shall be presumed that he has
ceased to be an American citizen."38
38 /d.
39
Article I of the Convention. Article II provides: "The intention not to return
will be presumed to exist when the naturalized person shaiJ have resided in his native
country for more than two years. But this presumption may be destroyed by evidence
to the contrary." Flurnoy and Hudson, A Collection of Nationality Laws (1929) 645.
40
This is not superseded by other international agreements, chiefly Article III
of the 1930 Protocol on Military Obligations in Certain Cases of Double Nationality.
178 L.N.T.S. 227. Twenty-four countries, including the U.S., are now parties to this
Protocol. Walter, "The Bancroft Conventions: Second-Class Citizenship of Naturalized
Americans," 12/nt'/ Lawyer (1978) 825 et seq.
44 THE REGULATION OF NATIONALITY
41
A nnuaire I.D.I., Vol. X (1888-89), 23-25.
42
Ibid. at 25. In this case, Stoeck' s Gennan nationality was recognized in view
of his post at Greifswald. In fact he was elected as the 7th German member because
the number of associates was increased to 42 and so the Germans did not constitute
more than one-sixth of the total.
43
The Institute of International Law was founded in 1873, in Ghent, as a body
of independent, i.e. , not diplomatic, jurists to settle questions of international law by
force of reason. The motto of the Institute is "Justitia et Pace." See Scott, Resolutions
of the Institute of International Law (1916), "Introduction."
44
A nnuaire J.D. I., Vol. XIV, at 914 et seq.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 45
1.5 Codification
45
Ibid., Vol. XV, at 233-71.
46
Annuaire 1.0.1., Vol. XV (1896), at 131.
46 THE REGULATION OF NAliONALtTy
47
Report of the First Committee (Nationality), A .J.I.L. 24 (1930), Special
S uppltm ent at 182. Publications of the League of Nations, V Legal Que.ftimu ( 1930)
V 8. The Preamble to the Convention on Certain Questions Relating to the Conflict
of Nationality Laws states: "Being convinced that it is in the general interest of the
international community to secure that all its members should recogni7.e that every
person should have a nationality and should have one nationality only .. .."
48
League of Nations Official Joumlll ( 1925) 143.
49
See Hudson, ''The First Conference for the Codification of International Law."
24 A .J.I.L. (1926) 447, and McNair, The Present Position of the Codification of
lntemational LtlW (Trans. Grotius Society, 192f!) xii .
50
The other two were territorial waters; and responsibility of States for damage
done in their territory to the Person or Property of Foreigners.
51
23 A .J.I.L. (1929), Specilll Supplement, and McNair, op cit. (1928) at 134.
5
z 23 A .J.I.L. ( 1929) 9. He also pointed out that this first League·sponsored
codification conference had no agency with which to undertake the task of preparatory
work on agenda items and "the foreign offices of the participating States Jacked
sufficient objectivity to divorce their fonnulations and points of law from their own
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 47
national Law dealt with questions of nationality at its 1931 and 1932
sessions. and so did the International Law Association at its 33rd
Conference where a Report on Nationality and Naturalization was
adopted on September 9, 1924.53 The Harvard Draft and the work of
the Institute and Association will also be considered. As Professor
Castren expressed it in his address to the opening session of the 52nd
Conference of the International Law Association:
541
Preliminary Documents of the Conference for Codification of International
Law, The Hague. March-April. 1930. 24 A.J.I.L. (1930), Special Supplement at 28.
57
su, .m pm. Chapter I. at 28-29.
58
Su Bar-Yaacov, Dual Nationality (1961) 3-4, where he points to cases of
dual nationality arising by the application of the principles of jus sanguinis and jus
.wli. hy naturalization. by marriage, or by transfer of sovereignty over territory
resulting from "the primacy of the State in matters of nationality." Jennings and
Watts. eds .. Oppt>nht>im 's International Law (1992}, Vol. I at 883; add to this list:
"legitimation of illegitimate children ... can produce the same effect, as where it
~ll'quires the nationality of one of its parents on their subsequent marriage, but does
not lose the different nationality (usually its mother's) which it acquired at birth.''
ad
l -
Second, the question may arise directly between two States each
of which considers the person to be its national. Article 4 of the
Convention answers this as follows:
61
It must be noted that there are limits on the application of the effective
approach to treaty interpretation. As the I.C.J. stated in the Interpretation of the Peace
Treaties case. I.C.J. Reports 1950, 221, at 229: "It is the duty of the Court to interpret
the treaties, not to revise them."
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW fll
owing to other Slates; (iermauy st1 csM·d tfuet lhl' kp,1, fu111111 of om·
Stale must not c1u.:roal:h on the sov ·•l'ip,uty of uuotfwr ; Bufp,a1111
replied that "The ri~ht of every Stall: to lc·~·.blut e iu thiN UJitllec· r 1.
limited only hy the neccssit ies of common cour h'sy ami ju."'llcc· ;" Circ·ut
Britain pointed out the differenl:e between 1111 iufriuy,c·uecrtt of the:
riRhls of another Slate as apart from its intt' rt'.\'f,\·; l'iularul poiutc;d out
that limitations arise where there is dau~er of Joss of uatiouality; the
Italian government only recognized limitations hy general or special
convention. 111
Article 2 of the Harvard Draft states clearly:
Article 7 provides that "A State shall confer its nationality" upon
a child born within its tenitory who would otherwise be stateless
because of unknown parentage or the parents' nationality is unknown.
Article 9 puts it quite clearly:
61
League of Nations Conf. for the Codif. of Int. Law, Bases of Discussion I.
Nationality, 1929. V.I.
3
' In 23 A .1./.L. (1929), Special Supplement at 26.
52 THE REGULATION OF NATIONALITY
6
~ Ibid. at 32.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 53
The Harvard Draft thus goes further than the 1930 Convention in
using the criterion of ..habitual residence" to determine which is the
effective nationality of a person possessing more than one. In the
comment to Article II , concerning military service in the State where
the individual possessing two or more nationalities has his "habitual
residence:· it was admitted that this involves a change in existing
international Jaw. but one that is "greatly to be desired." In the
comment to Article 12 it was stated that:
" ... arbitral tribunals have held that, where the requirements
in the naturalization laws concerning residence have been
65
Ibid. at 42.
' ' Su. supm. " 1.2.1 Naturalization and the Residence Requirement."
THE REGULATION OF NATIONALITY
54
67
23 A .J.I.L. (1929), Special Supplement 59.
68
"Nul individu ne peut acquerir, par naturalisation une nationalite etrangere,
tant ~~'il reside dans le pays dont il p<)ssede Ia nationalit~ ...
Annuaire J.D./. (1931.1) 277.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 55
70
Ibid. at 291.
71
See Parry, Sources and Evidences of International Law (1965), especially
91-103, and Lauterpacht, The Development of Intemational Law by the International
COU11 (1958) 11-15.
--
'
t•mcagcd '~ a 1\·~ult of tlw upheaval~ of tht• First World War, l:ll~atcd
by tt'l'at~'· ( lnt• artidc the 1\·a~r Trt·atks had in t·ommon pnwidt•d that
tlw t·ritl·ri,,n ,,f "habitual 1\.'Silknn.•" lw used fur th(• purpose of
,fl'tl'l minin~ tlw arquisition of nationality whcrt• n change of territorial
S\'l\'l'l\'i~nt) ,x_·~urn·d fulhnvin~ adjustment nf State boundaries. In tht•
,.-,,.,,,m,t:c' <~f c:rn~A and l'urld.,·ll rupulatimu'·' case. domicile was
itltl'f}'l\'tl·d as "habitual rt•sidt•nrc." hut in other cast~s habitual
1\.'sidl'lh.'C. diffel\.'d fnlllt J,lmidk as known in private international law
in that the l'l'lJUin.·ment of an animu.,· mmu·ndi was missing. In In re
St(!f.i'c·ls. • tht' Bel~ian Court of Cassation defined the meaning of
habitually n•sident in Artklt· 36 of the Treaty of Versailles. 1919.
whidl was nnt dl'tincd anywht•re in the Treaty. as meaning "fixed,
cndurin!! and pennant•nt." A person· s hahitual rcsidt.•nce is "where he
has his familv. .. his lwmc and the center of his interests and
affl'l·tirlfls ...
Of partkular intt'rest ht•re is the Advisory Opinion of the P.C.I.J.
llf St'ptt•mhcr 15. 192J. l'OilCt'rning the Acquisition of Polish
N ario11ality. H Thcrt' the right of the State in defiance of treaty
arrang.t'tnents to SU(X'radd a provision requiring habitual residence on
the part of parents for the acquisition of its nationality was passed
upon. The facts were as follows: By Article 4 of the Polish Minorities
Other l'ases hl·fore the Court l'Onl~erncd nationality in the sense of the rights
71
,,f individuals. su~h :ts the Minority School,~ cases. Ser. A. No. 12. Ser. A/B No. 40
:md Al B No. 64. or the R(~:llts ~~r U.S. Nationals under the capitulatory regime in
M~n\X'l'O. I.C.J . Rt'pllr1s. 1952. The Advisory Opinion of the P.C.I.J. of February 7.
I 9n. on the N cllitlnllhty D~au.~ in Tunis and M omcco. dealt with such questions.
out~ide the ~~ope of this study. as the npplkability of cenain treaties. the scope of the
ri~hts of pnlle-ctor States. the effect of the clause rt>bus sic stantibus and the most-
fa "''red- n:ll ion d ~mse .
,_. P.C.I.J. Ser. R. No. 10. at 19.
H Rel~ium . Court of ca~sation. March 9. 1936. 9 A .D. ( 1938-1940) No. 107.
at .\ .\9. St>~ <1/.w Andcm. lntt'nwiional Enmomic Co-oprrotion in D~v~/Of1ing
Countrit's. "'ith Spuial R rft't-enct' to tlrt> Lt'_~a/ Pmtrction t~{ Fon>ign lm•ntments in
.4.fril"(J (Ht.'l~inki. 1978. Di~senation presented at the Faculty of Law at the University
t'f Helsinki). espet:ially at 192. for a presentation of the different connotations given
to the tenns "domicile" and "residence." A Resolution of the Ministerial Committee
~,f the Council of Europe includes intention with habitual residence in a detinition of
t~ con~c.·pt of domil'ile.
7!1
P.C.I.J. Ser. B. No. 7. Hudson. Rr1wrrs Vol. I. 24 ~t uq.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 57
Treaty of June 28, 1919, concluded between the Principal Allied and
. dp
Assoctate owers, 76 on the one hand, and Poland, on the other:
and that
The Court felt its position was clear, having been asked to deal with
a question of interpretation of a Treaty clause. They stated:
76 That is, the United States of America, The British Empire, France, Italy. and
Japan.
58 THE REGULATION OF NATIONALITY
77
Hudson, op cit., Vol. I, at 25.
78
Ordinary or habitual residence was described as "the particular locality to
which a person is attached-nonnally the home, the house inhabited by the person
concerned, the place where an individual's activities and interests both personal and
economic, are mainly centered." P.C.I.J. Ser. B No. 7, at 79.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 59
79
See, supra, "1.4 The Institute of International Law." The Court spoke of a
birth occurring in a family established in the territory on the regular and permanent
footing presupposed by habitual residence.
80
Liechtenstein v. Guatemala (Prelim irzary Objection), I.C.J. Reports 1953, 111.
Second Phafe, J.C.J. Reports 1955, 4.
81
During Nottebohm's internment in the United States between 1943 and 1946,
fifty-seven legal proceedings were commenced against him in Guatemala designed to
confiscate all his movable and immovable property.
60 THE REGULATION OF NATIONALITY
"optional clause" would expire a few. weeks. aft~r the filing of the
application.8z To have agreed would, m certam cucumstances, have
encouraged States to delay the proceedings. before the Court, so
defeating the purpose of the Court, to settle dtsputes between States
peacefully and in accordance with the law.
In the second phase of the case before the Court, Guatemala
submitted in its Counter-Memorial that the claim of the Principality
of Liechtenstein be declared inadmissable on three grounds, the
second of which was that the Principality of Liechtenstein had failed
to prove that Nottebohm, for whose protection it is acting, properly
acquired Liechtenstein nationality in accordance with the law of the
Principality.
In the final submission of the Government of Guatemala presented
at the hearing of March 7, 1955, the second objection was elaborated.
Liechtenstein's claim was inadmissable on the grounds that Mr.
Nottebohm's naturalization was not granted "in accordance with the
generally recognized principles in regard to nationality" and, in any
case,
The facts of the case were as follows: Mr. Nottebohm was born
in Hamburg in 1881 and was by German law a German national by
birth. In 1905 he moved to Guatemala, and there resided and worked
until his arrest in October 1943. In 1939, before a state of war existed
between Germany and Guatemala, he visited Liechtenstein and there
applied to become a Liechtenstein national, with dispensation from the
condition of residence prescribed by the Liechtenstein Law of Nation-
ality of January 10, 1934.83 This nationality was granted and on Octo-
82
N ottebohm Case (Pre/ im inQJ)' Objection), Judgment of November 18, 1953.
I.C.J. Reports 1953, Ill, especially 119-20.
83
.Section 6(d) of this law provides: "Nationality may be conferred upon aliens
o~ly tf · ·. · they have ordinarily resided in the territory of the Principality of
~techtenstem for at ~east thr.ee years~ that requirement may be dispensed with in
Circumstances deservmg spectal consideratt'on a nd b y way o f exceptiOn.
· "
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 61
84
Reports ibid. (1955), at 12.
85
Ibid. at 17.
86
Ibid. at 26.
87
Ibid. at 24.
88
Ibid. at 22.
62 THE REGULATION OF NATIONALITY
This was the judgment, binding on the parties to the case. That the
Court restricted itself in its judgment to the question of whether
Liechtenstein was entitled to exercise diplomatic protection has been
much criticized. Many interesting points of dispute, which had been
raised in the oral proceedings, were not dealt with in the judgment.
These included such matters as the right of neutrals and of resident
nonnationals not to be expelled, and the exhaustion of local remedies.
Not only were there three dissenting opinions to the judgment, but by
1960 a "vast literature" on the subject had appeared, much critical,
though some favorable. 90
For the purposes of this study the absence of any discussion of the
allegations of fraud are, perhaps, most to be regretted. To quote a
leading authority on the subject: "It is now well established that
validity of a naturalization certificate may properly be examined by an
international tribunal."91 When such a certificate has been acquired
with the intent and will to deceive then other States may treat it as
null and void. In this case the Court did not seriously contend that
Nottebohm's naturalization was fraudulent. He had at no time acted
deceitfully in acquiring Liechtenstein nationality .91 The Court followed
the case-law of earlier international arbitrations where an effective link
between the individual and the State of his nationaJity was required to
permit the bringing of an international claim. What was essential in
the judgment of the Court, it is submitted, was that Nottebohm's
connection with Liechtenstein at the time of his naturaJization was not
close enough to validate his naturalization for the purpose of
Liechtenstein bringing a claim on his behalf against Guatemala, the
country of his residence.
In his Dissenting Opinion Judge ad hoc Guggenheim argued that
there were no grounds for invalidating Nottebohm's new nationality
as acquired for the purpose of changing his status from a subject of
89
Ibid. at 23.
90
See Kunz, "The Nottebohm Judgment (Second Phase)," 54 A.J.I.L. (1960)
536-91.
91
Sandifer, Evidence Before lntemationa/ Tribunals (1975) 220 note 77.
91
In order that fraud may be invoked, such fraud must have deceived somebody
and caused somebody to do or to abstain from doing certain acts. Oral Proceedings
42-43, 393.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 63
93
Dissenting Opinion 54.
94
As pointed out by Kunz, op cit. ( 1960), in his comprehensive analysis of the
arguments in the case.
95
"The Nottebohm Case," 5 I.C.L.Q. (1956) 230.
96
Article 5 of the Draft Declaration on Rights and Duties of States of December
6, 1949, provides: "Every State has the right to equality in law with every other
State." U.N. Doc. A/1251 at 67.
64 THE REGULATION OF NATIONALITY
The Merge case was decided soon after judgment was given by
the International Court in the N ottebohm case, Second Phase, and the
notion of "effective nationality" was taken from it. The decision in the
case was less ambiguous than that in the N ottebohm case, but it must
be remembered, as stated by the editor in the introduction to the 1955
volume of the International Law Reports, that decisions of the
conciliation commissions "are not, in general, confined to the
application of strict rules of international law," although as in the
Merge case, the rules of public international law may be applied.
The Merge case was decided by the Italian-United States
Conciliation Commission on June 10, 1955. The claimant, Mrs. F.S.
Merge, sought compensation for the loss, as a result of the war, of
certain property in Italy owned by her. She submitted her claim under
Article 78 of the Peace Treaty with Italy of 1947. The Italian
Government contended that the claim ought to be dismissed on the
grounds that Mrs. Merge was an Italian national by marriage, and that
it is a rule of international law "universally recognized and constantly
applied" that one State cannot afford diplomatic protection to one of
its nationals against a State whose nationality such person also
possesses. 98 Mrs. Merge's claim was based on her status as a United
States citizen. Article 78(9)(a) of the Treaty of Peace defined United
Nations nationals as:
97 , . d
.~tmspm ence of the World Corm, Vol. II, at 218. The invalidation of his
Liech;:nstein nationality did not revive his Gennan nationality.
United States v. Italy, U.N.R.I.A .A . Vol. XIV, 236. In J.L.R. 1955, 443-57
at 447.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 65
at the time of the injury and of the presentation of the claim. Here the
requirement was to show possession of United Nations nationality at
the date of the armistice with Italy as well as the time of the coming
into force of the Peace Treaty with Italy in 1947, and at the time of
the presentation of the claim.
Mrs. Merge was by birth a citizen of the United States. In 1933
she married her husband, an Italian citizen, and acquired his
nationality by operation of Italian law. They lived in Italy until 1937,
at which time Mrs. Merge's husband was posted to the Italian
embassy in Japan. She travelled with him to Japan on an Italian
passport, and during their stay there from 1937 to 1946 her husband
worked as an official at the Italian embassy, and Mrs. Merge was not
interned as an enemy national. She was issued with a United States
passport at the time of her marriage, and it was renewed in 1937. In
1946 the United States consulate in Japan issued her a United States
passport, on which she travelled to the United States to visit her
parents. Her visit there lasted nine months, and she then returned to
Italy where she resided with her husband.
As Mrs. Merge was a national of both the claimant and defendant
State in this case, Article 4 of the 1930 Convention applied. The
Commission, however, based its decision to dismiss the claim on the
grounds that the claimant "can in no way be considered to be
dominantly a United States national within the meaning of Article 78
of the Treaty of Peace."99 The meaning of dominant nationality was
negatively described in the decision, for the Merge "family did not
have its habitual residence in the United Sates and the interests and
the permanent professional life of the head of the family were not
established there." 100
The Commission argued as follows: "The clauses of the Treaty
must be strictly followed, even when they constitute a derogation from
the general rules of international law." Article 78 was in fact such a
derogation and dual nationality was not regulated in that article. So
the Commission must tum to the general principles of international
law, and they found that there are two principles applicable here. First
is the principle that a State cannot afford diplomatic protection to one
of its nationals against a State whose nationality such person also
possesses, and, second, is the principle of effective or dominant
nationality. The Commission then dealt at length with the authority for
99
I.L.R. 1955 at 456.
100 /d.
66 THE REGULATION OF NATIONALITY
these principles. that is, the 1930 Codification, and Borchard's report
to the Institute of International Law in 1931. the cases before the
United States-British Claims Commission established under the Treaty
of Washington of May 8. 1871, and the Venezuelan arbi trations. 101
Also. the decisions of the I.C.J. in the Case Conceming R eparation for
Injuries 111 z and theN ottebohm case were discussed as support for both
principles. The Commission then argued that the first principle is
based on the sovereign equality of the States in the matter of
nationality and the second principle
lOt B c .
aron anevaro s case was considered "typical of those decided in favor of
the effective nationality ... Ibid. at 451.
1112
I.C.J. Repom (1949) at 186: "The ordinary practice whereby a State does not
ex.ercise ~i plom~tic protection on behalf of one of its nationals against a State which
regards htm as 1ts own national."
103
/ . L.R . I955, at 455.
104
Ibid.. Case No. 56. at 457.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 67
Article 78 of the Treaty of Peace. 105 She was a United States national
by birth. In 1942, she married an Italian national, an enemy national,
and resided in Italy with him there, where his professional life was
located, until his death in 1948. Only his death made her leave Italy.
The Commission here used its discretion to decide each case on the
facts.
Thus, as J.B. Scott had argued at the 1931 session of the Institute
of International Law when Borchard gave his Committee's report on
diplomatic protection, certain inroads were made on the rigid
application of Article 4 of the 1930 Convention, giving greater rights
to dual nationals in these cases. But the onus of proof was placed on
the claimant State to show that the individual whose cause was
espoused possessed the "effective" nationality of the claimant State.
105
de Yanguas Messia, Chairman of the Commission, cited fifty-two cases
before the Italian-American Conciliation Commission alone where conflicts of
nationality laws have been resolved by reference to the principle of effective
nationality as an international doctrine. See "La Protection diplomatique en cas de
double nationalite" in Homage . .. au President Basdevant (1960) 547-58. See also
Renton, The Genuine Link Concept and The Nationality of Physical and Legal
Persons, Ships and A ircr~ft (1975) 35 et seq. In concluding, Renton considered that
what constitutes a genuine link "should be a rule of procedure and evidence
indispensable, if an international tribunal is to fulfil its function." Ibid. at 161. Cf.
Judge Jessup's Separate Opinion in the Barcelona Traction case, infra, section 3.2 at
71-72.
68 THE REGULATION OF NATIONALITY
This conclusion may be questioned on the grounds that there are here
two separate groups of cases. As far as dual nationality is concerned
the genuine link principle now allows the exercise of diplomatic
protection on the part of one of the States whose effective nationality
the injured party possesses.109 But, for example, businessmen like Mr.
Nottebohm who reside or have their domicile in one State and possess
only the nationality of another there is no possibility of diplomatic
protection. Nonrecognition of Nottebohm's nationality in the
international sphere did not result in the recognition of his original
German nationality, which was lost when he became a national of
Liechtenstein.110
106
23 A.J.I.L. (1929), Special Supplement 21.
107
If indeed it can be called a "right" at all. The claimant State is enforcing its
own rights even though the damages awarded are assessed according to the loss
sustained by the individual.
108
20 I.C.L .Q. (1971) 475 .
109
. _ Although _in the Merge claim one nationality, here the United States
~attonahty, .was vahd. only in the municipal sphere. Mrs. Merge had at all material
Urnes been m possessaon of a United States passport
110 •
Here the statement of Russell, J., in Stoeck v. Public Trustee (1921) 1 Ch.
67, "In. truth there. is not and cannot be suc h an m· d 1' vt'd ual as a German nataona
' · l
accordmg to Enghsh law," applies, mutatis mutandis.
,......
This will be so because at the time of his writing most of the claims
of citizens of the United States are directed against the communist
countries, and the nationality laws of the communist countries are
generally based on the jus sanguinis. The new development of the law
would thus allow redress to a class of individuals who would other-
wise be without rights. He also put forward as a rationale for the prin-
ciple of nonresponsibility of States for claims of dual nationals the
fact that in the nineteenth and early twentieth centuries denial of just-
ice was an exception rather than the rule, and "the situation is quite
different today."
Considering these claims as to the effect of the decision in the
Nottebohm case, it might be of interest to see how the judgment has
effected international practice. First, the question arises whether the
national status of an individual has ceased to be the essential pre-
requisite for the exercise of diplomatic protection. If the connecting
link, or bond of attachment, of an individual with the State in whose
territory he has his habitual residence or in which he carries on his
principal activities, is more important than his nationality then the
power of a State to legislate on nationality matters would be dimin-
ished. Secondly, has the test of dominant nationality been applied by
the courts?
111
Rode, "Dual Nationality and the Doctrine of Dominant Nationality," 53
A.J.l.L . (1959) 139-44.
70 THE REGULATION OF NATIONALITY
111
One exception is the European Commission of Human Rights. See Brownlie,
"The Individual before Tribunals Exercising International Jurisdiction," 11 I.C.L.Q.
(1962) 71 et uq.
113
P.C.I.J. Ser. E No. 15, at 58, 59. and ibid., No.'s 1, 3, 5, 7, 9, 1], and 13.
See Hambro in Proceedings of the American Society of International Law 35 (1941)
22 et seq.
114
Yearbook of the I.C.J., under the heading of "Other activities."
115
Ibid. (1964-1965) 88-89.
116
Ibid. (1989-1990) 163, "Applications from Private Persons."
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 71
117
Belgium v. Spain. Case Concerning the Barcelona Traction, Light and Power
Company, Limited. Second Phase. Judgment of February 5, 1970. I.C.J. Reports 1970
at 3.
118
And no such limits were specified by the Court.
119
Ibid. at 44 Tf78 and 79.
120
Ibid. at 47 'f9l.
72 THE REGULATION OF NATIONALITY
121
Ibid. at 25.
122
Ibid. at 14- 15.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 73
123 /d.
124
Ibid. at 170-71118.
74 THE REGULATION OF NATIONALITY
Judge Wellington Koo had also rejected the single nationality test for
the espousal of claims in his Separate Opinion in the Judgment of July
24, 1964. 1u; He stated that the Respondent
As refutation of this argument that more than one State may not own
a claim, he quoted the I.C.J. in the Reparation for Injuries, Advisory
Opinion of 1949, when referring to the possibility of competition
between the State's right of diplomatic protection and the Organiza-
tion's right of functional protection, as follows:
"Although the bases of the two claims are different, that does
not mean that the defendant State can be compelled to pay the
reparation due in respect of the damage twice over." 127
us Ibid. at 186 '144. Judge Gros, in his Separate Opinion, referred to law and
facts in another connection, ibid. at 279 '119: "The Company's link of bare nationality
may not reflect any substantial economic bond. As between the two criteria the judge
must choose the one on the test of which the law and facts coincide: it is the State
whose national economy is in fact adversely affected that possesses the right to take
legal action."
llt'i 8 arce l ona T ractwn,
. L rght
' and Power Company Lim ited. Preliminary
Objection.~. Judgment, I.C.J. Reports I 964 at 61 '129.
117
I.C.J. Reports 1949, 185-86. See, infra. Chapter 6, section 4.2.
128 B nggs,
. . h'ts arttc
. 1e " Barcelona Traction: The Jus Standi of Belgium," 65
m
A .J.I.L. (1971) 327, states: "Attorneys may safely advise clients that the Court's
opinio~ sets fort~ the existing law and that any special protection of shareholders as
such m a foretgn company must be based on treaty stipulations or special
..-
Two reasons have been put forward to explain why this form of
settling claims against foreign country has been followed rather than
the other two ways, which are: setting up a Mixed Claims Com-
mission, which adjudicates on each claim, and the direct diplomatic
negotiations with the government concerned on each separate claim.
These reasons are, firstly, the greatly increased number of international
claims connected especially with the Second World War and the
nationalizations of property carried out in many countries. This has
rendered settlement by diplomatic negotiation practically irrelevant.
Secondly, there is the fact that all six East European countries with
which Great Britain was negotiating refused to consider the
establishment of mixed claims commissions to adjudicate the claims
of British nationals for the taking of their property .131
132
8 A .1./.L. (1914), Supplement at 147 et seq.
133
. See Lillich (1975), VoL 2. This is not always the case, as is shown, for
mstance, b~ th~ ~wo agreements entered into by Finland during this period, and
reprodu~ed m L1l_hch. !he one with the U.S.S.R. in 1959, 346 U.N.T.S. 209, and the
other w1th ~~st~1a wh1ch entered into force in 1967, 597 U.N .T.S. 273, contain no
refe_ren_ce to nattonals." Nor does that between the Federal Re ublic of Germany and
Eth10p1a of I 965. Ibid. at 287. p
---
THE PRINCIPLE OF THE ''LINK" IN NATIONALITY LAW 77
134
81 U.N.T.S. 121; Lillich, op cit. (1975) 18.
135
(1952] J.O. 9260; Lillich. op.cit. (1975) 45-48.
78 THE REGULATION OF NATIONALITY
136
U .N.T.S. 163. Lillich, op. cit. (1975) 217-19.
137
14 Geo. 6 Chap. 12 at J-9. See E. Lauterpacht in 4 J.L.Q. (1951) 361-65.
The British Commission shows a variation from the American Federal Claims
Settlement Commission. The latter was empowered to apply international Jaw and
equity, whereas the British Commission was governed by orders-in-council and
subject to the Royal Prerogative. In the general rules on the claims practice of the
British government, published in October, 1985, Rule 1 of the "Rules regarding
nationality" states: "HMG will not take up the claim unless the claimant is a United
Kingdom national and was so at the date of injury." Warbrick, "Protection Abroad."
37 I.C.L.Q. 1002. 1006.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 79
138
See Weston, International Claims: Postwar French Practice (1971) 79-94.
139
See Lillich, International Claims: Their Adjudication by National
Commissions ( 1962), especially 76 et seq.. and, by the same author, International
Claims: Their Preparation and Presentation (1962) 31 et seq.
140
Lillich, International Claims: Their Adj11dication by National Commissions
0962) 77, as stated by the 1848 Mexican Claims Commission which relied for
authority on the decisions of earlier national claims commission decisions.
141
T .I.A .S. No. 4451.
THE REGULATION OF NATIONALITY
80
from the date of settlement, February 20, 1982, from all obligations
relating to these or any other takings that arose prior to the date of the
Agreement.
One group of claimants were at first denied compensation on the
grounds that they were not U.S. nationals at the time of the takings or
nationalization, although they were U.S. nationals by 1948. These
people were known as the "Benes group" whose property was taken
under decrees signed by President Benes between 1945 and 1948, at
which time the Communist government took power. These decrees
ordered the nationalization of mines, certain industrial enterprises,
banks and insurance companies. Article 2 of the Agreement reiterates
the U.S. policy to espouse only claims that have been continuously
owned by its nationals from the date of the injury to the date the
claim is presented. The construction put on this provision has been
explained in a letter of the Assistant Secretary of State for Congres-
sional Affairs. The Benes group are to be compensated because with
the growth of the international law of human rights the possession of
a valid claim is becoming less dependent on nationality; further, it was
never an absolute rule; and, it was argued that in fact the properties
of these claimants were taken by the Communist government when
that government took power and repudiated the promises of compen-
sation made by the Benes government. 145 It may be noted that this
Agreement constitutes "probably the most favorable settlement ever
negotiated by the U.S. Government on behalf of its citizens."146
145
Pechota, op. cit. (1982) 650.
146
Ibid. 640.
147
See Weston, op. cit. , (1971). This is so "[i]n literally dozens of cases" in
France.
...
denied claims by dual nationals. 148 But whereas dual nationality is not
an automatic bar to a claim, where a claimant also has the nationality
of the other State against which the claim was made his position may,
taking into account the inadequate amounts of the funds, be less
secure than that of single nationals, regardless of residence.
In the Expropriation of Austrian Property in Romania (Dual
Nationality) Case tried before the Austrian Constitutional Court on
September 28, 1967,149 the appellant was refused compensation under
the treaty of compensation between Austria and the Peoples' Republic
of Romania for the loss of assets, being rights in landed property,
affected by Romanian measures of nationalization, on the grounds that
he was a national of both Romania and Austria. 150 In Austrian practice
the claims of dual nationals have not been eligible. It may be noted
that this is not because of a rule expresis verbis in the text of the
Treaty between Austria and Romania, nor in the subsequent Exchange
of Letters of the Foreign Ministers. The Austrian Constitutional Court
in the case just mentioned noted that the funds were not adequate to
cover the losses.
Two other cases before the Austrian Constitutional Court con-
cerned claims under Property Treaties concluded by Austria with other
States. In ReDistribution Law (Poland) of October 21, 1975,1Sl the
complainant was a successor in title to her mother, the primary
claimant. Her claim to payment of reparations for property seized in
April 1945, by the government of the People's Republic of Poland,
was rejected by the Federal Distribution Commission, on the basis of
148
See Lillich, International Claims: Their Preparation and Presentation (1962)
12-13. Under the Jaw of diplomatic protection. the United States government will
ordinarily grant protection to a United States national who is also a national of
another country, but will sometimes, in politically sensitive situations, not do so for
a United States national vis-~-vis a State of which he or she is also a national,
although this may be questionable in the light of the Fifth Amendment guarantee of
equal protection and 22 U.S.C. §1731, which directs the President to afford the same
protection to naturalized citizens as to native-born citizens. Restatement Part II, Ch.
1, at 123. The United Kingdom government, on the other hand, starts from the
opposite rule of not nonnally taking up such a claim, "but may do so if the
respondent State has, in the circumstances which gave rise to the injury. treated the
claimant as a U.K. national." British government's Rules Applying to International
Claims 1985, Rule III. Warbrick, op. cit., supra, note 137.
149
48 I.L.R. 159.
S~e Seidl-Hohenve1dern, "Austrian Practice on Lump Sum Compensation by
150
152
Ibid. at 458.
84 THE REGULATION OF NATIONALITY
ISJ See LiiJich and Weston, supra, note 131 for a defense of the jurisprudential
value of these agreements. The Ethiopia-United States Compensation Agreement,
1986, provides, in its Article II, for the application of the continuous nationality rule
for the claimant. 25 I.L.M. 56 (1986).
1S4
575 UNTS 159 and 13 I.L .M. 524 (1965). By 1972 the Convention had been
signed by sixty-eight States of which sixty-three had completed the ratification
process .. As of June 30, 1980, seventy-nine States had become party to the
Convention. See Broches, ..The Convention on the Settlement of Investment Disputes
Between States and Nationals of Other States," 136 R ecueil des c011 rs (1972-11)
331-410.
ISS
Broches, op. cit. ( 1972) 342.
·-· - - - _..... ,
"')
156
The Preamble to the Convention opens with the following words: "The
Contracting States Considering the need for international cooperation for economic
development, and the role of private international investment therein."
157
Broches, op. cit. ( 1972) 371.
158 I I .
t a so compnses a derogatton
. f rom sovere1gnty
. agreed to m
. the Conventton.
.
86 THE REGULATION OF NATIONALITY
Not only does the "genuine link" play no part in the determination of
nationality, which is proven by a certificate of nationality from the
State whose nationality is claimed, but this type of dual nationality
cannot be waived by the host State. However, nationality is not
defined, so Commissions and Tribunals may have a discretion to
decide whether a nationality of convenience or a nationality acquired
involuntarily by an investor could or should be disregarded. As far as
is known, there are no cases where such has happened.
159
Broches, op. cit. (1972) 357-58.
