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ABBREVIATIONS ..................................... xi

PREFACE TO TilE SECOND EDITION .................. xiii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

Chapter 1
INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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
2.1 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
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


4.4 Diplomatic Protection and the Nationality

of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5. WRITERS ON NATIONALITY........................ 19
5.1 Classical Writers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.2 Post-Classical Writers . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.3 The Definition of National Status by
International Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6. CONCLUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

NATIONALITY LAW ................................. 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
2.1 The Permanent Court of International Justice . . . . . . 55
2.2 The N ottebohm Case . . . . . . . . . . . . . . . . . . . . . . . . . 59
2.3 TheM erge and M azzonis Cases . . . . . . . . . . . . . . . . . 64
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

3.3.2 Nationality not Residence as the Criterion . . . . 81

3.4 The Convention on the Settlement of
Investment Disputes, 1965 . . . . . . . . . . . . . . . . . . . . . 84
3.5 The Iran-United States Claims Tribunal . . . . . . . . . . . 89
3.5.1 The Esphahanian and Golpira Cases . . . . . . . . . 94
3.5.2 Case Nl8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
3.5.3 The N18 Caveat-Saghi Claims ........... 100
PRACTICE ...................................... 104
4.1 As Applied in Municipal Law .................. 104
4.2 Treaties Harmonizing the Military Service of
Dual Nationals .............................. 106
4.3 Examples of Recent Nationality Legislation ....... 111
4.3.1 The British Nationality Act 1981 ........... 112
4.3.2 The Netherlands Nationality Act 1976 ....... 113
4.3.3 Belgium ............................... 114
4.3.4 Portugal ............................... 115
4.3.5 Sri Lanka .............................. 116
4.3.6 Switzerland ............................ 117
4.3.7 Bulgaria ............................... 118
5. CONCLUSIONS .................................. 119

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 The British Naturalization Act, 1870 ....... 139
2.1.3 United States Law ....................... 140 The Right to Expatriation ................ 141 The U.S. Doctrine of the Right to
Expatriation in Relation to Turkey
and Others ........................... 142

2.1.4 Other States. Expatriation Dependent on

Permission ............................. 147
2. 1.5 The Meaning oflmposition ................ J48 Privileged Naturalization not Imposition .... 149
2. 1.5.2 Territorial Jurisdiction and Expatriation .... 149
2.2 Deprivation or Withdrawal of Nationality ......... 150
2.2.1 Meaning ............................... 151
2.2.2 Lawful Withdrawal of Nationality .......... 151
2.2.3 Exile ................................. 152
2.2.4 Denationalization ....................... 153
2.2.5 Large-scale Deprivations of Nationality ...... 154
3.1 Imposition of Nationality ...................... 160
3.2 Denationalization ............................ 165
3.2.1 The Application of Denationalization
Decrees ............................... 165
3.2.2 The Repeal of Denationalization Decrees ..... 168
3.3 The Federal Republic of Germany ............... 171
3.4 Oppenheimer v. Cattermole .................... 172
3.5 Imposition of Nationality and Denationalization
Compared .................................. 174
4. INTERNATIONAL BODIES .......................... 177
4.1 The Institute of International Law ............... 177
4.2 The International Law Association ............... 178
4.3 The Hague Convention of 1930 ................. 179
4.4 The Harvard Draft Code ....................... 180
5. CONCLUSIONS .................................. 180

INSTRUMENTS ...................................... 183
1. HUMAN RIGHTS AND NATIONALITY ................. 183
1.1 Refugees ................................... 185
1.2 World Order ................................ 185
2. THE UNITED NATIONS CHARTER ................... 187
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
STATELESSNESS, 1961 ............................ 193


5.1 The United Nations Convention on the
Elimination of all Forms of Discrimination
Against Women, 1979 ........................ 199
5.2 The United Nations Convention on the
Rights of the Child, 1990 ...................... 200
SINGLE OR PLURAL NATIONALITY . . . . . . . . . . . . . . . . . . 201
6.1 Treaties for the Elimination of Dual Nationality .... 201
6.2 State Practice as regards to Dual Nationality ....... 204
6.3 Dual Nationality and the Convention on the
Nationality of Married Women, 1957 ............ 207
6.4 The Council of Europe Convention on
Reduction of Cases of Multiple Nationality
and Military Obligation in Cases of Multiple
Nationality, 1963 ............................ 212
RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
7.1 The Implementation of the Covenants ............ 218
8.1 The Jurisdiction of the European Court of
Human Rights ............................... 221
8.2 The Jurisdiction of the European Commission
of Human Rights ............................ 223
8.3 National Status under European Convention ....... 224
9.1 Amendments to the Naturalization Provisions
of the Constitution of Costa Rica. Advisory
Opinion, 1984 ............................... 231
PEOPLES' RIGHTS, 1981 .......................... 236
1975. FAMILY UNITY . . . . . . . . . . . . . . . . • . . . . . . . . . . . . 238
12. HUMANITARIAN INTERVENTION . . . . . . . . . . . . . . . . . . . . 241
13. CONCLUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

I. INTRODUCTORY REMARKS . . . . . . . . . . . . . . . . • . . . . • . . 247
1. I Definition of State Succession .................. 248

1.2 Definition for Purposes of Nationality ............ 249

1.3 Importance of Nationality ...................... 250
1.4 Nature of the Problems ........................ 252
2. DOCTRINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
2.1 State Sovereignty ............................ 253
2.2 Option of Nationality ......................... 255
2.3 The Genuine Link ............................ 258
2.4 The Duty Not to Pass Arbitrary Laws ............ 261
2.5 Harvard Research Draft on Nationality ........... 262
2.6 International Law Commission ................. 264
3. STATE PRACTICE AFfER 1945 ..................... 268
3.1 Right of Option Granted by Treaty ............... 268
3.1.1 The Italian Peace Treaty, 1947 ............. 268
3.1.2 Other Peace Treaties ..................... 271
3.1.3 Treaties of Cession ...................... 272
3.1.4 Treaties Granting Independence ............ 274 Vietnam ............................. 274 Indonesia ............................ 276 Burma ............................... 276
3.2 New States and the Effective Link ............... 277
3.2.1 United Kingdom Practice ................. 278
3.2.2 French Practice ......................... 280
3.2.3 Surinam ............................... 282
3.2.4 Singapore .............................. 283
3.2.5 Bangladesh ............................ 286
3.2.6 The Federal Republic of Germany and the
Democratic Republic of Germany .......... 288
3.3 New States and Human Rights .................. 292
3.3.1 The Baltic States ........................ 292 Estonia .............................. 293 Latvia ............................... 295 Lithuania ............................. 297
3.3.2 Yugoslavia and Eastern Europe ............ 299
4. JUDICIAL DECISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
4.1 The United States ............................ 302
4.2 The Federal Republic of Germany ............... 303
4.3 The Netherlands ............................. 307
4.4 France ..................................... 308
4.5 Israel ...................................... 309
4.6 Australia ................................... 310
5. CONCLUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . 310

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
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
4.1 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

4.3 International Legal Personality-The United

Nations High Commissioner for Refugees ........ 371
4.3.1 The United Nations High Commissioner for
~ Refugees .............................. 372
4.3.2 Development to the International Refugee
Organization and the United Nations High
Commissioner for Refugees ............... 372
4.3.3 The 1951 Convention and the United Nations
High Commissioner for Refugees .......... 374
4.3.4 The Competence of the United Nations High
Commissioner for Refugees ............... 376
4.4 From International Personality to Functional
Sovereignty ................................. 378
4.4.1 I.C.J. Cases ............................ 378
4.4.2 The Dynamic Approach .................. 379
4.4.3 Seyersted on Functional Sovereignty ........ 380
4.4.4 The United Nations Compensation
Commission ........................... 385
5. CONCLUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
6. GENERAL CONCLUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 389

REFERENCES ....................................... 391

TABLE OF CASES .................................... 415

TABLE OF TREATIES ................................. 421

INDEX .............................................. 427


AD Annual Digest and Reports of Public

International Law Cases
ABAJ American Bar Association Journal
AJIL American Journal of International Law
AFDI Annuaire Fran~aise de Droit International
AllER All England Reports
Annuaire IDI Annuaire de l'lnstitut de Droit
ArchVR Arc hi v des Volkerrechts
BYIL British Yearbook of International Law
CSD Claims Settlement Declaration (Algiers
Columbia J.Trans.L. Columbia Journal of Transnational Law
CSCE Conference on Security and Co-operation
in Europe
ECR European Court Reports
ELR European Law Review
ETS European Treaty Series
FYBIL Finnish Yearbook of International Law
Hague YBIL Hague Yearbook of International Law
HRLJ Human Rights Law Journal
Hbl Hufvudstadsbladet
ICJ International Court of Justice
ICLQ International and Comparative Law
ILR International Law Reports
ILQ International Law Quarterly
IJIL Indian Journal of International Law
Int'l Lawyer The International Lawyer
IRO International Refugee Organization
Iran-U.S.C.T.R. Iran-United States Claims Tribunal


Jap.Ann.I.L. Japanese Annual of International Law

JDI Journal du Droit International
J .Int'l Arb. Journal of International Arbitration
LQR Law Quarterly Review
LNTS League of Nations Treaty Series
MLR Modem Law Review
NILR Netherlands International Law Review
NYIL Netherlands Yearbook of International
PCIJ Permanent Court of International Justice
Procs ASIL Proceedings of the American Society of
International Law
Recuei I des Cours Recuei I des Cours de I' Academie de Droit
International de La Haye
RADIC Revue Africaine de Droit International et
Compare I African Journal of International
and Comparative Law
RBDI Revue Beige de Droit International
RDI Rivista di Diritto Intemazionale
SAYIL South African Yearbook of International
Temple LQ Temple Law Quarterly
TIAS U.S. Treaties and other International Acts
Trans. Grotius Soc. Transactions of the Grotius Society
UNHCR United Nations High Commissioner for
UNJY United Nations Juridical Yearbook
UN Legis. Series United Nations Legislative Series
UNRIAA United Nations. Reports of International
Arbitral A wards
UNTS United Nations Treaty Series
VaJIL Virginia Journal of International Law
Yearbook of the I.C.J. Yearbook of the International Court of
YBILC Yearbook of the International Law
ZaoRV Zeitschrift fiir ausHindisches offentliches
Recht und Volkerrecht

The second, revised edition of this book includes a general updating

and revision throughout as compared with the text of the first edition,
which was completed ten years ago. I have added to the nationality
legislation, the case law and the literature on the subject. In brief, the
major changes are: Chapter 1 is partly revised, although the purpose for
writing it remains; Chapter 2 contains a new section on the Iran-United
States Claims Tribunal; Chapter 3 is basically the same; Chapter 4
contains a discussion of the Advisory Opinion of the Inter-American
Court of Human Rights relating to the nationality legislation, as well as
the European enactment on Multiple Nationality; Chapter 5 takes into
account the important "Asian perspective," as well as the new
developments in the linking observance of human rights to the
recognition of new States; and Chapter 6 takes note of the United
Nations Claims Commission. A new "General Conclusions" is added at
the end, as suggested by one kind reviewer of the first edition.
Above all, I would like to record my very warm thanks to Professor
Edward Gordon, Ms. Heike Fenton and Transnational Publishers, Inc.,
for undertaking the publication of this volume, and for being so
courteous and understanding about my postponements of datelines for
sending the manuscript. I am very grateful to them. In conclusion, I
remember with gratitude my teacher at the Harvard Law School,
Professor Louis B. Sohn, who introduced me many years ago to the
N ottebohm case and the topic of this work in his seminar on State lity.

Ruth Donner
Helsinki, October 1993


The purpose of this work is to inquire what, if any, standards or

rules exist in public international law governing the right of States to
detennine who are, and who are not, their nationals. Here the tenn
nationality is used synonymously with citizenship. Nationality confers
membership of the community, also called political status. Oppenheim
describes it as "the principal link between individuals and the benefits
of the Law of Nations. " 1 The question asked here is: are there any
limitations imposed by public international law on the competence of
State authorities to draft laws and regulations detennining acquisition
and loss of the State's nationality?
In traditional international law, using the term in the sense of public
international law as it was developed in the nineteenth and early
twentieth centuries, the detennination of national status is in principle
left solely to the competence of municipal authorities. As such, matters
connected with nationality fall usually within that branch of the law
called constitutional or public law. It follows from this that nationality
may only be dealt with as a problem of the choice of law, when a
tribunal has to decide what nationality law to apply. Yet an unfetteredd
exercise of this right to fonnulate nationality laws can lead to conflict
with the corresponding right of another State, and it is just these conflict
situations that will provide the main subject matter of this inquiry.
A conflict of rights may arise in a number of ways. Nationality may
be imposed on persons possessing already the nationality of another
State. This may be with the intention of acquiring more citizens for a
variety of reasons: to increase the population, particularly, perhaps, a
certain ethnic group in the population; to conscript the newly acquired
national into its army; to impose a tax on which only nationals are
subject, or in order to prevent the extradition of a fugitive from justice
to his home State. The list is not exhaustive, but whatever the reason the

Lauterpacht, Oppenheim's International Law (8th ed., 1955) at 645.


imposition of nationality may be the subject of a protest from the

individual's State of already existing nationality. A State may, moreover,
refuse to recognize that one of its citizens by birth has later acquired the
nationality of another State by naturalization and abandoned his or her
original nationality. This refusal may be on the grounds of the
permanent nature of allegiance, excluding any right to expatriation, even
where the change of nationality is voluntary. Or it may be based on
other grounds valid in domestic law.
There may be grounds for conflict where a person has acquired at
birth original nationality in more than one State by operation of law.
These cases of dual or plural nationality may be potential causes of
conflict between States.
For these various reasons States may, and in practice have, come
into conflict where their competence to legislate on questions of
nationality have touched on the similar right of another State, or States.
More recently, in a world where there is a seemingly ever-increasing
number of refugees, mostly stateless, fleeing the country of their
nationality for political reasons, conflicts of interest have highlighted the
competence of States to withdraw their nationality. The creation of
stateless persons may strain the hospitality of other States where they
seek refuge, particularly in countries with a high percentage of
unemployed. It may also strain the relations of two neighboring States,
for example, where one harbors a number of stateless persons formerly
nationals of the other. This group may be planning to overthrow the
government in the country of their original nationality in order to create
conditions permitting their return home.
These matters being the subject of this work, it may be pointed out
that it is not an inquiry into the role of nationality in international law in
the sense used by van Panhuys as "the effects which are attached to
nationality by internationallaw."1 Yet the subjects taken for examination
necessarily deal with those rules of international law touching on
nationality. For example, it is necessary to discuss the role of nationality
in the Jaw concerning the responsibility of States and the nationality of
claims. The role of nationality is again to be discussed in connection
with the recent law and practice of international organization.
Lastly, it is not a comparative study of the nationality laws and
regulations of the States making up the international community of
today. No attempt is made to analyze the bulk of municipal legislation

See van Panhuys, The Role of Nationality in International Law ( 1959), especially

in order to extract statistical evidence of State practice. With the

community of States Members of the United Nations now numbering
over one hundred and eighty, without counting the number of non-
Member States, it is submitted that such an attempt would be
foredoomed to failure. But nationality laws wi11 form one source of the
practice of States, as will decisions of international and national courts
of law and tribunals of arbitration, international treaties and the law of
international organizations. Also included are certain draft codes. The
writings of international jurists will be used throughout.
The subjects chosen for examination are the so-called link or bond
of attachment between the State and its national as a condition precedent
to recognition of national status in the international sphere, (Chapter 2),
the limitations on a State's right to impose or withdraw its nationality,
(Chapter 3), the relevant provisions in international instruments on
human rights, (Chapter 4), nationality in relation to State succession,
(Chapter 5), and lastly, the concept of nationality in the law and practice
of international organizations, being chiefly that of the United Nations
Organization, (Chapter 6). What will be dealt with are the rights and
duties of States vis-a-vis each other, and also the rights of individuals
qua individuals.
This inquiry, it is submitted, shows that certain standards and rules
exist in public international law governing the competence of Sate
authorities to determine who are its nationals. An international law of
nationality has evolved and been given added impetus since the end of
World War II.
That this is so is one further example of the changing nature of the
world community, in which the fact of individuals as the ultimate
objects of international rights and duties is increasingly recognized. Yet
public international law is the law applicable in the relations between
sovereign States and for this reason it is necessary to conduct this
inquiry into the international law of nationality within the framework of
the general principles of international law. Theory and practice are
constantly adjusting to the requirements imposed by the other.
Chapter 1 will contain, therefore, a presentation oftheconceptofthe
sovereign Sate, as it has been expressed in traditional international law
and as it is understood today. Then the importance of this doctrine for
nationality legislation will be discussed as well as how the subject is
dealt with in the classics of international law and in later textbooks.
Chapter 1 concludes with the significance of this for the following
chapters in so far as questions of nationality fall within the domestic
jurisdiction of each State.



Any discussion of the possible existence of substantive rules of

public international law governing nationality legislation must be
conducted within the framework of what has been called "the basic
constitutional doctrine of the law of nations," the sovereignty and
equality of States.' For this reason it is proposed first to present the
concept of the sovereign State as it was developed from the sixteenth
until the early part of the twentieth centuries.

1.1 The Word State

The international community of the modem world is based on the

territorial sovereignty of States and their equality of rights.1 This
concept of the sovereign State emerged over a period of time in the
modem world. First the word "State" began to be used as a term of
art by lawyers "to denote what the ordinary person speaks of as 'a

See Brownlie, Principles of Public International Law (4th ed. 1990) at 287.
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).


country' or 'a nation'"3 • Baty attributes to Machiavelli the first use of

the Italian term "stato," coming from the word "status" which
signified condition or position and then high position, to denote an
independent government. The word "stato" could be applied by
Machiavelli to every form of government exercising "imperio"
whether kingdom, duchy, country, or government of a free city. But
whereas this word "stato" was translated into Latin as "imperium" or
..principatus" and not "status," French editions of Machiavelli's The
Prince, which appeared after the mid-sixteenth century used the word
''estat" as a translation of "stato."

1.2 Sovereignty

Bodin, writing in the latter part of the sixteenth century,

introduced in his book, Les six livres de Ia republique (1576), the
word sovereign into political theory and international law. He did not
use the word state, but "n!publique." Having experienced the civil
strife of the French religious wars he wished to show how anarchy
could be avoided. As a lawyer he found the term "souverain" used in
French legal terminology to describe various courts like the Parlement
of Paris and the Cour des Aides, from which there was no appeal.
This term he then used to describe government:

"A Commonwealth may be defined as the rightly ordered

government of a number of families, and of those things
which are their common concern, by a sovereign power. " 4

This sovereign power of the prince was absolute, because to divide it

was to establish anarchy. It was subject to no law other than the laws
of God and nature which alone were binding on princes.5 Bodin
describes the maiestas of the sovereign in this way:

Baty, International Law in Twilight (Tokyo, 1954), Appendix "The Word
'State"' (301-314) at 312.
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.
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.
" ... [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.

1.3 Legal Personality

This sovereign State was considered to have a legal personality of

its own. Hobbes began his Leviathan, which was first published in
1651, with a detailed description of the State as an artificial man:

"Soveraignty is an Artificiall Soul, as giving life and motion to

the whole body . . . and Civil War/is/Death" 7

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:

"When Grotius thought of the duties of sovereigns as the

duties of individual men he was not thinking metaphorically.
He was thinking in terms of the moral and legal duties that
rested on Ferdinand and Louis and Philip and James as
completely as upon Titus, Seius and Maevius, and for the
same reasons, namely, that in each case they were men and
hence moral and rational entities with power to do the things
which conscience and reason prescribed. " 8

The influence of Roman Law was pointed out by Maine in his

Whew ell Lectures in 1887. He stated that sovereignty had two aspects,

Bodin, op.cU. (1955) at 3.
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.
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."

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

The doctrine of equality of sovereign States followed on the

theoretical construction of legal personality of the ruler. Hobbes sees
his commonwealth as based on the law of nature, and in a state of
nature men are equal so

"[t]he question who is the better man, has no place in the

condition of mere Nature; where (as has been shown before)
all men are equal. . . . And therefore for the 9th Law of
Nature, I put this, That every man acknowledge other for his
Equal by Nature."10

He continued that States may be likened to men in a state of nature.

because they too are in a continuous state of war, and States once
instituted acquire their own personality and "put on the personal
properties of men. " 11
Bodin also referred to the equality of States, the decisive fttctor
being the existence of a sovereign to maintain peace and stability:

ame, lntemational Law (1888), Lecture Ill, "State Sovereignty," at"·
Hobbes, Leviathan, Chapter XV.

" ... (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

In other writers the human personality of the ~overeign wa<, ~een a~

the basis of the equality of States. So Vattel could write:

"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

The international community was in this way composed of

sovereign States, the requirement for statehood being the existence of
a sovereign exercising supreme authority internaJiy and representing
his subjects externally. Regardless of the size of the State, each one
was considered to be the equal of the others. 14

1.5 Territorial Sovereignty

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
E. de Vattel, Droit des Gens in Cla.uics nf lntematinnaJ Law No. 54 (1916).
"Introduction" at paragraphs 18-21.
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.

"Moreover it is provided that differences in the political status

no longer exist and that all electors, princes, and States of the
Roman Empire are confirmed in and guaranteed their ancient
laws, prerogatives, liberties, privileges, free exercise of
local ... the right of suffrage in all imperial deliberations
especially in the making or the interpreting of laws, the
declaration of war...." 15

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

"Independence in regard to a portion of the globe is the right

to exercise therein, to the exclusion of any other State, the
functions of a State. The development of the national
organization of States during the last few centuries and, as a
corollary, the development of international law, have
established this principle of the exclusive competence of the
State in regard to its own territory in such a way as to make
it the point of departure in settling most questions that
concern international relations."

As a sovereign State enjoys exclusive sovereign rights within its

territory, it follows that other States have a duty not to intervene in its
internal affairs.

See Mangone, The Elements of lntemaJional Law (1954).
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.


from this arose the strict rule of nonintervention in the internal

affairs of States. The first exposition of this rule has been attributed
to Wolff, writing in the latter part of the eighteenth century.17
Lauterpacht states the rule in the foll owing manner:

..There is, in international law, no right (and no corresponding

duty) more absolute, more rigid or more formal than freedom
from external interference. If any clear inference at all may be
drawn from the duty to respect the independence of other
States, then it is the duty to abstain from interference with the
internal affairs of a recognized Power with which a State is
not at war.""'

The doctrine of Act of State, as known in the common law

countries, is connected with this prohibition on intervention. The rule
is that municipal courts will not pass on the validity of the acts of
foreign governments performed in their capacities as sovereigns within
their own territories.'' In the case of Banco Nacional de Cuba v.
Sabbatino, 20 the United States Supreme Court had to deal with just
such a question, where the validity of a Cuban nationalization law and
confiscatory decree passed under it concerned sugar claimed by the
respondent, representing shareholders in the United States. In the
course of proceedings in the Supreme Court, in the brief submitted for
the State Department through the Solicitor General, the earlier case of
Underhill v. Hernandez, J68 U.S. 250, 252, was quoted with approval:

"Every State is bound to respect the independence of every

other sovereign State, and the courts of one country will not
sit in judgment on the acts of the government of another done
within its own territory . . . . We submit that this history

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.
H. Lauterpacht, "Revolutionary Propaganda by Governments'' in Collected
Papen. Vol. Ill, E. Lauterpacht, ed., at 279, 290.
Brownlie, op.cit. (1990), at 507.
84 S.Ct. 923.

shows that the act of State doctrine is a deeply rooted

principle of American Law."21

It is primarily a United States rule, and even there may be foremost

a rule of private international law, but it may be mentioned here as an
illustration of the unwillingness of municipal courts to question the
validity of acts of foreign governmental authorities.
This community of sovereign States remained, more or less
unchanged, up to 1914, and embodied the principle of the balance of
power, in the tradition of Italian Renaissance politics.zz
It is also referred to by legal writers as the "Westphalian system,"
because it was by the conclusion of the Treaties of Munster and
Osnabri.ick, together making up the one instrument of the Peace of
Westphalia, that the modem community of States found its first
clearest expression. The power of the Church and the Holy Roman
Empire gave way to a plurality of States, Protestant as well as
Catholic, recognizing no superior authority. 23 Here it has been the
intention to stress the development of international law since the
1500s as having been made possible by equating States with human
persons, and perhaps particularly by the legal technique of borrowing
from concepts of Roman private law.

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
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.
Cassese, lntemaiional Law in a Divided World (1986) 36-38.


The definition of public international law as the law applicable in

the relations between independent, sovereign States, with the emphasis
on the territorial character of sovereignty, still prevails. 24 It also
entered the developing law of international organizations in the
requirement of the sovereign State's right to equality at international
conferences, and in the early attempts to establish a permanent
international court.
At the Hague Peace Conferences this principle of equality thus
required that each State have one vote and one vote only, as expressed
in Article 8 of the rules of procedure of the second Conference of
1907. zs Nor could a permanent Court of Arbitration be established due
to the opposition of the representatives' of the Central and South
American States, twenty-one in all, who insisted that there should be
nothing short of absolute equality in the appointment of the judges. 26

2.1 The League of Nations and the United Nations

The administration of the international community today
developed out of that which preceded it. The two Peace Conferences
held at The Hague in 1899 and 1907 were called on the initiative of
the Russian Czar, but by a resolution passed at the end of the Second
Conference, the next one was to meet automatically in seven or eight
years time and a preparatory committee two years before that. So the
convening of the next conference was not to be dependent on any one
nation. The outbreak of the First World War defeated these
The League of Nations was set up under the Covenant which
comprised the first 26 articles of the Peace of Paris, and it
established a machinery of collective security, but its basis was the
sovereign State. This was expressed in President Wilson's 14th Point,
contained in a speech delivered on the 8th January 1918, which was
to be one of the most important speeches on war aims:

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.


"A general association of nations must be formed under

specific covenants for the purpose of affording mutual
guarantees of political independence and territorial integrity to
great and small states alike. " 18

The sovereignty and independence of States was protected m

Article 15, paragraph 8, of the Covenant, which provided:

"If the dispute between the parties [Members of the League]

is claimed by one of them, and is found by the Council, to
arise out of a matter which by international law is solely
within the domestic jurisdiction of that party, the Council
shall so report, and shall make no recommendation as to its

International law was thus excluded in matters falling within the

reserved domain. This was expressed i.a. by the Permanent Court of
Justice in the Lotus case as:

"International law governs the relations between independent

States. The rules of law binding upon States therefore emanate
from their own free will ...." 19

The United Nations differs in many respects from the League of

Nations, but the U.N. is, as was the League of Nations with the
exception stipulated in Art. 1 (2) of the Covenant, an organization of
sovereign States, being parties to the Charter which is in the form of
an international treaty.30 The same is true of the Statute of
International Court of Justice, Article 34, paragraph 1, which provides
that "Only States may be parties in cases before the Court."

See Temperley, op. cit., Vol I, at 192.
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.
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."

This hask plith:ipk of tlw sovc.'l\'ignty and imkpl'ndcru.:c of States

IS wdl i llustratc.·d in tlw llnitl'd Nations (lcncrnl Assemhly
"Dl''\'larati\"~ll on the.· lnadmiss;thility of lntc.·rvc.·ntion in the Domcsli~
Affairs \''If Statc.·s and thl' Protc.•c.·tion of tlwir lndependen~e and
Son·n·ignty."·'• This hegins. in lhc first provision: .. No Stale hns the
right t\''1 intc.•rvcrw. dit't't'tly or indirectly. fur nny reuson whatever, in
tht• internal or c.·xtl'rnal affairs of any other Statt!." This prindple is
elahoratcd in the t'ight provisions of tlu.· Declaration. The ne~essity for
this Dt>daration is statc.•d in the prl'paratory paragraphs as being the
cotH..'t'm fdt hy the.• Gt•twral Assembly at the in~reasing threat. to
universal peace ..due to armed intervention and other direct or indire~t
fonns of interference thrt•atcning the sovereign personality and the
political independence of States." The term State is defined as
meaning both individual States and groups of States:11

2.2 Objections to the Theory of the Sovereign State

This is the concept of the "perfect" sovereign State, supreme in its
internal powers and equal in its relations to other States, as
collectively the sole subjects of the law of nations. It still finds
expression, as in the wording of the Charter of the U.N. Yet the
concept is, and has been, contradicted in theory and in practice. This
was so, for example, in diplomatic practice, showing how equality did
not necessarily signify the functional equality of States or equality of
rights/ 3 and in Anicle 27, paragraph 3, of the Charter of the United
Nations, providing for the so-called Yalta formula of voting.

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.
Ibid.. provision 7.
33 Politis, The New Aspect.f of International Law (1928) 7.

Cous and M oterial.f on World Law. edited by Louis B. Sohn (1950), at 671
et seq.

The basic rule of traditional international law, pacta sunt .vervanda,

was inadequate, for if a State is bound only by its own consent there
must be a previous accord of wills that the agreement will not be
undone, so endangering peaceful relations between States. Starting
from this argument, Politis, in a series of lectures delivered at
Columbia University in July, J926, presented a strongly reasoned
argument for the "new aspects" of the international legal system. 35
Politis argued that the whole system of international law has
changed. Sovereignty is not absolute but "essentially contingent" as
matters of domestic concern "become invested with a certain interna-
tional character."36 The equality of States does not imply participation
in the constitution and functions of the organs which administer the
interests of the international community. 37 He found that the Jaw is the
outcome of the solidarity created by social needs, and so is "neither
an emanation from an order nor the manifestation of a will."38 In his
second lecture he explored the status of the individual as a subject of
international Jaw, stating that now the individual has interests apart
from the State, with the institution of objective rules to protect the
individual irrespective of nationality.39 He pointed out that an
international penal Jaw must apply to individuals in order to become
a penal system proper. This was already happening. In the Hague
Convention of J907, Article 3 states that beJJigerents are responsible
for acts committed in violation of its provisions by persons belonging
to their armed forces.
In his fourth lecture he dealt with the establishment of a compul-
sory international jurisdiction, and how this to be effective must be
complete. Thus, Politis was one of the first among many jurists to
restate the basis of the law of nations. Throughout his lectures he
treats international law as a legal system like national law, subject to
the same sociological rules.

35 p •. .
o 1ttts, op elf.
Ibid. at 7.
Ibid. at 9.
Ibid. at 15. This is the sociological school of jurisprudence.
He referred, inter alia, to the rules relating to piracy, to traffic in negroes,, 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.

3.2 Post-1945-The Subjects of International Law

In the modem science of international law there have been further

developments away from the positivist thinking of the nineteenth
century. Thus in the "Survey of International Law," a memorandum
submitted by the Secretary-General, Trygve Lie, it was clearly stated:
"Practice has abandoned the doctrine that States are the exclusive
subjects of international rights and duties."40 The following arguments
were given in support of this: a number of international instruments
have recognized the procedural capacity of the individual; there is
nothing in international law to prevent individuals from acquiring
directly rights under a treaty; individuals may enjoy the benefits of
international law from the doctrine that international law forms part
of the law of the land; international law also imposes duties directly
on individuals as expressed by the Nuremberg Tribunal; and in
modem international law the international personality of public bodies
other than States has been recognized.
This argument has been amply borne out since 1949. First, the
development of human rights law after the end of the Second World
War has changed the position of the individual. This has been brought
about mainly in the formulation and acceptance by States of human
rights treaties and instruments, both on the international and regional
level. So, too, the organs of the United Nations and the specialized
agencies have played their part, such as in the ECOSOC resolutions
1235 (XLII) and 1503 (XLVIII), adopted in 1967 and 1970, respec-
tively. Cassese has summed up the change in this way:

"Individuals were no longer to be taken care of on the

international level qua members of a group (minority or
particular category); they began to be protected qua individual
human beings." 41

And although the emerging rights of individuals are limited, because

only procedural rights, such as capacity to initiate proceedings before
an international body, and precarious, where based on rights granted

40A/CN.411/rev. ), 10 February 1949, at 19 et seq. It was called "Preparatory

work within the purview of Article 18, paragraph I, of the Statute of the International
Law Commission" and was written by Professor. later Judge, Lauterpacht.
41 Casses, "Individuals," in International Law : A chievements and Prospects

(Bedjaoui, ed., 1991) 113, 115.


by treaties, and hence on the will of States, yet these constitute a

change in the position of individuals for they are no longer merely
objects or at best beneficiaries of treaties, such as in treaties of
commerce and navigation or conventions on the treatment to be
accorded to foreigners. In particular, he continues, where a right of
petition is granted it is "granted to physical persons qua human
beings. No bond of nationality nor any other form of allegiance is
taken into account. This represents a momentous innovation in its own
right. " 42
International organizations, as well as individuals, have been
granted a status in international law since 1945 that they did not
possess before. The concept of functional sovereignty has applied to
these organizations particularly since the Advisory Opinion of the
International Court in the Reparations for Injuries case, 1949, where
the Court advised that the United Nations Organization has the
capacity to maintain its rights by bringing international claims. 43
Acceptance of this fact has led, further, to a new term,
transnational law, to replace that of international law, because, to
quote Jessup, "our international legal realm no longer concentrates on
relationships between States themselves. " 44 The term is used to cover
legal relationships that transcend national frontiers and are between
entities other than States, as well as States. It covers both civil and
criminal Jaw, and both public and private law.45 Jessup gives as an
example of the straitjacket of the traditional distinction between public
and private law, the dictum "that in the field of private international
law, the courts of one State will not enforce the penal Jaw of another
State." This has had unfortunate effects on the punishment of aerial
highjacking. Further, the growth of what Jessup calls "international
business law" and a "hybrid body of law applied by such

Ibid. at 119.
Reparations for Injuries Suffered in the Service of the United Nations, I.C.J.
Reports 1949, 174. See, infra, Chapter 6.
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.
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.

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

3.3 The Principle of Cooperation

Lastly, the law applying to the relations between the independent

sovereign States of the international community, based on the will of
those same States, is developing into a law of cooperation. Judge
Ruda, then President of the International Court of Justice, stated it in
this way in his Letter of August 27, 1990, to the Secretary General of
the United Nations concerning the "United Nations Decade of
International Law": 48 "International Law is increasingly destined by
the will of States to govern new spheres of human activity involving
international cooperation."
The concept remains a controversial one, perhaps to the extent of
that of the General Assembly Declaration on Principles of Internation-
al Law Concerning Friendly Relations and Co-operation among States
in Accordance with the Charter of the United Nations, 1970.49
Nevertheless, it is a concept that in, for example, the New Internation-
al Economic Order and the Law of the Sea Convention, 1982, has
acquired more precise connotation. 50 Here the conclusions of

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.
See Judge Tanaka, "Some Observations on Peace, Law and Human Rights"
in ibid., 242- 56 at 243-44.
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.
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.
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.

of McWhinney are of relevance~ to the effect that although the

international law of cooperation is not yet complete and is still
evolving as a legal category:

"The application of the international Jaw of cooperation in

concrete cases involves the concept of relativity of rights, and
the balancing of the gains to be expected from a State's
actions against the damage caused thereby to other States, and
it certainly vitiates State action whose main motive is to harm
another State. " 51

This could be applicable in the enactment of nationality laws and

These changes, however, indicate how international law is
developing. This inquiry is into how public international law regulates
nationality, and therefore the relationship between that law and
nationality questions must first be looked at from the viewpoint of the
international community prior to 1945.



The framing of nationality legislation is affected in two ways by

this constitutional doctrine of State sovereignty in its classic form. For
the first, each State has complete legislative capacity within its own
territory, and secondly, States alone are the subjects of international

4.1 Legislative Competence of the State

The legislative competence of States is an attribute of the
sovereignty of States. In this way a presumption exists "in favor of the
full sovereignty of a State over its territory unless a title or rule can
be shown under which international law would restrict the
sovereignty."51 To quote the Lotus case once more:

McWhinney, op. cit. at 435
Delupis, International Law and the Independent State (1974) 23.

"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 ~

The International Court of Justice has followed the Permanent Court

on this point. In the Asylum case the rule that any derogation from
territorial sovereignty must be established in each particular case
found further support. 54 Thus any limitation on the right of States to
frame their own nationality law must be shown.
Another way of expressing this rule is that nationality falls within
the reserved domain of State authority. The Permanent Court stated it
in this way in the Tunis and Morocco Nationality Decrees case:

"The question whether a certain matter is or is not solely

within the jurisdiction of a State is an essentially relative
question; it depends upon the development of international
relations. Thus, in the present state of international Jaw,
questions of nationality are, in the opinion of this Court, in
principle within this reserved domain." 55

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.

See, .mpra, note 29.
I.C.J. Reports (1950) 274-75.
P.C.I.J. Ser. B, No.4 (1923) 24.
See Sibert, Traite de Dmit lntematinnal, Vol II (1951) at 534.
Schedule of Points Drawn up by the League of Nations Preparatory
Commission, Feb. 15. 1928. League of Nations Doc. C44.M.21. 1928. V.

4.2 Sovereign States as the Subjects of

International Law

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."

The formulation of this object theory of the individual in international

law has been attributed to Heilbron who argued, from Roman law, that
c.·ntities governed by law arc ruled by it either as the subjects or as the
objects of the rights and duties defined by it. 59 As States are the
suhjt'cts of international law then individuals must be the objects. The
bond of nationality was the link between the individual and inter-
national law.

4.3 Single Nationality

As u corollary of this identification of the citizen with his State it

was permissible for an individual to have one, and only one,

!Ill ..Growth nnd Movement of International Law," II I.C.L.Q. (1962) 1056. He

spcuks of the "trnnsnntinnal lc~al order" of the future.
!1'1 Su lleilhrun. l>tu S y stnn dl'.f ViS/kt>l'l't'chts (1896) 63 et uq. See also

Manner. "The Ohjcct Theory of the Individual in International Law," 46 A .J./.L.

( 1952) 42K-49. Manner argues that Hcilhron was guilty of methodological error,
hccnuse the individual can he the final end or beneficiary and so a potential subject
of international lnw. whereas ..ohject" in law refers to means not ends. to things not
to persons (p. 438). Manner held that individuals are both subjects and objects of
internutionul law.

- -- - -- - -

nationality. This has also been explained as the impossibility for an

individual to owe allegiance to two sovereigns at once.

4.4 Diplomatic Protection and the Nationality

of Claims

In addition to the principle of single nationality the doctrine of the

nationality of claims. or diplomatic protection, is a result of the
international legal personality of the sovereign State. Phillimore
considered the right to protect subjects the first aspect of sovereignty,
nonintervention being the second.110 According to this rule of cus-
tomary international law, a government will espouse the claim of one
of its nationals who has been injured by acts contrary to international
law committed by another State if local remedies have been exhausted
without satisfaction. Scelle attributes to Vattel the explanation that
injury to an individual amounts to injury to the State of his
nationality .61 Thus in principle diplomatic protection is exercised at the
discretion of the State and is not an international right of the
individual aggrieved. The claim must have been owned by a national
of the claimant State from the date of its accrual to the date of its
settlement, that is, the nationality connection must have been
continuous. Lastly, a rule based on the equality of States excludes
diplomatic protection in the case of dual nationality where the
individual concerned possessed the nationality of both claimant and
respondent State.

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.

5.1 Classical Writers

In the classics on the subject, dating from before the mid-
ninete-enth century, matters concerning nationality were dealt with in

6• Cnmm~ntari~s upon /numaJional LaK·. Vol. II (3d ed., 1879-89) 9.

61 su Castren. "Some Considerations upon the conception, Development and
Importance of Diplomatic Protection." in Jahrltuc:h fiir lnumationti~s R~cht (1962).
Su Fntschrift fiir Rudolf Lmm 37-48. for an illuminating discussion of these

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
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.
Bodin, op. cit. (French ed., 1583) 91.
Ibid. at 21.
Ibid. at 92.

llw law of nations "hut without particular reference to concrete cases

ur nwtkrn instances."(>" In 1532, rrancisco de Vitoria delivered a set
of lt•l·tures at Salamanca, preserved for posterity in the form of
students' notes, on "the Indians Lately Discovered." His concern was
the lt•gality of the Spanish com1uests of Pem and Mexico, and for this
disl:ussion he quoted freely from Justinian, who defined ius gentium
as "that whkh natural reason has established among all men." He
Jll'llCl'eded to give fourteen different proofs why his countrymen could
travel and sojourn freely in other countries. The fourth proposition for
this l'ltlails conferring citizenship on children born in Indian domains
because of "the mle of the laws of nations, that he is to be called and
is a citizen who is born within the State."'' This would seem to
establish the ius soli as an international standard for acquiring
nationality at birth. Furthermore, if people wish to become citizens by
marriage "they cannot be impeded any more than others, and
consequently they enjoy the privileges of citizens just as others do,
provided they also submit to the burdens to which others submit."'8
So naturalization by marriage, even through the wife, can be acquired
on the sole condition that the person naturalized assumes the duties
imposed on all citizens.
In his De Jure B elli et Pacis Tres, which first appeared in 1625,
Grot ius did not discuss nationality as such. His main concern was with
the legality of war, and the application of rules to the waging of war.
In J602 vessels of the Dutch East India Company had captured a
Portuguese galleon between Malacca and Sumatra and the prize was
taken as booty. The Portuguese were trying to keep the Dutch from
the waters of the East Indies, and when the prize came up for sale
before a prize court in 1604-05, Grotius acted as counsel for the East
India Company, arguing that the seas were free to all for purposes of
trade and that a just war was permissible for Christians. Further, he
had experienced the ruthlessness practiced in war, which had led to
the argument that the use of all arms should be forbidden to
Christians. So he set himself first to prove that a law of nature or
nations existed, based on the sociable and reasonable nature of man
and, "(f]ully convinced, by the considerations which I have advanced,
that there is a common law among nations, which is valid alike for
war and in war, I have had many and weighty reasons for undertaking

M Scott, The Spanish Origin of International Law (1928) 13.

" Ibid. at 35.
Ibid. at 153-54.

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, and.things
which belong to men in common. In Chapter II he cla1ms a nght of
t.emporary sojourn and,

"[f]urthermore a permanent residence ought not to be denied

to foreigners who, expelled form their homes, are seeking a
refuge, provided that they submit themselves to.the establish-
ed government and observe any regulations whach are neces-
sary in order to avoid strifes."71t

Grotius continues:

..After the common right which relates to things follows the

common right which relates to acts."

First comes the right to buy things at a fair price and then

"we think there is included also liberty to seek and contract

marriage among neighboring peoples."

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

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.
Ibid. at 201 .
The Classics of International Law, No. 17 (1934) at 1055.

be voluntary to be compatible with the dignity of a State as summa

potestas. Yet in spite of this Pufendorf, as an advocate of the natural
law basis of the Jaw of nations, recognizes certain rights of the
individual as against his State due to the original contract between
ruler and ruled.
Pufendorf begins Chapter J I of Book 8 with a discussion of how
a man may change his citizenship of his own accord. Here he writes
that there is no dear practice on this and the positive laws of States
must be followed, for there are States where citizens are at liberty to
leave, others where consent is necessary, and others where citizens
may only leave in conjunction with a certain burden, such as the
payment of a sum of money. But where there are no clear rules it is
best "to take for granted that every free man reserved to himself the
privilege of migrating at his pleasure . .. For when a man joins a
State, he does by no means renounce the supervision of his own
actions and property, but his purpose is to secure himself some
excellent protection. " 73
Where Pufendorf does not agree with Grotius is over the question
"whether it is permissible for nationals to withdraw from their State
without permission," discussed by Grotius in §24 of Book II, Chapter
V. In this chapter Grotius deals with the original acquisition of rights
over persons, such as the rights of parents, marriage, associations and
the rights over subject and slaves. The necessity for this discussion
arises because wars arise due to wrongs committed against individuals.
Grotius writes that such withdrawal is not permissible among the
Muscovites "and I do not deny that a civil society can be formed on
such terms." Also the laws of Rome allowed a man to change his
habitation subject to the burdens of his native town. "But we are
inquiring what would naturally be the rule if nothing else were agreed
upon...." Here he stated that a national may not leave if a heavy
debt has been contracted, unless he pay his share at once, or if there
is a state of war or seige and citizens are needed to defend the
country. Further, a large body of citizens may not leave at the same
time because this may defeat the purpose of civil society and it could
not exist. Apart from these exceptions Grotius considered "it is to be
believed that peoples consent to the free withdrawal of their nationals
because from granting such liberty they may experience not less

Ibid. at J349.

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:

"If individuals may leave a country at their pleasure, why may

not more do so when it is to their advantage to change the
seat of their fortunes at the same time?''

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:

" ... [l]t is therefore understood, that a citizen makes, as it

were, an agreement with a state that he cannot be ejected
against his will, unless he deserves it."

He admits that in this way an individual is granted more than a State,

but he defends his argument on the grounds that a State can control
an individual, but the individual's only defense is to withdraw from
the State. He then comments that in practice States can usually
remove suspicious or useless citizens to the colonies, or impose the
milder punishment of relegation whereby a man does not lose the
right of citizenship.
Pufendorf continues that a State may surrender one of its citizens
to a foreign State for punishment if the citizen has injured that State.
And he has little sympathy for deserters, pointing out that they

Gmtius, Book II, Chapter V, §25.
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.

-- --- -- - - -- -- -

"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
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
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

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).
Ibid., "Introduction" by de Lapradelle at ix.
Ibid.. "Preliminaires" at 12.


conditions and with compelling reasons: if a country cannot support

its members, or the sovereign is abusing his power to keep his people
in a state of unbearable slavery or where intolerant laws force a man
to leave his country for religious reasons. Deserters, however, may be
punished for abandoning their country in time of peril to ensure their
own safety.79 Thus, those who leave their country legitimately to
establish themselves elsewhere may take their goods and their family
with them, and if the sovereign should try to hinder those who have
the right to leave he is wronging them, and they may legitimately seek
the protection of the Power which is willing to receive them, as
Frederick-William of Prussia extended his protection to the Protestants
of Salzburg.8 ° Further, a country has the right and even the duty to
take in citizens from other countries except in those cases where it
cannot look after its own citizens, or where the fugitives or exiles
would be detrimental to their own society. There is a duty to welcome
strangers, but also a right to refuse them entry.

5.2 Post-Classical Writers

These writers have been chosen as illustrating the classical view

of the law of nations, when the individual still played a central part,
or at least a recognized part, as the ultimate subject of all law. Nor
were the spheres of public and private international law so well
defined. In the textbooks on international law written at the end of the
nineteenth and the beginning of the twentieth centuries, a change is
noticeable concerning the law of nationality. In these the determin-
ation of nationality is held to be one of the discretionary powers of the
sovereign State. Consideration for the individual, without talking of
the "rights" of individuals, are scarcely mentioned.
Lawrence and Hall, both English jurists, may be taken as
examples of the positivist, dualist, viewpoint. Lawrence wrote that
States make their own nationality rules:

"Each country defines for itself by its municipal law what cir-
cumstances of birth shall make a person its subject.''81

Ibid., Book I, Chapter XIX at 211, 222.
Ibid. at 224-26.
Lawrence, The Principles of International Law (7th ed., revised by P.H.
Winfield, 1925) 199.

Similarly, where nationality is acquired after birth, by naturalization,

each State makes its own rules:

"International law prescribes no general formalities for use

when a change of allegiance is effected; but the Jaw of each
state lays down the conditions on which it will receive
foreigners into the ranks of its citizens."112

Nationality is defined in terms of allegiance and protection, these

being the rights and duties granted to and imposed on States in
relation to their nationals. Lawrence referred to the United States'
assertion of a right of expatriation in a statute of 1868, but added that
most States adhere to the old doctrine of inalienable allegiance.
Hall writes in a similar manner. He considered that it followed
from the independence of a state that it may grant or refuse its
citizenship, and, therefore, citizenship is determined primarily by
municipal Jaw. One limitation on this right he did, however, concede.
This was that citizenship may not be imposed upon a person who is
without doubt the citizen of another State, because that would be
"evidently inconsistent with a due recognition of the independence of
the State to which he belongs. " 83
Hall was aware of the confusion that could arise from the exercise
of unfettered sovereign power in matters of nationality. To deal with
this, he argued that it would be a "distinct gain" if it were universally
recognized that States may impose the condition precedent to a
citizen's change of nationality, and that "the acquisition of a foreign
nationality must not be considered good by the State granting it as
against the country of origin, unless the conditions have been
satisfied." The drafters of nationality laws must in this way take into
consideration the nationality laws of other States. States themselves
impose limitations on their own sovereign powers in this respect.
That some limitations were necessary has been recognized by
many writers. For example, Wheaton gives examples of cases of
conflict arising from "the right of every independent sovereign State
to naturalize foreigners and to confer upon them the privileges of their

Ibid. at 202.
See Hall. A Treatise on International Law (1880) (8th ed. by A. Pearce
Higgins, 1926) 275, 293.

acquired domicil."84 Triepel, in his stud~ of the international regulation

of nationality, points out the confuston that may result from the
unrestricted exercise of State sovereignty. He suggested that it would
have been contrary to intemationa! ~aw if, in t~e Bri!i~h Nationality
Act of 1870, there had been a provtsto_n co~fernng Bnttsh nationality
on all persons speaking English as thetr na~tve language, and that this
might have been followed by a declaratiOn of war by the United
States. 85 The positivist view has been stated more recently by
Schwarzenburger as:

"In principle, international law leaves each territorial

sovereign to decide which of his inhabitants he wishes to
grant nationality. Thus, primarily, the topic is governed by the
rules underlying the principle of sovereignty."

The effect of positivist thought has been above all to relegate

questions concerning nationality to the sphere of private international
law, where the answer sought is one of choice of Jaw. Yet, as the
science of international law develops, the law of nationality may also
change. Judge Jennings points out the two principles of modem public
international law: "the principle of State sovereignty and the principle
of international law." One explains the State in isolation, the other the
State in a society of States. 87

5.3 The Definition of National Status by

International Bodies

Two quotations may be given on the state of nationality law. First

are the two first articles of the Convention on Certain Questions Relat-
ing to the Conflict of Nationality Laws, 1930.88 Article I provides:

. See Wheaton, The Elements of International Law (1936), text of 1866 in
of International Law, No. 19 ( 1936) 119 e 1 seq.
, ~~~epel, "lntemationale Regelung der Staatsangehorigkeit," 1 Z.a.o.R. V. (1929)
. 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
' · · · · · oJ. 179 at 89.

"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:

"Any question as to whether a person possesses the nationality

of a particular State shall be determined in accordance with
the law of thiit State."

Nationality laws are, therefore, part of the legislative competence of

States, but pursuant to article 1, States do not have a duty in inter-
national law to recognize foreign nationality legislation if it is not
"consistent with international conventions, international custom, and
the principles of law generally recognized with regard to nationality."
The special rapporteur of the International Law Commission,
Manley 0. Hudson, expressed it in this way: "In principle, questions
of nationality fall within the domestic jurisdiction of each State."89


The extent of a State's rights to determine to whom its nationality

may be granted, or from whom withdrawn, is dependent on the defi-
nition of State sovereignty and, consequently, of what matters fall
within domestic jurisdiction. As the power of States increased, with
the existence of any rule of international law being dependent on the
express consent of the State affected by it, so nationality matters were
left entirely to the discretion of municipal authorities. National status
was the sole link between the individual and the sphere of inter-
national relations in which international law rules applied. Two anom-
alous situations marred this ordering of nationality questions: an indi-
vidual may be a national of more than one State or a national of no
State and so stateless. Prior to the Second World War, international
efforts concentrated on avoiding these.

See Yearbook of the I.L.C. ( 1952-11) 3, 7. Quoted in Brownlie, op. cit.(l990)
at 81.


1.1 Acquisition of Nationality by Birth and

Naturalization in National Laws

In the exercise of the right to determine the rules governing the

attribution of their nationality, a certain practice of States developed.
Nationality at birth could be acquired in two ways, each showing
proof of a connection between the national and his State. By operation
of law a person born within the territory of a State could acquire its
nationality jure soli. This was the territorial connection, the child
being born within the territorial jurisdiction of the State. Examples of
this type of legislative enactment can be seen, for example, in the
British Nationality Act of 30 July 1948 Part II, section 4 of which

"subject to the provisions of this section, every person born

within the U.K. and Colonies after the commencement of this
Act shall be a citizen of the U.K. and Colonies by birth."1

Another example of the drafting of this kind of provision is contained

in Title I, Chapter I, Article 1(a) of the Argentinian Nationality,
Citizenship and Naturalization Act, No. 14345, of September 28,

"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.


1954: "A person is an Argentine national by birth if he was bom-(a)

In Argentine territory. " 2 The scope of the jus soli was often excluded
from application to the children of diplomatic agents or of an alien in
transit. This exception may extend to persons whose residence is due
to service for a foreign country.
Another mode of acquiring nationality at birth by direct operation
of law was by descent, according to the nationality of one, or both, of
the parents, usually of the father alone, but sometimes also of the
mother. This was the patrilinear or matrilinear connection, known as
the jus sanguinis.3 In the Finnish Nationality Act of 1941 the first
article provided for the acquisition of Finnish citizenship by birth of
a child born in wedlock, if the father is a Finnish citizen or, provided
he does not acquire another citizenship at birth, if the mother is a
Finnish citizen; or of a child born in wedlock of a Finnish mother if
the father is stateless; or of a child born out of wedlock if his mother
is a Finnish citizen. 4 Article 17 of the French law of 1945 contained
similar provisions. 5 According to article 19 of this same law French
nationality at birth could be acquired by a child born in wedlock of a
French mother and alien father with the provision that, where the child
is not born in France the French nationality may be repudiated within
six months preceding his attaining the age of majority. The Bulgarian
Citizenship Act No. 9327 of March 19, 19486 is another example of
acquisition of nationality at birth by descent from father or mother.
Article 1 provides that a child born in Bulgaria of parents only one of
whom is a Bulgarian citizen himself acquires Bulgarian citizenship. If
born abroad to parents only one of whom is Bulgarian he shall acquire
Bulgarian citizenship if he does not acquire citizenship under the law
of the country of the other parent or of the country in which he was
These two grounds of original, or natural, citizenship, by the
operation of the principles of jus soli or jus sanguinis were generally
recognized as forming the basis of national laws concerning

Ibid. at I 3 (insertion). These laws are quoted merely as examples of the form
in which nationality Jaws may be drafted.
For example, Honduran Constitution of28 March 1936, Article 7. Ibid. at 214.
Law No. 325, 1941. Ibid. at 149. See also the Finnish Nationality Act 1968,
No. 40 I, Art. 1.
Ibid. at .132 ~nd 134. Ordonnance no 45-2441 du 19 octobre 1945, portant
Code de Ia Nattonahte Fran~aise.
Ibid. at 60.

nationality by the beginning of the century.' Both were evidence of a

connection between the individual and the State of his nationality.
Nationality can also be acquired after birth by naturalization. A
certain practice of States could also be observed with regard to this.
A period of residence in the country of naturalization was normally
required in legislation concerning naturalization. So, for example, in
French law of I 945, section 5, concerning the acquisition of French
nationality by decision of a public authority it was enacted that a
period of five years habitual residence in France was a necessary
precondition of naturalization. 8 This residence requirement could be
reduced to two years under three different headings: by reason of birth
on French territory or marriage to a French citizen; or of attainment
of a degree at an institute of higher education; or because of having
rendered important services to France, which include the possession
of qualities or qualifications which may be of service to France. The
Brazilian Constitution of September 18, 1946, required "Continuous
residence in the national territory for a period of at leave five years
immediately preceding the application" for naturalization for it to be
Some laws contained provisions requiring a connection with the
population of the country of naturalization. For example, the Brazilian
Constitution stipulated as a condition for naturalization in Article 8 III:

"Ability to read and write the Portuguese language, regard

being had to the applicant's circumstances."

This type of provision may also require an ethnic connection. In the

Liberian Law of 8 February 1922, Section 69 on naturalized citizens
stipulated that:

"The Statutes of the Republic of Liberia with respect to

naturalization authorize the naturalization only of Negroes, or
persons of Negro descent."

The naturalization of all other persons "is unauthorized and void." 10

A connection other than a territorial one can also be the grounds for

See, e.g., Moore, Digest of International Law Vol. Ill (1906) 276.
Laws Concerning etc., 152, 159.
lb;d., Article 8 II 152 at p. 54
Ibid. at 288.

granting naturalization. In the Finnish Law of 9 May 1941, Finnish

citizenship could be granted to a person who was formerly a Finnish
citizen "or if there are some other special circumstances present by
reason of which the applicant should be admitted to Finnish
citizenship. " 11

1.2 Nationality Questions in Connection with

Claims Settlements before International
During the nineteenth and early twentieth centuries a number of
claims tribunals were set up on a conventional basis to hear claims by
States for wrongs suffered by their citizens in foreign countries
without adequate local redress, and to award damages. 12 In the practice
of these arbitral tribunals questions concerning nationality arose in
connection with the rule of the nationality of the claim. This rule
stipulates that a State can only bring a claim on behalf of a person
who possesses its nationality at the time of the wrong suffered and up
to the time of the presentation of the claim. In the judgment of the
Permanent Court of International Justice in the Panevezys-Saldutiskis
Railway case

"it is the bond of nationality between the State and the

individual which alone confers upon the State the right of
diplomatic protection."13

Also international claims tribunals have had occasion to determine

national status for the purpose of the possession of a claim before the

1.2.1 Naturalization and the Residence Requirement

In a number of cases claims commissions have had to consider the

residence requirement of the United States law on naturalization. This

Ibid. at 150.
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.
Estonia v. Lithuania, P.C.I.J., 1939, Ser. AlB No. 76.

they have done when exercising the right of a tribunal to determine

the extent of its own jurisdiction.
The Flutie caseS were heard by the American-Venezuelan Mixed
Claims Commission set up by the Protocol of February 17, 1903. The
claimants in this case, Elias A. Flutie and his wife Emilia Alsous
Flutie, whose claims were joined on the grounds that the wife's
nationality depends on that of her husband, both brought claims, as
U.S. citizens, against Venezuela for loss of property and ill-treatment
suffered during the revolution in Venezuela in 1900-1901.
Commissioner Bainbridge, speaking for the Commission, maintained
that it had first to be ascertained whether Flutie was a U.S. citizen, for
Article I of the Protocol conferred jurisdiction over "all claims owned
by citizens of the United States of America against the Republic of
Venezuela which have not been settled by diplomatic agreement, or
by arbitration, between the two Governments." Therefore, said

"the Commission, as the sole judge of its jurisdiction, must in

each case determine for itself the question of such citizenship
upon the evidence."

Flutie, as a native of Syria, came to the United States in 1892. On

the 2nd July 1900, he was naturalized as a citizen of the United States
in the District Court of the United States of America for the Eastern
district of New York, sitting in the city of Brooklyn. Section 2170 of
the Revised Statutes of the U.S. provides that:

"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'

Ralston, Venezuelan Arbitrations of 1903 at 38 et seq.

"·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:

.. \Vt.ah.•vt•r may be the conclusive force of judgments of

naturalization under the municipal laws of the country in
whid1 tlwy arc granted, international tribunals, such as this
Commission. have claimed and exercised the right to
dch.~nnint~ for themselves the citizenship from all the facts
pn~scntt.~d. ··

The Commission could thus question the validity of a certificate of

naturalization or other prima facie competent and sufficient proof.
In other cases the United States-Costa Rican Tribunal, set up
under the Convention of July. 1860, had acted as the competent
United States municipal court would have done, faced with a
fraudulent acquisition of nationality, and dismissed the demands of
daimants before the Claims Commission.'!! The Commissioner in the
Spanish-American Commis-sion defined fraud as one of the grounds
for itnpeaching an allegation of naturalization, defining fraud as
'\:onsisting of international and dishonest misrepresentation or
suppression of facts.'' It is worthy of note, however, that they held that
an a11egation of naturalization could be impeached if it "was granted
in violation of a treaty stipulation or of a rule of international law." 16

1.2.2 Nationality and Domicile

These cases mentioned have turned on recognition of the United

States law requiring five years residence and a declaration of intention
as conditions for naturalization. In addition to this the relationship
between nationality and domicile in general was also raised. For
purposes of status and capacity in municipal law some countries
favored nationality, others domicile. Thus the French Civil Code of
1804 provided in Section 3 that the status and capacity of a
Frenchman is to be decided by his nationality regardless of whether
he is domiciled (residant) abroad, while the common law countries

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.
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.

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.

See Schmidt, "Nationality and Domicil in Sweden" in 4 ILQ (1951) 39-52.
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.
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.
Ibid. at 2690--95.


When faced with the question as to whether the law of the

domicile of the decedent or the law of his nationa1ity should rule to
determine who are the heirs, Umpire Ralston applied the law of the
domicile to determine the question in the Brig none case.11 Further, in
determining the status of a married woman, the law of the domici1e
controls. This rule was laid down by the British-American Claims
Commission in a number of cases.
These case, however, were not always followed as good law. In
the later case of Fluvel Betcher v. CostaR ica, the Umpire, Bertinatti

"The domicil of the claimant in Costa Rica does not deprive

him of the right of claiming the protection of his native
government in the case of open injustice, such as in the case
of imprisonment without cause and not followed by any
trial. " 23

Similarly in Marcos Schraber v. Mexico, 24 Mr. Ashton, the

American Agent, argued against the decision in the Laurent case, on
the grounds that there was no basis for the decision that domicile is
the same as citizenship. The only case in which domicile would
determine nationality was that in which a person claims or owes
double aJJegiance. Here the domicile might determine the national
character of such person for practical purposes. He further observed
that in the Laurent case the problem was not concerning British
subjects domiciled in the U.S., but of British subjects domiciled in
Mexico. In this way the fact of domicile may be recognized by an
international tribunal as determining nationality where a dual national
claims the protection of one of the countries of his nationality or
purported nationality.
In the Anthony B arelay case/5 the decision in the Laurent case
was not followed. Barclay presented a claim as a British subject to the
American-British Claims Commission at Washington, under the Treaty
of Washington of May 8, 1871, for the appropriation of property as
well as for acts of pillage and destruction by General Sherman's army

No date. See Ralston, op. cit. (1926) 146.
Ibid. at 142.
Moore, A rbitrarions at 2695.
Ibid. at 2696 et seq.
Ibid. at 2721.

on three plantations in Georgia. The United States demurred on the

grounds that the claimant was domiciled and engaged in trade and
business in the enemy's country and so could not claim to be a British
subject. On December 16, 1891, the Commissioners unanimously
disallowed the demurrer. They reasoned as follows:

"The subject or citizen of one State domiciled in another

acquires, in some respects, privileges, and incurs liabilities,
distinct from those possessed in right of his original birth or
citizenship. But he still remains the subject or citizen of the
state to which he originally belonged.... " 26

1.2.3 The Link and Dominant Nationality

It is clear that there are dicta from the decisions of international

claims tribunals on the concept of nationality. In some cases the
tribunals have had to apply United States Jaw, and, more particularly,
the residence requirement stipulated in the U.S. Jaw on nationality
were considered more particularly when applying the common Jaw
rule that the Jaw of war recognizes that residence may influence the
status of an individual, and generally as to whether nationality or
domicile determines status, the common Jaw recognizing to some
extent that domicile determines the applicable Jaw.
In two important cases the principle of "effective nationality" was
dealt with by international tribunals, the one applying the principle,
the other rejecting it.
The nature, or existence, of an active or effective link was dealt
with in the Canevaro case. 27 This was a claim by the Italian
Government against Peru on behalf of Napoleon Carlos and Rafael
Canevaro for the payment of a sum of money owing them by the
Government of Peru in accordance with the provisions of the Law of
Internal Revenue on December 12, 1880. Napoleon and Carlos
Canevaro were Italian subjects, but the Italian nationality of Rafael
Canevaro was contested by the Government of Peru, assignment of the
debt being influenced by the nationality of the creditor. On April 25,
1910, a Protocol to subject the case to arbitration was signed in Lima.
The case was heard on the 20th to 22nd April and the award made on
May 3, 1912. To the question put to the arbitrators in the Protocol:

Ibid. at 2727.
U.N. R.I.A .A., Vol. XI, at 397-410.

Does Don Rafael Canevaro have the right to be considered as an

Italian claimant? The Arbitrators answered in the negative. By birth
he was a Peruvian national by Article 34 of the Constitution, iure
sanguinis. It was held that the Peruvian Government may regard him
as a Peruvian national because he stood for a seat in the Senate, where
only Peruvian nationals sit, and because he accepted the functions of
Consul-General of the Low Countries after requesting the author-
ization of the Government and then the Congress of Peru. It would
seem that a new element is considered in the determination of national
status by an international court. Where dual nationality exists from
birth the dominant nationality may be determined by the court on the
grounds of the wishes, or intention, of the individual as displayed in
his actions.29
In the Salem case30 the Arbitral Tribunal expressly rejected the
decision reached in the Canevaro case.

"The principle of the so-called 'effective nationality' the

Egyptian Government referred to does not seem to be
sufficiently established in intentional law. It was used in the
famous Canevaro case; but the decision of the Arbitral
Tribunal appointed at that time has remained isolated."31

The Salem case was a decision of an Arbitral Tribunal set up pursuant

to the Agreement between the United States of America and Egypt
regarding arbitration of the claim of George J. Salem, signed at Cairo,
January 20, 1931. The United States claimed, on behalf of George J.
Salem, who was born in Egypt and naturalized in the United States,
an indemnity amounting to 211 ,724 Egyptian pounds (gold). The
claim was dismissed by the Tribunal, not on the grounds of Salem's
nationality, but on the responsibility of the Government of Egypt for
the action of the Mixed Court of Appeals at Alexandria in a litigation
instituted by a national of capitulatory Power. The court rejected the

Ibid. at 406. "Considerant qu' en fait, Rafael Canevaro s' est a plusiers reprises,
comporte comme citoyen peruvien. .. ."
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."
U.N. R.I.A .A ., Vol II., at I 163 et seq.
Ibid. at 1187.

Egyptian argument that an international judge must, in such cases as

these, ascertain which is the effective nationality.
In this case a strong argument against questioning the acquired
American nationality of Salem must undoubtedly have been the
wording of the agreement to submit the claim to arbitration, where
Salem is referred to as "the American citizen" in Article 3. The court
having dismissed the argument that it could not interpret the arbitral
agreement, discussed the meaning of the words and came to the
conclusion that the court could examine whether the American
citizenship of Salem really exists. An argument was put forward to
show "the intention of George Salem to settle finally as a citizen in
the United States." 32 The court did not consider the fraudulent nature
of Salem's American nationality sufficiently proven.
In a number of international arbitrations the arbitrators have thus
considered the connection between an individual and the State of his
nationality, either when determining whether the requirements of
domicile according to the municipal law was complied with, as in the
Flutie case, or which nationality of a dual national was dominant. 33
The concept of a dominant or effective nationality has been
applied by national courts when confronted with the necessity of
having to determine the nationality of a person who is claimed as a
national by more than one State. In the Baron de Bom v. The Yugo-
slav State, 34 the court held that if the de cujus is a dual or multiple
national and one of his States of nationality brings a claim on his
behalf vis-a-vis a State which does not claim him as its national the
respondent State is not obliged to recognize the nationality in the
absence of a real and substantial connection between the claimant
State and the de cujus. So, too, in the case of M aga/hais v. Fe man-

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."
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.
3 A.D. (1925), Case No. 205.

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:

..that the principle of active nationality. i.t'., the determination

of nationality hy n combination of ckmcnts of fnd and law,
must ht· foll0wed hy an international tribunal."

Before considering the cast.'law of the International Court of Justice,

other evidence of the practice of States may shed light on the nature
of the link.

1.3 The Bancroft Treaties

As a young country with a large proportion of naturalized citizens.

the United States had to deal with the prohlem of expatriation. From
1868 onwards. a series of naturalization conventions were concluded
by the United States. known as the Bancroft Treaties because they
were negotiated on behalf of the United States by George Bancroft.
American Minister to Prussia and the North German Confederation.
By these treaties the residence requirement of the United States
municipal law became a criteria of nationality between the signatory
States. Article I of these treaties provided that a citizen of the North
German Confederation who becomes a naturalized citizen of the
United States and "shall have resided uninterruptedly within the
United States for five years" shall be held by North Germany to be a
United States citizen, and reciprocally for a United States citizen who
lives for five years in North Germany:" Article IV provides:

~ Decided by the Portugll('se Supr~me Court on July 10. 1936. 10 A.D.
(1941-1942). Case No. 83.
3 A.D. (1925-1926). No. 206 at 279.
Reproduced in Scott. ed., Cau.f on lnttmarional Law ( 1922) 156.

"If a German naturalized in America renews his residence in

North Germany, without the intent to return to America, he
shall be held to have renounced his naturalization in the
United States,"

and reciprocally for American nationals in North Germany. In an Act

passed by Congress in 1907, "in reference to the expatriation of
citizens and their protection abroad," it was provided that

"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

The United States entered into twenty-six of these agreements,

seventeen of which remain in force, including the multilateral Inter-
American Convention, signed at Rio de Janeiro in 1906.39 The purpose
of these treaties was to gain recognition of the right of expatriation for
naturalized U.S. citizens and to prevent foreign governments from
imposing military obligations on their former citizens. 40 It may be
noted that the fact of residence, in this case in the country of origin,
was taken as a presumption of intention which could be disproved by
contrary evidence.

1.4 The Institute of International Law

At the Twelfth Session of the Institute of International Law at

Lausanne, from the 3rd-8th September, 1888, the determination of
dominant nationality arose in another context. According to Article 6
of the Statutes of the Institute it was not possible to elect a national
of one State, or confederation of States, if, at the time of the election

38 /d.
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.
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.

the number of such nationals already comprised one-sixth of the total

number. The same proportion applied to associate members. A
problem arose on the election of M. Stoeck as an associate member.
Austrian by birth, Stoeck acquired Prussian nationality when he was
appointed to a chair at Greifswald University, where he was then
working and living. 41 A commission was appointed to examine the
application of Article 6 of the Statutes in cases of dual nationality, and
M. Renault gave a report on behalf of three members of the
Commission. In cases of a single nationality there was no ambiguity
in the application of the Statutes. But doubt arises where an individual
possesses two nationalities at the same time, such as where a Swiss
acquires a foreign nationality without renouncing his original
nationality in accordance with the terms of the federal law of 1876, or
where a German acquires a new nationality because the German law
of 1870 does not provide for the automatic loss of citizenship on
acquisition of a new one. The commission held the view that for the
purposes of the Institute's Statutes such an individual should be
considered a national only of the State whose nationality he holds and
where he resides or in whose service he works. It is there where law
and fact are united and where the active nationality is to be found, in
contrast to the rather theoretic nationality which subsists at the side.42
At the session at Cambridge in August, 1895, and that in Venice
in September, 1896, the Institute of International Law held discussions
on questions of nationality.43 In 1895 certain principles were formu-
lated: (1) no one shall be without a nationality, (2) no one shall have
two nationalities simultaneously, (3) everyone shall have the right to
change nationality, (4) renunciation pure and simple is not enough to
cause loss of nationality, and (5) nationality of origin shall not be
transferred from generation to generation ad infinitum for those born
on foreign soil. 44 In 1896, the 1Oth Commission reported on the con-
flict of laws in matters of nationality. The matters dealt with were

A nnuaire I.D.I., Vol. X (1888-89), 23-25.
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.
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."
A nnuaire J.D. I., Vol. XIV, at 914 et seq.

naturalization and denationalization which will be discussed below;s

but the question of a link or bond did arise. A French law of June 26,
1HH9. provided that any individual who was born in France of a
foreign father who was himself born there would be a French subject.
This was a reliance on the principle of ius .s·ofi which M. Stoeck
strongly opposed. Others also found it inadequate, M. Despagnet
thought it unsatisfactory where there was no habitual residence
("etablissment fixe") and M. Lehr said that he was in favor of such a
law only on the essential condition that the birth of father and son on
the foreign territory "soit consideree comme une presomption
d'etablissement permanente de Ia famille dans ce pays." However,
Article 3 of the proposed rules was left in the same form as the
French law of I 889:

"L'enfant ne sur le territoire d'un Etat d'un pere etranger, qui

lui-meme y est ne, est de plein droit et sans option possible,
revetfi de Ia nationalite de cet Etat."

The only exception applied to children born of diplomatic agents

properly accredited to the country in which they are bom. 46

1.5 Codification

1.5. 1 The League of Nations

In these discussions at the Institute, the requirement that there

must be a link or connecting bond between a State and the individuals
who are its nationals received scant attention. With the codification
that was undertaken under the initiative of the Council of League of
Nations there was a clear change, even though the primary aim of the
codification was "to reduce so far as possible cases of statelessness"
and dual nationality. This opinion was expressed at the conference for
the Codification of International Law held at The Hague in March-
April, 1930. The Conference, for example, drew the attention of States

Ibid., Vol. XV, at 233-71.
Annuaire 1.0.1., Vol. XV (1896), at 131.

to the advisability of examiuiug at a futur e coufcrcru.:c <-JIICf'ltums C<HI

nected with the proof of uatiouality .'n
On J)~ce mhcr II, I 'J24, l.he ('ouucil of I he Lc;eguc dcc idt;d to xct
up a "Committee of l ~ xpcl'ls for the l'rogrcssi ve Codifi<.:atiou of Inter·
national Law;'411 who were t.o report. to (iovemrncutx not Mcrnhcrs of
the L~ague as well as to After these experts had met three
ti mcs between 1925 and I 927 seven subjects were propoxed ax "ripe"
for codification. The Rth Assembly of the I.cague of Nations adopted
the following resolution on Septcrnher 27, I <J27: Three questions were
to be submitted to the first Codification Conference, the first of whi<.:h
was Nationality.!\'' On September 2H, I<J27, the Council of the League
created a Preparatory Committee for the International Codification
Conference, and this Committee of Five were to "collate the views of
the different Governments and to prepare a statement which will show
which are the main propositions commanding general support, and
where the main divergences lie, and thus to present the Conference
with bases of discussion in the case of each of the three topics."51 This
was to be a systematic effort to restate, improve, and codify the
traditional body of international law. In connection with this the
Faculty of the Harvard Law School undertook in November, 1927, to
organize a Research in International Law for the purpose of preparing
a draft convention on each of the three subjects. The Director, Manley
0 . Hudson, pointed out that "the Research is wholly unofficial, and
the drafts must not be taken as in any way representing the views of
the Government of the United States." 5 z Further, the Institute of Inter-

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 .. .."
League of Nations Official Joumlll ( 1925) 143.
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 .
The other two were territorial waters; and responsibility of States for damage
done in their territory to the Person or Property of Foreigners.
23 A .J.I.L. (1929), Specilll Supplement, and McNair, op cit. (1928) at 134.
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

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:

"Only the codification which we call official, the formulation

of which is agreed to by the States, has a direct influence on
the content of international law; but codification of a private
nature, that is to say the research and suggestions put forward
by various societies, institutions and individual learned
writers, have also had a remarkable effect on the development
of the legal discipline we are discussing."54

At the 1930 Conference for the Progressive Codification of

International Law, the Hague Convention on Certain Questions
Relating to the Conflict of Nationality Laws was drawn up and signed,
with three Protocols, also signed on the same day, the first on relating
to Military Obligations in Certain Cases of Double Nationality, the
second Relating to a Certain Case of Statelessness, and the third,
which never came into force, Concerning Statelessness. 55 The Bases
of Discussion drawn up for the Conference by the preparatory
committee were prepared on the views of Governments sent in reply
to the schedule of points drawn up by the preparatory committee. In
its second Report the preparatory committee expressed the view that
the Conference must carry out its work of codification bearing always

national interests." Kenny, "Manley 0. Hudson and the Harvard Research in

International Law (1927-1940)," II lnt'l Lawyer (1977) 321.
23 A .1./.L . Special Supplement (April 1929) 119.
J.L.A Repon of the 52nd Conference (Helsinki, 1966) 11-25 at 11. English
translation from the French text by the present writer.
L.N.T.S. Vol. 179 at 90; Vol. 178 at 229, and Vol. 179 at 116. The Third
Protocol is in L.N. Doc. C. 27. M. 11. 1931. V. The 1930 Convention entered into
force on July I, 1937. Twelve States were parties to it by the end of 1939, eight
States have notified succession to it since 1945, and one, Swaziland, acceded to it in
1970. Multilateral Treatie.v in Respect of Which the Secretary-General Performs
Dttpository Functions. As at Dec. 1991 U.N. Doc. ST/LEG/SER.D (1992).


in mind that it would amount to a setback if the provisions of the

~odifi~ation were less advanced than the actually existing law. 541
Certain relevant articles of the convention may be given here.
Artidcs 1 and 2 have been given above. 57 Article 3 stated that a per-
son possessing dual or multiple nationality "may be regarded as its
national by each of the States whose nationality he possesses." This
is to recognize that so long as the two principles of jus soli and jus
.wmRuinis apply to the acquisition of nationality at birth some cases of
dual nationality will subsist. 58 This being so, some problems may
The questions put in the schedule of points dealt with the
principles to be applied in problems concerning dual nationality.
Governments were asked if they favored the criterion of domicile for
determining national status, or that of habitual residence, or of the
nationality last acquired, or of the nationality chosen by the person
concerned. Or they were asked to suggest other criteria for
determining dominant nationality. Three instances in which a problem
may arise were given. First, the question may arise before the
authorities and courts of a State which attributes its nationality to the
person concerned. Article 6 of the Convention provides for the right
of a dual national, where the nationalities are "acquired without any
voluntary act on his part," to renounce one of these "with the author-
ization of the State whose nationality he desires to surrender." The
second paragraph of the article provides that "This authorization may
not be refused in the case of a person who has his habitual and
principal residence abroad," but the proviso is added "if the conditions
laid down in the law of the State whose nationality he desires to sur-
render are satisfied."

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.
su, .m pm. Chapter I. at 28-29.
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.''

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:

"A State may not afford diplomatic protection to one of its

nationals against a State whose nationality such person also
possesses. ''59

As to the question presenting itself to a third State, the proposal that

account should be taken of a person's own choice was clearly rejected
by a majority of the Committee, who felt that the person concerned
must show by his acts with which State he is connected. So Article 5
provides that:

"Within a third State, a person having more than one

nationality shall be treated as if he had only one. Without
prejudice to the application of its law in matters of personal
status and any conventions in force, a third State shall . . .
recognize exclusively in its territory either the nationality of
the country in which he is habitually and principally resident,
or the nationality of the country with which in the
circumstances he appears to be in fact most closely

In these ways nationality, to be va1id in the international sphere,

must rest on the objective criterion of habitual and principal residence,
with the ahernative addition of close connections, which are
undefined. This article, however, does not apply to those situations
where the two States of which the individual is a national, are
opposing parties. So, too, Article I of the Protocol Relating to Military
Obligations in Certain Cases of Double Nationality provides that:

"A person possessing two or more nationalities who habitually

resides in one of the countries whose nationaJity he possesses,
and who is in fact most closely connected with that country

59 Similarly Article 16 of the Harvard Draft Convention on the Responsibility

of States provides: "A State is not responsible if the person injured or the person on
behalf of whom the claim is made was or is its own national.'' 23 A .J.I.L. (1929),
Special Supplement at 200--02.
60 League of Nations Doc. C. 25 M. 14 (1931). V. 178 L.N.T.S. (1930) 227.

shall be exempt from all military obligations in the other

country or countries."

Articles 14 and 15 provide for the application of the jus soli

principle where otherwise a person would be stateless. Article 14
provides that a "child whose parents are both unknown shall have the
nationality of the country of birth." Also, a "foundling is, until the
contrary is proved, presumed to have been born on the territory of the
State in which it was found." Article 15 provides:

"Where the nationality of a State is not acquired automatically

by reason of birth on its territory, a child born on the territory
of that State of parents having no nationality, or of unknown
nationality, may obtain the nationality of the said State."

The nature of the obligation imposed on States by the words "may

obtain" would seem to be unclear, "may" being permissive and not
compulsory, particularly as Article 15 ends with the sentence:

"The law of that State shall determine the conditions

governing the acquisition of its nationality in such cases."

However, for the article not to be without meaning in its application

some obligations must be placed on States to grant their nationality to
persons born on their territory who would otherwise be stateless. 61

1.5.2 The Harvard Draft Code

The Harvard Draft Code on Nationality, prepared in anticipation

of the first conference on the codification of international law at The
Hague in 1930, is considerably more innovative than the Hague
Convention itself, being by its nature de lege ferenda. In the Bases of
Discussion of the League of Nations codification conference the
replies of governments showed caution in suggesting limitations to the
right of States to legislate on matters of nationality. The South African
and Australian governments replied that the limits were the duties

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."

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:

"but under international law the power of a State to confer it~o~

nationality is not unlimited."

This is added to the principle contained in Article 2 that:

"Except as otherwise provided in this convention, each State

may determine by its law who are its nationals, subject to the
provisions of any special treaty to which the State may he a

In the comment it is pointed out that although it is difficult to state

precisely the limitations which exist in international law "yet it is
obvious that some limitations do exist."63
Article 3 of the Harvard Draft recognizes two grounds for the
conferment of nationality at birth:

"(a) at birth of such person within its territory or a place

assimilated thereto (jus soli), or
(b) the descent of such person from one of its nationals (ju.f

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:

League of Nations Conf. for the Codif. of Int. Law, Bases of Discussion I.
Nationality, 1929. V.I.
' In 23 A .1./.L. (1929), Special Supplement at 26.

··A Statt.~ shall confer its nationality at hirth upc.lll u pl·rson

h0n1 within its t~rTitt,ry if sud1 pt'fSlltt d\l~S llllt arquirt·
another natillllality at birth."

Tht' connt:'\.'tion or tht' bond of habitual rt•sidt•nrt.' is l't't.llgni:t.t'd in

a number t.lf artidt'S of the Harvan.J Draft. Art irk 14 providt•s in prin-

•Except as otherwist' provided in this ronvcntion a State may

not naturalize an alien who has his habitual residence within
the territory of anNht'r State.··

Article 16 recognized the mle. contained in tht• Bancroft Treatks.

that naturalization acquired by a person who then "estnhlisht.•s n
residence of a pennanent character within the tt•rritory of the State of
which he was formerly a national" may rt•acquire. by imposition and
without his own consent. that State· s nationality and lose his
nationality by naturalization. A person who has the nationality of two
or more States shall perform his military or other national service in
the State where he has his ''habitual residence" (Article 11 ). Similarly.
such a person shall have. at the age of 23. the nationality of t.he State
in the territory of which he then has his habitual residence or. if he
resides in a State of which he is not a national. in the territory of the
State whose nationality he has and in which he last had his ..habitual
residence" (Article 12). While double nationality was possible at birth
at maturity one endowed with this status must declare for one State or
another under the principle of "habitual residence." A woman who
marries an alien may retain her nationality unless she acquires the
nationality ..of the State of which her husband is a national and
establishes or maintains a residence of a pennanent character in the
territory of that State·· (Article 19). In the comment to Article 4. in
which the term .. habitual residence" is first used. it is defined as

..Generally speaking it refers to the place where a person has

his principal place of abode. or if that cannot be ascertained.
the place which is the center of his principal activities and
interests. " 64

~ Ibid. at 32.

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:

..An examination of the nationality laws of the various States

wiiJ show that domicile and residence play a very
considerable part in determining the nationality of persons
born in one State of parents having the nationality of another

1.6 Model Statutes on Nationality and


In the Report of the Committee on Nationality and Naturalization

adopted by the International Law Association at Stockholm in 1924,
a model Statute was drafted which was to be recommended for
incorporation into municipal legislation so far as is necessary. There
it was proposed that in cases of naturalization the nationality of the
conferring State should be acquired on the condition

"that the applicant must be domiciled within the State of

which he or she desires to become a citizen and must have
resided within that State or been in the service of that State
during a specific period."

The reasoning here would seem to be based on those cases, discussed

above," where the acquisition of United States citizenship was held
to be null and void because acquired fraudulently, without fulfillment
of the requirement of residence. Indeed, the comment to Article 17 of
the Harvard Draft states:

" ... arbitral tribunals have held that, where the requirements
in the naturalization laws concerning residence have been

Ibid. at 42.
' ' Su. supm. " 1.2.1 Naturalization and the Residence Requirement."

clearly and flagrantly violated, a fraudulent intent will be

, .i7
presumed .

In the Resolution on Nationality adopted by the Institute of

International Law at its Stockholm session, in 1928, the phrasing of
the model statute of the International Law Association was followed,
although in inverted form. Article 3 of the Resolution provides:

"No individual can by naturalization acquire a foreign

nationality so long as he resides in the country whose nation-
. he possesses. ,68

The Hague Convention of 1930 was discussed at the session of

the Institute of International Law at Cambridge in 1931. In the Report
presented by Borchard for the 19th Commission of the Institute on the
subject of the diplomatic protection of citizens abroad, Articles 1 and
2 of the 1930 Convention were discussed. It was pointed out that in
cases of diplomatic protection the defendant State may question
whether the individual on whose behalf the State is claiming is in fact
a citizen of the claimant State at the time when the claim arises and
when it ·is presented. Nor is simple confirmation of the possession of
nationality enough: "une preuve adequate et suffisante de cette
nationalite serait requise." 69 The conclusion reached was that there was
good authority for the rule that in cases of diplomatic protection the
de cujus must have domicile at the time of injury and at the time of
presentation of the claim. A State's right to confer its nationality can
in this connection be impeached. In the discussion on this point J.B.
Scott contended that, as the purpose of the Institute is "to further the
development of international law it would be wrong to deny an
individual the remedy of diplomatic protection because he had
changed nationality." This view, however, was not accepted by the
Borchard pointed out that in cases of dual nationality dealt with
under Article 4 of the 1930 Convention the court must sometimes
determine the dominant nationality, and where the claimant had opted
for the nationality of the defendant State then the claim would be

23 A .J.I.L. (1929), Special Supplement 59.
"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.

rejected for lack of jurisdiction. To determine the dominant nationality

the criterion most frequently used has been domicile; continuity of
domicile may be considered as a form of option of nationality. 70


2.1 The Permanent Court of International Justice

With the establishment of the Permanent Court of International

Justice in 1921 the content of public international law was greatly
clarified and developed by the Court's judgments and advisory
Article 38 (I) (d) of the Statute of the International Court, both of
the Permanent Court and the present International Court, provides that
the Court shall apply in such disputes as are submitted to it

" ... subject to the provisions of Article 59, judicial decisions

and the teachings of the most highly qualified publicists."

Article 59 provides that:

"The decision of the Court has no binding force except

between the parties and in respect of that particular case."

The Article is drafted so that judicial decisions, without specification

as to which judicial decisions are placed almost as subsidiary sources
together with textbooks, and subject to Article 59. Article 38(2) gives
the Court power to decide a case "ex aequo et bono," if the parties
agree thereto. The common law doctrine of binding precedent does not
apply to decisions of the I.C.J. and yet, as pointed out by Parry and
others, a decision of the Court carries great authoritative weight. 71
Those cases before the P.C.I.J. which touched on the question of
international rules governing the exercise of a State's right to
determine who are its nationals were concerned chiefly with the
interpretation of those articles of the Peace Treaties which dealt with

Ibid. at 291.
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.


tltl' :h . ''llll~tth,ll\ ,,f 11 tli,,nalit . I\ IHtmhcr of new or enlargcll Statt•s


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

,,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.
P.C.I.J. Ser. B. No. 7. Hudson. Rr1wrrs Vol. I. 24 ~t uq.

Treaty of June 28, 1919, concluded between the Principal Allied and
. dp
Assoctate owers, 76 on the one hand, and Poland, on the other:

"Poland admits and declares to be Polish nationals ipso facto

and without the requirement 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 coming into force of the present
treaty they are not themselves habitually resident there."

In a petition addressed to the Council of the League of Nations by the

Germanic League of Bydgoszcz (Bromberg) on November 12, 1921,
it was stated that the Polish Government interpreted this article so as
to require that the parents must have been habitually resident in Polish
territory on January 10, 1920, the date of the coming into force of the
Minorities Treaty. The Court was requested to advise on the validity
of this interpretation, which the petitioners contested. Having first
dealt in the affirmative with the question of whether the matter came
within the competence of the League of Nations the Court came to the

"[t]hat Article 4 of the above mentioned Treaty does refer

only to the habitual residence of the parents at the date of the
birth of the persons concerned,"

and that

"[t]o impose an additional condition for the acquisition of

Polish nationality, a condition not provided for in the Treaty
of June 28, 1919, would be equivalent, not to interpreting the
Treaty, but to reconstructing it."

The Court felt its position was clear, having been asked to deal with
a question of interpretation of a Treaty clause. They stated:

"Though, generally speaking, it is true that a sovereign State

has the right to decide what persons shall be regarded as its

76 That is, the United States of America, The British Empire, France, Italy. and

nationals, it is no less true that this principle is applicable

only subject to the Treaty obligations referred to above,""

that is, of the Minorities Treaty.

The Court did, however, also deal in a more general way with the
connecting link required between a State and its nationals. Here the
very purpose of the Minorities Treaties was a stake, and, indeed, the
relationship between the new States and the enlarged States and their
populations. The Court stated:

"One of the first problems which presented itself in

connection with the protection of minorities was that of
preventing these States from refusing their nationality, on
racial, religious or linguistic grounds, to certain categories of
persons, in spite of the link which effectively attached them
to the territory allocated to one or other of these States."

Further, in its analysis of Article 4 of the Polish Minorities Treaty

the Court enlarged upon the meaning of nationality acquired by reason
of birth on the territory, nationality jure soli. In Article 4

"the Treaty clearly takes the date of birth of those persons as

a basis and established a close relationship, an intentional
synchronization between their birth and the habitual residence
of their parents. " 78

This, the Court considered, was an entirely logical treatment of the

problem, there being a 'moral link' between the child and his place of
birth. The drafters of the Treaty wished to reduce the element of
change; this was precisely the argument put forward, to no avail, at
the 1896 session of the Institute of International Law in criticism of
the French Law of 1889, by which any individual born in France of

Hudson, op cit., Vol. I, at 25.
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.

a foreign father who was himself born there would be a French

subject. 79
The P.C.I.J. was called upon to interpret provisions of a Peace
Treaty laying down habitual residence as one of the requirements for
the automatic acquisition of nationality following territorial adjust-
ments. TheN ottebohm case before the present International Court, on
the other hand, constitutes a leading case on the rules regarding the
effective link between a State and its nationals. It has also, it is
submitted, particular authority as the leading case on what is
sometimes referred to as an international law of nationality, and for
this reason will be quoted here at some length.

2.2 The Nottebohm Case

The Nottebohm case,80 was taken to the I.C.J. by the Principality

of Liechtenstein on behalf of Mr. Friedrich N ottebohm, at all material
times a Liechtenstein national. The principal claim put forward by
Liechtenstein was for the restitution of property wrongfuiJy seized
from Mr. Nottebohm by the Government of Guatemala between 1942
and 1946, without compensation, and in breach of their obligations
under international Jaw .81 Damages were claimed for deterioration to
that property. Secondly, Liechtenstein claimed damages from the
Government of Guatemala for the wrongful arrest and detention of
Mr. Fredrich Nottebohm by the Government of Guatemala between
1943 and 1946 and for in effect arbitrarily expelling him from
Guatemala in clear violation of his rights under international law. The
Government of Guatemala should pay special and general damages for
the wrongful arrest, detention, expulsion, and refusal to readmit Mr.
In the preliminary phase of the case the Court rejected
Guatemala's assertion that the Court lacked jurisdiction. The Court
held that once seized of the case it was irrelevant that Guatemala's
acceptance of the jurisdiction of the Court under Article 36(2), the

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.
Liechtenstein v. Guatemala (Prelim irzary Objection), I.C.J. Reports 1953, 111.
Second Phafe, J.C.J. Reports 1955, 4.
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.

"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
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

"on the ground that Mr. Nottebohm appears to have solicited

Liechtenstein nationality fraudulently, that is to say, with the
sole object of acquiring the status of a neutral national before
returning to Guatemala, and without any genuine intention to
establish a durable link, excluding German nationality,
between the Principality and himself."

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-

N ottebohm Case (Pre/ im inQJ)' Objection), Judgment of November 18, 1953.
I.C.J. Reports 1953, Ill, especially 119-20.
.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 years~ that requirement may be dispensed with in
Circumstances deservmg spectal consideratt'on a nd b y way o f exceptiOn.
· "

ber 13, he ceased to be a German national under German law. He then

returned to Guatemala where he resided as before.
In its judgment, the Court found it desirable to deal at the outset
with the second of the three pleas in bar put forward by Guatemala
because it "is of fundamental importance."84 If there was an irreg-
ularity in Nottebohm's naturalization in Liechtenstein then
Liechtenstein would be debarred from bringing the claim at all. The
Court then proceeded to limit the scope of the question with which it
was faced to that of whether Nottebohm's naturalization entitled
Liechtenstein to its right of espousing his claim against Guatemala.85
In other words, the issue was one of diplomatic protection. The Court
did not discuss the Liechtenstein law of nationality on the grounds
that it was within the sovereign powers of every State to regulate the
acquisition of its nationality.
The Court decided by eleven votes to three, that the claim
submitted by the Principality of Liechtenstein was inadmissable.
Nottebohm's Liechtenstein nationality was granted in such
circumstances that Liechtenstein was "not entitled to extend its
protection to Nottebohm vis-a-vis Guatemala." 86 The factual connec-
tion between Nottebohm and Liechtenstein "in the period preceding,
contemporaneous with, and following his naturalization" was found
not to be sufficiently close. 87
In its judgment the Court looked at the earlier practice of
international arbitrations and found that numerous cases concerning
the diplomatic protection of dual nationals had been decided in the
same way. The international arbitrators had given their preference to
the real and effective nationality "that which accorded with the facts,
that based on stronger factual ties between the person concerned and
one of the States whose nationality is involved. " 88 From this the
Court's judgment continued in a much-quoted dictum:

"[N]ationality is a legal bond having as its basis a social fact

of attachment, a genuine connection of existence, interests and

Reports ibid. (1955), at 12.
Ibid. at 17.
Ibid. at 26.
Ibid. at 24.
Ibid. at 22.

sentiments, together with the existence of reciprocal rights and

duties. " 89

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

Ibid. at 23.
See Kunz, "The Nottebohm Judgment (Second Phase)," 54 A.J.I.L. (1960)
Sandifer, Evidence Before lntemationa/ Tribunals (1975) 220 note 77.
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.

a belligerent State to that of a subject of a neutral State. Further, he

questioned the very basis of the judgment and argued that the only
cases in which the existence of a bond between the State and one of
its nationals has been found lacking is

"when the person concerned possessed a second nationality or

when his State of adoption has granted its nationality by
compulsion, that is to say, without the consent of the person
concerned." 93

Dissenting opinions of Judges of the International Court may,

indeed, be the law of tomorrow, but meanwhile it is the judgment
itself which is our concern. In that judgment, by imposing the
prerequisite of an effective social bond or link in the grant of
nationality, the Court has taken a dualistic standpoint.94
While leaving States free to enact what laws they wish concerning
nationality, that nationality may have no validity in the intentional
sphere, as in the present case. Mervyn Jones points out that when a
State presents a claim on behalf of one of its nationals

"it is in reality asserting the right to ensure in the person of

its subjects respect for the rules of internationallaw."95

Diplomatic protection is essentially connected with nationality, both

either are, or are not, within the domestic jurisdiction of States. The
Agent for Liechtenstein pointed out that Liechtenstein is the smallest
State party to the Court. By the judgment Liechtenstein's nationality
is incomplete, valid in the municipal sphere, but not in the
international.96 As Verzijl pointed out in the conclusion of his
criticism of the case:

Dissenting Opinion 54.
As pointed out by Kunz, op cit. ( 1960), in his comprehensive analysis of the
arguments in the case.
"The Nottebohm Case," 5 I.C.L.Q. (1956) 230.
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.

"the Court has only contributed ... to making an individual,

for the time being, stateless for all practical purposes in the
international field." 97

2.3 The Merge and Mazzonis Cases

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:

"individuals who are nationals of any of the United

Nations ... at the coming into force of the present Treaty,
provided that said individuals ... also had this status on
September 3, 1943, the date of the armistice with Italy."

According to the usual practice in cases of diplomatic protection the

claimant would have to possess the nationality of the claimant State

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.

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

I.L.R. 1955 at 456.
100 /d.

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

..had its origins in private international law, in those cases,

that is. in which the courts of a third State had to resolve a
conflict of nationality laws. Thus, the principle of effective
nationality was created with relation to the individual. But
decisions and legal writings, because of its evident justice,
quickly transported it to the sphere of public international

The Commission thus treated the two principles as equally persuasive.

However. in cases where the claiming State was the State of
predominant or effective nationality the principle of effective
nationality should take precedence over that of the sovereign equality
of States. But the predominance must be proved.103 The Commission
then cited four principles to act as guides in determining prevalent
United States nationality. Habitual residence in the United States or a
specified period of residence there was required in each of the four
principles, but habitual residence did not grant effective nationality as
of right to the claimant.
In theM azzonis claim,' 04 decided by the same Commission at the
same date, the claim was also dismissed on the grounds that the
claimant was not, "by reason of her conduct as it appears from the
record," effectively a United States national within the meaning of

lOt B c .
aron anevaro s case was considered "typical of those decided in favor of
the effective nationality ... Ibid. at 451.
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."
/ . L.R . I955, at 455.
Ibid.. Case No. 56. at 457.

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
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.



Some commentators have seen in the N ottebohm case and the

resolution of conflicts of nationality laws before the Italian-American
Conciliation Commission not only that the international requirement
of a social bond or link between an individual and the State of his
nationality has become de lege lata, but also that this shows a
favorable development in the law. As was said in the introductory
comment to the Harvard Draft on Nationality:

"Nationality has no positive, immutable meaning .... It may

acquire a new meaning in the future as the result of further

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

changes in the character of human society and developments

in international organization."lfl
In this connection the change is that an individual's right to
diplomatic protection may in the future not be dependent on the
possession of nationality. So Leigh concludes his paper on Nationality
and Diplomatic Protection:

"Finally, is the principle of effective nationality a desirable

one? It seems to this writer that it is. First because it tends to
resolve questions of dual nationality for purposes of
diplomatic protection. Secondly, because it may eventually
result in access to international justice by a far larger class of
people than heretofore. This will happen when the require-
ment of formal nationality for purposes of diplomatic
protection is dropped, and instead only an effective link is
required between an individual and the country seeking to
represent him." 108

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

23 A.J.I.L. (1929), Special Supplement 21.
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.
20 I.C.L .Q. (1971) 475 .
. _ 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.


Rhode, writing in a private capacity, although he was Attorney for

the Foreign Claims Settlement Commission of the United States, saw
the practical implications resulting from the application of the older
doctrine of dominant nationality rather than that of the nonrespon-
sibility of States for claims of dual nationals. 111 He wrote:

"The practical result in this country might be that in the future

the Government of the United States will afford protection to
its citizens and espouse their personal injury or property
damage claims against foreign governments, notwithstanding
the fact that the claimants also appear to be citizens of the
respondent country."

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?

Rode, "Dual Nationality and the Doctrine of Dominant Nationality," 53
A.J.l.L . (1959) 139-44.

3.1 Individuals before the I.C.J.

There does not seem to be evidence for the proposition that a

connecting link is enough to give the State of habitual residence jus
standi in cases of international claims. In practice the rule that
individuals have no direct access to international tribunals still ap-
plies.112 Between the two World Wars it often happened that private
individuals applied to the Permanent Court of International Justice
with the object of laying before it matters at issue between them and
some Government. They were generally claims for compensation for
dispossession and arose as a rule from the fact that the applicants had
lost their original national status and had not acquired another, and,
for this reason, had met with a refusal on the part of the courts to
which they had applied} 13 The national status of an individual is still
the decisive factor. The I.C.J. is having the same experience of private
persons applying to the Court for the purpose of obtaining a decision
on matters at issue between themselves and the authorities of their
own or of another country. In these cases the Registrar of the Court
replies informing the writers that according to Article 34 of the Statute
of the Court: "Only States may be parties in cases before the Court} 14
In the period between July 16, 1964, and July 31, 1965, he added that
in certain cases, under a procedure agreed upon with the General
Secretariat of the Council of Europe, he would like to draw their
attention to the existence of the European Convention for the
Protection of Human Rights and Fundamental Freedoms. 115 The num-
ber of these applications has risen steadily in the last twenty-six years.
In the period 1964-65, 300 applications were received by the I.C.J.
Between August 1, 1989, and July 31, 1990, the Court received
approximately 1,200 requests of this kind. 116 It is clear, then, that if
there is an injustice in the fact that individuals cannot bring claims
qua individuals for international wrongs suffered, leaving aside the

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.
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.
Yearbook of the I.C.J., under the heading of "Other activities."
Ibid. (1964-1965) 88-89.
Ibid. (1989-1990) 163, "Applications from Private Persons."

many claims of an undoubted frivolous nature, then the N ottebohm

judgment would not seem to have corrected it.

3.2 The Barcelona Traction Company Case and the

Doctrine of Diplomatic Protection

The International Court has itself repeated the classical doctrine

of diplomatic protection in its judgment in the Barcelona Traction
case. 117 The Court observed that:

"within the limits prescribed by international Iawtt 8 the State

must be viewed as the sole judge to decide whether its
protection will be granted, to what extent it is granted, and
when it will cease. . .. Since the claim of the State is not
identical with that of the individual or corporate person whose
cause is espoused, the State enjoys complete freedom of
action." 119

While recognizing that human rights include protection against denial

of justice, the Court emphasized that

"on the universal level, the instruments which embody human

rights do not confer on States the capacity to protect the vic-
tims of infringement of such rights irrespective of their
nationality." 120

The classical doctrine of claims' adjudication that nationality must be

proved from the time of accrual of the damage to the presentation of
the claim, the "continuity rule," was also referred to in the judgment,
in the presentation of Belgium's argument. The right of the Belgian
Government to espouse the claim of its nationals, shareholders in the
Barcelona Traction Company, was justified on the grounds that

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.
And no such limits were specified by the Court.
Ibid. at 44 Tf78 and 79.
Ibid. at 47 'f9l.

"the Belgian Government had established that 88% of

Barcelona Traction's capital was in Belgian hands on the
critical dates of 12 February 1948 and 14 June 1962 and so
remained continuously between those dates. " 121

In this case, Belgium filed an application with the I.C.J. in 1958,

and then, after attempting negotiations which failed, the Belgian
Government, on June 19, 1962, submitted a new Application to the
Court claiming reparation for the damage allegedly sustained by
Belgian nationals, "natural and juristic persons," shareholders in the
Barcelona Traction Company on account of "measures, acts, decisions
and omissions of the organs of the Spanish State" subsequent to the
declaration of bankruptcy and contrary to international law. The
actions of the Spanish authorities complained of related to events sur-
rounding the formation of a Spanish company and the takeover by that
company of all the shares of subsidiary companies operating in Spain.
The Court's judgment of February 5, 1970, turned exclusively on
the third preliminary objection put forward by Spain concerning the
jurisdiction of the Court. This was that Belgium lacked jus standi
because even if the Belgian claim had as its beneficiaries alleged
shareholders of Barcelona Traction who were "Belgian" international
law does

"not recognize that the national State of shareholders or 'inter-

ests,' whatever their number or magnitude, may make a claim
on their behalf in reliance on allegedly unlawful damage sus-
tained by the company, which possessed the nationality of a
third State."122

And so the Belgian Government lacked capacity to submit any claim

in respect of wrongs done to a Canadian company and the Court dis-
missed the Belgian claim.
The Court distinguished theN ottebohm case from the present one,
arguing that

"given both the legal and factual aspects of protection in the

present case the Court is of the opinion that there can be no

Ibid. at 25.
Ibid. at 14- 15.

analogy with the issues raised or the decision given in that

case." 123

Rather surprisingly, the Court continued in the next paragraph to show

that in fact links existed between the Barcelona Traction Company and
Canada, for the company, as an act of free choice, was incorporated
in Canada, and had been under Canadian law for over fifty years. It
was in Canada that it had its registered office, its accounts and its
share registers, and it was there that Board meetings were held for
many years.
Different lines of reasoning were used by Judge Jessup to come
to the same conclusion as the majority opinion. For this reason he felt
it incumbent on himself in the interest of contributing to the
development of international law to give a separate opinion. In this he
argued that a State "under certain circumstances, has a right to present
a diplomatic claim on behalf of shareholders who are its nationals,"
but the Belgian claims must be rejected because "Belgium did not
succeed in proving the Belgian nationality, between the critical dates,
of those natural and juristic persons on whose behalf it sought to
claim." 114 He argued, further, that the existence of a claimant with
dual nationality, and in this case it would be Canadian and Belgian,
presents no difficulty for an international tribunal who "are already
familiar with the problem of a claim in which two or more national
States are interested." This is due to the doctrine of the "link theory"
by which the effectiveness of nationality may be tested. His argument
may be quoted:

"It seems to be widely thought that the "link" concept in

connection with the nationality of claims, originated in the
I.C.J.'s Judgment in Nottebohm. I do not agree that in that
instance the Court created a new rule of law. Indeed the
underlying principle was already well established in
connection with diplomatic claims on behalf of corpora-
tions .. . . That the link concept represents a general principle
of law and not merely an ad hoc rule for the decision of a

123 /d.
Ibid. at 170-71118.

particular case, is indicated also by its applicability to the test

of nationality of ships which fly flags of convenience."