160
See "History. Documents Concerning the Origin and Formulation of the
Convention" Vol. I (1970) 125.
THE REGULATION OF NATIONALITY
88
"J . d" .
tfit
· on the Settlement o f
uns ICttOn Ratione p er.wn{IJ! under the Conventton
Investment Disputes between States and Nationals of other States," 47 B. Y ./.L.
(1974-1975) 227 et seq.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAw 89
162
See, in particular, Sohn, "The Iran-United States Claims Tribunal:
Jurisprudential Contributions to the Development of International Law," in R.B.
Lillich, The Iran-United States Claims Tribunal/981-1983 (1984) 92-103; Lagergren,
"The Iran-United States Claims Tribunal" in A. Bos, ed., Reali.'lm in Law-Making
0986) 113-30; Khan, The Iran -United States Claims Tribunal (1990); Caron, "The
Nature of the Iran-United States Claims Tribunal and the Evolving Structure of
International Dispute Resolution," 84 A .1./.L. (1990) I04- 56.
90 THE REGULATION OF NATIONALITY
163
Brower, "Lessons to be Drawn from the Iran-U.S. Claims Tribunal," 9 1.
lnt'l. Arb. (1992) 51.
164
United States Diplomatic and Consular Staff in Tehran , Judgment, I.C.J.
Reports ( 1980) 3, 44.
165
The long title is "Declaration of the Government of the Democratic and
Popular Republic of Algeria concerning the Settlement of Claims by the Government
of the United States of America and the Government of the Islamic Republic of Iran.
January 19, 198 I." The Declaration opens with the preambular sentence that the two
Governments "have agreed as follows: . . ." The texts of the Declarations are
reproduced in 20 l.L.M. 230 (1981), I lran-U.S.C.T.R. 3 (1981-2), and 75 A .J./.L .
(1981) 418. The accompanying Undertakings of the two Governments also bear the
date January I 9, I98 I.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 91
measures affecting property rights ...."It may be noted that this does
not include claims of Iran against nationals of the United States and
of the United States against nationals of Iran. Nor does it cover claims
for damages for injuries to the person, but is limited to claims on
contracts and property rights.•(ifi The Tribunal also has jurisdiction over
official claims of the United States and Iran against each other arising
out of contractual arrangements between them for the purpose and sale
of goods and services (Article 11(2)), and over any question
concerning the interpretation or application of this Agreement upon
the request of either Iran or the United States (Article VI (4), a
compromissory clause).
The Tribunal thus has jurisdiction over a certain class of disputes
between the two States parties to the agreement, and also over claims
brought by individuals. Article VII(2) provides that "Claims referred
to the arbitration Tribunal shall, as of the date of filing such claims
with the Tribunal, be considered excluded from the jurisdiction of the
courts of Iran, or of the United States, or of any other court." To
implement this the President of the United States required federal
courts to suspend prosecution of all claims over which the Tribunal
had jurisdiction, which meant, in effect, that the private claims that
had been brought against the Iranian Government by United States
nationals in United States courts, and for some of whom pre-judgment
attachment of Iranian assets had already been secured, were preempted
by United States' Government undertaking in the Claims Settlement
Agreement. In this way, although claims may be brought by individ-
uals, the procedure is arguably a form of diplomatic protection, as in
earlier claims procedure, and in Article III(3) of the CSD the
provision that individual claims of less than $250,000 shall be private
claims may be part recognition of this. On the other hand, the wording
of the CSD refers expressly to "claims of nationals of the United
States and Iran," and not only "have claims of U.S. nationals been
filed and argued by those very nationals, but it is also the national that
decides whether to withdraw or to accept settlement," contrary to the
practice and procedure of diplomatic protection. Hi? In Case A 121, in
1987, the Full Tribunal stated that "Tribunal awards uniformly recog-
166
Sohn, op.cit., supra, and 'Ill of the General Declaration.
167
Caron, op.cit., supra, at 133-37.
92 THE REGULATION OF NATIONALITY
1118
Islamic Republic of Iran v. The United States of America, Case No. A/21,
14 Iran·U .S.C.T.R. 324.
I
69
see crook• "APP,.tcable Law m. International Arbitration: The Iran·U.S.
Clai":~ Tribunal Experience," 83 A .J.I.L. (1989) 278 .
0
Lagergren, op. cit., supra, at 122. Judge Lagergren was the first President of
the Tribunal.
171
The overwhelming majority of the individual claims have been brought by
U.S .. natio~als, num~ring 3,300 by 1989, as compared with twenty·four claims by
lraman nat10n~ls agat~st the United States. See Selby. "State Responsibility and the
Iran·U.S. Clatms Tnbunal," Procs ASIL (1989) 240. By )ate 1990 the two
THE PRINCIPLE OF THE ''LINK" IN NATIONALITY LAW 93
that residence in the United States did not entitle an Iranian national
to present a claim against Iran. 172 Further, the Tribunal does not have
jurisdiction to deal with claims by individuals who have not owned
these claims "continuously, from the date on which the claim arose to
the date on which this agreement enters into force," that is, January
19, 1981.173
The leading case on the meaning of "United States national" is
Case A//8. 174 It arose in the following manner: During 1982, the
Chambers issued Orders inviting Memorials by parties on the question
of the effect of this so-called dual nationality on the Tribunal's
jurisdiction. A number of claimants filed Memorials on the issue, as
did the United States on November 19, 1982. During 1982, Iran made
written submissions of its views on dual nationality in various cases
in the Chambers. Chamber Two held hearings in three cases, Case 157
on October 25, 1982, and Cases 211 and 237 on November 5, 1982,
and issued awards in two of these cases on March 29, 1983, to which
a dissenting opinion was filed on October 12, 1983.175 Meanwhile,
before these two awards were issued, on February 25, 1983, Iran
requested, under Article VI, paragraph 4, of the CSD, "the Full
Tribunal's view concerning the inadmissibility of the claims filed by
the nationals of Iran against the Government of the Islamic Republic
of Iran."176
The hearing on the dual nationality question was held before the
Full Tribunal on November 10 and 11, 1983, subsequent to the two
awards of Chamber Two just referred to, but Case A/18 does not
constitute an appeal from the decisions of a Chamber, nor does it
affect those awards as they are final and binding pursuant to Article
IV, paragraph 1, of the CSD.
governments had agreed to settle fully 2,500 of the small claims of individuals in a
lump sum settlement, thus withdrawing them from the Tribunal. Brower, op. cit.,
.'iUpra, at 52.
171
In re Refu.ml to File Claim of A bdol Hamid Jahan (Refusal Case No. 16)
Chamber Two, I lran-U.S.C.T.R.P. 168.
173
Paridokht Kohan Haroodian v. The Islamic Republic of Iran, signed March
29. 1983, 2 lran-U.S.C.T.R. 251.
174 s·tgned A pn·t 6, 1984. 5 lran-U.S.C.T.R. 251.
175
Nasser Esphahanian v. Bank Tejarat, Award No. 31-157-2, 2 Iran-U.S.C.T.R.
157, and Golpira v. The Government of the Islamic Republic of Iran, Award No. 32-
211-2, 2 Iran-U.S.C.T.R. 171.
176
The procedural background to the decision of the Full Tribunal is sketched
in 5 lran-U.S.C.T.R. at 252-53.
94 THE REGULATION OF NATIONALITY
177
Cf. Judge Mosk, Concurring Opinion in A/18. Chamber Two was here
str~ssin~ . the logical consequences of giving equal weight, and value, to both
nattonaltttes.
178
1 lran-U.S.C.T.R. 189.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 95
179
2 Iran-U.S.C.T.R. 161-62.
180
' . at 166.
lb'd
96 THE REGULATION OF NATIONALITY
181
Ibid. at 165.
182
Ibid. at 166.
183 ld
). em . F~egenheimer Case (United States v. Italy), 14 U.N.R./.A .A . 327, 37S
0958
184
Idem . at 166-67.
.....
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 97
No caveat was added in the Golpira Award, but the Tribunal did
refer, in identical language, to the Iranian law which permits
renunciation of Iranian nationality only with the approval of the
Council of Ministers and, with such approval, on condition that such
person thereafter travel to Iran only once, in order to sell or transfer
his properties, as required by law. The Tribunal stated that
"[i]n effect, Iran told its citizens that, if they took foreign
nationality, they must also retain their Iranian national-
ity-which in Iran would be considered their sole national-
ity-or they would be forever barred from returning to Iran."
Therefore, the only way these claimants could "return lawfully to Iran
was as an Iranian national, using an Iranian passport" and the Tribunal
noted that the laws of Iran in effect forced such use. 185 The strong
language used here accords with the standards set by international law
as regards the imposition of nationality, discussed in the following
Chapter.
185
Ibid. at 168, 169, and 174.
186
See Jennings and Watts, eds., Oppenheim's International Law (1992) 516:
~nicle 4 of the 1930 Convention "are probably to be regarded as rules of customary
International law."
98 THE REGULATION OF NATIONALITY
187
5 lran-U.S.C.T.R. at 263.
188
Ibid.
189
Selby, op. cir. (1989) at 245
190 •
5 lran-U.S.C.T.R. at 265--66 .
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 99
This caveat attached to Case All8 is of great interest for the future
development of the international law of dual nationality, for its appli-
cation may further define the concept of dual nationality in this
context. It is also an expression of the fact that the rule of nationality
of claims partakes of both aspects, procedural and substantive. 191
Case A II 8 reiterates and confirms the right of an individual to
bring claims against the State whose nationality he also possesses,
contrary to the provisions of Article 4 of the 1930 Hague Convention,
but on the condition of fulfilling the requirements of the rules of
continuous nationality and of dominant and effective nationality. This
case does not, however, support the rights of individuals, qua
individuals, but of dual nationals who can prove dominant nationality.
It can be said, in Mahoney's words, that the rule of nonresponsibility
"should not be invoked presumptively to deny dual nationals standing
before international tribunals." 193
Two questions in particular remained to be further elaborated and
defined by the Tribunal after its decision in A I I 8: the application of
the dominant and effective rule, and of the caveat contained in it.
As regards the Tribunal's determination of the dominant and
effective nationality it is clear that in the numerous cases before it at
the admissibility stage the Chambers have consistently applied the
formula set forth in Case A I I 8 for a determination of each case on the
facts. Some doubts, however, may be cast on the interpretation put by
191
Ibid. at 274.
191
See Jennings, "General Course on Principles of International Law," 121 Rec.
des Crmrs (1967-11) 323, 479-80.
193
Mahoney, "The Standing of Dual Nationals Before the Iran-United States
Claims Tribunal," 24 Va. J.J.L . (1984) 695, 728.
100 THE REGULATION OF NATIONALITY
"the entire life of the Claimant, from birth, and all factors
which, during this span of time, evidence the reality and the
sincerity of the choice of national allegiance he claims to have
... ,.
rnade....
194
Malek v. Iran, Award No. 68-193-3, June 23, 1988, 19 Iran-U.S.C.T.R. 48.
50-52. See a/.w Bederman, "Nationality of Individual Claimants Before the Iran-
United States Claims Tribunal," 42 /.C.L.Q. (1993) 119, and for a general discussion
of the case law.
195
Abboud v. Iran, Award No. 477-383-2, May 16, 1990, 24 Iran-U.S.C.T.R.
265.
196
Case No. 274, July 1, 1992 (unreported).
197
Samrad Claims, Award Nos. 505-461, -462, -463, -464, and -465-2, February
4, 1991, Separate Opinion of Judge Aldrich. 26 Iran-U.S.C.T.R. 44; and the
Malekzadeh Claims, Award No. 543-356-1, January 21, 1993, Separate Opinion of
Judge Holtzman, dissenting in part. 115-11 (Unreported).
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 101
198
See Brower, op. cit. (1992) 51-52, and Lagergren, op. cit. at 125, for the
sensitive nature of Iran-U.S. relations; see also Khan, op. cit. (1990) 129 et seq., for
an exposition of the Iranian arguments.
199
Award No. 544-298-2, Chamber Two, Judge Ruda presiding (Unreported).
200
No. 660298-2, January 12, 1987, 14 Iran-U.S.C.T.R. at 6-8.
201
Award No. 544-298-2, at Tf46-48, 49- 54, and 55-M, respectively.
THE REGULATION OF NATIONALITY
102
claim, to the effect that the claimant _had no_t "concealed his American
nationality in order to obtain ben~f1ts available only to Iranians."2ll2
Dicta from Interlocutory Awards 1ssued by Chamber Two were als
cited, to the same effect. The Tribunal's conclusion warrants quotatio~
in full:
202
Ibid. at 153.
203
Ibid. at 154.
204 lb 'd
' . at 159.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 103
2115
Ibid. at 160.
206
See Amerasinghe, "Issues of Compensation for the Taking of Alien Property
in the Light of Recent Cases and Practice," 41 l.C.L.Q. (1992) 22, 65.
287
Award No. 544-298-2 at 158.
104 THE REGULATION OF NATIONALITY
208
Cf. Iranian Naturalisation Case, infra, Chapter 3, section 3.1 "Imposition of
Nationality" at note 128.
109
See 7 N . Y ./.L. (1976) 249-50.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 105
210
It is arguable that his amounts to an imposition of nationality as defined in
Chapter 3 of this book.
211
J.O.A .N. November 22, 1972, at 5575. Reproduced in XIX A .F.D.I. (1973)
1058.
212
T.G.I., Nanterre. 5 avril 1974. Luquiser c/ Prugnand, inedit. Quoted in XXI
A .F.D.I. (1975) 1029. This was for purposes of jurisdiction under Article 15 of the
Civil Code.
213
Lagarde, La N ationalite Franfaise (Paris J975) 17-18.
214
U.f.R. Ugeskrift for Retsvoerser 1964, p. 624. Digested in 92 J.D./. (1965)
689.
THE REGULATION OF NATIONALITY
106
115
The Netherlands, District Court of Amsterdam, February 29, 1968. 73 l.L.R.
567-68.
116
Sadat :· ~erte.f, 615 F2d 1176, U.S. Court of Appeals, 7th Circuit, Feb. 19,
1980. The. pla~nttff. possessed both Egyptian and United States citizenship. The
def~nda~t m thts actiOn for damages denied the court's jurisdiction on the grounds of
natJOnal~ty · 7.4 A 11: (1980) 937. The United States Supreme Court has referred to
dual nat10nahty as a status long recognized in the taw .. K -'· ·
7J7 72 S C . OWUAita V. . .,
us
343 U S.
.
• . · t. 950, 96.L.Ed. 1249 (1952). Restatement of Foreign Relations Law of
the Untted States (revtsed) 1986 (1987).
zt? Wh ·
. eaton, dtscussing treaties as a source of the positive or practical Jaw of
naftton~, wrote: "[F]or though two treaties, varying from the general usage and custom
o nattons,
. . . alter the internat'tona1 1aw. yet an almost perpetual succession of
cannot
tlraewat~es, estadb.hshmgd a particular rule, will go very far towards establishing what that
ts on a tspute point"
· E/ements 0 J•~" International Law (1936) 21.
THE PRINCIPLE OF THE "liNK" IN NATIONALITY LAW 107
118
Multilatua/ Treatit.v Deposited with tht St>crttary-Gt>ntrol as of December
31, 1991. These six States are: Cyprus, Fiji, Kiribati. Lesotho. Malta, and Mauritius.
1., January 20, 1973, 83 J.L.R. 197-209.
110
Moschovalcis v. Republic of CypniS, February 21. 1974. 83 I.L .R. 210-14.
108 THE REGULATION OF NATIONALITY
Service, which includes civil duties such as the home guard, in one of
the Contracting States was deemed to be service in another.
On June 30, 1959, the Governments of Israel and France signed
a Convention "Concerning the Military Service of Persons with Dual
Nationality," which entered into force on May 7, 1962.223 Article 2(1)
of this Convention provides:
221
Exchange of Notes constituting an agreement between the United States of
A~eric~ and France Relating to Military Obligations of Certain persons having dual
nauonahty. 67 U.N .T.S . 33 and 38. The French Minister for Foreign Affairs stated
that as of July 12, 1977, thirteen Conventions were in force between France and other
countries concerning the military service of plurinationals. J.O. Sen. 1977 at 2030.
Quoted in XXIII A .F.D.I. (1977) 1060.
222
243 U.N.T.S. 169.
223
448 U.N. T.S. 107 and 145.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 109
Article 5(2) of the same agreement provides that where such persons
establish a permanent residence, meaning habitual residence for two
years, in the territory of the other Contracting State after the fulfill-
ment of their military service in one of the two Contracting States
they, female nationals being exempted, will be subject to the military
obligations of their mobilization class in the second State.
Other such agreements have contained similar provisions. The
Convention between the Kingdom of the Netherlands and the Italian
Republic concerning the Military service of persons with dual nation-
ality came into force on October 18, 1962.114 Article 2 provides that
dual nationals of the two Contracting States fulfil their military
obligations in that one of the two States in which they are habitually
resident. No definition of habitual residence is provided, but Article
2(2) adds a restriction on this rule of thumb, by granting the dual
nationals concerned the right to choose military service in the State in
which they are not habitually resident. Article 7 provides that the
competent authorities of either of the two States may call up persons
affected by this convention in the event of mobilization. The Conven-
tion between Denmark and France concerning the Military Service of
Persons with dual nationality, which came into force on February 3,
1965,115 covered nationals of the High Contracting Parties who possess
both Danish and French nationality. Article 2 ( 1) provides that such
dual nationals shall perform their military service "in the State in
which they have their permanent residence at the age of 19 years."
Article 3 allows for voluntary service in the armed forces of the State
of their choice before being called up for service in the armed forces
of the other State. Article 4 adds the proviso that where those who
have performed their military service in one State "reside ... uninter-
ruptedly for more than two years" in the other State they shall be
114
450 U.N.T.S. 207.
11S
600 U.N.T.S. 213.
110 THE REGULATION OF NATIONALITY
116
746 U.N . T.S. 155. It came into force on August I 1970.
111 '
482 U.N.T.S. 309. It came into force on November 5 1963.
118 '
601 U.N .T.S. 213. It came into force on March 22 1967.
2~ •
Reported at 433 F2d 516 (1970). July 16, 1970. 56 t.L.R. 551, 562. In the
note appended to the case, reference is made to the unusual character of this case.
because it is based on a Treaty and the dual citizen was not born in the United States.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 111
130
634 U.N.T.S. 221 and E.T .S. No. 43. As of March I, 1993, thirteen States
had ratified or acceded to the Convention: Austria, Belgium, Denmark, France,
Germany, Ireland, Italy, Luxembourg, Netherlands, Norway, Spain, Sweden, and the
United Kingdom. (Information kindly supplied by the Council of Europe.)
131
To be discussed, infra, Chapter 4, section 6.4 at 207 et seq.
131
A Protocol Amending this Convention, opened for signature on November
24, 1977, replaced Article 6(3) to make provision for those cases where a person is
a national of and resident in the territory of a contracting Party which does not require
obligatory military service and equally a national of a Contracting Party where
military service is required. Here special rules apply to the requirements of ordinary
residence. E. T .S. No. 95. As of March I. 1993, eight Member States are parties to this
Protocol .
112 THE REGULATION OF NATIONALITY
arising under this convention do not apply "in the event of mobiliza-
tion."
Whereas in these treaties the principle of dominant nationality is
applied, as well as that of choice, there is also evidence to show that
in times when the security of the nation is at stake a State may
disregard the fact that one of its nationals also possesses the
nationality of another state in accordance with the laws of that State.233
233
Cf. Nygh, "Problems of Nationality and Expatriation before English and
Australian Courts," 12 l.C.L.Q. (1963) 175, 188. See also Karamanoukian, "La
Double Nationalite et Ia Service Militaire," 4 Hague Y.B.l.L. (1991) 193 et seq.
Karaman?ukian deals with Treaties on Double Nationality and Military Service, the
oldest bemg from October 197 I, between France and Great Britain, the most recent
that concluded between France and Tunisia of June 17, 1982.
234
The British Nationality Bill was introduced in the House of Commons on
January 13, 1981. and enacted on October 30, 1981. It entered into force at the
beginning of 1983, British Nationality Act 1981 (Commencement) Order 1982 (S.I.
1982 No. 933), and replaced the 1948 Nationality Act.
THE PRINCIPLE OF THE .. LINK" IN NATIONALITY LAW 113
235
The other innovations, relevant to a post-imperial power, are not discussed
here, but it may be noted that the common citizenship of "British subject," common
to all members of the Commonwealth from the 1948 Act is now superseded by the
status of British citizen for those whose links lie with the U.K.
236
See Blake. "Legislation, Citizenship Law and The State: The British
Nationality Act 1981," 45 M.L.R . (1982) 179-97. In 1962. controls were put on entry
to the U.K. as administrative measures. The 1971 Immigration Act determined who
enjoyed the right of unrestricted entry.
237
H.C. Debs, Vol. 989, cols. 1516-18: July 30, 1980. 51 B.Y.I.L. (1981) 398.
238
It may be noted that the draftsman has used this wording, showing that the
factual connection stipulated in the Nottebohm case for the grant of nationality is not
identical with the municipal law concept of domicile.
114 THE REGULATION OF NATIONALITY
4.3.3 Belgium
4.3.4 Portugal
241
Charles Vallee, "Notes sur les Disposition Relatives au droit international
dans quelques constitutions r~centes," A .F.D.I. Vol XXV (1979) 255, 275. The
legislative provision now in force is Act No. 37/81 of October 3, 1981. It conferred
full legal force upon Portuguese nationality law. came into force on October 8, 1981 .
and was given practical effect by Legislative Decree No. 322/82 of August 12, 1982.
116 THE REGULATION OF NATIONALITY
243
W.A. Wiswa Warnapala, "Sri Lanka's New Constitution," A sian Survey Vol.
XX (1980) 914-30. See al.w Agrawala and Koteswaro Rao, "Nationality and
International Law in Indian Perspective," in Ko Swan Sik, ed., Nationality and
International Law in A sian Perspective (1990) 65, 106-12.
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 117
4.3.6 Switzerland
244
Agrawala, ibid. at 107-12.
245
Thirty-three changes came into force on January I, 1992, repealing,
reintroducing, or, for the most part, amending articles in the Law.
246
This information on the Nationality Law has been kindly provided by the
Embassy of Switzerland, Helsinki.
118 THE REGULATION OF NATIONALITY
4.3. 7 Bulgaria
147
Law Amending and Supplementing the Law on Bulgarian Citizenship of May
10, 1989, with Introductory Note by Ivan Sipkov, reproduced in 29/.L.M. 538 (1990).
148
Reproduced, with Introductory Note by Ivan Sipkov, 26 /.L.M. 422 (1987).
THE PRINCIPLE OF THE "LINK" IN NATIONALITY LAW 119
5. CONCLUSIONS
1. PRELIMINARY REMARKS
1
See Plender, lmemaJional Migration (1972) at 33: "There continues to be some
dispute about the effects and nature of the limitations which international law imposes
on the right of each State to legislate with respect to nationality. International
tribunals have tended to restrict their remarks to the opposability of nationality, and
to avoid enquiring into the other consequences of a finding that the domestic
nationality law of a State fails to conform with the international standard."
121
122 THE REGULATION OF NATIONALITY
1
A number of terms may be used with substantiaiJy the same meaning:
::dep~ivatio_n_ of nationality," "withdrawal of nationality," denationalization," or even
the tmposttton of loss of nationality," or "the forfeiture of nationality." See Mangone.
The Element.r of International Law (I 967) at 242, 243, and 249.
- - - ------- ---- - --
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 123
1. 1. 1 Imposition of Nationality
This is close to the view expressed in the Nottebohm case, oral pro-
ceedings, that the imposition of a nationality on an individual, nolens
volens and without the consent of a State of his original nationality
constitutes an abuse of rights. 4 A further question arises as to whether
consent by an individual must be shown in a positive action or is
adequately shown by physical presence in or outside the territory of
the State imposing the nationality.
van Panhuys came to a similar conclusion in his earlier work on
nationality, from the basic proposition of the supremacy of inter-
national law. There he argues that:
3
Vcrzijl, International Lav.· in m.uorica/ Perspective Vol. V (Leiden, 1972) 25.
4
/ .C.J. Report.<; (1955) at 51 and 52.
124 THE REGULATION OF NATIONALITY
Here the two important factors are the nationality of the individual
concerned, not his domicile, and the manifestation, or otherwise of his
consent. Brownlie9 and Ross 10 point out that States could avoid their
international obligations to aliens if no limit were set to their right to
naturalize foreign nationals.
5
van Panhuys, op. cit. (1959) at 153.
6
Ibid. at 151 . This view is also put forward by Sir John Fischer Williams in
"Denationalization", 8 B. Y .I.L. (1927) 45.
7
Plender, International M igmtion ( J972) 33.
8
Ibid. at 286.
9
Brownlie, Principles, etc. (1990) 39-398 ". . . States could avoid rules
governing the treatment of aliens resident in, or passing through State territory.
however brief the sojourn."
10
Ross, Textbook of lmemational Law (1947) 149-50: a State "might set aside
all obligations" if it had absolute discretion to grant nationality to all on its territory.
.....
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 125
11
Brownlie, op. cit. ( 1990) at 405. Some years earlier, Brownlie argued that the
doctrine of the genuine link should be taken into account in assessing the legality of
these measures. Brownlie, "The Relations of Nationality in Public International Law,"
39 B.Y .I.L . (1963) 284, 331-42.
12
van Panhuys, np. cit. ( 1959) at 163.
13
Plender, op. cit. (1972) at 87.
14
Citing the Corfu Chmnel case, I. C.J. Reports (1949) 4, 17.
126 THE REGULATION OF NATIONALITY
15
Lauterpacht. The Function of Lm'' in the International Cnmm unity (1933)
300--DI.
tfi W . N . aJ
ets.
atwn ity and StatelessneH in lntematinnal Law (1956) 127. Writing
twenty-two years later, Weis summed up a discussion of whether Sates may determine
freely the conditions for the loss of their nationality in this way: "[T]he right of a
Stat~ to make ':'-IIes governing the loss of its nationality is, in principle-with the
poss~ble exce~tton o~ the prohibition of clearly discriminatory deprivation- not
rest.nct~d b~ mte.matJOnal law. unless a State has by treaty undertaken specific
obhg~~10ns t~posmg such restrictions." Op. cit. (2d rev. ed. 1979) 126.
Grottus, op. cit. Book II Cap. V Section xxiv, I, 2. 3: "[l]f such [mass]
migration were permissible the civil society could not exist" but "the State has no
legal claim against exiles." '
- -- ---------~
18
For example, Article 72(10) of the Brazilian Constitution of 1891 provided
that in times of peace every person might enter Brazilian territory whenever he chose
to do so.
19
Statistics presented in 20 Senate Doc., 61st Cong .. 3rd Session, 1910-11. See
Plender. op. cit. at 55.
20
May 6, 1882, II Stat. 5R. It was repealed in 1943 after the visit of the wife
of the Chinese leader. Chiang Kai-Shek to the U.S.
21
Lan Ow Ben v. U.S., 141 U.S. 34, 36 (1892).
22
48-49 Viet. c. 71.
23
Plender, op. cit., especially 47-49. More tact had to be used in excluding
Japanese, as was shown in the American-Japanese "Gentlemen' s Agreement" of 1908
by which the emigration of Japanese laborers to the United States would be checked
if the United States did not adopt discriminatory legislation against Japanese. See
Schachter, "The Twilight Existence of Non-Binding International agreements," 71
A .1./.L. (1977) 296 et seq.
24
See Fields, "Closing Immigration Throughout the World," 26 A .1./.L. (1932)
671 et uq: "I see in my mind's eye the building up of walled-in countries. much like
the wall-encircled towns of the medieval period."
128 THE REGULATION OF NATIONALITY
In the light of these events it was the right of a State to impose its
nationality on aliens that first gave rise to protests from foreign
governments. In the last century a number of municipal laws provided
for the compulsory naturalization of foreigners by operation of law.
In three different instances nationality was attributed to an alien auto-
On July 31, 1841, the Peruvian Government issued to the prefects and
to the superior courts of justice a circular order saying:
28
Plender, op. cit. ( 1972) 286.
29
Moore, Digest of International Law Vol. Ill §378.
130 THE REGULATION OF NATIONALITY
This rule was expressed to the effect that the question of citizenship
will not be determined ex pm1e on the application of a foreign govem-
ment.31 Moore states the position in this way:
"They are Mexicans ... III Foreigners who acquire real estate
in the Republic, or have Mexican children; Provided, always,
they do not manifest their resolution to preserve their
nationality."
31 Moore, Digest Vol. Ill at 303. Mr. Bayard, Secretary of State, to Col. Frey,
Swiss Minister. May 20, 1887.
32 See, in general, Moore, Digest Vol. Ill 304 et seq.
-
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 131
"The United States ... has always maintained that the trans-
fer of allegiance must be by a distinct voluntary act, and that
the loss of citizenship cannot be imposed as a penalty nor a
new national status forced as a favor by one government upon
a citizen of another. 33
33
Ibid. at 306. The Lex Vallarta recognized the "right" of expatriation.
34
Moore, Arbitrations Vol. Ill 2479-8 I. and Digest Vol. Ill 304.
132 THE REGULATION OF NATIONALITY
Mr. Thornton who became umpire after the death of Dr. Lieber,
followed this rule. In a later stage of the Anderson and Thompson
case he said he was of the opinion that
The rule that the mere acquisition of domicile does not divest an
individual of his nationality was further supported in relation to the
Brazilian laws. A decree of the provisional government of Brazil of
December 15, 1889 declared, in the first article, that all foreigners
35
Moore, Arbitrations Vol. Ill 2482.
36
Moore, Arbitrations Vol. 1112706-07. Cf. the case of Chester W . Rowe. Rowe
claimed Mexican citizenship, acquired by operation of these Jaws, in order to avoid
deportation to the U.S. In the course of the diplomatic discussions, the Department
of State stated that "It is not within the province or intent of this Department to find
fault with the laws of Mexico." Mr. Olney, Secretary of State, to Mr. Ransom.
Minister to Mexico, Dec. 13, 1895. Moore, Dige.H Vol. 111 307.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 133
who were residing in Brazil on November 15, 1889, the date of the
advent of the Republic, would be considered as Brazilian citizens,
unless within six months from the publication of the decree they
should make a declaration to the contrary before the proper authorities
of the municipalities in which they respectively were domiciled>" By
the second article of the decree, it was declared that all foreigners who
should thereafter reside in the country for ten years would be
considered as Brazilian citizens, unless they made the declaration
provided for in the first article. The Secretary of State of the United
States, Mr. B Iaine, pointed out that the principle of this decree was
not entirely novel, but was not known to have been accepted by
foreign governments when brought to their attention. He pointed out
the dangers of equating residence with nationality, especially as
regards those individuals who reside in foreign countries in order to
carry out commercial activities.38 The Brazilian authorities, for their
part, argued that a relaxation of these laws meant that their nationality
was not being imposed in a compulsory manner on foreigners resident
in their territory and "the claim that the decree be revoked or modified
is contrary to the sovereignty and dignity of Brazil. " 39
The United States Secretary of State pointed out the United States
view as to the difference between a voluntary and involuntary accept-
ance of naturalization in the case of the Haitian immigrants. 40 On
March 26, 1860, the Haitian Government issued an invitation to "all
men of African origin who are willing to share our fortunes" to
purchase land and settle in that country. Immigrants who complied
with certain conditions were, after a settlement of a year and a day in
the Republic, to enjoy all the privileges of Haitian citizens. These
conditions were that on buying land the settler declare his wish to
become a Haitian citizen and renounce every other citizenship. It was
also stated that any of the immigrants destined to a religious career
37
Moore, Digest Vol. Ill 307-08.
38
"To hold that the mere residence of an individual in a foreign country was
conclusive evidence of his desire and intention to become one of its citizens would,
declared Mr. Blaine, involve an assumption of a most violent character. In a matter
of such vital importance as that of citizenship it was, he said, necessary to preserve
fundamental principles, and especially was this so in the case of commercial nations
into whose territory foreigners came to reside for purposes of lawful enterprise,
wholly disconnected from any desire to participate in political affairs." Moore, Digest
Vol. III 308.
39
Ibid. at 310.
40 /d.
134 THE REGULATION OF NATIONALITY
For this reason a minor does not possess the capacity to expatriate
himself. Section 403(b) of the United States Nationality Act, 1940,
provides that "no national under 18 years of age can expatriate him-
self." The principle was stated by the Supreme Court of the United
States in its opinion in the case of Perkins v. Elg:43
41
See U.S . Foreign R elations (1889) at 403.
42
Cited in Hackworth, Digest of lntematinnal Lav.• \'ol. Ill (1942) 209.
43
Ibid: 9 A.D. (1938-40) Case number 116 at 351.
--
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 135
44
6 A.D. (1931-32) Case No. 124.
45
Ibid. In /n re Estate of Alves Tomez, before the Federal Supreme Court of
Brazil, on January 17, 1940, the testator was held to be Brazilian by tacit
naturalization according to Brazilian law under article 69(4) of the Constitution of
1891. 10 A.D. (1941-42) Case No. 80.
46
See Koessler, "The Reformed Mexican Nationality Law," 5 LouiJiana Law
Review (1942-44) 421 et seq.
136 THE REGULATION OF NATIONALITY
47
Ibid. Otherwise the required period of residence was increased from two to
five years.
48 N • by marriage is another matter.
aturaJ"1zat10n
49
2 Yearbook of the I.L.C. (1952) 8.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 137
If the Jaw of a State does not recognize the right of its nationals
to expatriate themselves it may in effect be causing the imposition of
national status upon a person who has manifested his intent to divest
himself of that State's nationality.
The effectiveness of the British nationality laws was particularly
challenged after the successful revolt against the Crown of the I 3
English colonies in North America in 1776 and the consequent estab-
lishment of the U.S.A. as an independent Republic, with its own
nationals.5 1
The common law rules regarding nationality were built around the
doctrine of allegiance, and in fact allegiance as a basis of British
nationality was not abandoned until the coming into operation of the
Nationality Act, 1948, by which allegiance became a result of
nationality, rather than the basis of it. All those born within the King' s
dominions owed allegiance to the King as his subjects, and the King
in turn owed them a duty of protection. Two terms were in principal
use: subjects, being those owing allegiance to the King, and aliens,
those who were not subjects, or, in the words of a later terminology,
non-nationals.52 The common law rule provided that all those born in
territory in the possession of the Crown owed allegiance to the
English sovereign. This also applied to the children of alien parents,
unless the child of diplomatic agents of a foreign State, or of an alien
l'llt'my in hostile occupation of the place where the child was born. 5~
And this allegiance once acquired, could not be shaken off.54
After the establishment of the independent Republic of the United
States of America the common law doctrine of the indelibility of
natural allegiance led soon to conflict between Britain and her former
colonies. The view that everyone was free to leave his country ..but
whatever fonn he went through elsewhere. and whatever his intention
to change his nationality. he still remained an Englishman in the eye
of the law"!is led to the impressment for service in the British navy of
native-born British subjects on merchantmen on the high seas, because
English law did not recognize the territoriality of such ships. This in
turn led to the war of 1812 between Great Britain and the United
States. However. after 1815 impressment was abandoned as a means
of manning the Royal Navy. In 1848 an Irishman, arrested on
suspicion of treason during the Irish disturbances, who claimed
immunity from suit on the ground that he was a naturalized United
States citizen, was soon set free on condition of leaving the country.