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

"has also argued that such dual or multiple protection by the

national State of the company and the national State or States
of shareholders will cause inconvenience and even confusion

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

3.3 The Practice of Claims Settlement in Lump

Sum Agreements

As these views are in the nature of obiter dicta it may be valuable

to look also at treaties concluded since the end of the Second World
War to see how international claims are now adjudicated. 128 The first

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.
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
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


and perhaps most important body of State practice is embodied in the

Jump sum agreements concluded between 1945 and the present. 129
Lillich and Weston quote the definition of lump sum agreements given
by Judge Re, in 1964, in the Proceedings of the American Society of
IntemattOna I L aw: no

"[A) 'lump sum,' 'en bloc,' or 'global' settlement involves an

agreement, arrived at by diplomatic negotiation between
governments, to settle outstanding international claims by the
payment of a given sum without resorting to international
adjudication. Such a settlement permits the State receiving the
lump sum to distribute the fund thus acquired among
claimants who may be entitled thereto pursuant to domestic
procedure. ..."

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

agreements," following the Court's Judgment in the Barcelona Traction case at 47

Lillich and Weston, Jntemational Claims: Their Settlement by Lump Sum
Agreements (1975), contains English texts or translations of 126 such agreements
concluded between the end of World War II and January 1, 1971.
Ibid. at 3940.
See Lillich, Jntemational Claims: Postwar British Practice (1967), preface at
xi, and White, Nationalization of Foreign Property (1961). Lillich (1967) claims that
national commissions constitute at least 95% of postwar claims practice. Evidence of
this is the quantity of 126 agreements concluded (see note 129, supra). See also
Lillich and Weston, "Lump Sum Agreements: Their Continuing Contribution to the
Law of International Claims," 82 A .J.J.L. (1988) 69-80, with a chronological list of
agreements concluded between April 28, 1969, and June 5, 1987, appended.

This is not to say that these national commissions are an

innovation on the international scene. The first national claims
commission established in Great Britain was set up in 1803 to
distribute a fund comprising the lump sum paid by the United States
after the abandonment of one of the Jay Treaty Commissions, which
was rendered ineffective by the conduct of the commissioners.
Similarly, the first United States national claims commission was set
up in 1803 after the conclusion of the convention with France of April
30, 1803. Nor have they only been concluded as a matter of practice
by the greater powers. For example, on December 16, 1911, a Con-
vention was signed between the Governments of China and Mexico
in the City of Mexico for the Payment of an Indemnity . This agree-
ment runs as follows:

"Considering: That several Chinese subjects have suffered,

within Mexican territory, damages in their persons and prop-
erty, in some cases in cruel and inhuman form . .. "

the Government of the United States of Mexico declares itself ready

"as an act of grace, to indemnify the injured Chinese subjects

to the extent provided by the present convention."

Article 1 provided that 3,100,000 pesos be delivered from the Mexi-

can Government to the Chinese, thus precluding the Chinese Govern-
ment or its subjects from any further title to claim.
The national commissions set up to distribute these funds are
municipal agencies, set up under municipal legislation, but the
requirement of the national status of the claimants is followed as in
customary international law, with slight variations. To begin with, the
agreements themselves mostly stipulate that indemnity is paid for Joss
or damage suffered by a national of the other contracting party .133 In
the Agreement Between the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of Yugoslavia

8 A .1./.L. (1914), Supplement at 147 et seq.
. 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

Regarding Compensation for British Property, Rights, and Interests

Affected by Yugoslav Measures of Nationalization, Expropriation,
Dispossession, and Liquidation of 1948,134 the sum paid was to be "in
full satisfaction and discharge of all claims of British nationals"
(Article 2). Article 4 provides:

(a) "For the purposes of the present Agreement 'British prop-

erty shall mean all property, rights and interests affected by
various Yugoslav measures which, on the date of the relevant
measure or measures, were owned directly or indirectly, in
whole or in part, by British nationals,"

and British nationals are defined as:

"Physical persons are British subjects or British protected

persons" and "Companies, firms and associations incorporated
or constituted under the laws in force in the territory of the
United Kingdom of Great Britain and Northern Ireland, or
Canada, the Commonwealth of Australia, New Zealand, the
Union of South Africa, India, Pakistan, Ceylon, or in any
territory for the foreign relations of which the Government of
any of the aforesaid countries is, at the date of signature of
the present Agreement, responsible."

Similarly, the Agreement between France and Hungary, which entered

into force on May 24, 1951,135 Relative to Certain French Interests in
Hungary and to the Execution of Certain Clauses of the Treaty of
Peace, contains the following in Article 3:

"Considered as French claims, for the purpose of the present

Agreement, shall be claims due to the measures or based upon
the provisions set forth in the preamble, whether emanating
from the French State or directly or indirectly from French
natural or juridical persons who possessed French nationality
at the moment their right to indemnification arose."

81 U.N.T.S. 121; Lillich, op cit. (1975) 18.
(1952] J.O. 9260; Lillich. op.cit. (1975) 45-48.

In the agreement between the United States of America and Romania

which entered into force on March 30, 1960, at the date of
signature,136 the claims of United States nationals were expressly sta-
ted to include claims:

"Art. 2(a) directly owned by individuals who were nationals

of the United States of America (for this purpose ownership
through a partnership or an unincorporated association being
considered direct ownership);
(b) directly owned by a corporation or other legal entity
organized under the laws of the United States of America or
a constituent state or other political entity thereof, if more
than fifty per centum of the outstanding capital stock or other
beneficial interest in such legal entity was owned directly or
indirectly by natural persons who were nationals of the United
States of America."

Here the nationality of a corporation is decided not just by the place

of incorporation, as followed in the Barcelona Traction case, but the
nationality of those owning a majority interest in the corporation, so
widening the range of possible claims of United States nationals.

3.3.1 National Claims Commissions

In the jurisprudence of the claims commissions the test of

nationality has been applied. The British Federal Claims Commission
was set up under the Foreign Compensation Act of 1950 as a quasi-
judicial body, staffed by Commissioners with legal training, to hear
claims and authorize the distribution of funds acquired under lump
sum settlement agreements. 137 In order to have standing before the
Commission a claimant must prove British nationality. A slight

U .N.T.S. 163. Lillich, op. cit. (1975) 217-19.
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.

liberalization of the continuous nationality rule was made leaving only

the Egyptian Agreement with the requirement of continuous British
ownership of claims. An example of this was the Agreement with
Czechoslovakia where the Commission held that the claim must be
owned by a British national "at the date of the relevant Czech
measure" and "at the date of the signature of the present Agreement."
This is the general practice, so that the various Orders following lump
sum settlements with Communist countries require only British owner-
ship of the property at the relevant date, for example the national-
ization, and British nationality at the date of the settlement agreement.
This shows a slight modification of the traditional rule which demands
the continuous nationality of the owner of the claim from the date of
the wrong until the presentation of the claim. However, the rule of
continuous nationality may also be dispensed with by the compromis
in accordance with the traditional rule.
The French Commissions, set up to distribute the funds received
under the fifteen "known lump sum agreements," beginning with the
Agreement with Bulgaria of July 28, 1955, follow the same proce-
dure.138 The United States practice both before and after World War
II, has been similar. Adequate proof of American nationality must be
forthcoming. 139
The rationale for this rule has been given as "that, in the end
result, the slice of the cake should pass to British nationals" or, in
other words, that "the fund obtained and appropriated to indemnify
citizens of the United States for injuries sustained by them, and who
at the time of the injury were entitled to the protection of their
Government," should not "be swallowed up and exhausted by claims
indefinite in number and amount." 140 And it is in the nature of lump
sum agreements that they constitute a compromise, the sum paid not
being the exact equivalent of the sum of the claims presented by
national claimants. This is shown in the United States' lump sum
settlement with Romania. According to the Agreement with Romania
of March 30, 1960,1 41 Romania agreed to pay $24,526,370 as a lump

See Weston, International Claims: Postwar French Practice (1971) 79-94.
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.
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.
T .I.A .S. No. 4451.

sum settlement, whereas the Foreign Claims Settlement Commission

had made awards of $84,729,291 for claims against that country_I 4Z
This explains what was for long the one exception, in the United
States, to the nationality requirement which was exhibited by Public
Law 85-604, 85th Cong. S. 3557, "An Act to a~end the International
Claims Settlement Act of 1949," which became law on August 8,
1958. 143 By this amendment claims were allowed against Italy from
the Lombardo Fund by persons who were not nationals of the United
States at the time of the injury. Section 304 Title III of this Public
Law announced the principle that in cases where surplus funds remain,
they could be made available to those United States citizens who
acquired American citizenship subsequent to the date when their claim
arose. That is, payment could be made, ex gratia as in all other cases,
after payment of all awards on claims by those who were American
citizens when their claims arose. The Lombardo Fund, which formed
the assets of the Italian Claims Fund, did as a matter of fact contain
a surplus. This was an example of an equitable solution, taking into
consideration the fact that the United States Claims Commission was
to apply international law and equity.
The other exception was a recent claims settlement agreement of
November 6, 1981, signed by the United States and Czechoslovak
Governments, called "Agreement on the Settlement of Certain Out-
standing Claims and Financial Issues." 144 It was approved by Congress
and signed by the President; by mid-February 1982, the basic recip-
rocal undertakings of the parties were performed. The Czechoslovak
Government recognized the validity of claims of United States
nationals whose properties, rights and interests in Czechoslovakia had
been affected by nationalization, expropriation and other measure
involving takings of foreign property by the Czechoslovak Govern-
ment between 1945 and the date of the Agreement, and it agreed to
pay $81.5 million immediately in settlement to be distributed to the
claimants. The United States agreed to return to Czechoslovakia the
remainder of its share of Nazi-looted monetary gold recovered by the
Allied armies at the close of World War II. Under Article 7 of the
Agreement the Czechoslovak Government is released from the date of

142 L 1'll'tch, op. crt.

. (1962) 81 note 295.
See 53 A.J.J.L. (1959) 144-51. Comment by Branko M. Peselj.
Text in 21 l.L.M . 371 (1982). See also Pechota, "The 1981 U.S.-
Czechoslovak Claims Settlement Agreement: An Epilogue to Postwar Nationalization
and Expropriation Disputes," 76 A .J.I.L. ( 1982) 639-53.

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
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

3.3.2 Nationality not Residence as the Criterion

No residence requirement exists in addition to that of nationality.

In French practice, as in British and American as well, the eligibility
of claimants who have lived or have been living abroad has been
acknowledged and their standing has not been impugned.
The standing of dual nationals is more precarious. The Department
of State will not refuse to espouse the claim of a dual national, and
United States national commissions in the past have both allowed and

Pechota, op. cit. (1982) 650.
Ibid. 640.
See Weston, op. cit. , (1971). This is so "[i]n literally dozens of cases" in


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

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.
48 I.L.R. 159.
S~e Seidl-Hohenve1dern, "Austrian Practice on Lump Sum Compensation by

Treaty," 70 A .J.I.L. (1976) 763-77.

77 I.L.R. 427.

Section 7(2) of the Distribution Law (Poland), which required Aus-

trian nationality in April 1945 for eligibility, whereas she had only
become an Austrian citizen in July 1952. The Agreement between the
Republic of Austria and the People's Republic of Poland for the Set-
tlement of Certain Financial Questions (BG B 1 No. 7411 974), signed
on October 6, 1970, provided for a global reparation payment in
complete and final settlement of all claims of the Republic of Austria,
as wel1 as Austrian natural and legal persons, arising from seizure of
property, rights, and interests consequent upon measures taken by
Polish People's Republic. The Constitutional Court found that Article
1(3) of the Property Treaty requires merely that the successor in title
be an Austrian citizen at the date of the signature of the Treaty, and
that legislation to add the further requirement of Austrian nationality
at the date of seizure was in conflict with the Treaty and unconsti-
In Re Propeny Compensation Law (Italy) of October 13, 1978,152
the Constitutional Court was concerned with a similar situation, a
claim brought by successors in title, but here it was for land in Italy
expropriated under an Italian Royal Decree of 1939. The Treaty
between the Republic of Austria and the Republic of Italy for the
Settlement of Financial and Property Questions (BG B 1 635/1973)
was signed on July 17, 1971, and provided for a cash payment of a
certain amount in complete and final settlement of all mutual financial
and property claims specified in Appendix I of the Treaty. These
claims were expressly identified, both as to the property and the
proprietors, being claims for expropriation of land near the Italian
border with Carinthia. The Court found that rejection of the claim by
the Austrian Federal Minister on the grounds that the claimants were
United States nationals at the time of the signature of the Treaty was
unconstitutional, because compensation under the Treaty was
dependent upon nationality at the date of expropriation in 1939 alone,
and to add any further requirement on the basis of general
international law was irrelevant.
From this it may be concluded that although the practice of
national claims commissions awarding compensation from funds set
aside for the purpose under lump sum agreements has in many cases
followed traditional practice as regards the nationality of claims, there
are also many exceptions. In these cases, exception to the continuous
nationality requirement, leaving British practice aside, may be based

Ibid. at 458.

on the adequacy, or inadequacy, of the sum reached by ~egotiation

between the parties to the Agreement, or on construction of the
national legislation implementing the lump sum agreement.

3.4 The Convention on the Settlement of

Investment Disputes, 1965
Another means of settling international claims was initiated with
the entry into force on October 14, 1966, of the Convention on the
Settlement of Investment Disputes between States and Nationals of
other States, which had been opened for signature at Washington on
March 18, 1965. 154 This Convention came about as a result of an init-
iative taken by the World Bank for Reconstruction and Development,
and it was submitted to governments by the Executive Directors of the
Bank, and registered by the International Bank with the Secretary-
General of the United Nations on October 17, 1966. This was in keep-
ing with the economic development of the international community,
for whereas the Bank's principal activity is to provide finance, it does
so in carrying out its task as a development institution.
As such an institution "the Bank was and is vitally concerned with
capital flows from the developed to the developing countries." 155
These capital flows are not restricted to public funds, but also include
private funds transferred by multilateral institutions such as the World
Bank itself and the Asian Development Fund and, in addition, private
funds made directly available for projects in developing countries.
These are of great value as a not inconsiderable supplement to the
public funds, and for this reason the World Bank has an interest in

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).
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)
Broches, op. cit. ( 1972) 342.
·-· - - - _..... ,


improving the investment climate.lS(; The machinery set up by the

Convention consisted of two available procedures, conciliation and
arbitration. In accordance with Chapter I, Section 1, Article 1(1 ), the
International Center for the Settlement of Investment Disputes is
established. It has its seat at the principal office of the International
Bank for Reconstruction and Development although this may be
moved by decision of the Administrative Council adopted by a
majority of two-thirds of its members (Article 2). The Center itself
consists of a secretariat and an administrative council and it maintains
a panel of conciliators and a panel of arbitrators (Article 3). Article 1
(2) provides:

"The purpose of the Center shall be to provide facilities for

conciliation and arbitration of investment disputes between
Contracting States and nationals of other Contracting States in
accordance with the provisions of this Convention."

The difference between the two procedures being that a conciliation

may recommend, but arbitrators must decide.
As we see from Article 1 (2), the Convention

"firmly establishes the capacity of a private individual or

corporation to proceed directly, i.e., without the need of the
intervention of his national government, against a foreign
State in an international forum." 157

This too is not an innovation as there have been examples of agree-

ments between governments and foreign investors containing arbitra-
tion clauses, 158 but here the interesting fact is that the nationality
requirement of the claimant still persists.
It may at first glance appear to be the case that the traditional
doctrine of the nationality of claims has been abandoned in the
procedure followed by the Center. The Contracting States waive their
right to diplomatic protection, as laid down in Article 27. This article

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."
Broches, op. cit. ( 1972) 371.
158 I I .
t a so compnses a derogatton
. f rom sovere1gnty
. agreed to m
. the Conventton.

"( 1) No Contracting State shall give diplomatic protection, or

bring an international claim, in respect of a dispute which one
of its nationals and another Contracting State shall have
consented to submit or shall have submitted to arbitration
under this convention, unless such other Contracting State
shall have failed to abide by and comply with the award
rendered in such dispute.
(2) Diplomatic protection, for the purposes of paragraph (I),
shall not include informal diplomatic exchanges for the sole
purpose of facilitating a settlement of the dispute."

Thus, the Contracting States bind themselves to waive their right to

espouse claims vested in their own nationals, unless there has been a
denial of justice resulting from the respondent State's failure to abide
by and comply with the award. The espousal of a claim by means of
diplomatic protection becomes a form of appeal procedure, but the
procedure follows the pattern laid down by customary international
law. Even where a claim is brought by an individual in the first
instance that individual must be a national of a Contracting State. This
is provided for in Article 1 (2) and also in Article 25, in Chapter II,
"Jurisdiction of the Center." Article 25 ( 1) provides:

"The jurisdiction of the Center shall extend to any legal

dispute arising directly out of an investment, between a
Contracting State (or any constituent subdivision or agency of
a Contracting State designated to the Centre by that State) and
a national of another Contracting State, which the parties to
the dispute consent in writing to submit to the Center."

This is in accordance with the classical rule that a claimant may

not possess the nationality of both claimant and respondent State. This
is further emphasized in Article 25 (2) (a) which defines a "National
of another Contracting State" as

"any natural person who had the nationality of a Contracting

State other than the State party to the dispute on the date on
which the parties consented to submit such dispute to
conciliation and arbitration as well as on the date on which
the request was registered pursuant to paragraph (3) of Article
28 or paragraph (3) of Article 36. ..."

Article 28 deals with requests for conciliation and Article 36 with

requests for arbitration.

The Convention thus lays down two requirements regarding

nationality. The non-State party may not have the nationality of the
State with which it has a dispute, and it must have the nationality of
a State which is party to the Convention. The possession of dual
nationality where one of those nationalities is of the host State is
expressly excluded. This wording was agreed upon only after
considerable debate. The Preliminary Draft submitted to the Regional
Consultative Meetings had contained a definition which said the
opposite of Article 25(2)(a). There it was said that the nationality
criterion had been met as long as a natural person had the nationality
of another Contracting State "notwithstanding that such person may
possess concurrently the nationality of a State not party to this
Convention or of the State party to the dispute. " 159 This aroused so
much criticism due to the possibility of an individual bringing a claim
against the authorities of the State whose nationality he possessed that
the possibility was expressly excluded, for disputes between States and
their own nationals fall outside the scope of an international
convention intended to deal with foreign investments. This was made
quite clear in the Executive Directors' report accompanying the
Convention, which states in paragraph 29:

"It should be noted that under clause (a) of Article 25(2) a

natural person who was a national of the State party to the
dispute would not be eligible to be a party in proceedings
under the auspices of the Center, even if at the same time he
had the nationality of another State. This ineligibility is
absolute and cannot be cured even if the State party to the
dispute had given its consent."uio

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.

Broches, op. cit. (1972) 357-58.
See "History. Documents Concerning the Origin and Formulation of the
Convention" Vol. I (1970) 125.

Amerasinghe has argued differently. tfit. He stat~s that as the role

of nationality is special under the Conventton, servmg as a means of
bringing the private party within the juri~dicti~~al ~ale ~f the Ce~ter,
there is no question of diplomatic protectton ansi~g m _this connection.
There are no provisions regarding proof of nationality, because the
proposal that written affirmation of nationality signed by or_ on behalf
of the Minister of Foreign Affairs of the State whose nationality is
claimed by the private party would be conclusive proof, was opposed
on the grounds that a nationality of convenience may be used against
the effective nationality. He believes that thus the general concept of
a link as outlined in the N ottebohm case may influence a tribunal or
commission. However, stateless persons have no locus standi in
proceedings before the Center. Thus it would appear that the
derogation from States' rights granted in allowing individual access to
adjudication in the first instance, should not extend to an individual
deciding his own nationality. Further, difficulties may arise on the
grounds that residence, for purposes of work, in another country
should not imply the nationality connection. If it did then where, for
example, State A grants aid to State B, nationals of State A should
either lend money or work in State B, but not do both these things.
Before leaving the consideration of this convention it may be
mentioned that a slight modification is envisaged in the nationality of
juristic persons, allowing for the criterion of "foreign control" to
determine the nationality of a juristic person for the purpose of this
convention (Article 25(2)(b)). Here the existence of a link is acknow-
From this it may be seen that the decision in the N ottebohm case,
by which a State was not entitled to exercise its right of diplomatic
protection because the bond of nationality between itself and the
claimant was lacking the fact of social attachment, has not been
accorded the wide application expected by some commentators. It
would not seem to be the case that the connecting link has replaced
nationality as the criterion for determining whether a State has locus
standi to espouse an international claim, or whether a tribunal has
jurisdiction to hear claims brought by States for persons other than
those who possess its nationality. On the other hand it holds good that
a State may be refused the right to bring a claim before an inter-

"J . d" .
· 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.

national trib~nal on behalf of a person whose nationality is not, in law

and fact, evtdenced by an adequate connecting link.
The principal of the real link, however, existed before the
judgment of the International Court in the N ottebohm case, as we
have seen, and that judgment has served to give it the undoubted
authority of a rule of international law. Whereas in traditional inter-
national law States had to conclude treaties for the purpose of
avoiding conflicts arising as a consequence of the application of
municipal nationality laws, the best example being the 1930 Hague
Convention, it is now possible to apply the rule of public international
law regarding the dominant or effective nationality.

3.5 The Iran-United States Claims Tribunal

The Iran-United States Claims Tribunal, established in The Hague
in 1981 by agreement between the Governments of Iran and the
United States, is the first major claims commission to function since
those established in connection with the peace settlements at the end
of World War II in 1945 in Europe. It is in the tradition of the Mixed
Arbitral Tribunals set up pursuant to the Peace Treaties concluded
after the First World War, which functioned until they were formally
would up by an agreement of the Allied Powers in 1930. The Mixed
Arbitral Tribunals initiated a change in practice, as well as in name,
in that these agreements gave private persons direct access to these
international tribunals for resolution of their claims. In view of the
importance of this Tribunal for our topic, the events leading up to the
constitution of the Iran-United States Claims Tribunal and the nature
of its jurisdiction may be briefly summarized here insofar as they are
relevant. u;z
As the revolutionary disturbances increased in Iran from the
autumn of 1978, culminating in the complete victory of the Islamic
Revolution on February II, 1979, Iranian-United States relations
deteriorated seriously. At that time some 40,000 American nationals
were residing in Iran, working on various contracts and performing

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.

various jobs. By February 28, 1979, virtually all had left.. 63 On

November 4, 1979, the United States Embassy in Tehran was overrun
by militant students, and a large number of diplomats and United
States citizens were taken as hostages. On November 14, 1979
President Carter froze Iranian assets in United States banks at home
and overseas. The dispute remained unsolved, in spite of United
Nations Security Council resolutions calling on Iran to release the
hostages and the judgment of May 24, 1980, of the International Court
of Justice ruling on the international responsibility of the Islamic
Republic of Iran for violation of its obligations towards the United
States of America under international law .164 It was then through the
mediation of the Algerian Government that the so-called Algiers
Accords were negotiated between the two governments of Iran and the
United States, without there being any actual contact between these
two parties. These Accords, in the form of the two Declarations of
Algiers, together constituted an international treaty and were the basis
for the release of the United States hostages, the revocation of the
presidential order freezing the Iranian assets, and the establishment of
the Iran-United States Claims Tribunal at The Hague.
Of the two Declarations the short title "General Declaration" was
given to that dealing with the relations between the two States, the
end of the hostage crisis and the financial clauses. The other, the
Claims Settlement Declaration (CSD) is the Charter of the Tribunal. 165
Article II( 1) of the CSD provides that the Tribunal is established for
the purpose of deciding claims of nationals of the United States
against Iran and of nationals of Iran against the United States, and
"any counterclaim which arises out of the same contract, transaction
or occurrence that constitutes the subject matter of the nationals's
claim, ... and arise out of debts, contracts, expropriations or other

Brower, "Lessons to be Drawn from the Iran-U.S. Claims Tribunal," 9 1.
lnt'l. Arb. (1992) 51.
United States Diplomatic and Consular Staff in Tehran , Judgment, I.C.J.
Reports ( 1980) 3, 44.
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.

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-

Sohn, op.cit., supra, and 'Ill of the General Declaration.
Caron, op.cit., supra, at 133-37.

nize that no espousal of claims by the United States is involved in the

cases bea~ore t"t .HJI\8
The Jaw to be applied by the Tribunal is stated in Article V of the
CSD to be "such choice of Jaw rules and principles of commercial and
international Jaw as the Tribunal determines to be applicable, taking
into account relevant usages of the trade, contract provisions and
changed circumstances." This article is reproduced in the modified
Article 33 of the UNCITRAL Rules of Arbitration, which are the
applicable rules of procedure (Article III of the CSD). In practice, the
Tribunal has never decided ex aequo et bono, as it may by Article
33(2) of the Rules, and has even been reluctant to apply a national
law. 1119
The CSD provides, further, that "claims may be decided by the
Full Tribunal or by a panel of three members as the President shall
determine." Each of the three panels, or Chambers, consists of three
judges, one appointed by the United States government, one by the
Iranian government with the third, a third country national, chosen by
common accord or by the Appointing Authority. The Full Tribunal
deals in practice principally with disputes between the two
Governments relating to the interpretation or application of the Algiers
Declarations, important issues of principle referred to it by a Chamber,
or issues over which a majority decision cannot be reached! 70
The background to the case law of the Tribunal, although only
cursorily outlined, has nevertheless to be presented due to the
persistent criticism by the Iranian judges, and some commentators, of
the Tribunal's treatment of the eligibility as claimants of persons
possessing Iranian nationality in accordance with Iranian law and
United States nationality in accordance with United States law. These
dual nationality cases arose at an early stage of the Tribunal's work,
in connection with the large number of claims filed by these persons
as United States nationals. 171 Before these, however, the Tribunal ruled

Islamic Republic of Iran v. The United States of America, Case No. A/21,
14 Iran·U .S.C.T.R. 324.
see crook• "APP,.tcable Law m. International Arbitration: The Iran·U.S.
Clai":~ Tribunal Experience," 83 A .J.I.L. (1989) 278 .
Lagergren, op. cit., supra, at 122. Judge Lagergren was the first President of
the Tribunal.
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

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.
In re to File Claim of A bdol Hamid Jahan (Refusal Case No. 16)
Chamber Two, I lran-U.S.C.T.R.P. 168.
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.
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.
The procedural background to the decision of the Full Tribunal is sketched
in 5 lran-U.S.C.T.R. at 252-53.

3.5. 1 The Esphahanian and Golpira Cases

Esphahanian's case, in Chamber Two, was a claim for the face

value plus interest of a check payable on Iranians Bank, which was
nationalized on June 7, 1979, and later merged with Bank Tejarat, the
Respondent, as well as the costs of arbitration. Esphahanian's suit to
recover on the check brought in a Federal Court in the United States
was suspended, and hence he filed this claim with the Tribunal. Both
parties agreed that the Chamber's task was to determine whether
Esphahanian's claim was within its jurisdiction as a claim of a nation·
al of the United States in the meaning of Articles II (1) and VII (1)
of the CSD.
The Chamber rejected the arguments of both parties to the case.
The claimant's argument that no restriction on grounds of nationality
can be inferred from the construction of the clear and unambiguous
text of the Declaration was "simplistic" and would result in there
being no basis for refusing them the right to claim under either of
their nationalities,or both. 177 On the other hand, the Respondent's
assertion that Iran does not recognize dual nationality "is not by itself
dispositive," particularly as the 1955 Treaty of Amity between Iran
and the United States accepted that concept by providing certain
specific exceptions for dual nationals.
The Chamber then proceeded to establish that in the absence of
any specific provision in CSD on this point the applicable law is
international law, as provided in paragraph 3( c) of Article 31 of the
Vienna Convention on the Law of Treaties and, it might be added, the
decision in Case A 11 dated July 30, 1982. 178 In its analysis of the body
of international law on the subject the arbitrators found that the
applicable rule is that of dominant and effective nationality. This is
shown in the 1930 Hague Convention, the precedents, and the legal
literature. It found that the rule of nonresponsibility in Article 4 of the
1930 Hague Convention

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
1 lran-U.S.C.T.R. 189.

"must be interpreted very cautiously. Not only is it 50 years

old, but great changes have occurred since then in the concept
of diplomatic protection." 179

Furthermore, Article 4 should be read together with Article 5 of the

same Hague Convention, "within a third State, a person having more
than one nationality shall be treated as if he had only one," and that
one nationality may be "either the nationality of the country in which
he mainly and principally resides, or the nationality of the State to
which, according to the circumstances, he appears to be more attached
in fact." Of the precedents it found the two most important decisions
to be those of the N ottebohm and Merge cases, discussed earlier.
While distinguishing the Nottebohm case in that it did not involve a
claim against one of the States of which Nottebohm possessed
nationality it did, nevertheless, demonstrate the acceptance and
approval of the International Court of Justice of the search for the real
and effective nationality based on the facts of a case.
The Chamber proceeded to the jurisdictional issue in dispute:
"Were Esphahanian's factual connections with the United States 'in
the period preceding, contemporaneous with and following' his
naturalization as a United States citizen more effective than his factual
connections with Iran during the same period? See Nottebohm, (1955)
I.C.J. Reports at 24." 180 On the basis of the facts, such as residence in
the United States since 1946, becoming an American citizen in 1958,
service in the United States army, marriage to an American woman,
children whose upbringing has been solely American, and his behavior
as a citizen voting and paying taxes there, the Tribunal found his
American nationality to be dominant.
A few points raised in the decision may be underlined. First, the
Tribunal distinguished between the nonresponsibility doctrine in cases
of espousal of claims and instances of diplomatic or consular protec-
tion of dual nationals physically present in a State which considers
them as its own nationals: " It is in the latter cases that formal
protection will be denied." And the agreement of the two Govern-
ments to create the Tribunal is not a typical exercise of diplomatic
protection in which a State creates a tribunal to which it, rather than
its nationals, is a party, for

2 Iran-U.S.C.T.R. 161-62.
' . at 166.

"the United States is not a party to the arbitration of claims of

United States nationals, not even in the small claims where it
. I ,181
acts as counsel for those natwna s.

Nor, the reasoning continued, is the respondent State here simply in

its capacity as a sovereign State because "Iran" and "the United
States" are defined to include agencies, instrumentalities, and entities
controlled by the State, as well as any "political subdivisions thereof."
Furthermore, the Tribunal has been substituted for the national courts
of both countries and "is not therefore unlike the courts of third
States, particularly when faced with a conflict of nationality laws."u2
The Tribunal then concluded that it has jurisdiction over claims of
dual nationals, having Iranian and United States nationalities, when the
dominant nationality is that of the claimant and not of the respondent
Lastly, Chamber Two added an important caveat, based on dicta
from the Flegenheimer case:

"[T]here is precedent for denying jurisdiction on equitable

grounds in cases of fraudulent use of nationality. Such a case
might occur where an individual disguises his dominant or
effective nationality in order to obtain benefits with his
secondary nationality not otherwise available to him."

The Chamber considered just such a point in Esphahanian's case,

where he owned stock in an Iranian company because he had Iranian
nationality, but then dismissed it as uncertain on the facts, and, also,
it may be noted, because the question was more relevant to SEDCO's
claim, to be decided by the Tribunal. 184
The Tribunal's Award in the claim of Ataollah Golpira, also
before Chamber Two, was signed on the same day, March 29, 1983,
as that of Esphahanian and the Tribunal also applied the rule of the
dominant and effective nationality in the same way, based on the
factual connection of residence, family and professional life and
behavior as a United States citizen.

Ibid. at 165.
Ibid. at 166.
183 ld
). em . F~egenheimer Case (United States v. Italy), 14 U.N.R./.A .A . 327, 37S
Idem . at 166-67.


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

3.5.2 Case A/18

Whereas the Esphahanian and Golpira decisions are linked

together, and treat the jurisdictional issue in an almost identical
manner, the decision of April 6, 1984, of the Full Tribunal in Case
A/18 stands on its own in the sense that no reference is made to the
earlier Awards, yet the decision follows the same legal reasoning. A
few points may be noted, for it is this decision of the Full Tribunal
that carries great weight as an authoritative interpretation of the
meaning of "national" in the CSD for purposes of presenting a claim.
In its analysis of Article 4 of the 1930 Hague Convention, the Full
Tribunal adds to the words of Chamber Two that not only is this
treaty more than fifty years old, but also it is "found in a treaty to
which only twenty States are parties." This is the problem of the
codifying treaty as a source of international law: Does it declare
customary law, crystallize it, or generate it? 186 In this case, the Tribu-
nal clearly states the weakness of Article 4 of the 1930 Convention as

Ibid. at 168, 169, and 174.
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."

the source of a binding rule, applicable today. Whereas Article 4 may

have been declaratory of customary international law in 1930, al-
though as it was the drafting of a codifying conference this is not
necessarily so, it has not generated international law, as made clear by
the small number of State parties, and also by the evolving precedents
and legal writings since that date.
The Full Tribunal's analysis of a significant range of precedents,
including decisions of the Franco-Italian Conciliation Commission of
1957 and 1958, deciding claims of dual nationals according to the
"link" theory, 187 and of legal literature, led it to the conclusion that the
Tribunal has jurisdiction over claims against Iran by dual Iranian-
United States nationals when the dominant and effective nationality of
the claimant during the relevant period as required by the nationality
of claims rule, was that of the United States. For determining the
dominant and effective nationality "the Tribunal will consider all
relevant factors, including habitual residence, center of interests, fam-
ily ties, participation in public life and other evidence of attachment."
The wording follows that of the International Court of Justice in the
N ottebohm case, and, indeed, the Tribunal added that "the effects of
the Nottebohm decision have radiated throughout the international law
of nationality." 188
In coming to this decision the Tribunal pointed to the special
character of the Claims Tribunal, established for the purpose of
determining the rights of claimants, not their nationality, whereas
Article 4 is applicable in terms solely to "diplomatic protection by a
State." In her comments on this passage concerning public or private
claims, Selby states what she considers to be the central point "that
this nice distinction between private and public is no longer entirely
suitable, and that the Tribunal stands as the clearest and most recent
example of this fact. " 189
The Full Tribunal then added an important caveat: "In cases where
the Tribunal finds jurisdiction based upon a dominant and effective
nationality of the claimant, the other nationality may remain relevant
to the merits of the claim." 190 In his Concurring Opinion, Judge Rip-
hagen treated the relevance of Tribunal dual nationals in specific con-

5 lran-U.S.C.T.R. at 263.
Selby, op. cir. (1989) at 245
190 •
5 lran-U.S.C.T.R. at 265--66 .

"Thus, e.g., it is-even within the framework of 'diplomatic

protection'-often admitted that, if one State treats a dual
national as an alien (i.e., by arbitrarily discriminating against
that person as compared with its own citizens) a claim may
validly be brought before an international Tribunal on the
basis of that person's other nationality. It is also often admit-
ted that no international protection is given to a dual national
as regards rights acquired by him through the use of his
'other' nationality, if such rights are validly reserved to its
citizens by the other state." 191

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

Ibid. at 274.
See Jennings, "General Course on Principles of International Law," 121 Rec.
des Crmrs (1967-11) 323, 479-80.
Mahoney, "The Standing of Dual Nationals Before the Iran-United States
Claims Tribunal," 24 Va. J.J.L . (1984) 695, 728.

Chamber Three on the Full Tribunal's reference to "all relevant

factors" in the life of the claimant. These factors were taken to include

"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
... ,.

Following the ejusdem generis principle of interpretation of the

common law this may not be a correct construction of "other evidence
of attachment" because the words "relevant factors" in Case A/18 are
followed by "including habitual residence, center of interests, family
ties and participation in public life ... "which do not cover the entire
life of the claimant.
Doubt has also arisen in the Tribunal's practice of considering the
nationality of the parent or guardian. Thus in the Monemi claim
Chamber One found the dominant nationality of the mother to be that
of the United States and that of her children to be that oflran. 196 Simi-
larly, on two occasions arbitrators have argued convincingly for giving
dual national minor children a dominant and effective United States
nationality. In one case, the Chamber found for the same nationality
as the mother, in the other, for a different one. Here, then, the Tribu-
nal is following the practice of assessing the evidence on the facts of
each case. 197

3.5.3 The A/18 Caveat-Saghi Claims

The Iranian judges on the Full Tribunal appended a Dissenting

Opinion in Case All 8. This was a detailed rejection of the Tribunal's
ruling on the locus standi of dual Iranian-United States nationals, on

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.
Abboud v. Iran, Award No. 477-383-2, May 16, 1990, 24 Iran-U.S.C.T.R.
Case No. 274, July 1, 1992 (unreported).
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 basis of a thorough analysis of the practice and rules of

international law on the topic. The grounds for dissent here, as in all
the other dual nationality cases, has remained basically that of the
equality of States and the rule of nonresponsibility for injury to
nationals. The dissatisfaction of the Iranian judges also took other
forms, such as refusal to participate in dual nationality proceedings.
This consistent and repeated objection to the jurisdiction of the
Tribunal in these cases has been held partly responsible for the delay
in hearing these cases on the merits. However, on January 22, 1993,
Chamber Two filed an award in the case of James M. Saghi, Michael
R. Saghi, A lien J. Sag hi, Claimants and the Islamic Republic of Iran,
and more such awards are forthcoming.'''
The Saghi claim for compensation of over $19 million was
brought against Iran by James Saghi and his sons Michael and Allan
for the aJJeged expropriation in August, 1980, of property in two
Iranian corporations, "N.P.I." and "Novin," in which they allegedly
held a 93.5 percent equity interest. The Claimants contended they
were all three nationals only of the United States, whereas Iran
asserted that each one was an Iranian national and therefore could not
present a claim against Iran before the Tribunal. In an Interlocutory
Award, 200 the Tribunal held that the claimants are nationals of the
United States within the meaning of Article VII, paragraph 1 of the
CSD, James and Michael being nationals of the United States but not
of Iran, and Allen Saghi being a national of both States but with a
dominant and effective United States nationality during the relevant
period. The Tribunal had therefore to consider whether the "caveat"
in A/18 applies to the merits of Allan Saghi's claim.
In its analysis of the Tribunal caselaw on the right of dual
nationals to compensation, the Tribunal first dealt with the Full
Tribunal's decision in Case A//8, then the A//8 caveat in Tribunal
practice, and lastly the application of the caveat to Allan Saghi's
claim.201 The A/18 caveat was quoted as well as the Arbitrators'
discussion of that caveat in their Concurring Opinions and the caveat
in the Esphahanian case. The Tribunal referred to dicta in the Golpira

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.
Award No. 544-298-2, Chamber Two, Judge Ruda presiding (Unreported).
No. 660298-2, January 12, 1987, 14 Iran-U.S.C.T.R. at 6-8.
Award No. 544-298-2, at Tf46-48, 49- 54, and 55-M, respectively.

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:

"The caveat is evidently intended to apply to claims by dual

nationals for benefits limited by relevant and applicable
Iranian law to persons who were nationals solely of Iran.
However, as indicated by Chamber Two when it referred to
other conduct that could justify refusal of an award in their
favor, supra, paragraph 53, the equitable principle expressed
by this rule can, in principle, have a broader application. Even
when a dual national's claim relates to benefits not limited by
law to Iranian nationals, the Tribunal may still apply the
caveat when the evidence compels the conclusion that the dual
national has abused his dual nationality in such a way that he
should not be allowed to recover on his claim."203

In determining the consequences of applying the caveat to the claim

of Allen Saghi the Tribunal found that, in part, the Claimant had acted
in just such a way. He had "consciously sought and obtained Iranian
nationality solely for the purpose of having certain shares in N.P.I.
placed in his name in order to minimize the adverse effects of the
Law of Expansion," this being the Law limiting, inter alia, the
participation of foreigners in Iranian joint ventures. The Tribunal

"that in these exceptional circumstances, fundamental

considerations of equity require that Allen Saghi-a dual
national with dominant and effective United States
nationality-should not be permitted to recover against Iran,
even if the related benefits .. . he acquired with the use of his
Iranian nationality, were not limited to Iranians by Iranian
law. To rule otherwise would be to permit an abuse of
rights." 204

Ibid. at 153.
Ibid. at 154.
204 lb 'd
' . at 159.

Nevertheless, it should be noted

"that the caveat does not exclude Allan Saghi as a claimant~

it merely applies to those parts of his claim where the
equitable considerations giving rise to the application of the
caveat are present. Where the elements are absent, his claim
should not be affected."205

The compensation to be awarded to Allan Saghi was consequently

The Tribunal has made a notable contribution to the law on the
status of dual nationals before international tribunals, and to the
effects, in law, of the second nationality. First, the opposability of
nationality legislation, or its relativity, may be noted. More particu-
larly, in its references to equity and to what would be equitable and
what an abuse of rights, the Tribunal is in line with its other case law
concerning compensation, where considerations of equity have resulted
in a reduction of the damages awarded. 206
In this case, however, the considerations of equity are particularly
pertinent in that Allen Saghi voluntarily applied for Iranian nationality
on January 6, 1977, to the Iranian Consulate-General's Office in New
York, having two years previously withdrawn any claim he may have
had to Iranian nationality on the basis of his birth in that country. The
Tribunal acknowledged that this case was probably unique, with the
circumstances distinguishing it from other cases where the claimant's
Iranian nationality was automatically given by birth or by marriage to
an Iranian national. 207
In his Concurring Opinion, Judge Aldrich refers to this "probably
unique" claim before the Tribunal, and argues that the caveat has no
application for the other dual national claimants "unless the dual
national has used his Iranian nationality to obtain benefits" restricted
to Iranian nationals. To this may, perhaps, be added that the reference
to "validly reserved to its citizens by the other State" in Judge Rip-
hagen's Concurring Opinion, could indicate that national legislation

Ibid. at 160.
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.
Award No. 544-298-2 at 158.

possibly not valid on the international level, such as where nationality

is unjustifiably imposed, may be of relevance in future cases.10B



4.1 As Applied in Municipal Law

The requirement that the bestowal of nationality must have some

basis in the fact of a bond of attachment between the individual and
the State, as laid down in the N ottebohm case, has resulted, it is
submitted, in the acceptance of the principle that in cases of plural
nationality municipal law may grant recognition to the dominant
nationality, even though no State can create nationals of another State.
The position has been stated by the State Secretary of Justice of
the Netherlands during the parliamentary discussions in that country
of the Bill on the Amendment of the Nationality Act in 1975.209 A
question was asked as to how a naturalized citizen could submit proof
that he has lost or will lose his previous nationality upon
naturalization, in accordance with Article 5(a) of the Draft Bill, in
cases where his country of origin does not recognize the right to
renounce its nationality or acquire another nationality by natural-
ization. In his memorandum the State Secretary pointed out that it has
been the practice for some time to send a letter drafted in consultation
with the Minister for Foreign Affairs to any applicant for natural-
ization coming from such a country. He continued:

"This letter draws attention to the risk that such an applicant

may still be treated by the authorities of his original State as
exclusively a subject of that State, and this may prevent the
local Dutch representative from offering the protection to
which Dutch nationals abroad are entitled."

Cf. Iranian Naturalisation Case, infra, Chapter 3, section 3.1 "Imposition of
Nationality" at note 128.
See 7 N . Y ./.L. (1976) 249-50.

He stated that nothing was to be gained by making representations to

the countries in question/ 10 but:

"it is the general practice, also in the Netherlands, to consider

only the effective nationality, i.e., the nationality of the coun-
try with which the person concerned may be assumed to have
the closest connections ...."

A similar statement was made by the French Ministry for Foreign

Affairs in answer to a question in the National Assembly in 1972.211
The official French view is that where conflicts of nationality arise
there is always a priority of allegiance to the country in which the
person in question resides.
In a French case concerning a dual French and Belgian national
it was stated that a person who enjoys double nationality, French and
another, can in France only be considered as French by the French
administrative and judicial authorities. 212 It is also the practice of
French courts to recognize the effective nationality of an individual
who is claimed as their national by more than one State. This has
been used particularly to determine the law applicable in divorce
cases. 213
In the Danish case of Helga Schmeichler-Pagh, 214 the Supreme
Court was faced with a claim for indemnity for loss of property under
the Treaty of Indemnity between Denmark and Czechoslovakia of
1958. The claimant was a Danish national by birth and a Czech
national by marriage. The Court applied the doctrine of effective or
dominant nationality as laid down in theN ottebohm and Merge cases
and found that her Czech nationality was dominant and so the claim
to reparations failed.

It is arguable that his amounts to an imposition of nationality as defined in
Chapter 3 of this book.
J.O.A .N. November 22, 1972, at 5575. Reproduced in XIX A .F.D.I. (1973)
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.
Lagarde, La N ationalite Franfaise (Paris J975) 17-18.
U.f.R. Ugeskrift for Retsvoerser 1964, p. 624. Digested in 92 J.D./. (1965)

A Court in the Netherlands came to a similar decision in the ca~e

of H.S. v. Gambino. 115 The petitioner, of Dutch nationality, had mar-
ried an Italian national whom she now wished to divorce. The matter
at issue was the applicability of the Hague Convention on Divorce.
That Convention only applied when the spouses had a common
nationality (Article 8). The Court found that although in cases of dual
nationality, and here the petitioner was a Dutch national and her
husband Italian, a Dutch court applies Dutch law it is, nevertheless,
possible that a person, although Dutch, may be so connected with
another State of which he also bears the nationality, that such nation-
ality should be accepted as the effective nationality. In the present
case, the petitioner had lived all her life in the Netherlands, had never
been "outside the Netherlands sphere," and so should be regarded as
exclusively of Dutch nationality.
The United States does not favor dual nationality because of the
problems it may cause, although it is permissible under United States
law, but for purposes of jurisdiction a United States Court of Appeals
has held that is could apply the dominant or effective nationality

4.2 Treaties Harmonizing the Military Service of

Dual Nationals117

It has also become a widespread practice to conclude treaties,

usually bilateral treaties, concerning the military obligations of persons
having dual nationality. In order to prevent conflicts concerning the

The Netherlands, District Court of Amsterdam, February 29, 1968. 73 l.L.R.
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. . .,
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
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.

fulfillment of compulsory military service by dual nationals the

principle of dominant nationality has been applied.
The Protocol relating to Military Obligations in Certain Cases of
Double Nationality was signed at The Hague on April 12, 1930, and
entered into force on May 25. 1937. Twelve States ratified or acceded
to the Treaty at the time of the League and a further twelve States
have become parties to it since the Secretary-General of the United
Nations assumed depositary functions, six of these by succession. 118
Article I of the Protocol exempted from military obligations a
national who "habitually resides" or who "is in fact most closely
connected with" the other country. A second paragraph provided that:
"This exemption may involve the loss of the nationality of the other
country or countries." This article was applied by the Supreme Court
of Cyprus in the case of Pitsillides v. Republic of Cyprns. 119 The
applicant in this case was a dual national, of Cyprus by birth and of
the United States by naturalization. Having resided on a permanent
basis in the United States for ten years, where he also served for two
years in the armed forces, he returned to Cyprus with intent to remain
there permanently. With this in mind, he applied for exemption from
service in the Cypriot National Guard. His application was dismissed.
The Court held that Cyprus was under a duty to fulfil its international
obligations under the Convention, that is, the Protocol relating to
Military Obligations in Certain Cases of Double Nationality, 1930, and
the provisions under municipal law which exempted citizens who
reside abroad permanently from military service fulfilled those
obligations arising under Article I. Exemption from military service
was granted to a dual national only on condition that such person was
permanently residing outside the State in which he would otherwise
be compelled to fulfil military service.
In another case before the same court thirteen months later the
applicant was refused exemption from military service in Cyprus on
the grounds that of his two nationalities, Greek and Cypriot, his
Cypriot nationality was that of the country where he habitually
resided. 110
In an Exchange of Notes entered into on February 25, 1948, be-
tween the U.S.A. and France, it was agreed that service in the army

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.
Moschovalcis v. Republic of CypniS, February 21. 1974. 83 I.L .R. 210-14.

of one country during the wars of 1914-1918 and 1939-1945 exempt-

ed persons who are nationals of both countries from military service
in the other. 221 Norway, Denmark, and Sweden signed an agreement
Concerning the Relationship between Compulsory Military Service
and Nationality on March 3, 1956, which entered into force on the
same day. 222 Article 2 runs as follows:

"A person who is a national of more than one contracting

State shall, for the purposes of this Agreement, be deemed to
be a national only of the Contracting State in which he is
domiciled or, if he is not domiciled in any of the States, of
the State in which he was last domiciled."

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:

"Dual nationals residing in one of the two Contracting States

shall be required to perform their active military service in the
State in which they have their permanent residence at the age
of 18 years."

This was further clarified in Article 3 of the Administrative Agree-

ment Embodying Regulations for carrying into effect the Convention
of June 30, 1959. Article 3 of this Agreement provides:

"Within the meaning of the Convention, a dual national has

his permanent residence in the State to which he has trans-
ferred or transfers his actual residence and in which the
principle centre of his activities is situated."

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.
243 U.N.T.S. 169.
448 U.N. T.S. 107 and 145.

Limitations were expressly laid down. Attending an institute of learn-

ing or staying at a hospital or similar establishment shall not be re-
garded as permanent residence and

"[t]he same shall apply to temporary periods of residence for

family, industrial, commercial, agricultural or religious reasons
and to residence connected with functions on behalf of the
other State or of an international organization."

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

450 U.N.T.S. 207.
600 U.N.T.S. 213.

subject in that State to all the military obligations of their class.

Similar is the convention between France and Spain concerning the
National Service of Persons with dual Nationality, that is, nationals of
both States who possess French and Spanish nationality simulta-
neously .126 Article 2(1) provides that dual nationals fulfil their national
service obligations in the State in which they were "resident for the
longest time during the twelve months preceding the date on which
they reached the age of eighteen years," with a right to opt for service
in either if resident in a third State. Article 3 provides that dual
nationals may volunteer for service in the State of their choice. This
mutual recognition ofthe fulfillment of all national service obligations
applies in time of peace (Article 5 ( 1). Two other agreements concern-
ing the fulfillment of military service obligations of dual nationals
contained less detail. The Agreement between the Government of Fin-
land and the Government of Argentina, signed on May 8, 1963/:n and
the Military Service Agreement between the Argentine Republic and
the United Kingdom of Great Britain and Northern Ireland signed on
September 12, 1963,228 both provided that the fulfillment of military
service in one country is deemed to be in the other as well. The Fin-
land-Argentine agreement stated that this exemption applies in peace-
The United States-Argentine Treaty of Friendship, Commerce, and
Navigation of 1853, was not primarily a treaty concerning dual nation-
ality, but by Article X of that treaty nationals of one State were
exempted from military service in the other. In the case of Vazquez
v. A ttomey-General of the United States, et al., the United States
Court of Appeals, District of Columbia, did not address itself to the
question of the effect of parents' nationalization on the nationality of
their minor children, but found that a person possessing dual nationa-
lity could benefit from the treaty exemption. Vazquez was thus
exempt from military service in the United States, where he was
permanently resident, on the grounds that he clearly showed his wish
to retain Argentine nationality, his original nationality. The Court also
looked to the practice of Argentine under the treaty. 129

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.

One multilateral convention concluded within the framework of

the Council of Europe dealt partly with this topic. This is the
Convention on Reduction of Cases of Multiple Nationality and Mili-
tary Obligations in cases of Multiple Nationality, opened for signature
at Strasbourg on May 6, 1963, which entered into force on March 28,
1968. 130 In the preamble it is stated that cases of multiple nationality
are liable to cause difficulties "and that joint action to reduce as far
as possible the number of cases of multiple nationality, as between
member States, corresponds to the aims of the Council of Europe."
Chapter I thus deals with the reduction of cases of multiple
nationality. 231 Chapter II deals with military obligations in cases of
multiple nationality.
Article 5 of Chapter II provides that persons possessing the
nationality of two or more Contracting Parties shall be required to ful-
fill their military obligations in relation to one of those Parties only,
and Article 6(1) provides that any such person "shall be subject to
military obligations in relation to the Party in whose territory he is
ordinarily resident," though up to the age of nineteen years he is free
to fulfill his service for another Contracting Party of which he is a
national. This is further clarified in Article 6(2), which provides that
where a dual or multiple national is ordinarily resident in the territory
of a Contracting Party of which he is not a national, or of a State
which is not a party, he may choose to perform his military service in
the territory of any Contracting Party of which he is a national. Article
6(3) continues that fulfillment of his military obligations in relation to
one Party, as prescribed by the law of that Party shall be deemed ful-
fillment of such service in relation to any other Party or Parties of
which he is also a national.131 Article 6(7) provides that the obligations

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.)
To be discussed, infra, Chapter 4, section 6.4 at 207 et seq.
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 .

arising under this convention do not apply "in the event of mobiliza-
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

4.3 Examples of Recent Nationality Legislation

It may also be noted that the concept of effective nationality has

applied in a number of recent nationality laws. This has meant,
primarily, that when drafting their nationality laws States have shown
a greater wilJingness to ensure that a true factual connection exists
between the State and those who possess its nationality. In practice
this results, for example, in a more realistic adherence to the concepts
of the jus soli and the jus sanguinis taken in conjunction, neither of
them being relied upon beyond the point where they are evidence of
a factual connection. The following are taken because they are recent.