Thus the assertion of the indelibility of allegiance was little more than
nominal when in May, 1868, a Royal Commission was appointed "for
enquiring into the laws of naturalization and allegiance."5fi On
February 20. 1869, the commission submitted its report. In it the com-
missioners declared themselves as of the opinion that the common law
doctrine of indelible allegiance was neither reasonable nor convenient
and that it was inconsistent with the rights and duties of a subject and
with that freedom of action "which is now recognized as most
conducive to the general good as well as to individual happiness and
prosperity~ and it is especially inconsistent with the practice of a State
which allows to its subjects absolute freedom of emigration." The
commission advised against inserting in the British law a provision to
the effect that acquisition of foreign domicile and habitual residence
abroad amounted to a loss of British nationality, out of "regard to the
difficulties which attend the definitions of domicile and proof of the
53
Section l(l )(a) of the 1914 British Nationality and Status of Aliens Act
provides that a person acquired British subjecthood jure soli if he was born "within
His Majesty's dominions and allegiance."
54
As stated in the case of A enea.f M acDonld (1747). See Scott. ed., Cases on
lmemational Law (1922) 315.
55
See Hall, A Treatise on International Law (1880; 8th ed. by A. Pearce
Higgins, 1926) 282 et seq.
Sfi See Parry. op. cit. (1957) 78 et seq., and The Harvard Draft, 23 A .1./.L.
( 1929), Special Supplement at 47-48.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 139
fact, and also to the great diversity of circumstances under which men
reside in foreign countries."
In this way, from the time of the passing of the 1870 Act, a
British subject by birth was able to divest himself of his British
nationality by acquiring nationality in a foreign State by naturalization
provided that he was not under any disability, that he was in such
State, and that the naturalization was voluntary. This provision is re-
peated in the British Nationality and Status of Aliens Act 1914 section
13.58
Section 6 of the 1870 Act continues with a proviso for those
British subjects who have become naturalized in a foreign State and
yet wish to remain British subjects. Such a person may within two
years of the passing of this Act "make a declaration that he is desirous
of remaining a British subject" and with this declaration and his taking
the oath of allegiance he shall be deemed to have been continually a
British subject, with the qualification that he will not be deemed to be
a British subject "within the limits of the foreign State in which he
has been naturalized." This would seem to accord well with the
modem doctrine of dominant nationality.
57
See Parry. op. cit. (1957) 208.
58 Ibid. at 183: "A British subject who, when in any foreign State and not under
disability (defined as coverture, minority, lunacy or idiocy) by obtaining a certificate
of naturalization or by any other voluntary and formal act, becomes naturalized
therein, shall thenceforth be deemed to have ceased to be a British subject."
140 THE REGULATION OF NATIONALITY
The British Naturalization Act, 1870, was passed at the same time
as the Bancroft conventions between Great Britain and the United
States were concluded. The principle convention provided for the full,
mutual recognition of past and future naturalizations in the two coun-
tries subject to a concession to persons belonging to the one and
already naturalized in the other to change their minds and regain their
59
original status within a period of two years. This was to recognize
the so-called "right of expatriation." Thus the English common Jaw no
longer imposed British nationality on a subject who, by his voluntary
act, had chosen to divest himself of it by becoming naturalized in a
foreign State."11
"that all persons born in the United States and not subject to
any foreign Power, excluding Indians not taxed, are hereby
declared to be citizens of the United States."61
Thus, in the case of Wong Kim A rk, which came before the
Supreme Court of the United States in 1898, it was decided that Ark
possessed United States citizenship by birth even though his parents,
who were subjects of the Emperor of China, were prohibited from
becoming United States citizens. He was granted a writ of habeas
corpus for wrongful detainment in the State of California after a temp-
59
Ibid. at 78.
611
But the "right of expatriation" could become treason in time of war, R. v.
Lynch [ 1903] l. K.B.
61
Statutes at Large, Vol. 14. p. 27. See 9 A .J.l.L . (1915 ) 942-48, Editorial
Comment: Dual Citizenship.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 141
66
of American Citizens in Foreign States, approved in July, 1868. The
new doctrine was expressed in the preamble as follows:
66
14 U.S. Statutes at Large. 223. See Scott, op. cit. (1922) 155. Resistance to
the British doctrine of perpetual allegiance had gradually increased with the claim that
British born subjects who were naturalized under United States laws were "to all
intents and purposes. as much American citizens, and entitled to the same degree of
protection, as though they had been born in the United States." Mr. Buchanan,
Secretary of State, to Mr. Bancroft, Minister to England, October 28, J948, 47 8 riri.fh
and Forrign State Papers 1236, 1237. Quoted in Moore, Dige.tt Vol. Ill 566.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 143
67
Sandifer, .in his study of foreign nationality laws, carried out in connection
with the review of nationality laws of the U.S., stated: "The question of extending
protection to naturalized citizens who have returned to reside in the country of origin
has always been one of the most difficult problems of nationality with which the
United States has had to deal." See Sandifer, "A Comparative Study of Laws Relating
to Nationality at Birth and to Loss of Nationality." 29 A .J.I.L. (1935) 248 at 261.
68
Gordon, "The Turkish-American Controversy over Nationality," 25 A .J.I.L.
( 1931) 658-69.
144 THE REGULATION OF NATIONALITY
70
Ibid. 665.
71
See, supra. at40-41.
72
A pnstnlidis v. The Turki.c;h Go vernment. Franco-Turkish Mixed Arbitral
Tribunal, 1928. 8 T .A .M . 373. English translation in Briggs, The Law nf Natinn.r.
Cau s. Doc11ment.'i, and N ntes (2d ed. 1952) 513.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 145
73
These exceptions included such matters as residence for reasons of health and
education; to be detained by unforseen or uncontrollable circumstances; or residence
as a bona fide representative of American trade or commerce. See Gordon. op. cit.
( 1931 ). These covered the essential features of the draft treaty between Turkey and
the United States of 1874.
74
35 I.L .R. 197.
75
Opinion of the Attorney-General. Wickersham. of December I, 1910 (28 Ops.
Atty. Gen. 504); Camardo v. Ti/Unghart, 29 F2d 527. Quoted in Sandifer, op. cit.
( 1935) at 262.
76
See Hatsuye Ouy e v. Acheson, Sec:retmy of State, 1950 l.L.R . Case No. 52:
''The benefits of citizenship can be renounced, lost or waived only as the result of free
and intelligent choice."
77
See Perkins v. E/g, supra, text at note 43, and McCampbell v. Mc:Campbe/1,
U.S. District Court, Western District. Kentucky, Feb. 6, 1936, 8 A .D. (1935-37) Case
No. 131.
78
See U.S. ex rei. De Cicco v. Longo, U.S. District Court, Conn., July 4, 1942,
10 A .D. (1941-42) Case No. 73.
146 THE REGULATION OF NATIONALITY
tion in the Japanese Anny in the Second World War has been held to
be against the plaintiff's wiJJ. 79 In its decision in Afroyim v. Rusk,
J 967, the Supreme Court held that voting in foreign elections was not
adequate proof of an intent to abandon U.S. citizenship.80 In Vance v.
Terrazas, 81 the Supreme Court ruled that the appeJJant, who had dual
Mexican-American citizenship, did not Jose his American citizenship
by his taking an oath of aJJegiance to Mexico. As he was a Mexican
citizen this added nothing to it and was not inconsistent with and had
no effect on his American citizenship.
The American courts also, as we have seen, considered the
acquisition of American citizenship without domicile as a fraud on the
Jaw and, as such, grounds for withdrawing the nationality so acquir-
ed.82 This was put on a statutory basis by the Law of June 29, 1906,
Sec. 15 pp. 593-94, 34 Stat. 596, which provided for judicial proceed-
ings for the canceJJation of citizenship upon presentation of evidence
that naturalization was secured iiJegaJiy or through fraud, return to the
country of origin within five years after the issuance of the certificate
of citizenship constituting prima facie evidence of fraud in the secur-
ing of such citizenship. That is, both the grant and revocation of
naturalization in the United States are by judicial process; the courts
decide.
The doctrine of expatriation was further eroded as the United
States began to limit immigration to its shores, as in the Acts of 192 I
and 1924 "To Limit the Immigration of Aliens to the United States."
Thus, in 1931, Borchard could write that the doctrine of voluntary
expatriation of 1868 was practicaJiy obsolescent because the equal
protection abroad for native and naturalized citizens was not accepted
in international law.83 He wrote:
79
See Kanno v. Ache.w n, Secretary of State (1950), 17 /.L.R. Case No. 58.
80
387 U.S. 253. See Digest of U.S. Practice in Intemational Law (1975) I 17,
and Walter, "The Bancroft Conventions, Second-Class Citizenship for Naturalized
Americans," 12 lnt'l Lawyer (1978) 825, and supra at 42-43, 51.
81
48 USLW 4069 (S. Ct. Jan. 15, 1980). Digested in 56A.J.I.L. (1980) at 438.
82
See Cufari v. United States, U.S. Court of Appeals, First Circuit, Dec. 6,
1954, 21 I.L.R. (1954) 181, where Cufari was not deprived of his citizenship for
fraud, allegedly committed in I 927 when he became a naturalized citizen. He had then
signed a docket slip saying "no arrests," although he had in fact been arrested 9 times
between 1923 and 1927. But he claimed that he did not recall being asked about it.
113
See Borchard, "Decadence of the American Doctrine of Voluntary
Expatriation," 25 A .J.I.L . (1931) 312-16 at 314.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 147
84
See Flournoy, 8 A .1./.L. (1914) 477 et seq., and HaiJ, A Treatise on
International Law (1880; 8th ed. by A. Pearce Higgins, 1926) 287-92.
85
These were: Afghanistan, Albania, Belgian Congo, Bulgaria, China, Danzig,
Estonia, Egypt, Finland, France, Greater Lebanon, Syria, Greece, Saudi Arabia,
Hungary, Libya, Latvia, Liechtenstein, Norway, Persia, Poland, Switzerland, Turkey,
and Yugoslavia. Sandifer, op. cit. (1935) 271.
-.
148 THE REGULATION OF NATIONALITY
86
See The Problem of Statelessness. Consolidated Report by the Secretary-
General, 26 May, 1952. U.N. Doc. E/2230 A/CN 4/56. Hall, for one. favored
acknowledging the right of every State to regulate under what conditions a national
may l~se_ his,nationality so avoiding the "anarchical principle" of an absolute right of
expatnat10n. Hall, op. cit (1926) 292- 93.
87
See Bar-Yaacov, Dual Nationality (1961) 2.
- - - - - -
88 See Goodwin-Gill, International Law and the Mo vem ent of Pe rsons between
States (1978) 6.
89 Sandi fer, op. c:it. (1935) 278, conclusion.
90
Secretary-General's Report 31 et seq., supra note 86.
91
s11pra, this chapter, section 2. 1.2.1.
92
Ireland, Nationality and Citizenship Act, 1956. Parry, op. cit. (1957) %1.
150 THE REGULATION OF NATIONALITY
93
In 13 A .D. (1941) Case No. 53.
94
S ee Fl ournoy, "Observat10ns
. on the new German Law of Nattona . 1·1ty," 8
A .J.I.L. ( 1914) 477 et seq. It may be noted that otherwise Flournoy considered that
"The performance of services to the State rather than domicil within its territory
appears to be made the basis of German nationality." (Flournoy at 479.)
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 151
ality, has no State to protect him and hence no voice in the inter-
national sphere.
2.2. 1 Meaning
95
See The Problem t~f Stateles.me.u 150.
96
Loss of nationality by a voluntary act with knowledge of the consequences is
not an arbitrary deprivation of nationality, Lapides v. Clark, U.S. Court of Appeals
D.C. Circuit, May 23. 1949, 16 A .D. ( 1940) Case No. 56.
97
See Makarov. A /lgemeine Lehren de.'i Staatsangehiirigkeitsrecht ( 1962)
207-08: naturalization "in fraudem legis" need not be recognized in third States.
98
United States v. Eichenlaub, U.S. Court of Appeals of the District of
Columbia Circuit, June 19, 1950, 17 I.L.R . (1950) Case No. 59.
99
Paul Knauer v. U.S .A .. U.S. Supreme Court, Decision of June 10, 1946, 13
A .D. (1946) Case No. 51.
1110
In re Sa'i.w la. Argentina. Federal Court of Rosario, Dec. 4, 1943, 12 A .D.
(1943--45) Case No. 58.
152 THE REGULATION OF NATIONALITY
101
falsification, concealment, misrepresentation. " In the Report by the
Secretary-General of the United Nations on the Problem of Stateless-
ness, five grounds were given for the withdrawal of nationality applied
only, or mainly, to nationals having acquired the country's nationality
otherwise that at birth. 102 These grounds were: (a) prolonged sojourn
abroad denoting severance of the link between the national and the
country; (b) participation in certain activities in a foreign country
which are generally considered to be reserved to nationals of that
foreign country; (c) fraud exercised when obtaining the country's
nationality; (d) Jack of good character, denoted, in particular, by a
criminal conviction within a specified period of time after acquiring
the country's nationality; (e) disloyal acts or attitudes towards the
country, in particular when the country is at war. Withdrawal of
nationality on such grounds as these could also apply to nationals by
birth, but only in exceptional cases. Under Belgian Jaw, for example,
a criminal conviction for specified crimes under the Military Penal
Code could result in loss of nationality for all classes of subjects.
Turkish law prescribes loss of nationality for all classes of citizens for
certain offenses, such as failure to report for military service, desertion
under specified conditions, or voluntary military service in a foreign
country.
2.2.3 Exile
101
Supra, note 99.
102 S Th . ,
• ee e Problem of Statelessness, Chapter VI "Withdrawal of Nationality,
150 et seq.
1113
U.N. 1964. Dept. of Economic and Social Affairs. E/CN.4/816 Rev. 1.
...
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 153
territorial sense. 104 This study was originally submitted to the 17th
session of the Commission in 1961, then revised by the Committee in
1962, with the addition of minor corrections and changes and the
inclusion of draft principles on freedom from arbitrary arrest and
detention. There were no draft principles on exile. In its concluding
remarks the Committee noted
2.2.4 Denationalization
104
Ibid., Part V at 197- 204.
..,
ities, both religious and ethnic groups. Already, in the Treaty of Kut-
chuk Kainarji, between Russia and Turkey in 1774, the Sublime Porte
undertook to protect the Christian religion and its churches. 105 At the
Congress of Berlin in 1878, the East European States were urged to
grant equal treatment to their subjects. This was not always the case.
For example, Romania contrived to evade her obligations under the
Peace Treaty of Berlin to equalize her Jewish and her other subjects,
by simply refusing naturalization to the former so that they remained
aliens. 106 The obligation was later written into the Treaty of St.
Germain of December 9, 1919, Article 7 of which provides:
105
See Fawcett, The Law of Nations (2d ed. l971) 160.
106
See Verzijl, lntemational Law in Hi.rtorical Perspective Vol. V (1972) 193,
and I.L.A. 33rd Report, Stockholm, 1924 at 525, "MinoriHitensschutz," Report by Dr.
Erwin Loewenfeld and Dr. Udo Rtickser.
107 see v erZIJ"), op. cit. ( 1972) 184.
108
Other rights were the rights to use their own language and establish their own
schools.
109
Cf. the treaty with Poland where it was laid down that "Poland admits and
declares to be Polish nationals ipso facto and without the requirements of any
formality persons of German, Austrian, Hungarian or Russian nationality who were
born in the said territory of parents habitually resident there, even if at the date of the
corning into force of the present Treaty they are not themselves habitually resident
there (Art. 4(a))." Flournoy and Hudson, Nationality Laws ()929) 646.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 155
110
These are: "(a) Persons having resided abroad unintenuptedly for more than
five years. and not having received before the Ist June, 1922, foreign passpons or
corresponding cenificates from representatives of the Soviet Government. .. . (b)
Persons who left Russia after the 7th November, 1917. without the authorisation of
the Soviet authorities. (c) Persons who voluntarily served in armies fighting against
the Soviet authority, or who have in any way panicipated in counter-revolutionary
organization. (d) Persons having had the right to opt for Russian citizenship and not
having exercised that right within the period prescribed for option." See Sir John
Fischer Williams, "Denationalization," in 8 B.Y .I.L. (1927) 45.
156 THE REGULATION OF NATIONALITY
111
Ibid. at 46. And this by ex post facto legislation.
112
See Lauterpacht, "The Nationality of Denationalized Persons," Jewish
Yearbook of International Law ( 1948) 164-85, and in E. Lauterpacht, ed., Collected
Papers Vol. III 383-404; Weis, Nationality and Statelessness in International Law
(1979) 119-20; and Mann, "The Present Validity of Nazi Nationality Laws," 89
L.Q.R. (1973) 194-209.
113
Retc
. hsgesetzblatt I, 1. 1146. Weis, op. cit. 6.
114
Mann. op. cit. (1973) 194.
- - - - - - - -- - -
115
Lauterpacht. op. cit (1948) 385.
116
Chapter 5.
158 THE REGULATION OF NATIONALITY
117
Hufvudstadsbladet, March I9 and 27, 1982.
118
See Devine, "Recognition. Newly Independent States and General Inter-
national Law." in 10 S.A .Y.I.L . (1984) 18, 23- 24.
119
U .N.G.A. Res. 32/105N adopted on December 14, 1977. and U.N.G.A. Res.
3J/6A; U.N.S.C. Res. 402 (1976) and 407 (1977); and statementsissued by the
President of the Security Council of Sept. 21 , 1979, U.N. Doc. S/13549.See also S.
v. Banda and Others. Bophuthatswana Sup. Ct. General Division, 6 February 1989.
in 82 I.L .R . 388 et seq.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 159
120 See Blaauw. "The Naturalisation of Blacks in the Republic of South Africa,"
in 8 S.A .Y ./.L. (19S2) 106 at 113 et uq.
111 ISBN 0 621 14920 9, supplied by the Embassy of the Republic of South
Africa. Helsinki. These proposals, however. are contained in the text of what is no
more than a draft Charter of Fundamental Rights. They are, nevertheless, a part of the
post-apartheid policy.
160 THE REGULATION OF NATIONALITY
Ill
6 A.D. (1931-32) No. 124. See, supra, text at note 44.
123DecJsJon
. . o f J anuary 31, 1948. 15 A .D. (1948) Case No. 66.
124
. . o f May 28, 1952, 19/.L .R. (1952) Case No. 56. Cf. the Collective
Dectston
Naturalization Case, before the Superior Provincial Court of Bavaria, Federal Republic
of Germany, March 21. 1969, 61 l.L .R. 406. The complainant's contention that he
was of unidentified nationality as the son of an expelled Sudeten German, from the
northern part of Czechoslovakia, was not accepted, on the grounds that he had not
subs~quently lost th~ Ge~an ~ationality collectively imposed in 1938, nor had he
acqmred another nat10nahty. H1s connections were solely with the Federal Republic
of Germany. Therefore, he could not claim exemption from military service in the
Federal Republic of Germany.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 161
125
The German Federal Republic, Decision of January 18, 1956, 23 /.L.R .
(1956) 364~.
162 THE REGULATION OF NATIONALITY
126
Federal Republic of Germany, Decision of May 16, 1960. 32 l.L.R. 166.
121
Federal Republic of Germany, Federal Administrative Court, June 1. 1965·
43 I.L.R. 194.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 163
"Thus the State may not validly under international law grant
its nationality arbitrarily but only to persons who are in a
close and actual relationship to it. ... In the case of a cession
of territory, as in the present case of North Transylvania, a
general naturalization without the consent of the persons con-
cerned was only possible if they had their ordinary residence
in the territory ceded."
129
S ee, supra, note 125.
130
Belgium, Court of Appeal of Brussels, March 17, 1959, 47 /.L.R. 31.
131
High Court, June 6, 1952, 19 I.L.R . (1952) Case No. 58, infra, at 302.
Similarly in Re Shimabukuro and Others, the Osaka District Court, Japan, on June 29,
1966, and May 30, 1967, ruled that the United States' trusteeship over the Okinawa
islands pursuant to Article 3 of the Treaty of Peace, did not alter the national status
of the inhabitants. 54 l.L.R. 214.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 165
affect nationality. This agrees with the rule of English law that
changes of nationality enacted by an enemy State will not be recog-
nized in time of war. 132
3.2 Denationalization
132
The King v. The Home Secretary. Ex parte L. and Another [1945] K.B. 7.
The High Court of Justice July 26, 1944. Also reported in 12 A .D. (1943-45) 199.
The Court, per Viscount Caldecote C.J., stated that the enemy cannot purport to turn
any of its subjects into stateless persons or subjects of a neutral State "to the prejudice
of this country." In this case, the rule was applied that enemy aliens are not in a
position to apply for a writ of habeas corpus.
133
4 A .D. (1927-28) Case No. 209.
134
See Lauterpacht, "The Nationality of Denationalized Persons," in Collected
Papers Vol. III (1977) 399.
135
United States Circuit Court of Appeals, Second Circuit, January 15, 1947, 14
A .D. (1947) Case No. 41.
THE REGULATION OF NATIONALITY
166
136
Switzerland, Federal Tribunal, June 15. 1934. 7 A .D. (1933- 34) Case No.
115. Cf. Parry, ..The Duty to Recognize Foreign Nationality Laws," in 19 Z .a.oR. V.
(1958) 337-68. From a study of this case and others dealt with by domestic courts,
he concluded that the right of each State to determine who are its own nationals has
not been affected by Article 1 of the 1930 Convention.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 167
foreign state has no legal means of compelling the former home state
to revoke the deprivation of citizenship and receive back the person
affected."
In 1946, the Swiss Federal Tribunal heard a similar appeal from
a woman who claimed Swiss citizenship by virtue of the fact that she
could not acquire her husband's nationality, he having none. In
Levita-Miihlstein v. Departement Federa/e de Justice et Police, 137 the
applicant was a Swiss citizen by birth who, in 1945, married L., a
Jewish refugee from Germany resident in France. The German Decree
of November 20, 1941 , rendered him stateless, a status recognized in
France in that he was conscripted for service in the French army. Here
the Court stated that the German denationalization decree could not be
recognized in Switzerland as it was contrary to Swiss public policy. 138
By distinguishing between citizens on racial grounds, between "Jew"
and "Aryan," it violates "in an intolerable manner the idea of the
equality of citizens before the law" and "its application would violate
in an intolerable manner the sense of justice as generally prevailing in
this country." As this was a preliminary question of law, not a decis-
ion on the merits, the Court did not consider itself bound by the pre-
liminary decisions given previously by another authority in the same
manner.
In the Levita case, as in similar cases before the courts of other
States, the problem of whether or not to give effect to the Nazi de-
nationalization decree of November, 1941, was further complicated by
the Law No. 1 of the Allied Military Government, proclaimed on Sep-
tember 18, 1944, which repealed the racial and confiscatory legislation
of the Nazi regime. The question before the courts was: if the validity
of the denationalization decree was not recognized, or, indeed, if it
was recognized but was considered contrary to public policy in the
Swiss sense, did the Allied legislation operate as an imposition of
German nationality? In the Lev ita case the court held that the husband
was not stateless and the wife therefore had the German nationality of
her husband, and so was subject to the disadvantages attaching to Ger-
man nationality for persons and property in Switzerland.
137
Switzerland, June 14, 1946, 13 A .D. (1946) Case No. 58.
138
Makarov treats fraus legi.~ and reasons of public policy as two grounds for
excluding foreign nationality legislation.
168 THE REGULATION OF NATIONALITY
139
(Chambre Sociale) November 28, 1946, 13 A.D. (1946) Case No. 59 136·
The Court of Cassation (Civil Division) passed a similar judgment on May 30. 1949·
Bennfo v. A /exander, 16 A .D. (1949) Case No. 69.
140
Ibid. at 137.
141
13 A .D. (1946) Case No. 58.
142
Court of Appeal of Paris, Feb. 8, 1947, 14 A .D. (1947) Case No. 54.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 169
143
France. The case went on appeal to the Court of Cassation (Civil Div.) from
the Court of Appeal of Paris. Judgment of December 20, 1950, 16 A .D. ( 1949) Case
No. 68.
144
See Lauterpacht, The Nationality of Denationalized Persons (1977). See also
Mann, "The Present Validity of Nazi Nationality Laws," 89 L.Q.R. (1973) 194-209
at 198, and Morgenstern, "Recognition and Enforcement of Foreign Legislative,
Administrative and Judicial Acts which are Contrary to International Law," 4 /.L.Q.
( 1951) 326 et seq.
170 THE REGULATION OF NATIONALITY
Secondly,
145
See Mann, op. cit. (1973) 203.
146
See Lauterpacht, op. cit. (1977) 391.
147
Argentina, Camara Civil Segunda. Decision of Feb. 20, 1948, 15 A .D. (1948)
Case No. 76.
141
Israel, Supreme Court sitting as a Court of Civil Appeals, October 28, 1954,
21 I.L.R. (1954) 181.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 171
For long it was held that this meant that the 1941 decree was
effective, but the West German courts have interpreted it otherwise.
Thus, the Federal Supreme Court has held, since 1952, that the
confiscations and, since 1962, that the expatriations brought about the
decree of 1941 were null and void ab initio. Because of its arbitrary
character "and the abus de droit inherent in it," 149 the decree so lacked
the quality of law that it was a non-law, "unrecht." Mann attributes
this interpretation to the natural law philosophy of the supreme tribu-
nals of West Germany since 1945. He quotes a 1968 case before the
Federal Constitutional Court concerning a dispute over an inheritance,
the nationality of the deceased at the time of death being the question
to be settled. The facts were as follows: a German lawyer escaped to
Holland shortly before the outbreak of the Second World War, but
was deported East in 1942, and was presumed to have died on May
8, 1945. He died intestate. If Dutch law applied only the surviving
brothers inherited, if German law applied the nephews and nieces
shared in the inheritance. The case went from the County Court, to the
District Court and the Court of Appeal at Frankfurt before being heard
before the Federal Constitutional Court where it was held that the
deceased died a German national. The court held the decree to have
been to so intolerable a degree irreconcilable with justice that it must
be considered to have been null and void ex tunc. Thus the expatri-
ation was treated as void but some legal consequences may have
149
See Mann, op. cit. (1973) 199. Cf. the Loss of Nationality (Germany) case
where the Federal Administrative Court decided that the "restoration of Austria has
to be looked upon in international law as an act of removal of a National Socialist
wrong. The Allied Powers have declared the Anschluss of Austria null and void."
Therefore. "[i}t is immaterial whether the Anshluss Austrian had been denaturalized
or not; he recovered Austrian citizenship on 27 April 1945." Decision of September
28, 1965, 45 l.L.R. 353.
172 THE REGULATION OF NATIONALITY
flowed from it if there had been created a situation which cannot sim-
ply be treated as undone. Acquisition of another nation~li~y with the
simultaneous lack of connection, or link, between the v1ct1ms of this
decree and Germany may be an example of such a situation.
ISO 0 h . C
ppen etmer v. attennnle, Inspector nf TaxeJ [ 1975]. I All E.R. 538 and
[ 1975] W.L.R. 347 (H.L.).
lSI The Double Taxation Relief (Taxes on Income) (Federal Republic of
Germ ~~y) Orders of 1955 an~ 1967, S.l. 1955 No. 1203 and S.l. 1967 No. 25.
1 Although the underlymg purpose of the act of State doctrine is the reciprocal
a11oc~tion of territor~a1 competence, there is a closely-related, and well-accepted.
doctnne .that an Enghsh court may decline to give effect to a foreign State act when
that act 1s contrary to English public policy. See Higgins in Editorial Comment, 73
A .1./.L. (1979) 465-70.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 173
and as United Kingdom national only was liable to pay the English
tax assessed on him.
In the House of Lords the majority opinion was that on the new
evidence put forward concerning German Jaw, that is to say Article
116(2) of the Constitution as interpreted by the German courts,
Oppenheim lost his German nationality in J949 as he had not then
taken the steps open to him to resume it. The decision contains an ele-
ment of public international law. Lord Pearson, dissenting, expressed
what may be called the classic view. He said:
" ... [T]he answer to the question whether or not the person
is a national or citizen of the country must be answered in the
light of the Jaw of that country however inequitable, oppres-
sive or objectionable it may be."
The majority view, per Lord Hodson, Lord Cross of Chelsea, and
Lord Salmon, expressed the view that:
Thus, among the many points of law raised in this case, there is
some authority for the rule that foreign denationalization legislation of
a blatantly arbitrary nature may be excluded by an English court on
the basis of incompatibility with public policy and, also, international
law. In his commentary on the case, Merrills has suggested that as this
concerns a matter of status
153
All E.R., loc. cit. 556.
174 THE REGULATION OF NATIONALITY
Thus, it would seem that the courts are moving towards the recog-
nition of an international standard to serve as the basis for recognition
of foreign nationality legislation. Not only may courts excJude such
foreign legislation which does not conform with these standards, but
they may also be treated as illegal as far as the foreign law is con-
cerned.155 However, in the Oppenheimer case English law was follow-
ing German practice on the question.
154
Merrills, "Oppenheimer v. Cattennole-The Curtain Falls," 24 l.C.Q.L.
(1975) 617 at 620. See also Merrills, "One Nationality or Two? The Strange Case of
Oppenheimer v. Cattenno/e," 23 I.C.L.Q. (1974) 143-59. Makarov refers to similar
cases where asymmetrical nationality results. For example, an Egyptian mixed court
has treated the loss of Albanian nationality as governed by Egyptian law (p. 175). and
the French Cour de Cassation has applied French law. Op. cit. (1962) 172.
ISS S h fi .
uc JctJons have extsted
. .
elsewhere. For example, in the Umted States
"Chinese" citizens have been deported from the United States to Taiwan, Mainland
China not being recognized by the executive branch of government. Lee Wei Fang.
et a/. v. Kennedy 317 F2d 180, United States Court of Appeals, D.C. Cir., March 25,
1963. Digested in 58 A .1./.L . (1964) 188-89.
156
"Denationalization," 1927 8 . Y .I.L. 45--61.
THE IMPOSITION AND WITHDRAWAL OF NATIONALITY 175
against his wi11 would hardly be compatible with his "perfect freedom
of choice." He continued by stating that "it is the essence of modern
international law that States are members of a community and there-
fore in the sphere of their mutual relations owe duties one to anoth-
er."157 He considered one of these duties to be not to infringe the right
of other States to remove an alien whom it considers undesirable "if
there is no State against whom to apply the rule of international law
that every State is obliged to receive its own nationals." 158 And in con-
cluding he considered that:
162
Weis. op. cit (1956) 242. In the second edition of his book, Weis adds the
"possible exception of the prohibition of discriminatory denationalisation." Op cit.
(1979) 242. See also Wasservogel v. Federal Dept. of Ju.stice and Police, Switzerland,
Fed. Trib. Sept. 23. 1949. 16 A .D. ( 1949) Case No. 52. The court stated that there is
still controversy as to the exact limits set by international law on the regulation by a
State of its nationality.
(1937--43). See the "Cairo Declaration on Principles of International Law on
JfiJ
4. INTERNATIONAL BODIES
164
For example. the Code on Arbitral Procedure drafted at the First Hague Peace
Conference in 1899 used as a basis for discussion the draft prepared by Professor
Goldschmidt. See Scott, Resolutions of the In stitute of lmemational Law (1916),
Introduction.
165
See A mwaire /.D. I. Vol. I 5 at 233-71. The six principles are set out at
270-71.
THE REGULATION OF NATIONALITY
178
166
Article 3 states in full : "Nul individu ne peut acquerir, par naturalisation. une
nationalite etrangere, tant qu'il reside dans le pays dont il possede Ia nationalite. Un
individu ne peut acquerir, par naturalisation, une nationalite etrang~re, que s' il en fait
Ia demande. L'Etat de Ia residence peut neanrnoins imposer sa nationalite. a
)'expiration d'un certain delai, fixe autant que possible par une convention; et sous
reserve d'un droit d' option." A nnuaire J.D./. Vol. 34, ( 1928) 1-32 at 14.
167
See Annuaire J.D ./. Vol. 36 (1931.1) 40.
1611
International Law Association 33rd Report, Stockholm. 1924. The other
articles proposed that on cancellation of naturalization for fraud the individual
concerned should revert to his former nationality (Art. 3); that nationality should be
-- - -- - - - - - ·
lost only as the effect of a new nationality (Art. 5); and that the acquisition of a new
nationality should ip.w facto cancel any fonner one (Art. 6).
1
" League of Nations Doc. C. 73. M. 38, 1929 V. 24 A .J./.L. (1930), Special
Supplement at I0. Article 1 provides that: "It is for each State to detennine under its
own law who are its nationals. This Jaw shall be recognized by other States in so far
as it is consistent with international conventions, international custom, and the
principles of law generally recognized with regard to nationality."
180 THE REGULATION OF NATIONALITY
5. CONCLUSIONS
CHAPTER 4
HUMAN RIGHTS CONVENTIONS
AND OTHER INSTRUMENTS
1 A Modem Law of Nations (1968), Preface. See also in I.L.A.• The Present
State of International Law (1973) at 344.
2 Politis, The New A .~peers of lntemaJional Law, .mpra, at 11-12.
183
184 THE REGULATION OF NATIONALITY
"Whereas:
The Declaration of the United Nations has proclaimed the
need for establishing international protection of the essential
rights of man; . . .
International protection of the rights of man would
eliminate the misuse of diplomatic protection of citizens
abroad, the exercise of which has more than once led to the
violation of the principles of non-intervention and of equality
between nations and aliens, with respect to the essential rights
of man."4
1.1 Refugees
4
Inter-American Conference on Problems of War and Peace, Mexico City,
February-March 1945 Final A ct at 79. Quoted in Green, The United Nations and
Human Rights (1956) at 15. Ermacora gives a list of the writers who had supported
the principle of nonintervention in "Human Rights and Domestic Jurisdiction," 124
R ecueil des Cours (1968-11) 379.
5
See Krenz, "The Refugee as a Subject of International Law," 15 l.C.L.Q.
(1966) 90 et seq.
6
189 U.N.T.S . 137. The term refugee is defined in Article 1 of the Convention
as referring to a person who "[a]s a result of events occurring before l Jan. 1951 and,
owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country . ..."It entered into force on April 22, 1954,
and as of December 31 , 1991, one hundred and six States are party to it.
7
Signed at Geneva on September 6, 1952, and entered into force on September
16, 1955, in respect of 10 States and subsequently 3 more. 216 U.N .T.S. 176.
186 THE REGULATION OF NATIONALITY
Also the purpose of the human rights documents was not so much to
eliminate the need for the juridical link between the individual and the
State, that nationality provides, as to ensure that the existence of
democratic forms of government would guarantee the stability of
world order. This was already implicit in the League of Nations. In a
speech of July 4, 1918, President Wilson stated:
What was true of the League of Nations was even more so of the
United Nations. The Allied Powers stated as an essential part of their
peace aims in the war against Germany, Italy and Japan the
establishment of free democratic States, "peace-loving States" in the
wording of Article 4 of the Charter. In his Message to the United
States Congress on January 6, 1941, President Roosevelt proclaimed
the four freedoms, stating:
8
Temperley, History• of the Peace Conference of Paris Vol. I (1920) 396.
9
See Appendix Din Dorwick. ed., Human Rights, Problems, Perspectives and
Texts (1979). The four freedoms were freedom of speech and expression, freedom of
worship, freedom from want, and freedom from fear. Cf. Judge De Visscher in
Institute of International Law, A mmaire 1947 at. 4-8 and 259.
10
U.S. Dept. of State Bulletin, Vol. 19 (Oct. 3, 1948) 432. Quoted in Green, op.
cit. ( 1956) at 29.
- - - - - - --·-
11
Article 22 merely proclaimed that the "well-being and development of such
peoples," i.e., the inhabitants of the former German and Ottoman colonies and
territories "form a sacred trust of civilization." Article 23 referred to the supervision
of the League in such matters as the humane conditions of labor, traffic in women and
children. and dangerous drugs.
188 THE REGULATION OF NATIONALITY
12
See, in general, Robinson, Human Rights and Fundamental Freedoms in the
Charter of the United Nations (1946).
13
The other items in its terms of reference were:
(b) international declarations or conventions on civil liberties, the
status of women, freedom of information and similar matters;
(c) the protection of minorities; and
(d) the prevention of discrimination on the grounds of race, sex,
language or religion.
Res. 5 (I) Feb. 16, 1946. Green, op. cit. (1956) at 24. These terms served as the basis
for a number of multilateral conventions.
14
Byelorussia, Czechoslovakia, Poland, Saudi Arabia, the Ukraine, the Union
of South Africa, the Soviet Union, and Yugoslavia.
15
Honduras and Yemen, i.e., nem. con. (nemine contradicente) in English
parliamentary procedure, or quasi-unanimity.
-- - ·-- - - - - - -
"No state has the right to withdraw, except for reasons taken
from its general legislation, its nationality from those who for
reason of sex, race, language or religion it might wish to
deprive of the rights guaranteed by the preceding articles." 18
16
Quoted in The lmpa1.:t of the Universal Declaration of Human Rights, U.N.
Dept. of Social Affairs, Doc. St/SOA/5/Rev. I (June 29, 1953) at 7.
17
Universal Declaration of Human Rights. Proclaimed by General Assembly
Resolution 217 (Ill) of Dec. JO, 1948. U.N. Gen. Ass. Off. Rec .• 3rd Sess..
Resolutions (A/810) 71.
18
A nnuaire /.D./., Vol. 35 (1929) 298-300.
190 THE REGULATION OF NATIONALITY
The first paragraph and the first part of the second paragraph show
clearly that statelessness is an evil to be avoided in the international
community. The right to change nationality, as we have seen, can be
illusory where an individual's right to divest himself of his nationa1ity
is not linked to a corresponding right to acquire another nationality.
The article as a whole, however, is evidence of a moral duty on the
Member States of the United Nations not to use their sovereign power
to determine matters of nationality so as to create stateless persons.
Nor is nationality to be withdrawn from an individual in any arbitrary
manner. 20
19
It was added during the thorough debate in the Third Committee of the
General Assembly that lasted three months. and preceded the adoption of the
Declaration. Furthermore, the Declaration did not initially provide for a right to
nationality. The first paragraph was added to the second paragraph at the suggestion
of M. Rene Cassin, in view of the existence of hundreds of thousands of stateless
persons. See Lillich, "Chapter 4. Civil Rights," in T. Meron, ed., Human Rights in
International Law. Legal and Policy Issues (1984) 115 at 153-54.
20
It is of interest to compare this with two earlier draft bills of the Rights of
Man. Article 8 of Professor H. Lauterpacht's International Bill of the Rights of Man,
published in 1945, and submitted by him to the Brussels Conference of the
International Law Association in 1948, was worded as follows:
"Every person shall be entitled to the nationality of the State where he is
born unless and until on attaining majority he declares for the nationality
open to him by virtue of descent.
"No person shall be deprived of his nationality by way of punishment or
deemed to have lost this nationality except concurrently with the acquisition
of a new nationality."
Article 9 continues:
"The right of emigration and expatriation shall not be denied."
In his commentary Lauterpacht pointed out that it is no solution to say that a person
can not be deprived "arbitrarily" of his nationality because no State acting in this way
would say that its action is arbitrary. Lauterpacht, op. cit. ( 1950) at 321 and 346-49.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 191
Covenants on Human Rights." I.L.A. Repon (1978) 1. See also Humphrey, "The
Universal Declaration of Human Rights: its History, Impact and Juridical Character,"
in Ramcharan, ed., Human Rights Thiny Years After the Universal Declaration (1979)
21-37.
23
The Impact of the Universal Declaration 33. This is now the Constitution of
the united Germany.
14
Signed July 9, 1963. It entered into force on September 16, 1963. 750
U.N.T.S. 789.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 193
15See Vallee, "Notes Sur les Dispositions Relatives au droit international dans
quelques constitutions recentes," in 25 A .F.D.l. (1979) 255 at 275 et seq.
16 U.N. Yearbook on Human Rights (1961) 427, 989 U.N.T.S. 175. As of
December 1991, fifteen States had become parties to the Convention: Australia.
Austria, Bolivia, Canada, Costa Rica. Denmark, Germany, Ireland, Kiribati, Libya,
The Netherlands, Niger. Norway, Sweden, and the United Kingdom. See Weis, "The
UN Convention on the Reduction of Statelessness, 1961," 1 I /.C.L.Q.(l%2) at 1073
et seq.
194 THE REGULATION OF NATIONALITY
It then continues to lay down when a Contracting State may retain the
right to deprive a person of his nationality, such as when a naturalized
person resides abroad for a period of not less than seven consecutive
years; where a nationality has been obtained by misrepresentation or
fraud; or on grounds existing in its national law such as having
rendered services to or received emoluments from another State, or
having acted in a manner seriously prejudicial to the vital interests of
the State, or given definite evidence of his determination to repudiate
his allegiance to the Contracting State. The power of deprivation of
nationality must, however, at all times be exercised "in accordance
with law" and the person so deprived has the right to a fair hearing by
27
See Weis. op. cit. (1962) 1086.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 195
28
See Weis, np. cit. (1962) 1087. Jn the previous sentence he writes that he has
taken the view that "the right of States to deprive persons of their nationality is, on
the whole. not limited by international law." Judge Tanaka, in his dissenting opinion
in the S . W. Africa Case (Second Phau), I.C.J. Reports (1966) 284, states: "the nonn
of non-discrimination . . . on the basis of race has become a rule of customary
international law."
29
8 N. Y .I.L . ( 1977) 327. It was inserted to implement Article 32 of the
Convention of the Status of Stateless Persons, 1954.
196 THE REGULATION OF NATIONALITY
30
Lagarde, La Nationalite Franrai.re (1976) 152-53 and 274. Law no. 73-42 of
the 9th January, 1973, at 285.
31
Closset, op. cit. (1986), especially 62, 84-85. Also, Article I of the Portuguese
Nationality Act No. 37/81 confers original Portuguese nationality on, inter alia,
children born in Portugal who do not possess another nationality. Also Articles 8 and
10 of Swiss Federal Nationality Law, 1952, as amended to take effect in 1985 and
1992.
32
See Afmyim v. Rusk, supra, at 143. See also the Belgian case of M .. c. Q..,
L.L., 27 janvier 1978 (1977-78) 293, in 16 R.B.D.I. (1981-82) at 307. On the other
hand there is no presumption of statelessness, and the onus may be on a claimant to
prove his or her status as a stateless person before a national court. See the Nemeth
case before the Conseil d'Etat, Belgium, on June 26, 1973, where it was held that the
fact that an alien recognized as a refugee had been required to obtain a visa to enter
his State of origin did not prove that he had lost its nationality where the visa was
merely attached to his refugee travel document. 77 I.L.R. ( 1988) 384.
33
660 U.N.T.S. 195. The Convention entered into force on January 4, 1969. As
of December 31, 1991, one hundred thirty States are parties to this Convention.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 197
human beings . .. .
Considering that the United Nations Declaration on the
Elimination of all Forms of Racial Discrimination of 20
November 1963 (G.A. Res. J 904 (XVIII)) solemnly affirms
the necessity of speedily eliminating racial discrimination
throughout the world in all its forms and manifestations."
"(ii) The right to leave any country, including one's own, and
to return to one's own country,
(iii) The right to nationality."
34
This rule finds further support in Article II(c) of the International Convention
on the Suppression and Punishment of the Crime of Apartheid. The crime of apartheid
covers: "(c) Any legislative measures and other measures calculated to prevent a racial
group or groups from participation in the political, social. economic, and cultural
life .. . denying to members of a racial group or groups basic human rights and
freedoms including ... the right to leave and return to their country, the right to a
nationality." In 28 Bulletin of Human Rights, Division of Human Rights, United
Nations, April-June 1980. This entered into force on the same day as it was adopted
by the General Assembly, on 18 July 1976. See supra pp. 155-56.
-.
35
See Schwelb, "The International Convention on the Elimination of all Forms
of Racial Discrimination," 15 I.C.L.Q. ( 1966) 996 at 1048 et seq.
36
Proclaimed on November 20, 1963.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 199
Women are to have the same rights as men, neither more or less.
Following on this, Article 23 provides that nothing in the present
Convention shall prejudice the enjoyment of the equal rights of men
and women contained in the legislation of a State Party or in any
other convention, treaty or agreement in force for that State. It may be
noted, too, that the right of a wife not to have the nationality of her
husband forced upon her is no way conditional on where the marital
home is established.
Article 9 (2) of the 1979 Convention lays down that
200 THE REGULATION OF NATIONALITY
"States Parties shall grant women equal rights with men with
respect to the nationality of their children."
" ... the right of the child to preserve his or her identity,
including nationality, name and family relations as recognized
by law without unlawful interference."
37
See Closset, op. cit. (1986) at 66: "Legal kidnapping" is defined as the
situation that arises when an alien parent abuses a right of visit or in any other way
takes back to his country the child he has had with a Belgian woman who has custody
of the child. The fact that the child does not have Belgian nationality, or even when
it has dual nationality, means that Belgium cannot exercise its right of diplomatic
protection to recover the child. Other international conventions of a private
international law nature may be invoked to recover rights of visit or custody.
38
Text reproduced with introductory note in 28 J.L.M. (1989) 1448-76.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 201
39
See Griffin. "The Right to a Single Nationality." 40 Temple L.Q., (1966)
55-64. Also members of the International Law Commission have stated that
individuals should be entitled to only one nationality. See Yearbook of the l.L.C.
(1954) 52-57, especially 54-55.
202 THE REGULATION OF NATIONALITY
40
See the Convention between the U.S.S.R. and the Federal People's Republic
of Yugoslavia, signed 1956, 259 U.N.T.S. 155; the Convention between the U.S.S.R.
and the Democratic People' s Republic of Korea, signed in 1957, 292 U.N. T.S. 107;
the Convention between the U.S.S.R. and Bulgaria, signed in 1957, 302 U.N.T.S. 3;
the Convention between the U.S.S.R. and the Hungarian People's Republic, signed
in 1957, 318 U.N.T.S. 35; the Convention between Poland and the U.S.S.R., signed
in 1958, 319 U.N.T.S. 277; the Convention between Czechoslovakia and the U.S.S.R.,
signed in 1957, 320 U.N.T.S. 111; the Convention between the U.S.S.R. and the
Mongolian People's Republic, signed in 1958, 322 U.N.T.S. 201; the Convention
between Romania and Bulgaria, signed in 1959, 387 U.N.T.S. 61; the Convention
between Czechoslovakia and Hungary, signed in 1960, 397 U.N. T.S. 277; the
Convention between the U.S.S.R. and Albania, signed in 1957,307 U.N.T.S. 251; the
Convention between Poland and Hungary, signed in 1961, 437 U.N. T.S. 13, and that
between Hungary and Bulgaria, 477 U.N.T.S. 321.
41
322 U.N .T.S. 201, Preamble.
42
387 U.N.T.S. 61, Preamble.
43
477 U.N.T.S. 321.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 203
44
Charles Vallee, "Notes sur les Dispositions relatives au droit international dans
quelques constitutions recentes," 25 A .F.D.I. (1979) 255 at 277. The Soviet
Constitution of 7 October 1977 provides for the supremacy of the jus .ranguinis. A
child born of Soviet parents is always a Soviet citizen as is a child born of one Soviet
parent if domiciled in the U.S.S.R.
45 Signed at Santo Domingo on March 15, 1968. Entered into force on January
47
or having had special connections with Spain.
In his lectures before the Hague Academy of International Law in
1986, Rezek lists other such treaties of dual nationality between Spain
and countries of Latin America: those concluded with Bolivia,
Guatemala, and Nicaragua in 1961, with Costa Rica and Ecuador in
1964, with Honduras in 1966, the Dominican Republic in 1968,
Argentina in 1969, and Colombia in 1979. Essentially the texts of
these treaties are identical. What was to be established was not a
regime of two concurrent nationalities of equal validity. Rather, what
was intended was the coexistence of a "full" nationality with a
secondary, or "dormant" nationality ("une nationalite pleine avec une
nationalite virtuelle"), the dominant nationality being that of the
country of domicile. 48 A return to the country of origin with the intent
of permanent residence there would then revive the nationality of
origin as the dominant nationality, with the concomitant rights and
duties, the exercise of political rights, the grant of a passport, the
possibility of diplomatic protection and nonextradition, all without
losing the second nationality. The status of equality between
Brazilians and Portuguese was the legal innovation that resulted from
the treaty between the two countries concluded at Brasilia on
September 7, 1971. National status was not, as is usually the case, the
basis for the exercise of citizenship rights. All that was needed was for
a national of one of the two countries, Brazil or Portugal, to enter the
other country to take up his residence there, in order to exercise his
civil, or civil and political, rights in the second country. 49
The German Imperial and State Citizenship Law of July 22, 1913,
47
Vallee, ibid. at note 194a. Vallee refers to the originality of this provision.
48
Rezek, "Le droit international de Ia nationalite," 198 Recueil des Cours (1986-
111) 333 at 380-84. See also section 6.4 of this chapter, infra, Council of Europe Doc.
590 I at 25-27, for a very interesting analysis of these dual nationality treaties between
Spain and countries of Latin America, and a possible application of the legal regime
to the countries of Europe.
49
Rezek, ibid. As from the beginning of 1993, it would appear that this
particular form of dual nationality, Brazilian and Portuguese, is a thing of the past.
Brazilians arriving in Portugal were brusquely turned away, contrary to earlier
practice, and the Brazilian Government moved quickly in reciprocity. Decree No. 740.
of February 3, 1993, revoked Article 69 of Decree No. 86,715 of December 10, 1981,
implementing the laws facilitating the establishment of Portuguese nationals in Brazil.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 205
which went into effect of January 1, 1914, may be noted as one of the
first of the major nationality laws to recognize the status of dual
nationality, going further in this matter than Britain or the United
States as that time. Thus Article 25(2) provided that German
Prior to this Law German nationality was lost by one who acquired
another nationality. Many countries at present recognize the status of
dual national.
United Kingdom law contains no bar on the holding of dual
nationality, and in fact in 1977 there were thought to be some three
million citizens of the U.K. and Colonies with dual nationality, who
are exempt from U.K. immigration control. 51 The Secretary of State
for the Home Department, Mr. William Whitelaw, stated in the House
of Commons in March 1980, that after careful consideration the
government decided not to place any restrictions on the holding of
dual nationality by persons who come to Britain and acquire British
citizenship by naturalization or registration. 51
A Hong Kong court has explained, citing McNair, 53 that dual
nationality is not half one nationality and half another, but two
complete nationalities as far as English law is concerned. From this it
follows that a person possessing dual nationality does not owe less
allegiance than a person who is only a British subject. He can be
liable for treason against the State of which he is a national even
though his wrongful acts were committed on behalf of the other State
of which he is also a national. 54 This rule has been stated recently in
50
See 8 A .1./.L . (1914), Official Documents, 217 et seq., and Flournoy,
"Observations on the New German Law of Nationality," 8 A .1./.L. (1914) 477 et seq.
51
Cmnd. 6795. British Nationality Law. Discussion of possible changes. April
1977.
52
H.C. Debs. Vol. 989, cols. 1516-18, July 30, 1980. B.Y.J.L .. Vol. Ll at 398.
53
McNair, L egal Ef fects of War (2d ed.1944) 24.
54
Inouye Kanao v. The King. Hong Kong, Full Court, July 16, 1947, 14 A .D.
(1947) Case No. 103.
206 THE REGULATION OF NATIONALITY
"It can be seen from the above table that over a period of 50
years French nationality has been granted either automatically
or by request to four million aliens, half of them having dual
nationality. " 58
Also the nationality laws of other countries have not excluded the
possibility of nationals acquiring dual nationality. By the Greek Law
of Nationality of October 9, 1856, amended by Law 120 of 1914, the
acquisition of a foreign nationality without the consent of the Greek
Government did not entail loss of Greek nationality. 59 In Perkins v.
Elg, the Supreme Court of the United States stated that as municipal
law determines how citizenship may be acquired, it follows that
persons may have dual nationality.60 In Kozuh v. Uff. Stato Civile di
Milano, 61 the Court referred, obiter, to the status of dual nationality,
55
[ 1975]
2 W .L.R. 347 (H.L.(E.)). Lord Denning stated in the Court of Appeal,
that a person who acquired British nationality automatically lost the nationality of any
State with which the U.K. was at war.
56
[ 1923) A.C. 528 (H.L.(E.)).
57
Ulin v. The Queen, Canada, Federal Court, Trial Division, April 3. 1973. The
Court states, inter alia, that it is possible "in some circumstances" to adhere to the
nationality or citizenship of another country and still retain Canadian citizenship. 60
/.L.R .. 241. The Canadian Citizenship Act of February 15, 1977, brought about a
change in the legislation by allowing dual citizenship.
58
Report of May 26, 1952. E/2230. A/CN. 4/56 at 56.
59
In re M.M. and X.M. Greece, Conseil d'Etat, 1934, No. 2, 7 A .D . (1933-34)
Case No. 116.
60
9 A .D. (1938-40) Case No. 116.
61
Italy, Court of Appeals of Milan. March 18, 1952, 19 l.L.R . (1952) No. 57.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 207
65
See Hyde, "Aspects of Marriage between Persons of Different Nationality,"
24 A .J.L .I. (1930) 742 et seq.
66
U.N. Action in the Field of Human Rights (N.Y. 1980) 105. A Belgian court
has held that the phenomenon of a marriage called "of nationality" is known, where
the object of one spouse is only to acquire the nationality of the other and the
advantages attached to it. It is now established case-law that such marriages are null
and void, as simulated marriages entered into for reasons totally foreign to that of a
matrimonial union. (Civ. Liege, 24 octobre 1977, 0 . . .c. B. .., J.L. 1977-78, 227:
Civ. Bruxelles, 4 octobre 1977, Rev. trim. dr. fam. 1978, 261), 16 R .B .D.I.
(1981-82)-1 at 286.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 209
67
May 19, 1963, 32 I.L .R. 192.
210 THE REGULATION OF NATIONALITY
was not a party to it. Hence the Dominican view of Article 12 of the
Civil Code of Dominica, which provides for the acquisition of the
nationality of the Republic on marriage by a woman who marries a
national, is not incompatible with the Convention, and is supported by
the conclusion reached from a study of the preparatory work of Article
1 that it concerns only relations between the Contracting Parties.
In two later cases the Court of Justice of the European
Community applied the principle of the wife's consent, as contained
in Article 1 of the 1957 Convention. Both cases dealt with
applications for expatriation allowances granted to Community
officials as provided for under the Staff Regulations of officials. The
Court had to apply Article 4 of Annex VII while bearing in mind the
commitment of the Community to nondiscrimination on the basis of
sex. It was also pointed out that the Convention on the Nationality of
Married Women had been signed by five Member States of the E.E.C.
and ratified by four of them.
In the first of the two cases reported the applicant was Belgian by
( I
68
A irola v. Commi.uion, Court of Justice of the European Communities [1975]
2 at 221, Case 21174. See Massaro, ''The Nationality of Married Women and the
Principle of Gender Equality in the E.E.C. A irola v. Commission of the E.E.C.," 15
Columbia J. Tran.'i. L. (1976) 514.
-- - ~ ~ - - - - ----
69
van den Broec:k v. Commi.fsion, Court of Justice of the European
Communities [1975] at 211.
212 THE REGULATION OF NATIONALITY
70
Juri.fpntden ce of the World Court, Vol. II (1966) at 217. Also the Barcelona
Traction Company case, supra, pp. 69- 73. Verzijl's statement, it is here submitted.
accords with the facts; the view of plural nationality as an "evil" arose from the
theory of the sovereignty of States as understood in traditional international law.
'
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 213
only two States, France and Italy, have signed the Second Protocol. 71
The Second Protocol to the Convention of the 1963 indicates a
complete change of policy in regard to certain cases of dual
nationality.
The preamble to the 1963 Convention stated clearly its objectives:
"provided that the said person has, for the past ten years, had
his ordinary residence outside the territory of that Party and
also provided that he has his ordinary residence in the
territory of the Party whose nationality he intends to retain."
71
E.T.S., Nos. 43, 95, 96, and 149. Those articles of the 1963 Convention that
deal with military obligations in cases of multiple nationality have been discussed at
Chapter 2, section 4.2., of this book, supra.
214 THE REGULATION OF NATIONALITY
72
As of March I, 1993 only States Members of the Council of Europe are
parties to the 1963 Convention. However, Article 11 of that Convention provides that
after it has come into force the Committee of Ministers of the Council of Europe may
unanimously decide to invite any State which is not a Member of the Council to
accede to it. Thus paragraph 5 may also apply to migrants coming from specific
countries outside Europe.
J
- - --- - - - - -- - - -
origin."
This means that in cases where husband and wife possess different
nationalities, they both, and their children who acquire a nationality
of origin equally through father and mother, should be permitted by
the Jaws of each Contracting Party to retain its nationality. This
provides for retention of original nationality by each spouse, rather
than a right to the nationality of the other.
As this Second Protocol is unlike any of the earlier international
agreements on the nationality of married women, some of the history
of the discussions within the Council of Europe on this topic may be
noted.
The "Report on problems of nationality in mixed marriages" is a
thorough evaluation of the issues involved. This contained a Draft
recommendation presented by the Legal Affairs Committee and an
"Explanatory memorandum" prepared by the Rapporteur, Mr. Sarli.73
The recommendation was that the European Committee on Legal Co-
operation give top priority to preparing an amendment of the 1963
Convention "or concluding another binding legal instrument, aiming
also at bringing together the principles governing nationality laws of
member States." The Second Protocol was a result of this. The
Explanatory Memorandum stated the problems that arise in mixed
marriages between spouses of two different European nationalities,
and in discrimination dividing families, in particular as regards
residence permits, work permits, foreign travel, and the right to see his
73
Council of Europe, Parliamentary Assembly, Fortieth Ordinary Session,
document 590 I, May 20. 1988. The Draft recommendation was unanimously adopted
by the Committee on May 16. 1988. It was noted that the European Committee on
Legal Co-operation (CDCJ) or a committee of experts under its responsibility has
already discussed the question of plural nationality in two of its meetings in
November 1987 and March 1988. The Committee of Experts on Multiple Nationality
has continued its work after presenting this draft recommendation. An Appendix I to
the Explanatory memorandum was prepared by Professor Huet, on nationality
problems of spouses of different nationalities and their children.
216 THE REGULATION OF NATIONALITY
74
Ibid., Appendix I at 6-28.
75
Ibid., Memorandum, Paragraph 9.
76 T ext m
. 6 I.L.M. (1967) at 360.
77
Ibid. at 368.
- - ------- -------- - - -
78
Similarly Article 5(d) of the Convention of the Elimination of all Forms of
Racial Discrimination. supm. at 192. Cf. Denning. M.R. nhiter in R. v. Secretary of
Star~ for Hnmt> Affairs. ex p. Bhumsah, (1%8) I Q.B. 266. and 43 l.L.R . 130: "A
passport is issued by virtue of the Royal Prerogative."
THE REGULATION OF NATIONALITY
218
79
In this way the position of States which have reservations concerning the right
of individual petition in respected.
80
S ee Ramcharan. "Implementing the International Covenants on Hwnan
Rights," in Ramcharan. ed .. Human R ights, Thirty Years afte r the Universal
Declaration (1979) 159 er seq., and Schwelb, "Entry into Force of the International
Covenants on Human Rights and the Optional Protocol to the International Covenant
on Civil and Political Rights," 70 A .J.I.L . (1976) 511 - 19.
81 The Secretary-General of the United Nations is the "chief administrative
handling of the reporting system see Fischer, "Reporting under the Covenant on Civil
and Political Rights: the First Five Years of the Human Rights Committee," 76
A .J.I.L . (1982) 142. At pages 151-53, Fischer points out how, as a result of the
Committee's questioning. national laws have been reexamined, and in two instances
repealed.
220 THE REGULATION OF NATIONALITY
83
Mr. Suy, United Nations Under Secretary-General, the Legal Counsel,
"believed that the Human Rights Committee was neither a legislative not a judicial
body and that every expert body was sui generi.s," Ramcharand, ibid. at 292. See al.w
Cancado Trindade, "Exhaustion of Local Remedies under the U.N. Covenant on Civil
and Political Rights and its Optional Protocol," 28 I.C.L.Q. ( 1979) 757.
84
Text in European Treaty Series No. 5. Also in European Yearbook, Vol. I at
317-41.
85
See Robertson, "The European Convention on Human Rights," 27 B.Y.I.L
(1950) 145-63 for a history of the negotiations leading up to the Convention. See
also, by the same author, "The United Nations Covenant of Civil and Political Rights
and the European Convention on Human Rights," 43 B.Y .I.L. (1968-69) 21-48. for
a discussion of interrelation of the two treaties.
86
These are: Austria, Belgium, Cyprus. Denmark, France, the Federal Republic
of Germany, Greece, Iceland. Ireland. Italy, Luxembourg, Malta, The Netherlands.
Norway. Portugal. Sweden, Switzerland, Turkey, and the United Kingdom. As of
March I. 1993, also Bulgaria, Finland, Hungary, Liechtenstein, Poland. San Marino.
and Spain. as well as the now united Germany, are Member States of the Council of
Europe.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 221
89
van Dijk and van Hoof, Themy and Practice of the European Court of Human
Right.r (1990) 136. The Ninth Protocol (1990) adds "(e) the person, non-governmental
organisation or group of individuals having lodged the complaint with the
Commission."
90
See Modinos, "Effects and Repercussions of the European Convention on
Human Rights," II /.C.L.Q. (1962) 1097-108.
91
See Brownlie, "The Individual before Tribunals Exercising International
Jurisdiction," J J /.C.L.Q. (1962) 701-20 at 714. Golsong has framed it in this way:
"An individual has neither the right to bring a case before the Court not to appear
before it as a party to the case" in "The Control Machinery of the European
Convention on Human Rights," l.C.L.Q. Supplementary Publication No. I J (1965) at
224 THE REGULATION OF NATIONALITY
61.
92
See Mikaelsen, The European Protection of Human Rights (1980). See abo
Dorwick, "Juristic Activity in the Council of Europe-25th Year," 23/.C.L.Q. (1974)
610-41 , especially 623, where he states that "several cases referred to the Committee
of Ministers have run into the sand, whereas, virtually all the cases referred to the
Court have eventua11y produced at least some sought-for change in law or practice in
the respondent State."
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 225
This point was later argued, with success, by the United Kingdom
Government as respondent in the case of the Admissibility of
Applications by East African A sians."94 Fawcett has explained this
omission in the Convention as due to the fact that a right of residence,
based only on nationality, is uncertain, because some States base
"right of entry or return on the idea not of nationality, but of
permanent home." 95 As an example of this he cites the British
Nationality Act, 1948, under which the status of British subject was
fragmented into a number of citizenships created under the laws of
93
Publications of the European Court of Human Rights (I %2), especially 23-24
and 43-44. Case of De Becker Application No. 214/56.
94
Decision of October 10, 1970, in 10 I.L.M . (January 1971) 6 et seq. The
Commission granted the complaints of some of the applicants where the wife had
entered the United Kingdom first, Article 8 of the Convention forbidding interference
with family life.
95
Fawcett, The Application of the European Con ve11tion on Human Rights
(1969) 59 et seq.
THE REGULATION OF NATIONALITY
226
96
Dorwick, ed .• Human Rights. Problems, Perspectives a11d Tex ts (1979) 186 et
seq. As of 1990 the United Kingdom has not ratified Protocol 4.
n
See Castberg. The European Conventim1 on Human Rights (1974) 185. Frede
Castberg was himself a member of the European Commission of Human Rights for
10 years.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 227
There is much support, however, for the argument that this is not
an adequate assessment of European human rights law. Article I
providing for the territorial application of the Convention and Article
25 permitting "any person, nongovernmental organization or group of
individuals" to petition the Commission have already been mentioned.
In addition, Article 24 ensures that "Any High Contacting Party may
refer to the Commission ... any alleged breach of the provisions of
the Convention by another High Contracting Party." Under this article
a State which institutes proceedings before the Commission may do
so on behalf of any person, whether such person be its own national,
or stateless, or, even, a national of the respondent State. In this way
the procedural machinery exists to enable an individual arbitrarily
deprived of his nationality to bring this abuse of governmental powers
before the organs set up under the European Convention on Human
Rights. In practice States have resorted to the action permitted under
Article 24 to ensure observance of the obligations imposed by the
Convention. 98
Practice has clarified these two points. For the first, whereas
Article 24 of the Convention provides for the objective protection of
individual rights, before the Commission, regardless of national status,
it is a fact "that States as a rule are inclined to file an application with
the Commission only if it concerns a violation in relation to persons
who are their nationals or with whom they have at least a special
link."99
Secondly, it appears evident from the Explanatory Reports that the
Committee of Experts rejected a proposal to include in Article 3 of
Protocol 4 a provision according to which "a State would be forbidden
to deprive a national of his nationality for the purpose of expelling
him," because the majority thought "it was inadmissible in Article 3
to touch on the delicate question of the legitimacy of measures
depriving individuals of nationality." Yet the Commission has
98
See, for examples of such action, Golsong, or. cit. in I.C.L.Q. Supplementary
Publication No. II (1965) 38-69. In his discussion of Article 24, he states, at 52: "In
the framework of the Convention, the tendency to permit 'interference' with the
internal affairs of a country. when it is a question of action in support of human
rights, has produced a startling innovation in respect of the general rules of
international law."
99 van Dijk and van Hoof, or. cit., supra, note 89, at 137 and 33. Thus in the
P_fundet:~ Cme. Austria filed an application against Italy on behalf of six Italian
nationals whose mother tongue was German. Appl. 788/60, Austria v. Italy, Yearbook
VI (1961) 116.
228 THE REGULATION OF NATIONALITY
100
Ibid. at 496--97.
101
See Polys Modinos, op. cit. (1962). See also Drzemczewski, "The Sui
Generis Nature of the European Convention on Human Rights," 29 I.C.L.Q. (1980)
61 : The convention "is not a simple contract based on reciprocity; it is a treaty o_f 3
normative character, developing an evolving notion of 'Convention law' whiC~
interpenetrates and transcends both the international and domestic legal structures.
To this end the convention, he argues, is interpreted by the organs set up under it in
a liberal teleological or evolutive way.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 229
102 The Commission in the Becker case. De Becker was a Belgian journalist
sentenced to life imprisonment in 1946 for collaborating with the enemy during
German occupation. Under article 123, amendment 6, of the Belgian Penal Code, the
sentence included a prohibition on his taking part, in any capacity whatsoever, in the
administration, editing, printing, or distribution of a newspaper or any other
publication. The Belgian Government later (1961) modi fled this law to limit these
incapacities to publications having a political character. European Court of Human
Rights Judgment of March 27, 1962, Series A, No. 4.
1113 The citizenship of the European Union as formulated in the Maastricht Treaty
Convention entered into force on July 18, 1978. By 1988, twenty of the thirty-one
States of the Organization of American States had ratified it.
1115 S ee J.L.M. 710 (1970), "Report of the United States Delegate to the Inter-
In the draft text (draft Article 18) the right to a nationality was
only a right of the child. As it now ~tands, Arti~le 20(1) reiterates
Article 15(1 ), and Article 20(3} reiterates Art1cle 15(2} of the
Universal Declaration. The American Convention thus prohibits
arbitrary deprivation of nationality and also prohibits the arbitrary
imposition of nationality, for paragraph three reflected the view that
a State may not force a person to retain the nationality of that State.
Paragraph two repeats what has become general practice in human
rights treaties and instruments that the jus soli should apply to avoid
. h IOfi
cases of statelessness f rom b1rt .