4.3.1 The British Nationality Act 1981

One striking innovation in the British Nationality Act 1981,234 is

that it revoked the right of jus soli which had previously given British
citizenship to any person born in the United Kingdom. Under section
one of the 1981 Act, birth within the U.K. will confer citizenship only
where either parent is (a) a British citizen or (b) is settled in the
United Kingdom. "Settled," it may be noted, connotes a right to enter
and settle. Sections 2 and 3 deal with citizenship by descent according
to the jus sanguinis. This is now granted by descent through father or
mother. The 1981 Act in this way departs from the provisions of the

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.
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.

1948 Act as regards British citizenship,235 British nationality being

brought into line with immigration law and being based on the
matrilinear or patrilinear descent. Immigration legislation determined
who may have unrestricted entry to the U.K., who may be subject to
control, and who may be expelled and in what circumstances. 236 The
purpose behind these changes was stated by the Secretary of State for
the Home Department, Mr. William Whitelaw, in the House of
Commons in July 1980, to be the need for a new citizenship "confined
to those who have close connections with the U.K. We propose that
this should be known as British citizenship. " 237

4.3.2 The Netherlands Nationality Act 1976

The Netherlands Nationality Act of September 8, 1976, has

modified the Nationality Act of 1892. This, too, shows in the new
Article 5 dealing with naturalization the intention of the legislature to
accord nationality to those who have close connections with the
Netherlands. According to Article 5, the Minister of Justice may, upon
request, grant Netherlands nationality to persons having a connection
with the Netherlands, as listed under seven headings. The first five
categories include those who have at any time possessed Netherlands
citizenship or the status of a Netherlands subject or who have been
born in the Kingdom, or who have been born outside the Kingdom to
a Netherlands mother and who have no nationality since birth, or who
have been "domiciled or factually resident"238 in the Kingdom for at
least one year immediately preceding the request, whose mother
possesses Netherlands nationality and whose father is deceased, legally
unknown, or whose parents' marriage has been dissolved or declared
null. To this is added the requirement that the petitioner be domiciled

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.
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.
H.C. Debs, Vol. 989, cols. 1516-18: July 30, 1980. 51 B.Y.I.L. (1981) 398.
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.

or factually resident in the Netherlands for periods varying from birth

to at the time of the request. and in three out of five of the categories
has reached the age of majority. In the two instances where natural-
ization may be applied for by a minor the minor would otherwise be
stateless. The last two headings refer to the spouse of a man or
woman who acquires Netherlands nationality during the marriage or
who is the spouse of a person applying for naturalization under one
of the first four headings.
The new Article 5 departs from previous practice. Whereas those
persons who are assumed to possess a close factual link with the
Netherlands may now request naturalization from the Minister of
Justice. by former practice naturalization usually took place by a
formal Act adopted by Parliament together with the Crown. Article 6
of the Constitution had always offered the possibility for the legisla-
ture to delegate its powers of naturalization to the Crown. 239
The redrafted nationality legislation of 1984-1985 prescribed new.
general provisions on Netherlands nationality. The residence require-
ment was lowered. and deleted aJtogether in the case of. inter alia. a
former Netherlands national. However. in ..The additional Memoran-
dum concerning a naturalization bill"' dated 1983, it was officially
stated that the residence requirement .. has always had the sole purpose
of ensuring that a certain measure of integration has taken place and
that the person in question wishes to settle in the Kingdom:·z.a•

4.3.3 Belgium

The Belgian Law of June 28. 1984. constituting the Code of

Nationality. introduced a number of changes in the law ..!~r Between the
years 1922 and 1984 the Belgian law on nationality applied the strict
rule of transmission of nationality by descent. the jus sanguinis
principle. Belgian nationality was acquired solely by descent. with the
exception only of foundlings of legally unknown parentage found in
Belgium. The new Code of 198-t recognizes four way~ for th~
attribution of nationality by operation of law. the first two being ( n

n• NO(es on the 1976 Act by Ko Swan Sik lliKkr tk ruhric ··l'~lheri.lnd~

Municipal Legislation involving Questions of Public International La-..·:· 8 t\ ·. r.I.L
t 1977) 3L~28 .
• Notes on Netherlands practi~ in international law by Ko 5,."'"311 Sik. 16 .\'~tit
LB./.L. (1985) 451 ~~ uq.. and 15 N nlt. r .8 ./.L. (J~} 28-J ~cth-~ly.
Su Closset. La Nminnairi 8~1,, ( 1986). especially 61. 72. B. and 115-16.

by reason of the nationality of the mother or the father, to apply the

jus sanguinis (article 8) and (2) by reason of birth in Belgium, the jus
soli (articles I 0 and I J) .
One of the most important innovations in the 1984 Code is the
limit put on the attribution of nationality by descent. Where the child
is born outside Belgium to a parent or parents of Belgian nationality
further evidence of attachment to Belgium is required, such as that a
parent was born in Belgium or has made a declaration claiming
Belgian nationality by attribution within a period of five years form
the date of the birth (article 8). Further, the Code stipulates a factual
connection with Belgium for persons requesting Belgian nationality by
naturalization. The applicant must thus reside in Belgium or give
reasons for his attachment to Belgium during the required five or three
years residence prior to naturalization as a Belgian citizen, the three
year residence requirement applying to persons recognized as refugees
or as stateless. The residence must be both real and effective ("n~elle
et effective"), it must be a principal residence and this is not to be
understood in the sense of domicile.

4.3.4 Portugal

Two new Constitutions contain provisions relating to nationality.

Article 4 of the Portuguese Constitution of April 2, 1976, states that
those persons are Portuguese who are considered as such by the law
or by virtue of an international convention.141 In other words nation-
ality is a juridical concept in both international and municipal law and
is not only discretionary. There may then be cause for arguing that
decisions of international tribunals, including theN ottebohm case, on
matters of nationality are immediately applicable in Portuguese courts,
and that the dualist approach, according to which international law has
to be accepted first by the legislature, is not applicable. The Nation-
ality Act, 1981, provides for a mixed system, in spite of the primacy
of the jus sanguinis for the determination of nationality (article 1).
Thus, the jus soli principle applies for children born in Portugal to
foreign parents who have been resident in Portugal for at least six

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.

4.3.5 Sri Lanka

In Sri Lanka, a new Constitution was promulgated in 1978,

following the election to power of the United National Party in May
1977. It replaces the Constitution of 1972. 243 The application of the
concept of a factual link between the individual and the State of his
nationality can be seen in the chapter on citizenship, Section 26(1).
This provides that

"there shall be one status of citizenship known as the status

of a citizen of Sri Lanka."

Section 26(3) provides that no distinction shall be drawn between

citizens of Sri Lanka for any purpose by reference to the mode of
acquisition of such status. This eliminates for the most part the status
of registered citizen, recognized under the Citizenship Act of 1948,
which had disenfranchised the Indian community on the island.
Section 26 constitutes an innovation and indicates the intention of the
legislature to call Sri Lanka nationals all of those who have a
connection with the country on grounds laid down elsewhere.
By a policy of cooperation between the governments of Sri Lanka
and India, an amicable settlement of the dispute concerning the
stateless persons of Indian origin in Sri Lanka has been resolved and
a policy based on factual connection applied instead. Sri Lanka's
application of the jus sanguinis principle as the sole basis for attri-
bution of nationality at birth has thus, in practice, been modified to
provide for Sri Lankan nationality for those descendants of indentured
laborers brought with their families in the nineteenth century by the
British from the then Madras Presidency of British India to work in
the hill plantations of central Ceylon. The negotiations reached a
conclusion on January 15, 1986, when both governments were
reported to have arrived at an understanding with a view to settle the
problems of "statelessness ... once and for all." By this understand-
ing, Sri Lanka agreed to confer its citizenship upon all the 94,000
persons who had not opted for Indian citizenship, and this process was
to be completed by September 1987. The Sri Lankan Parliament, with

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.

a view to giving effect to the above understanding, enacted the Grant

of Citizenship to Stateless Persons Bill on January 30, 1986.244

4.3.6 Switzerland

The Swiss Federal Law on the acquisition and loss of nationality,

the Law on Nationality of September 29, 1952, has been modified in
a number of ways over the years.245 A new article 18, of January 1,
1992, lays down the principles for granting Swiss nationality by
reintegration. This will be granted to those who have failed to fulfill
the conditions of articles 21 and 23 and have omitted to make the
declaration before reaching the age of twenty-two years required for
those born outside Switzerland of Swiss parentage, either one or both,
who also possess another nationality (article 21) or have lost Swiss
nationality but request reintegration after completing one year's
residence in Switzerland (article 23). Nationality by reintegration may
also be granted to an applicant who has connections ('liens') with
Switzerland. This is conditional on these persons not being unworthy
of Swiss nationality and not being a threat to the internal or external
security of Switzerland (article 18(c) and (d)).
A number of articles, as amended on January 1, 1992, provide for
a facilitated naturalization, such as for those persons who are
integrated in the Swiss community (article 26(a)), or for the husband
or wife of a Swiss national, living abroad, who has close connections
with Switzerland (article 28(b)). Furthermore, in the "Information
concerning the Law on Nationality" some guidance is given as to the
meaning of "close connections with Switzerland."246 These may be
listed as: (a) regularly spending vacations in Switzerland, (b) having
close connections with Swiss societies abroad, (c) frequent contacts
with persons living in Switzerland, in particular the relatives or friends
of husband or wife, and (d) use of one of the official languages of
Switzerland or of a Swiss dialect. Not all four of these connections
need be proved if, for example, three of them are shown to be
particularly close.

Agrawala, ibid. at 107-12.
Thirty-three changes came into force on January I, 1992, repealing,
reintroducing, or, for the most part, amending articles in the Law.
This information on the Nationality Law has been kindly provided by the
Embassy of Switzerland, Helsinki.

4.3. 7 Bulgaria

On May 10, 1989, the Bulgarian Government adopted a law to

amend and supplement the Law on Bulgarian Citizenship of October
II, 1968, as amended on August 15, 1986, thus introducing a major
new policy in this field. 147 By Edict No. 2499 of August 7, 1986, con-
cerning the Amendment to the Law on Bulgarian Citizenship of Octo-
ber 8, 1968/48 a person born as a child of a Bulgarian citizen, either
in Bulgaria or abroad, will acquire Bulgarian citizenship even if the
provisions of the foreign law treat him as its own citizen. The Law of
1989 now expressly permits dual nationality, in that Bulgarian citizen-
ship is granted to persons with a factual connection with Bulgaria
regardless of whether he is also considered as a national of anther
State. This is the break with the earlier policy of single nationality.
Principally, there are now two ways of acquiring Bulgarian
citizenship. Section 8 is amended as follows:

"An alien citizen may acquire Bulgarian citizenship if he has

had a permanent residence in the territory of the People's
Republic of Bulgaria for a period of not less than five years
prior to the filing of the petition."

And Section 6 is amended as follows:

"Every person shall be deemed a Bulgarian citizen by origin,

whose parents are or one of whose parents is a Bulgarian

To this may be added the amended Article 10:

"A person of Bulgarian ethnic origin may acquire Bulgarian

citizenship, even in the absence of the conditions specified in
Section 8."

This may be understood as a form of "facilitated naturalization" or

even "reintegration," although the determination of "Bulgarian ethnic

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).
Reproduced, with Introductory Note by Ivan Sipkov, 26 /.L.M. 422 (1987).

origin'' may cause difficulties in practice. The current citizenship and

residence of such persons is irrelevant.


In principle nationality is a matte r not regulated by international

law. The right of a State to use its discretion in this matter may only
be restricted by obligations which it has undertaken to other States,
that is to say by express derogations contained chiefly in treaties.
It is here submitted that other restrictions may also be placed on
the discretion of States. The requirement of an effective nationality
may constitute part of an international law of nationality.
There is a long history of international arbitral tribunals
determining national status in cases of conflict. This has occurred
where arbitrators had first to settle the question of a claimant's
nationality in order to determine whether the tribunal had jurisdiction
under the compromis establishing it. These cases were treated as ones
of choice of law, the tribunal applying the applicable municipal law.
Even in cases where the possession of a nationality was found to be
not proved, the tribunal acted as a municipal court would have done.
In addition to this, arbitral tribunals began to apply the principle of the
effective nationality in cases of dual nationality. This was a principle
of public international law.
After the close of World War I, the P.C.I.J. was called upon to
decide what constituted habitual residence as laid down in the
Minorities Treaties. Here the Court was defining the meaning of a
close connection in its role as an interpreter of international
In theNottebohm case, the I.C.J. rendered an individual stateless
in the international sphere on the grounds that his naturalization, quite
apart from any vitiating element of fraud, occurred without the
contemporaneous facts of a connecting link. A distinction was drawn
between the validity of his Liechtenstein nationality in the inter-
national sphere and in municipal law. It was the opposability of his
Liechtenstein nationality as against his Guatemalan nationality that
was impugned. The International Court of Justice was, it is submitted,
applying traditional international law and not the provisions of treaty
Following dicta in the N ottebohm case, the Iran-United States
Claims Tribunal elaborated on the criteria for determining what
constitutes dominant and effective nationality in the resolution of
international claims by dual nationals. Here the distinction between

diplomatic protection and the presentation of individual claims is

relevant, but the Tribunal's jurisprudence includes dicta that may be
applicable to both types of adjudication and, it is submitted, throws
doubt on the international customary law nature of the rule of
nonresponsibility for injuries to aliens in cases such as these of dual
nationals. Further, the effect to be given in law to the second
nationality has been judicially noted and more case law on this topic
will be forthcoming.
As a standard of international law the meaning of the link differs
from that of domicile. It is a mixture of fact and law. Of the various
definitions of the link that have been handed down two ingredients are
essential. There must be the fact of permanent residence in a State and
also it must be evident that in that State lies the center of the
individual's interests. There must be the fact of commitment to a
society as a whole. Nationality defines a person's political status and
his duty of allegiance, so the bond of attachment must be proof of a
political commitment to a State.


We have seen that the grant of nationality by the authorities of a

State to an individual may be questioned by an international tribunal.
This has happened chiefly in cases concerning the right of a State to
extend its diplomatic protection to one of its nationals who has, it
alleges, been subjected to arbitrary treatment in the territory of another
State. In this way the validity of the grant of nationality by a State has
been questioned vis-a-vis another State, with which the individual has
a closer connection. This has been called the opposability of nation-
ality .1
It is proposed now to look at more general limitations in inter-
national law on a State's right to confer or withdraw its nationality,
if such exist.
The right of States to determine the rules governing the attribution
of their own nationality in accordance with their interests is the basic
principle. For example, the formulation of laws for the acquisition of
nationality at birth is an exercise of this right recognized in inter-
national law. On the other hand, there are instances where the grant

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."


of nationality may be in the nature of an imposition, due either to its

being in conflict with the claims of another_ St~t~ or because it is not
in accordance with the express wish of the md1v1dual concerned. An
imposition of nationality may occur in a variety of ways. The appli-
cation of the jus sanguinis to those resident outside the jurisdiction
may amount to an imposition if continued for many generations. So,
too, the application of the jus soli to those who have no close connec-
tion with the country of their birth may also encroach on the rights of
the State of the parents' nationality or of the individual thus granted
nationality. Or nationality may be conferred on aliens resident within
the jurisdiction by operation of law as a compulsory naturalization. Or
the change of nationality may not be recognized by the country of
original nationality.
Deprivation of nationality 2 has been considered lawful under cer-
tain conditions. For example, where a person loses his nationality
automatically on acquiring another nationality, or where nationality is
lost as a punishment for committing offenses detrimental to society as
a whole. Whether a deprivation of nationality if permissible becomes
more uncertain, however, when the State authorities deprive one or
more of its citizens of their nationality and then expel them, or expel
first and then withdraw their nationality.
A number of problems arise in this connection. We have noted
already that there is a presumption that legislation has territorial effect
alone, although there are exceptions to this rule as, for example, in the
application of the criminal law. Also that the effect of a naturalization
of an alien may be vitiated in the international sphere where the social
bond of attachment is lacking between the State and the individual
naturalized. A more general limitation on the power of State author-
ities to determine who are its nationals is to be discussed now. The
questions now posed are: in what way is a State's sovereign power
limited in the way it may grant or withdraw its nationality, and is
there a duty on it to recognize the alienation of one of its citizens? If
the individual has certain rights in this connection, are they his rights
qua individual, or do they only arise through the injury done to the
State of his previous or acquired nationality? And if any rules do exist
in customary international law, have they been affected by the

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.
- - - ------- ---- - --

international instruments which have been drafted since the Second

World War, and go under the general title of human rights legislation?

1.1 The Views of Writers

In a number of recent publications on nationality and related

matters, international jurists have indicated that in certain circum-
stances the imposition or withdrawal of nationality may constitute an
international delict, giving rise to a liability to pay damages.

1. 1. 1 Imposition of Nationality

Verzijl discusses the imposition of nationality as connected with

the problem or the validity of nullity of acts of State which are con-
trary to international Jaw. He then writes:

"Performance of such an act [imposing nationality by general

or ad hoc legislation on unwilling foreigners] constitutes, of
course, an international delinquency and brings in its train the
normal consequences thereof: the duty to carry out a restitutio
in integntm by annulling the unlawful provisions of the im-
pugned law on citizenship or/and canceling the nationality
unlawfuJiy imposed, indemnification of the person(s) con-
cerned for the damage sustained, if any, etc . ... [T]he person
on whom a nationality was imposed in such an arbitrary man-
ner must simply be held on the international plane never to
have acquired it."J

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:

Vcrzijl, International Lav.· in m.uorica/ Perspective Vol. V (Leiden, 1972) 25.
/ .C.J. Report.<; (1955) at 51 and 52.

"the right to determine nationality is a right, not only limited

but also conferred by international law."

This construction implies that:

"a conferment of nationality contrary to international law con-

stitutes an exces de pnuvoir so that other States may demand
the abrogation of the legal measures concerned, even if no
. caused"6
persona I d amage 1s

Plender, also, refers to an international standard, and inclines to the

view that nonconformity with such standards

"may in certain cases, constitute a delict per se, and that in

such cases the failure to satisfy the international standard may
justify a claim for reparation."'

In his discussion of compulsory naturalization, he points out that there

has been no "firm decision from the P.C.I.J. or the I.C.J. on the ques-
tion of the limits imposed by international law" on the competence of
States to confer their nationality by naturalization, but

"There is ample support for the proposition that a State may

not, in conformity with international law, impose a nationality
on any foreign national against his will."8

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.

van Panhuys, op. cit. (1959) at 153.
Ibid. at 151 . This view is also put forward by Sir John Fischer Williams in
"Denationalization", 8 B. Y .I.L. (1927) 45.
Plender, International M igmtion ( J972) 33.
Ibid. at 286.
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."
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.


1. 1.2 Withdrawal of Nationality

The legality of a deprivation of nationality, whether individually

or en masse has been questioned, though more tentatively than the
legality of an imposition of nationality. Brownlie states that

"Existing practice and jurisprudence does not support a gen-

eral rule that deprivation of nationality is illegal." 11

van Panhuys discusses denationalization in connection with racial

discrimination, and the statelessness resulting from it, yet he doubts
whether "apart from some general moral obligations" 12 there exists a
legal duty on States to avoid cases of statelessness by their legislation.
Plender discusses denaturalization as a measure taken by a State prior
to justifying its expulsion or nonadmission of its former nationals. In
such a situation, he argues

"The decree of denaturalization, if promulgated solely as a

device to enable the State to take action which would other-
wise be illegal, might be regarded as an exces de pouvoir and
a breach of the principle of good faith." 13

He continues by saying that international tribunals wiJJ not lightly

impute bad faith to States. 14
Lauterpacht treated it as an instance of the application of the
doctrine of abuse of rights in international law. After stating that a
State may deprive its subjects of their nationality in a variety of ways,
such as when women marry foreign subjects, or as a result of a pro-
longed residence abroad or in consequence of certain offenses against
the law, he discusses decrees of denationalization of its subjects for
political or other offenses against the mother country. This is similar
to the situation envisaged by Plender. Lauterpacht continues:

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.
van Panhuys, np. cit. ( 1959) at 163.
Plender, op. cit. (1972) at 87.
Citing the Corfu Chmnel case, I. C.J. Reports (1949) 4, 17.
126 THE REGULATION OF NATIONALITY is submitted that the indiscriminate exercise by a State of

the right of denationalizing its subjects, when coupled with
the refusal to receive them when deported from a foreign
country, constitutes an abuse of rights which could hardly be
countenanced by an international tribunal."

Yet so long as statelessness is a status recognized as existing in

international law, albeit an anomalous one, then denaturalization also
exists. Weis expresses it this way:

"statelessness is not inadmissable under international law,

although it may be considered undesirable."•'

1.2 Historical Migrations

The principle of State sovereignty presupposes not only a defined

territorial limit to the state but also a defined population. Grotius
discussed whether it was permissible for nationals to withdraw from
their State without permission. He then declares mass emigration to be
unlawful because it threatens the disruption of society, while individ-
ual migration was permissible unless the country was deeply in debt
or engaged in war. 17 Vattel discussed under what circumstances a man
owned a right to leave his country.
By the latter half of the seventeenth century the right of inhabi-
tants of a province or district which was changing hands to leave the
district rather than change their allegiance was introduced into the
public law of Europe. However, it is against the background of the
movement of peoples in the nineteenth and twentieth centuries that the
present rules have evolved with regard to a State's sovereign right to

Lauterpacht. The Function of Lm'' in the International Cnmm unity (1933)
tfi W . N . aJ
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." '
- -- ---------~


legislate on matters concerning nationality. The nineteenth century saw

a great movement of population from Europe to the States of the
American continent, 111in particular to the newly independent United
States of America. Between 1851 and 1914 the United States received
about 30 million immigrants, 10 million of those arriving between
1905 and 1914. By the end of the nineteenth century, however, this
appetite for immigrants was beginning to wane, in particular for non-
European immigrants. In 1882 the United States Congress passed the
first Chinese Exclusion Ace" intended to stop the influx of Chinese,
although it did not apply to those Chinese who had already entered
and established a domicile.21 Canada then followed suit with the
Chinese Immigration Act 1885,22 the Canadian Pacific Railway having
reached Vancouver in 1885. In 1901 the Australian Parliament passed
the first of series of Immigration Restriction Acts. 23 After the First
World War more than twenty States had adopted legislation to restrict
and reduce the immigration of foreigners. 24
The trend to exclude immigrants was aggravated by the problem
of the unprecedented increase in the number of stateless persons after
the first world war. This was caused by a number of factors, but main-
ly as a result of the provisions of the Peace Treaties. By the Treaty of
St. Germain the old Austro-Hungarian Empire ceased to exist and
some fifty million people were affected by the succession of States
arising out of this Empire. Where nationality was based not on
domicile but on racial affiliation countless cases of statelessness

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.
Statistics presented in 20 Senate Doc., 61st Cong .. 3rd Session, 1910-11. See
Plender. op. cit. at 55.
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.
Lan Ow Ben v. U.S., 141 U.S. 34, 36 (1892).
48-49 Viet. c. 71.
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.
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."

arose.zs The denationalization legislation of the Soviet Union soon

after the Revolution in that country and also of Nazi Gennany further
aggravated the situation. Since 1945 the number of stateless persons
has continued to increase due to political upheavals and armed
conflicts. Estimates of transcontinental migration from Europe to
countries in need especially of skilled labor between 1945 and the
beginning of the 1970's indicate that over twelve million people
settled permanently overseas. Further, by the end of 1982 the number
of global refugees was roughly estimated at some 14 million, and in
the following decade the numbers increased further, swelled by the
numbers of involuntary migrants fleeing for reasons such as "civil
war, serious civil disturbances or economic deprivation and social
discrimination. " 16
Another, more recent, trend noted by the same writer, is that of
bona fide economic migrants who return to their home country to be
reintegrated there. This may be noted in the light of developments to
restrict immigration, due largely to the present economic climate in
the highly industrialized countries, even starting with those countries
with a liberal immigration policy. 17


2.1 Unilateral Imposition 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-

zs The reference was to "pertinenza" or "indigenat." See Kunz. "L' Option de

Nationalite," 31 Rec:ueil des Cours (1930-31) Ill at 162. See, infra. Chapter 5.
Jenny, "The Changing Character of Contemporary Migration." in Yearbook
t~f the International Institute of HumlUiitarian Law ( 1985) 37 at 40 42 45-48
l7 . • • .
For example, m the Federal Republic of Gennany the Council of Ministers
deci~e~ on December 2, 1981. to request the Lander to elaborate unifonn regulations
prov1dtng con~r~te measures to limit the influx of foreign population. 86 R .G.D./.P.
(198~) 547. S1m1lar steps have been taken in the United States. Hb 12 August. 1982.
and m, Canad~. H? 3 November. 1982. See also 30 I.L .M. 298 ( 1991) for the United
States lmm1grat1on Act of 1990, Public Law 101-649, Nov. 29. 1990. and
Introductory P . by Arnold H • Liebowitz• as to deve1opments m
· Note. · Us . . 1mm1grat1on
· ·
an d Re fugee o11cy.


matically, with neither his request before the naturalization became

effective nor his consent after his acquisition of nationality de facto.
The three categories of aliens affected were: those who combined
residence in a foreign country with marriage to a national of that
country; those who acquired real estate; those who acquired a domicile
while retaining an alien nationality. Laws of this nature have been
declared null and void and without validity in the international sphere.
Some have been repealed.
Article 6( 4) of the Constitution of Peru, 1839, provided that any
foreigner who had resided in Peru for four years should become
naturalized on marrying a Peruvian citizen. The British Charge
d'Affaires at Lima issued two strong protests to this law, on the
grounds that consent of the individual was an essential prerequisite to
naturalization. He referred to the

"incontrovertible principle of the laws of nations that the

consent of a foreigner is necessary to legalize his naturali-
zation. " 28

On July 31, 1841, the Peruvian Government issued to the prefects and
to the superior courts of justice a circular order saying:

"The I 68th article of the Constitution provides that foreigners

who acquire real estate are ipso facto naturalized. " 29

Clerks were forbidden to draw up any instrument for the alien-

ation of the right and title or the usufruct of any lands or real estate
to a foreigner, or any lien or mortgage by which a foreigner acquired
an interest in real estate, without inserting an express renunciation of
his foreign citizenship. The United States Charged' Affaires at Lima,
Mr. Pickett, protested against the order, not on the ground that an
alien may be prevented from holding real estate, but that to treat them
as citizens when they bought it was to lay a snare for them. The
Peruvian Government agreed that the law would not be construed to
operate retroactively, but this reply was not accepted as adequate and
Mr. Pickett remained of the opinion that the law would have to be
abandoned piecemeal.

Plender, op. cit. ( 1972) 286.
Moore, Digest of International Law Vol. Ill §378.

Similar opposition was voiced to laws claiming as citizens certain

categories of aliens domiciled within the territorial jurisdiction. The
U.S. Secretary of State, Daniel Webster, stated the position in a letter
concerning the Spanish proclamation of October 21, 1817, in which
provision was made for the domiciliation of foreigners in Cuba for the
purpose of increasing the white population of the Island. Change of
domicile, he wrote,

"is a matter of intention, and, notwithstanding residence in

fact , there must be the animus manendi. Change of allegiance,
which is manifested by the voluntary action, and usually by
the oath of the party himself, ought always to be
accomplished by proceedings which are understood on all
sides to have that effect. " 30

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:

"A law by a foreign State providing that all persons visiting

such State are to be regarded as citizens or subjects wi II not
be regarded as internationally binding."

2. 1. 1 Latin American Laws

The Mexican laws which provided for the automatic naturalization

of foreigners who acquired real estate unless they showed a clear
intention of retaining their original nationality have been declared not
binding on third States. 32 The Constitution of Mexico, of 1857, Title
I, Section 2, Article 30 provided:

"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

~ Moore, llffemational Arbitrations Vol. II (1898) 2703.


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.

Further, Chapter I, Article I, Section 10, of the law of May 28,

1886, concerning alienage and naturalization, known as the Lex
Vallarta, declared to be Mexican, "aliens acquiring real estate in the
Republic, provided they do not declare their intention of retaining
their nationality." By the same section the alien is required at the time
of acquiring the property to declare "to the officiating notary or judge
whether he does or does not wish to acquire the Mexican nationality
granted him by Section 3 of Article 30 of the constitution", and his
decision on the point is required to appear in the document. The
validity of these laws was questioned, as had been the case with the
Peruvian decrees. Mr. Bayard, Secretary of State of the United States,
in a letter to Mr. Manning, Minister to Mexico, Nov. 20, 1886, stated:

"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

He continued by saying that as well as being a "generally recognized

rule of international law" it had been acted upon by the mixed
commission under the convention of July 4, 1868, between the United
States and Mexico, with the conclusion that the United States does not
admit the doctrine of involuntary change of allegiance.
The decision referred to by Mr. Bayard was the award of the
Umpire, Lieber, in the case of Fayette Anderson and Wm. Thompson
v. Mexico, 34 of April 24, 1871. Anderson and Thompson were Ameri-
can citizens who went to Mexico in 1863 following the invitation held
out by Mexican authorities to foreigners to settle and cultivate land in
that country. In 1864 they suffered greatly in consequence of the
French invasion, and in 1876 they lost their plantation altogether by
a proclamation of the Mexican President, declaring the valley in which
their plantation was situated public land. The Mexican government
questioned their standing before the mixed commission on the ground
that they were Mexican citizens, following their purchase of land in
Mexico. Lieber allowed the presentation of their claim before the
United States-Mexican Commission. He stated that the Mexican Law
of 1857

Ibid. at 306. The Lex Vallarta recognized the "right" of expatriation.
Moore, Arbitrations Vol. Ill 2479-8 I. and Digest Vol. Ill 304.

"clearly means to confer a benefit upon the foreign purchaser

of land, and equity would assuredly forbid us to force this
benefit upon claimants (as a penalty, as it were, in this case),
merely on account of omitting the declaration of a negative;
that is to say, they omitted stating that they preferred remain-
ing American citizens, as they were by birth-one of the very
strongest of all ties."

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

"that part of the constitution of Mexico which says that those

are citizens who hold land is permissive and not obligatory ."35

A conscious act is required to show consent to expatriation. Thus

that section of the Mexican law which requires foreign nationals to
declare their intention to retain the original nationality may be treated
as a nullity in the international sphere. This principle was followed in
later cases before the mixed commission. In Rafael M. Miller v.
Mexico, the Umpire, Dr. Lieber, stated in his decision of August 2,

"Domicil in a foreign country does not denationalize, unless

there be a distinct law to that effect in the native or adopted
country of the respective person. If Miller was an American
citizen when he went to Matamoras he remained such as long
as he remained there, unless he became by some distinct act
or other a citizen of the Republic of Mexico."36

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

Moore, Arbitrations Vol. Ill 2482.
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.

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

Moore, Digest Vol. Ill 307-08.
"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.
Ibid. at 310.
40 /d.

would be exempt from military service, but those engaged in secular

pursuits would not. A number of persons in the United States accepted
this invitation, went to Haiti and obtained grants of land there upon
their becoming citizens. Subsequently some of these persons claimed
exemption from military service as citizens of the United States. In a
letter to Mr. Powell, Minister to Haiti, written December 1, 1889, the
Secretary of State, Mr. Hay, stated:

"As the immigration of the persons in question and the

acceptance by them of a land grant from the [Haitian] Gov-
ernment appears to have been expressly conditioned upon
their becoming citizens of [Haiti], the transaction must be
regarded as a voluntary contract whereby the immigrant settler
renounced his American citizenship and became merged in the
body politic of the [Haitian] Republic. " 41

As the United States recognized the right of expatriation, United

States citizens could change their nationality, provided that the change
was a result of a voluntary and conscious act. This view has been held
consistently. The Department of State in an instruction of March 16,
1934, to the Consul General at Bucharest pointed out that the
Department only recognizes American citizens as being naturalized in
a foreign State in conformity with its laws where

"the naturalization is the result of a distinctly voluntary act or,

if the naturalization is acquired as a result of an involuntary
act, he has performed some overt act indicating the acceptance
of the foreign nationality involuntarily conferred upon
him . ..." 42

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

See U.S . Foreign R elations (1889) at 403.
Cited in Hackworth, Digest of lntematinnal Lav.• \'ol. Ill (1942) 209.
Ibid: 9 A.D. (1938-40) Case number 116 at 351.

"Expatriation is the voluntary renunciation or abandonment of

nationality and allegiance. It has no application to the removal
from this country of a native citizen during minority. In such
a case the voluntary action which is of the essence of the right
of expatriation is lacking."

The German-Mexican Claims Commission followed the jurispru-

dence of the United States-Mexican Mixed Commission. In the case
of In re R au, decided on January 14, 1930, the question to be decid-
ed was whether Rau, an alleged German national, had acquired
Mexican citizenship under Article 30 of the Mexican Constitution of
1857 by purchasing real property in Mexico. If this were so the Com-
mission would have no jurisdiction to hear the claim on his behalf in
respect of damage caused to his property by revolutionary forces. It
was held that the Commission had jurisdiction, for the Mexican Law
of 1886 must be construed as interpreting the Constitution so as not
to confer Mexican nationality automatically. This was in accordance
with international Jaw, which does not permit the compulsory change
of nationality. The Occelli case, before the Italian-Mexican Claims
commission, Decision No. 67 (unreported) and the B arcena case
before the Spanish-Mexican Claims Commission, Decision No. 11
(unreported) were decided to the same effect. 45
An amendment of January 17, 1934, of the Mexican Constitution
paved the way for the Law of Nationality and Naturalization of Janu-
ary 19, 1934, by a provision of which the whole of the "Lex Vallarta"
was repealed. 46 A constitutional decree of December 14, 1939, follow-
ed by regulations issued in 1939 and 1940, further amended the
Mexican nationality laws. The new Nationality Law provided exam-
ples of "privileged naturalization" where the acquisition of Mexican
nationality occurred automatically and without application. This was
the case when an alien woman married a Mexican national or, under
the decree of the 18th December, 1939, when the individual concerned
was a "Spaniard by origin." lndolatinos could become naturalized on
the sole basis of having their domicile or residence in Mexico, that is,

6 A.D. (1931-32) Case No. 124.
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.
See Koessler, "The Reformed Mexican Nationality Law," 5 LouiJiana Law
Review (1942-44) 421 et seq.

on a political basis. Those who established an industry, enterprise or

business of utility to the country were permitted to acquire natural-
ization without previous residence so long as they had their domicile
there, that is to say, on an economic and political basis. ' It also be-
came easier for those who had lost their Mexican nationality to
reacquire it.
The "automatic naturalization" of the Lex Vallarta article I (I O)
was discarded by the law reforms of I 939. According to this previous
law, as we have seen, aliens were converted into Mexican nationals
when they acquired real estate in the country and failed to file a
formal declaration of retaining their nationality of origin. It was
admitted that this provision had caused some diplomatic difficulties,
because it had amounted as a matter of fact to involuntary acquisition
of Mexican nationality on failure to file the required declaration. The
"odious laws" were repealed.48
In his Report on Nationality and Statelessness to the International
Law Commission Hudson referred to an Argentinian bill purporting
to confer automatic Argentinian nationality on aliens after two years
residence. This led to such an outbreak of protests by other govern-
ments that it was finally withdrawn.49
These Latin American laws provided for the automatic natural-
ization of foreigners by operation of law. Those States protesting to
them argued the rule that naturalization can only occur as a result of
the express will of the individual. The acquisition of nationality after
birth must result from manifest intent.

2.1.2 The Common Law. Perpetual Allegiance

Another, wider, group of national laws concerning nationality

permitted no change of nationality on the ground that nationality is a
permanent status. This involves a different concept, that of expatri-
ation, which comprises two separate acts, the abandonment of a
nationality of origin and the acquisition of new nationality. The
Attorney-General of the United States expressed it in this way in

Ibid. Otherwise the required period of residence was increased from two to
five years.
48 N • by marriage is another matter.
2 Yearbook of the I.L.C. (1952) 8.

"The idea of expatriation comprehends not merely the Joss,

but the change of home and aiJegiance; it includes not only
emigration, but naturalization."50

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

so Black, Attorney-General, 1859, quoted in Moore, Dige.fl Vol. III 552.

Parry questions whether one can talk of a British nationality Jaw at that time,
for the early development of the common law on nationality was "essentially
piecemeal," and as both he and Mervyn Jones point out, "The conception of
' nationality' as a relation between the individual and the State dates from the French
Revolution, when monarchy and the person of the monarch ceased to be the pivot and
centre of constitutional law." See Parry, Nationality lUJd Citizenship Laws of the
Commonwealth (1957), Preface and Chapter 2, and also Mervyn Jones, British
Nationality Law ( 1956). especially 57-62.
Parry, op. cit. ( 1957) 30 et seq., gives the historical development of the notion
of allegiance, and the legal meaning of it as owed by natural-born subjects.

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

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."
As stated in the case of A enea.f M acDonld (1747). See Scott. ed., Cases on
lmemational Law (1922) 315.
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.

fact, and also to the great diversity of circumstances under which men
reside in foreign countries."

2.1.2. 1 The British Naturalization Act, 1870

In the British Naturalization Act of May 12, 1870, this recom-

mendation of the commission not to equate foreign domicile or resi-
dence with loss of nationality was followed. Section 6 of that Act,
dealing with expatriation, provides as follows:

"Any British subject who has at any time before, or may at

any time after the passing of this Act, when in any foreign
State and not under any disability voluntarily become natural-
ized in such State, shall from and after the time of his so
having become naturalized in such foreign State, be deemed
to have ceased to be a British subject and be regarded as an
alien ...." 57

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
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.

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."

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
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

2. 1.3 United States Law

The American nationality law followed the common law in basing

nationality primarily on the jus soli. This was embodied in the 14th
Amendment to the United States Constitution which provides:

"All persons born or naturalized in the United States, and sub-

ject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside."

The common law principle was followed without statutory author-

ity until an Act of Congress of April 9, 1866, which provided

"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-

Ibid. at 78.
But the "right of expatriation" could become treason in time of war, R. v.
Lynch [ 1903] l. K.B.
Statutes at Large, Vol. 14. p. 27. See 9 A .J.l.L . (1915 ) 942-48, Editorial
Comment: Dual Citizenship.

orary visit to China.u Nationality jure sanguinis was recognized for

one generation only for those born out of the territorial jurisdiction.
Acts of Congress of 1802 and February 10, 1855, reappear in sub-
stance as section 1993 of the Revised Statutes:63

"All children heretofore born or hereafter born out of the

limits and jurisdiction of the United States, whose fathers
were or may be at the time of their birth citizens thereof, are
declared to be citizens of the United States; but the rights of
citizenship shall not descend to children whose fathers never
resided in the United States."

2. 1.3. 1 The Right to Expatriation

It was in connection with the rules regarding expatriation that the

United States evolved the novel doctrine of the right to expatriation.'4
This doctrine was not applied in the early days of the Republic when
the rule was that naturalization in a foreign country did not necessarily
release a person from his old allegiance if his country of origin so
concluded. In Talbot v. Janson (3 Dall. 133, 164 (1795)), the Supreme
Court considered that naturalization in a foreign country did not
amount to a renunciation of American citizenship, for which a change
of domicile and allegiance was needed. 65 By 1868, after heavy immi-
gration to the United States between 1840 and 1860, the United States
authorities wanted recognition of the view that naturalization in the
United States effected complete expatriation from a former allegiance.
This found expression in an Act of Congress Concerning the Rights

61 See Scott, Ca~es on lnternaJionaJ Law ( 1922) 141.

63 Statutes at Large Vol. 10, Ch. 51, p. 604, in 9 A .1./.L. (1915) 942-48.
Novel, that is, in the way it was applied by the United States. The right of an
individual to expatriation was incorporated in the French Constitution of September
3, 1791. See De Visscher, Theory and Reality;, lnremaJionaJ Law (1968 ed.) 185.
On the other hand, since 1795 Congress had required an alien seeking
American citizenship to declare "that he doth absolutely and entirely renounce and
abjure all allegiance and fidelity to every foreign prince, potentate and state or
sovereignty whatsoever ... where he was before a citizen or subject." Savorgnan v.
United States, United States Supreme Court, Jan. 9, 1950. 16 A.D. Case No. 59.

of American Citizens in Foreign States, approved in July, 1868. The
new doctrine was expressed in the preamble as follows:

"Whereas the right of expatriation is a natural and inherent

right of all people, indispensable to the enjoyment of the
rights of life, liberty, and the pursuit of happiness .. .. Be it
enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, that any
declaration, instruction, opinion, order or decision of any
officers of this government which denies, restricts, impairs, or
questions the right of expatriation, is hereby declared incon-
sistent with the fundamental principles of this government."

Section 2 of the Resolution provided for the equal protection

abroad for native and naturalized citizens, In this form the American
doctrine of the right of expatriation involved three, not two, different
principles: First, that there should be freedom of emigration; second,
that naturalization should effect automatic expatriation; and, third, that
a naturalized citizen would receive the same protection abroad as a
native citizen, even as against the country of his origin. This was to
go considerably further than claiming the right of individuals to divest
themselves of a permanent allegiance acquired at birth. The U.S. Doctrine of the Right to Expatriation in

Relation to Turkey and Others

The controversy over nationality between the United States and

Great Britain was settled by the abandonment of the principle of
indelible allegiance in the British Naturalization Act, 1870, and the
conclusion of the "Bancroft" conventions between the United States
and Great Britain under which naturalization in either country was
recognized as effecting the abandonment of the nationality of origin.
The new American doctrine of the right of expatriation, expressed in
the 1868 Resolution led, on the other hand, to diplomatic contro-

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, Vol. Ill 566.

versies, as exemplified in the controversy with Turkey.(i7 At issue was

the right of the United States to grant its nationality to Turkish sub-
jects who had immigrated to the United States and then, as citizens of
the United States, returned to live in their native country. The contro-
versy was particularly aggravated by the nature of the capitulatory
regime, by which United States consular officials possessed extra-
territorial jurisdiction. This capitulatory jurisdiction and right to
protect had been gradually extended by the European States and the
United States to persons other than their own nationals, these proteges
often not even being in the service of the foreign consulates. An Otto-
man law of 1860 required these proteges to leave the Empire within
three months; if they remained they became subject to Ottoman law.
Another Ottoman law of 1869 denied the right of expatriation except
in those cases where Imperial consent was given. 68 As a consequence
of the United States doctrine of the unrestricted right to expatriation
the lack of Imperial consent was no bar to Turkish immigrants acquir-
ing United States nationality. Under United States nationality law even
the "intention" to become a United States citizen, as expressed in the
taking out of first papers, could be enough to effect a change of
nationality. Ottoman Armenians and Syrians could settle in the United
States and there acquire wealth and United States citizenship, then
return to live in their native land exempt from Ottoman laws, so, for
example, paying no tax for the property they owned. Between 1900
and 1924, some 70,000 naturalized Americans returned to live in
Turkey. In 1892, an Imperial Edict requested the American Legation
to notify its consuls and agents to refuse protection to persons who
had obtained naturalization without Imperial consent. In 1898, Secre-
tary of State Hay stated that American law as to naturalization must
apply. Between 1874 and 1899, the United States Senate three times
rejected treaties with Turkey to the effect that naturalization in the
United States would be renounced after two years residence in the
country of origin. Turkey argued that the naturalization was not in
good faith, because it was acquired in order to return to the Ottoman

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.
Gordon, "The Turkish-American Controversy over Nationality," 25 A .J.I.L.
( 1931) 658-69.

Empire for purposes of sedition, and that it was a fraud. 69 Turkey

claimed the right to refuse entry to Ottoman Armenian subjects who
had become naturalized in the United Stales. In 1899, the Grand
Vizier said Turkey would defend if there were war because of this.711
The controversy was settled by a change of circumstances. In
1923, the capitulations were officially abrogated and there was a sub-
sequent exchange of minority populations. Formerly, 95% of the emi-
grants were members of the minority groups. The 1928 Ottoman Law
of Nationality provided that anyone wishing to expatriate himself must
have the permission of the Council of Ministers. This was accepted;
but Article IV, providing that every child born in Turkey is regarded
as a Turkish citizen, without qualification, had to be abandoned be-
cause of strong opposition abroad. This was then amended on April
9, 1929, to permit a child born in Turkey of foreign parents to choose
his nationality upon reaching majority.
It may also be mentioned here that in the Salem case71 the arbitral
tribunal stated, obiter, Nielsen dissenting, that the Turkish law of 1869
which made the acquisition of foreign nationality dependent on the
permission of the Government "is internationally not to be objected
to." In the A postolidis case,72 the Franco-Turkish Mixed Arbitral Tri-
bunal heard a claim made pursuant to the Treaty of Lausanne by
Demetrius Apostolidis, a French citizen resident in Athens, and his
brothers and sisters, French citizens all resident in Alexandria, for the
restitution of certain properties in Turkey inherited from their father,
Athenodore Apostilidis. The Turkish Government challenged the juris-
diction of the Tribunal on the ground that the claimants were all
Turkish citizens under Turkish law, regardless of their naturalization
as French nationals. The Tribunal decided in favor of its jurisdiction
because the Tribunal "as regards international law is not bound by the
municipal legislation of one of the contracting States and are bound
to recognize the validity of the change of nationality and to recognize
the claimants as French nationals." Thus municipal law denying
discharge of nationality was held to be not relevant in international

Ibid. Cf. Moore, Di~est Vol. Ill 686.


Ibid. 665.
See, supra. at40-41.
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.

In the United States the doctrine of the right of expatriation was

gradually eroded. In 1907, American citizens who were formerly
Turkish subjects were advised, pursuant to Section 2 of the Act of
March 2, 1907, that if they returned to Turkey and resided there for
a period of two years they would be presumed to have forfeited their
American citizenship, unless the reason for their prolonged stay was
included under the list of justifiable exceptions. 73 By the same Act of
Congress a naturalized citizen who resided for five years in a country
other than his country of origin would be presumed to have ceased to
be an American citizen. The American courts accepted that the consti-
tutional guarantee of due process was not offended by these distinc-
tions between native-born and naturalized citizens. In Schneider v.
Rusk,14 the plaintiff's American citizenship, acquired derivatively at
the age of sixteen through the mother, was lost on her return perma-
nently to her country of origin, Germany.
However, the Attorney-General and the Federal courts construed
this Act so as to limit its application in the internal law of the United
States. Such residence abroad resulted not in the actual loss of
citizenship, but merely in the Joss of right to diplomatic protection.
The effect of the presumption of loss could be wiped out at any time
by returning to the United States for permanent residence.75
The Federal courts have also on numerous occasions held that
expatriation must be a matter of free choice."' Thus expatriation is not
possible by minors or mentally incompetent persons," enlistment in
a foreign army does not constitute expatriation per se, 78 and conscrip-

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.
35 I.L .R. 197.
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.
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."
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.
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.

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
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:

See Kanno v. Ache.w n, Secretary of State (1950), 17 /.L.R. Case No. 58.
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.
48 USLW 4069 (S. Ct. Jan. 15, 1980). Digested in 56A.J.I.L. (1980) at 438.
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.
See Borchard, "Decadence of the American Doctrine of Voluntary
Expatriation," 25 A .J.I.L . (1931) 312-16 at 314.

"When immigration is denied to many people, their 'inherent

right' of expatriation becomes rather an empty formula, for
their 'inalienable right' to 'liberty' and the ' pursuit of happi-
ness' is strictly confined to enjoyment at home."

2. 1.4 Other States. Expatriation Dependent on


Whereas statutory provision for the automatic naturalization of

resident aliens and the doctrine of perpetual allegiance led to diplo-
matic protests and controversies, thus becoming discredited, many
States made expatriation dependent upon the fulfillment of certain
conditions. Section 2(2) of the United States Expatriation Act of
March 2, 1907, provided

"that no American citizen shall be allowed to expatriate himself

when this country is at war."

Similar laws were in force in other countries. 84 Article XVII, Sec-

tion 1 of the French Law on Nationality of June 26, 1889, provided
that a Frenchman cannot expatriate himself unless he has performed
the prescribed military service in France, or has obtained the express
permission of his government. The Italian Civil Code in force in 1914
permitted an Italian to change his nationality, but denied that doing so
relieved him from the obligation of military service in Italy, unless he
was expressly excused therefrom. Articles VIII and IX of the Swiss
Naturalization Law of 1903, stipulated that a Swiss citizen must obtain
the approval of the Canton to which he belongs in order effectively to
renounce his allegiance. According to Spanish law loss of nationality
by naturalization abroad only freed a person of his Spanish nationality
when obtained with the knowledge and authority of the Spanish
In his survey of nationality laws published in 1935, Sandifer wrote
that twenty-four countries85 today specifically require the consent of

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.
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.

the government before a national can acquire the nationality of anoth

State, loss of his nationality of origin ens~ing_ therefrom. Eleven ~~
these plus two more, Italy and Japan, that ts thtrteen States in all, re-
quired the performance of military service as a prerequisite to the loss
of nationality by the acquisition of the nationality of a foreign State.
The existence of these laws in many countries have taken on a new
meaning since the end of the Second World War. By making expatri-
ation dependent on the fulfillment of certain conditions States have the
administrative means to ensure that loss of citizenship occurs only
when another citizenship is acquired, so avoiding cases of stateless-
ness. For example, the laws of Norway and Denmark make release
from their nationality effective only on application "and only if the
applicant is a national of another State."86

2.1.5 The Meaning of Imposition

State practice on the subject of the imposttton of nationality,

supported by judicial decisions to be discussed below, have led to the
formation of a rule of international law that States cannot grant their
nationality to persons who do not wish to have it or are in no way
connected with such a State. Nationality so acquired may be inter-
nationally void. Bar-Yaacov considers it a rule of customary inter-
national law that

"States are entitled not to recognize the naturalization

conferred upon an individual without his request, when the
person concerned has not been attached to the naturalizing
country by any particular bond such as birth or residence."

Goodwin-Gill states that:

"Today the general rule is that recogmtton need not be

accorded to measures imposing nationality on residents or

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.
See Bar-Yaacov, Dual Nationality (1961) 2.
- - - - - -


if imposed without request or consent, unless the individual has a

genuine connection with the State by both parentage and permanent
domicile. The requirement of domicile in this connection may, per-
haps, be questioned, expatriation and naturalization being two separate

2. 1.5. 1 Privileged Naturalization not Imposition

The Turkish law of 1928 granted the right of option on majority

to children born on Turkish territory and resident there throughout
their minority on the sole ground of the foreign nationality of one or
both of the parents. States are permitted to pass laws granting so-
called "privileged naturalization" to certain classes of persons, whose
connection with the naturalizing State may be linguistic or ethnic. A
number of Latin American laws have been mentioned earlier. Section
16 of the Irish Nationality and Citizenship Act, 1956, provides that the
conditions precedent to naturalization may in certain cases be dispens-
ed with, paragraph (a) "where the applicant is of Irish descent or Irish
associations." Sandifer found that the rule of jus sanguinis was widely
applied throughout the world. 89 The requirement of domicile or resi-
dence as a condition to be fulfilJed before naturalization appears in the
laws of many countries. In the Report by the Secretary-General of
May, 1952, eighteen countries gave the requirements then in force for
naturalization. Five years residence was the usual residence require-

2. 1.5.2 Territorial Jurisdiction and Expatriation

The laws concerning expatriation, on the other hand, are not so

explicit. The British Naturalization Act, 1870, required that a British
subject may cease to be one "when in any foreign state" he there vol-
untarily becomes naturalized.'' An Irish citizen may renounce his
citizenship under certain conditions, one of which is that he is "ordin-
arily resident outside the State." 92 Similarly, in Hideichi Takeguma et

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.
Secretary-General's Report 31 et seq., supra note 86.
s11pra, this chapter, section 2. 1.2.1.
Ireland, Nationality and Citizenship Act, 1956. Parry, op. cit. (1957) %1.

a/. v. United States (1946), a Circuit Court of Appeals held that to

complete an act of expatriation such persons must leave the United
States. 9 -' To change nationality while remaining resident in the territory
of the State of the previous nationality would indicate that the change
is effected as a fraud on the law and, therefore, is null and void. The
rule of public international law which limits the power of States to
confer their nationality on non-resident aliens would seem, rather, to
be one aspect of the broader rule that States cannot pass extra-terri-
torial legislation with binding effect. Further, to impose nationality on
an alien without his request or consent is an act injurious to the State
of the alien's nationality, for it may affect his property rights and in
general his status vis-a-vis the State of his original nationality.
The German Imperial and State Citizenship Law of July 22, 1913,
which is the first of the modem nationality laws, illustrates some of
these points. Section 24 provided that

"An act of expatriation is considered ineffective, if at the end

of one year after the issuance of the expatriation certificate the
expatriated person maintains his residence or his permanent
abode in Germany."94

Since 1945 there has developed a considerable body of judicial

practice by municipal courts dealing with the loss and acquisition of
nationality to be discussed below.

2.2 Deprivation or Withdrawal of Nationality

The right of a State to withdraw its nationality from one of its

nationals is another aspect of the discretionary right of States to
determine who are its nationals. Disagreement as to the alleged limits
to this arose in the relations of States at a later date than the contro-
versies over conflicting claims to the nationality, or allegiance, of
individuals. This was no doubt influenced by the fact that a person
deprived of his nationality, unless he also possesses another nation-

In 13 A .D. (1941) Case No. 53.
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.)

ality, has no State to protect him and hence no voice in the inter-
national sphere.