The American Convention on Human Rights, 1969, was the first
binding human rights instrument in the Inter-American system. When
the Charter of the Organization of American States was adopted at the
1948 Bogota Conference, so, too, was the American Declaration of the
Rights and Duties of Man. The Charter "did little more than mention
human rights;" the Declaration, on the other hand, did not create
"contractual" obligations for the States parties to the Charter} 07
The first steps toward establishment of an inter-American human
rights system were taken with the initiative at the Fifth Meeting of
Consultation of Ministers of Foreign Affairs of the OAS in 1959. The
OAS Council then adopted the Statute of the Commission and elected
its first seven members in 1960. By Article 1 of its Statute the
Commission was created, as an "autonomous entity" of the OAS "to
promote respect for human rights." Article 2 declared that "human
rights are understood to be those set forth in the American Declaration
of the Rights and Duties of Man." 108 The 1969 American Convention
of Human Rights provided for the setting up of the Inter-American
Commission of Human Rights and the Inter-American Court of
Human Rights upon entry into force of the Convention. These organs
were to have the competence with respect to the fulfillment of the
commitments made by the States parties to the Convention. Thus, by
1979, the Inter-American Court of Human Rights was established as
tofip . . I
nnctp e 3 of the "Declaration of the Rights of the Child" adopted and
proclaimed by the United Nations General Assembly on November 20, 1959 (G.A.
R.es. 1386, XIV), was formulated as follows: "The child shall be entitled from his
bt~h to a name ~nd a nationality." See the U.N. Convention on the Rights of the
Chtld, 1990, sectton 5.2. of this chapter, supra.
107
S ee "Th~ 0 AS Charter After 40 Years. Remarks by Thomas Buergenthal.''
A .S./.L. Pmceedmgs (1988) 114 18 f, th" d . . . t f the
. . - • or ts escnptton of the establtshmen
mter-Amencan system of human rights.
°
1os IbM.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 231
function of the Court." Thus, the fact that a legislative proposal is not
yet in force does not ipso facto deprive the Court of jurisdiction.
However, the Court "must carefully scrutinize the request to
determine, inter alia, whether its purpose is to assist the requesting
State to better comply with its international human rights obligations."
In this the Court must avoid "becoming embroiled in domestic
political squabbles." 110 The Court, thus, gave its opinion as a Court of
Human Rights, with jurisdiction to interpret and apply human rights
instruments.
The Court then proceeded to separate the questions posed by the
Costa Rican Government into two sets of general legal problems. The
first issue related to the right to a nationality established by Article 20
of the Constitution. The second set of questions involved issues of
possible discrimination prohibited by the Convention.
Issues relating to the right to a nationality were considered insofar
as they involved the two separate factual situations covered by the
Costa Rican legislation and proposed amendments to it: that of the
naturalization of Central Americans, Spaniards, and lbero-Americans,
and that of a foreign woman who by marriage to a Costa Rican loses
her nationality. The Court set forth the present position of the
international law of nationality: 111
110
Ibid. 1112-30, especially 28-30.
111
Ibid. 132. See also 1133-38.
-- - - - - - --- - - - . .,
112
Ibid. 136.
IIJ Ibid. Tf46-48.
114
Ibid. 142.
234 THE REGULATION OF NATIONALITY
115
In his Separate Opinion Judge Piza Escalante fonnally dissented on this point.
Ibid. 135. C.f. Chan, "The Right to Nationality as a Human Right," 12 H.R.L.J. (1991)
1-14.
WiThis article contains a rule general in scope imposing on the States parties
the obligation to respect and guarantee the free and full exercise of the rights
guaranteed therein "without any discrimination." Article 24 provides for the right to
equal protection.
117
Ibid. 157.
- - - - -- - -- - -- -- - --
118
Ibid. 1160 and 62.
119
Dissenting Opinion of Judge Buergenthal, 114 and 6. The Court's Opinion
was by a majority of five votes to one. See also the Separate Opinion of Judge Piza
Escalante, 120.
1211
Ibid. ft64-67.
Ill See Buergenthal, "The Advisory Practice of the Inter-American Human
Rights Court," 79 A .J.I.L. ( 1985) I at II, citing the Court to the effect that the
advisory jurisdiction "offers an alternate judicial method of a consultative nature...."
236 THE REGULATION OF NATIONALITY
122 Adv1sory
. 0 ptmon,
. . supra. Separate Opinion 1:21 .
123
Text in 21 l.L.M. 59 (1982). See Glele, "La Commission africaine des droits
de l'homme et des peuples," in Jean du Bois de Gaudusson and Gerard Conac. eds ..
Afrique Contemporaine: La Ju.~tic:e en Afrique (1990) 207-16, for many of the
following observations on the Commission set up under the Charter.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 237
124 Articles 45-59 deal with the competence and powers of the Commission and
Communications other than those of States.
125 The African Charter on the Rights and Welfare of the Child promulgated by
the OAU in 1990 contains in its Article 6 an abstract right to nationality, drafted as
in the UN Convention on the Rights of the Child: every child is guaranteed the right
to a name from birth, registration after birth, and the acquisition of a nationality. The
States parties to the Charter agreed to set up an eleven-member African Committee
of Experts on the Rights and Welfare of the Child as a mechanism for the promotion
and protection of the Rights guaranteed in the Charter. This Committee has
considerable powers including those of investigation and the quasi-judicial one of
interpretation. See Thompson, "Africa's Charter on Children's Rights: A Normative
Break with Cultural Traditionalism," 41 l.C.L.Q. (1992) 432 at 442.
238 THE REGULATION OF NATIONALITY
126
T ext m
. 14 I.L .M. (1975) 1293 et seq. S ee Tottennan, "Some Pnnc1ples
· · of
International Law as Reflected in the Final Act of the C.S.C.E.," in Essays in Honour
of E. Castren (1979) at 241-52, and Schachter, "The Twilight Existence of Non-
binding International Agreements," 71 A .1./.L . (1977) 296 et seq. S ee also I.L.A .•
"The Incorporation of the Principle of Respect for Human Rights and Fundamental
Freedoms in the Final Act of Helsinki," Report of the 58th Conference (1980)
127-43. The Universal Declaration of Human Rights is referred to in the Preamble
to the Final Act. as it is in the preambles to the two International Covenants on
human rights and the three regional conventions on human rights.
127
Op. dt. (1979) at 242. In his concluding remarks, Totterrnan states that "In
this document international politics and international Jaw have ben successfully fused
into a coherent whole. . . ."
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 239
128
For example, Article 16(3) of the Universal Declaration: "The family is the
natural and fundamental group unit of society and is entitled to protection by society
and the State." Article 16(]) begins: "Men and women of full age, without any
limitation due to race, nationality or religion, have the right to marry and to found a
family."
129 see Nationality of Married Women (Danzig) Case, Danzig High Court,
November 30, 1932, 6A .D. (1931-32) Case No. 130: "The principle of the unity of
the family from the point of view of nationality had lost ground and could no longer
be regarded as an international principle." See also 13 A .D. ( 1946) Cases 45 and 46.
240 THE REGULATION OF NATIONALITY
130
given before entering into marriage.
The United Nations has once had to deal with this question.B 1
This was in connection with a decree of the Soviet Government of
February 15, 1947, that Soviet citizens could not marry foreign
nationals. After this it declined, by administrative action rather than
by law or regulation, to permit citizens who had previously married
foreigners to leave the country. This question was raised in general
terms in January 1948, by the United Kingdom delegate in the
Commission on the Status of Women, established in 1946. The Soviet
Union claimed that this was a matter entirely within the domestic
competence of every State. Nevertheless the matter was debated in the
Sixth (Legal) Committee at the Third Session of the General
Assembly under Articles 55 and 56 of the Charter, on the grounds of
violation by the U.S.S.R. "of fundamental human rights, traditional
diplomatic practices and other principles of the Charter." The General
Assembly Resolution which followed declared
The matter thus became fused with the right to leave one's country
and return to it. As it now stands there is no right to unity of
nationality between spouses, but, as we have seen, there is no
prohibition on a person possessing dual nationality so it is possible for
a wife, or husband, to retain a nationality of origin at the same time
as acquiring the nationality of the spouse.
A conference of experts on human contacts held in Berne,
Switzerland, from April 15 to May 26, 1986, discussed, inter alia, the
130
See Article 16(2) of the Universal Declaration: "Marriage shall be entered
into onl?' with the free and full consent of the intending spouses." Also the
Conv_entJOn on Consent to Marriage, Minimum Age for Marriage and Registration of
Marnages (1962), adopted by the General Assembly of the u .N. in resolution 1763A
(XVII) of November 7, 1962. It entered into force on December 9, 1964. This
provides that co~~ent to .marriage shall be freely expressed in the presence of
competent authont1es and 1t shall be published. Cf. The Second Protocol Amending
th~ .Europea~ C~nven~ion on the Reduction of Cases of Multiple Nationality and
M1htary Obhgat10ns m Cases of Multiple NationaiJ' ty, supra, sect'ton 6 .4 . of this
chapter.
131
See Green np. cit. (1956) 159-62, and Rajan, United Natinn.v and Domestic
Jurisdiction (1958) 320 et seq.
,. --
132
Declaration and Decisions from the Helsinki Summit. Done at Helsinki July
10, 1992. Reproduced in 31 I.L.M. (1992) 1385 at 1413, (55H57), also with
references to earlier Follow-up Meetings. For the Berne Conference, see Rengger,
Trearie.f and Alliances nf the World (5th ed. 1990) at 250.
03
Fifty-two States participated in the Helsinki Follow-up Meeting. Fifteen of
these were States formerly part of the Soviet Union. The Czech and Slovak Federal
Republic has since January I, 1993, become two independent States. Bosnia-
Herzegovina, Croatia, and Slovenia are all three new States arising from the
dissolution of the former Yugoslavia.
242 THE REGULATION OF NATIONALITY
134
See I.L.A., "United Nations Provisions for Human Rights," Report of the
Fifty-Eighth Conference, Manila, 1978 (London 1980) 81 - 83.
135
I.L.A., Report of the Fifty-Second Conference, Helsinki, 1966 (1%7) 754.
136
See Seyersted, "Has the Government a Duty to Accord Diplomatic Assistance
and Protection to its Nationals," 12 Scandinavian Studies in Law (1%8) 121-49.
137
See Li11ich, ed., Humanitarian Intervention and the United Nations (1973)
24. For a summary of the practice of humanitarian intervention, and the difficulties
inherent in the doctrine, see I.L.A., "The International Protection of Human Rights,"
Report of the Fifty-Fourth Conference (197 t) 633-41.
138
Lauterpacht, Intemational Law and Human R ighu ( 1950) 32.
HUMAN RIGHTS CONVENTIONS AND OTHER INSTRUMENTS 243
139
See I.L.A .. Report, supra. note 137. especially at 6 36-38. and Broms. 1lle
Definition of Aggression." 154 Recueil dn Cnurs (1977-1 ) 301-99. especially 319 et
seq.
14'See McDowell , Digest nf United Sraus Practice in lntem~innd LCl'K· (1 976)
3 et seq. J. Willis. Memorandum on '·Non-intervention in Internal Affairs:·
141 Official Statement, THE TIMES (London). May 20. 1978. Thi s interYention
was requested.
141 In Lillich. op. cit. (1973) at 53. As such it is no threat to either the territorial
13. CONCLUSIONS
From this survey of human rights conventions and other
instruments it may be concluded that a State may not arbitrarily
144
The judgment of the I.C.J. given on May 24, 1980, in the Case Conceming
United States Diplomatic and Consular Staff in Tehran, does not contain dicta
regarding the unsuccessful attempt of the United States undertaken in April, 1980, to
rescue the hostages held in the U.S. Embassy in Tehran, even though in its judgment
the Court found that the hostages were detained in violation of Iran's obligations to
the U.S .A. under international conventions in force and under general international
law. One international law writer has proposed that the solution could lie in the
establishment of "special U.N. 'humanitarian evacuation forces' created in advance
for that purpose and immunized so far as possible from larger international political
tensions." Henkin, How Nations Behave (2d ed. 1979) 145 note 42, quoted in Jeffrey.
"The American Hostages in Tehran: The I.C.J. and the Legality of Rescue Missions."
30 l.C.L .Q. (1981) 717 at 728. If this suggestion were to be realized then the national
status of the individuals in need of rescue would be immaterial. See also Schachter's
discussion on the "Use of Force Against Terrorists in Another Country." and. in
particular, his analysis of the United States rescue operation in Iran in April 1980:
"The State whose nationals are in peril must be given latitude to detennine whether
a rescue action is necessary; there is no international body or third party in a position
to make that judgment. The rescue action cannot therefore be characterized as illegal
under international law. Whether it was wise in a political and military sense is
another matter." lntemational Law in Theory and Practice (1991) 162, 166.
145
Protocol Additional to the Geneva Convention of August 12. 1949, and
Relating to the Protection of Victims of International Anned Conflicts. Official
Records of the Diplomatic Conference on the Reaffinnation and Development of
International Humanitarian Law Applicable in Anned Conflicts, Geneva ( 1974-1977).
Vol. I (1978).
,....
1. INTRODUCTORY REMARKS
We have seen that whereas under international law the enactment
of nationality law falls within the competence of the municipal law of
states, the effectiveness of these laws may be limited under
international law in certain cases. Where no genuine link exists
between the State and its purported national, or where nationality has
been imposed on the national of another State against his will, or
where nationality has been arbitrarily withdrawn, such a law may be
invalid in the international sphere and third States are under no
obligation to give effect to it. From this starting point it is now
proposed to look at two aspects of the development of the
international community to see how they have affected the recognition
of nationality laws. Firstly, in the growth of the number of so-called
"new States," being new as sovereign independent members of the
international community, 1 the rules of State succession have found a
new field of application. The Preamble to the Vienna Convention on
Succession of States in Respect of Treaties, 1978, notes the "profound
transformation of the international community brought about by the
1
See, in particular, Article 1(2) of the U.N. Charter: Friendly relations among
nations are to be based on "respect for the principle of equal rights and self-
determination of peoples." Also the Declaration on the Granting of Independence to
Colonial Countries and Peoples, General Assembly Resolution l514(XV) of 1960,
which forms an authoritative interpretation of the Charter, declares, i.a., "2. AH
peoples have the right to self-determination."
247
248 THE REGULATION OF NATIONALITY
The situation referred to here is that which arises when the State
exercising sovereign powers over an inhabited territory is replaced by
another. O'Connell refers to the "transfer of territory from one
national community to another." This may be effected in a variety of
ways, but one feature is common to them all: "one State ceases to rule
in a territory, while another takes its place."4 Castren defines the
situation as that which arises when the sovereignty exercised over a
given territory passes, whether partially or totally, to the successor
State. This is the essential feature, that there is succession to the
exercise of sovereignty, the population not necessarily changing. 5 The
change in the legal identity of a community may amount to a "total"
succession of States when a community, that is to say one State,
ceases totally to exist in its previous form, or it may be partial when
the State continues to exist but part of its territory is joined to that of
another State.6 This situation may be effected in a number of ways: by
cession, annexation, incorporation, emancipation, sale, union, or
separation. State succession applied chiefly to cases of annexation and
cession of territory before 1939, but the process of decolonization set
in motion since 1945 has meant that practice now applies chiefly to
the newly independent States. Most recently, the newly independent
States of the international community are those appeanng as
2
U.N.J.Y. (1978) 106. Not only had the number of members of the U.N. risen
from fifty-one to one hundred fifty-seven, but also the international community was
no longer composed mainly of the European States.
3
See Castren, The Obligations of States A rising from the Dismemberment of
Another State (Helsinki, 1950).
4
O'Connell, State Succession Vol. I (1967) 3.
5
Castren. "Aspects recents de Ia succession d'etats," in 78 Recueil des Cours
( 1951) 385 at 387.
O'Connell, op. cit. ( 1967) 4. This definition of total or partial State succession.
ti
based on the personality of the state, derives from Hall, A Treatise of International
Law (8th ed.by Pearce Higgins, 1926). Castren suggests the terms "local" or
"regional" succession as substitutes for partial succession. Op. cit. (1951) 389-90.
NATIONALITY AND STATE SUCCESSION 249
7
As with the extinction of the Austro-Hungarian Monarchy in October 1918, the
successor States numbering seven. See Kunz, "L'Option de Nationalite," 31 Recuei/
des Cours (1930-1) 111-76.
250 THE REGULATION OF NATIONALITY
8
See Cotran, "Some Legal Aspects of the Formation of the United Arab
Republic and the Arab States," in 8 I.C.L.Q. (1959) 346 at 372. This refers only to
a provisional constitution. On September 30, 1961, Syria seceded from the U.A.R.,
taking the name of Syrian Arab Republic. The group of army officers who broke up
the Union viewed themselves as restoring the State which had existed prior to 1958.
After seizing power the officers decreed that the executive authority was to be
exercised in accordance with the Syrian Constitution of 1950, and, in October 1961,
the Syrian Delegate to the General Assembly requested the right, which was granted,
to take his seat as an original Member of the United Nations. Internationally, the
Syrian Arab Republic of 1961 was the same State as the 1958 Republic of Syria. See
Young, "The State of Syria: Old or New?," in 56 A .J.I.L. (1962) 482-88. As the
nationality of the United Arab Republic was expressly granted to all bearers of the
Syrian or Egyptian nationality there can have been no difficulty in reviving each of
the two nationalities.
..
changed with the cession of territory.' This is on the grounds that civil
and military pensions are earned and so "partake, to some extent, of
the character of administrative debts." He cites examples, beginning
with the French undertakings in 1860 to pay the pensions of Sardinian
pensioners who became French by virtue of the cession of Nice and
10
Savoy. That change of nationality is a test for determining which
State is to discharge pension obligations was upheld in the Danzig
11
Pension Case, where the Government of the Free Territory of Danzig
was held liable to pay the pension of a former official of the German
administration. The Court held:
9
O'Connell, State Succession Vol. I (1967) 467. Cf. the French case of Dame
veuve Zamba Samoura (C.E. 15 fevrier 1974, Recuei/ 116). When a person loses
French nationality as a result of the acquisition by a State of independence she cannot
claim pension rights enjoyed by her husband and granted by the French State. 21
A .F.D.I. (1975) 1029.
10
Ibid. This practice continues. In the Accord between Italy and Yugoslavia of
December 18, 1954, the Contracting Parties agreed to pay civil and military pensions
to those having opted for their nationality and transferred their residence to the
territory of that contracting Party, 284 U.N.T.S. 259. The Accord came into force on
February I0, 1956.
11
5 A .D. No. 41, quoted by O'Connell, ibid. at 468. O'Connell, however. argues
against the test of nationality on the ground that it constitutes an exception to the
general principle that the "liability of the successor State to amortize the debt of the
central treasury of the predecessor State arises only in those cases in which the change
of sovereignty has destroyed the competence of the debtor State to discharge its
obligations." Ibid. at 418.
11
Kunz, /oc.cit (1930) 172.
13
For example, the United Kingdom and Federation of Malaya Public Officers
Agreement of July 27, 1959, Cmnd. 854. See 9 I.C.L.Q. (1960) 2~5.
252 THE REGULATION OF NATIONALITY
The problems that arise, then, are connected with the change of
sovereignty and the nationality connected with it. Do the persons
concerned become automatically nationals of the successor State, and
are these "persons" inhabitants or nationals? Is the change effective at
the moment of acquisition of sovereignty, or is the successor State
bound in any way to recognize the predecessor State's national status?
This is to say, are any limitations imposed under international law on
its unfettered discretion to enact nationality laws? The limitations may
be two-fold. The successor State may be under an obligation not to
impose its nationality on the nationals of the predecessor without some
form of consent from the predecessor State, or the individuals
involved, or both. Or it may have obligations vis-a-vis third States if
14
O'Connell, "Independence and Problems of State Succession," in W.V.
O'Brien, ed., New Nation.v in International Law and Diplomacy (1965) at 33.
15
Ibid. at 30.
16
Estonia v. Lithuania, P.C.I.J. Series A/8, No. 76.
17
O'Connell, State Succession Vol. I at 540. This would correct what would
otherwise be a blatant injustice for the nationals of new States.
,... -
2. DOCTRINE
18
Castren, Joe:. cit. (1951) 389. He observes, however, that treaties of cession
can scarcely be called "voluntary": "Les Etats ne sont guere disposes a ceder leur
territoire."
19
The Nottebohm case. The invalidity of Nottebohm 's Liechtenstein nationality
in the international sphere did not act to restore his German nationality. Supra,
Chapter 2, section 2.2, pp. 58 et seq.
20
O'Connell, "State Succession and the Theory of the State," in C.
Alexandrowicz, ed., Grotian Society Papers (1972) 23-76.
--•
254 THE REGULATION OF NATIONALITY
The rule may then be stated that the successor State is entitled to
extend its nationality to the nationals of the predecessor State, at least
to those whose permanent domicile is in the transferred territory.
Brownlie states the rules as follows:
11
Brownlie, Principles of Public International Law (4th ed,.Oxford, 1990) 661 .
11
Crawford, The Creation of States in International Law (Oxford, 1979) 41.
23
Op. cit. (1951) 486. See also O'Connell, Vol. I (1%7) 245.
24
Materials on Succession of States in Respect of Matters Other than Treaties.
U.N. Legislative Series ST/LEG/SER.B/17 (New York, 1978) 7.
NATIONALITY AND STATE SUCCESSION 255
The predecessor State, however, has also pleno jure the right not
to withdraw its nationality from those who were its nationals before
the transfer of sovereignty. This, then, can result in conflict, or, at
best, cases of whole populations possessing dual nationality, whereas
dual nationality has been considered as an "evil" to be avoided. Where
neither predecessor nor successor State recognizes the inhabitants as
its nationals it can lead to populations becoming stateless.
25
O'Connell, op. cit. (1972) at 74. Also op cit., Vol. I (1 %7) 503: "[l]t cannot
be asserted ... that international Jaw ... imposes any duty on the successor state to
grant nationality."
u; See Korowicz, Introduction to International Law (1959) 283.
256 THE REGULATION OF NATIONALITY
17
Castren, op. cit. (1951) 487. See also Graupner, "Nationality and State
Succession," in 32 Grotiu.r Society Transactions for the Year /946 (1947) 87 at
94-96, and Weis, Nationality and Statelessness in International Law (2d ed., 1979)
159-60.
28
Verzijl, International Law in Historical Perspective Vol. V (1972) 85-86.
29
In his article, "Option of Nationality in Soviet Treaty Practice 1917-1924,"
55 A .J.I.L. (1% 1) 919 et seq., at 946, Ginsburgs suggests that the lack of an "overall
unifying pattern" in the Soviet use of options from 1917-1924 was due to the state
of Soviet foreign policy at the time, which necessitated allowing the opposing party
to draft the main outlines of the plan of the option.
30
O'Connell, State Succession Vol I at 529 et seq.
31
Kunz, "L'Option de Nationalite," 31 Recueil des Cours (1930-1) 114 et seq.
32
Butler and Maccoby, The Development of International Law (1928) 201.
NATIONALITY AND STATE SUCCESSION 257
they were free to emigrate, usually to the territory of the State of their
nationality, and take their movable goods with them. Article 17 of the
Treaty of Ryswick provides that the inhabitants of the city of
Strasbourg were free to transfer their domicile within a year of the
ratification of the treaty of peace ..and to remove their effects free of
toll." Up to the early part of the nineteenth century it was usual to
allow those moving away from the ceded territory to take their
personal property, but immovable property had to be sold. ·
In the nineteenth century some changes occurred. Emigrants were
allowed to retain their immovable property in the ceded territory, but
if they wanted to make a valid choice of nationality they were under
a duty to change their domicile. The time limit within which the
removal had to take place was usually one year, but could be up to
three. For the option of nationality to be valid, and binding on the
successor State it had to be followed by emigration. In addition some
treaties stipulated a declaration concluded in due form before a
recognized authority stating that the optant desired to retain his
original nationality_:u This practice was accepted by Chief Justice
Fuller in the case of Boyd v. The State of Nebraska ex rei. Thayer, 34
who stated in his judgment:
33
Kunz. op. cit. (J 930-1) 127 et seq.
34
143 U.S. 135, 162 (1892), quoted by Moore, Digest Vol. Ill at 31 I.
35
Kunz. foe. cit. 131.
36
As between Prussia and Denmark the status of the inhabitants of Schleswig-
Holstein who opted for Danish nationality, after its cession to Prussia in 1866, was
settled by the treaty of 1907 under which Prussian nationality was conferred on them.
O'Connell, op. cit. (1967) 535.
258 THE REGULATION OF NATIONALITY
37
Finland.s overen:fkommel.ser 1922 at 125. The authoritative texts are in Finnish,
Swedish, and Russian.
38
R.1.A .A. Vol. I at 40; Y.B.l.L.C. 1962-11 at 15.
39
See, supra, at 55-58.
.- -
The right to opt for Austrian nationality was allowed "within a period
of two years from the coming into force of the present treaty." In
some cases, habitual residence was not adequate grounds for the
automatic acquirement of nationality. Birth on the territory could be
required, or residence before a certain date. 41 In the case of Romana
v. Comma, 1925, the Egyptian Mixed Court of Appeal held that a
person born in Rome and resident in Egypt became, by the annexation
of Rome in 1870, an Italian national. 41
The post-1918 treaties introduced a new form of option based on
a genuine link in what Kunz has called the "ethnic options."43 This is
shown in Article 80 of the Treaty of St. Gennain, which runs as fol-
lows:
40
Similar provisions applied to the territories forming Romania, Yugoslavia,
Poland, and Hungary. So, too, under the Treaty of Versailles, 1919, Section XII on
Schleswig. for example, provides that "all the inhabitants of the territory which is
returned to Denmark will acquire Danish nationality ipso facto. "
41
So in Section VI. Article 71 of the Treaty of St. Germain it was provided that
Italian nationality shall not in the case of territory transferred to Italy be acquired ip.w
facto "( 1) by persons possessing rights of citizenship in such territory who were not
born there, (2) by persons who acquired their right of citizenship in such territory after
May 24, 1915. or who acquired them only by reason of their official position."
4.Z
3 A .D. Vol. III, No. 195.
43
Kunz, op cit. ( 1930) 150. He calls them "non-genuine options" because they
are not connected with cession of territory.
44
The Treaty of St. Germain. A Documentary History, Hoover War Library
Publications No. 5 ( 1935).
260 THE REGULATION OF NATIONALITY
The successor State enacts its own nationality legislation, but only
nationality based on such a genuine link permits the State to exercise
the right of diplomatic protection. It may be added that without such
a genuine link the imposition of nationality may be invalid per se, and
third States may be under no obligation to recognize it. Such an
imposition may occur, for example, where nationality is imposed on
all the nationals of the ceding, or parent, State, who are not resident
in the ceded or newly independent territory at the time of change of
45
In English law, where territory has been acquired by the Crown, the
inhabitants "have ordinarily been held automatically to have acquired British
nationality." O'Connell, op. cit. Vol. I (1967) 245.
46
Recueil des Cours (1965-111) 116 at 187-298. So, he concludes, new States
derive from the fact of their new sovereign existence the right "to enact a nationality
law claiming persons who have a 'genuine link' with its territory as nationals."
NATIONALITY AND STATE SUCCESSION 261
47
See, e.g., the North Trmuylvania Nationality Case (1965), 43 I.L.R. (1971)
191, where the Court of Appeal of Berlin, in a decision of December 21, 1965, held
that ..In the case of a cession of territory, as in the present case of N. Transylvania,
a general naturalization without the consent of the persons concerned was only
possible if they had their ordinary residence in the territory ceded."
48
Brownlie, Principles of Public lntemational Law (4th ed. 1990) 663-64.
49
See Kunz, op. cit. (1930) 125-26, who argues that the place of birth is easier
to determine than that of domicile. So, too, Verzijl, op. cit. Vol. V (1972) 86, who
favors place of birth as a criterion of a connection.
262 THE REGULATION OF NATIONALITY
!Ill
23 A .J.I.L . ( 1929) 26.
NATIONALITY AND STATE SUCCESSION 263
It may be noted that the Harvard Draft states the rule with more
hesitation than the sources cited. It is understood that "international
51
Ibid. at 61 .
THE REGULATION OF NATIONALITY
264
" and does not dictate. Further, it does not mention
Iaw assumes ...
" Jete conquest" as have earlier writers. On the other hand, it
comp . · · h
deals equally with cases of State successiOn ansmg w en part of the
territory of a State separates from the parent State. to become a new
State and with those arising when part of the terrltory of a State is
acquired by another State. No difference ~s drawn between t~e two
types of succession. The distinction made ts that between parttal and
total succession.
52
See Report by Mr. Manfred Lachs, Chainnan of the Sub-Committee. One
recornmen~at.ion contained in the Report and followed by the Commission was that
the Comm1sston should concentrate its work on the Succession of States rather than
Governments. A/CN/4/160. This is in accordance with the general practice of States
not to a~~ord recognition to Governments. See Warbrick, "The New British Policy on
Recogn~tton of Governments," 30 l.C.L.Q. (1981) 568-92, especially 574. Only a
success1on of States affects nationality.
53
I n h'IS work'mg document Castren, as a member of the Sub-Committee,
propos~d a study of "toutes les questions relatives a Ia situation juridique de Ia
population _tombee sous Ia souverainete terri tori ale et personelle du nouvel Etat." At
least questwns such as nationality should not be excluded. See 2 y .B .J.L. C. (1963)
277.
. . Another
. . member expressed t he vtew
· that questions falling within domestiC ·
JUodn~fidtctt?n according to Article 2(7) of the Charter should be excluded from the
c 1 tcatton. Ibid. at 298.
NATIONALITY AND STATE SUCCESSION 265
54
See 15 A.J.I.L. (1981) 992 for the decision to limit the topic to property,
archives and debts. The text of the 1983 Convention is reprinted in 22 I.L.M . 306
(1983). For analysis and comment, see Nathan, "The Vienna Convention on
Succession of States in Respect of State Property, Archives and Debts," in Dinstein,
ed., International Law at a Time of Perplexity (1989) 489.
55
In addition, the Secretariat has prepared studies for the Commission, including
the Digest of decisions of international tribunals relating to State succession. A/CN
4/51. 2 Y .B .I.L.C. (1%2) and the supplement thereto. Ibid. 1970, Vol. II at 170, and
the Digest of decisions of national courts relating to succession of States and
governments. A/CN 41157, 2 Y.B.I.L.C. (1963) 95. The "Materials on Succession of
States in Respect of Matters Other Than Treaties," U.N . Legis. Series
ST/LEG/SER .B/17 (New York, 1978), contains material relating to nationality.
266 THE REGULATION OF NATIONALITY
(Part IV). In the work of the Commission great stress was laid on the
views of newly independent States. It considered that
56
2 Y.B.l.L.C. (1974) Part 1 at 167, quoted in Sinclair, "Some Reflections on
the Vienna Convention on Succession of States in respect of Treaties," in Essays in
Honour of Erik Castren (Helsinki, 1979) 149 et. seq., at 159.
57
75 A .J.l.L . (1981) 993.
58
2 Y .B.l.L .C. (1974) Part I.
59
supro, th'ts chapter, sectton
. 2.1 "State Sovereignty."
60
See O'Connell, "State Succession and the Theory of the State," in Grotius
Society Papers (1972) 26 et seq. Cf. Prakash Sinha, "Perspectives of the Newly
Independent States on the Binding Quality of International Law," in 14 I.C.L .Q.
(1965) 121-31, and Bokor-Szego, The Role of the U.N . in International Legislation
( 19?8 ), for the reluctance of new States to accept rules of customary international Jaw
whtch they have not participated in forming.
NATIONALITY AND STATE SUCCESSION 267
This is subject to the proviso that the successor State and the other
State or States parties agree otherwise or that it appears from the
treaty that the application in respect of the successor State would be
incompatible with the object and purpose of the treaty.
61
U.N.J.Y. (1978) 106-21.
62
1 Y.B ./.L.C. (1974) Part 1.1, at 169; Sinc1air, loc. cit. 159.
63
This legal continuity has been maintained chiefly by means of devolution
agreements and unilateral declarations. See Schaffer, "Succession to Treaties: South
African Practice in the Light of Current Developments in International Law;· in
I.C.L.Q. (1981) 593 at 597 et seq.
64
The International Law Association proposition favored no break in continuity
in all cases of State succession. See O'Connell, "The Present State of the Law of
State Succession," in The Present State of International Law: International Law
A .uociation 1873-/973 (1973) 331-38.
268 THE REGULATION OF NATIONALITY
One other aspect of the 1978 Convention may have bearing on the
law relating to nationality and State succession. This is Article 6, in
Part I, General Provisions, which provides:
65
Italics added by the present writer. See also the Preamble to the Vienna
Convention on the Law of Treaties, 1969, and Article 52 of the same treaty: "A treaty
is void if its conclusion has been procured by the threat or use of force in violation
of the principles of international law embodied in the Charter of the United Nations,"
Doc. A/Conf. 39/27, reprinted in 63 A .J.I .L. (1%9) 875.
NATIONALITY AND STATE SUCCESSION 269
June 10, 1940, was the date on which Italy declared war on France
and Britain. Basically, then, the change of nationality is automatic on
the transfer of sovereignty "in accordance with legislation to that
effect to be introduced by that State within three months from the
coming into force of the present Treaty."
Under the second paragraph of Article 19 all persons over the age
of eighteen years, or married persons whether under or over that age,
"whose customary language is Italian" shall be entitled to opt for
Italian citizenship "within a period of one year from the coming into
force of the present Treaty." It is left to the Government of the State
to which the territory is transferred to enact "appropriate legislation"
within three months from the coming into force of the present Treaty.
The "ethnic option" introduced by the post-1918 Peace Treaties is here
defined on the basis of "customary language" and not on "race." Use
66
49 U.N.T.S. 3 et seq.; also in Material.r on Succession of States in Respect of
Matters Other Than Treaties ST/LEG/SER.B/17, at 57 et seq. Hereafter cited as
Materials etc.
270 THE REGULATION OF NATIONALITY
67
See Kunz, "Nationality and Option Clauses in the Italian Peace Treaty, 1947,"
in 41 A .J.I.L. (1947) 622- 31.
68
Ibid. at 627.
69
Ibid. In earlier practice the option of the husband included that of the wife.
70
5 A .D . No. 149.
71
Supm, this chapter, text at note 38.
NATIONALITY AND STATE SUCCESSION 271
71
Which came into force on February 10, 1956. 284 U.N.T.S. 239. See
Materials etc. 72-75.
73
See Kunz, np cit. (1947) 625.
74
Japanese Annual of International Law (1958) and O 'Connell. np. cit. Vol. I
( 1967) 516-18. In Re Shimabukuro and Others , 1967, the Osaka District Court, Japan,
held that the United States sovereign powers over the Okinawa Islands, pursuant to
the Treaty of Peace with Japan, did not alter the nationality of the inhabitants of
Okinawa, who continued to remain nationals of Japan. 54 I.L.R. (1979) 214.
75
So. for example, the Finnish inhabitants of that part of Carelia which was
ceded to the U.S.S.R. under the Peace Treaty, 1947, but was not occupied by the
Soviet forces during the War, had to remove to the remaining territory of Finland
within a very brief period of time. For the Peace Treaty of March 12, 1940, see
Schechtman, European Population Transfers /939-/945 (1946) 388 et seq. In the
Agreement between the Polish Republic and the U.S.S.R. Concerning the Exchange
of Sectors of Their State Territories, signed at Moscow on February 15, 1951 , which
came into force on June 5, 1951 (432 U.N.T.S . 210; Materials etc. 75). the two parties
ceded "on a basis of mutual exchange," 480 square kilometers of each one 's territory.
This was an amendment of the Treaty between the Polish Republic and the U.S .S .R.
of August 16, 1945, concerning the Polish-Soviet State frontier. Articles 3 and 4 of
the Annex to the Agreement provide: "3. The value of the immovable property left
in the sectors to be exchanged by persons changing their residence shall not be subject
to reimbursement by the State in whose territory such property remains. 4. The Parties
have agreed that the transfer of the sectors to be exchanged and the resettlement of
the population shall be completed by each Party not later than six months from the
date of the entry into force of the Agreement."
272 THE REGULATION OF NATIONALITY
76
Signed at Paris, on February 2, 1951, 203 U.N.T.S. 155, it came into force on
June 9, 1952. Materials etc. 77.
77
Indian Yearbook of lntemationol Affairs, 1956 at 175; Materials etc. 86.
NATIONALITY AND STATE SUCCESSION 273
who are born in the territory ceded and domiciled therein when the
78
successiOn takes place. This is made subject to Article 5, under
which
The right of option is, again, granted to all those persons affected by
the cession, and it is to be exercised by written declaration, within the
limit of six months.
Article 6 extends this right of option to be exercised according to
the same procedure to French nationals born in the territory but
domiciled in the territory of the Indian Union on the date of the
transfer of sovereignty who would otherwise become Indian nationals
on the critical date. The link is in this way not restricted to domicile.
Birth on the territory is a sufficient criterion for the retention of
French nationality. In addition the children of persons born on the
territory but resident in the Indian Union are granted the right of
option. This is not an "ethnic option."
Article 7 provides that French nationals born in the territory of the
Establishments and domiciled in a third country shall retain their
French nationality. This provision avoids the creation of a category of
stateless persons. Exceptions to Article 7 are given in Article 8 which
grants the right to opt for Indian nationality to those persons affected
by Article 7. The right of option shall be exercised "by means of a
written declaration signed in the presence of the competent Indian
authorities within six months of the entry into force of the Treaty of
Cession." Thus not only does the predecessor grant a right of option
for those who wish to retain their nationality, but also the successor
State allows an option to those born on the ceded territory but
domiciled in neither of the two States concerned at the time of the
transfer of sovereignty.
78
In a statement to the National Assembly of February 24, 1973, the French
Mini ster of Foreign Affairs said this was application of an established rule in cases
of cession of territory. 19 A .F.D.I. (1973) 1057.
274 THE REGULATION OF NATIONALITY
3. 1.4. 1 Vietnam
79
Indian Yearbook of International Affairs, 1954 at 368. It came into effect on
November I, 1954. Material.f etc. 80.
8
°
Convention entre Ia France et le Viet-Nam sur Ia Nationalite. Faite a Saigon,
le 16 A out, 1955. Journal Official de Ia Republique fran~aise, 3 mai, J959 at
4767-68. Entered into force August 17, 1965. Material.f etc. 446-50.
81
Tunisia was the other former French colony which did not become a Member
of the French Community, a form of federation which evolved out of the former
French Empire under the French Constitution of October 4, 1958.
81
The term is defined in Article I as "L'expression 'originaire du Viet-Nam'
designe les personnes issues de pere et m~re de generation vietnamienne ou faisant
partie des minorites ethniques dont J'habitat se trouve sur Ie territorie du Viet-Nam."
NATIONALITY AND STATE SUCCESSION 275
The term "subject" refers to the common status of the French Empire.
83
Nottebohm case. I.C.J. Repmts 1955 at 23.
84
It is worthy of note that in 1980 in a written reply to a question in the
National Assembly concerning a revival of the status of "metis," known in French
Indo-China prior to August 1955, the French Minister of Justice stated that there
could be no question of basing the attribution of French nationality on a racial
criterion. Reproduced in 26 A .F.D./. (1980) 970 et seq. This, it is submitted, is in
accordance with general practice since 1945.
THE REGULATION OF NATIONALITY
276
16).85 The competent authority must verify the validity of the option
and deliver a verification to the optant (Article 16). This option takes
effect from the date of the deposit of the declaration with the authority
qualified to receive it (Article 18). This right of option must be
exercised within a period of six months from the date of the entry into
force of the present Convention (Article 15). the treaty contains no
provisions for the removal of a person or persons opting out of the
nationality of habitual residence. This is left to the municipal law of
both parties.
3. 1.4.2 Indonesia
3.1.4.3 Burma
85
. ~or ~xample, the French authority is the French representative or his deputy
w1th terntonal com~tence in Vietnam. The procedure to be followed is also given
fo~ . those optants res1dent outside the country of their choice of nationality at the
cnt1cal date.
86
.. 6? U.N.T.S. 272 et seq. Draft Agreement Concerning the Assignment of
Citizenship.
87 Public General Acts and Measures 1947 II Geo 6 Ch
• ' . , ap. 3·, M arenas
. I etc.
145 e t seq.
-- - - --
It may also be of interest to see what form the genuine link takes
in the legislation of new States. Here the cases where sovereignty over
a part of the territory of a State is transferred to become an integral
88
Ibid.. First Schedule.
278 THE REGULATION OF NATIONALITY
part of another, already existing, State, are not relevant. For in these
cases the change of nationality of the inhabitants of the ceded territory
is, unless an option is exercised, from the nationality of the
predecessor to that of the successor State.
The regulation of national status by new States may be seen
chiefly in the practice of those new States which were formerly part
of the British and French Empires. For the majority of States entering
the international community in the last two decades as fully sovereign,
independent members arose from the dismemberment of those two
Empires.
89
See O' Connell, op.c:it. Vol. I (1967) 36 et seq., and Zemanek, "State
Succession after Decolonization," 116 Recuei/ des Cours (1965-111) 187-298.
90
The drafting of the Constitutions of the new Commonwealth Members and
also much of their early legislation, was conducted from London. See Jennings, The
Approach to Self-Government (1956).
For example, Section I of the C~nstitution of Malawi extends Malawi
91
citizenship to persons born in the former Nyasaland Protectorate and a citizen of the
U.K. and Colonies on July 5, 1964, being the date of independence, unless neither
parent was born in the Protectorate, in which case such person shall not become a
citizen of Malawi. Materials etc. 307.
·-
NATIONALITY AND STATE SUCCESSION 279
"In a colony the vast majority of the population has the status
of citizen of the U.K. and Colonies before independence and
the independence Act usually takes away this status from
91
See, e.g .• Constitution of Botswana. Chapter III, Mate rials etc. 137, and
Constitution of Malawi. Chapter I. Materials etc. 301.
93
See, e.g.. Constitution of Kenya, Chapter I, Mate rials etc. 254.
94
Constitution of Guyana, Chapter III, Mate rials etc. 203.
280 THE REGULATION OF NATIONALITY
French practice is not the same. After the 1958 Constitution was
adopted in France, the former French colonies were, in the main,
joined on a footing of equality in the French Community, with a
common nationality. After the achievement of independence by these
members of the Community, relations with Metropolitan France were
regulated by a treaty entered into by France on the one hand and the
95
51 B.Y.I.L. (1980) 398.
96
November 29, 1982, THE TIMES (London) . See a1:w p reedman, "The W ar o f
the Falkland
. Islands 1982,"
. · ,, · · 1982 p a11 at 196 et seq. Th'1s 1s
Foreign Af(ain · because
sovereignty
. over the
. Islands remains with the Un 't
1e d K'mg om. rgentma s c1a1m
d A · • · to
sovere1gnty necessitates the imposition of Argent'1man · nat1ona
· .
1ty.
1
NATIONALITY AND STATE SUCCESSION 281
97
new State on the other. When sovereignty is transferred to the new
State the usual practice is that the nationality of the inhabitants is
regulated by the treaty transferring sovereignty. The new States were
left to determine on their own the rules relating to the acquisition and
loss of their nationality.
In the absence of treaty law the general principle applies that any
change of sovereignty over a territory entails the immediate change of
nationality of the permanent population.98 Article 1 I of the Nationality
Code, 1973, provides that the effects of a change of sovereignty over
a territory on the nationality of the persons born or domiciled in those
territories are in principle settled by the treaty transferring sovereignty.
Article 12 of the Code regulates those cases where there is no treaty
law. The principle then is that the nationals of the ceding State,
domiciled in the annexed territories acquire French nationality on the
day of the transfer of sovereignty unless they establish an effective
domicile outside the territory. Alternatively, French nationals
domiciled in ceded territories lose French nationality on the day of the
transfer of sovereignty. According to French Jaw, then, nationality in
State succession is based on the criterion of domicile. When the
domicile is determined is not entirely clear, it being possible for a
French national domiciled in a newly independent State to change his
domicil in the period fol1owing immediately after independence.'' The
determination of domicile is left to the decision of the courts. 1"
In those cases where the nationality law of the newly independent
States has been regulated in the treaty transferring sovereignty the
tests of a connecting link have varied. as with the new States created
out of the former British Empire, between birth and residence and
connection with the local population. An example of this last criterion
is provided in Togolese law. According to the Law No. 61-18 of July
25, 1961, Togo considers as its nationals persons possessing 'Tetat de
97
Togo and Cameroon chose not to join the Community. See Zemanek, op cit.
(1965) 274 l'tuq.
98
Su Lagarde, La Nmiontlliti Franraise { 1975) 189- 216, Chapter VI on cessions
of territory and the accession of territories to independence.
99
Article 12 states the rule as: " les natinaux de I'Etat cedant, domicili~s dans les
territoriis annexes au jour du transfert de Ia souverainete acquierent Ia nationalit~
fran~aise. a moins qu'ils n'etablissent effectivement leur domicile hors de ces
territories" and " ... sous Ia meme reserve Jes nationaux frant;ais, domicilies dans Jes
territoires cedes au jour du transfert de Ia souverainete perdent cette nationalite."
Lagarde, foe. cit. 190.
100
See, infra, this chapter. text at note 178.
282 THE REGULATION OF NATIONALITY
3.2.3 Surinam
101
Zemanek, op. cit. (1965) 275.
102
Ibid.
103
The former Emperor Bokassa of the Central African Empire possessed French
nationality on these grounds. When he fled to France after being deposed as Emperor
he was refused entry to France. This could have been based on the concept of
dominant nationality.
104
Tractatenb/ad 1975, No. 132.
NATIONALITY AND STATE SUCCESSION
283
In the event, those falling into category (2) were dropped, leaving
those to whom Surinam nationality was automaticaJJy granted to
categories (I) and (3). Residence, accordingly, became the primary
test of a genuine connection. 105 Under Article 24 of this Treaty aliens
resident in Surinam at the date of independence became Surinam
nationals.
3.2.4 Singapore
106
See, in general, Sornarajah "Nationality and International Law in Singapore,"
in Ko Swan Sik ,ed., Nationality and lntemational Law in Asian Perspective (1990)
423-52.
107
Ibid. at 425. For text of the agreement, see 2 I.L.M. (1963) 816.
108
See 4 I.L.M. (1965) 932.
109
Sornarajah, op cit. (1990) 432 et seq. Cf. the Malaysian rejection of the
British proposal, in connection with the projected Malaya Union in 1946, that
citizenship be granted solely on the grounds of birth on the territory. Sinnadurai,
"Nationality and International Law in the Perspective of the Federation of Malaysia,"
in Ko Swan Sik, op. cit. ( 1990) at 313.
NATIONALITY AND STATE SUCCESSION 285
110
Article 121(2)(b). Sornarajah, op. cit. at 433. Sornarajah points out that
Singapore law "does not contain stringent rules for the prevention of statelessness. On
the other hand, the Constitution requires that where circumstances for the deprivation
of citizenship exist, the Government should in most cases be satisfied that deprivation
would not result in the statelessness of the person concerned." Ibid. at 450-51 .
286 THE REGULATION OF NATIONALITY
3.2.5 Bangladesh
111
Ibid. at 435-38.
Jtl Ibid., in particular 437-38. Under the Rules, an Advisory Committee was
set up to consider applications for nationality. On the one hand, when the Minister
presents information it may be secret, on the other the courts may possess a
competence of judicial review of the administrative decision of the Committee.
113
Islam, "The Nationality Law and Practice of Bangladesh," in Ko Swan Sik.
op. cit. ( J990) I and 5~. Islam names as "natural citizens" those who have acquired
Bangladesh nationality by virtue of their residence in the territory of Bangladesh at
the time of its attainment of independence or by birth after that time. Ibid. at 16.
zr1
- ------ - --
114
Ibid. at 23-24.
115
Idem.
116
Ibid. at 7-8.
288 THE REGULATION OF NATIONALITY
117
Article 2(2) of the Treaty between the Federal Republic of Gennany and the
Gennan Democratic Republic on the Establishment of German Unity, reprinted in 30
I.L.M. 457 (1991). The treaty entered into force on September 29, 1991.
118
What follows on immediately here at pp. 288-90 is unchanged from the first
edition of this book.
119
France, The Netherlands, Luxembourg, Uganda, Costa Rica, Denmark,
Ireland, Spain, Norway, Afghanistan, Italy, Mauritius, Gambia, Ethiopia, Malta, the
United Kingdom, and Nigeria.
120
See Koenig, "La Nationalite en Allemagne," 24 A .F.D.I. (1978) 237-63.
..~ ----
NATIONALITY AND STATE SUCCESSION 289
111
Koenig, op. cit. (1978) at 261 note.
111
25 A .F.D.I. (1979) 977. C:fthe Te.w case, and the earlier cases before the
Federal Constitutional Court, infra pp. 306-08.
290 THE REGULATION OF NATIONALITY
123
See "Staatsangehorigkeit, soziale Grundrechte, wirtschaftliche Zusam-
menarbeit" ( 1976). especially 13-95.
NATIONALITY AND STATE SUCCESSION 291
As from October 3, 1990, there is one single State, Germany, and one
German nationality. The nationality of the Germans in the territories
east of the Oder-Neisse Line, having a form of dual Polish and
German nationality is to be decided by separate negotiations between
the two countries. 116
114
Article 7. The text of the Treaty is reproduced in 29/.L.M. 1186 (1990). The
Treaty was the result of the so-called "Four-plus-two" negotiations.
115
See also the texts of the Secretary of State's Letter of Transmittal and the
President's Letter of Transmittal for the Treaty on the Final Settlement with Respect
to Germany to the U.S. Senate, as regards Germany's assurance, in Article I, that the
united Germany has no territorial claims whatsoever against other States, 30 /.L.M .
570 (1991). The Germany-Poland Agreement in Relation to Ratification of the Border
Between Them was done at Warsaw, November 14, 1990. 31 /.L.M. 1292 (1992).
116
For nationality problems of a private international law nature arising from the
Unification Treaty, see Hecker. Die Staatsangerhorigkeit der DDR und der
Einigungsvertrag, 29 Arch V R (1991) 27-49.
292 THE REGULATION OF NATIONALITY
127
The CSCE is an American-European-Asian framework of cooperation since
the Asian ex-Soviet Republics became participating States in J992.
128
See Warbrick, "Current Developments: Recognition of States," 41 J.C.L.Q.
(1992) 473, 473-75.
119 ldem.
NATIONALITY AND STATE SUCCESSION 293
130
The Pekkanen-Danelius Report, Doc. AS/Ad hoc - Bur - EE (43) 2 of
December 17, 1991 is reproduced in H.R.L.J. (Vol. 13, No. 5-6 1992) 236-44; the
de Meyer-Rozakis Report, Doc. AS/Ad hoc - Bur- EE (43) 4 of January 20, 1992,
reproduced in ibid. at 244-49; and the Bernhardt-Schermers Report, Doc. AS/Ad hoc
- Bur- EE (43) 3 of January 16, 1992, in ibid. at 249- 56. These Reports are taken
as a basis for the continuing dialogue between the Council of Europe and the Baltic
States on the topic of their membership of the Council.
131 See "The Geographical Enlargement ofthe Council of Europe. Policy Options
Having stated this, the Report then contained critical comments with
regard to the decision of the Supreme Council of the Republic of
Estonia, on November 6, 1991 , to reintroduce the 1938 Citizenship
Law.
Firstly, the 1938 Citizenship Law allows transmission of Estonian
citizenship along the paternal line only, and not through the mother.
This, as also understood elsewhere, for example in the Inter-American
system, could be considered discriminatory and contrary to
contemporary human rights standards. The Law was amended on this
point by the Estonian Parliament on March 23, 1992, making the
matrilineal and patrilineal lines equal.133
Secondly, the Report continued:
132
Pekkanen-Danelius Report, ibid. at 236. For the "Citizenship Issue," ue Part
IV of the Report, 1'131-39, at 239-40.
133 I
THE BALTIC NDEPENDENT, March 26, 1993, Vol. 3 No. 54, p. I.
NATIONALITY AND STATE SUCCESSION 295
Furthermore,
3.3.1.2 Latvia
The Report found that this Resolution did not seem unreasonable on
these points, namely, that of recognizing as Latvian citizens those who
held it in June 1940 and their descendants, and others only through
naturalization, as well as ruling out dual, or plural, citizenship for
Latvian nationals. 137 They did, however, find less reasonable the
requirement for naturalization of those persons resident in Latvia on
October 15, 1991, who register before July I, 1992 and who do not
retain the citizenship of another State, that they must have lived and
resided permanently in Latvia for at least sixteen years, and can show
proof of a sufficient knowledge of the Latvian language, and are
familiar with the fundamental principles of the Constitution. 138
136
Ibid., Part lll.3. This was passed while the Draft Law on Nationa1ity of
October 15, 1991, was being debated. See Bojars, "The Citizenship and Human
Regulation in the Republic of Latvia," 3 F.Y.B.I.L. (1992) 331-52.
137 B . .
OJars pmnts out that by the Resolution on Renewal of Citizens Rights to
Exiled Latvians of November 27, 1992, the principle of denial of dual citizenship was
not imposed upon Latvian Western emigr~s. and by a similar Resolution of October,
1992, to emigres from Latvia to the East. Bojars, op cit. at 346.
ns Th' .
1s reqmrement of a language test and "comprehensive examination on the
history of the country and its values" was one to which the Inter-American Court of
Human Rights, in its Advisory Opinion in 1984 on the Proposed Amendments to the
Nat~ralization Provisions of the Constitution of Costa Rica, took a balanced and
cautl~us approac~: '~[T]hese conditions can be deemed, prima facie, to fall within the
ma~gm of apprec1at10n reserved to the State for the assessment of the requirements
des1~n~~ to ensure the existence of real and effective links upon which to base the
acqms1t1on of the new nationality." See Chapter 4, sec t.ton 9 . 1• supra, at 230,
paragraph 63 of the Opinion ..
- -- - - ---- --
This accords with what has been discussed above on State succession.
Two points made in the Lithuanian Report highlight particular
problems involved. Firstly, the term "newly independent State" is used
in a sense different from that used hitherto, when referring to former
colonial territories: "newly independent means here independence in
139
Op. cit. supra, Part V, 11.26-33.
-
298 THE REGULATION OF NATIONALITY
1411
Ibid., 11. at 249-50.
141
See Rezek, "Le Droit International de Ia nationalite," 198 Recueil des Cours
(1986-111) 333 at 341-42: the population is not the same as the body of nationals,
some nationals being resident outside the territory, and some aliens resident on it.
t42 F
or examp1e, as pomte
. d out by Bojars, op. cit. supra, at 349, members of the
ethnic minorities in Latvia may have another nationality, of another former state of
the Soviet Union, with which they have close and effective links, such as by language,
culture, or family ties.
143
At a Council of Europe human rights seminar, held in Riga on 18 and 19
March 1993, Jeremy McBride, a legal expen from the Council stressed the
inadvisability in a legal instrument, of limiting the number of non~thnic Latvian
citizens to 30% of the total, as recently suggested by the Latvian Foreign Minister,
Andrejevs. THE BALTIC INDEPENDENT, March 26, 1993, p. 4.
NATIONALITY AND STATE SUCCESSION 299
144
International human rights instruments on "national minorities" refer to the
rights of citizens and of minorities, but not of their right to citizenship. Thus, the
Report of the CSCE Meeting of Experts on National Minorities, Geneva 1991, refers,
in Part II, to "equal rights and status for all citizens, including persons belonging to
national minorities...." 30 I.L.M. 1692 (1991) at 1695. See also General Assembly
Declaration on the Rights of Per.wns Belonging to National or Ethnic, Religious and
Ling11istic Minoritie.~. U.N. Doc. A/RES/471135, February 3, 1993, adopted by the
General Assembly on December 18, 1992, without a vote. 32/.L.M. 911 (1993). The
issue is confused by the use of the tenns "nationality" and "national status," hence the
more frequent use of the tenns "citizen" and "citizenship" in this connection. Cf. the
status of the Jews of Romania prior to 1918, supra, Chapter 3, section 2.2.4 of this
book.
145
See Mullerson, "The Continuity and Succession of States by reference to the
Former USSR and Yugoslavia," 42/.C.L .Q. (1993) 473 at 483: "Although the Baltic
States did not consider themselves to be successors to the Soviet Union, in practice
it was very difficult to neglect legal nonns and juridical facts that had occurred during
the period since 1940." He continues, "it was in reality very difficult, if not
impossible, to neglect altogether treaties concluded by the Soviet Union." The Russian
Federation dates the independence of the Baltic States from their recognition of the
fact, that is, fifty-one years after the annexation.
300 THE REGULATION OF NATIONALITY
certain trends relating to nationality and State succession are emerging. 146
It may be noted that in the Declaration on the Guidelines on
Recognition of new States in Eastenz Europe and the Soviet Union
issued by the Foreign Ministers of the Member States of the European
Community in Brussels on December 16, 1991, certain preconditions
for recognition were laid down. 147 These included, inter alia, respect
for the rule of law, democracy and human rights, and guarantees for
the rights of the ethnic and national groups and minorities in
accordance with the commitments subscribed to in the framework of
the CSCE. An Arbitration Commission, known as the Badinter
Commission after the name of its first chairman, was to advise States
as to whether these conditions for recognition had been satisfied. The
Commission was established pursuant to declarations of the European
Council of August 27 and September 3, 1991, to enhance the rule of
law in the European Community's handling of the Yugoslav crisis in
its Conference on Yugoslavia.
Respect for minority rights has not been interpreted here to
include the right of all residents, or inhabitants, on the territory of the
new States to the nationality of those States. It has, rather, and with
the requirement of "respect for the inviolability of all frontiers which
can only be changed by peaceful means and by common agreement"148
meant that the fashioning of ethnically homogenous States was not to
be an option.
The right to a choice of nationality on the part of those persons
belonging to a minority group has been indicated by the Badinter
Commission in its Opinion No. 2, where the legal question put to the
Commission was "Does the Serbian population in Croatia and Bosnia-
Herzegovina, as one of the constituent peoples of Yugoslavia, have the
right to self-determination?" First, the Commission found it well-
established that the right to self-determination must not involve
changes to existing frontiers, unless the States concerned agree
otherwise. However, there is a duty on States to respect the rights of
minorities, and for this the Commission called it a preemptory norm
For a bne
14fi . f account of developments up to early 1992, see Warbrick, op. c1t. .
.wpm. note 128. On May 22, 1992. the U.N General Assembly admitted three new
Members: the Republics of Slovenia, Bosnia-Herzegovina, and Croatia. In its Opinion
No. 8, dated July 4, 1992, the Badinter Commission found that the process of
dissolution of the SFRY is now complete and the SFRY no longer eJtists. 31 l .L .M .
1523 (1992).
147 w b. k
ar nc , op cit. at 477.
148
Ibid., Dec:laration on Guidelines etc. and p. 476.
NATIONALITY AND STATE SUCCESSION 301
149
See Conference on Yugoslavia Arbitration Commission Opinions on
Questions arising from the Dissolution of Yugoslavia, with an Introductory Note by
Maurizio Ragazzi, 31 J.L.M. 1488 (1992). Documents Regarding the Conflict in
Yugoslavia (September 25, 1991-November 16, 1992) appear at 31 I.L.M. 1421
(1992). Annex VII to the Report of the U.N. Secretary-General on the International
Conference on the Former Yugoslavia contains a Proposed constitutional structure for
Bosnia and Herzegovina. In its provisions on "Citizenship (closely connected with
many of the human and group rights provisions)" four points are made, two of which
are that dual citizenship be allowed and that there be no official ethnic identification
of citizens (e.g., on identity cards). Ibid. at 1590.
ISO /bid. at 1507.
151
Ibid. at 1524. Opinion No.9( I) stated: "New states have been created on the
territory of the former SFRY." In its resolution 777 (1992) of September 19, 1992,
the U.N. Security Council stated that the SFRY had ceased to exist.
...
4. JUDICIAL DECISIONS
In support of this argument the Court cited, i.a., Moore's Digest Vol.
III, to the effect that the American view is that only the inhabitants
who remain in the transferred territory change their allegiance. 153 This
accords with the American view that nationality is based on consent.
Here the Court treats cases of "conquest or cession" on an equal
basis. Schwarzkopf, the relator, entered the United States in 1936 and
resided there continuously unti I the date of the Court hearing. In 1933,
he had become an Austrian national by naturalization, and on July 3,
1938, after the German annexation of Austria, a German decree
granted German citizenship to all Austrian citizens. The question the
Court decided in the negative was whether the relator acquired
German nationality under that decree.
152
137 F2d 898, U.S. Circuit Court of Appeals, 2nd Circuit, August 18, 1943.
Digested in 12 A .D. (1943-1945) No. 54.
153
This was supported in U.S. ex. rei. Reichel v. Carusi, 13 A.D. (1946) No. 49,
where presence in the territory was deemed to signify acceptance of the nationality
of the annexing State. See also the Zeller case in 14 A .D. (1947) No. 47.
NATIONALITY AND STATE SUCCESSION 303
154
U.S. District Court, Hawaii, June 23, 1949; Court of Appeals, 9th Circuit,
June 23, 1950; 16 A .D. (1949) No. 62 at 208.
155
60 Stat. 1352, 1353.
304 THE REGULATION OF NATIONALITY
6
held, in the Nationality (Secession of A us tria) case.' 5 that there are no
rules in international law which provide for the automatic loss of
nationa1ity as a result of territorial changes, and more especially of
secession. The Federal Constitutional Court of the German Federal
Republic concluded similarly in the Gennan Nationality (Annexation
of Czechoslovakia) 151 case. The Court held that there was an absence
of any rule of international law governing the acquisition of the
nationality of an annexing State by the inhabitants of the territory
annexed. In the Austrian Nationality case, 158 the Court stated, obiter,
that there is no rule of international law governing all cases of state
succession, and, in particular, the reestablishment of the Austrian State
was a "special case of State succession, an act to restore the status quo
ante."
In In re Feiner, 159 the Federal Supreme Court of the Gennan
Federal Republic decided that the relinquishment of territorial
sovereignty entailed the release of the population from the bond of
allegiance. In the Court's view there was no general right of option of
nationality on the emergence of States resulting from severance. A
different chamber of the same court came to a different decision in the
A ustro-Gennan Extradition case, decided on the same day! 60 There
the Court held that
156
Decided October 30, 1954. 21 I.L.R. (1954) 175. It must be remembered that
the courts of the Federal Republic were faced in many cases with situations arising
from the Second World War.
157
Decided May 28, 1952. 19 l.L.R. (1952) No. 56.
158
Federal Constitutional Court. Gennan Federal Republic. November 9, 1955.
22 I.L.R. ( 1955) 430.
159 D . . f
ectston o January 18, 1956. 23 /.L .R. (1956) 367.
160
23 I.L.R . ( 1956) 3~.
161
Supra, pp. 160-61.
1112
43 I.L .R. (1971) 191.
NATIONALITY AND STATE SUCCESSION 305
163
This is an adaptation of the traditional rule that a person cannot remain the
inhabitant of ceded territory and at the same time retain the nationality of the ceding
State. See Khalil Ahmad v. State, India, High Court of Allabahad, 12 May 1961,49
I.L.R. 504.
164
Decided on March 8, 1971. 72 I.L.R. (1987) 435.
THE REGULATION OF NATIONALITY
306
acquisition of citizenship of the GDR has, for the leg~l order of the
FRG the legal effect of the acquisition of German natiOnality in the
• ,16s I h'
sense of the Grundgesetz (Basic Law). n 1s commentary to the
case, Hofman points out that "this applies even in cases like the
present one where the person concerned, Marco Teso, had acquired
the citizenship of the GDR by virtue of norms of the latter's 1967
Citizenship Act which does not have an equivalent among the
provisions of the 1913 Reichs und Staatsangehorigkeitsgesetz of the
German Reich which is-with various amendments-still in force the
FRG."166 The Court applied the notion of the single Gennan
nationality.
This judgment thus followed on the earlier case law of the Federal
Constitutional Court to the effect that neither the Treaty on the Basis
of Relations between the Federal Republic of Germany and the GDR,
1972, nor the "Eastern Treaties," that is to say the Treaty of Moscow
of August 12, 1970, between the FRG and the USSR and the treaty
of Warsaw of December 7, 1970, between the FRG and Poland,
concerning the Basis for Normalizing their Mutual Relations, had
brought about the partition of Germany .167
In the FRG-GDR Relations Case, the Court rejected the argument
of the Land of Bavaria that the Treaty violated constitutional
requirements concerning safeguarding of the national unity of
Germany and its eventual reunification, the status of Berlin, and the
duty of the Federal Republic to provide care and protection for all
Germans. The Court referred to the FRG's "Declaration regarding the
Protocol," which was an integral part of the Treaty, that nationality
questions are not regulated by the Treaty, and that in accordance with
Articles 16 and 116 of the Basic Law the FRG will treat as a German
any citizen of the GDR who enters the area of protection of the FRG
and its constitution. 168 Further, the Treaty does not set itself in
opposition to the reunification requirement of the Basic Law of the
HIS
See Hofman "Staatsangehorigkeit im geteilten Deutschland. Der Teso-
~eschlu~s des Bundesverfassungsgerichts," 49 Zanrv (1989) 257-96, with a summary
m Enghsh by the author appended on pp. 297-300: "Nationality in the Divided
Germany. The Teso Decsion of the Federal Constitutional Court."
166
Ibid. at 297.
167
FRG -GD R Relatwns
· Cau, Re Treaty on the Ba.vis of Relations between the
Federal Republic of GermanY and th e G ennan Democratic Republic 1972. Judgment
of Ju~y . 31, . 1973, with Note, 78 l.L.R. (1988) 149-76. ~astern Treaties
Cons~~:twnaltty Case, Judgment of July 7, 1975, with Note, 78/.L.R. (1988) 177-93·
Ibid. at 149, 170-71.
NATIONALITY AND STATE SUCCESSION 307
FRG, for responsibility for "Germany as a whole" lies also with the
Four Powers. thus the Federal Republic is not a "legal successor" to
the German Reich, but is a State identical with it, albeit in respect of
its territorial extent only "partly identical. " 169
In the Eastern Treaties Constitutionality Case, the Federal
Constitutional Court stated that the organs of the Federal Republic are
constitutionally obliged to protect German nationals and their interests
in relation to foreign States. If this duty is neglected, it would
represent an objective breach of the Constitution. 170
169
Ibid. at 161 .
170
Ibid. at 192.
171
19 I.L .R. (1952) 318.
171
See. supra, this chapter, section 3. 1.4.2 "Indonesia."
173
November 6, 1952. 19 I.L.R. (1952) 337.
174
This case, where the appellant was an Amboinese, may be distinguished from
the A mboinese Soldiers Case on the ground that in the latter The Netherlands had a
special relationship with those Amboinese who were evacuated from the camps on
Java to The Netherlands, pursuant to the Court's grant of an injunction, as they had
fought in the Dutch anny and taken the oath of fealty. Aponno et aJ v. The State of
The Netherlands, Supreme Court. March 2, 1951, 17 I.L .R. (1950) 199-202.
308 THE REGULATION OF NATIONALITY
4.4 France
175
RvdW (1980) No. 50, NJ (1980). Digested in 13 N .Y.I.L . (1982) 323.
176
AB (1990) No. 198, A ROB tB/S (1989) No. 150. 22 N.Y./.L. (1991) 399.
177
It may be noted that this case is in line with Article 14(2) of the Netherlands
Nationality Act of November 19, 1984: "No loss of Netherlands nationality on
whatever ground shall take place if such toss were to result in statelessness." 16
N.Y .I.L. (1985)454.
NATIONALITY AND STATE SUCCESSION 309
The Court held that the retention of French nationality was dependent
on two things: a signed declaration of intent to retain French
nationality; and an effective transfer of domicile to France. It is for
the judge alone to determine whether within the six months' time
allowed the person has established an effective and permanent
residence in France. 178
4.5 Israel
The particular question before the Court was to determine the national
status of persons resident in Israel between the date of the decJaration
of independence, 1948, and the enactment of a nationality law, 1951.
178
S ee 21 A .F.D.I. (1975) 1028. Cf. the case of Ahnine v. Procureur de Ia
Republique, decided by the Tribunal de grande instance of Paris on December 6,
1968. Ahnine, who was born in Tunis in 1940 of a Tunisian father and a French
mother, was granted a declaration of French nationality, which he originally possessed
by virtue of Article 19 of the Code of Nationality. The Court found that the Franco~
Tunisian Convention of 1955 on the Status of Persons did not alter his status, because
Article 15 of the Nationality Code provides that a change of nationality cannot under
any circumstances result from an international convention unless the convention
expressly so provides, and because by Article 8 of the 1955 Convention the Tunisian
Government expressly undertook not to enact any general provision which would have
the effect of attributing Tunisian nationality to French nationals. Thus, here the judge
acted on express legislative and conventional provisions. 70 I.L.R. (1986) 343.
179
April 6, 1951. 17 I.L.R. (1950) No. 27.
310 THE REGULATION OF NATIONALITY
4.6 Australia
Cases of cession of territory differ from those of State succession
181
based on conquest. In the Australian case of Wong Man On, the
High Court of the Commonwealth of Australia decided that military
conquest does not cause a change of nationality because it does not
amount to a change of sovereignty.
5. CONCLUSIONS
180
Ibid.
181
In 19 I.L.R. (1952) No. 58.