2.2. 1 Meaning

Different terms have been used to refer to this occurrence:

"deprivation of nationality," "forfeiture of nationality," "denationali-
zation" or "denaturalization" as the case may be, and "loss of nation-
ality."95 What these have in common is that nationality is withdrawn
without the request or consent of the individual, and does not arise by
operation of Jaw, such as when a woman marrying an alien loses her
nationality and does not automatically acquire his. 96 The loss of
nationality, like the acquisition of nationality, may be involuntary. The
question is whether such deprivation of nationality is legitimate in
public international law.

2.2.2 Lawful Withdrawal of Nationality

In some cases, deprivation of citizenship is clearly permissable.

Into this category fall those municipal laws which provide for the Joss
of nationality by naturalization obtained by fraud or illegal means.''
Fraud in obtaining naturalization may also be shown in fraudulent acts
related to conduct subsequent to the date of naturalization. 98 Natural-
ization may be fraudulent where the person naturalized does not
abandon allegiance to his State of origin, with which a state of war
later arises99 or if he, for example, engages in actions against the
security of the nation. 11111 In Paul Knauer v. United States of America,
the United States Supreme Court defined fraud as connoting "perjury,

See The Problem t~f 150.
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.
See Makarov. A /lgemeine Lehren de.'i Staatsangehiirigkeitsrecht ( 1962)
207-08: naturalization "in fraudem legis" need not be recognized in third States.
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.
Paul Knauer v. U.S .A .. U.S. Supreme Court, Decision of June 10, 1946, 13
A .D. (1946) Case No. 51.
In re Sa'i.w la. Argentina. Federal Court of Rosario, Dec. 4, 1943, 12 A .D.
(1943--45) Case No. 58.

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

2.2.3 Exile

The imposition of exile as a punishment exists in the criminal

codes of some States. It was a punishment not unknown among
primitive societies and existed in others, for example medieval Scand-
inavia, before prisons or houses of correction were established for the
punishment of criminal offenders. A United Nations committee estab-
lished by the Commission on Human Rights has considered the sen-
tence of exile in its "Study of the Right of Everyone to be Free from
Arbitrary Arrest, Detention and Exi Ie. " 103 There the term exile was
used to denote "expulsion or exclusion from one's own country,"
whereas banishment was "compulsory sojourn in a specific, possibly
remote, region within the country." That is, exile is used in the extra-

Supra, note 99.
102 S Th . ,
• ee e Problem of Statelessness, Chapter VI "Withdrawal of Nationality,
150 et seq.
U.N. 1964. Dept. of Economic and Social Affairs. E/CN.4/816 Rev. 1.


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

"that exile has virtually disappeared. Whether as a penalty or

a political measure, exile is either prohibited or not practiced
in most countries."

In a few countries exile exists as a form of punishment, sometimes

for offenses of a political character, and sometimes the duration of
exile is indicated. However, "In recent years it appears that in some
of these countries this penalty has seldom been imposed." It was
pointed out that sometimes exile, in the meaning of exclusion from
one's country, is applied as a special measure, for example Italy's
constitution prohibits the entry and sojourn in that country of its ex-
kings, their consorts and male descendants; or as an exceptional mea-
sure, for example in Brazil "in times of acute political crisis."
Exile as a penalty does not invariably entail loss of nationality.
Where exile, or expulsion, is followed by deprivation of the nation-
ality of the persons so excluded then such deprivation may be in the
nature of an abuse or rights or exces de pouvoir, for the status of
those so deprived changes from that of aliens to stateless persons in
the territory of the receiving State. Deportation may follow denational-
ization. Or the situation may also arise where governments deprive of
their citizenship certain classes of their nationals in order to reduce,
for example, their political or financial rights. This too may be an
abuse of the right of States to legislate on matters of nationality. Yet
there is no certainty that compulsory expatriations are unlawful in so
far as classical international law rules that a State cannot commit an
international wrong against its own nationals.

2.2.4 Denationalization

In recent times it was the deprivation of citizenship to resident

nationals that first aroused international interest. The European Powers
took it upon themselves on a number of occasions to protect minor-

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:

"[Romania] undertakes to recognize as [Rumanian] nationals

ipso facto and without the requirement of any formality Jews
inhabiting any [Rumanian] territory who do not posses anoth-
er nationality." 107

The so-ca1led Versailles regime of minority treaties were

concluded to protect the rights of minorities. Among these rights was
the right to maintain their nationality, granted on the condition of
habitual residence. 108 These treaties were concluded with Austria, Hun-
gary, Bulgaria, Poland, Czechoslovakia, Romania, Yugoslavia, Greece,
and Armenia. 109

2.2.5 Large-scale Deprivations of Nationality

A new development in the practice of denationalization occurred

with the Soviet Russian denationalization decrees. By these some
2 million people were deprived of their Russian nationality, regardless

See Fawcett, The Law of Nations (2d ed. l971) 160.
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.
Other rights were the rights to use their own language and establish their own
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.

of whether or not they possessed another nationality. A decree issued

by the All Russian Central Executive Committee and the Council of
People's Commissars on December 15, 1921, deprived of the right of
Russian citizenship all persons who remained outside Russia and who
fell under certain categories, evidencing, mainly, the intention not to
retain Russian nationality or not to support the present government. 110
Another decree of November, 1926, declared former prisoners of
war and other persons abroad to have forfeited the citizenship of the
U.S.S.R .. but allowed them to apply for naturalization on an equality
with foreigners. An ordinance of December, 1924, settled the general
principles of ..Union citizenship." According to this ordinance, the
following persons were deemed to have lost citizenship:

..(a) Persons deprived of citizenship by legislative acts of the

constituent republics before the 6th July, 1923, or who are de-
prived of citizenship on the basis of the legislation of the
Union of Soviet Socialist Republics.
(b) Persons who, having left the territories of the Union of
Soviet Socialist Republics, either with or without the permis-
sion of the organs of the Union of Soviet Socialist Republics
or of the constituent republics, have not returned or shall fail
to return at the demand of the proper authorities.
(c) Persons who renounced citizenship of the Union of Soviet
Socialist Republics in the manner prescribed by law.
(d) Persons deprived of citizenship by decision of a court of
(e) Persons who have opted for foreign citizenship on the
basis of agreement with foreign States."

Unlike the decree of December, 1921, this list is not limited in

terms to persons outside Russia. The Soviet Government was not a

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.

new State creating a new nationality, but, in international law, a new

government in power in an old State. Yet, as Fischer Wil1iams observ-
ed, "apparently the Soviet Government claims an absolute authority
1 11
to deprive its nationals of their nationality ." Further, this deprivation
of nationality would seem to come under the heading of involuntary
loss of nationality. Those, for example, who left Russia after Novem-
ber 7, 1917, may not have intended by their departure to have renoun-
ced Russian nationality. The Soviet laws thus went further than those
laws in force in certain countries making expatriation dependent upon
the authorization of the State authorities, although Soviet law included
that rule as well. Nor can it be compared with the law in force in
Germany prior to 1913 that ten year's residence abroad presumed a
voluntary renunciation of the tie with the country of origin.
These laws caused some problems for those States which received
the former Russian nationals now rendered stateless. Indeed, there
were problems for the international community as a whole, as the
creation of the so-called Nansen passports demonstrated.
The denationalization decrees of the Nazi regime in Germany were
another example of a mass denationalization. By a decree of the
National Socialist Party of the Reich of November 14, 1935, Jews
were deprived of their citizenship, that is to say they were no longer
to possess full political rights, while retaining their nationality. 111 This
followed on the German Reich Citizenship Law of September 15,
1935, one of the so-called Nuremberg Laws, 113 by which German citi-
zenship was limited to "persons of German or cognate blood." By a
decree of November 25, 1941, Jews resident abroad lost their German
nationality. This applied also to those at a later date ordinarily resident
abroad. The property of these people whose nationality was withdrawn
was confiscated, so these decrees "permitted" the taking of the prop-
erty of those unfortunates who had been or were to be deported to
Eastern concentration camps and were therefore "abroad." 114
A little less than three years later, the Nazi regime fell before the
invading Allied Forces. Law Number I issued by the Military Govern-

Ibid. at 46. And this by ex post facto legislation.
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.
. hsgesetzblatt I, 1. 1146. Weis, op. cit. 6.
Mann. op. cit. (1973) 194.
- - - - - - - -- - -


ment of Germany (Supreme Commander's Area of Control) on Sep-

tember J8, 1944, repealed the Nazi racial and confiscatory legislation
with the declared purpose that the principles and doctrines of National
Socialism shall be eliminated from German Jaw and administration. It
ruled that certain fundamental Nazi Jaws enacted since January 30,
J933, "together with all supplementary or subsidiary carrying out
laws, decrees or regulations whatsoever are hereby deprived of effect
within the occupied territory . " ~ 11

Courts of law of third States have on numerous occasions had to

consider the validity of the denationalization decree of 1941 and the
proclamation of September 18, 1944. The problem before the courts
was that if the first decree imposed a compulsory expatriation, did the
second impose a compulsory naturalization, and if so, did it have
retroactive effect? Here the principle of the effective link was invoked
by the courts, together with the rule of interpretation that legislation
cannot act retroactively, to establish a rule that repeal of denational-
ization laws does not operate to reimpose a nationality on persons who
have severed all ties with it. This stiiJ permits those who wish to, to
be reintegrated into the society from which they were earlier excluded.
These are not the only denationalization decrees. Weis refers to
the laws of Czechoslovakia and Poland enacted between 1945 and
1946 which effected the denationalization of persons from the German
or Hungarian minorities.
Also of doubtful legality have been the forcible denationalizations
in connection with annexations of territory in time of war, or which,
in any case, have not been recognized de jure by the international
community. This situation differs from that of recognized transfers of
sovereignty where the inhabitants of the transferred territory may
possess, in international law, a right to opt for either the nationality of
the predecessor or successor State. That is discussed below in connec-
tion with transfers of nationality on State succession.''"' An example
of such forcible denationalization occurred as a result of the German
"Anschluss" in Austria, whereby Austrian nationality ceased to exist
on March 13, 1938, when Austria became a part of the German Reich.
On the defeat of Nazi Germany the Austrian State regained its sover-
eignty, in spite of the presence on its territory of the Control Com-
mission, and so claimed the right to legislate on matters of nationality.
The Law on the Transfer of Nationality of July 10, 1945, (Staatsburg-

Lauterpacht. op. cit (1948) 385.
Chapter 5.

erschaftsuberleitungsgesetz) declared all persons who had been

Austrian nationals at the date of the "Anschluss" to be again Austrian
nationals. Also Austrian nationals were those persons who would have
acquired Austrian nationality between March 13, 1938, and April 27,
I 945, by legal succession to an Austrian national, by descent, legiti-
mation or marriage. The validity of this law has been the subject of
litigation before the courts of third States.
One recent example may be given where a State has protested
against the expulsion and denationalization of its nationals by another
State. In March 1982 the Swedish Foreign Minister, Mr. Ola Ullsten,
called the Polish Ambassador in Stockholm to the Foreign Ministry
and issued a strong protest against the Polish expulsion of forty-five
Poles, thirty-three in the last month, to Sweden. Half of them were
deprived of Polish nationality, the others were put on the ferry to
Ystad, Sweden, with documents that precluded their return to Poland.
Many were gypsies. The Swedish Foreign Office referred to manifest
racial discrimination, and the Foreign Minister stated that this practice
conflicts with all the rules of international relations. 117
Another recent example of large-scale deprivation of nationality,
although not necessarily coupled with immediate expulsion, was that
of the South African Independent Homelands. Transkei became
independent in 1976, Bophuthatswana in 1977, Venda in 1979, and
Ciskei in 1981, but their independent status was recognized only by
the Republic of South Africa. 118 Furthennore, the General Assembly,
the Security Council, and the President of the Security Council of the
United Nations have all at different times called on all governments
not to recognize these "so-called Bantustan homelands. " 119 One highly
controversial question in this disagreement over the independence of
the four so-called homelands concerned the question of whether Joss
of South African citizenship and acquisition of the citizenship of a
new State recognized nowhere outside of South Africa was legally
valid. Criticism was particularly directed against the fact that there
was no right of option or election for those citizens of the four pre-

Hufvudstadsbladet, March I9 and 27, 1982.
See Devine, "Recognition. Newly Independent States and General Inter-
national Law." in 10 S.A .Y.I.L . (1984) 18, 23- 24.
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.

independent States. who, regardless of whether they were physically

present in the Republic concerned or not, or indeed had any effective
connection with them, became aliens in the Republic of South
Africa on the attainment of purported sovereign statehood. It is
noteworthy, then. that the South African Government's Proposals on
a Charter of Fundamental Rights of February 2, 1993, contained, inter
alia, the right "not to be deprived of his or her citizenship."121


Municipal courts have had occasion to pass judgment on the

validity of laws purporting to impose or withdraw nationality in a
controversial manner. In this they have applied international law. A
certain pattern of case-law may be noted to the effect that nationality
imposed as compulsory, without consent or without a factual tie or by
a body not recognized de jure is not binding on the courts of third
When national courts of law have to decide disputes involving the
recognition of foreign nationality laws, such legislation is presented
as evidence of a fact. It is not within the competence of national
courts to interpret foreign legislation, still less may a court of law
decide on the application of the legislative, judicial or administrative
acts of another State on the territory of such State. Yet foreign legis-
lation, in this nationality legislation, may be excluded on certain
grounds without affecting its validity in the territory of the enacting
State. This is in accordance with the principle that a municipal decree,
whether executive, legislative or judicial, contravening the law of
nations, has no extraterritorial force. The grounds for refusing recog-
nition may be that the legislation offends against the public policy of
the State; that the legislation had an extraterritorial effect rendering it
invalid; or that it is contrary to the recognized principles of public
intentional law.

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.

3.1 Imposition of Nationality

Courts have refused recognition on these grounds to nationality
laws imposing nationality.u 1 In In re Rau, as we have seen, the
German-Mexican Claims Commission held that "intentional law does
not permit compulsory change of nationality." The cases of Occel/i
before the Italian-Mexican Claims Commission, Decision No. 67, and
B arcena, before the Spanish-Mexican Claims Commission, Decision
No. II, though unreported, were decided to the same effect.
In the Belgian case of Wilkening v. Belgian State, the Court of
First Instance of Brussels held that the onus of proof lay on the
petitioner to prove the imposition of nationality. Wilkening had not
been able to do so. He was a Belgian national by birth on Belgian soil
and by virtue of the fact that he was an i11egitimate child of a Belgian
mother. At the age of three he was legitimated by the marriage of his
parents, and acquired the German nationality of his father. On the
death of his father his mother reacquired Belgian nationality and the
petitioner, as a minor, did likewise. In 1939, he acquired German
nationality. Considering that both Germany and Belgian recognize the
voluntary nature of naturalization the Court could not find that the
petitioner had proved the imposition of the German nationality.
Where the grant of nationality has been involuntary or there has
been no factual tie between the State and its new national it has not
been recognized in third States. In the Gennan Nationality (Annex-
ation of Czechoslovakia) Case,114 the Federal Constitutional Court of
the German Federal Republic heard an appeal in extradition proceed-
ings. The appe11ant claimed immunity from extradition, as by Article
16(2) of the Constitution of the Federal Republic German law does
not permit the extradition of its nationals. The appellant was an
Austrian national by birth and became a Czech national in 1920, when

6 A.D. (1931-32) No. 124. See, supra, text at note 44.
. . o f J anuary 31, 1948. 15 A .D. (1948) Case No. 66.
. . o f May 28, 1952, 19/.L .R. (1952) Case No. 56. Cf. the Collective
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 town in which he was living in the province of Bohemia/Moravia

became part of the newly-established Republic of Czechoslovakia. On
March J6, 1939, the German Reich annexed the Czech province of
Bohemia/Moravia and by an ordinance of April 20, 1939, the German
Government conferred German nationality on all so-ca11ed "ethnic
Germans," including the appellant. After the end of the Second World
War Bohemia/Moravia again became part of the Republic of Czecho-
slovakia and shortly thereafter the appellant moved to Gennany where
he established his domicile. Applying German law the Court held that
the appellant acquired German nationality in 1939 and had retained it
ever since. The Court stated, inter alia, that the discretion of States to
provide how their nationality shall be acquired and lost "is circum-
scribed by the general rules of international law according to which
a State may confer its nationality only upon persons who have some
close factual connection with it." In the absence of such a connection
the appellanfs Czech nationality was invalid.
In the A ustro-Gemzan Extradition Case, 125 the Federal Supreme
Court had to decide the preliminary question of nationality in extradi-
tion proceedings, the appellant claiming German nationality. He was
an Austrian by birth, but had his permanent residence in Germany
from before 1938 until late 1948, when he took up residence in Aus-
tria. An Austrian Law of July 10, 1945, provided that Austrian citi-
zens who had acquired German nationality by virtue of incorporation
into the German Reich reacquired Austrian nationality upon the re-
establishment of an independent Austrian State on April 27, 1945. In
1953 and 1954, the appellant committed certain offences in Austria for
which his extradition was now sought by the Austrian Government.
Shortly after this he returned to take up permanent residence in the
Federal Republic. The Court held that by his return to Austria in
1948, coupled with the absence of any indication that he wished to
retain his German nationality, he had lost his German nationality. The
Court referred to "the enlightened view which the law takes of the
human personality," and to the fact that:

"In international law the idea has recently gained recognition

that the expressed intent of the person concerned must not be
altogether ignored in determining the question of acquisition
and loss of nationality. Thus it is not disputed that an alien of

The German Federal Republic, Decision of January 18, 1956, 23 /.L.R .
(1956) 364~.

full capacity must not be naturalized, nor a denaturalized per~

son renaturalized, without his consent."

The Court went on to refer to the right of option in cases of

cession of territory and then cited decisions of the Federal Consti~
tutional Court by which Czechoslovak nationals who had acquired
Gennan nationality by compulsory naturalization reacquired German
nationality if, from 1945 onwards, they consistently expressed their
intention of being German nationals. Further, it was pointed out that
the draft law for the Clarification of Questions of Austro~German
Nationality which the Government submitted to Parliament on
February 3, 1955, also takes into account the intention of the person
In the Compulsory Acquisition of Nationality case, the Court of
Appeal of Cologne stated it to be one of the generally recognized
rules of international Jaw in the matter of nationality "that, apart from
cases of cession of territory, persons of full age can not be naturalized
without their consent." This was a petition for divorce. A German
court may be competent to exercise jurisdiction in divorce suits if one
of the parties is stateless and resident in Germany. The petitioner, a
woman, was a German national by birth who acquired Czech nation~
ality when in June 1945 she married the respondent, a Czech national.
A Czech Decree of August 2, 1945, provided for the loss of Czecho-
slovak nationality by all persons of so~called "Gennan ethnic origin"
by which the petitioner became stateless. A Czechoslovak Law of
April 24, 1953, provided that such persons reacquired Czech national~
ity with effect from May 7, 1953, the date of entry into force of the
Law of Apri I 24, 1953. The Court held that the Czech Law of April
24, 1953, was contrary to international law and in particular to Article
1 of the Convention on the Conflict of Nationality Laws, 1930, so the
petitioner's contention was upheld. From the point of view of German
law she was stateless.
Similarly, in the Retroactive Loss of Austrian Nationality case,
the Court applied the rule that in the modern law of nationality deci-
sive importance must be given to the wishes of the person concerned,
even if this results in his being stateless. And it was pointed out that
Article 16 of the Basic Law is evidence that Gennan constitutional

Federal Republic of Germany, Decision of May 16, 1960. 32 l.L.R. 166.
Federal Republic of Germany, Federal Administrative Court, June 1. 1965·
43 I.L.R. 194.

law also subscribes to the principle of avoiding statelessness wherever

possible. In this case the facts were as follows: the plaintiff, who was
a German national by origin, lost his nationality in 1950 by virtue of
his acquiring Austrian citizenship. The acquisition of his Austrian
nationality was later nullified when the Austrian authorities discovered
that in the naturalization proceedings he had concealed his prior con-
viction in 1941. It was held that the loss of his acquired citizenship
did not mean that he reacquired German nationality by operation of
law. This would amount to the involuntary imposition of German
nationality. A foreign State should not be given the opportunity to im-
pose German nationality upon former German nationals who had sev-
ered all ties with German polity "if they had become noxious to it for
some reason and to deport them to Germany."
Shortly after this the Court of Appeal of West Berlin decided the
North-Transylvania Nationality case,u8 where a person resident and
living in Switzerland was held not to have Rumanian nationality
which he had once had and lost and which had been compulsorily
conferred on him subsequently. The Court stated that a State's dis-
cretionary right to determine how its nationality is acquired or lost
must be exercised without violating the recognized rules of inter-
national law:

"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."

The applicant in this case acquired Rumanian nationality under

Article 70 of the Treaty of St. Germain, 1919, and Artic1e 61 of the
Treaty of Trianon, 1920, as he was then living in North Transylvania.
On August 30, 1940, he acquired Hungarian nationality when North

us Federal Republic of Germany, Court of Appeal of Berlin, December 21 ,

1965. 43 I.L .R. 191. Cf. the Iranian Naturalization case, 1968, 60 I.L.R . 204. Here an
Iranian national by birth was granted the nationality of the Federal Republic of
Gennany, with which he had the closest connections, in spite of his not having
obtained the consent of the Iranian authorities to divest himself of his Iranian
nationality. Article 15 of the Universal Declaration of Human Rights 1948 (infra.
Chapter 4) was expressly invoked.

Transylvania under the "Vienna Award" was reincorporated in the

territories of the Holy Hungarian Crown. A Hungarian Decree of 1945
declared the "Vienna Award" void and he thereby lost Hungarian
nationality. A Rumanian Statute of April 2, 1945, imposed Rumanian
nationality on the inhabitants of North Transylvania who had been
Rumanian nationals on August 30, 1940. In 1945, the applicant was
resident in Switzerland, not Romania; he had never given his consent
to the imposition of Rumanian nationality; nor had he subsequently
visited Romania so there was no implied consent. The Court inter-
preted the fact of his non-residence in Romania as showing his
intention not to become a Rumanian national. As the "Vienna Award"
was declared null and void it might have been held that he had never
lost Rumanian citizenship, but the Court did not decide the question
on that basis. The Federal Supreme Court had earlier referred to the
right of option in cases of cession of territory.' 29
Where the nationality is imposed by a body that is not recognized
de jure and therefore lacks the necessary jurisdiction it may be without
effect outside the territory of the purported authority. In S.A .R.L.
Koh-1-Noor-L. etC. Hardtmuth v. S.A. Agabal et Societe de Droit
Tchecoslovaque Entreprise N ationale K oh-1-N oor, 130 the French suc-
cessors to the Czech firm of Koh-1-Noor, being a French limited com-
pany formed under French law in Paris on April 3, 1950, brought an
action against the Czech enterprise, being the Koh-1-Noor firm which
the Czech government had nationalized, and their Belgian agents. The
Court held that as Belgium had never recognized the German annexa-
tion of Bohemia/Moravia the imposition of German nationality upon
the owners of the Hardmuth firm was equally ineffective in Belgian
eyes and could not be said to make them enemy aliens. An illegal
annexation does not change national status.
In the Australian case of Wong Man On v. The Commonwealth
of A ustralia, 131 the position was clearly stated. Military conquest and
occupation of particular enemy territory in the course of a war never
affects national status because it does not involve a change of sov-
ereignty, while permanent acquisition by cession or otherwise may

S ee, supra, note 125.
Belgium, Court of Appeal of Brussels, March 17, 1959, 47 /.L.R. 31.
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.

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

3.2. 1 The Application of Denationalization Decrees

An act of denationalization when executed by a government

recognized de jure has generally be recognized. In Rajberg v. Lewi, 133
the Soviet Russian denationalization decrees were recognized because
Poland recognized the Soviet Republic de jure. Prior to the French
recognition of the Soviet Government in 1924, French courts consid-
ered denationalized Russians as still possessing Russian nationality,
but not after 1924. 134 Yet a decree of denationalization may only be
recognized in so far as it created a stateless person; it cannot act to re-
impose a former nationality. In U.S . Ex Rei. Steinwonh v. Atkins, 135
a United States court heard an appeal from a dismissal of a writ of ha-
beas corpus issued on the application of Richard Steinworth who had
been brought to the United States and detained as an enemy alien. The
appellant was born in Costa Rica of German parents and lived in
Germany from 1901 until 1920, when he returned to Costa Rica. In
1941, he opted for Costa Rican citizenship. In 1944, he was declared
to have lost his Costa Rican citizenship by Presidential decree. In its
judgment the Court stated:

"Since it has been clearly shown that the denationalization

was a governmental act performed within the territory of
Costa Rica we cannot sit in judgment on its validity, but we
must accept it as a lawful cancellation of the appellant's Costa

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.
4 A .D. (1927-28) Case No. 209.
See Lauterpacht, "The Nationality of Denationalized Persons," in Collected
Papers Vol. III (1977) 399.
United States Circuit Court of Appeals, Second Circuit, January 15, 1947, 14
A .D. (1947) Case No. 41.

Rican citizenship because done by a foreign sovereign within

its own country."

As the deprivation of Costa Rican citizenship. did. not restore him to

German citizenship, it was held that he was bemg tllegally restrained.
Some doubt was thrown on the legality of a denationalization de-
cree in the Swiss case of Lempert. v. B onfol. The applicant in this
case sought recognition as a citizen of the commune of Bonfol, Can-
ton of Berne, Switzerland. His father, Constantin Lempert, was hom
a Russian national. In 1919, he fled with his parents from Odessa to
Switzerland, where he remained until 1929. He lost his Russian
citizenship by the Soviet Decree of October, 1921, in particular Article
1, which deprived of Russian citizenship those persons who left
Russia after November 7, 1917, without the authorization of the So-
viet authorities. In 1929, he married a citizen of the commune of Bon-
fol, in the Canton of Berne, and together with his wife he moved to
Belgium where their daughter, the applicant, was born. In 1933, they
moved back to Switzerland. The question to be decided by the court
was whether the applicant's father was or was not made stateless by
the Soviet Decree of 1921. Under Swiss law a child of a Swiss mother
and stateless father acquires Swiss citizenship at birth unless born in
a country recognizing citizenship jure soli, which Belgium does not.
The argument put forward by the defendant Canton was of interest
from our point of view. They argued that the Soviet decree was
irrelevant because it was a universally recognized principle of inter-
national law that a State could not simply deprive of their nationality
citizens who are out of sympathy with the regime, and so force them
on other States. In its judgment the court did not accept this argument,
considering it unnecessary to express an opinion as to whether inter-
national law contains any such precise and relevant principles. They
decided that notwithstanding the fact that Switzerland had not recog-
nized the Soviet government de jure the 1921 Decree must be recog-
nized by a Swiss court, thus rendering the applicant's father stateless,
and the applicant, therefore, of Swiss nationality. The Court's argu-
ment was based on the principle of effectiveness. Not to recognize the
foreign deprivation of nationality "is practically meaningless if the

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.

foreign state has no legal means of compelling the former home state
to revoke the deprivation of citizenship and receive back the person
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
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.

Switzerland, June 14, 1946, 13 A .D. (1946) Case No. 58.
Makarov treats fraus legi.~ and reasons of public policy as two grounds for
excluding foreign nationality legislation.

French courts have reached similar decisions. The case of Ku rz-

m ann v. o 'Rea came before the French Court of Cassation in 1946,139
and similar decisions were handed down by the Court of Appeal in
Paris and the Court of Appeal in Colmar. In the K urzmann case it
was held that the abrogation of the Nazi legislation by the Allied Mili-
tary Government did not merely give the German nationals who had
become stateless the option of recovering German nationality. It im-
posed that nationality on them.

3.2.2 The Repeal of Denationalization Decrees

The courts of both Switzerland and France later changed their

attitude, regarding the repeal of Nazi legislation as not reimposing
nationality. The reasoning in the Lev ita case was refuted in Rosenthal
v. Eidgenosschiches Justiz und Polizeidepartement. The facts of the
two cases were in all material points identical, but in the Rosenthal
case it was held that the wife retained her Swiss nationality because
Law No. 1 of the Allied Military Government had no retroactive ef-
fect and applied exclusively in occupied territory. Similarly, in the
French case of Terhoch v. Daudin etA ssistance Publique, 142 the plain-
tiff's argument that he was no longer a German national was upheld
on the grounds that the Allied legislation had no retroactive effect.
Terhoch brought his action for the restitution of premises occupied by
him before the war but now occupied by Daudin. If his status was that
of an enemy alien he would not be in a position to benefit from an
Ordinance of November 14, 1944, which provided for the restitution
to former tenants of premises vacated by them under constraint during
the war. This was one of many similar actions.
In its judgment in the Terhoch case, the Court put forward a
number of arguments for not recognizing Terhoch as a German nation-
al. That the choice of the individual must be taken into account was
stated in this way:

(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.
Ibid. at 137.
13 A .D. (1946) Case No. 58.
Court of Appeal of Paris, Feb. 8, 1947, 14 A .D. (1947) Case No. 54.

"Although international law grants States a semi-discretionary

power of regulating questions of nationality, that power is
nevertheless limited in civilized States by the right of the hu-
man personality ... and free choice."

As the Allied Control Council could not have intended to violate

international law the Allied legislation must be construed so as not to
apply to former German nationals who did not wish to return to
In addition, it was stated that it would be an inadmissible conse-
quence of legislation if Terhoch, who had fought in the French army,
should be treated as an enemy subject, like those who fought against
France. Of decisive importance, however, was Terhoch's invocation
of the Geneva Convention on the Status of Refugees from Germany,
of February 19, 1938, which was promulgated in France by a Decree
of April 14, 1945. This provided that the refugees shall enjoy the legal
standing given to foreigners by the common law. Article 26 of the
French Constitution of October 27, 1946, provided for the superiority
of treaties over municipal law.
The Terhoch case was followed in Gunguene v. Falk! 43 where
Falk, a German Jewish refugee, was also held to benefit from the
1938 Convention by which she had the status of a stateless person and
so could recover her apartment, not being an enemy alien.
These decisions established what has been called the "universal
and correct view" that the repeal of Nazi laws had no retroactive
effect and could not diminish the right of "free choice enjoyed by
every person of age to reacquire or to decline the reacquisition of the
nationality of which he has been deprived. " 144 Here the principle of
nonretroactivity in the interpretation of statutes is not overridden by
any express intent on the part of the legislator, that is, the Allied Mili-
tary Command.
The two principles that emerge from this have been framed as fol-
lows: Firstly,

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.
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.

"[a]n imposttton of nationality within the meaning of the

prohibition occurs when a State reimposes its nationality upon
former nationals in a manner which purports to be
retrospective." 145


"[t]here is, in law, no difference between the attempt by a

State to impose its nationality upon persons resident abroad
who were once its nationals and the endeavor compulsorily to
confer its nationality upon persons resident abroad who have
never possessed its nationality. An international court would
hold either of these attempts to be illegal." 146

In In re Hamoye, 141 an Argentinian court held that the nullification

of German racial laws does not restore German nationality to stateless
persons who emigrated in consequence of these laws. The court did
not consider that the A11ied legislation imposed Gennan nationality on
An Israeli court faced with the same problem has come to a
slightly different conclusion. The case of CaspenlS v. Casperns 148 con-
cerned a dispute over a will made by a Jewish immigrant from Germ-
any to Palestine. The question before the court was what was the
nationality of the testator at her death? If it was German, German law
would determine the disposal of her property. The court held that she
died stateless because while an Israeli court condemned the Nazi racial
laws it could not allow recognition of them to permit the recognition
of a legal nexus between the Nazi German government and one of its
victims. This is in effect to arrive at the same conclusion as the West
German courts. The legality of the denationalization decree is in
doubt, permitting its exclusion by the courts while recognizing that
some legal consequences flowed from it.

See Mann, op. cit. (1973) 203.
See Lauterpacht, op. cit. (1977) 391.
Argentina, Camara Civil Segunda. Decision of Feb. 20, 1948, 15 A .D. (1948)
Case No. 76.
Israel, Supreme Court sitting as a Court of Civil Appeals, October 28, 1954,
21 I.L.R. (1954) 181.

3.3 The Federal Republic of Germany

Article 116(2) of the 1949 Constitution of the German Federal

Republic, laid down that those deprived of citizenship

"shall be granted German citizenship on application. They

shall be considered as not having been deprived of their Ger-
man citizenship if they have established their domicile
[Wohnsitz] in Germany after 8 May 1945 and have not ex-
pressed a contrary intention."

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

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.

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.

3.4 Oppenheimer v. Cattermole

This solution was arrived at by the West German courts
interpreting the legislation of the successor government to the Nazi
government. In the English case of Oppenheimer v. Cattermole;so the
House of Lords had to consider the validity of the 1941 decree before
English courts of law. The question before the courts was whether Mr.
Oppenheimer was a national of the United Kingdom only or a national
of both the United Kingdom and Germany. The Double Taxation
Conventions concluded between the United Kingdom and the Federal
Republic in 1954 and 1964, incorporated into English law by statutory
instrument,ts 1 laid down that the meaning of "national" in the Conven-
tion was to be decided by English law (Article II(3)). In 1948, Oppen-
heimer had become a naturalized British subject, so there was no
doubt that he was a national of the United Kingdom, but it was un-
clear whether he was also a German national. If he was a national of
both countries, then he was exempt from English income tax on the
two pensions paid to him by the West German government. The
instruments governing his German nationality were the 1913 Nation-
ality Law, the 1941 Decree, and Article 116(2) of the Federal Consti-
tution. In the Court of Appeal, it was held that during the official
period of the war, that is to say, until 1951, the 1941 decree must be
disregarded as contrary to English public policy because it deprived
an enemy alien of his nationality in time of war.'s 2 Therefore, when
the war officially ended in 1951 there was no reason for disregarding
the 1941 decree, hence Oppenheimer had lost his German nationality

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.

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:

"Legislation enacted by a foreign State, such as the 1941

decree, which takes away without compensation from a
section of the citizen body singled out on racial grounds all
their property on which the State can lay its hands and, in
addition, deprives them of their citizenship is contrary to
international law and constitutes so grave an infringement of
human rights that the English courts ought to refuse to recog-
nize it as law at a11." 153

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

"it is no more fictitious to describe a person as a "German

national according to English law" than to hold a person mar-
ried, divorced, legitimate or adopted, under English law, when
a foreign system of law might answer the question differently.
No doubt asymmetrical nationality, like limping marriage, is

All E.R., loc. cit. 556.

something to be avoided, is possible; but it must surely also

be accepted that there is nothing objectionable, if for good
reasons public policy produces such an oddity once in a
while." 154

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.

3.5 Imposition of Nationality and Denationalization


It must be admitted that there is a difference in the standards

accepted depending on whether the act in question is an imposition or
a deprivation of nationality. Whereas there is more authority for the
proposition that a State may not impose its nationality upon persons
who do not wish to acquire it, there is some doubt whether the
creation by municipal law of stateless persons constitutes in and by
itself an international wrong. Sir John Fischer Williams discussed the
principles involved in denationalization in an article published in
1927 .1s6 He began from the viewpoint that it is a proposition of inter-
national, and not municipal, law that the nationality of any given in-
dividual is, as a general rule, regulated by municipal law. He then
pointed out that, in the days of the individualist creed when the "right
of expatriation" was often proclaimed, the act of casting out a citizen

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.
"Denationalization," 1927 8 . Y .I.L. 45--61.

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:

"There wiJI be general agreement that a State cannot, whether

by banishment or by putting an end to the status of nation-
ality, compel any other State to receive one of its own nation-
als whom it wishes to expel from its own territory." 159

Weis supports this view in his book Nationality and Statelessness

to International Law, 160 arguing that if States were free to expel their
nationals or refuse them readmission "thus forcing States to retain on
their soil aliens whom they have the right to expel under international
law" they would be committing a violation of the territorial supremacy
of such States. Denationalization is here treated with the problem of
expulsion as the two are naturally concerned in fact.
Other writers have called indiscriminate denationalization coupled
with a refusal to receive back an abus de droit} 61 Yet, in the conclu-
sion of his book, Weis states that although it is an accepted rule of
international law that the naturalization of foreign nationals must be
based on a voluntary act of the individual, deprivation of nationality

157 Ibid. at 54.

us Ibid. at 55. Also "It is no longer possible simply to send undesirables abroad.
Slops may be thrown out of the windows of a settler's hut on a prairie; in a town
such a practice is inadmissible," at 57.
159 Ibid. at 61.
Op. cit. ( 1979) 46 et seq. He quotes Article 6 of the Havana Convention on
the Status of Aliens, Feb. 20, 1925: "States are required to receive their nationals
expelled from foreign soil who seek to enter their territory." Plender, op cit. (1972)
71 supports this, as do van Panhuys, op cit. (1959) 55-56, and Weis, op. cit (1979)
47. Whether this duty to receive nationals is owed to the expelling State alone, or to
the individual as one of his human rights is a more controversial question.
Hit See Lauterpacht, Function of Law in the International Community (1933)
301. See abo Cheng, General Principles of International Law (1953; reprinted 1987)
133, who considers an abuse of rights as an application of the principle of good faith.

"even mass denationalization, is not prohibited by international law"

and a State is not under a duty to admit former nationals to it
territory. 1(1 2
The law relating to denationalization may also be found in the
remedies available for a breach. If an offending State commits a delict
by wrongfully withdrawing its nationality a remedy should be avail-
able for the individual so affected. In her three-volume work, Dam-
ages in lntemational Law, Whiteman 1(13 deals with the measurement
of damages in international claims as distinguished from the general
responsibility giving rise to such claims, and uses the term damage in
the broad sense of indemnity for loss, injury, costs, etc. She gives no
examples of damages granted for the wrongful imposition or depri-
vation of nationality. However, it is in the law of international organi-
zations that some indication of the reparations due for such a delict
may be seen.
As there is doubt as to whether there exist the requirements for
the creation of an international custom concerning denationalization,
that is to say usage over a period of time and the opinion juris sive
necessitate, it is proposed to look now at the human rights instruments
and conventions which have been drafted since the end of World War
II. With the emphasis that these instruments place on the individual
as the ultimate recipient of international rights and duties they may
shed some light on his rights vis-a-vis his State to a nationality under
international law.

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

Compensation to Refugees" approved by consensus at the Sixty-Fifth Conference of

the International Law Association in Cairo, April 20-26, 1992. This was drafted by
the ILA's Committee on the Legal Status of Refugees under the Chairmanship of Dr.
Luke T. Lee, and reproduced by him, with introduction, in 87 A .1./.L. ( 1993) 157-59.
Deprivation of nationality is not dealt with, but note Principle 2, bearing in mind that
refugees may. at the least, be stateless de .facto: "Since refugees are forced directly or
indirectly out of their homes in their homelands, they are deprived of the full and
effective enjoyment of all articles in the Universal Declaration of Human Rights that
presuppose a person's ability to live in the place chosen as horne. Accordingly. the
State that turns a person into a refugee commits an internationally wrongful act, which
creates the obligation to make good the wrong done."

Befnre looking at the relevant provisions of what is now called

human rights law it is proposed. however, to look at some earlier
work of international bodies. That is to say, it is of interest to note
how rules concerning the imposition or withdrawal of nationality by
Stales werl' formulated by the Institute of International Law, the Inter-
national Law Association. the 1930 Convention and the Harvard Draft.
The 1930 Con vention on the Conflict of Nationality Laws is the only
legal document among these. It has not entered into force, but it has
been considered to represent customary law on the subject.


4.1 The Institute of International Law

The work of the Institute of International Law and of the

International Law Association reflected these developments in the law
relating to nationality. Their discussions and resolutions on many
aspects of this question are in the nature of de lege ferenda, but these
have on occasion served as a basis for later conventionallaw. 164 In the
session of the Institute held in Venice in September, 1896, the 1Oth
Commission reported on the conflict of laws in matters of nationality
(naturalization and expatriation). 165 Within this framework of reference
they considered the principles formulated at the previous session, in
J895, in Cambridge, and added to them. The first and second princi-
ples stated that no one shall be without a nationality or possess more
than one nationality. The third principle reiterated the right of expatri-
ation: "Everyone shall have the right to change nationality." But
renunciation pure and simple is not enough to cause loss of nationality
(principle 4). This would indicate a recognition of the legality of
municipal legislation imposing conditions precedent to the re-
nunciation of nationality, but the terms of such legislation are not
The sixth principle states that no one may lose this nationality or
renounce it without acquiring another one; and denationalization may

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),
See A mwaire /.D. I. Vol. I 5 at 233-71. The six principles are set out at

never be imposed as a penalty. The existence of a class. of pe~sons

possessing no nationality was seen clearly as an anomaly m the mter-
national sphere. .
The Resolution adopted by the Institute of ~~w at
Stockholm in 1928, included the rule (Article 3) that an mdividual
may not acquire a foreign nationality by naturalization unless he
requests it. 166 The purpose of these Resolutions was to ensure. that ~o
State applied regulations for the acquisition or loss of natwnahty
which would have as a consequence double nationality or the absence
of a nationality (Article I).
The 1928 Resolution sought to forbid the involuntary imposition
of nationality on an alien, even a resident alien. At the I 929 session
in New York, the Institute drafted a declaration on the rights of man.
Article 6 of this prohibited the withdrawal of citizenship with the
object of evading these general principles.
At the 1931 session of the Institute M,. Louis Le Fur presented
the Report of the 8th Commission on the competence of States. There
he considered measures taken contrary to the general principles of
law, such principles existing already. He gave us an example of just
such an abuse of rights "reserve faite sur le choix de I' expression," the
immediate naturalization of immigrants on their arrival on State
territory, or the application in infinitum of the jus sanguinis.

4.2 The International Law Association

At the International Law Association conference in Stockholm in
1924 the Report of the Committee on nationality and naturalization
was adopted. In its suggested remedies for the "evils of statelessness
and double nationality," the report proposed that "a national should
not be deprived, by administrative or judicial order, of his nationality
whether original or acquired" (Article 2). us This was after the issu-

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.
See Annuaire J.D ./. Vol. 36 (1931.1) 40.
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
-- - -- - - - - - ·


ancc of the Russian denationalization decrees. Article 4 stated that:

"No individual should be made an outlaw, or should be expelled from
the territories of a State of which he is a national." It also laid down
under the heading of "conditions as to naturalization" that the appli-
cant must be domiciled within the State of which he or she desires to
become a citizen and must have resided within that State or been in
the service of that State during a specified time.

4.3 The Hague Convention of 1930

No express right of expatriation was included in the Hague

Convention of 1930. Article 7 deals with expatriation permits "[i]n so
far as the law of a State provides for the issue of an expatriation per-
mit." It provides that the issuance of an expatriation permit shall not
effect immediate denationalization, but shall be dependent, first, on the
acquisition of another nationality. It also provides for the two States
concerned to exchange information:

"The State whose nationality is acquired by a person to whom

an expatriation permit has been issued, shall notify such
acquisition to the State which has issued the permit."

It must be remembered that the treaty dealt with "Certain Ques-

tions relating to the Conflict of nationality laws," and its purpose was
to reduce the number of the cases of statelessness or double nation-
In the Bases of Discussion Drawn up for the Conference by the
Preparatory Committee the question of the loss and acquisition of
nationality was touched on more generally. In No. 1, which served as
the basis for Article 1 of the Convention, it was stated that when the
law of a State decides any question as to the acquisition or loss by an
individual of its nationality the legislation "must nevertheless take ac-
count of the principles generally recognized by States."169 The princi-
ples as regards the acquisition of nationality are: bestowal of nation-

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).
" 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."

ality by reason of the parents' nationality or of the birth on the nation-

al territory, marriage with a national, naturalization on application by
or on behalf of the person concerned and transfer of territory. The
acquisition of nationality at birth jure soli or jure sanguinis or by mar-
riage may thus be involuntary, but naturalization must be effected on
The principles as regards loss of nationality are: voluntary
acquisition of a foreign nationality, marriage with a foreigner, de facto
attachment to another country accompanied by failure to comply with
provisions governing the retention of the nationality, the transfer of
The Conference expressly rejected the possibility of formulating
limitations on a State's right to regulate the loss and acquisition of its
nationality "fully and precisely" because even "a general formula
accompanied by various examples ... would not constitute an exhaus-
tive enumeration."

4.4 The Harvard Draft Code

The Harvard Draft, discussed earlier, contained no articles on

denationalization as such, nor did it include a proposal granting
individuals a right of expatriation. It did, however, propose recog-
nizing the right of States to naturalize foreigners (Article 13) with the
two provisos that a State "may not naturalize an alien who has his
habitual residence within the territory of another State" (Article 14)
nor "a person of full age who is a national of another State without
the consent of such person" (Article 15). Article 20, however,
proposed that a State must receive back into its territory its own
nationals who have been expelled or excluded from the territory of
another State or, an important addition, if such person had lost his
nationality without acquiring the nationality of another State. This
would indicate an intention in the Harvard Draft, as in the resolutions
of the Institute of International Law and the International Law Asso-
ciation, to prohibit States expelling and denationalizing their nationals.


It may now be noted that the international law of nationality does

not only require that there be a connecting link between an individual
and the State of his nationality.

Under international law nationality may not be imposed on a

person without his consent and laws purporting to do this are not
binding on third States. This consent must be given at the time of
naturalization, or there must be an act constituting express or implied
consent at some time after the imposition in order to render it valid
under international law. An example of implied consent to a forcible
naturalization is shown where there is a strong factual tie between the
State and the national. There must be ordinary residence in the
territory and the social bond of attachment to the "body politic" of the
State of the new nationality.
It is not certain that laws depriving citizens of their nationality are
equally invalid under international law. Municipal courts have gener-
ally recognized foreign denationalization decrees passed by the author-
ities of a State recognized de jure. The denationalization may, how-
ever, be disregarded as contrary to public policy because openly dis-
criminatory and unjust. Courts have declared such laws invalid but not
without legal consequences. The rule against the imposition of nation-
ality acts to prevent the automatic restitution of nationality previously
There is some support in the arguments of learned writers for the
view that de Lege ferenda, a withdrawal of nationality is invalid unless
accompanied by the acquisition of a new nationality.
It is now proposed to discuss what effects human rights law has
had on these matters, in particular regarding the discretion of States
to withdraw nationality.
- ------ ~~



To inquire whether the development of the so-called human rights
law has affected international law concerning nationality may appear
to be an unnecessary exercise. For the purpose lying behind the
human rights documents drafted after the end of the Second World
War has been in a sense to circumvent the fact of an individual's
nationality. The individual is to have direct rights and duties in
international law. To quote Judge Jessup:

" . .. [l]ntemational law, like national law, must be directly

applicable to the individual; it must not continue to be
insulated through the tradition that it dealt only with the rights
and duties of States." 1

Similar arguments have been put forward by many jurists on the

grounds that only the individual can be the ultimate recipient of
international rights and duties.1 This was demonstrated in the Four-
Power Agreement of August 6, 1945, setting up the International
Military Tribunal for

"[c]rimes against international law are committed by men, not

by abstract entities, and only by punishing individuals who

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.


commit sud1 crimes can the provisions of international law be

:t ,.,·
en f.on.:c(.

As individuals can be punished for crimes against international law the

ncct•ssary corollary is that they should be able to receive rights in
international law.
The human rights documents, following this reasoning, were
int.e nded to create the framework for a new machinery to protect
human rights. The Minorities Regime of the League of Nations era
was inadequate in that it referred to certain States that had come into
being after the end of the First World War and was thus not universal
in character. The traditional rules of customary international law
regarding the protection of nationals abroad had, in principle, ensured
a minimum standard for the treatment of aliens, but only for aliens,
and the use of force by States protecting their nationals had led to a
number of abuses. First, the practice of extraterritorial jurisdiction had
evolved and then been discontinued after 1918. Second, the resort to
armed intervention to protect nationals abroad was in conflict with the
rule of non-intervention. This second point was raised at the Inter-
American Conference on Problems of War and Peace, held at
Chapultepec, Mexico. in March 1945. There the conference requested
the Inter-American Juridical Committee to prepare a Declaration of the
International Rights and Duties of Man. Their seriousness of purpose
was expressed in the proposal that this Declaration would later be
adopted "as a convention." The Latin-American concern with the
principle of non-intervention was expressed in the considerandum, as

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

~ Lauterpacht, lntemarional Law and Human Rights (1950) at 6.


of man."4

1.1 Refugees

The international conventions on refugees offer an example of the

international status of certain persons. By giving refugees certain
rights of asylum in the territory of the State of refuge the "refugee is
the subject of international law par excellence," while being at the
same time stateless defacto. 5 The United Nations Convention Relating
to the Status of Refugees signed on July 28, 195 J, assimilates refugees
to some extent as nationals of the State of residence while also
providing that in other senses their status should not be worse than
that of aliens!'i Article 1 of the first Protocol annexed to the Universal
Copyright Convention concerning the Application of that Convention
to the Works of Stateless Persons and Refugees provides that: 7

"Stateless persons and refugees who have their habitual

residence in a State party to this Protocol shall, for the
purposes of the Convention, be assimilated to the national of
that State."

1.2 World Order

However, nationality as the juridical link between the individual

and the State, and hence international law, remains firmly entrenched
in the United Nations system, as we shall discuss in the last chapter.

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.
See Krenz, "The Refugee as a Subject of International Law," 15 l.C.L.Q.
(1966) 90 et seq.
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.
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.

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 we seek is the reign of law based upon the consent of

the governed and sustained by the organized opinion of

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:

"The world order which we seek is the cooperation of free

countries working together in a friendly civilized society."9

The four freedoms were expressly endorsed by the Allied States,

acting for the first time as the United Nations, in their joint
Declaration of January I, 1942. Twenty-six nations subscribed to this.
The United States Secretary of State Marshall restated this goal at the
opening of the Third Session of the United Nations:

"Governments which systematically disregard the rights of

their own people are not likely to respect the rights of other
nations and other people and are likely to seek their objectives
by coercion and force in the international field." 10

Temperley, History• of the Peace Conference of Paris Vol. I (1920) 396.
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.
U.S. Dept. of State Bulletin, Vol. 19 (Oct. 3, 1948) 432. Quoted in Green, op.
cit. ( 1956) at 29.
- - - - - - --·-



Whereas not a single mention of the individual and his rights is

made in the Covenant of the League, 11 there are a number of such
references in the Charter of the United Nations. It appears in the
Preamble to the Charter as follows:



To reaffirm faith in fundamental human rights, in the dignity

and worth of the human person, in the equal rights of men
and women and of nations large and small."

The "Purposes of the United Nations," as set out in Article I of the

Charter, include "promoting and encouraging respect for human rights
and fundamental freedoms for all." In Chapter IV, Article 13, the
General Assembly is to "initiate studies and make recommendations
for .. . assisting in the realization of human rights and fundamental
freedoms for all." In Chapter IX, on International Economic and
Social Cooperation, the United Nations "shall promote . . . universal
respect for, and observance of, human rights and fundamental
freedoms for all" (Article 55(c)) with a view to the creation of
conditions of stability and well-being. In Article 56 the Members
pledge themselves to take joint and separate action in cooperation with
the Organization for the achievement of the purposes set forth in
Article 55. Article 76(c) lays down that one of the basic objectives of
the trusteeship system shall be to encourage respect for human rights
and for fundamental freedoms for all without distinction.
Special authority in the field of human rights is granted by
Chapter X to the Economic and Social Council. Article 62(2)

"It may make recommendations for the purpose of promoting

respect for, and observance of, human rights and fundamental

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.

freedoms for all"

and as a matter of procedure it

"shall set up commissions in economic and social fields and

for the promotion of human rights . ..."


RIGHTS, 1948

At its first session in February, 1946, the Economic and Social

Council established the Commission on Human Rights, initially
composed of nine members, and decided that its work should be
directed toward submitting proposals, recommendations, and reports
regarding, firstly, an international bill of rights. 13 Priority for this first
item was given at the first session of the Commission on Human
Rights held in January-February 1947, and the Chairman, the Vice-
Chairman, and the rapporteur, with the assistance of the Secretariat,
were asked to prepare a preliminary draft of the international bill of
From the work of this drafting committee of the Commission on
Human Rights the Universal Declaration of Human Rights was
gradually formulated after discussions and debates. The final text was
laid before the General Assembly of the United Nations at its third
session in Paris, and unanimously proclaimed on December 10, 1948.
Of the Members of the United Nations eight states abstained from
voting, 14 two were absent, 15 and forty-eight voted in favor. Thus,

See, in general, Robinson, Human Rights and Fundamental Freedoms in the
Charter of the United Nations (1946).
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.
Byelorussia, Czechoslovakia, Poland, Saudi Arabia, the Ukraine, the Union
of South Africa, the Soviet Union, and Yugoslavia.
Honduras and Yemen, i.e., nem. con. (nemine contradicente) in English
parliamentary procedure, or quasi-unanimity.
-- - ·-- - - - - - -


although documents proclaiming human rights are not in themselves

an innovation, this is the first "universal" declaration of the rights of
man. At the time of the adoption of the Declaration the President of
the General Assembly, Vere Evatt of Australia, expressed it in this

"It is the first occasion on which the organized community of

nations has made a declaration of human rights and
fundamental freedoms, and it has the authority of the body of
opinion of the United Nations as a whole...." 16

The Universal Declaration of Human Rights is composed of a

Preamble and thirty articles. Equality of rights and equality before the
law appear in the first paragraph of the Preamble and again in Articles
1, 7, 10, and 21. 17 The rights proclaimed cover a wide field of civil,
political, legal, social, economic and cultural, and religious rights. The
limits set to the exercise of these rights and freedoms are set forth in
the last two articles of the Convention.
The articles of the United Nations Charter referring to human
rights refer in each case to "human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion."
Discrimination on the grounds of national status is not recognized in
the same way as in the Minority Treaties concluded soon after 1918.
The attitude of the inter-war period is shown in the International
Declaration of the Rights of Man adopted by the Institute of
International Law at its New York session in 1929. Four articles Jay
down the rights of the individual with the corresponding duties of the
State. The sixth and final article states:

"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

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.
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.
A nnuaire /.D./., Vol. 35 (1929) 298-300.

3.1 The Universal Declaration and Nationality

In the Universal Declaration one article on nationality was added

at a fairly late stage of the drafting process. 19 This is Article 15, which
runs as follows:

"1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor
denied the right to change his 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

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.
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.

Articles I 3 and I 6 of the Universal Declaration complement

Article I 5. Article I 3(2) states that "Everyone has the right to leave
any country, including his own, and return to his country." By this
must be understood that nationals have a right to residence in the
territory of their national States. Article I 6( I) begins: "Men and
women of fuJI age, without any limitations due to race, nationality or
religion, have the right to marry and found a family."
This Declaration is not a binding legal document. It has been
pointed out that in the Charter of the United Nations itself the key
words used in connection with human rights are "promote,"
encourage," "assist in the realization of," and not "protecting,"
"safeguarding," and "guaranteeing." 21 The Universal Declaration of
Human Rights is, in the words of the Preamble, proclaimed "as a
common standard of achievement for aJI peoples and aJI nations." It
has force as a moraJiy, though not legaJiy, binding document, as a
yardstick by which to measure the development of the rule of law, and
its authority is enhanced by the universality of its acceptance by
Members of the United Nations.

3.2 The Constitutions of the Federal Republic of

Germany, Malaysia, Spain and Portugal

Although it has no legally binding effect on States, the contents

of the Universal Declaration have been included in a number of
Constitutions drafted after 1948,22 organs of the United Nations

The Bill drawn up by a Symposium on Human Rights prepared by UNESCO in Paris

in I 947 is, perhaps, more utopian in its draft "Right to Citizenship." Article I 3 states:
"In the event that a man is not satisfied with the institutions of the nation
of which he is a part, he has the right to abandon his existing citizenship
and to assume the citizenship of any country which is prepared to accept
him as a citizen."
UNESCO, Human Rights, Comments and Interpretations: A Symposium (1949) 271.
Green op. cit. (1956) 18.
Also in the Preamble of the Peace Treaty between the Allied Powers and
Japan signed in J95 J, Japan decJared its intention to strive to realize the objectives
of the Universal Declaration of Human Rights. See "The Impact of the Universal
Declaration" 20-25, for evidence of the authority and influence of the Universal
Declaration in recent constitutions. It is also to be seen in a number of African
constitutions subsequent to 1953. At the 58th Conference of the I.L.A., held in
Manila, 1978, it was resolved "that the universal implementation of human rights
would be advanced by the re-affirmation of the validity of the standards set out in the
Universal Declaration of Human Rights and by wider ratification of the UN

frequently refer to it, and a number of legally binding documents

contain some of its provisions. In particular, the Constitution of the
Federal Republic of Germany guarantees, in Article 16, the right of its
citizens to a nationality in the following words:

"No one may be deprived of his German citizenship. A person .

may be deprived of citizenship only on the basis of a law and,
against his will, only if he is not thereby rendered stateless."

Professor von Mangoldt, who was a member of the parliamentary

council which drafted the Basic Law, stated in his commentary that
the right to a nationality appeared for the first time in a German
constitution. He stated that it was incorporated because of the
"memory of the disastrous practice of deprivation of citizenship under
the Nazi regime and that of other totalitarian powers," and that the
German legislators were influenced by the right to a nationality
enunciated in Article 15 of the Universal Declaration of Human Rights
of the United Nations, 1948. 23
Article 61(4) of the Agreement relating to Malaysia concluded
between the United Kingdom of Great Britain and Northern Ireland on
the one hand and the Federation of Malaysia, North Borneo, Sarawak
and Singapore on the other, provides that:

" ... no person shall be deprived of citizenship ... if the

Government is satisfied that as a result of the deprivation he
would not be a citizen of any country." 24

Two new Constitutions provide guarantees against arbitrary

deprivation of nationality. Article 11 (1) of the Spanish Constitution of
1978 states that no person who is a Spanish national by origin can be
deprived of his nationality. This constitutes a break with the former
law, from 1945, which contained provisions permitting loss of
nationality on certain grounds, such as the holding of a public post in

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)
The Impact of the Universal Declaration 33. This is now the Constitution of
the united Germany.
Signed July 9, 1963. It entered into force on September 16, 1963. 750
U.N.T.S. 789.

a foreign country without permission of the Spanish authorities, or for

treason as defined in the penal code.
In the Portuguese Constitution of 1976, Article 16 contains a
declaration of attachment to the Universal Declaration of the Rights
of Man and Article 23 provides that Portuguese citizens cannot be
extradited or expelled and deprived of their nationality. 25
The principle of the individual's rights to a nationality enunciated
in Article 15 of the Universal Declaration has also been reiterated in
other human rights instruments.



The U.N. Convention on the Reduction of Statelessness was

opened for signature in New York on August 30, 196I and entered
into force on December 13, 1975 in accordance with Article 18.26 The
United Nations had early on taken action for the elimination of
statelessness as a status anomalous in international law and
inconsistent with the human rights and dignity of the individual. Of
the resolutions adopted by the Economic and Social Council to this
end, Resolution 319 B III (XI) of August II, I950, urged the
International Law Commission to prepare at the earliest possible date
the necessary draft international Convention or Conventions for the
elimination of statelessness. The International Law Commission, at its
first session in 1949, included "nationality including statelessness" in
the list of topics provisionally selected for codification. At its fourth,
fifth, and sixth sessions in 1952, 1953, and 1954, this problem was
discussed and reports drafted. The Convention Relating to the Status
of Stateless Persons was signed on September 28, 1954, and entered
into force on June 6, 1960.
The Convention on the Reduction of Statelessness differed from
the Hague Convention of 1930 on the Conflict of Nationality Laws

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.

and the Protocol relating to a Certain Case of Statelessness in that the

1961 Convention places an obligation on the contracting States to
grant their nationality in certain cases to stateless persons, and it is not
just content with trying to avoid the creating of statelessness arising
from a conflict of nationality laws. The principle of the link is applied
in Articles I and 4 which provide that a person acquire the nationality
of the territory in which he is born if he would otherwise be stateless.
This should be read in connection with the Resolution adopted by the
United Nations Conference on the Elimination or Reduction of Future
Statelessness, 1961, that

"The Conference Recommends that persons who are stateless

de facto, should as far as possible be treated as stateless de
jure to enable them to acquire an effective nationality."

In this way refugees, who are stateless de facto, should benefit in

addition to stateless persons de jure from the provisions of the
Convention. Also, a "de facto stateless person is normally regarded as
a person who does possess a nationality but does not possess the
protection of his State of nationality and who resides outside the
territory of that State, i.e., a person whose nationality is ineffective."27
Article 15 of the Universal Declaration serves as a standard in
Article 8 of the Convention on Statelessness. Article 8(1) provides

"A Contracting State shaH not deprive a person of his

nationality if such deprivation would render him stateless."

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

See Weis. op. cit. (1962) 1086.

a court or other independent body (Article 7(4)).

Article 9 of the Convention provides:

"A Contracting State may not deprive any person or group of

persons of their nationality on racial, ethnic, religious or
political grounds."

This prohibition is absolute and not subject to the condition that it

would create statelessness. In this way it would seem that "arbitrary"
deprivation of nationality is defined as meaning discriminatory
deprivation of nationality as well, perhaps, as deprivation of
nationality resulting in statelessness. Weis points out that the
prohibition of discriminatory denationalization in this Convention
binds only the Parties to it, but:

"It is, however, a rule based on the principle of non-

discrimination pervading the Charter of the United Nations in
aiJ its references to human rights and may well be on the way
to become a general principle of international law."28

It may be pointed out that this Convention places an obligation on the

Contracting States to grant their nationality to stateless persons born
of their territory.
This territorial principle in cases of statelessness has been
incorporated into recent municipal laws. In Article 5(c) of the Dutch
Nationality Law 1976 a person born in the Kingdom who has had no
or an unknown nationality since his birth and who has been domiciled
or factually resident in the Kingdom for at least three years
immediately preceding the request may request Netherlands
nationality. A minor is allowed to apply for naturalization to avoid
cases of statelessness. 29
Article 91 of the French Nationality Law, 1973, provides that only
those French nationals who possess another nationality may request to

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."
8 N. Y .I.L . ( 1977) 327. It was inserted to implement Article 32 of the
Convention of the Status of Stateless Persons, 1954.

be divested of their French nationality. 30 So, too, Article 22(1 )(2) of

the 1984 Belgium Code of Nationality. This Code introduced new
provisions to grant Belgian nationality to children born in Belgium
who will be or will become stateless before reaching the age of
eighteen, as of January I, 1985 (Article l 0( l )). This introduced a
change in the law on the basis of Article I 5, paragraph one, of the
Universal Declaration of Human Rights. At the same time it was
acknowledged that cases of statelessness may still exist. 31 Municipal
courts have applied the same principle, viz. that nationality laws must
be framed so as to avoid cases of statelessness. 32 1t may be argued that
this principle is one of general international law. The corollary of this
obligation is that States act in 'good faith not to denationalize their
nationals where such action would place an unnecessary burden on
other States.



Article 15 of the Universal Declaration is reproduced in the

International Convention on the Elimination of all Forms of Racial
Discrimination of March 7, 1966. 33 In the preamble the States parties
to this Convention declare that:

"Considering that the Charter of the United Nations is based

on the principles of the dignity and equality inherent in all

Lagarde, La Nationalite (1976) 152-53 and 274. Law no. 73-42 of
the 9th January, 1973, at 285.
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
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.
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 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."

In Article 5, States Parties undertake to eliminate and prohibit racial

discrimination in all its forms and guarantee everyone "without
distinction as to race, colour or national or ethnic origin" equality
before the law, notably in the enjoyment of certain rights. Article 5(d)
lists among nine other civil rights, in particular:

"(ii) The right to leave any country, including one's own, and
to return to one's own country,
(iii) The right to nationality."

The right to nationality is in this way linked to the right to equal

treatment for a11 persons and the prohibition of discrimination. 34 It
would seem to be correct, therefore, to read this article as containing
the inclusion of Article 9 of the Reduction of Statelessness
Convention, 1961, with its prohibition of deprivation of nationality.
Furthermore, it may be submitted that deprivation of nationality on
racial, ethnic, religious or political grounds, covers all the forms of
deprivation of nationality hitherto resorted to, other than deprivation
by operation of law. ArticJe 5(ii) allows freedom of movement and by
granting the right to return to one's country seeks to prevent de facto
expatriation of a State's own national.
The rights enunciated in the Convention on the Elimination of All
Forms of Racial Discrimination acquire added weight from the
machinery set up under the Convention for its implementation. The
States Parties undertake to adopt immediate and effective measures to

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.


combat racial discrimination (Article 7). In addition, the C onvention

provides for the establishment of a Committee on the Elimination of
Racial Discrimination. consisting of eighteen experts of high moral
standing (Article 8). This Committee undertakes to report to the
General Assembly of the United Nations on the measures taken by the
States Parties t0 implement this Convention. The Committee may take
the initiative to request information for the States Parties (Article 9).
Where one State Party considers that another State Party is not
fulfilling its obligations under the Convention it may bring the matter
to the attention of the Committee (Article 11) which may appoint an
ad hoc Conciliation Commission to offer its good offices in the
solution of the dispute (Article 12). A limited right of petition by
individuals or groups of individuals to the Committee is granted for
those within the jurisdiction of States Parties making a declaration
granting the Committee competence in such cases (Article 14). Lastly,
a jurisdictional clause (Article 22) confers compulsory jurisdiction on
the International Court of Justice in any dispute between two or more
States Parties with respect to the interpretation or application of this
Convention which is not settled in any other way, whether as
expressly provided for in the Convention or otherwise as agreed upon
by the disputants.
This Convention comes within the framework of the United
Nations, for the Secretary-General of the United Nations is the
instrumentality through which the Committee is set up (Article 8(3)
and (4))/ 5 and the servicing of the Committee and the Commission
are to be borne by the United Nations budget (Article 12(b)). In
Article 7, the States Parties also undertake to propagate the purposes
and principles of the Charter of the United Nations, the Universal
Declaration of Human Rights, and the United Nations Declaration on
the Elimination of All Forms of Racial Discrimination, 36 as well as
this Convention. For this reason, as well as the fact of the widespread
acceptance of this Convention, its provisions must be taken to carry
great weight.

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.
Proclaimed on November 20, 1963.

5.1 The United Nations Convention on the

Elimination of all Forms of Discrimination
Against Women, 1979

The United Nations Convention on the Elimination of all Forms

of Discrimination Against Women follows on the International
Convention on the Elimination of Racial Discrimination, 1966. It was
adopted by the General Assembly Resolution 341180 of December 18,
1979, and entered into force on September 3, 1981, in accordance
with its Article 27. Like the 1966 Convention, the 1979 Convention
on Discrimination Against Women has attracted widespread support,
and as of December 31, 1991, one hundred and ten States are parties
to it. Articles 17 and 18, furthermore, provide for the establishment of
a Committee on the Elimination of Discrimination against Women, to
work in conjunction with the Secretary-General of the Untied Nations
and at the United Nations Headquarters.
A difference of the emphasis may nevertheless be noted between
the two Conventions. The 1966 Convention provided in its Article 5
that States undertake to guarantee the rights of everyone, thus agreeing
with the purpose of the Convention to ensure equality before the law.
The condemnation of discrimination by States Parties in both the
Conventions is accompanied in the 1979 Convention with the purpose
of promoting equality of rights of men and women. Thus, Article 9(1)
of the 1979 Convention, dealing with nationality, runs as follows:

"States Parties shall grant women equal rights with men to

acquire, change or retain their nationality. They shall ensure
in particular that neither marriage to an alien nor change of
nationality by the husband during marriage shall automatically
change the nationality of the wife, render her stateless or force
upon her the nationality of the husband."

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

"States Parties shall grant women equal rights with men with
respect to the nationality of their children."

In this way, married, as well as unmarried, mothers may pass on their

national status to their children. This development, taken together with
that noted above in the jurisprudence of the Iran-United States Claims
Tribunal of independently of the parents determining the dominant
nationality of a dual national minor, could be of importance in the
future. Thus a child born of parents of different nationalities whose
place of birth and connections are solely those of the State of the
mother's nationality may have rights as against being the object of so-
called "legal kidnapping" to the State of the father's nationality, on
the basis of nationality attributed by the jus sanguinis principle. 37

5.2 The United Nations Convention on the

Rights of the Child, 1990

On November 20, 1989, the United Nations General Assembly

adopted the Convention on the Rights of the Child. 38 It entered into
force on September 2, 1990, and as of December 31, 1991, one
hundred and seven States are parties to it. The right of a child to
acquire a nationality is laid down in Article 7, and, in particular,
where otherwise the child would be stateless. Article 8, however,
provides for

" ... the right of the child to preserve his or her identity,
including nationality, name and family relations as recognized
by law without unlawful interference."

By this the child has an independent right to a nationality. A child is

defined in Article 1 of the Convention as "every human being below
the age of eighteen years unless, under the law applicable to the child,
majority is attained earlier."

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.
Text reproduced with introductory note in 28 J.L.M. (1989) 1448-76.

Before turning to the two Covenants containing the legally-binding

provisions of the Universal Declaration, and the regional declarations
based on it. it is of interest to consider one aspect of the drafting of
Article 15 of the Universal Declaration. This enunciates the right to
"a nationality," whereas in the Convention on the Elimination of
Racial Discrimination Article 5(iii) enunciates the right " to
nationality." This has raised the question as to whether the Universal
Declaration refers to only one nationality, thus supporting, at least by
implication, the view that "every person should have one nationality
and one nationality only," to quote the Preamble of the 1930
Convention on Certain Questions Relating to the Conflict of
Nationality Laws.



One writer at least understands Article 15 of the Universal

Declaration, following numerous nineteenth century cases before it, to
state the rule that every individual has the right to a single
nationality.39 He argued that where previously nationality was the
bond of liegance between an overlord and his subjects, it is now
"replaced by the sociological tie connecting the individual with the
body politic of the State." The individual has a duty to contribute to
the welfare of the State as the State has a duty to care for the
individual's welfare. In this way dual nationality is a "sociological
incongruity." This is to restate the view that the doctrine of the
exclusiveness of territorial sovereignty demands single nationality, and
as such must be dealt with at some length for it is submitted here that
this view is not a necessary part of the present international law of

6.1 Treaties for the Elimination of Dual Nationality

A number of bilateral treaties have been concluded to regulate the

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.

status of persons having dual nationality. 40 These all follow a standard

pattern. They were all concluded before the dissolution of the Soviet
Union in December, 1991, and they were concluded with the desire
"to eliminate any cases of dual citizenship on the basis of a free
choice of a citizenship by the persons concerned" and "to prevent
such cases from arising in the future." 42 Thus persons whom both
Contracting Parties under their laws regard as their citizens may
decide which citizenship they intend to retain. They shall then be
considered "solely" as citizens of that Contracting Party for whose
citizenship they have opted. The exercise of this right of option is
entirely voluntary and effected by the filing of a declaration. Where
this right of option is not exercised within a certain time limit, such
as one year from the date of the entry into force of the Convention,
the person concerned shall be deemed to be a citizen of the State in
which he is permanently resident, or, if resident in a third State, of
that Contracting Party in whose territory he was permanently resident
before his departure abroad. If such persons reside in the territory of
one of the Contracting Parties and opt for the nationality of the other
they shall have the status of aliens in the State where they reside.
These conventions contain no clauses conferring jurisdiction on an
international tribunal in disputes arising out of their interpretation or
application. Some contain provisions to the effect that such disputes
"shall be settled through the diplomatic channe1."43 It may be noted in
this connection that Article 8 of the Soviet Law of December 1, 1978,

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.
322 U.N .T.S. 201, Preamble.
387 U.N.T.S. 61, Preamble.
477 U.N.T.S. 321.

forbids any form of dual nationality. 44

. The~e treaties constitute without doubt attempts to eliminate plural
nat10nahty. However, as we have seen, there are treaties which
provide for the principle of dominant nationality, for example
concerning the military service of dual nationals. Further, there are
treaties which encourage dual nationality. A number of such treaties
have been concluded between Spain and States of Latin America. In
the Agreement on Dual Nationality between the Dominican Republic
and Spain, the two countries affirm, in the Preamble, that they desire
to strengthen "the links between their two countries and [make] it
easier for their nationals to become Spanish or Dominican, as the case
may be, while retaining their original nationality, thereby paying a
tribute to their historical lineage and the common fundamental ties
existing between the Dominican Republic and Spain." Similar treaties
were concluded between Spain and Paraguay on June 25, 1959,
between Spain and Peru on May 16, 1959, and between Spain and
Chile on May 24, 1958, with the subsequent Exchange of Notes of
June 23, 1958. There treaties provide that nationals of one
contracting party resident in the territory of the other may, in
conformity with the legislation of the country of residence, acquire its
nationality and submit to its laws, while retaining their nationality of
origin. Should such a person who possesses the nationality of both
contracting States reside in the territory of a third State he will remain
subject to the laws of that one of the two States Parties in the territory
of which he was last resident. This policy of facilitating the possession
of dual Spanish and Latin American nationalities is expressed in Part
I, Chapter I, Article I 0(3) of the Spanish Constitution of December
29, 1978. This provides that the government may negotiate treaties of
dual nationality with the States of Latin America or with those having

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

22, 1969. 724 U.N.T.S. 17.

See Hampe, Das Sraatsangehnrigkeitsrecht von Spanien, Portugal und lrland
(1960) 31, 37, and 41. He notes also a similar agreement on double nationality
between Portugal and Brazil of August 9. 1960, which had not at the time of writing
been ratified. Ibid. at 104.

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

6.2 State Practice as regards to Dual Nationality

The German Imperial and State Citizenship Law of July 22, 1913,

Vallee, ibid. at note 194a. Vallee refers to the originality of this provision.
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.
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.

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

"citizenship is not lost by one who before acquiring foreign

citizenship has secured on application the written consent of
he competent authorities of his home State to retain his
citizenship. Before this consent is given the German consul is
to be heard."50

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

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.
Cmnd. 6795. British Nationality Law. Discussion of possible changes. April
H.C. Debs. Vol. 989, cols. 1516-18, July 30, 1980. B.Y.J.L .. Vol. Ll at 398.
McNair, L egal Ef fects of War (2d ed.1944) 24.
Inouye Kanao v. The King. Hong Kong, Full Court, July 16, 1947, 14 A .D.
(1947) Case No. 103.

the House of Lords in Oppenheimer v. Cattennole. 55 In his speech,

Lord Hail sham pointed out that it was plain from such cases as K ra-
mer v. A ttomey-Genera/, 56 that the coexistence of British and enemy
alien nationality was quite possible, and Lord Cross observed that the
retention of a foreign nationality in no way affected the allegiance
owed by a British subject to the Crown. In a recent Canadian case, it
has been held that there is no obligation on those acquiring Canadian
citizenship to renounce former citizenship.57
French law also recognizes the status of dual nationality. In the
consolidated report by the Secretary-General of the United Nations on
the Problem of Statelessness the French Government's reply
concerning naturalization contained the following statement:

"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,

[ 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.
[ 1923) A.C. 528 (H.L.(E.)).
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.
Report of May 26, 1952. E/2230. A/CN. 4/56 at 56.
In re M.M. and X.M. Greece, Conseil d'Etat, 1934, No. 2, 7 A .D . (1933-34)
Case No. 116.
9 A .D. (1938-40) Case No. 116.
Italy, Court of Appeals of Milan. March 18, 1952, 19 l.L.R . (1952) No. 57.

stating that whatever the ideal may be the phenomenon of dual

citizenship occurs, and that the attribution of dual citizenship to an
individual is, moreover, "a lesser ill than the imposition upon him of
citizenship by operation of law, independently of his wishes in the
In the light of this acceptance of the status of dual nationality it
is perhaps not surprising that the International Law Commission
concerned itself more with the problem of statelessness and not that
of plural nationality, although at the 1954 session of the International
Law Commission some members expressed the view that dual
nationality should be eliminated or reduced.' 2

6.3 Dual Nationality and the Convention on the

Nationality of Married Women, 1957

Some doubt arises as to the effect on matters of plural nationality

of the Convention on the Nationality of Married Women of February
20, 1957.' 3 The principle of the unity of nationality of husband and
wife was first enunciated in the French Civil Code of 1804, Articles
12 and 19, by which a woman automatically acquired the nationality
of her husband on marriage. At common law, on the other hand, a
woman retained her British nationality on marriage to a foreigner until
the Nationality Law of 1870, under Chapter 14, s. 10, of which she
lost it.u Even at the end of the 1930's, when Makarov delivered his
lectures at the Hague Academy of International Law, he could point
out that those countries whose legislation followed the principle of
unity of nationality were in a minority.

fil Supra, note 39.

' The Commission on the Status of Women began, in 1948. to consider conflicts
of laws relating to the nationality of women who marry aliens. It was found that in
many States a woman who married an alien automatically acquired the nationality of
the country of her husband even though she might retain her own. In others a woman
might lose her nationality without acquiring the nationality of her husband. U.N.
Commission on the Status of Women, "Nationality of Married Women" (Report
submitted by the Secretary-General), Docs. E/CN. 6/126/Rev. I and E/CN .6/ 129/Rev. J
(Nov. 29, 1950). The text of the 1957 Convention is in 309 U.N.T.S. 65. As of
December 3), 1991, fifty-seven States are parties to it. Cf. also section 5.1 of this
chapter, .supra, the U.N. Convention on the Elimination of all Forms of Discrimination
Against Women, 1979.
Su, in general. Makarov, "La nationalit~ de la femme mari~e," 60 Recueil des
Cours (1937-11) 115-241.

Articles 8-11 of the 1930 Convention dealt with the nationality of

married women. Articles 8 and 9 provided that a woman should not
lose her nationality on her marriage with an alien, nor at a later date
if he changed his nationality, if she did not acquire the nationality of
her husband. This is to avoid the wife becoming stateless. Article 10
provides that the naturalization of the husband during marriage shall
not involve the change of nationality of the wife except with her
consent. Article II alone is aimed at avoiding a status of dual
nationality; where a woman loses her nationality on marriage to an
alien, under the law of her country, she shall on dissolution of her
marriage only acquire her original nationality on application and she
shall lose the nationality she acquired by reason of her marriage.
These articles were much criticized by groups and organizations
claiming to speak on behalf of women, who favored no change at all
in the national status of married women, without their consent, on the
grounds of equality. In its extremist form, this view involves the
principle of single nationality, the nationality of neither spouse being
affected by marriage. Hyde pointed out already in 1930 that unity of
nationality and equality of treatment are not irreconcilable. 65 Either
spouse may acquire the nationality of that other within whose country
both intend at the time of marriage to make, and do in fact make, their
home as husband and wife. This is known as the matrimonial domicile
in private law.
Nor are unity of nationality and equality of treatment
irreconcilable with the purposes of the Convention on the Nationality
of Married Women, as expressed in the view endorsed by the
Economic and Social Council of the United Nations in resolution
242(1X) of August I, 1949.66 At its third session in 1949, the U.N.
Commission on the Status of Women urged the preparation of a
convention on the nationality of women "assuring women equality
with men and especially preventing them from becoming stateless or

See Hyde, "Aspects of Marriage between Persons of Different Nationality,"
24 A .J.L .I. (1930) 742 et seq.
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.

otherwise suffering hardships ari si ng out of conflicts in laws." It is

here submitted that the retention of an original nationality in addition
to the acquisition of the nationality of a spouse on marriage to an
alien does not constitute a hardship. The concept of dominant
nationality, as noted earlier in Chapter 2 of this book, could be
applied in these cases.
The 1957 Convention does not. expressis verbis, provide for the
elimination or reduction of the status of dual nationality. In the
preamble the Contracting States recognize

"that conflicts in law and practice with reference to nationality

arise as a result of provisions concerning the loss or
acquisition of nationality by women as a result of marriage,
of its dissolution, or of the change of nationality by the
husband during marriage."

Article 15 of the Universal Declaration of Human Rights is then given

in full.
Articles 1 and 2 provide that the consent of the wife shaJJ be the
sine qua non of her change of nationality:

"Article J. Each Contracting State agrees that neither the

celebration nor the dissolution of a marriage between one of
its nationals and an alien, nor the change of nationality by the
husband during the marriage, shaJJ automatically affect the
nationality of the wife.
Article 2. Each Contracting State agrees that neither the
voluntary acquisition of the nationality of another State nor
the renunciation of its nationality by one of its nationals shall
prevent the retention of its nationality by the wife of such

Article 8( 1) provides that any State may make reservations to any

article of the present Convention other than Articles 1 and 2.
The provisions of the 1957 Convention are not declaratory of
customary international law. A Swiss Federal Tribunal, in the case of
M ejia v. R egierungsrat des Kanton Bem, 61 has held that the
Convention on the Nationality of Married Women was not applicable
as between the Dominican Republic and Switzerland because the latter

May 19, 1963, 32 I.L .R. 192.

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

birth. 68 On January 1, 1964, she became a student trainee at the Joint

Research Center at Ispra. On April 26, 1965, she married an Italian
national thereby automatically acquiring Italian citizenship under
Article 10 of Italian Law No. 555 of June 13, 1912, which provides

"a married woman may not be of different nationality from

her husband .... An alien who becomes the wife of an Italian
citizen acquires Italian nationality."

On April 28, 1965, she made a declaration under Article 22 of the

Belgian law codifying the law on acquisition, loss, and reacquisition
of nationality, that she wished to remain Belgian. On November 23,
1966, she entered the service as an official. On June 1, 1973, her
expatriation allowance was withdrawn. The Court annulled that
decision on the ground, inter alia, that to interpret the concept of
nationality as also embracing the nationality which was imposed by
law on an official of the female sex by virtue of her marriage, and
which she was unable to renounce, would amount to an unwarranted

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.
-- - ~ ~ - - - - ----


difference of treatment between female officials and officials of the

male sex. Considering that the Italian law of 1912 was quite consistent
in this respect with the principle of family unity and that courts may
apply the principle of effective nationality in cases of dual nationality,
this decision is surprising. It may be distinguished, however, on the
grounds that the nationality of a Member State of the European
Community is a privileged nationality in the territory of the other
States of the Community.
In the second case, the applicant failed in her application. 69 She
was a French national by birth who had lived in Belgium since
September 1961 . On October 28, 1961, she married a Belgian and
thereby lost her French nationality and acquired Belgian nationality
simultaneously. She did not make a declaration within six months of
the celebration of her marriage to the effect that she wanted to retain
her French nationality, in accordance with the provisions of the
Franco-Belgian Agreement of January 9, 1947, and the Belgian law
of December 24, 1932. On May 11, 1965, she entered the service of
the Commission. The Court held that as she had not availed herself of
the right to retain her original nationality she had consented to acquire
the Belgian nationality of her husband and was therefore not eligible
for an expatriation aJiowance.
The Court stressed the fact that in accordance with the general
pattern of Article 4 of Annex VII the paramount consideration in
determining entitlement to an expatriation allowance was the place
where the official had his habitual residence prior to taking up his
appointment. Article 4( I )(a) provides that the allowance shaH be paid
to officials who during the five years ending six months before they
entered the service did not habitually reside or carry on their main
occupation within the European territory of that State. On the other
hand, Article 4( 1)(b) provided for the grant of an expatriation
allowance to nationals habitually resident outside the territory of the
State during the ten years ending at the date of their entering the
service. Nevertheless, Mr. Advocate-General Trabucci, presenting the
case to the Court, recognized that nationality was a status and as such
should be recognized regardless of the mode in which it was acquired.
He concluded from this that both applications should be dismissed.
The Court applied the community's own rules and thus did not
decide on the nationality legislation of its Members. Their nationality

van den Broec:k v. Commi.fsion, Court of Justice of the European
Communities [1975] at 211.

legislation remained valid in the municipal sphere, though Italian law

was ineffective in the Community sphere.
ArticJe 5 of the Convention on the Elimination of Racial
Discrimination, by dropping the indefinite articJe "a" in its "right to
nationality." may be a cJarification of Article 15(1) of the Universal
Declaration. In his criticism of the Nottebohm case, Verzijl wrote of

"the actual state of positive international law which is familiar

with the idea of a person quite regularly possessing two or
even more nationalities at a time, in despite of what well-
intentioned authors on international law or on human rights
may advocate as a pium votum for some remote future."70

Dual nationality was, as we have noted, considered an evil when

nationality legislation was determined solely according to municipal
law. As long as nationality was synonymous with allegiance dual
nationality was repugnant to the sovereignty of the independent State.
The position is not the same in modern international law.

6.4 The Council of Europe Convention on

Reduction of Cases of Multiple Nationality
and Military Obligation in Cases of Multiple
Nationality, 1963

This Council of Europe Convention on the Reduction of Cases of

Multiple Nationality, etc. was signed at Strasbourg on May 6, 1963.
A Protocol Amending the Convention, and an Additional Protocol
were both signed on November 24, 1977. As of March 1, 1993,
thirteen Members of the Council of Europe are parties to the 1963
Convention, eight Members are parties to the 1977 Protocol, and four
are parties to the Additional ProtocoL A Second Protocol amending
the Convention on the Reduction of Cases of Multiple Nationality and
Military Obligations in Cases of Multiple Nationality was opened for
signature at Strasbourg on February 2, 1993. As of March 1, 1993,

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.


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
The preamble to the 1963 Convention stated clearly its objectives:

"Considering that cases of multiple nationality are liable to

cause difficulties and that joint action to reduce as far as
possible the number of cases of multiple nationality, as
between member States, corresponds to the aims of the
Counci I of Europe."

Consequently, the first four articles of the Convention provided

for the ways in which a second nationality may be lost by a national
of one of the Contracting Parties who acquires a second nationality,
of another Contracting Party, whether by naturalization or ipso jure,
and similarly for the ways in which a second nationality may be
renounced. In particular Article 2, paragraph 2, subparagraph I, lays
down that consent may not be withheld when a national wishes to
renounce his nationality,

"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."

The Protocol of 1977 strengthened these provisions. The preamble

states, inter alia:

"Considering it desirable that a person possessing as a matter

of right more than one nationality should be able to renounce
by a mere declaration of will the nationality of a Contracting
Party in whose territory he has no ordinary residence~"

and Article 2(2)(1) was amended as follows:

"Such consent may not be withheld by the Contracting Party

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.

whose nationality a person of full age possesses ipso jure

provided that the said person has his ordinary residence
outside the territory of that Party."

The right of renunciation of a "second" nationality is thus not made

subject to ten years residence outside the territory of the State of
nationality. The Additional Protocol, of the same date, lays down the
procedure to be followed by States parties in communicating to
another party any acquisition of its nationality by an adult or minor
who is a national of this State.
The second Protocol of 1993, on the other hand, has been drafted
in such a way as to allow, or even to encourage, dual national status
in two specific contexts: that of unity of nationality within the same
family, and that of the integration of migrant workers, and particularly
second-generation migrants, who have settled permanently in the
member States of the Council of Europe. In the preamble the objective
is stated in this way: "Considering that conservation of the nationality
of origin is an important factor in achieving these objectives ...."
For our purposes Article 1 of the Second Protocol is of most
interest. This provided that three new paragraphs be added to Article
1 of the Convention. The first, paragraph 5, provides that

"Where a national of a Contracting Party acquires the

nationality of another Contracting Party on whose territory
either he was born or is resident, or has been ordinarily
resident for a period of time beginning before the age of 18,
each of these Parties may provide that he retains the
nationality of origin."72

The new paragraph 6 provides that

"in cases of marriage between nationals of different

Contracting Parties, each of these Parties may provide that the
spouse, who acquires of his or her own free will the
nationality of the other spouse, retains the nationality of

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.

- - --- - - - - -- - - -



And the new paragraph 7 provides that

"when a national of a Contracting Party who is a minor and

whose parents are nationals of different Contacting parties
acquires the nationality of one of his parents, each of these
parties may provide that he retains the nationality of 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
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

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.

or her children regularly on dissolution of marriage. Further, the

number of such marriages still increases due, inter alia, to the
movement of workers within Europe, and it can be said "with
reasonable certainty that mixed marriages between Europeans in
Europe are nowadays counted in millions."74 This leads to an increase
in multiple nationality also with the application of the principle of the
equality of spouses. From a comparison of the effects of the "one
nationality only" principle with that of "multiple nationality," the
Rapporteur concluded with the proposal that insofar as mixed
marriages are concerned an exception to the "one nationality only"
principle be introduced, and that this should be attained in such a way
"that renunciating the previous nationality will be the only element
that will be taken out of the prerequisites which a country sets out for
permitting the 'naturalization' or accepting the 'declaration' of a
foreign person." Other prerequisites for naturalization, such as proof
of residence, may well continue to be in force. 75



At the time when the Universal Declaration of Human Rights was

adopted by the General Assembly of the U.N. in 1948, it was decided
that the Commission on Human Rights should continue its work by
drafting international conventions on human rights of a legally binding
character. After 18 years of debate and preparation, first in the Human
Rights Commission and then in the Assembly's Third Committee, two
International Covenants on Human Rights were adopted by the
General Assembly on December 16, 1966. The International Covenant
on Economic, Social and Cultural Rights76 entered into force on
January 3, 1967, three months after thirty-five States became party to
it. The International Covenant of Civil, and Political Rights and the
Optional Protocol thereto" entered into force on March 23, 1976
(Article 27). As of December, 1991, one hundred and four States had
ratified or acceded to the former Covenant, one hundred States had
ratified or acceded to the latter Covenant, and forty-four States to the

Ibid., Appendix I at 6-28.
Ibid., Memorandum, Paragraph 9.
76 T ext m
. 6 I.L.M. (1967) at 360.
Ibid. at 368.
- - ------- -------- - - -


The Covt•nant on Civil and Political Rights contains twenty-seven

artil·ks. beginning with Article I (I) that all peoples and all nations
shall have the right of self-determination, and including the
enunciation of the principle that all persons are equal before the Jaw
and are entitled without any discrimination to the equal protection of
the law (Article 26). A detained list of rights is enumerated.
Article 15 of the Universal Declaration is not reproduced in this
Covenant. Two articles are of particular interest here. Article 12(2)
states that:

..Everyone shall be free to leave any country including his


Article I 2( 4) states that:

..No one shall be arbitrarily deprived of the right to enter his

own country."

The right to change nationality, proclaimed in Article 15(2) of the

Universal Declaration, implies the acquisition of a new nationality as
well as the renunciation of an existing nationality. Article 12(2) of the
Covenant provides only for the first stage of the process, that of
leaving the country of one's nationality. Article I 2(4) given substance
to the status of nationality, by providing that nationality connotes a
right of residence.'8 Whereas domicile has not become synonymous
with nationality, nationality presupposes the right of domicile.
Article 24(3) of the Covenant on Civil and Political Rights
provides that:

"Every child has the right to acquire a nationality."

Taking into account other international conventions, such as that

on the Reduction of Statelessness, 1961, and on the Elimination of all
Forms of Racial Discrimination, 1966, and the United Nations
Convention on the Rights of the Child, 1990, the right to acquire a
nationality of origin is a more precise way of stating the right to
nationality because this nationality may not be withdrawn arbitrarily,

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."

or as a discriminatory measure, or where the loss of nationality would

render a person stateless. As it does not stipulate, however, that all
States must apply the jus soli, by which the problem of statelessness
would be solved, it is doubtful whether it imposes any added duties
on States.

7.1 The Implementation of the Covenants

In accordance with Article 2( 1) of the International Covenant on

Civil and Political Rights, each State Party undertakes to respect and
ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant without distinction
of any kind such as race, color, sex, language, religion, or other
opinion, national or social origin, property, birth, or status. In addition
to this, the Covenant contains provisions for its implementation.
Article 28 provides for the establishment of a Human Rights
Committee consisting of eighteen members, nationals of States Parties
to the Covenant, who are persons of high moral character and
recognized competence in the field of human rights. The Human
Rights Committee is charged with consideration of reports submitted
by States Parties on the measures they had adopted which give effect
to the rights recognized in the Covenant (Article 40); the consideration
of communications by a State Party to the Covenant under Article 41
complaining that another State Party is not fulfilling its obligations
under the Covenant; and the consideration of communications
submitted under the Optional Protocol to the Covenant. The Optional
Protocol provides that individuals who claim that any of their rights
enumerated in the Covenant have been violated and who have
exhausted all available domestic remedies may submit written
communications to the committee for consideration (Article 2). Under
Article 1:

"A State Party to the Covenant that becomes a party to the

Protocol recognizes the competence of the Committee to
receive and consider communications from individuals subject
to its jurisdiction who claim to be victims of a violation by
that State Party of any of the rights set forth in the Covenant."

This applies only where the communication concerns a State Party to


the Optional Protocol. 79

The election of the members of the Human Rights Committee
took place on September 20, I 976, at the United Nations Headquarters
· N ew York. 8o The rules of procedure adopted by the Committee
provide that the Committee communicate with the States Parties
through the office of the Secretary-General. The Secretary-General is
called upon to notify the Committee of aJI cases of nonsubmission of
reports or additional information requested in conformity with the
rules of procedure. The Committee may transmit to the State Party
concerned, through the Secretary-General, reminders concerning these
matters. The Secretariat of the United Nations is thus the body
through which the Human Rights Committee communicates with the
States Parties to the International Covenant on Civil and Political
Rights and to the Optional Protocol thereto. Further, the Secretary-
General may request clarification from the author of a communication
concerning the applicability of the Protocol (Rule 80). The Committee
on Human Rights, in this way, becomes a part of the United Nations
law on human rights,81 even though it is not a subsidiary United
Nations body, being established under the Covenant by the States
Parties to it.
The discussions of the Human Rights Committee have made it
clear that it is for the Committee, not the Secretary-General, to decide
on the admissibility of a communication.82 The Committee is thus an
independent body, but it is not, stricto sensu, a court of law. It has no
precedents, is not required to make any judgments and can refer only
to the articles of the Optional Protocol and the Covenants. It acts as

In this way the position of States which have reservations concerning the right
of individual petition in respected.
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

officer of the Organization." (Articles 97 and 98 of the Charter).

81 Ramcharand, op. cit. (1979) at 190. For the evolution of the Committee's

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

a conciliatory body.83 So far, the Committee has not apparently dealt

with the violation of an individual's right to any national status,
although communications on this matter may be submitted under
Article 2.


Three regional conventions on human rights have been concluded.

The European Convention for the Protection of Human Rights and
Fundamental Freedoms was signed in Rome on November 4, 1950.84
It was prepared by the Committee of Ministers of the Council of
Europe, on the proposal of the Consultative Assembly,85 and was
opened for ratification by the members of the Council of Europe. It
entered into force on September 3, 1953, when it had been ratified by
ten Member States. By November 1978, nineteen Members of the
Council of Europe had ratified the Convention. 86 The number of
parties to the Convention has increased with the number of members
of the Council of Europe, since accession to the Convention has been
understood as a "condition" of membership in the Assembly's practice
when formulating its opinions on applications for membership.
This Convention is based is based on the Universal Declaration of
Human Rights of December 10, 1948, though not all of the rights
stated there are reproduced in it. In the words of the preamble to the
European Convention, the signatories resolve

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.
Text in European Treaty Series No. 5. Also in European Yearbook, Vol. I at
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.
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

"as the Governments of European countries which are like-

minded and have a common heritage of political traditions,
ideals, freedom and the rule of law, to take the first steps for
the collective enforcement of certain of the Rights stated in
the Universal Declaration."

The signatories to the European Convention thus proposed to ensure

the observance of a number of the rights proclaimed in the Universal
Declaration. Great hopes were centered on it from the outset for, to
quote Lord McNair:

"In a matter of this kind it is clearly easier for a group of

like-minded and more or less neighboring States ... to agree
upon a Convention as has been done under the auspices of the
Counci 1 of Europe. " 87

And these expectations have been to a certain extent realized. The

Convention has been called

"what has in practice turned out so far to be the most

influential and effective instrument providing international
protection for human rights."88

8.1 The Jurisdiction of the European Court of

Human Rights
The European Convention imposes legally-binding obligations on
the Member States signatories to it. Section II, Article 19, provides
that a European Commission of Human Rights and a European Court
of Human Rights be set up "to ensure the observance of the
engagements undertaken by the High Contracting Parties in the
Present Convention." The Commission consists of a number of

87 Foreword to "The European Convention on Human Rights," A Report of the

Lecture and Conference held on November 23 and 24 by the British Institute of
International and Comparative Law ( 1965), I.C.L .Q. Supplementary Publication No.
11( 1965). See also Waldock, "Human Rights in Contemporary International Law and
the Significance of the European Convention," idem. 1 et seq., and Robertson, "The
Political Background and Historical Development of the European Convention on
Human Rights," idem. 24 et seq.
E. Lauterpacht, ed., Collected Papers of Hersch Lauterpacht Vol. III (1977)
407, Editorial Comment.

members equal to that of the parties to the Convention (Article 20)

who are to be elected by the Committee of Ministers of the Council
of Europe (Article 21 ). The Court on the other hand consists of a
number of Judges equal to that of the Members of the Council of
Europe (Article 38). With the election of fifteen judges on January 21,
1959, the Court came into being. At that time eight States Parties to
the 1950 Convention had made the requisite declaration of acceptance
of the compulsory jurisdiction of the Court.
The jurisdiction of the Court is binding only on those States
Parties to the Convention who accept it. This may be done by making
a declaration under the so-called "optional jurisdiction" clause (Article
46), recognizing

"as compulsory ipso facto and without special agreement the

jurisdiction of the Court in all matters concerning the
interpretation and application of the present Convention."

Or consent may be given to the recognition of the jurisdiction of the

Court in a particular case (Article 48). Article 48 lays down that the
following may have standing before the Court:

"(a) the Commission;

(b) a High Contracting Party whose national is alleged to be
a victim
(c) a High Contracting Party which referred the case to the
(d) a High Contracting Party against which the complaint
has been lodged."

Article 48(b) is in agreement with the rule in the settlement of

claims than an individual is protected by the State of his nationality.
Under Article 44 only the High Contracting Parties and the
Commission shall have the right to bring a case before the Court.
However, as pointed out by van Dijk and Van Hoof, the disadvantages
for the legal protection of the individual under Article 44 should not
be over-dramatized because, "In practice, in almost all cases the
Commission is found to be the organ which brings a case before the

Court in the interest of an individual."89

8.2 The Jurisdiction of the European Commission

of Human Rights

The Court is permitted to deal with a case only after the

Commission has acknowledged failure in its efforts to bring about a
friendly settlement (Article 47). It is in the rules regarding the
functioning of the European Commission of Human Rights that the
most "startling innovation" is to be found. Article 25( I) provides that:

"The Commission may receive petitions addressed to the

Secretary-General of the Council of Europe from any person,
non-governmental organization or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in this Convention,
provided that the High Contracting Party against which the
complaint has been lodged has declared that it recognizes the
competence of the Commission to receive such petitions."

By 1990, all twenty-three Contracting States had made a declaration

recognizing the right of individual application to the European
Commission of Human Rights. As from July 5, 1955, this right of
individual application has been exercised. The Law less case and the
De Becker case may be mentioned as cases brought before the
European Court of Human Rights by the Commission which were
both initiated by individuals.90 It should, however, be pointed out that
this procedural capacity granted to the individual is the power of
initiating proceedings, but the individual has no control over the
proceedings. 91

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
See Modinos, "Effects and Repercussions of the European Convention on
Human Rights," II /.C.L.Q. (1962) 1097-108.
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

The jurisdiction of the Commission to hear petitions i.s dependent

upon the fulfillment of certain conditions. Under Arttcle 26, the
petitioner must have exhausted the domestic remedies available,
according to the generally recognized rules of international law. Under
Article 27, the Commission shall not deal with petitions which are
anonymous, or already being dealt with by the Commission or another
procedure of international investigation or settlement, or contain no
relevant new information, or are "manifestly ill-founded, or an abuse
or the right of the petition." The function of the Commission is then
to secure a friendly settlement of the matter (Article 28). If a friendly
settlement is reached the Commission is to send a Report to the
Committee of Ministers and to the Secretary-General of the Council
of Europe for publication containing "a brief statement of the facts
and of the solution reached" (Article 30). If no solution is reached the
Commission is to draw up a Report stating whether, in the opinion of
all the members of the Commission the State concerned is in breach
of its obligations under the Convention. This Report is to be
transmitted to the Committee of Ministers with such proposals as the
Commission thinks fit (Article 31 ). A matter which has not been
solved by means of friendly settlement can then be settled politically,
by the Committee of Ministers, or legally in the European Court of
Human Rights. Up to December 1978 eighteen cases had gone before
the Court, which delivered judgments in the majority of them, and up
to January 1, 1978, about 8,200 applications had gone to the
Commission, which rejected about ninety-seven percent of them as not
having fulfilled the required conditions.92

8.3 National Status under European Convention

National status is recognized in the Convention in Article 48(b),

relating to the nationality of claims. It is also recognized in Article 38
which provides that no two judges on the European Court of Human
Rights may be nationals of the same state. Article 43 provides for the
participation as ex officio member of the Chamber of seven judges

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."

hearing a case of a judge who is a national of the State concerned.

This is similar to the position of ad hoc judge on the International
Court of Justice at The Hague. Article 20 provides that no two
members of the Commission may be nationals of the same State,
though according to Article 23 they are to sit on the Commission in
their personal capacity. These articles aside, the Convention contains
no reference whatsoever to an individual's right to a nationality.
Furthermore, the parties to the Convention agree, in Article 1, to
"secure to everyone within their jurisdiction the rights and freedoms
defined in Section I of this Convention." In this way the scope of the
Convention is territorial.
Considering this omission in the rights of the individual listed in
the Convention the question arises whether any right to a nationality,
or to choice of nationality, exists in the territory of the States parties
to the Convention.
The European Court of Human Rights has stated that the
Convention grants to individuals no right of residence in the territory
of the national State, this in effect depriving national status of its
internal meaning In the De Becker case, the Commission stated:93

"[T]he right of an individual to reside within the territory of

his own state is not as such guaranteed under any of the
provisions of the Convention"

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

Publications of the European Court of Human Rights (I %2), especially 23-24
and 43-44. Case of De Becker Application No. 214/56.
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.
Fawcett, The Application of the European Con ve11tion on Human Rights
(1969) 59 et seq.

independent members of the British Co~mon~ealth. The 1948 Act

created a class of British nationals but dtd not ttself confer on them
a right of free movement between British territories. As this legislation
is special to the United Kingdom. and othe~ me~bers of_the Council
of Europe base the right to residence on natwnahty the fat lure to state
the individual's right to residence in the national State is to be
The Fourth Protocol is a rectification of this. It provides:

"Article 2(2}. Everyone shall be free to leave any country,

including his own.

Article 3(1 ). No one shall be expelled, by means either of an

individual or of a collective measure, from the territory of the
State of which he is a national.
Article 3(2). No one shall be deprived of the right to enter the
territory of the State of which he is a national."

By November 1978, this Protocol had been ratified by twelve Member

States.96 The rule still applies, however, that a State is free to refuse
entry, or expel, a non-national, even though Article 4 of the Fourth
Protocol prohibits any collective expulsion of aliens. Castberg points
out the weakness of the Convention in this respect in the following

••furthermore there is no guarantee that a State may not also

in future follow the well-known pattern in the history of
dictatorships of depriving undesirable nationals of their
citizenship and then expelling them as foreigners ." 97

If this is a correct assessment of the present state of European human

rights law then the rights and freedoms listed in Section I of the
Convention, Articles 1-18, provide little security for the individual
whose nationality may be withdrawn before his expulsion from the
territory of his "former" national State.

Dorwick, ed .• Human Rights. Problems, Perspectives a11d Tex ts (1979) 186 et
seq. As of 1990 the United Kingdom has not ratified Protocol 4.
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.

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
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

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.

expressly recognized that with the exercise by a State of its right to

deprive an individual, or individuals, of nationality combined with an
order of expulsion the link between the two decisions would create the
presumption that the refusal of nationality had the mere purpose of
making the expulsion possible. This would be in violation of Article
17 forbidding "any act aimed at the destruction of any of the rights
and freedoms set forth herein ... ." The Commission has not so far
had to consider the legality of such a situation.
Article 13 of the Convention prohibits a violation of the rights and
freedoms set forth in the Convention without right of redress
"notwithstanding that the violation has been committed by persons
acting in an official capacity."
Under Article 14 discrimination in securing the enjoyment of the
rights and freedoms set forth in the Convention is prohibited. The
obligation on the parties to the Convention not to practice
discrimination appears to be absolute in view of the exhaustive list of
grounds of discrimination given in Article 14. This would place the
European Convention in the same position as other human rights
instruments, in which arbitrary deprivation of nationality has acquired
the meaning of deprivation of nationality on a discriminatory basis or
contrary to the law.
The European Convention on Human Rights provides, further, an
example of a new form of law, mid-way between municipal law and
international law .101 The Convention sets up a common standard to be
followed, imposing an obligation on the parties

"to ensure that their domestic legislation is compatible with

the Convention and, if need be, to make any necessary
adjustments to this end, since the Convention is binding on all
the authorities of the contracting parties, including the

Ibid. at 496--97.
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.

legislative authority." 102

Numerous examples exist of the States parties altering their legislation

to comply with the common standard. 103 This obligation must also
affect their nationality laws, any discriminatory nationality legislation
being, for example ipso facto in breach of the Convention.
Article 15 of the Convention permits derogations from the
obligations contained in it "In time of war or other public emergency
threatening the life of the nation." In the event of dispute it is for the
Court to decide whether it has jurisdiction (Article 49).


The American Convention on Human Rights, 1969,104 like the

European Convention, was concluded on a regional basis and so has
been called "roughly comparable" to it. 105 The right to a nationality is,
however, stipulated in the Inter-American Convention. Article 20 runs
as follows:

"1. Every person has the right to a nationality.