NATIONALITY AND STATE SUCCESSION 311
1. INTRODUCTION
313
314 THE REGULATION OF NATIONALITY
1
Fifty-eight States in all were admitted to the League of Nations. On May 28,
1993, the U.N. General Assembly admitted Eritrea and Monaco to membership,
bringing the total number of members of the United Nations Organization up to 183.
2
Article 1(3) of the covenant provides: "Any Member of the League may, after
two years' notice of its intention so to do, withdraw from the League, provided that
all its international obligations and all its obligations under this Covenant shall have
been fulfilled at the time of its withdrawal."
3
After violating the principles of the Covenant, Japan withdrew from the League
in 1932. Fifteen other States exercised their right of effective withdrawal and one
State was expelled. See Hudson, The International Law of the Future (1944) at 79.
4
See, in particular, Kelsen, The Law of the United Nations (1964) 122-35. That
withdrawal was not prohibited was a concession to the principle of State sovereignty.
5
A non-Member State is also included in the peacekeeping procedure of the
United Nations, with its consent in conformity with Article 35(2) and Article 32
permitting any State to bring to the attention of the Security Council or the General
Assembly any dispute to which it is a party, and to participate without vote. in the
discussions in the Security Council relating to the dispute, and possibly without its
consent in conformity with Article 39, which empowers the Security Council to
determine the existence of any threat to the peace breach of the peace or act of
aggression and to decide what measures shall be taken to restore peace.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 315
6
Under the Covenant the Member to be expelled had no vote. In this way the
Soviet Union was expelled in December, 1939. See Kelsen, np. cit. (1964) 716-17.
7
557 U.N.T.S. 143.
8
A General Assembly, a Security Council, an Economic and Social Council, a
Trusteeship Council, an International Court of Justice, and a Secretariat.
9
Under Article 7(2): "Such subsidiary organs as may be found necessary may
be established in accordance with the present Charter."
316 THE REGULATION OF NATIONALITY
111
In addition to the sixteen specialized Agencies brought into relationship with
the U.N. in accordance with the provisions of Article 63 of the U.N. Charter, three
other organizations are related to the U.N.: The International Atomic Energy Agency
(IAEA), the General Agreement on Tariffs and Trade (GATI), and the World
Tou~ism_ Organization (WTO). See Schermers, "The International Organizations," in
BedJaom, ed., lntemational Law: A chievemeflls and Prospects at 69.
It
Jessup, Transnational Law (New Haven, 1956) 4 .
12
1991/92 Vol. I.
-------------------------------.
13 Ibid. (19th ed. 1981 ). "Types of Organization included." It may be noted that
in the Vienna Convention on the Representation of States in their Relations with
International Organizations of a Universal Character, 1975, "Article I (I) ' international
organization' means an intergovernmentall organization; (2) 'intentional organization
of a universal character' means the United Nations, its specialized agencies. the
International Atomic Energy Agency, and any similar organizations whose
membership and responsibilities are on a world-wide scale." 1975 U .N.J. Y. 87 et seq.
14
See, e.g. Zimmern. The League of Nation.r and the Rule of Law 1918- 1935
( 1936; London, 2d ed. revised 1939) 40 et uq. O 'Connell pointed out in the first
edition of his tex.t book that there has been a long history of nonsovereign
organizations performing acts in international law, and that a starting point can at least
be fixed in the Congress of Vienna, 1815. Article 109 of the Final Act of which
provided for the setting up of the Central Commission for the Navigation of the
Rhine. International Law Vol. I (London. 1965) 105 et .req.
318 THE REGULATION OF NATIONALITY
15
Cf. Broms, The Doctrine of Equality of States as Applied in International
Organizations (1959) 76-78. It is also an attribute of sovereignty to undertake treaty
obligations.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 319
2.1 Arbitration
Hi For this. and particularly a discussion of the meaning of the terms arbitration
and adjudication in international law, see Wehberg. The Problem of an International
Coun of Justice (Oxford, 1918), translated from the German Das Problem eines
illfemationalen Staatengeric:hthofes (1913) 13 et seq. See al.w Choate, The Two Hague
Conferences ( 191 3; reprint NY 1969).
J
320 THE REGULATION OF NATIONALITY
given on the roster. 17 The usual practice was for these two arbitrators
then to choose a third one together. According to Article 44 of the
Convention, the members of the Permanent Court of Arbitration were
to be chosen in the following manner:
17
The First Hague Convention of 1899 for the Pacific Settlement of I ntemational
Disputes defined the object of international arbitration as "the settlement of disputes
between States by judges of their own choice." See Rosenne, The World Court. What
it is and How it worlcs (4th ed. 1989) 8-9.
18
Cited in Lissitzyn, The International Court of Justice (1951) 50.
19
A "national judge" is, if course, not ipso facto one necessarily of the same
nationality as the appointing State.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 321
three years, but all members of the court would have the right to sit
at all sessions of the full court. 20
In this connection mention may be made, however, of the Geneva
General Act for the Pacific Settlement of International Disputes, which
entered into force on August 16, 1929. 21 This Act was drafted by the
Committee on Arbitration and Security of the League of Nations, at
the direction of the Assembly of the League, with the purpose of
promoting acceptance by States of the principle of all-inclusive
obligatory pacific settlement of disputes by means of an open
multilateral treaty.22 Chapter III of that Act deals with Arbitration.
Article 22 runs as follows:
The last sentence refers to the fact that residence in the territory of a
State and engagement in the service of a State have on occasion been
assimilated to nationality as a factor in the selection of judges.23
However, the parties may nominate a national as a member, the
drafting is permissive not mandatory. 24
20
See Hill, "National Judges in the Permanent Court of International Justice,"
in A .J.I.L. (1931) 670-83 at 670.
21
L.N.T.S. No. 2123, Vol. 93 at 343, and 25 A.J.I.L. (1931 ), Special
Supplement 204 et seq.
22
In the Memorandum of the British Government on accession to the treaty on
February 23, 1931, it was pointed out that during the war Britain had actually
concluded a treaty with Uruguay which provided in advance for an ultimate arbitral
judgment in all kinds of disputes without exception. G.B. Treaty Series. No.3 (1919)
Cmd. 150 and 25 A.J.I.L. (1931), Special Supplement at 219. This is illustrative of
the special nature of arbitration and adjudication in international Jaw referred to by
Wehberg, op. cit. (1918), .rupra, note 16.
13
See Hudson, International Tribunals, Past and Future ( 1944) 36.
24
An important example of this was the Washington Treaty of 1871 between
Great Britain and the United States by which the parties agreed to submit the
A Iaham a case to arbitration. The tribunal was composed of one national of each of
the two parties, together with three neutral members-nationals of Italy, Switzerland,
and Brazil. Rosenne, op. cit. ( 1989) 5.
322 THE REGULATION OF NATIONALITY
25
Known to common law lawyers as natural justice, it is also a generally
recognized principle taken from the canon law, which stipulates the impartiality and
lack of bias of a judge, a principle taken, in its turn, from the Roman Jaw.
26
A ctes er Documents de Ia deuxieme Conference Vol. II (LaHaye 1908) ]033,
quoted in Hill, op. cit. (1931) 670.
27
The draft convention for an International Prize Court, drawn up at the I 907
Conference, envisaged a court composed of fifteen judges, nine of whom would form
a quorum, eight to be always the judges of the eight great Nations, having more
interest in questions of war and prize. The purpose of the International Prize Court
was to hear appeals from courts of second instance on the Jaw of capture and prize.
Choate, The Two Hague Conferences (NY 1969) 68 et seq.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 323
28
An elaborate system was provided for challenge of the judges of the Central
American Court of Justice, 1907. See Hudson International Tribunals, Past and Future
(I 944) 47. It was set up under the Treaty of Washington, 1907, and in the ten years
it functioned five cases were tried by it. See II A .1./.L. (1917). this system collapsed
when at the first serious dispute the State condemned refused to accept the award. In
the draft convention relating to the creation of a Court of Arbitral Justice, annexed to
the first voeu of the Second Hague Conference, provision was made that a member
of the special delegation of three judges to deal summarily with minor cases could not
"exercise his duties when the Power which appointed him or of which he is a
national, is one of the parties." Proceedings of the Hague Peace Conferen ces Vol. I
at 361 , quoted in Hill, op. cit. (1931) 671.
29
"Documents Presented to the Committee Relating to Existing Plans for the
Establishment of a P.C.I.J." at 85; Hill, op. cit ( 1931) 671.
30
Such were the schemes proposed by the German and Italian Governments and
The Netherlands Commission. See Hill, foe. cit.
31
This arose already in 1907 where under Article 20 of the draft convention
relating to the creation of a Court of Arbitral Justice the parties were permitted to
increase the size of their delegations to five for a particular case and to nominate a
judge of the court to serve temporarily with the delegation. Hill, foe. cit.
324 THE REGULATION OF NATIONALITY
32
Proces-Verbaux of the Proceedings of the Committee of Jurists, June 16-July
24, 1920, at 528-29. See Chatterjee, "The Role of the Ad Hoc Judge in the I.C.J.,"
in 19 1.1./.L. (1979) 372-81.
33
In general international law tribunals are not bound by the municipal law
provisions of any State, even those common to the States parties before them.
Hudson, International Tribunals, Past and Future (1944) 103.
34
S ee Proces-Verbaux. of the Proceedings of the Committee of Jurists at 172 and
533-34; Hill, op. dt. ( 1931) 672.
35
See Earl Jowitt, Dictionary of English Law Vol. I (2d ed. by John Burke). An
example of this is shown in Article 7 of the 1936 Rules of the P .C.I.J. which
provides: "The President shall take steps to obtain a11 information which might be
helpful to the Ccurt in selecting technical assessors in each case." Article 9 of the
1978 Rules omits the word "technical," but provides for the appointment by the Court
of an assessor to sit with it for a particular case or advisory opinion without the right
to vote.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 325
36
See Chatterjee, op. cit. (1979) 13, and Stein, "Lawyers, Judges, and the
Making of a Transnational Constitution," in 75 A .1./.L. (1981) 2.
37
Article 23( I) of the Statutes of the Permanent Court and of the present
International Court provides that "The Court shall remain permanently in session
except during the judicial vacations, the dates and duration of which shall be fixed by
the Court." The Central American Court of Justice was "permanent" for ten years, but
was restricted to the States of Central America.
38
See Hudson, "The 24th Year of the World Court," for a critical presentation
of the Statute of the I.C.J. as compared with that of the P.C.I.J., in 40 A .J.l.L. (1946)
1-52.
39
Article 10(2) provides that the vote of the Security Council for the election
of judges shall be taken without any distinction between permanent and nonpermanent
members of the Security Council.
326 THE REGULATION OF NATIONALITY
40
This text was taken unchanged from the Statute of the P.C.I.J. and may be
compared with the narrower drafting of Article 105 of the Charter: "Representatives
of the Members of the United Nations and officials of the Organization sha11 · · ·
enjoy such privileges and immunities as are necessary for the independent exercise of
their functions in connection with the Organization."
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 327
One new clause appears in Article 3(2) of the Statute of the I.C.J.,
which did not exist in the Statute of the P.C.I.J. This provides that a
person who, for purposes of membership of 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. This paragraph was added to cover the case of a judge
from part of the British Commonwealth possessing British
nationality.44 It does also, however, correspond to the principle of
41
KeJsen, Law of the United Nations (1965) 473. KeJsen also argues that Article
2 of the Statute endangers the principle that nationality shall have no influence on the
eligibility of the judges because the country of the candidate for membership "is the
state whose national he is." Ibid. at 474.
42
That is to say, China, France, the Soviet Union, the United Kingdom, and the
United States. The Chinese Judge. Hsu Mo, died on June 28, 1956, two years before
the end of his term of office. The next Chinese Judge, V.K. Wellington Koo, was
appointed in 1958. He chose not to be reelected after 1966. One judge from the Soviet
Union, S.A. Golunsky, was appointed to the Court from February 6, 1952, and
resigned on July 25, 1953, never having appeared to take part in the work of the
Court. Rosenne, Documents on the lntemational Coutt of Ju stice (2d ed. 1979).
43
See, infra, text at note 94.
44
This was a fonn of dual nationality sui generi.f for persons in the British
Commonwealth outside the United Kingdom. See, on this point, Pollak, ''The
Eligibility of British Subjects as Judges of the P.C.I.J.," in 20 A .1./.L . (1926) 714 et
seq. Judges of British and Australian nationality have sat on the I.C.J. at the same
time, but there have, as of the end of 1993, been no cases of judges on the I.C.J.
possessing the nationality of more than one State. In the Gulf of Maine case, 1982
I.C.J. Reports 3, the Judge of French nationality, Judge Gros, was elected a Member
328 THE REGULATION OF NATIONALITY
of the first special Chamber to be formed by the Court, and continued to sit as judge,
as provided by Article 17(4) of the 1978 revised Rules of Court, even after the new
judge of French nationality was elected to the Court.
45
A State which is party to either the 1899 or 1907 Hague Convention for the
Pacific Settlement of Disputes may appoint up to four members of the Permanent
Court of Arbitration and these appointments are coJiectively referred to as its National
Group, though this expression first appears in the Statute of the P.C.I.J. See Golden,
"National Groups and the Nomination of Judges of the I.C.J.: A Preliminary Report."
9 lnt'l Lawyer (1975) 333-49.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 329
46
This reflects the changed status of the present Statute of the Intentional Court
as an integral part of the Charter. All members of the United Nations, plus
Switzerland, are parties to the Statute of the International Court.
47
Article 5(2) provides in its entirety: "No group may nominate more than four
persons, not more than two of whom shall be of their own nationality. In no case may
the number of candidates nominated by a group be more than double the number of
seats to be fi lied."
48
Golden, qp. cit. (1975) 345. Cf. the case of Judge Pathak of India. Having
served as a member of the ICJ in 1989-1990, he was nominated by the national group
of Ireland in 1990 and not that of India. He chose to withdraw from the Court. See
E. McWhinney and S. April, "The 1990 Triennial Elections to the ICJ and the 1989
Casual Election," 28 Canadian Y.B.I.L (1990) 403-16.
49
For this see Golden, op. cit. at 342. Every British Judge elected to the P.C.I.J.
and the I.C.J. has himself served as a member of the British national group.
sn See Kelsen, op. cit. (J 964) 468. Eagleton points out that these national groups
"have actually no organic consistency ... no address." Eagleton, "Choice of Judges
for the I.C.J.," 47 A .J.l.L. (1953) 462-64.
51
Baxter, in "The Procedures Employed in Connection with the U.S.
Nominations for the I.C.J. in 1960," 55 A.J.I.L. (1961) 445 et seq., gives an account
of how the U.S. national group functions.
330 THE REGULATION OF NATIONALITY
52
The word "contesting" was deleted from the 1945 text.
53
In the Customs Union Advisory Opinion [1931], P.C.I.J. Ser. AlB No. 41, at
88, the Permanent Coun for the first time denied a request by disputants to be
permitted to select an ad hoc judge, on the ground that the Austrian argwnents were
advanced by the German judge and Czech arguments by the French and Italian judges.
54
See P.C.JJ. Ser. E, No.4, at 74.
-
,
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 331
55
Article 71 of the 1931 Rules. Article 102(3) of the Rules of Court provides:
"When an advisory opinion is requested upon a legal question actual1y pending
between two or more States Article 31 of the Statute shall apply, as also the
provisions of these Rules concerning the application of that Article."
56
The reference to Article 27 of the Covenant, which was totally revised in
1945, is omitted from Article 31(4) of the 1946 Statute.
57
For example, Danzig appointed a German national as judge ad hoc in both the
Nationals in Danzig case, P.C.I.J. Ser. AlB No. 15, and the Polish War Vessels in
Danzig case, Ser. A/8 No. 43. In the Nottebohm case, Liechtenstein appointed a
Swiss national as a judge ad hoc, Professor Guggenheim. /.C.J. Repons 1955. Since
the institution of the Court up to July 1992, judges ad hoc have been chosen in 39
cases. In as many as twenty of these one or both did not hold the nationality of the
appointing party. In the North Sea Continental Shelf case. a Dane, S6rensen, was
chosen to represent Denmark and the Netherlands. Yearbook of the I. C.J. ( 1991-1992)
10-12.
58
The fonnula in Article 4 is: "I solemnly declare that I will perfonn my duties
and exercise my powers as judge honorably, faithfully, impartially, and
conscientiously."
332 THE REGULATION OF NATIONALITY
59
Judgment, India v. Pakistan, 1972 l.C.J. Reports 46.
60
See, for example, Lauterpacht, The Function of Law in the lntemational
Community (1933) 220-36, on the importance of the impartiality of judges, and
Jennings, in 30 B. Y .I.L. ( 1954) 517, on the irrelevance of nationality. Hambro submits
that ad hoc judges contribute in most cases very little to the Court, and divided
judgments diminish their authority. "The Function of the I.C.J. in the Framework of
the International Legal Order," in The United Nation.~. Ten Years Legal Progress (The
Hague, 1956) 92 et seq.
61
This was true already in the nineteenth century. In the A Iaska Boundary
arbitration the British judge cast his vote against the interests of his country. In the
I.C.J. i.a. Lord McNair, in the 1951 Anglo-Norwegian Fisheries case, and Judge
Basdevant, in the 1953 M inqhier.v and Ecrehos case, found against their own States.
Cf. Elias, New Horizons in International Law (1979) 71-86, especially 76-77. He
argues that national interests have prevailed in the Certain Expenses of the United
Nations case, 1962 I.C.J. Reports 151.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 333
For our purpose here it is, perhaps, most interesting to note that
the factor of nationality, with whatever that implies of political
influence, still exists in the nomination and appointment of judges to
the International Court. It is expressly stipulated in the Statute of the
Court that no two judges of the same nationality may sit on the bench.
However, it is not the case that a stateless person is ineligible for
appointment to the Court.65 ln the procedure for nominating candidates
62
Kelsen, The Law of the United Nations (1%5) 474.
63
See II Ro Suh, "National Judges in Advisory Proceedings of the I.C.J.," in 19
l.J.I.L. (1979) 20-41 at 21. In the W estern Sahara Ca.~e. Order of May 22, 1975, the
Court accepted the Moroccan request for appointment of an ad hoc judge to sit in the
proceedings on the ground that there "appeared" to be a legal dispute between
Morocco and Spain over the territory of Western Sahara. This is an extension of the
use of ad hoc judges.
64
Greece v. Turkey, Judgment December 19, 1978, 1978 l.C.J. Reports 3.
65
For the position, or lack of it, of stateless persons in the international civil
service, see, infra, this chapter, section 3.3 "Stateless Persons."
334 THE REGULATION OF NATIONALITY
67
See Deutsch, "A Plan for Reconstituting the International Court of Justice,''
in 49 A .B .A .1. No. 6 (I %3) 537-44. In so far as personal status, rights, and liabilities
may not be defined by United Nations citizenship the author proposes that each judge
and his spouse are to be deemed to have their national domicile at the seat of the
Court, or when retired, at the Judge's pennanent residence. This thesis has more
recently been propounded by the same author in An International Rule of Law
(Virginia, 1977).
68
See El-Erian, ..The International Court of Justice and the Concept of
Universality," in Essays in Honor of Oliver J. Lissitzyn, 19 Col. 1. Trans. Law (1981)
197-211. He notes that the drafting of art. 9 of the Statute of the Court differs from
that, e.g. , of art. 23 of the Charter which refers to the maintenance of an ''equitable
geographical distribution" in the election of the nonpermanent members of the
Security Council. See, too, Judge Jennings, present President of the Court, ''The
Internal Judicia) Practice of the International Court of Justice," in 59 B . Y .I.L. (1988)
31 at 35: "if the Court is to speak with the authority of a world court-and this is
essentially a question of authority-it must itself be a world court.··
336 THE REGULATION OF NATIONALITY
69
Cf. infra p. 321. The nationality of a Judge on the ICJ has thus become more,
not less, important.
71
By General Assembly Resolution 174(11). This was the resolution
recommended by the Sixth Committee of the Assembly.
71
This is the number as of December, 1993.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 337
"Each Member may nominate for election not more than four
candidates, of whom two may be nationals of the nominating
State and two nationals of other States."
The members are elected for five years. They are eligible for
reelection (Article 10).
There are a number of references to nationality in the procedure
for election to the Commission. Paragraphs 2 and 3 of Article 2
provide as follows:
72
Statute of the International Law Commission, UN Doc. A/CN.4/Rev.l Sales
No. J949.V.5 Comprehemdve Handbook of the UN VoL I, compiled and edited by
Min-Chuan Ku, at. 312-16 (NY 1978). Cf. Elias, op. cit (1979) 79.
338 THE REGULATION OF NATIONALITY
73
For a criticism of these elections, as being too influenced by group, that is,
regional, considerations. see Saunders, "The J97 J Elections to the I.L.C. A
Comment," 66/.J.l.L. (1972) 356. Similarly, for the International Court, .ree the Note
by Rosenne, ''The 1981 Occasional Election to Two Vacancies on the International
Court of Justice," in 75 A .J.I.L. (1981) 349 et seq.
74
Only one member of the Commission supported the Afghan demand. See the
Note by Stephen M. Schwebel, himself then a member of the Commission, "The 32nd
Session of the I.L.C.," in 74 A .J.l.L. (1980) 961.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 339
75
Article II( I) of the Statute. For the text of the Statute see 19 l.L .M . (1980)
958 et seq.
76
In the Statutes of both the Administrative Tribunal of the I.L.O. and the UN
Administrative Tribunal, provision is likewise made that all the members, and deputy
members in the case of the I.L.O. Tribunal, shall be of different nationalities. See
Akehurst, The Law Governing Employment in International Organizations ( 1967) 13
et seq.
77
The United Nations Convention on the Law of the Sea, 1982, A/CONF.
611122 of October 7, 1982, is reprinted in 21 l.L .M. 1261 (1982).
340 THE REGULATION OF NATIONALITY
the Law of the Sea which began its deliberations in 1973, and
constitutes one of the most comprehensive pieces of codification and
law-making undertaken by international conference. It comprises
seventeen Parts, divided into three hundred and twenty Articles, and
eight Annexes. The Convention covers almost the entire law of the
sea, including the regime of the high seas, here called the Area which
78
with its resources "are the common heritage of mankind." It provides
for the establishment of a new permanent organization, the Authority,
as well as the disputes Tribunal. The jurisdiction of the Tribunal
covers a number of categories of disputes as laid down in Article 187
of the draft Convention. These include acts of the Authority alleged
to be in excess of jurisdiction or a misuse of power.
The Statute of the Tribunal is contained in Annex VI of the
Convention. It shall be composed of twenty-one "independent
members" (Article 2( 1)) who shall be elected for nine years and may
be reelected (Article 5). Article 4 provides that each State Party may
nominate not more than two persons having the qualifications
prescribed in Article 2,79 and the election of the members shall be held
at a meeting of the States Parties convened by the Secretary-General
of the United Nations. As in the International Court, the members of
the Tribunal shall enjoy diplomatic privileges and immunities (Article
I 0) and each one shall, before taking up his duties, make a solemn
declaration in open session that he will exercise his powers impartially
and conscientiously (Article 11 ).
Article 3, paragraph 1, of the Statute provides, in the same manner
as in the other judicial bodies noted here, that the members of the
Tribunal shall be of different nationalities and "a person who for the
purpose of membership in the Tribunal 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." Furthermore,
Article 17 of the Statute reproduces, with no substantial differences,
the wording of Article 31 of the Statute of the International Court
providing for the institution of ad hoc judges. Parties to a dispute are
thus empowered to choose a person to participate as a member of the
Tribunal if one, or both, of the parties does not have a member of its
78
Article 137, in Section 2, entitled "Principles Governing the Area.''
79
Article 2( 1) lays down that the members shall be "persons enjoying the
highest reputation for fairness and integrity and of recognized competence in the field
of the law of the sea."
~- --
80
S ee, supra, p. 215.
342 THE REGULATION OF NATIONALITY
81
The constitution of the Court is to be found in Part IV of the Convention and
in the Rules of Procedure adopted by the Court under ArticJe 55 on September 18,
1959. (1958-1959) Yearbook of the European Community 2, and Bowett, The Law
of lntemationalln.~titutions (3d ed., London, 1975) 262 et seq.
82
The present European Court took over most of its predecessor's personnel, its
localities, the greater part of its members, and the nearly forty cases that were pending
before it. See Donner, "The Court of Justice of the European Communities," in Legal
Problems of the European Economic Community and the Free Trade A s.wciation,
I.C.L.Q. Supplementary Public. No. 1 (1961) at 66.
83
Signed in Rome on March 25, 1957. 298 U.N.T.S . II. ArticJes 165 and 166
of the Treaty have been amended as the number of members has risen from the
original six to twelve. The Court of First Instance attached to the Court pursuant to
the Council Decision of October 24, 1988, consists of twelve members. Official
Journal 1989, No. C 215/1.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 343
It continues:
2.6.2 Conclusions
84
"Reflections on the Future Development of the Community Judicial System"
by the Court of First Instance of the European Communities, 16 E.L .R.3 (1991) 175
at J78.
85
See Plender. "The European Court as an International Tribunal," in 42 C.L .J.
(1983) 279. The characterization of European Community law as "its own legal
system" is from Case 6/64, Costa v. ENEL, [1964] E.C.R . 585 at 593.
344 THE REGULATION OF NATIONALITY
86
A voluntary change of nationality effected by a judge on an international court
is another matter, subject, for example, to the bar on two nationals of the same
country sitting on the bench. The point here made is simply that States cannot
unilaterally alter the national status of a judge during his period of service on an
international tribunal.
87
Cf., supra, this chapter, section 2.3.5 "The Nationality Factor."
88
Article 2 provides: "The action of the League under this Covenant shall be
effected through the instrumentality of an Assembly and of a Council with a
permanent Secretariat." Article 6( 1) of the Covenant provides: "The permanent
Secretariat shall be established at the Seat of the League."
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 345
89
See, supra, this chapter, the text beginning at note 13.
90
See Meron, "Status and Independence of the International Civil Servant," in
167 Recueil des Cour.~ (1980-11) 285- 384 at 295. Ratshofen-Wertheimer also refers
to an international civil service in his monograph The International Secretariat (1945)
279 et seq.
91
Meron, op. cit. (1980) 295.
92
See Bastid, "Le Statut Juridique des Fonctionnaires de l'O.N.U./' in The
United Nations. Ten Years Legal Progress (The Hague, 1956) 145-65. See al.so
lnstitut d'A griculture v. Profili, Cour de Cassation, Italy, A.D. 1929-1930, Case No.
254. The Italian courts declined jurisdiction over disputes between the staff and the
international institute of agriculture. Cf. A .P.F. Eckhardt v. European Organization for
the Safety of Air Navigation (Eurocontrol), Local Court of Sittard, June 25, 1976, in
9 NY /L (1978) 276. The Dutch court claimed jurisdiction, but held that the
relationship was not governed by Dutch civil labor law.
93
For a description of the classification of staff in the League Secretariat and the
International Labor Office at Geneva, see Ratshofen-Wertheimer, op. cit. (1945) 297
et seq. The League Secretariat was divided into three classes, the first, second, and
third divisions. Each class had its own qualification for recruitment. "Considerations
- I"
The General Service category of staff at the United Nations are not,
for example, subject to geographical distribution.
of nationality played a very minor role in the Second Division and none at all in the
Third." Ibid. at 355.
94
This provision was absent from the League Covenant, in which no mention
is made of the national composition of the Secretariat. One amendment to the Draft
of the Covenant originating from Spain, a neutral power, proposed that "So far as
possible, the Secretariats and the personnel shall belong to different nationalities." See
Ratshofen-Wertheimer, op. cit. (1945) 351. quoting Miller, My Diary at the
Conference of Paris Vol. VII, Doc. 576, at 89. This provision was first incJuded in
the Constitution of the Food and Agriculture Organization signed at Quebec October
16, 1945, art. VIII para. 3.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 347
95
U.N.J. Y. (1973) 167.
96
1989 I.C.J. Reports 177.
97
Ibid., para. 43.
348 THE REGULATION OF NATIONALITY
3. 1. 1 Recruitment-Independence
98
Ibid., paras. 51 and 52.
99
Opinion of November 29, 1952, 7 UN G.A .O.R . 2 Annexes (Agenda Item 75)
27, UN Doc. A/2364 (1953 ). Quoted in Meron "In re R osescu and the Independence
of the International Civil Service," 75 A .J.I.L. (1981) 910.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 349
Meron refers to the fact that the legislative history of the Charter
contains no clarification of what is meant by "geographical basisn and
he suggests that the simplest, and probably the most plausible,
interpretation of this term would be that the Founding Fathers desired
the widest possible "representation" of nationalities in the
Secretariat. 101 Ratshofen-Wertheimer has pointed to the fact that
between the years 1920-1940 the composition of the Secretariat was
"overwhelmingly European, and ... too little was done to correct this
state of affairs." 101 In keeping with the universal character of the
United Nations Organization, attempts were early made to recruit from
as many countries as possible. Already by December 31, 1949, the
Secretariat comprised nationals of 55 of the 59 Member States.103
The principle of geographical distribution has been progressively
clarified since the establishment of the Organization. By Resolution
153(11) adopted on November 15, 1947, the General Assembly
requested the Secretary-General to examine the recruitment policy
previously followed, with a view to improving the geographical
distribution of the staff and to report to the next regular session of the
General Assembly on the action he had taken in this regard. 104 In
1948, the Secretary-General stated, ex cathedra, that the cardinal
principle of geographical distribution did not mean that nationals of
a particular nation should have a specified number of posts at a
particular grade or grades, or that they should receive a particular
percentage of the total outlay in salaries. Instead, a weighted system
was worked out, based primarily on the Member's contribution to the
budget of the United Nations, while allowing a national minimum
100
For the application of this paragraph ue, in particular, Bailey, The Secretariat
of the United Nations (rev. ed. 1964), Meron, The United Nations Secretariat. The
Rule.~ and The Practice (Lexington, 1977), and Meron, "Staff of The United Nations
Secretariat: Problems and Directions," in 70 A .1./.L. (1976) 659-93.
101
Meron, op. cit. (1976) at 661 .
102
Ratshofen-Wertheimer, op. cit. (1945) at 358. In his discussion of the
nationality distribution among the staff of Geneva, he provides a table showing the
years of admission, and cessation, of membership of the League, and the number of
officials employed in 1920, 1930, and 1938. He cited, inter alia, the position of India,
which had only three officials in the First Division in 1938.
103
United Nations Yearbook 1948-/949 at 162.
••• Ibid. at 161.
""""
350 THE REGULATION OF NATIONALITY
quota of four. 105 In 1958, the Secretary-General began to use the term
"desirable range of posts" in tables showing the nationality and the
number of staff in posts subject to geographical distribution. In I 961,
the Committee of Experts on the Review of the Activities and
Organization of the Secretariat presented its report. The Soviet
member of the Committee favored a revision of the entire staff on the
Secretariat so that the main group of States be represented on it on an
equal footing.''' In the event, such "regional" representation was not
accepted. The Secretary-General presented a compromise report which
served as a basis for the General Assembly resolution adopted during
its 17th session, in 1962, and this, together with other resolutions
superimposed on it, still forms the system."' The principle of
geographical distribution is expressed in desirable ranges, taking into
account the budget contributions and populations of Members, and
other factors such as a linguistic and cultural balance, the number of
women employed, and due account being taken of employment of
nationals of the developing countries. When the General Assembly
approved these proposals for allocating staff it was specifically stated
that
115
Meron, op. cit. (1976) 663. The principle of the equality of States was not
forgotten in this connection. When the principle of geographical distribution was
discussed in the General Assembly Fifth Committee in 1961, Venezuela proposed. •
with the support of Bunna. that ..each Member State, whether large or small. rich or
poor, should be a~signed a substantial minimum number of ~15--Uy 10." Quoted
by Meron op. cit. (1977) 81.
116
This was the Troika principle, primarily intended to act as a permanent veto
in the event of an international force being established. See Bailey, op. cit. ()964)
121.
,., In his discussion of this system. Meron states that merit ..which according to
the Charter was to be paramount appears to have been relegated to a secondary role...
Op. cit. (1976) 666. To counteract this demotion of the principle of merit Secretary-
General U Thant referred in a speech to his ..intention to emure that the principle of
geographical distribution remains relevant only to staff recruitment. It cannot and wilt
not play any role in the proces5e5 of promotion or placement." Meron. ""Status and
Independence ofthe International Civil Servant." 167 Ruu~il d~1 CouTJ (1980-11) 300
at 307.
•• Bailey, op. cit. ( 1964) 82.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS
351
The
. national status. of international
. . officials
. is thus a sz'n e qua non &aor
h1s or _her recru~tment. This Is m keeping with the view that
intern~t•o.nal officials do not serve a "super-State" but an international
orgamzation composed of member States. The point has been made
by national representatives, and also by the Secretary-General, and the
Fifth Committee of the United Nations, in his Report, in I 952, on the
implications of the U.S. Immigration and Nationality Act of 1952 for
U.N. staff members with permanent residence status in the United
States. It was there stated:
It has also been pointed out that any departure from the relatively firm
criterion of nationality creates room for arbitrariness and bias. 110
The relationship between the criteria of nationality and of
geographical distribution, and the extent to which the principle of
geographical representation is accepted in United Nations practice,
were both the subject of a legal opinion given by the Legal Counsel
of the Secretariat on January 4, 1974. This is contained in a
Memorandum to the Director, Division of Human Rights, in reply to
his question whether a change of governmental affiliation or
nationality of an expert would affect his membership in the Ad Hoc
111
working group of experts of the Commission on Human RightS.
Legal Counsel noted that when the present members of the Working
Group were appointed on April 3, 1973, "there was an indication of
their nationality." The opinion then continues:
8 UN G.A .O.R. Annexes, Agenda Item No. 51 at 45, UN Doc. A/2615 • para.
109
In the present case the geographical pattern was not altered so there
was no doubt that the two experts concerned could continue to serve
as members of the Working Group.
Whereas in classical international law individuals served
organizations of States as representatives of those States, the principle
now applied is that of geographical representation. This may be
regional as much as national. It must be stressed, however, that this
opinion was concerned with the employment of experts, chosen on the
basis of their personal qualifications, working in an Ad Hoc group. 112
The national status of an international official being of importance,
even if only as evidence of geographical distribution at the time of
recruitment, it may be asked who determines the national status of
such officials? Is the matter entirely within the discretion of the
Member States, that is to say subject only to the relevant municipal
laws and regulations, or has the United Nations Organization created
new law on the subject? The problems are of the same nature as those
connected with the election of judges to international courts, but with
112
Ibid. at 166. The relevant resolutions and decisions refer to "non-
governmental experts," ..individual experts," and "Groups of Experts composed of
eminent jurists and prison officials."