2. Every person has the right to the nationality of the State
in whose territory he was born if he does not have the right
to any other nationality.
3. No one shall be arbitrarily deprived of his nationality or
of the right to change it."

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

is here treated as sui generis.

104 Done at San Jose, Costa Rica, November 22, 1969. 9 I.L.M. 99 (1970). This

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-

American Specialized Conference on Human Rights" (April 22, 1970).


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. 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.
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.

a Convention organ. Furthermore, a reconstituted Inter-American

Commission of Human Rights was established to act as both OAS
Charter organ, that is, for those Member States not parties to the
Convention, and as a Convention organ for the States parties.
The American Convention of Human Rights provides in its Article
64 for the advisory jurisdiction of the Court. The first paragraph states
that Member States and organs of the OAS "may consult the Court
regarding the interpretation of this Convention or of other treaties
concerning the protection of human rights in the American States."
The second paragraph runs as follows:

"The Court, at the request of a member State of the

Organization, may provide that State with opinions regarding
the compatibility of any of its domestic laws with the
aforesaid international instruments."

The first request to be referred to the Court under Article 64(2)

concerned amendments to the naturalization provisions of the
Constitution of Costa Rica, and is thus indispensable for this inquiry
into the regulation of nationality in international law. This Advisory
Opinion is, furthermore, "without precedent in that it involves a
government's request for the review by an international court of a
proposed Constitutional amendment."109

9.1 Amendments to the Naturalization Provisions

of the Constitution of Costa Rica. Advisory
Opinion, 1984

In July 1983, the Minister of Foreign Affairs of Costa Rica

formally filed a request for the advisory opinion of the Court relating
to certain proposed amendments to Articles 14 and 15 of the Political
Constitution. Article 14 dealt with naturalization and Article 15 with
the requirements for naturalization and the concept of domicile.
First the Court established that a restrictive reading of the
reference in ArticJe 64(2) to "domestic laws" which would permit
States to request advisory opinions under that provision only in
relation to laws already in force, would unduly limit the advisory

109Proposed Amendments to the Naturalization Provisions of the Constitution

of Costa Rica, Advisory Opinion of January 19, 1984, No. OC-4/84, reported in 5
H.R.L.J. (1984) 161 CJ30.

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
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

"It is generally accepted today that nationality is an inherent

right of all human beings. Not only is nationality the basic
requirement for the exercise of political rights, it also has an
important bearing on the individual's legal capacity. Thus
despite the fact that it is traditionally accepted that the
conferral and regulation of nationality are matters for each
state to decide, contemporary developments indicate that
international law does impose certain limits on the broad
powers enjoyed by the states in that area, and that the manner
in which states regulate matters bearing on nationality cannot
today be deemed within their sole jurisdiction; those powers
of the state are also circumscribed by their obligations to
ensure the full protection of human rights."

In order to arrive at a satisfactory interpretation of the right to

nationality as embodied in Article 20 of the Convention, the Court had

Ibid. 1112-30, especially 28-30.
Ibid. 132. See also 1133-38.
-- - - - - - --- - - - . .,


thus to reconcile the traditional principle with the new developments

as regards nationality legislation.
The Court' s reasoning was as follows. Human rights instruments
show that the right of every human being to a nationality has been
recognized as such by international law. On the other hand, it is for
each State "to judge what conditions to impose to ensure that an
effective link exists between the applicant for naturalization and the
systems of values and interests of the society with which he seeks to
fully associate himself. That State is also best able to decide whether
these conditions have been complied with." 112
In the instant case, Costa Rica proposed to impose stricter
requirements for the acquisition of Costa Rican nationality by
naturalization: First, by raising the requirement of two years prior
domicile in the country to five years "official residence" for native-
born nationals of other countries of Central America, Spaniards, and
lbero-Americans, and for those not native-born by raising it to a
minimum period of seven years as compared with the existing
requirement of five years domicile; second, by requiring that a foreign
woman, who by marriage to a Costa Rican loses her nationality, not
only indicate "her desire to take our nationality" but, in addition, that
naturalization was to occur after two years of marriage and the same
period of residency in the country. The Court stated that it was aware
of the problems that could arise for women who might thus be
stateless for up to four years. But this loss of nationality would be
brought about by the laws of their country of origin, not by the laws
of Costa Rica_. 13 The Court then concluded that since these stricter
requirements "do not purport to withdraw that nationality from any
citizen currently holding it, nor to deny the right to change that
nationality, the Court concludes that the proposals do not in any
formal sense contravene Article 20 of the Convention."
While finding no contravention of the Convention in these
amendments, the Court did point out that "Article 20 remains to be
more fuJiy analyzed and is capable of development." 114 In this opinion~
in a concrete case, the individual's right to a nationality stipulated in
human rights instruments is thus interpreted to be a right not to be
rendered stateless for an unlimited period of time in the future. The
possibility of a person being rendered stateless, at least for a specified

Ibid. 136.
IIJ Ibid. Tf46-48.
Ibid. 142.

period, as a result of a conflict of nationality laws, is, on the contrary,

expressly recognized as regards foreign women marrying Costa Ricans
who lose their nationality thereby.'
The Court then examined the content of the rule of non-
discrimination in international human rights law as expressed in
Article 1(I) of the Convention. 116 Two factual situations had to be
considered in this case. First, the proposed amendment differentiated
between persons who were nationals of "other countries of Central
America, Spaniards and lbero-Americans" by birth and those who
were nationals by naturalization, with the requirement of a longer
period of domicile or residence for the naturalization of the latter
group. Here the Court, after analyzing, inter alia, the case law of the
European Court of Human Rights, defined discrimination as follows:

" ... [N]o discrimination exists if the difference in treatment

has a legitimate purpose and if it does not lead to situations
which are contrary to justice, to reason or to the nature of
things. It follows that there would be no discrimination in
differences in treatment of individuals by a state when the
classifications selected are based on substantial factual
differences and there exists a reasonable relationship of
proportionality between these differences and the aims of the
legal rule under review. These aims may not be unjust or
unreasonable, that is, they may not be arbitrary, capricious,
despotic or in conflict with the essential oneness and dignity
of humankind." 117

On these grounds the Court found that expediting the

naturalization procedures "for those who, viewed objectively, share
much closer historical, cultural and spiritual bonds with the people of
Costa Rica" would not be clearly discriminatory in character and
would not appear to be inconsistent with the nature and purpose of the
grant of nationality. The proviso was added that it did not approve of

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)
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.
Ibid. 157.
- - - - -- - -- - -- -- - --


the practice which prevails in some areas of limiting "to an

exaggerated and unjustified degree the political rights of naturalized
individuals." Judge Buergenthal dissented on this point, on the
grounds that it would establish a ..discriminatory distinction" between
the original and naturalized nationals of those countries "because it is
disproportionate and not reasonably related to the governmental
objective sought to be accomplished by it." He found that the
argument that these individuals might have acquired their nationality
by fraud to be unpersuasive in the light of the fact that "under
international law, Costa Rica is not required to recognize any
nationality that is not based on real and effective ties between the
individual and the state granting nationality." 119
By a unanimous vote, the Court was of the opinion that the
provision stipulating preferential treatment in cases of naturalization
applicable to marriage, contained in Article 14(4) of the proposed
amendment, which favors only one of the spouses, does, on the other
hand, constitute discrimination incompatible with Articles 17(4) and
24 of the Convention. With the widespread acceptance of equality of
the sexes based on the principle of nondiscrimination, unequivocally
accepted by the Conference of American States, the Court found that
the different treatment envisaged for spouses by paragraph 4 of Article
14 of the proposed amendment, applicable only to a "foreign woman"
who marries a Costa Rican national, was unjustified and should be
altered to read any "foreigner." 1211
This case is an advisory opinion and is handed down by the Inter-
American Court of Human Rights, a regional court. Nevertheless, this
opinion is a judicial pronouncement carrying great weight121 from one
of the two functioning regional courts of human rights. The Court's
Opinion has shed light on a number of aspects of the regulation of
nationality in international law and the application of the provisions
of human rights instruments to these questions. The "right to a
nationality" is interpreted as laying an obligation on States not to
render a person stateless by operation of national laws and regulations.

Ibid. 1160 and 62.
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.
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...."

There is no right of individuals to naturalization, and a reasonable

application of the "genuine link" principle permits States to make a
distinction between applicants for naturalization without infringing the
requirement of non-discrimination.
The principle of the equality of men and women, on the other
hand, permits of no derogations, although here, it must be noted, there
is no question of weakening family unity, and the inter-American
system is particularly unambiguous in its pronouncements of equality
between the sexes.
In conclusion, it may be noted that Judge Piza Escalante, in his
Separate Opinion, referred to the discriminatory nature of the
"comprehensive examination on the history of the country and its
values," added in the legislative proposal to Article 15 of the
Constitution on the "Requirements for Naturalization." This was not
the view of the majority of the Court, but it could be of relevance in
respect of the nationality legislation of the "newest" states, to be
discussed in the next Chapter of this book.122



The African Charter on Human and Peoples' Rights is recognized

as a regional "pact" like the human rights conventions of Europe and
the OAS. It was adopted on June 28, 1981, at the Meeting of the
Organization of African Unity (OAU) held in Nairobi, and entered
into force on October 21, 1986. By October 1, 1990, forty out of the
fifty Member States of the OAU had ratified it. 123
The Charter contains no provisions for the right to nationality. Nor
is a Court of Justice established under the provisions of the Charter.
On the other hand, two paragraphs may be noted. In its Article 18, the
Charter provides, paragraph 1, that "The family shall be the natural
unit and the basis of society. It shaH be protected by the State which
shall take care of its physical and moral health." Paragraph 3 of
Article 18 adds:

122 Adv1sory
. 0 ptmon,
. . supra. Separate Opinion 1:21 .
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.

"The State shall ensure the elimination of every discrimination

against women and also ensure the protection of the rights of
the woman and the child as stipulated in international
declarations and conventions."

As has been noted earlier, these declarations and conventions contain

a number of specific provisions concerning nationality, including the
child's right to a nationality, and the woman's right to retain or
change her nationality independently of her husband, and to pass on
her national status to her children.
In addition, the Charter provides for the establishment of the
African Commission on Human and Peoples' Rights with fairly wide
powers of supervision, of protection, and of making recommendations
and submitting reports on African problems in the field of human and
people's rights. On July 27, 1987, a Conference of Heads of State and
Government of the OAU elected a Commission, and the first President
of the Commission, M. Isaac Nguema, declared it open at a session at
Libreville from 18-28 April 1988. By 1990, the Commission had been
seised of some thirty Communications from States Members of the
Organization. 124
The Charter lays down among the rights to which individuals are
entitled, the right of every individual to be equal before the law
(Article 3), and the right to leave any country including his own, and
to return to his country (Article 12(2)). Further, the Member States of
the OA U "shall recognize the rights, duties and freedoms enshrined in
this Charter and shall undertake to adopt legislative or other measures
to give effect to them" (Article 1). The right of the States to legislate
on nationality matters may well be disputed in the future under this
African Charter on Human and Peoples' Rights.

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.


Lastly, it is proposed to look at the Final Act of the Conference
on Security and Cooperation in Europe, as it highlights the problem
of the national status of spouses of different nationalities.
The Final Act of the Conference, also known as the Helsinki
Accord, was signed at Helsinki on August I, I975,n by the
representatives of thirty-five States who considered themselves
"motivated by the political will ... to contribute in Europe to peace,
security, justice, and co-operation." It is not an international treaty, as
is clearly stated in one of the final clauses where the Government of
Finland is requested to transmit to the Secretary-General of the United
Nations the text of the Final Act "which is not eligible for registration
under Article I 02 of the Charter of the United Nations." At the same
time the signatories to the Act express their intention to assume
obligations under it. In the last paragraph, they declare "their
determination to act in accordance with the provisions contained in the
above texts" and "their resolve, in the period following the
Conference, to pay due regard to and implement the provisions in the
Final Act of the Conference." Ambassador Totterman points to three
instances where the provisions of the Final Act either overlap with
principles and rules of international law or touch closely upon them. 127
These are: where the Final Act embodies or refers to a number of
principles of international law and international treaties; where the
multilaterally agreed aims and guidelines raise legitimate expectations
among the signatories of mutual observance; where there are questions
of interpretation of the Final Act connected with or derived from legal

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.
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. . . ."

commitments. The tenth and last Principle of the Act contains a

declaration by the participating States that they "will fulfill in good
fai~h their obligations under international law." As proof of their
senousness of purpose the signatory States agreed to hold successive
conferences to review implementation of the Act.
As the Helsinki Accord is not without significance in international
law some weight must be attached to the seventh Principle dealing
with respect for human rights and fundamental freedoms, in which the
participating States "recognize the universal significance of human
rights and fundamental freedoms." So, too, among matters related to
giving effect to certain of the above Principles the participating States
declare they "will examine favourably and on the basis of
humanitarian considerations requests for exit or entry permits from
persons who have decided to marry a citizen from another
participating State."
This commitment is only on a reciprocal basis, between States
parties to the Final Act. In addition, no obligations are undertaken as
to nationality, and indeed, in the Final Act the signatories recognize
the principles of sovereign equality and non-interference in the
external or internal affairs of another participating State (Principles I
and VI).
It would seem from this and other practice to be uncertain whether
in international law spouses have a right to each other's nationality.
Whereas respect for the family as a unit of society is expressed in
international instruments, 128 the principle of equality of men and
women negated that of the unity of the nationality of spouses. The
Convention on the Nationality of Married Women, which came into
force on August II, 1958, provides that the contracting States agree
that neither the celebration not the dissolution of a marriage between
one of its nationals and an alien shall have any automatic effect on the
wife's nationality. Her consent must be given to any change of
nationality, notwithstanding that her free and full consent must be

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
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.

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

"that the measures which prevent or coerce the wives of

citizens of other nationalities from leaving their country with
their husbands or in order to join them abroad, are not in
conformity with the Charter.. . ."

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

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
See Green np. cit. (1956) 159-62, and Rajan, United Natinn.v and Domestic
Jurisdiction (1958) 320 et seq.
,. --


issul'S of the reuuion of families and marriage between citizens of

different States, hut it is interesting to note that it was not until the
hlurth 1:ollow-up Meeting at Helsinki in July 1992, that the
Confercm:e on Security and Cooperation in Europe included decisions
on nationality. This was in Part VI, on the Human Dimension (human
rights) of the Helsinki Document. 132 The text is as follows:

"The participating States

Recognize that everyone has the right to a nationality and
that no one should be deprived of his/her nationality
Underline that all aspects of nationality will be governed by
the process of law. They will, as appropriate, take measures,
consistent with their constitutional framework not to increase
Will continue within the CSCE the di scussion on these

The first paragraph is in line with other international instruments.

The second paragraph, second sentence, adds little to existing
commitments not to increase statelessness because of the proviso that
these measures are to be "consistent with their constitutional frame-
work ...." However, these decisions have been adopted by all the
participating States at the Conference, now including the new States
formerly part of the Soviet Union, and should be read together with
the third paragraph as applicable to the forthcoming nationality
legislation of the "newest" States. 133


Within the framework of the United Nations a number of human

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.
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.

rights instruments have been concluded creating a body of human

rights law which differs from any earlier international concern with
human rights in that it sets international standards which are intended
for universal acceptance. 134 1t might be of interest to consider how this
development of the law has affected the traditional doctrine of
humanitarian intervention. If there is a shift in "emphasis from the
Definition of Human Rights to Remedies for infringement of Human
Rights" 135 States may practice humanitarian intervention to protect
individuals irrespective of nationality. This question arises bearing in
mind that the human rights instruments have not granted a so-called
"right" of the individual to diplomatic protection.
The doctrine of humanitarian intervention developed in the
nineteenth century as the great powers intervened to help individuals
or groups of individuals, such as the Christian minority in the Turkish
Empire. Lillich has maintained that Wheaton, in 1836, was the first
writer in English to use the phrase "interference when the general
interests of humanity are infringed by the excesses of barbarous and
despotic govemments." 137 Lauterpacht has written of "cases in which
a State maltreats its subjects in a manner which shocks the conscience
of mankind. " 138
As we have seen, in practice this kind of intervention has led to
excesses, such as the expedition of Napoleon III to Mexico or, more
recently, the intervention by Nazi Germany in Czechoslovakia and
Poland. Further, under Article 2(4) of the Charter "the threat or use of
force against the territorial integrity or political independence of any
State" is prohibited, and under Article 2(7) "Nothing contained in the
present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any
State." Under the Charter of the United Nations humanitarian
intervention is excluded and interference in the internal affairs of
another State is only permitted under Chapter VII dealing with

See I.L.A., "United Nations Provisions for Human Rights," Report of the
Fifty-Eighth Conference, Manila, 1978 (London 1980) 81 - 83.
I.L.A., Report of the Fifty-Second Conference, Helsinki, 1966 (1%7) 754.
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.
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.
Lauterpacht, Intemational Law and Human R ighu ( 1950) 32.

"Action with Respect to the Peace, Breaches of Peace, and Acts of

Aggression." In this way forcible self-help by indi vidual States is
unlawful. In the absence of United Nations action, however, the
practice sti II persists on isolated occa<;ions as an extension of the right
of self-defense.
The United States intervened in the Congo in 1964 and the
Dominican Republic in 1965 on the grounds that the lives of its
nationals were threatened. The protection of United States nationals
was coupled with the protection of other nationals.140 Another example
of this kind of action was the Entebbe Raid carried out by the Israelis
in 1976 to rescue Israeli nationals. On May 20, 1978, four hundred
paratroopers of the 2nd Parachute Regiment of the French Foreign
Legion were dropped into the center of Kolwezi, Zaire. The purpose
of the mission was "to protect the French and foreign residents of
Kolwezi and to reestablish the security there. This mission is of a
temporary nature and wi IJ end as soon as the legal authorities are in
a position to secure control of the situation."141 The late Judge Baxter
has thus defined humanitarian intervention as

"a short-time use of armed force by a government, in what

would otherwise be a violation of the sovereignty of a foreign
State, for the protection from death or grave injury of
nationals of the acting State-and incidentally, perhaps.
nationals of other States-by their removal from the territory
of the foreign State." 141

This definition has been characterized as a reiteration of the

already existing right of States to protect their nationals abroad and.
further, that this is an instance where international law tolerates
interference in violation of another State's territorial integrity.

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
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

integrity or political independence of States.

143 Jhabvala. "'Unilateral Humanitarian Intervention and International Law.- 2 1

1.1./.L. (1981) 208-30.


Questions of the utmost importance concerning the permissible use of

armed force under international law and the dangers of a State acting
as judge and jury in its own cause are involved here. But, for the
purpose of this study, the point to be noted is that the nationality link
is the essential prerequisite for mounting any rescue operation of
individuals in the name of humanitarian intervention. 144 The rescue of
nationals of other States is only incidental to the object of the
intervention. This has found expression also in Protocol I of the
Convention on International Humanitarian Law Applicable in Armed
Conflicts. Article 78 states that no party to the conflict shall arrange
for the evacuation of children other than its own nationals to a foreign
country except where compelling reasons of the health or safety of a
child is involved. 145

From this survey of human rights conventions and other
instruments it may be concluded that a State may not arbitrarily

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.
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).


deprive one or more of its citizens of their nationality. The meaning

of arbitrary has been defined as deprivation of nationality as a
discriminatory measure, directed against a particular section of the
population or as resulting in statelessness, or both. It is submitted that
this prohibition is on arbitrary deprivation of nationality coupled with
expulsion from the national territory. Thus, deprivation of nationality
as a punishment may become an international delict when the person
rendered stateless is expelled to another State. A deprivation of
nationality without expulsion may not, on the other hand, be
prohibited by international law, as being a matter of domestic concern,
unless the State has earlier bound itself by treaty, as under the
European Convention of Human Rights.
Whereas international humanitarian law grants every person the
right to a nationality it does not grant a corresponding remedy to a
person whose right has been violated. Nor does it provide for the
grant of a certain nationality. Yet, any legal measures taken by States
which result in cases of statelessness may be held to contrary to the
spirit of international human rights law. If it cannot be said that States
are under a duty to grant their nationality to stateless persons born on
their territory or within their jurisdiction the onus may be on States
not so doing to give reason why.
On the other hand individuals do not have the right to a single
nationality. Plural nationality is a status known to international law
and municipal courts can deal with it by applying the principle of the
effective nationality. In this connection the Convention on the
Nationality of Married Women remains an anomaly in so far as it
stipulates single nationality for women marrying aliens. However, the
Second Protocol amending the European Convention on the Reduction
of Cases of Dual Nationality, 1993, shows a major change of policy
in this respect. It permits dual national status for spouses of two
different European nationalities by providing for the retention of the
original nationality together with the acquisition of the spouse's
Consent must be given to render the imposition of nationality
valid, but there is no general recognition of the right to expatriation.
This term is used in the meaning of the right of individuals to
emigrate, to acquire a new nationality and repudiate a former one, and
of the right to the diplomatic protection of the State of naturalization,
even as against the State of former nationality. The right to emigrate
is contained in certain human rights documents but it has not found
general recognition in international law. It is, however, consistent with
the spirit of existing humanitarian law, for recognition of the dignity

and worth of the individual, expressed in human rights instruments has

reinforced what may be considered a customary rule of international
law that States may not impose their nationality on an individual
indefinitely and against his wishes when he no longer has his habitual
residence on the territory of that State.
It is now proposed to look at the law relating to State succession
to see how it affects international standards in nationality law.
Nationality in relation to State succession will be considered as this
subject covers questions discussed here, chiefly: what are the rights of
individuals vis-a-vis State authorities when a succession of territorial
sovereignty involves a change of nationality, and are new States under
any duties to recognize, or not to recognize, certain persons as their

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

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."


decolonization process."2 We may also ask whether any particular

rights and duties in respect of nationality are imposed under
international law on States succeeding to the sovereignty over territory
formerly exercised by another State.3

1.1 Definition of State Succession

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

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.
See Castren, The Obligations of States A rising from the Dismemberment of
Another State (Helsinki, 1950).
O'Connell, State Succession Vol. I (1967) 3.
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.

based on the personality of the state, derives from Hall, A Treatise of International
Law (8th Pearce Higgins, 1926). Castren suggests the terms "local" or
"regional" succession as substitutes for partial succession. Op. cit. (1951) 389-90.

independent, sovereign States on the dissolution into their constituent

units of former sovereign States.

1.2 Definition for Purposes of Nationality

The modes of State succession of particular interest here are those

which involve one or more successive States and a predecessor State
with continuous legal personality. Where former dependent territories
acquire full sovereign, independent status, the problem involved is the
national status of the former colonial subjects, as between the parent
and the newly independent States. Where there are partial cessions or
annexations, assuming here that the cession or annexation creates valid
title, the problem involves the predecessor and the successor States.
The same applies to separations or secession, where part of the
territory of a State secedes to form a newly independent State. Where
the legal continuity is disrupted and a change of nationality occurs, we
may ask if there are rules, or standards, in international law regulating
the change.
On the other hand, where the dismemberment of a State is
complete so that the State, and hence its nationality, no longer exist,
it is submitted that the problem is of a different nature, although
problems may arise as between the successor States inter se. 7 Also,
where States join in a union there may be no problem, the two
nationalities continuing as one. This happened when the Republics of
Egypt and Syria united, in February 1958, to form the United Arab
Republic. Article 2 of the Provisional constitution of the U.A.R.

"Nationality in the United Arab Republic is defined by Law.

Nationality in the United Arab Republic is enjoyed by all
bearers of the Syrian or Egyptian nationalities; or who are
entitled to it by laws or statutes in force in Syria or Egypt at
the time this Constitution takes effect."

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.

This provision is reenacted in Article 1 of the Nationality Law of the

U.A.R. 8 Nationals of the U.A.R. were thus to be those who possessed
the nationality of the two States merging into the Union. Problems
may arise in this kind of situation, for example in the application of
the rule of continuous nationality in the law of international claims.
The matter of particular interest here, however, is the enactment of
nationality legislation in cases of State succession where more than
one State is, a priori, entitled to claim the inhabitants as its nationals,
either by virtue of previous nationality or by claiming as it nationals
those persons who have come within its territorial jurisdiction. These
States may also, conversely, be entitled to withdraw their nationality
from these persons.

1.3 Importance of Nationality

A change of nationality based on State succession is a matter of

some importance, with numerous serious consequences for the persons
involved. The possession of nationality is required for the exercise of
a number of ci vii and political rights, such as the ownership of land
or the possession of a vote in national elections.
Nationality may be essential for the enjoyment of a pension, the
problem being whether the successor State is under an obligation to
pay the pensions of officials of its predecessors. O'Connell observes
that "after 1850 the tendency developed to transfer a cessionary State
liability to pay only the pensions of those officials whose nationality

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
Savoy. That change of nationality is a test for determining which
State is to discharge pension obligations was upheld in the Danzig
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:

"A customary rule of international law has been developed to

the effect that claims to pensions passed to the succeeding
State if the person who claimed the pension became a national
of the succeeding State and made no use of the right to opt
for the nationality of his former State."

Kunz refers to the great injustice inflicted on numerous former

officials of the Austrian Empire who became stateless under the
Treaty of St. Germain, and as such were not entitled to a pension.n
Regardless of nationality, pension rights may be preserved by treaty ! 3

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.
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.
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.
Kunz, /oc.cit (1930) 172.
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.

In another context O'Connell points out that "[n]ew States cannot

be expected to continue to employ alien officials." 14
Similarly, alien control of natural resources or public utilities after the
attainment of independence may constitute a problem. 15 In other
words, nationality is not only of great importance because a person's
legal relationships are affected by his nationality but it is also a matter
of particular importance to the newly independent States in the first
exercise of their sovereign powers.
The requirement of continuous nationality from the date of the
injury to the presentation of the claim may, further, cause hardship to
persons who change nationality due to a succession of States.
However, in the Panevezys-Saldutiskis Railway Case, which is an
authoritative source of the rule of nationality of claims, the Court
referred to the bond of nationality which alone, "in the absence of a
special agreement" confers upon the State the right of diplomatic
protection. O'Connell notes that in cases of State succession the rule
may be that the successor State inherits the claim, or, if the claim is
the claim of the individual then the successor State is competent to
claim on his behalf. 17

1.4 Nature of the Problems

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

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.
Ibid. at 30.
Estonia v. Lithuania, P.C.I.J. Series A/8, No. 76.
O'Connell, State Succession Vol. I at 540. This would correct what would
otherwise be a blatant injustice for the nationals of new States.
,... -


it expels the inhabitants, or if it denies its nationality to nationals of

the predecessor State, who are resident in a third State at the critical
date of the transfer of territory.
It is now proposed to consider these questions from the point of
view of three possible international standards: those of option, of the
genuine link, and humanitarian considerations. Although they are
closely interrelated an attempt will be made to deal with them
Castren has pointed out that the law of State succession may be
found in the two principal sources of international law, that of general,
customary international law, and that of voluntary, or treaty law. 18
After first considering the views of writers and international bodies it
is proposed, then to look at some recent practice of States and case-
law evidencing international customary law.


2.1 State Sovereignty

The basic proposition, as a general principle of international law,

is that the framing of nationa1ity laws falls within the legislative
competence of States as a part of their municipal law. Nationality
cannot be bestowed or acquired under international law, only under
municipal law.' 9 This is the starting point of any discussion of the
effects of State succession on nationality. O'Connell has traced the
analogous theoretical basis of State succession, from the earliest
doctrine based on the "Roman Law conception of the continuity of
legal personality in the estate which falls by inheritance" to the
hundred years when the rules have been dominated by the Hegelian
view of the sovereign State as the ultimate and sole source of legal
order. 20

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
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.
O'Connell, "State Succession and the Theory of the State," in C.
Alexandrowicz, ed., Grotian Society Papers (1972) 23-76.

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:

"[T]he evidence is overwhelmingly in support of the view that

the population follows the change of sovereignty in matters of
nationality. " 11

Crawford wishes to stress that there is no duty on the successor State

to extend its nationality to all persons resident in its territory. He then
proposes that

"in the absence of provtston to the contrary, persons

habitually resident in the territory of the new State
automatically acquire the nationality of that State, for all
international purposes, and lose their former nationality but
this is subject to a right in the new State to delimit more
particularly which persons it will regard as its nationals." 21

Castren states that with a change of sovereignty over a territory the

general view is that the nationality of the original population
changes. 23
By original population is understood those who are born on the
territory or who have their permanent domicile there at the time of the
territorial change of sovereignty or return soon after. In conformity
with this view the successor State extends its nationality with the
change of sovereignty and the nationality of the predecessor State is
lost. In a circular from the Italian Minister for Foreign Affairs,
Visconti Venosta, to the Italian consuls abroad concerning the cession
by Austria to Italy of the Venetian Provinces and the Province of
Mantua in the Peace Treaty of October 3, 1866, he stated: "The
citizens of the Provinces ceded by Austria under the Treaty of 3
October cease pleno jure to be Austrian subjects and become Italian

Brownlie, Principles of Public International Law (4th ed,.Oxford, 1990) 661 .
Crawford, The Creation of States in International Law (Oxford, 1979) 41.
Op. cit. (1951) 486. See also O'Connell, Vol. I (1%7) 245.
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.

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.

2.2 Option of Nationality

The unfettered right of the successor State can, accordingly, lead

to conflict with the predecessor State or other successor States.
Automatic collective naturalization is, further, inconsistent with the
present "demands of social and moral stability generated by the
democratic view of international order."25 Attempts to regulate
nationality in cases of State succession centered, first, on the technique
of an option granted to the persons on the transferred territory. This
option was to be exercised in favor of the predecessor State or the
successor State. That is to say, in cases of cession of territory the
nationals of the ceding State affected by the cession were to be given
the choice of retaining their nationality or of acquiring that of the
successor State. One rationale for this has been attributed to
Talleyrand at the Congress of Vienna in 1815. He stated "that people
should not be treated 1ike 'estate-owned cattle' and shifted with the
land where they themselves and their ancestors had lived for centuries,
from one State to another without being asked for their consent or
opinion. " 26 This argument carries weight to the present day, and
accords well with the growth of so-called humanitarian law since the
advent of the United Nations Organization.
The views of writers are far from unanimous as to the existence
of an obligation to allow an option of nationality in cases of State
succession. The view generally expressed is that the grant of an option
is within the competence of the successor State and is not dictated by

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.

the rules of intemationallaw. 27 Where such options have been granted

they show such diversity of practice that this diversity has been taken
as evidence of a lack of general custom. Verzijl has written as follows
of provisions treating the nationality of inhabitants of transferred

"[T]heir diversity alone makes it improbable that they can be

adduced as proof of a universal or regional custom susceptible
of being invoked when the treaties are silent or only contain
summary or equivocal provisions."

He concludes that in this field a lacuna exists. 28 Where the various

Foreign Offices frame the clauses defining the conditions and
procedures to be followed by the optants for nationality a variety of
practice may be expected.29
Notwithstanding the variety of practice some form of option
clause has been included in treaties of cession since the mid-
seventeenth century. O'Connell refers to the long history of the grant
of an option and states that "in very few historical instances of cession
has the right to opt been denied."30 In his study of these clauses Kunz
noted that for the first time a clause allowing free emigration was
included in the treaty of capitulation of the town of Arras. 31 By Article
17 of the Treaty of Ryswick, 1697, and Article 14 of the Treaty of
Utrecht, 1714, the inhabitants of the territories ceded were given one
year's time within which to remove themselves and their belongings
if they did not wish to change their allegiance to the new sovereign.32
Kunz concluded that the earlier cases of option were in the form of
granting nationals of the ceded territory a certain time within which

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)
Verzijl, International Law in Historical Perspective Vol. V (1972) 85-86.
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.
O'Connell, State Succession Vol I at 529 et seq.
Kunz, "L'Option de Nationalite," 31 Recueil des Cours (1930-1) 114 et seq.
Butler and Maccoby, The Development of International Law (1928) 201.

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:

"The nationality of the inhabitants of territory acquired by

conquest or cession becomes that of the government under
whose dominion they pass, subject to the right of election on
their part to retain their former nationality by removal or
otherwise, as may be provided."

Kunz notes that the requirement of emigration together with a form of

declared option was intended to avoid an option in fraudem legis, 35
such as where an option is made but it is not followed by emigration
or where the emigration is only apparent and not real. 36
In a Treaty between Finland and Russia on repatriation of their
nationals, signed on August 12, 1922, in Helsinki, the contracting

Kunz. op. cit. (J 930-1) 127 et seq.
143 U.S. 135, 162 (1892), quoted by Moore, Digest Vol. Ill at 31 I.
Kunz. foe. cit. 131.
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.

powers agreed to put into effect Article 35 of the Peace Treaty of

Dorpat, 1920,37 which provided for the repatriation of the nationals of
each party. The option granted in this treaty is laid down in Article 4,
in accordance with which those nationals of either party who wish to
return to their own country may make it known to the competent
authorities within a period of six months for those persons resident in
Finland or European Russia and nine months for those resident in
Asiatic Russia. Article 5 stipulates expressly that evacuation to the
country of nationality shall be voluntary and not enforced. The
persons to whom this applies are listed, and so are the items of
personal property which may be taken free of any duty or other
imposts. The right to sell real property is left to be regulated in
accordance with municipal law.
In the case of the Acquisition of Polish Nationality (1924),
decided by the Upper Silesia Arbitral Tribunal, the Arbitrator,
Kaeckenbeeck, held that the successor State normally has the right
"sanctioned by the practice of States and . . . expressly admitted by
writers" to require the emigration of such persons as have opted
against the nationality of the successor State. Thus Poland was entitled
to order those inhabitants of Upper Silesia who had opted for German
nationality to leave at the end of a specific period. 38

2.3 The Genuine Link

In this form the option granted to retain nationality shows, perhaps

not so much concern for the personal choice of the individuals
concerned as a desire to connect national status with a factual link to
the State of nationality. The choice to be made may often be a painful
one, imposing an obligation to emigrate as the only alternative to a
change of allegiance.
The treaties concluding the First World War, as we noted earlier,
based nationality on such criteria as "habitual residence."39 Under
Article 65 of the Treaty of St. Germain, Austrian nationals

Finland.s overen:fkommel.ser 1922 at 125. The authoritative texts are in Finnish,
Swedish, and Russian.
R.1.A .A. Vol. I at 40; Y.B.l.L.C. 1962-11 at 15.
See, supra, at 55-58.
.- -


"habitually resident in the territories recognized as forming

part of the Czecho-Slovak State will obtain Czecho-Slovak
nationality ipso facto.'"'"

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-

"Persons possessing rights of citizenship in the territory

forming part of the former Austro-Hungarian Monarchy and
differing in race and language from the majority of the
population of such territory, shall within six months of the
coming into force of the present Treaty severally be entitled
to opt for Austria, Italy, Poland, Romania, the Serb-Croat-
Siovene State or the Czecho-Slovak State, if the majority of
the population of the State selected is of the same race and
language as the person exercising the right to opt."44

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. "
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."
3 A .D. Vol. III, No. 195.
Kunz, op cit. ( 1930) 150. He calls them "non-genuine options" because they
are not connected with cession of territory.
The Treaty of St. Germain. A Documentary History, Hoover War Library
Publications No. 5 ( 1935).

Similar provisions existed in the Treaty of Lausanne, being the

Peace Treaty between the Allied and Associated Powers on one hand
and Turkey on the other, signed on July 24, 1923. Article 23 of this
treaty grants a right to opt for nationality for those persons over 18
years of age who are resident in a territory which under the treaty is
detached from Turkey and who differ in race from the majority of the
population. These three treaties, of Versailles, St. German, and
Lausanne, regulated the dismemberment of three Empires, the
German, Austrian, and Turkish, and the movement of populations
connected with it. The concept of a genuine link between the national
and his State, whether the tests be domicile, residence or birth, has
accordingly, a long history behind it.
Nevertheless, a number of recent writers on State succession and
nationality base their view that a successor State may be limited in its
discretion to extend its nationality to persons who lack a genuine link
with the territory on the decision of the International Court in the
N ottebohm case. Zemanek, in his Hague lectures on "State Succession
after Decolonization,"46 adopted the view, expressed by many writers,

"it is the prerogative of a sovereign State to determine by

itself whom it claims as its nationals, although in order to be
valid vis-a-vis another State, the claim must rest on a 'genuine
link' between the claiming State and the individual

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

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.
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."

sovereignty, and who do not return to it soon after. 47 Brownlie states


"the rule probably is that, unless they have or acqmre a

domicil in the transferred territory, they do not acquire the
nationality of the successor State. This, it seems, is the British

Some writers have favored the test of birth on the territory

transferred as proof of a "genuine link." 49 In conformity with this a
successor State is entitled, under international law, to impose its
nationality automatically on those inhabitants of the territory who were
born on it, and third States are under an obligation to recognize it.
This, however, is not generally accepted.

2.4 The Duty Not to Pass Arbitrary Laws

The third possible limitation on a successor State's competence to

determine who are its nationals, in addition to the practice of granting
a right of option and not imposing nationality on those who have no
genuine link with the territory, is the duty not to pass arbitrary laws.
It must be understood that prohibition of an "arbitrary" use of
sovereign competence in matters of nationality sets an international
standard, by which the successor State's use of its new, or extended,
sovereign powers may be limited. The content of the term is, although
imprecise, one that is susceptible of some concrete meaning. We have
already noted use of the term in the arbitrary deprivation of
An arbitrary change of nationality on the transfer of territory may
have a number of different meanings. It may mean that the rule that
nationality changes ipso facto with the change of sovereignty has an
element of arbitrariness because, outside the field of State succession,

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."
Brownlie, Principles of Public lntemational Law (4th ed. 1990) 663-64.
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.

changes of nationality without the consent of the individual concerned

may not be valid. Then, if the nationality of the successor State is
granted automatically only to those domiciled or resident on the
transferred territory, those nationals who have their domicile or
habitual residence elsewhere may be rendered stateless. This is in
effect a withdrawal of nationality and may, on the basis of the
Universal Declaration of the Rights of Man, 1948, and subsequent
human rights conventions, be arbitrary in nature and, consequently,
invalid. For following the provisions of human rights conventions the
onus is on States not to create stateless persons. Similarly, ethnic
options based on the subjective test of "race," for example, may be
arbitrary in the sense that they are contrary to the prohibition of
discrimination based on "race, sex, language, or religion," as
expressed in Article 1(3) of the Charter and subsequent international
Arbitrary in the context of State succession may have a special
meaning. Accordingly, the primary purpose of the law of State
succession is to ensure social and political stability at a time when the
transfer of sovereign power is conducive to instability. Stability in this
case may mean the refusal of a right of option of nationality, contrary
to humanitarian considerations.
Lastly, action that may be arbitrary when undertaken by a State
acquiring territory from another by cession or incorporation or
annexation, may not be arbitrary when undertaken by a newly
independent State whose sovereign status has evolved from that of
dependence on a colonial power.

2.5 Harvard Research Draft on Nationality!"

The Harvard Research Draft on Nationality may be quoted here
as showing the practice recognized at the time. Article 18(a) runs as

"18(a). When the entire territory of a State is acquired by

another State, those persons who were nationals of the first
State become nationals of the successor State, unless in
accordance with the provisions of its law they decline the
nationality of the successor State."

23 A .J.I.L . ( 1929) 26.

The rule is expressed as automatic collective naturalization by the

successor State of all the nationals of the predecessor State in cases of
total succession. In the Comment to this Article, the Reporter, Richard
W. Flournoy, pointed out that the successor State's nationality was
extended to all the nationals of the predecessor State, and not only to
the inhabitants of the territory, so as to avoid cases of statelessness.
The right to grant an option of nationality, or not to do so, is
expressly accorded to the law of the successor State. Consequently, it
was understood that no such right of option existed in international
law. In this case, however, the predecessor State ceased to exist so the
traditional choice of nationality, between successor and predecessor
State, did not arise.
Article 18(b) provides:

"When a part of the territory of a State is acquired by another

State or becomes the territory of a new State, the nationals of
the first State who continue their habitual residence in such
territory lose the nationality of that State and become
nationals of the successor State, in the absence of treaty
provisions to the contrary, unless in accordance with the law
of the successor State they decline the nationality thereof."

This is a statement of the rule that the nationality of the successor

· State extends automatically to the nationals of the predecessor State
who remain resident in the ceded or newly independent territory. The
nationality of the predecessor State is lost simultaneously. This is the
rule of international law. The successor State may by treaty, that is to
say by an expression of its sovereign will, agree not to impose its
nationality, or may, by its internal law, agree to grant a right of option
to the inhabitants to accept or decline the new nationality. The
Reporter commented on the paragraph in this way:

"It might be said that international law assumes that the

successor State confers its nationality upon the nationals of
the predecessor State residing in the annexed territory at the
time of the annexation." 51

It may be noted that the Harvard Draft states the rule with more
hesitation than the sources cited. It is understood that "international

Ibid. at 61 .
" 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.

2.6 International Law Commission

In 1949, the International Law Commission listed the topic

"Succession of States and Governments" among the fourteen topics
chosen for codification. In General Assembly Resolution 1686 (XVI)
of December 18, 1961, the topic was recommended to the I.L.C., and
the Commission set up a Sub-Committee on the Succession of States
and Governments under the chairmanship of Manfred Lachs to
consider the matter and report to the Commission. This report was
discussed and debated at the 1963 session of the I.L.C. 52 At this
session it was decided to undertake, first, a study of State succession
in respect of treaties. State succession and nationality, as a subject of
study was considered, but no decision was taken about its inclusion.53
The Commission's work on succession and treaties was submitted to
the U.N. Conference on Succession of Sates in respect of Treaties. Its
first session was convened in Vienna from April 4 to May 6, 1977,
and its work culminated in the Vienna Convention on Succession of
States in Respect of Treaties, done at Vienna on August 23, 1978.

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.
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)
. . 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.

The subject of State succession in respect of matters other than

treaties was on the Commission's agenda for twenty years. The
Commission began consideration of draft articles dealing with
succession in respect of State property in J973. In J979, it was agreed
that the draft articles should be limited to property, archives and debts.
At its 33rd session in J981, the Commission adopted the final text of
its draft articles, and pursuant to General Assembly Resolution 36/113
of December J0, 1981, the United Nations Conference on this topic
convened in Vienna from March 1-April 8, 1983, and adopted the
Vienna Convention on Succession of States in Respect of State
Property, Archives and Debts on April 8, 1983,54 by fifty-four votes,
with eleven votes against and eleven abstentions. As of December
1992, no State had ratified the Convention or acceded to it, whilst six
States had signed the Convention. Thus, as of June 1992, neither
convention on State Succession was in force.
The fact that these Conventions have received so little support
from the community of States highlights the differing views as to the
international law of State succession in general, and casts doubt on the
existence of any customary international law rules that may be
applicable. Nor has the topic of nationality and State succession
reached the stage of being considered by the I.L.C.• but the work of
the Commission on State succession is relevant to it in a number of
ways. Of particular importance is the treatment of the succession of
States in respect of treaties as regards the application of the "clean
slate" principle in most instances and as regards the separation of
categories of State succession into three.55
In the Vienna Convention on Succession of States in Respect of
Treaties, 1978, succession is dealt with under three different headings:
Succession in Respect of Part of Territory (Part II); Newly
Independent States (Part III); and Uniting and Separation of States

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.
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.

(Part IV). In the work of the Commission great stress was laid on the
views of newly independent States. It considered that

"[t]he case of those new States, most of which emerged from

former dependent territories, is the commonest form in which
the issue of succession has arisen during the past 25 years and
stress laid on it by the General Assembly's recommendations
needs neither justification nor explanation at the present
moment in history."56

The preparatory work for the Vienna Convention was undertaken

during the decolonization process, which the Commission considered
now virtually concluded.57
In its discussion of the draft articles for the 1978 Convention the
Commission dealt at some length with the principle of universal
succession and the clean slate rule. 58 The universal succession rule was
postulated on the basis of the Roman law of universal succession by
the classical writers on intemationallaw. 59 According to the Roman
law, the rights and duties of the deceased passed to his successor in
toto. This was found analogous to the succession of, first, sovereigns,
and then States. 60 The clean slate principle, on the other hand, was in
the view of many writers from the end of the last century the principle
applicable to new States, where there has not been a continuous legal
development. A change of sovereign indicates a collapse of the legal
order, a break in legal continuity, so that the new State starts with a
clean slate. In this view, treaty relations are established by a positive
act of the new sovereign will.
In Part III, Article 16 of the 1978 Vienna Convention the "clean
slate" principle was applied in most cases as follows:

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.
75 A .J.l.L . (1981) 993.
2 Y .B.l.L .C. (1974) Part I.
supro, th'ts chapter, sectton
. 2.1 "State Sovereignty."
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.

"A newly independent State is not bound to maintain in force,

or to become a party to, any treaty by reason only of the fact
that at the date of the succession of States the treaty was in
force in respect of the territory to which the succession of
States relates."61

In its discussion of the clean slate principle the Commission referred

to modem treaty practice which confirms the right of a newly
independent State to achieve the maximum continuity in its treaty
relations. The Commission concluded that the clean slate principle

"does not, in any event, relieve a newly independent State of

the obligation to respect a boundary settlement and certain
other situations of a territorial character established by
treaty. " 62

The present application of the clean slate principle, as evolved in

the practice of newly independent States, presupposes a greater legal
continuity than the principle originally envisaged. 63 Part IV, however,
is drafted on the principle of the continued legal personality of the
State, with exceptions added. 64 For example, pursuant to Article 31 (I),

"[w]hen two or more States unite and so form one successor

State, any treaty in force at the date of the succession of
States in respect of them continues in force in respect of the
successor State."

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.

U.N.J.Y. (1978) 106-21.
1 Y.B ./.L.C. (1974) Part 1.1, at 169; Sinc1air, loc. cit. 159.
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.
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.

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:

"The present articles apply only to the effects of a succession

of States occurring in conformity with international law and,
in particular, the principles of international law embodied in
the Charter of the United Nations."

This would seem to render many of the former modes of State

succession, such as forcible annexation, incorporation or conquest, and
hence, possibly, peace treaties, irrelevant in modern practice. Also, in
the preamble the States Parties to the present Convention note "that
the principles of free consent, 65 good faith and pacta sunt servanda are
universally recognized." On the other hand, Article 7 of the
Convention applies "only in respect of a succession of States which
has occurred after the entry into force of these articles except as may
be otherwise agreed."
In the light of the work of the I.L.C. on the succession of States,
and of the 1978 Convention, and bearing in mind the earlier doctrine
and practice on the succession of States and nationality, it is now
proposed to look at some recent practice on the subject. Reference to
treaty practice here includes the municipal laws and regulations giving
effect to the treaty provisions or having the effect of treaty practice,
being simultaneous legislation by the authorities of the predecessor
and successor States.


3.1 Right of Option Granted by Treaty

A form of option of nationality has been granted in a number of

treaties concluded since 1945. These have been included in treaties
ceding territory to another state, and also in treaties, and national

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.

legislation, providing for an option of nationality after a new State has

gained independence.

3. 1. 1 The Italian Peace Treaty, 1947

Numerous cessions of territory were effected by the Peace Treaties

concluding World War II. The Treaty of Peace between the Allied and
Associated Powers and Italy/"; signed at Paris on February 10, 1947,
provided, inter alia, for the cession of territories by Italy to France,
Yugoslavia, and Greece. Articles 19 and 20 of Section II of this
Treaty deal with "nationality, civil and political rights" and contain
some points of interest here.
Article 19( I) of the Peace Treaty provides that:

"Italian citizens who were domiciled on June 10, 1940, in

territory transferred by Italy to another State under the present
Treaty, and their children born after that date, shall, except as
provided in the following paragraph, become citizens with full
civil and political rights of the State to which the territory is

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

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.

of language, it may be noted, is dependent on the will of the

individual, denoting some form of choice.
Kunz has described this form of option as a "profound
innovation."6 8 It is also a "genuine option" in the sense that the
optants are granted a choice between retaining the nationality of the
ceding State or acquiring that of the successor.
The option of the husband does not constitute an option on the
part of the wife, but the option of the father, or, if the father is not
alive, of the mother, automatically includes aJI unmarried children
under the age of eighteen.69
Where the right of option is exercised, the optant retaining Italian
citizenship "shaH not be considered to have acquired the citizenship
of the State to which the territory is transferred." The successor State
is deemed never to have extended its nationality to those opting to
retain Italian citizenship. In the Paris Peace Treaties a lacuna existed
as to whether the exercise of an option had retrospective effect. In the
case of Ladislaus Chira Fils v. Czechoslovak State, however, the
Czecho-Hungarian Mixed Arbitral Tribunal held that the claimant had
never lost Hungarian nationality when he opted for it after the cession
by Hungary to Czechoslovakia of the territory on which he was
Article 19(3) provides:

"The State to which the territory is transferred may require

those who take advantage of the option to move to Italy
within a year from the date when the option was exercised."

This is in accordance with the Acquisition of Polish Nationality case,

Article 20( 1) takes the entitlement to an option further by granting
to Italian citizens domiciled on Italian territory the right to
Yugoslavian nationality if such person's "customary language" is one
of the Yugoslav languages and if the Yugoslav authorities accept their
request. In an Exchange of Letters annexed to the Accord between

See Kunz, "Nationality and Option Clauses in the Italian Peace Treaty, 1947,"
in 41 A .J.I.L. (1947) 622- 31.
Ibid. at 627.
Ibid. In earlier practice the option of the husband included that of the wife.
5 A .D . No. 149.
Supm, this chapter, text at note 38.

Italy and Yugoslavia of December 18, 1954,72 the President of the

Yu~osla:. deleg~tion allowed the exercise of the right of option for
ltal_1an Citizenship up to March 31, 1955, and agreed to recognize that
optiOn. Italy agreed likewise.
The Austrian South Tyrol remained Italian, but in Annex IV of the
Halo-Austrian Agreement, Italy pledged herself "to revise, in a spirit
of equity and broadmindedness, the question of the option for
citizenship resulting from the 1939 Hitler-Mussolini Agreement."73

3. 1.2 Other Peace Treaties

Other Peace Treaties proceeded on different line. In the Japanese

Peace Treaty, the nationality of the inhabitants of Korea and Formosa
was treated as that which it would have been had Japan never
occupied those territories.74 The practice of the Soviet Union was to
expel the inhabitants of the ceded territory.75

Which came into force on February 10, 1956. 284 U.N.T.S. 239. See
Materials etc. 72-75.
See Kunz, np cit. (1947) 625.
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.
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."

3. 1.3 Treaties of Cession

France concluded two treaties with India ceding territories under

French sovereignty. In the Treaty of Cession of the Territory of the
Free Town of Chandemagore between India and France,"' France
transferred to India, in full sovereignty, the territory of the Free Town
of Chandemagore. Article II provides that French subjects and citizens
of the French Union domiciled in the territory on the day on which
sovereignty is transferred shall become nationals and citizens of India.
Domicile in the transferred territory on the critical date is thus the
criterion for the automatic acquisition of the nationality of the
successor State. Under the same article this is made subject to Article
III which grants to these persons (mentioned in Article II) the right to
opt for the retention of their nationality "by a written declaration made
within six months following the coming into force of the present
Those who exercise this right to retain their nationality and "who
desire to permanently reside or establish themselves in any French
territory" outside the Free Town of Chandemagore shaJI "on
application to the Government of the Republic of India" be permitted
to transfer and remove part or all of their assets and property as they
may desire and as may be standing in their names on the date of the
coming into force of this Treaty (Article IV).
Certain omissions may also be noted. The right of option is
granted to all of those defined in Article II regardless of age or sex.
It is not stipulated that those who retain their French nationality may
be deemed never to have lost it. The use of the word "retain,"
nevertheless, must be understood in that sense. Lastly, no provision is
made requiring the removal of those opting to retain their nationality.
The wording of Article IV would here indicate a departure from
ear1ier practice as it expressly grants those remaining French the right
to remove or transfer assets or property "as they may desire."
Some variation is found in the Treaty of Cession of the French
Establishments of Pondicherry, Karikal, Mahe, and Yanam, between
India and France, signed at Delhi ·on May 28, 1956.77 Article 7
provides for the acquisition of Indian nationality at the date of the
transfer of sovereignty from France to India for those French nationals

Signed at Paris, on February 2, 1951, 203 U.N.T.S. 155, it came into force on
June 9, 1952. Materials etc. 77.
Indian Yearbook of lntemationol Affairs, 1956 at 175; Materials etc. 86.

who are born in the territory ceded and domiciled therein when the
successiOn takes place. This is made subject to Article 5, under

"The person referred to in the previous article may, by means

of a written declaration drawn up within six months of the
entry into force of the Treaty of Cession, [at which time the
territory was to be ceded to India 'in full sovereignty' ] choose
to retain their nationality. Persons availing themselves of this
right shall be deemed never to have acquired Indian

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.

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.

The principle of a free choice of nationality was enshrined in

Article 4 of the Agreement between Indian and France for the
Settlement of the Question of the Future of the French Establishments
in India, signed at New Delhi on October 21, 1954:

"Questions pertaining to citizenship shall be determined

before de jure transfer takes place. Both the Governments
agree that free choice of nationality shall be allowed."