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 353
113
See Meron, op. cit. (1976) 673.
114
32 J.L .R. 513. It may be noted that this is a leading case on the subject,
together with the Julhiard case. Two similar cases came before the Court of Justice
of the European Communities in 1975, see, supra, pp. 205-06. Cf. Taylor Ungaro v.
F.A .0. of the UN (1970), infra, this chapter, note I 37.
354 THE REGULATION OF NATIONALITY
115
Judgment No. 62 (Julhiard) of the UN Tribunal 1955, 1-70 U.N.A .T. 348-49.
See Akehurst, The Law Governing Employment in International Organizations (1967)
138.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 355
116
See Ratshofen-Wertheimer, op. cit. (1945) 363. Nationals of non-member
States were also employed on the staff at Geneva.
117
UN Yearbook 1948-1949 at 910.
118
Meron, op. cit. (1976) 672.
119
UN Yearbook 1978 at 1232.
1211
Whiteman, Digest of lntemational Law Vol. 8 (1967) 336.
356 THE REGULATION OF NATIONALITY
an Opinion given in 1961, that neither the Charter n~r ~~e resolutions
of the General Assembly contained any legal proh1b1t1ons on such
employment. Staff Regulation 4.3 provides that selection of staff
members shall be made, in accordance with the Charter "without
distinction as to race, sex, or religion," but no reference is made to
any distinction on grounds of nationality. Hence, the employment of
stateless persons remains an anomaly and adds further urgency to the
need to eradicate this lack of status by the efforts of the international
community.
121
1975 UN Doc. AT/PV. 124 at 38. See Meron, op. cit. (1976) at 669. The
Tribunal did not consider the matter of nationality in its judgment, but held that the
conversion of a fixed-term appointment into a permanent one was not a promotion.
122 Ad . . . T n"buna1, Judgment No. 181, April 19, 1974. Meron, op. cit.
mmtstrattve
(1976) 676.
.,
In accordance with this principle the staff member has certain legal
rights if in the circumstances of the case, on the basis of an individual
commitment, he could reasonably expect to remain in the service of
the United Nations.
Cases have arisen where the competence of the Secretary-General
in retaining staff has been in effect questioned, not by the individual
concerned, but by the State of his nationality. Ratshofen-Wertheimer
refers to cases where members of the staff lost their nationality
officially or for all practical purposes. 124 In the latter case, they
remained on the Staff List under their old nationality. In the first case
"considerable complications arose." He gives as an example the
position of Austrian officials after the annexation of Austria by
Germany in 1938. Two who had accepted German passports were
listed as German, ex-Austrian; two who had refused German passports
or had been deprived of their nationality by the Third Reich were
listed as "Former Austrian-situation not defined," in 1938; as
stateless, in 1939.
In view of this, an Opinion of the Legal Counsel, given in 1955,
is particularly interesting. At that time, foHowing pressures from a
certain government, the Legal Counsel of the U.N. was asked for his
opinion about, first, the nationality status of certain staff members who
had ceased to be personae gratae with their governments. Legal
Counsel was of the view that since nationality was a legal question
governed by the applicable national law, unless the Secretariat was
satisfied that a nationality had been lost, the presumption would be
that it had been retained. No account should be taken for the purpose
of listing a staff member's nationality on the staff lists of the fact that
he may have ceased to enjoy his government's protection through the
withdrawal or nonrenewal of a passport. 125 It may be asked whether
this is not tantamount to a nonrecognition of withdrawal of nationality
or, alternatively, that States are under a duty to honor the national
123
Meron, op. cit. (J 980) 366. He lists cases, in some of which compensation
has been awarded.
124
Op. cit. at 363. These occurred with the rise of the totalitarian regimes
leading up to the outbreak of the Second World War.
125
Meron, np. cit. (1976) 685.
..
358 THE REGULATION OF NATIONALITY
status of their nationals who are employed in the Uni ted Nations
. . Jl(i
0 rgamzatwn.
Pressure has at times been exerted on international officials by
their national governments. An Italian law of 1une 16, 1927, required,
inter alia, that Italian nationals desirous of entering the service of a
public international agency abandon such service upon the order of the
govemment. 127 The first Secretary-General of the U.N., Trygve Lie,
was approached on more than one occasion by representatives
demanding the dismissal of certain of their nationals from the U.N.
staff. 128 He informed them that the staff having done nothing amiss it
129
was none of their affair. Other instances occur. Legal Counsel has
always maintained the exclusively international responsibilities of the
Secretary-General under Articles I 00 and I 01 in the appointment of
staff members and particularly that, legally, promotion must be based
on merit alone.130 Though nationality is a factor in the personnel
policy of the U.N. Organization this does not mean that States may
influence the choice of individual candidates possessing their
nationality. 131
From this it may be concluded that where the national status of an
international civil servant is in doubt as between the Secretary-General
and the State of the purported nationality, the opinion of the
Secretary-General must be decisive, at least for the purpose of
It may be noted that the People's Republic of China has not tried to oust
tu;
from the Secretariat members of the staff appointed during Taiwan's representation
in the UN, but has regarded all of them as "Chinese" with the right of entry to
mainland China and to passports of the People' s Republic of China. Meron, op. cit.
(1976) 670 at note 30.
127
Raccolta delle Leggi d'Jtalia 1927, Vol. II at 5932. S ee Ratshofen-
Wertheimer, op. cit. ( 1945) 245-46. This was the only law of its kind passed during
the time of the League. Italy ceased to be a Member in 1939. The Nazi Government
in Germany put pressure on international officials of German nationality to return
"voluntarily."
128
T rygve L 1e,
' I n the Cause of Peace (NY 1954) 394. After the coup In
·
Czechoslovakia, in 1948, the representative of the new government handed the
Secretary-General a list of the names of those who were in disfavor in Prague.
129
For the difficulties caused by the "cJearance" procedure required in the
United States from 1952 on, see Meron, op. cit. (1980) 316 et seq.
130
Ibid. at 306 and 319-20. See the reference to Staff Regulations I. I:
"Members of the Secretariat are international civil servants. Their responsibilities are
not national but exclusively international."
13 1
Akehurst, op. cit. ( 1967) 6.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 359
IJl The Soviet Union has maintained that it rests with a Member State to decide
whether or not a given person was one of its nationals and whether or not he or she
was qualified to represent it in the Secretariat. See Meron, op. cit. (1977) 28.
JJJ Levcik v. Secretary -General of the UN, U.N.A.T. Judgment No. 192, October
II, 1974. U.N.J. Y . 1974 at 119-21. The Tribunal observed that "temporary
secondment" was formally recognized by Staff Rule 104.12(b).
134
For a criticism of the Secretary-General's agreement in practice to limit the
appointments of all nationals of the former Soviet Union and other East European
countries, not including Yugoslavia, to fixed-term appointments on the basis of
secondment, see Meron, op. cit. ( 1980) 320-21.
JJs See Meron, '"Exclusive Preserves' and the New Soviet Policy Toward the
UN Secretariat," in 85 A.J.I.L. (1991) 322-29.
..
360 THE REGULATION OF NATIONALITY
136
Ibid. See also Knox' case report of Qiu v. Secretary-General of the United
Nations, Judgment No. 482, UN Doc. AT/DEC/482 U.N.A.T., May 25, 1990, in 85
A .1./.L. (1991) 686-89.
137
Judgment No. 335 (May 8, 1978) U.N.J.Y . (1978) 143-44. The Tribunal
noted that the second and third paragraphs of that article left the matter to the
discretion of the competent authority and that decisions taken by virtue of those
provisions could not be quashed unless tainted with certain well-defined flaws. Cf.
Taylor Ungaro v. F.A .0 . of the UN, Judgment No. 167 (November 17, I970).
. e
U.N .J. Y. ( 1970) 162-63. The complainant lost her "non-local" status on her marna_g
to an Italian national even though she retained her Irish nationality in conformity wtth
the Irish Nationality and Citizenship Act, 1956 (No. 26).
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 361
138
It is also clear that this law prevails over the staff member's "right to change
his nationality" (Article 15 of the Universal Declaration of Human Rights). See
Fischman v. Secretary-General of the United Nations, U.N.A.T. Judgment No. 326 (17
May 1984) U.N.J.Y. (1984) 145, and Wahie v. International BankforReconstmction
and Development, World Bank Administrative Tribunal Decision No. 93 (25 May
1990), 1990 U.N.J.Y. (1993) 248.
139
C.f. Section I of the Convention on the Privileges and Immunities of the UN,
1946: "The United Nations shall possess juridical personality."
362 THE REGULATION OF NATIONALITY
Having established the fact of the legal capacity of the U.N. and
the specialized agencies, jurists debated the source and scope of this
capacity. It was argued by some that the organization possessed only
140
In particular, under Articles 57 and 63 and under Articles 75, 77, 79, 83, and
85 on trusteeship matters, and under Article 66 (2) on matters of economic and social
concern. See, in general, Weissberg, The lntemational Status of the United Nations
(1%1) 10 et seq. See also Higgins, The Development of lntemational Law Through
the Political Org(Du of the United Nations (1%3). She writes, at p. 242: "As a matter
of practice, it can now be shown with ease that the capacity of international
organizations to conclude treaties has been confirmed beyond doubt." Cf. Parry, "The
Treaty-Making Power of the UN," in 26 B . Y .I.L. (1949) 108. He points out that under
the League of Nations reference to international legal personality did not usually
involve discussions as to treaty making power. Nowhere in the Covenant is the
League called "an organization."
141
Such as "are necessary for the fulfillment of its purposes." These apply "in
the territory of each of its Members." See also the Convention on the Privileges and
Immunities of the United Nations, 1946, 1 UNTS 15-32, and the Convention on the
Privileges and Immunities of the Specialized Agencies, 1947, 33 UNTS 261-302. The
property and assets of the UN enjoy immunity from every form of legal process,
unless the immunity is expressly waived.
142
Article 77(1)(c) provides that the UN Trusteeship system shall apply to
"territories voluntarily placed under the system by States responsible for their
administration." Under the United Nations-U.S.A. Headquarters Agreement, s. 8, the
Organization has power to lay down regulations "operative within the headquarters
district for the purpose of establishing therein conditions in all respects necessary for
the full execution of its functions." These regulations override local law.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 363
143
Kelsen, "General International Law and the Law of the United Nations," in
The United Nations. Ten Years Legal Progress (1956) 1-16.
144
For example, Jenks, ''The Legal Personality of International Organizations,"
in 28 B.Y.I.L. (1945) 267.
145
Conditions of Admission of a State to Membership in the United Nations
(Art. 4 of the Charter). Advisory Opinion of May 28, 1948, 1948 /.C.J. Reports 61
at 68. In answer to a request from the General Assembly, the Court advised that a
State, in voting upon an application for admission to membership of the UN, was not
legally entitled to make its vote dependent on conditions other than those enumerated
in art. 4(1 ).
J4fl
1949 /. C.J. Repom 174.
147
These began when the U.S. Consul-General in Jerusalem, a Member of the
UN Truce Commission, was shot and killed in that city May 23-24, 1948. On
September 17, 1948, the UN Mediator in Palestine, Count Folke Bemadotte, was
killed in Jerusalem by members of the terrorist organization the Stem Gang. Some
eight other UN agents were killed or injured during the hostilities between Jews and
Arabs.
364 THE REGULATION OF NATIONALITY
and
148
1949 I.C.J. Reports )80.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 365
On this point the Court concluded that the Organization has the
capacity to bring a claim on the international plane, to negotiate, to
conclude a special agreement, and to prosecute a claim before an
international tribunal. It also has the capacity to claim adequate
reparation, and that, in assessing this reparation, it is authorized to
include the damage suffered by the victim or by persons entitled
through him. In this way, the Organization is not restricted to claiming
reparations for damage due only to itself.150 The word agent is
understood as
149
Ibid. at ) 82. The Court here cited the I.L.O. Advisory Opinion of 1926, Ser.
B, No. J3 at 18.
150
As was argued by Judge Krylov in his Dissenting Opinion. He contended that
the Court was not entitled to create a new right of functional protection which is
unknown in existing international law.
151
Ibid. at 177.
151
Ibid. at 195.
- J
The Court advised that the U.N. has a legal personality with the
capacity to bring an international claim against a State responsible for
injury caused to one of its agents in the performance of his duties. It
was also of the opinion that the Organization could bring a claim
when the defendant State is not a Member of the U.N. The
Organization has objective legal capacity erga ommes on the ground
that
It was pointed out that the Court was here faced with a new situation.
Thus the Organization's assumption of the right to bring
international claims would not result in competition between the
State's right of diplomatic protection and the Organization's right of
functional protection, because "[i]ntemational tribunals are already
familiar with the problem of a claim in which two or more national
153
Ibid. at 185.
154
Ibid. at 182.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 367
. t d ,155 d . .
States are mteres e , an tt ts an accepted principle in the practice
of such tribunals that the defendant State cannot be compelled to pay
the reparations due twice over.
The Court then asked what the position would be in a case where
the agent was a national of the defendant State. Here the Court relied
on the new situation to depart from the traditional rules:
155
Ibid. at J86.
156
Ibid. at 186.
157
Lauterpacht, The Development of lntemaJionaJ Law by the International
Coun (1958) 179. Lauterpacht argues that while the Court's opinion in the
Reparations case is of the character of judicial legislation, it is at the same time an
"authoritative ascertainment" of changes in the Jaw which had actually taken place.
Cf. Lissitzyn who points out that where, as here, the Court is dealing with a
noncontentious matter, the presentation of arguments is one-sided. He referred to the
argument of the Greek delegate in the sixth Committee of the General Assembly, in
December 1948, that such legal capacity of the Organization should be denied. Op.
cit. 0951) 178 et seq.
158
Panevezys-Salduti.fkis Railway case. P.C.I.J. Ser. AlB No. 76 (1939) at 16.
368 THE REGULATION OF NATIONALITY
159
1n resolution 365(1V) ofDecember I, 1949, the General Assembly authorized
the Secretary-General to act in accordance with the procedure outlined in this
proposal. At its 7th session, the G.A. recommended, once more, by resolution
690(VII) of December 21, 1952, that these international claims for reparation be
settled by the procedures envisaged in resolution 365(1V). See a legal opinion of the
Secretariat of the UN of August 14, 1974, in reply to an inquiry by the Permanent
Representa~ive of a Member State: ."Comments on the Question of the Responsibility
of States with regard to the ReparatiOn for Injuries Incurred by Agents of International
Organizations, in Particular the UN," U.N.J.Y. (1974) 142-44.
160
Ibid.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 369
161
"All Members shall give the UN every assistance in any action it takes in
accordance with the present Charter...."
ltil Ibid. For a full account of the case see League of Nations Official Journal
(1924) 524.
163
See Judge Jessup's comment in the Barcelona Traction case, supra, pp.
71-72.
370 THE REGULATION OF NATIONALITY
1 4
~ Cf. the Merge case, supra pp. 338-39.
165
That the powers of the Secretary-General are subjected to law was stated in
the Advisory Opinion of the International Court of Justice of July 13, 1954, on Effect
of A ward.f of Compensation made by the U.N. Administrative Tribunal. 1954 J.C.J.
Reports 41. The Court understood the U.N. to be an "organized legal system" and
stated that the Secretary-General "engages the legal responsibility of the Organization,
which ~s the judici.al .person on whose behalf he acts." Ibid. at 53. Cf. the position of
t~e H~gh Comm1ss1oner for Refugees whose capacity to protect refugees is
discretionary, Grahl-Madsen, The Status of Refugees in International L v 0 1 Ill
Chap. 12. aw • '
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 371
11111
See U.N. Legislative Series, Lef?islative Texts and Treaty Provisions
concerning the Legal Status, Privileges and lmmunitin of International Organizations.
Vol. II (ST/LEG/SER. B/1 1). for texts of Headquarters Agreements.
167
In U.N.J.Y . (1971) 215-18.
168
Ibid. at 218.
372 THE REGULATION OF NATIONALITY
169
See Weis, "The International Protection of Refugees," 48 A .1./.L. (1954), and
Grahl-Madsen, op. cit. Vol. I (Leyden 1966) and Vol. II (Leiden 1972). Agreement
concerning the Functions of the Representative of the League of Nations High
Commissioner for Refugees, 93 L.N.T.S. 377.
170 c . . h s
onvenllon concerntng t e latus of Refugees coming from Germany. 192
L.N.T.S. 59.
171
159 L.N.T.S. 3663.
171
Sadruddin Aga Khan, "Legal Problems Relating to Refugees and Displaced
Persons," in 149 Recueil de.r Cours (1976-1) 287-352.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 373
173
In 18 U .N. T .S. 3.
174
A/Res./319 (IV) and AIRES/428 (V). Grahl -Madsen, op. cit. (1966) Vol. I
at 18.
175
Ibid. at 56. Grahi-Madsen notes that the first High Commissioner's Office
was established out of a feeling of necessity and was not based on the Covenant of
the League of Nations. Cf. the present office, infra, this chapter, section 4.3.3 "The
1951 Convention and the United Nations High Commissioner for Refugees.".
m; Ibid. at 18 and 262.
177 189 U.N. T.S. I 37.
374 THE REGULATION OF NATIONALITY
The 1951 Convention establishes, for the first time, a formal link
between the international organ for the protection of refugees and the
international instrument regulating their status. Article 35, paragraph
1, of the Convention provides:
178
The Protocol amended the two restrictions in the Convention limiting its
application to "events occurring before 1 January 1951" and to events occurring "in
Europe and elsewhere." The desirability of States acceding to these instruments has
been underlined in successive recommendations of the Executive Committee of the
High Commission's Program and in various resolutions of the General Assembly. In
its resolution 46/1()6 of December 16, 1991, the General Assembly noted "with
satisfaction that one hundred and nine States are now parties to the 1951 Convention
and/or the 1967 Protocol relating to the Status of Refugees." Yet, it still reaffirmed
the need for States to cooperate with the Office of the UNHCR in fulfilling its
function of providing international protection "in particular by acceding to and
effectively implementing the relevant international and regional refugee instruments."
45 UN Yearbook (1991) 703.
179
Those persons who have "a well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group or political
opinion, and are unwilling or unable to avail themselves of the protection of . . . the
country of habitual residence."
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 375
180
Exclusion clauses refer to those receiving protection and assistance from other
U.N. organs or agencies, to crimes against humanity coming under Article VI of the
Charter of the International Military Tribunal or to cases of prosecution under Article
14(2) of the Universal Declaration of Human Rights arising from nonpolitical crimes
or from acts contrary to the purposes and principles of the U.N. See Sadruddin Aga
Khan, np. cit. (1976) 298-99.
181
Op. cit. Vol. I. (1966) 77. The problem of eligibility for refugee status is of
fundamental importance for the work of the High Commissioner. See np. cit. 329 et
seq.
In a statement, the High Commissioner has stressed that "the position of d~
181
jllre stateless persons was especially precarious since they might not be in a position
to receive any legal protection, either in their country of habitual residence or outside
it." G.A. XXVII Suppl. No. 12A (A/8712) Add 1.
376 THE REGULATION OF NATIONALITY
183
G.A. XXVI Suppl. No. 12 (A/8412). Chapter I. International Protection of
Refugees.
184
Ibid. See G.A. Resol. 1959 (XVIII) of 1963.
185
Th'IS consoI'd
1 ales and tmproves
. upon earlier provisions. Among these must
be noted the London Agreement relating to the Issue of Travel Documents to
Refugees who are the Concern of the Intergovernmental Committee on Refugees, of
October 15, 1946 (II UNTS 73), which was designed to replace the pre-war
Arrangements relating to Nansen passports. Grahl-Madsen points out that the London
Agreement still plays a role in countries which have not acceded to the 1951
Convention. Op. cit. (1966) 33. It must be remembered that a passport is an identity
document for travel purposes, and may be certified as well by a nonnational State as
by a national. O'Connell, International Law Vol. II (1970) 691.
-
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 377
186
G.A. XXVII Suppl. No. 12A (A/8712) Add. Ill.
187
Grahi-Madsen, op. cit. Vol. I at 329-30.
188
See van Kreiken, "The High Commissioner for Refugees and Stateless
Persons," in 26 NYIL (1979) 24-36.
189
In Vol. Ill, "Protection," Chap. XII. See Vol. I at 8. See also Hathaway, "The
Evolution of Refugee Status in International Law: 1920-1950," in 33/.C.L.Q. (1984)
348-80.
190
Op. cit. Vol. I at 55-56.
378 THE REGULATION OF NATIONALITY
191
Sadruddin Aga Khan, op. cit. (1976) at 314. So, too, in the U.N. Convention
on the Redu~ti~n of Statelessness, 1961, States were not willing to allow individuals
access even md1rectly to a specially established international tribunal for the decision
of their claims to nationality according to the Convention.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS
379
-
380 THE REGULATION OF NATIONALITY
196
interpretation of international constitutional instruments; that is to
say, that the Court has supported the view that the powers of an
international organization are not restricted to those specifically
granted to it in its constituent instrument. The Court rejected the
argument of Judge Hackworth, in his dissenting opinion in the
Reparations case, that powers not expressed cannot be freely
implied. 197
"by two or more Sates, which are not all subject to the
authority of any one State or other organized community"
and
196
Bowett, U.N . Forces. A Legal Study of U.N. Practice (London, 1964) 307.
He considers this consistent with the doctrine of the effective interpretation of treaties.
197
1949 / .C.J. Repotts at 198.
198
Op. cit. (1975) 308.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 381
199
Seyersted, "International Personality of Intergovernmental Organizations. Do
Their Capacities Really Depend Upon Their Constitutions?," 4 J.J.I.L. (1964) 1-74
at 40. In this paper he deals with the "sovereign" and international acts performed by
intergovernmental organizations without the authorization of their constituent
instruments, or of other international organizations. Also by the same author, "Is the
International Personality of Intergovernmental Organizations valid vis-~-vis Non-
Members?," 4 A .I.J.L. (1964) 233-68 at 263: "Intergovernmental organizations . . .
are not subject to the jurisdiction of any other subject of international law, and their
relations with such objects must be on the plane of international law."
200
This thesis was developed in Die Genossenschajwheorie und die deut.vche
R echtsprechung (1887), quoted in Lloyd, The Idea of Law ( 1979) 302. The tendency
now is to increased control of the powers granted under municipal law to juristic
persons.
201
J949 1. C.J. Reports J79. In its comments to the draft articles on "Treaties
concluded between States and international organizations or between two or more
international organizations," the International Law Commission has stressed that
international organizations do not have territory in the proper sense, so differ
fundamentally from States. U.N. G.A.O.R. 35th session Suppl. No. 10 (A/35/10)
185-86.
382 THE REGULATION OF NATIONALITY
101
Crawford, "The Criteria for Statehood in International Law," 48 B.Y./.L.
(1976-1977) 93 at 96.
103
U.N .J. Y. (1973) 197.
NATIONALITY AND INTERNATIONAL ORGANIZATIONS 383
204
See Meron, op. cit. (1980) at 297.
205
Done at Vienna on March 14, 1975, U.N.J.Y. (1975) 87-116.
206
See Comment of I.L.C. in U.N. G.A.O.R. 35th Session Suppl. No. 10
(N351J 0), May-June, 1980.
207
Note 205 above. When the Sixth Committee of the General Assembly of the
United Nations accepted the conclusion of the Reparations case and the right of States
to create other intergovernmental organizations with objective international
personality, it denied that the majority of such Organizations could exercise functional
protection of their officials, as had been held by the Court in respect of the U.N.
Seyersted submitted that it would be a peculiar situation if the States of which the
officials happen to be nationals were left to protect them in their capacity as officials
of an intergovernmental organization with international personality. Op. cit., 41.1./.L.
(1964) 6 and 7.
208
Reprinted in 25 I.L.M. (1986) 543-92.
384 THE REGULATION OF NATIONALITY
Another writer has argued that "what is needed is to give the wronged
individuals or group a right of access to some international tribunal or
machinery with right to hand down a judgment."210 He was referring
in particular to the expulsion of Ugandan Asians by the Government
of Idi A min in 1972, and the inadequacy of humanitarian law to grant
to every person the right "to reside in one's birthplace under
reasonable conditions." That such an international judicial body may
be established within an international organization is, however, a
matter of de lege ferenda.
On the other hand, the suitability of the Office of the High
Commissioner for Refugees to act as a body to provide protection for
stateless persons is grounded on experience. In Article 11 of the
Convention on the Reduction of Statelessness, 1961, it was envisaged
that the Contracting States should promote the establishment "of a
body to which a person claiming the benefit of this Convention may
apply for the examination of his claim and for assistance in presenting
it to the appropriate authority." In Resolution 3274 XXIX of the
209
van Panhuys, The Role of Nationality in International Law (1959) 177.
21
° Krishna lyer, "Mass Expulsion as Violation of Hwnan Rights," in 13 1.1./.L .
(1973) 169-75 at 172.
:;as
- ---..
111
van Kriecken, op cit. ( 1979) at 32.
111
30 l .L .M . 846 (1991).
213
Report of the Secretary-General pursuant to Paragraph 19 of S.C. Resol. 687
(1991), dated May 2, 1991. 30 I.L.M. (1991) 1703 at 1706, 1.8.4.
214
October 29, 1990, reprinted in 29 l.L.M. (1990) 1561.
386 THE REGULATION OF NATIONALITY
215
See Ball, "The Iraq Claims Process-A Progress Report," in 9 J.lnt'l. Arb.
( 1992) 37-50, and Crook, "The United Nations Compensation Commission. A New
Structure to Enforce State Responsibility," in 87 A .J.I.L. (1993) 144-57. In his Report
of May 2. 1991, the Secretary-General stated that the Commission will be required
to address a variety of complex administrative, financial, legal, and policy issue s.
Secretary-General's Report, op. cit. I.B.4.
216
Crook, op. cit. at 148. See Ball, op. cit. at 37.
217
Crook. op. cit. at 158.
218
Reprinted in 31 I.L.M. (1992) 1009.
219
Ibid. at 1(}46.
......
Thus. the Coum:il dc..·dt.lcd to rc4ucst the United Nations Relief and
Works Agc..'nl:y for Palestine Refugees in the Ncar East (UNRWA) to
assume rt.•sponsihility of suhmilling l:onsolit.latcd daims on behalf of
Palestinians resident in several l:Otmtrics in the Middle East. "Wit.h
rq~ard to the presentation of dairns on behalf of Palestinians living in
the territories occupied by Israel, who arc not in a position to have
their daims submitted by a Government, the Governing Coundl
agreed on a proposal of the Exel:utive Sel:rctary to entrust this task to
the United Nations Development Program (UNI>P). A similar solution
was proposed for the submission of daims by Palestinians residing in
the United Statcs:·zzu
How innovative the practice of States will be in dealing with these
claims will soon be seen. For the U.N. Claims Commission prol:ess
will not be the only process available for assertion of claims against
Iraq. In the face of Iraq's argument that claims that can be adjudicated
through the U.N. process should be excluded from national tribunals,
national remedies do remain avai !able. So, where the general fund
may be inadequate, and a number of nations, including the United
States, the United Kingdom, and Switzerland seized substantial
amounts of Iraqi funds within their jurisdictions at the outset of the
invasion, the rights of residents do not look very promising. National
claims procedures may well apply the familiar procedure of
compensating on the basis of nationality first, even of continuous
nationality, leaving residents to the last, funds perrnitting.121
5. CONCLUSIONS
220
Ibid. at 1025.
221
See Ball, np. cit. at. 41 , 46-47.
THE REGULATION OF NATIONALITY
388
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OFFICIAL DOCUMENTS
Council of Europe
European Community
Miscellaneous Publications
415
bn
416 THE REGULATION OF NATIONALITY
Case A/1, 94
Case A/18, 93, 94n177, 97-101
Abboud v. Iran, 1OOn 195
Acquisition of Polish Nationality, 258, 270
Alaska Boundary Arbitration, 332n61
Angarica Case, 36
Anthony Barclay Case, 38
Apostolidis v. The Turkish Government, 144
Barcena Case, 135, 160
Barthez de Montfort v. Trehander Hauptverwaltung, 42
Brignone Case, 38
Canevaro Case, 39-40, 66n 10 I
Chester v. Rose, 132n36
Fayette Anderson and Wm Thompson v. Mexico, 131-132
Flegenheimer Case, 96
Flutie Cases, 35, 41
Fluvel Belcher v. Costa Rica, 38
Golpira v. The Government of the Islamic Republic of Iran, 93n175,
96-97, 101-102
In re Rau, 135, 160
In re Refusal to File Claim of Abdol Hamid Jahan, 93n 172
Islamic Republic of Iran v. The United States of America, 91-92
Island of Pal mas Arbitration, 6
Ladislaus Chira Fils v. Czechoslovak State, 270
Laurent Case, 37, 38
Lizardi Case, 36
Malek v. Iran, 1OOn 194
TABLE OF CASES
417
-
418 THE REGULATION OF NATIONALITY
NATIONAL COURTS
...
TABLE OF CASES
419
In re Hamouye, 170
In re Hahanussa, 307
In re M.M. and X.M., 20
In re Ro, 308
In re Sassola, 151
In re Stoffels, 56
Institut d'Agriculture v. Profili, 345n92
Iranian Naturalization Case, 104n208, 163n 128
Kanno v. Acheson, Secretary of State, 146
Kawakita v. U.S., 106n216
Khalil Ahmad v. State, 305n 163
Kozuh v. Uff. Stato Civile di Milano, 206-207
Kramer v. Attorney-General, 206
Kurzmann v. O'Rea, 168
Lapides v. Clark, 151
Lee Wei Fang, et al. v. Kennedy, 174n155
Lempert v. Bonfol, 166-167
Levita-Muhlstein v. Department Federate de Justice et Police, 167
Loss of Nationality (Gennany), 171 n49
Luquiser c/ Prugnand, 105n212
M .. C.Q., L.L. 196n32
Magalhais v. Fernandes, 41-42
Meija v. Regierungsrat des Kanton Bern, 209-210
Mrs. C.v. Intergovernmental Committee for European Migration
(ICEM), 382
Moschovakis v. Replublic of Cyprus, 107
Nationality of Married Women (Danzig) Case, 239n129
Nationality (Secession of Austria) Case, 304
Nemeth Case, 196n
North Transylvania Nationality Case, 163-164, 261n47, 304-305
Oppenheimer v. Cattermole, 72-74, 206
Oseri v. Oseri, 310
Paul Knauer v. U.S.A., 151-152
Perkins v. Elg, 134-135, 145n77, 206
Pitsillides v. Republic of Cyprus, 107
Rajbert v. Lewi, 165
Re Distribution Law, 82-83
R e Goods of Shiphris, 310
Re Property Compensation Law (Italy), 83
Re Shimbukuro and Others, 164n131, 271n74
Retroactive Loss of Austrian Nationality Case, 162-163
R. v.Lynch, 140n60
420 THE REGULATION OF NATIONALITY
421
,..
tnz
--
424 THE REGULATION OF NATIONALITY
427
428 THE REGULATION OF NATIONALITY
Equity,
caveat in case A/18, 96, 102-103
equitable geographical distribution, 336, 341, 387-388
lump sum agreements, in, 79-80
European Court of Justice, 210-212, 324-325, 342-343
Exile, 152-153
Expatriation
compulsory, 153
definition of, 137
dependent on permission, 147-148
Hague Convention, in, 179-180
Harvard Draft Code, in, 180
ineffective, 150
necessity of consent, 132, 134, 136
right to, 142-147
Expulsion and denationalization, 158, 175, 180
League of Nations,
Conference for the Codification of International Law, 45-50
draft Statute of the PCIJ, 325
High Commissioner for Refugees, 372-373
stability of world order, and, 186
Legal kidnapping, 200
Britain, 78-79
France, 79
United States, 79-81
Nationality
cession of territory, and, 164, 269-274
children, of, I 00, 200, 2 I 7, 230, 23 7, 270, 273
claims, of, 19, 34, 54, 85-86, 91, 97-99, 252, 386-387
deprivation of, 122, 125-126
arbitrary deprivation forbidden, 194, 241, 245
guarantees against, 192
in the Republic of South Africa, 158-159
diplomatic protection, and, 19, 49, 54, 61, 64-67, 68, 82n 148,
86, 184,200n37,242,386
domicil, and, 36-39, 56n74, 217,272, 281
dominant and effective, 39-40, 41, 44, 49-50, 54-55, 61, 65-67,
95-100, 104-105, 110, 194, 290, 327-328, 354, 388
dual or multiple, 38, 41-42, 44, 52-53, 54-55, 74, 81-82, 87,
92-104,105-112,201-204,204-207,282,290,297,
327-328,340,354,369
fraudulently acquired or used, 36, 60, 96, I 43-144, 151-152,
167nl38
genderequ~ity,and, 199-200,207-212,232-233,235,236
genuinelink,andthe,39-42,58,66-68,87,89,98,236,260-
261,281-282,283-288,298,303,354
habitual residence, and, 49-50, 52,56-57,66, 133,281-282,
321
imposition of, 123, 148-150, 160-165,245-246
international officials, of, 348-360
jure sanguinis, acquisition by, 32, 40, 48, 51, 69, 114-116,
122,141,149,178,180,200,278,285
juresoli,acquisitionby,21,31,48,51, 115,122,140,180,
278,283,284-285
loss of, 148, 153
marriage, effect of, 194-200, 207-212, 214-215, 239-241
mere residence, and, 285
military service, and, 52, 106-112
see also Council of Europe Convention, 1963
see also Hague Convention, 1930
opposability, and, 103, 121
option of, 116,255-261,268-277,300-301
distinguished from denationalization, 157-158
see also nationality, State succession
INDEX 431
Romania, 164
Singapore, 283-286
Spain, 147, 192-193
Sri Lanka, 116-117
Switzerland, 117, 147. 196n31
Syria, 249-250
Togo, 281-282
Turkey, 143-144, 149
U.S.S.R., 202-203
United Kingdom, 31, 112-113, 138-140, 205, 207, 279
United States, 134, 140-141, 145, 146
Naturalization
automatic, 135-136
compulsory, 128, 130-131
conditions for, 178-180
Costa Rican Constitution, in, 231-236
fraud, with, 36
link, and, 33-34
not allowed, 20, 97, 103-104, 138, 142-144
privileged, 149
residence, and, 42-43, 52
Singapore, in, 285
statelessness, and, 114
voluntary, involuntary, 133-134
Non-responsibility of States for claims of dual nationals, 68-69, 94-95,
100-103, 120