3. 1.4 Treaties Granting Independence

3. 1.4. 1 Vietnam

The treaties just discussed concerned the cession of territory of a

limited extent. Nor were the populations concerned so numerous
comparing those of the ceding with the successor States. The
Nationality Treaty between France and Vietnam80 dealt, on the other
hand, with a problem of very great complexity as was acknowledged
in the preamble to the treaty. The problems related to the change in
political status of the State of Vietnam from its former colonial status,
resulting from the Accords of March 8, 1949, and the conventions
subsequent to it. The situation before the parties to this Treaty
involved the separation of territory, in that Vietnam ceased to be a
French colony and severed all constitutional ties with Metropolitan
France.81 The problem was how to assign to one nationality those
persons who had a link with both.
The determination of nationality under this treaty is stipulated in
a treaty containing twenty-two articles of some complexity. The basic
separation is between those French subjects of Vietnamese origin and
those not of Vietnamese origin.82 Pursuant to Article 2, French

Indian Yearbook of International Affairs, 1954 at 368. It came into effect on
November I, 1954. Material.f etc. 80.
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.
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.
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."

nationals retain French nationality who are not of Vietnamese origin,

and are domiciled in South Vietnam ("Cochin Chine") and the ancient
concessions of Hanoi, Haiphong, and Tourane at the date of transfer
of these territories. This applies even if they have not effectively
established a domicile outside of Vietnam. Under Article 3,
Vietnamese nationality is extended to all those former French subjects
who are of Vietnamese origin and the concessions referred to in
Article 2 regardless of their residence on March 8, 1949. Articles 4-15
then proceed to allow a right of option for either French or
Vietnamese nationality to various categories of persons having
connections with both countries, and their wives and dependents.
This right of option is based more on the principle of the effective
link, "on the social bond of attachment,"83 rather than on that of any
objective racial, or even linguistic, connection. 84 For example, persons
of Vietnamese origin, more than 18 years of age at the date of the
entry into force of the present Treaty who acquired French citizenship
prior to March 8, 1949, retain their French nationality, with the right
to opt for Vietnamese nationality. If such persons acquired French
nationality subsequent to that date, they have Vietnamese nationality
with the right to opt for French nationality (Article 4). Those persons
born of a French father and a Vietnamese mother take French
nationality with a right to opt for Vietnamese nationality (Article 6},
and, conversely, for those born of a Vietnamese father and French
mother (Article 10). Where under Articles 2 and 7 the husband and
wife would be of different nationalities, the wife is given the right to
opt, and this right is not subject to the authorization of her husband
(Article 11 ). Other articles refer to minors.
This right of option must be exercised by a signed declaration, in
triplicate, to be sent to the competent administrative authority in either
country. Theses authorities are then designated in the treaty (Article

The term "subject" refers to the common status of the French Empire.
Nottebohm case. I.C.J. Repmts 1955 at 23.
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.

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

Another example of an option of nationality granted by treaty on

the attainment of full sovereignty by a former dependent territory is
contained in The Netherlands-Indonesia Convention of December 27,
1949, relating to the Status of Citizens Resulting from the Transfer of
Sovereignty from The Netherlands to the Republic of the United
States of Indonesia.86 The intention of the parties was here to allot the
"indigenous population" of Indonesia to Indonesian nationality.
Accordingly, persons born or resident in Indonesia at the date of
independence, December 27, 1949, who did not belong to the
indigenous population were granted a right of option. Article 5
provided that persons who immediately before the transfer of
sovereignty are of age and are "Netherlands subjects" of foreign origin
and who were born in Indonesia or reside in the Republic shall
acquire Indonesian nationality but may, within a time limit stipulated,
opt against Indonesian nationality. Burma

.The Bur~a In~ependence Act, 1947,87 provides an example of an

option of nattonahty granted under municipal legislation, and not by
treaty. On January 4, 1948, Burma became an independent country

. ~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.
.. 6? U.N.T.S. 272 et seq. Draft Agreement Concerning the Assignment of
87 Public General Acts and Measures 1947 II Geo 6 Ch
• ' . , ap. 3·, M arenas
. I etc.
145 e t seq.
-- - - --


and left the British Commonwealth. Residence on the transferred

territory was not the main criterion in establishing a connection with
the new State. Affinity in the sense of belonging to any of the
indigenous races of Burma was the basis for acquisition of Burmese
nationality. Under the Act persons who were British subjects
immediately before Independence ceased to be British subjects if they
were born in Burma or whose father or paternal grandfather was born
in Burma, and women who were aliens at birth and became British
subjects by reason only of their marriage to any such person.88 An
exception to this rule of automatic naturalization were those persons
who were born in Burma or whose father or paternal grandfather was
born in Burma, but who immediately before the date of independence
were domiciled or ordinarily resident outside Burma but within the
territory of the Crown. They were granted the right to retain British
Section J, subsection 2 of the Burma Independence Act, 1947,
regulated the exercise of this option. In order to have effect the optant
had to make a declaration of his election to remain a British subject,
register it in the prescribed manner, as defined, and within a period of
two years from the date of independence. If these conditions are
complied with the person so electing shall be deemed never to have
ceased to be a British subject.
These are examples of State succession where a right is granted
to opt between the nationality of the predecessor and the successor
States. A certain practice may be discerned. An option is granted to
all the inhabitants of a smaller territory, but in cases of former
dependent States achieving independence the option is granted only to
those who are not totally connected with the new State by reason of
birth, indicating connection with the original population, and domicile
or residence. This option must be exercised by formal act according
to a prescribed procedure and within a certain time limit, varying from
six months to two years. Where this option is exercised it is
understood to act retrospectively.

3.2 New States and the Effective Link

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

Ibid.. First Schedule.

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

3.2. 1 United Kingdom Practice

In United Kingdom practice the transfer of power to those

territories remaining within the Commonwealth was, as a rule, carried
out under United Kingdom legislation and executive orders. An Act
of Parliament excepted the new State from the application of U.K. law
and a Royal Order-in-Counci I regulated the mode of transfer of power.
Nationality questions, then, are left to the competence of the
governmental authorities of the States concerned. In the new States
citizenship was regulated by the Constitution and by nationality
legislation, or only by the latter. After 1948, U.K. nationality was
regulated by the Nationality Act, 1948, then the Nationality Act, 1981,
after January 1983.
The legislation of the new States of the British Commonwealth
shows a certain uniformity. 90 The qualifications for citizenship are the
application of the jus soli and jus sanguinis tests with the possession
of the status of a citizen of the United Kingdom and Colonies at the
date of independence, the intent being to distinguish between the
original inhabitants of the territory and those who had moved in
during the colonial period. 91 In many instances a person with a

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.
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

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.

"connection" or "substantial connections" is defined as one born in the

territory or whose father was born in the territory and who had been
registered or naturalized in the territory and ordinarily resident there. 91
In some cases ordinary residence in the territory at the date of
independence is enough qualification to entitle subjects of the U.K.
and Colonies to register as citizens. 93 The result of this legislation is
as a rule the avoidance of statelessness or double nationality. In one
case at least provision is made for deprivation of the nationality of the
new State for persons who acquired "by registration, naturalization or
other voluntary or formal act (other than marriage)" the citizenship of
any other country.94
The nationality legislation of the new States which became
independent and equal members of the British Commonwealth shows
a certain uniformity. The attribution of nationality is not, as we have
seen, based on racial or ethnic lines and in this way contrasts with the
legislation of those new States which became independent after the
close of World War I. It is, rather, based on social attachment to the
bulk of the population, or is possibly even evidenced by residence at
the time of independence, as in Kenya. Those persons who do have
a close connections with the new State become automaticaHy citizens
of the new State on the day of independence, with a right of option
for those who have close connections with the United Kingdom or
with another colony or dependency of the Crown.
The British Nationality Act 1981 continues this practice by
abandoning the common status of British subject, recognized by the
1948 Nationality Act. British citizens are those with a close
connection with the U.K.
Two recent examples may be cited. The British position was
stated during a debate in Committee of the House of Commons on the
New Hebrides Bill, in March 1980. The Parliamentary Under-
Secretary of State, Foreign and Commonwealth Office, Mr. Richard
Luce, stated, i.a.:

"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

See, e.g .• Constitution of Botswana. Chapter III, Mate rials etc. 137, and
Constitution of Malawi. Chapter I. Materials etc. 301.
See, e.g.. Constitution of Kenya, Chapter I, Mate rials etc. 254.
Constitution of Guyana, Chapter III, Mate rials etc. 203.

those who become citizens of the new State. This is subject

to the usual saving which permits those with close
connections with the U.K. or remaining dependency - for
example, by birth, descent, naturalization or registration - to
retain their status as citizens of the U.K. and Colonies even if
they become citizens of the new State."

A form of option is thus granted in British practice, but it may be

called a limited or partial option which is not, it must be understood,
extended to every inhabitant of the new State at the date of
independence. Even where the right of option is exercised it does not
have the effect of removing the optant from the operation of the laws,
including nationality laws, of the new State.
The right of option was also central to the dispute between the
United Kingdom and Argentina over the Falkland Islands. This is a
dependency of the British Crown, but a claim to the islands based on
historic title has over the years been made by Argentina. In 1965 the
United Nations, at the insistence of Argentina, urged the two countries
to sort out the dispute. It is noteworthy that the two parties were to
bear in mind the interests of the population. The local population
chose to remain British, and the dispute led to armed conflict when on
April 2, 1982, Argentine forces invaded and occupied the Falkland
Islands. Under the new British Nationality Act 1981, British
citizenship is extended to the local population of the islands by a
special provision.96

3.2.2 French Practice

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

51 B.Y.I.L. (1980) 398.
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
. 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
· .
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

Togo and Cameroon chose not to join the Community. See Zemanek, op cit.
(1965) 274 l'tuq.
Su Lagarde, La Nmiontlliti Franraise { 1975) 189- 216, Chapter VI on cessions
of territory and the accession of territories to independence.
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.
See, infra, this chapter. text at note 178.

Togolais" which is acquired by persons who have constantly and

publicly acted as Togolese and who have been taken as such by the
population and authorities of Togo.
According to French municipal legislation dual nationality was
permitted. The French Law of July 28, 1960 permits French nationals
of Metropolitan origin residing in a new State to keep their French
nationality even if they acquire the nationality of the new State, and
permits, under certain conditions, persons originating from the new
States to reclaim their former French nationality :oz
Service in the
French army, inter alia, entitled the persons to French nationality,. 03
In treaty law the criterion for establishing a connection with the
new State is not residence alone, nor is it race, but a mixture of place
of birth, place of residence, and connection, often by parentage, with
the population, or populations of the new State.

3.2.3 Surinam

One recent treaty, however, seems to base connection more

particularly on residence. This is the Treaty on Nationality between
The Netherlands and Surinam, signed at Paramaribo on November 25,
1975, the date of Surinam's independence. 104 On January 5, 1972, a
Royal Commission was set up in the Netherlands by Royal Decree to
prepare alternatives to the present constitutional relationship between
The Netherlands, Surinam, and The Netherlands Antilles. The
relationship between the Netherlands and Surinam were then treated
separately for political reasons. As regards nationality, the
Commission was faced with the problem of who would become a
national of Surinam when that country became independent. In the
draft proposed by the Commission, Surinamese nationality was to be
acquired by Dutch nationals having completed their 18th year who fell
into one of the three following groups:

Zemanek, op. cit. (1965) 275.
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.
Tractatenb/ad 1975, No. 132.

(1) those born in Surinam and resident there at the time of

(2) those born in Surinam to a father or, if paternity cannot be
proved, to a mother also born there.
(3) Those who were born outside Surinam to a father or, if
paternity cannot be legally proved, to a mother born in
Surinam and who, in addition, were residing in Surinam at the
moment of independence.

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

3.2.4 Singapore

An initial grant of nationality had also to be made by the

governments of those new States that have achieved sovereign
statehood through secession, or separation, from what was previously
a larger State that had itself gained independence as a "newly
independent State" in the postcolonial context. The successor state has
here had to determine to whom to attribute its nationality without the
aid of a devolution agreement. Singapore and Bangladesh are
examples of this, where complex issues of ''substantial connection"
have had to be settled. The problems faced in the drafting of
nationality legislation by these two States may have some similarity
with those faced by the successor States of the Soviet Union after

105 Professor Maarten Bos, a Membe r of the c ommtsston, . . argued agamst .

dropping those in the second category. Not only, in his view, did this violate the
notion of the "genuine connection," as expressed in the Nottebohm case, I.C.J.
ReportJ 1955 at 23, but it was also a disservice to Surinam. The new State of Surinam
had at independence a population of about 320,000, many of whom were unskilled,
whereas the Netherlands had a population of between 13 and 14 million in an area
less than one quarter of one size of the territory. Further, it was not discrimination to
accord normal, nonprivileged, treatment to those Surinamese who wish later to acquire
Netherlands citizenship on the basis of five years residence. "Surinam's Road from
Self-Government to Sovereignty," 7 N. Y .l.L . (1976) 131 at 146-149. See also this
chapter, section 4.3 infra.

December 1991, the Czech and Slovak Republics after January 1,

1993, and the former Yugoslav Republics after January 1992.
Certain aspects of the history and characteristics of Singapore may
be noted, of relevance to its nationality legislation. It is an island with
a population of about 2.5 million inhabitants, with four official
languages (Malay, Mandarin, Tamil, and EngJish), and a multiracial
and multireligious population. 106 Also, the island-State is
overpopulated. Historically, Singapore had ties with Malaya and the
British Empire, and during the Second World War it was occupied by
Japan from February 1942 until September 1945. In September I 963,
as a result of the Malaysia Agreement, in which the United Kingdom;
the Federation of Malaya, and the Borneo States participated,
Singapore became a constituent part of the newly created nation of
Malaysia. 107 This association with Malaysia lasted only until August
9, 1965, when Singapore seceded amicably to become an independent
State, as effected through the Independence of Singapore Agreement
of August 1965. 108
When Singapore became fully independent in 1965, pre-
independence nationality legislation did exist, and hence the Republic
of Singapore Independence Act, 1965, reaffirming the separation of
Singapore from Malaysia could refer, inter alia, to the provisions of
the Malaysia Constitution on citizenship. The present legislative
enactments on nationality are contained in the Constitution and in
implementing Citizenship Rules.
The attribution of nationality by birth on the territory of the State
as provided in I 957, that is, by the jus soli, was by preindependence
legislation made subject to the proviso that one of the parents was a
Singapore resident or citizen. This was amended in 1967 to make
acquisition of Singapore nationality by birth possible only if one
parent was a citizen of Singapore. 109 The Government, however, can
exercise its discretion in determining attribution of nationality by

See, in general, Sornarajah "Nationality and International Law in Singapore,"
in Ko Swan Sik ,ed., Nationality and lntemational Law in Asian Perspective (1990)
Ibid. at 425. For text of the agreement, see 2 I.L.M. (1963) 816.
See 4 I.L.M. (1965) 932.
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.

waiving the additional requirement, where it considers it "just and

fair" to do so. In this way, whereas there is no residual rule providing
for the application of the jus soli principle if otherwise an individual
would be stateless, there is this procedure available for preventing
specific cases of statelessness. Two groups are expressly excluded
from this: where the father of the person is a diplomat of a foreign
State stationed in Singapore, a rule of general international law, but
also where the person is born of an enemy alien father and the birth
has occurred when Singapore was under occupation by the State of the
enemy alien. 110
For purposes of the attribution of nationality by birth, the genuine
link is also shown by descent, the application of the jus sanguinis
principle, for persons born outside the territory. Article 122 of the
Constitution provides that such a person shall be a Singapore citizen
if at the time of his birth his father is a citizen by birth or by
registration. To this there are two provisos: that the birth be registered
at the Registry of Citizens or at a diplomatic or consular mission of
Singapore and, secondly, where the father is himself a citizen by
registration, the person would not acquire another nationa1ity jure soli.
The original attribution of nationality jure sanguinis is thus clearly
limited, by applying to only one generation of descendants, and by not
applying in cases where a stronger connection, jure soli, takes
Provisions on the acquisition of Singapore nationality by
naturalization were not included in the 1963 Constitution, and the
Singapore Independence Act 1965 enjoined the continued applicability
of the relevant provisions of the Constitution of Malaysia, as part of
Singapore law. By an Amendment to the Constitution of the Republic
of Singapore in 1985, specific rules were adopted, but the grant of
citizenship on application by the procedure of registration remains the
administratively simpler way of granting nationality. Here it may just
be noted that the requirement of "elementary knowledge" of the
national language (here understood as Malay) in the case of
registration, becomes "adequate knowledge" in the case of
naturalization, and this requirement was not contained in the initial
grant of national status. Only permanent residents may become

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 .

Citizens by registration. 111 How far the Government's discretion to

grant nationality by naturalization or registration has been curtailed by
the Citizenship Rules, 1985, would appear to be as yet uncertain.' 12

3.2.5 Bangladesh

Bangladesh is another example of a State that achieved

independence by separation or secession. Between 1948 and March
26, 1971, Bangladesh formed a part, known as East Pakistan, of the
Federal State of Pakistan, itself one of the successors to the British
Dominion of India. Unlike the situation in Singapore, this secession
was not achieved amicably, but as a result of a secessionist movement,
and backed by the Indian army.
At the time of independence the attribution of Bangladesh
nationality was determined under an Administrative Order of the
Government. Mere residence or presence of a person within the
territory of the then Province of East Pakistan on March 25, 1971, was
considered to be the primary criterion for the nationality of
Bangladesh, regardless of any other requirements. 113 However,
distinctions were made in the Administrative Order between Bengalees
and non-Bengalees. This was made on a racial basis: the Bengalees,
on the one hand, being the indigenous people of the territory of
Bangladesh while the Biharis, on the other hand, were people who had
fled to East Pakistan at the time of the partition of India, in 1948, into
the two States of India and Pakistan. Following the birth of
Bangladesh these non-Bengalees were given the choice of retaining
the nationality of Pakistan and returning to it, or of remaining in
Bangladesh and accepting its nationality. Many remained in
Bangladesh. About sixty thousand others chose to retain Pakistan
nationality. These people were registered in a repatriation list of the

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.
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.

- ------ - --


International Red Cross and housed in Red Cross refugee camps in

Dhaka, to await repatriation to Pakistan. 114
The problem in this situation has been that the decision of the new
State of Bangladesh permitting a right of option for those inhabitants
of its territory on the date of independence who had closer
connections with the predecessor State, did not ipso facto operate to
reinstate, or maintain, their ties with what remained of the Federation
of Pakistan, that is to say, the former Province of West Pakistan.
Thus, the repatriation of non-Bengalees wishing to return to Pakistan
has been dependent on the consent of the Pakistan Government which
was in fact given at a meeting of representatives of the two
governments in Dhaka in December 1985, and with the assistance of
the International Red Cross. Islam refers to the preference of the
Pakistan Government, to accept them by installments, "owing to
constraints on its resources." 115
One other exception may be noted to the basic rule that all those
resident in the territory of Bangladesh at the attainment of
independence are Bangladesh nationals. This exception arises as a
disqualification in the following manner. Apart from the administrative
measures just referred to, the Bangladesh Citizenship (Temporary
Provisions) Order, 1972, largely governs the status of persons as
Bangladeshis on March 26, 1971. This provides, inter alia, that a
person qualifying for initial Bangladesh nationality by residence, or by
birth on the territory, or whose father or grandfather was born there,
may not be otherwise disqualified from being a citizen of Bangladesh
by any law for the time being in force. One category of persons
considered to fulfill the requirements for disqualification, and hence
denied citizenship, were those who had collaborated with the Pakistan
Government and army against the Provisional Government of
Bangladesh in exile in India and its liberation forces during the
Bangladesh War of Independence. 116 By Artie Ie 3 of the 1972 Order,
the Government is the final decision-making authority in case of doubt
as to whether a particular person is qualified to be a citizen of

Ibid. at 23-24.
Ibid. at 7-8.

3.2.6 The Federal Republic of Germany and the

Democratic Republic of Germany

In accordance with the Unification Treaty signed in Berlin on

August 31, 1990, the German Democratic Republic ceased to exist as
a State on October 3, 1990.' 17 This occurred with the accession of the
States (Lander) of the German Democratic Republic, including Berlin,
to the Federal Republic of Germany, as agreed in the exercise of their
right to free self-determination. Thus what follows applied to the
situation before the unification of Germany. 118
The succession of East and West Germany de facto is an example
of State succession which stands on its own. This is so despite the fact
that both States were admitted to the United Nations on September 18,
1973. This followed the conclusion of the Basic Treaty between the
Democratic Republic and the Federal Republic of December 21, 1972.
By Article 6 of this treaty, the Federal Republic of Germany agreed
to respect the independence of the Democratic Republic in its internal
and external affairs. At the beginning of I 973, seventeen States
decided to estab1ish diplomatic relations with the Democratic Republic
on the level of Embassy.'"
Nevertheless, despite the normalization of relations between the
two States, the nationality status of the inhabitants of the two
countries remains a matter of disagreement. In the Case of B. V ., the
Federal Constitutional Court held in its judgment of July 31, 1974,
that the Basic Treaty does not supersede the nationality law of the
Federal Republic.uo In accordance with this nationality law there is
the status of German national (Article 16 of the constitution) and the
status of German (Article 116 of the·constitution). This latter category
covers all those persons who possessed German nationality within the
borders of territory of the Gennan State as it existed on December 31,
1937. In its nationality law West Germany thus recognizes the
nationality of a unified Germany.

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.
What follows on immediately here at pp. 288-90 is unchanged from the first
edition of this book.
France, The Netherlands, Luxembourg, Uganda, Costa Rica, Denmark,
Ireland, Spain, Norway, Afghanistan, Italy, Mauritius, Gambia, Ethiopia, Malta, the
United Kingdom, and Nigeria.
See Koenig, "La Nationalite en Allemagne," 24 A .F.D.I. (1978) 237-63.
..~ ----

The Federal Law of October 23, 1961, defines the meaning of

ethnic German affiliation (Article 16). This is possessed by those
belonging to the German people (deutsches Volkstum) on the
condition that this adhesion is confirmed by objective characteristics,
such as language, education, culture. The genuine link requires a
voluntary adhesion.
The common German nationality (Article 116) is maintained for
a number of reasons. The concept of a united Germany is reiterated
in the Constitution (Article I 46) and so to amend the nationality law
would require a constitutional amendment. The judicial concept of
Germany is also upheld by the Allied Powers as concerns Berlin, as
shown in the quadripartite accord of 1972, and, above aiJ, the creation
of a single German Federal Republic nationality applicable to those
having an effective West German nationality would deprive Berliners
of their status of German nationals.
The constitution of October 7, 1949, of the Democratic Republic
of Germany declared that there is only one German nationality
(Article 1(4)). By the Law of February 20, 1967, however, the
Democratic Republic instituted its own nationality.
East German nationals, not including those who became
naturalized in the Democratic Republic after February 20, 1967,
possess a form of dual nationality, being those of the two German
States. By acquiring a domicile in one of the Lander in West Germany
an East German can establish West German nationality. His
completion of military service in East Germany will generally be
recognized in West Germany 111 and so wiJI his acquired rights. It is
also possible that an East German national within the jurisdiction of
a third State may be able to claim the protection of West Germany.
France has refused to recognize East German nationality even
though it has diplomatic relations with that country since 1973. France
has not signed a consular convention containing the so-caJied
"nationality clause" by which the co-contracting Party accepts the
definition of East German nationality as given by East Germany. The
French Government does not deny the status of East German national
to those who claim it but it cannot accept a formula depriving
individuals of the faculty of option when in a third country between
the two allegiances which can be claimed.111

Koenig, op. cit. (1978) at 261 note.
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.

The opposing views of German nationality were stated at the

second German-Polish Colloquium held in 1974. In the discussion on
nationality and diplomatic protection the West Germans invoked
Article 116 of the Constitution and the case law of the claims tribunal
at Karlsruhe! 23 According to this, West Germany owes protection to
those persons who, in 1937, lived within the borders of the "Reich"
as it existed on December 31, 1937. This includes those refugees and
expellees belonging to the German people; and also the spouses and
descendants of these persons. The Poles on the other hand argued for
an effective nationality, based on the Nottebohm case and the 1930
Convention. The issue affected the status of those persons working in
Poland following agreements between Poland and the Federal
The matter in dispute is still unsettled. The Federal German
attribution of a form of dual nationality to those who are in a position
to benefit under Article 116 is not genera11y disputed. The policy of
the Democratic Republic to deprive their nationals of the German
nationality open to them has, on the other hand, been disputed.
This agrees with what, as we have seen, may arguably be called
a rule of public international law that States may not deprive their
citizens of the nationality to which they are entitled by operation of
law. On the other hand, in the case of nationals of the Democratic
Republic resident in the Democratic Republic after the entry into force
of the Law of February 20, 1967, the nationality of which they are
deprived under the law of the Democratic Republic is a second, and
less effective, nationality and they are not left stateless. Further, if the
Democratic Republic is a new State, and does not purport to be the
successor of the unified Germany as it existed before the de facto
partition of that country at the close of the hostilities of World War
II, then it may be entitled to a population and may reject the claim of
another State, here the Federal Republic, to what is in effect their total
population as its nationals. In any event the Federal Republic is
entitled to extend its nationality to all Germans in the manner that it
does when the fact of domicile and social attachment is present. In no
known case has the Federal Republic claimed as its effective nationals
those with an effective Democratic Republican nationality. This may
be another example of permissible dual nationality.

See "Staatsangehorigkeit, soziale Grundrechte, wirtschaftliche Zusam-
menarbeit" ( 1976). especially 13-95.

After the Unification Treaty the question remained as to how far

the Constitutional requirement regarding German nationality has been
replaced. Firstly, the Four-Power war-time rights and responsibilities
relating to Berlin and to Germany as a Whole were terminated by the
terms of the Treaty on the Final Settlement with respect to Germany,
negotiated and signed by the FRO, the GDR, France, the USSR, the
UK, and the USA of September 12, 1990} 14 A united Germany was
restored to full sovereignty within the borders of the states of the FRO
and the GDR (Article 1(I)), the existing borders between Germany
and the Republic of Poland to be confirmed between them in a treaty
that is binding under international law (Article 1(2)).115 Secondly,
whereas the Unification Treaty does contain principles of State
succession in relation to treaties in its Chapter IV, there is no
reference to nationality, and no explicit provisions for the amendment
of Articles 16 and 116 of the Basic Law. Article 19 of the Unification
Treaty, on the Continued Validity of Decisions Taken by Public
Administrative Bodies, provides that:

"Administrative acts of the German Democratic Republic

performed before the accession took effect shall remain valid.
They may be revoked if they are incompatible with the
principles of the rule of law or with the provisions of this
Treaty. In all other respects the rules on the validity of
administrative acts shaH remain unaffected."

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

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.
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).
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.

3.3 New States and Human Rights

New criteria for testing the validity of nationality legislation

drafted, or enacted, by new States have been applied in the aftermath
of the dissolution of the former Soviet Union and the Socialist Federal
Republic of Yugoslavia (SFRY). This situation has arisen for the
primary reason that European, or at least predommant. Iy European 117
organizations or groups of States, namely, the Council of Europe, the
European Community and its Member States, and the Conference on
Security and Co-operation in Europe have had to assess, inter alia,
whether the initial determination of nationality status in these States
is, or has been, in conformity with certain human rights standards, in
particular as regards minorities and discrimination. The tensions
resulting from the proposed nationality legislation of these new States
are by no means resolved, so it may now be helpful merely to indicate
some of the issues involved in two areas in particular, the Baltic
States and the former Yugoslavia, in relation to the topic of nationality
and State succession.

3.3. 1 The Baltic States

The three Baltic States, of Estonia, Latvia, and Lithuania, may be

considered together for two reasons: firstly, they are not clearly new,
successor States, but may also be considered as reemerging, or
revived, States, having been forcibly annexed to the Soviet Union in
1940; and, secondly, their applications for membership to the
Council of Europe were under consideration by the C'ouncil at the
same time. The Baltic States were recognized by the Soviet Union on
September 6, 1991, they were admitted to the Conference on Security
and Co-operation in Europe (CSCE) on September 10, and the United
Nations on September 17 of the same year. 119

The CSCE is an American-European-Asian framework of cooperation since
the Asian ex-Soviet Republics became participating States in J992.
See Warbrick, "Current Developments: Recognition of States," 41 J.C.L.Q.
(1992) 473, 473-75.
119 ldem.

3.3. 1.1 Estonia

The scrutiny of nationality legislation in the three Baltic States by

the organs of the Counci I of Europe began with the presentation of the
Pekkanen-Danelius Report on "Human Rights in the Republic of
Estonia" to the Parliamentary Assembly of the Council on December
17, 1991, a preliminary Report on the subject having been submitted
in August 1991. Bernhardt and Schermers presented their Report on
"Lithuanian Law and International Human Rights Standards" on
January 16, 1992, and de Meyer and Rozakis presented theirs on
"Human Rights in the Republic of Latvia" on January 20, 1992. 130
Each Report was prepared by a Member of the European Court and
the Commission of Human Rights jointly. Meanwhile, the Council of
Europe was considering the problems posed for it by the new
sovereign Republics of Eastern Europe. In particular, the Bureau
reached certain conclusions as approved on April 22, 1992, one of
which was that Articles 3 and 4 of the Statute should be revised by
inserting the conditions that in order to become a Member, the State
in question must be a pluralist, parliamentary democracy and accede
to the European Convention on Human Rights. Both these conditions
corresponded to the practice hitherto. In addition, the Bureau
unanimously considered that accession by the three Baltic States
depended as well on the respect of minority rights. 131
By their mandate Pekkanen and Danelius were

"to make a study of Estonian legislation insofar as it relates

to human rights issues and to state our opinion as to whether
certain laws might create problems in relation to human rights

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

and Consequences," Parliamentary Assembly of the Council of Europe, H.R.L.J. (Vol.

13, No. 5-6 1992) 230-31.

standards as reflected, in particular, in the European

Convention on Human Rights."t.n

Thus, while implementation of human rights in general was considered

satisfactory, comment was especially directed to nationality legislation,
citizenship being an issue with elements affecting principles of human
The basic principle here was stated in paragraph 35 of the Report
as follows:

"As regards the human rights aspects of this problem, it

should first be noted that neither the European Convention on
Human Rights nor any other international human rights
convention recognizes the right to a certain citizenship as a
human right. Consequently, it must in principle be left to each
State to determine the conditions for acquiring its citizenship."

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
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:

"An open question, which is of particular importance and

sensitivity, is how the provisions on acquisition of citizenship
by naturalization will in practice be applied in regard to
members of the Russian minority and other minority groups.
If, for instance, the language requirement receives a strict
application, this could exclude large numbers of persons
belonging to the minorities from citizenship."

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.


" ... if substantial parts of the population of a country are

denied the right to become citizens, and thereby are also
denied for instance the right to vote in parliamentary
elections, this could affect the character of the democratic
system in that county."134

This "democratic system" was then considered in the Jight of the

provisions of the European Convention on Human Rights, and in
particular Article 3 of the First Protocol to the Convention ensuring
"the free expression of the opinion of the people" in the choice of the
legislature, which might thus be put in question. Further
discriminatory aspects of the lack of citizenship were enumerated. It
may be noted that the word "link" is used here in the sense of the link
that exists between citizenship and political rights, and not, as used
above, for the purpose of determining the individual's connection with
the bulk of the population of a new State. Latvia

The mandate from the Council of Europe to the Reporters on

Latvian laws concerning human rights added the words, "with
particular reference to citizenship, cultural rights and the rights of
minorities," and it was especially emphasized "that the question of
citizenship is highly controversial."
Of the three Baltic States, it was in Latvia that the most
problematic demographic changes took place during their fifty or so
years as a Republic of the Soviet Union. Thus, the proportion of the
Latvian community to the total population of the Republic fell from
a little over 75% in 1935 to a little under 52% in 1989. This change
was due to a possible decrease in the Latvian population and, more
particularly, to an influx of Soviet citizens, referred to specifically in
the Report as the Russian, Byelorussian and Ukrainian communities.
Further, the "non-native communities ... have mainly settled and
grown in the urban areas," as noted in the Report, with the result that

134 Pekkanen-Danelius Report, note 130, supra, Tf34 and 36.

135 Ibid. at 244 and 246. The problem of minorities and the problem of
citizenship is dealt with in Part Ill of the Report, at 245-46.

the Latvian community represent only 36.5% of the population of

Riga, and about 13% of that of the next largest c:ty, Daugavpils.
The first enactment of the Latvian Government s Supreme Council
on the citizenship issue, after the reestablishment of its independent
statehood, was contained in a Resolution of October 15, 1991 ..
According to this Resolution

"Latvian citizenship belongs in principle only to those who

held it on 17 June 1940 and their descendants, if they were
resident in Latvia on 15 October 1991 and if they register
before 1 July 1992; if they were not resident on 15 October
1991 or if they are citizens of another State, they may obtain
it at any time on condition that they register and show proof
of permission of expatriation."

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

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 ..
- -- - - ---- --


3.3. 1.3 Lithuania

The Report on Lithuania arose on a similar mandate from the

Council of Europe. Here, too, it was stressed that "A crucial question
in the Baltic States seems to be the acquisition of citizenship by
persons of different ethnic origin than the majority." However, unlike
Estonia and Latvia, around 80% of the present inhabitants of Lithuania
"are of Lithuanian ethnic origin." The Lithuanian government was
thus able to solve its minority problems, for nationality purposes,
without friction, on the basis of Article 3 of the Law on Citizenship
from November 2, 1989. This provided that citizens of the Lithuanian
SSR shall be those persons who were citizens of, or permanent
residents in, the Republic of Lithuania on July 15, 1940, and their
children and grandchildren, or who are permanent residents born on
the territory of the Lithuania SSR and who can provide proof that
they, or at least one parent or grandparent was born on the territory.
Also other persons

"who, up to and including the date of entry into force of this

Law, have been permanent residents on the territory of the
Republic and have here a permanent place of employment or
another constant legal source of support, such persons shall
freely choose their citizenship during two years following the
entry into force of this Law." 139

This provision for an option of nationality follows on the earlier

practice of States, and no objection can be made to it. Nor, the Report
found, could objection be taken to the exclusion of the status of dual
nationality, for

"[f]rom the legal point of view, dual nationality can neither be

considered incompatible with international standards nor is a
State not permitted to exclude dual nationality."

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

Op. cit. supra, Part V, 11.26-33.

fact, irrespective of independence under international law." In this way

scrutiny of citizenship legislation in the light of international human
rights standards could take place even prior to recognition, and be a
pre-condition for it. Secondly, reference was made to the policy of the
former Soviet Union, which has been carried on by the present
Russian Federation, in that the mandate of Bernhardt and Schermers
to report on Lithuania arose due to a controversy between the central
institutions of the Soviet Union and the Lithuanian authorities on the
rights of the minorities in the Baltic States. It was this controversy
that prompted the intervention of the Council of Europe, with the
consent of the two sides. 1411
The argument for the minorities is that denial of citizenship to all
resident ethnic Russians, or other ethnic groups, is discriminatory and
contrary to international law, because international human rights law
forbids the creation of stateless persons. The nationality law of the
Soviet Union based citizenship on residence, whereas in general
international law there is at present no authority for the proposition
that residence per se creates a right to nationality. 141 Nor is it the
legislation of one State that creates stateless persons where, as in the
case of the Baltic States there is more than one State involved. 142
This leaves open the question of whether, or to what extent,
discriminatory legislative practices, providing for denial of nationality
for persons whose closest connection is to a "newly independent
state," such as one of the Baltic States, may be allowed where the
avowed purpose is to maintain a specified ethnicity. 143 Doubt still
exists as to the limits that may be put on a State's right to demand
proof of a genuine link with the State of naturalization or even
original nationality in a new State, such as embodied in a language

Ibid., 11. at 249-50.
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.
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.

test. On the other hand, minority rights cannot be ignored over an

extended period of time. In other words, even if a population of
residents is not identical to a population of citizens, rights for minority
groups preclude the long-term exclusion of certain groups in the
population from national status.144 In the case of the Baltic States,
where a claim is made to the continuity of each State, and not to State
succession, the fact of some fifty years as states of the Soviet Union
must have certain legal consequences, placing an obligation on these
States to reconsider in good faith what are Hthe people" in their
nationality legislation.145

3.3.2 Yugoslavia and Eastern Europe

Steps leading to the dissolution of the Socialist Federal Republic

of Yugoslavia (SFRY) began with the declarations of independence of
Slovenia and Croatia on June 25, 1991. The federal authorities did not
acquiesce in these assertions and in the fighting that ensued
international involvement increased with attempts to promote a
settlement of the conflict. In this highly complex and tragic situation,

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
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.

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.
Ibid., Dec:laration on Guidelines etc. and p. 476.

of international law, and cited Article 1 of the 1966 International

Covenants on Human Rights on the right of every individual to
choose to belong to whatever ethnic, religious or language community
he or she wishes. As a possible consequence of this, the Commission
was of the view that

"the members of the Serbian population in Bosnia-

Herzegovina and Croatia ... be recognized under agreements
between the Republics as having the nationality of their
choice, with all the rights and obligations which that entails
with respect to the States concerned."149

This wording may be understood as referring to an option of

nationality recognized in international law for those inhabitants of
newly independent States who are not of the ethnic group of the
majority. It may be compared with the wording of paragraph 4 of
Opinion No. 5 where reference is made to "the fundamental principle
of international law whereby al1 human beings are entitled to
recognition, in the national context, of their membership of the ethnic,
religious, or language group of their choice."1so
In the dissolution of the former Socialist Yugoslav Federation,
where the new States emerge clearly in situations of state
succession,1s 1 the earlier practice of States allowing for an option
between the nationality of the predecessor or successor States, for
those persons having a close connection with both, may, with the
settlement of the conflict, be enhanced by international human rights
standards as regards the individual.

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.
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.



Case law touching on the question of nationality in relation to

state succession sheds some light on the issues involved. Nevertheless,
the courts even of the same country have on occasion come to
different conclusions as to the rules of international law on the
subject. Some examples may be given.

4.1 The United States

United States practice is often held to be based on the principle

that with a change of sovereignty over a territory only those
inhabitants who give their consent acquire the nationality of the
successor State. A leading case on this point is U.S. ex rei.
Schwarzkopf v. Ulzl, 152 where the U.S. Circuit Court of Appeals for
the Second Circuit held that under international law

"when territory is transferred to a new sovereign by conquest

or cession the inhabitants of the territory become nationals of
the new government only by their own consent, express or

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.

137 F2d 898, U.S. Circuit Court of Appeals, 2nd Circuit, August 18, 1943.
Digested in 12 A .D. (1943-1945) No. 54.
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.

The nc~essity of (;Onscnt, as implied from residence, has been held

not n~(;cssary for the acquisition of the nationality of a new State. In
Cahl'hl' v. A clte.wn, Secretary of State, 154 the plaintiff was a Filipino,
born in the Philippine Islands in 1910, and, since 1930, a permanent
resident of Hawaii. He brought an action for a declaratory judgment
that he was a national of the United States. The Philippine Islands
were ceded by Spain to the United States by the Treaty of Paris of
December I 0, 1898, effective April II, 1899. By an Act of Congress
of July 2, I 946, the United States recognized the Philippines as an
independent sovereign State. 155 The Hawaiian Court held that as the
treaty contained no provision for the retention of American nationality
of those Filipinos resident in the United States at the time of the
Philippines secession it must be interpreted as not existing. The
plaintiff, therefore, was a Filipino national. The Court cited as a
precedent the Treaty of Paris, 1898, when Spain relinquished
sovereignty over Cuba. In the Treaty, the right to retain Spanish
nationality was expressly granted to certain categories of persons who
had a factual link with Spain, such as domicile within the Spanish
dominions or inscription on the register of a Spanish legation
overseas. Two points may be noted about this case. First, the Treaty
of Paris of 1898 did not make Filipinos collectively citizens of the
U.S. as, for example, was the case with Puerto Ricans. Second, the
Court was interpreting an Act of Congress and a treaty to which the
United States was a party, and was not stating a rule of general
international law. By the Act of Congress of July 2, 1946, a Filipino
included those of Filipino descent, and, the Court concluded,

"the U.S. Government intended the status of Filipino,

regardless of domicile or place of residence at the date of
Philippine independence to be entirely separate from any
phase of adherence to the United States."

4.2 The Federal Republic of Germany

German case law on this point shows some disparity. The

Supreme Administrative Court of the German Federal Republic has

U.S. District Court, Hawaii, June 23, 1949; Court of Appeals, 9th Circuit,
June 23, 1950; 16 A .D. (1949) No. 62 at 208.
60 Stat. 1352, 1353.

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
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

"[i]t is the practice, in case of cession of territory, to grant to

the inhabitants of the ceded territory an option as to which of
the two States they wish to belong to."

As we have noted above161 in the more recent North-Transylvania

Nationality Case ( 1965),162 the Court applied the principles of
international law on the subject. These, it was stated, were that

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.
Decided May 28, 1952. 19 l.L.R. (1952) No. 56.
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.
23 I.L.R . ( 1956) 3~.
Supra, pp. 160-61.
43 I.L .R. (1971) 191.

"[i]n the case of a cession of territory, as in the present case

of North Transylvania, a general naturalization without the
consent of the persons concerned was only possible if they
had their ordinary residence in the territory ceded."

This, it is submitted, is the modem law on the subject, based on the

decision of the International Court in the N ottebohm case. 163
In the Russian Nobleman Nationality case,164 the Superior
Provincial Court (Oberlandsgericht) of Bavaria, FRG, found that the
complainant had not lost his Russian nationality when he emigrated,
in October 1917, from the territory of the Russian Baltic Provinces
where he was born, because there was no rule of constitutional or
international law that emigrants lost their former nationality by the
mere fact of having left their country of origin. This would create an
unacceptable level of legal uncertainty with regard to the question of
when loss of nationality occurred. Nor had the overthrow of the
Czarist regime and the seizure of power by the Revolutionary
government involved any loss of nationality since there was merely a
change in the holder of State power. In the event of a State
disintegrating into new States the inhabitants lost their present
nationality and automatically acquired that of the new State, whereas
persons living abroad became stateless. With regard to Russia,
however, this did not apply since the nucleus of the State remained,
and there had occurred merely cessions and secessions of peripheral
regions. Thus, the nationality decree of September 1921 of the Russian
Revolutionary Government, by which Russian emigres lost their
nationality, did not have retroactive effect, whereas acquisition of a
new State's nationality is retroactive. This, it is further submitted, is
a reminder of the fact that a certain continuity may be noted in the
judicial consideration of questions of State succession and nationality,
and in the circumstances surrounding them.
Other cases before the courts of the Federal Republic have turned
on the specific problem of the divided Germany.
In its Judgment of October 21, 1987, in the Teso case, the Federal
Constitutional Court of the FRG "ruled that in principle every

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.
Decided on March 8, 1971. 72 I.L.R. (1987) 435.

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
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

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."
Ibid. at 297.
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.

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

4.3 The Netherlands

Courts in The Netherlands have had occasion to interpret those

provisions of The Netherlands-Indonesian Convention of 1949, dealing
with nationality. In In reB., the District Court of The Hague 171 had to
interpret the effect of Indonesian independence on the nationality of
a minor born in Indonesia of Belgian parents, for the purpose of
determining whether to apply Belgian or Indonesian law in the
appointment of a guardian. Following Article 5 of the Convention the
minor was held not to have Indonesian nationality. 171 Similarly, in In
re Hehanussa, 173 the Court of Appeal of The Hague held that the
applicant's retention of Dutch nationality on Indonesian independence
by formally renouncing Indonesian nationality and maintaining his
residence in The Netherlands was not valid. The court held that "[t]he
appellant belonged to the indigenous population of Indonesia and
therefore had no right under the Convention of 1949 to renounce
Indonesian citizenship." The appellant's argument that in modem law
the population of transferred territory had a right of option was not
applicable in the present case where the limit of the right of option
was unambiguous in the instrument of cession of sovereignty.174

Ibid. at 161 .
Ibid. at 192.
19 I.L .R. (1952) 318.
See. supra, this chapter, section 3. 1.4.2 "Indonesia."
November 6, 1952. 19 I.L.R. (1952) 337.
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.

Also the Agreement on Nationality between The Netherlands and

Surinam, 1975, has been applied by the Courts of the Netherlands. In
the recent case of In re Ro, decided by The Netherlands Supreme
Court on March 4, 1980, it was held that the appellant was not
domiciled nor factually resident in Surinam on November 25, 1975,
and thus did not acquire Surinamese nationality. Her claim not to have
lost her Dutch nationality and hence that she did not require a
residence permit in The Netherlands was upheld. The Court applied
the test of domicile or factual residence on the critical date, that of
Surinam's independence.175 Similarly, in the case of X v. Minister for
Foreig11 Affairs, decided by the Council of State, Judicial Division, on
September 21, 1989, 171~ this same Agreement of 1975 was applied,
following the interpretation of its Article 2( 1) given by the Supreme
Court. Article 2(1), providing that " ... acquisition of Surinamese
nationality pursuant to this Agreement shall entail the loss of Dutch
nationality," was thus interpreted to mean that "in cases such as the
present one the Minister may not assume that the person concerned
has lost Dutch nationality, until it has been established that the
Surinamese Government recognizes that such person has acquired
Surinamese nationality." Further, where a person such as "X"
establishes a domicile in Surinam after the critical date of Surinam's
independence, there must be no reasonable doubt about the intention
of the person concerned to relinquish his previous domicile. This may
be inferred partly from the factual circumstances as a whole. It was
decided that there was no ground for canceling the appellant's Dutch
passport. 177

4.4 France

In the case of sieur Mohammed Tayeb M ihoubi (1974), the French

Court of Cassation had to interpret the decree of July 21, 1962, which
permitted persons with the civil status of "droit local originaires
d' Algerie" to retain French nationality by making a declaration, if not
they will have lost their French nationality as from January 1, 1963.

RvdW (1980) No. 50, NJ (1980). Digested in 13 N .Y.I.L . (1982) 323.
AB (1990) No. 198, A ROB tB/S (1989) No. 150. 22 N.Y./.L. (1991) 399.
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.

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

From these examples of State practice it may be noted that in

cases of State succession resulting from the emergence of former
dependent territories to fully independent States, the right to opt for
the nationality of the predecessor State is limited to those not having
a connection with the bulk of the population of the new State. A
rationale for distinguishing this mode of State succession from cases
of cession of territory may be found in the Israeli case of A.B. v.
M.B ., where the Judge on the District Court of Tel Aviv held that

"[s]o long as no law has been enacted providing otherwise,

my view is that every individual who, on the date of
establishment of the State of Israel was resident in the
territory which today constitutes the State of Israel is also a
national of Israel. Any other view would lead to the absurd
result of a State without nationals-a phenomenon the
existence of which has not yet been observed."

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.

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.
April 6, 1951. 17 I.L.R. (1950) No. 27.

In two other cases decided in the same country, R e Goods of

Shiphris and Oseri v. Oseri, 180 the same court has held that such
persons were stateless and not Israeli nationals within the legal
meaning of the term "national." It is submitted, however, that the dicta
of the judge in A .B. v. M.B., although only persuasive, state the
principle that the recognition of the sovereign equality and
independence of a new State entitles the new State to an initial
population at the date of its acquisition of independence.

4.6 Australia
Cases of cession of territory differ from those of State succession
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.


In conclusion, it may be suggested that although the practice of

Sates is not unambiguous as regards State succession in respect of
nationality, certain presumptions may be made. These are based on the
modem rules of international law that oblige States to grant their
nationality to those persons having a factual connection with the State,
and hence to grant a right of option of nationality where the notion of
the connection, or link, justifies it. Accordingly, use is made of the
criteria of birth, descent, and residence, or possibly language, as
showing a closer connection in fact with the population of one State
rather than any other. There are, further, grounds for maintaining that
the mode of State succession involved in the emergence as
independent States of former dependent territories can be treated
differently from the modes of cession or union where the sovereignty
over territory is transferred to an already existing State. This is so
because a right of option cannot be granted to all those habitually
resident within the territory of the new State.
It may be stated that according to the modem practice concerning
nationality and state succession the nationality of those persons
domiciled or habitually resident in territory over which the

In 19 I.L.R. (1952) No. 58.

sovereignty, and hence the nationality, has been transferred, to another

or to a new State acquire the nationality of the successor State,
provided they have a genuine link with the bulk of the population.
This link may be evidenced by objective criteria including voluntary
adhesion. The nationality of the predecessor State is lost on the day
of the transfer of sovereignty or within a stipulated period of time.
Those persons showing evidence of a closer link with the cessionary
or parent State, or with a third state, have an option to retain their
previous nationality, either expressly, in the former case, or impliedly
as in the latter. That is to say, the retention of nationality may be
carried out by formal registration and it may act retrospectively.
As there is no right of the individual recognized in international
law to a certain nationality, it follows that there is no absolute right
for all the inhabitants to the nationality of a newly independent State
by reason solely of habitual residence on the territory at the time of
independence, or of the reemergence, of a sovereign State. However,
with the dissolution of the former Soviet Union and the changes that
have taken place in the countries of Eastern Europe in the early
1990's, pressure from the international community on these new States
to ensure respect for human rights commitments may affect nationality
legislation in two ways in particular.
Thus, discrimination favoring the patrilineal over the matrilineal
line for purposes of conferring nationality, and also the express
creation of ethnically homogenous populations coupled with a
statutory exclusion of other inhabitants, or groups of inhabitants, from
citizenship, may give rise to objections from third States or from
international human rights organizations. Where not manifestly
discriminatory, new States retain the right to lay down the conditions
for acquisition of their citizenship, and these include formulation of
criteria on which to ensure that a close and effective link exists
between the individuals concerned and the political society of the new


It is now proposed to look at the development of international

organizations to see how the growth of a new legal order, as
represented by the U.N. Organization, and of an ever-increasing
number of international bodies affect the standards imposed on
nationality laws in international Jaw. This development both mirrors
the change in the concept of nationality that we have noted so far,
and, further, may point the way to future developments.

1.1 Development of the United Nations

The growth of the U.N.O. has provided the international

community with a more developed form of international government
than has ever been experienced hitherto. The original members of the
U.N. numbered fifty-one, fifty of whom were represented at the
United Nations Conference on International Organization, held at San
Francisco from April 25-June 26, 1945, and Poland, the fifty-first,
which was one of the original signatories of the Declaration by the
United Nations. Poland was not represented at the San Francisco
conference because the composition of its new government was not
announced until June 28th, too late for the Conference. On November
10, 1981, the Caribbean nation of Antigua and Barbuda became the
157th Member of the United Nations. It became independent on


November 1, 1981, ending 350 years of British rule. 1 By the adhesion

of subsequent members as provided in Article 4 of the Charter, to the
number of original members as provided in Article 3, the Organization
has become universal in character.
It was just in order to achieve a universal character that the
Charter contains no provision on withdrawal from membership, unlike
the Covenant of the League. 2 In the Dum barton Oaks Proposals of
October 9, 1944, there was no provision either to allow withdrawal or
to veto it. In the opinion of the subcommittee of Committee 1/2 of the
San Francisco Conference, the Dum barton Oaks Proposals deliberately
omitted provisions for withdrawal in order to avoid the weakness of
the League Covenant.3 The Committee then adopted the view "that the
Charter should not make express provision either to permit or to
prohibit withdrawal from the Organization."4 Article 2 paragraph 6
ensures that also States which are not Members of the United Nations
act in accordance with the Principles of the Organization "so far as
may be necessary for the maintenance of international peace and
security,"5 so withdrawal does not exempt a Member from all the
obligations imposed on it by the charter. The sanction of expulsion
from the Organization can be imposed on a Member if it "has
persistently violated the Principles of the present Charter" (Article 6),
but this involuntary withdrawal from Membership is a result of a

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.
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."
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.
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.
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.

decision by the General Assembly upon the recommendation of the

Security Council. A decision of the Security Council had originally to
be made by an affirmative vote of seven members, including the
concurring votes of the permanent members (Article 27(3)), so the
sanction of expulsion could not be applied against one of the five
permanent members of the Security Council.6 The number was
changed from seven to nine by an amendment to Article 27 of the
Charter, together with amendments to Articles 23 and 61, adopted by
General Assembly resolution 1991 A.B. (XVIII) of December 17,
1963. It entered into force on August 31, 1965, for all Members of the
U.N. in accordance with Article 108 of the charter.'
Not only has the U.N. a far wider membership of independent
States than had the League, it has also a far wider network of
activities. The League Covenant was a part of the Paris Peace Treaty.
The P.C.I.J. was established after the League, on the recommendation
of a Commission of Jurists, whereas, under Article 92 of the Charter,
the I.C.J. is "the principle judicial organ of the United Nations" and
its statute "forms an integral part of the present Charter." Article 7( 1)
of the Charter provides for the establishment of the six principal