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 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 81

The Regulation of Nationality in InternationalLaw. By Ruth Donner. Helsinki:

Finnish Society of Sciences and Letters, 1983. Pp. 287.
Nation-states are still the main actors in international law and interna-
tional relations, but they have had to give up their claim to be the sole
subjects of international law and the sole actors in international relations, as
well as their claim to absolute sovereignty. Thus, although nationality es-
tablishes prima facie the link between a state and the persons forming it, its
role as exclusive link is questionable. Nevertheless, nationality is of basic
importance for any state, as it defines its population, one o f the three
constituent elements of statehood, the other two being territory and effec-
tive government. Consequently, states pay special attention to the rules of
acquisition and loss of nationality, as well as to the effects of nationality in
municipal and international law. Nationality has always been seen in the
context of sovereignty and regarded as falling within the domestic jurisdic-
tion of states. Therefore, the discussion whether nationality is part of inter-
national law is futile, for international law has always derived consequences
from a person's belonging or not belonging to a state.
Under traditional international law, which concerned itself mainly with
relations between sovereign entities (and recognized them as the sole sub-
jects of international law), nationality was the sole link between the individ-
ual (an "object" of international law) and the law itself. The further devel-
opment of international law, especiajly with the growing awareness of
human rights, has diminished the linkage function of nationality. The ap-
pearance of new (at least partly) subjects of international law, i.e., interna-
tional organizations, NGOs, transnational corporations and the individual,
has fostered the establishment of other links (assignment methods), either
by redefining nationality or by employing criteria other than nationality,
e.g., effective or genuine or functional links. This reviewer, therefore,
challenges the proposition that "States alone are the subject of international
law" (p. 32).
As soon as a person leaves the territory of his state of nationality, his
nationality enters the realm of international law and becomes subject to
recognition, challenge or nonrecognition. These conflict situations, the
"standards or rules. . . in public international law governing the right of
States to determine who are, and who are not, their nationals" and the
question "are there any limitations imposed by public international law on
the competence of State authorities to draft laws and regulations determin-
ing acquisition and loss of the State's nationality?" (p. 13), are the topic of
the dissertation under review.
The author undertakes the task of answering these questions in a well-
structured and well-documented study in which she examines nationality in
the context of public international law (ch. I), effective link (ch. [I), imposi-
tion and withdrawal (ch. III), human rights conventions and other instru-
ments (ch. IV), state succession (ch. V) and international organizations
(ch. VI).
Chapter I concentrates on the basic notion of sovereignty and its rela-
tionship to nationality. At this stage, one would have expected an analysis of
19871 BOOK REVIEWS AND NOTES

the nature of nationality, describing either an individual's membership in a

state or in a nation. "Allegiance," flowing from the former membership,
according to the Anglo-Saxon concept of nationality, gives rise to a frame-
work of reciprocal rights and duties. Its destruction causes legal conse-
quences in the international environment such as refugeehood or stateless-
ness. Thus, nationality has an internal aspect because it defines the above-
mentioned framework and an international one because it provides the
main link between the individual or juristic person and international law.
The extraterritorial effect of conflicting municipal laws on nationality
touches upon the sovereign equality of states and upon the problem of
territorial versus personal jurisdiction over persons (nationals and aliens
alike). These formal and substantive aspects of nationality might have re-
ceived more attention at the beginning in order to clarify terms and con-
cepts used throughout.
Chapter II ably outlines the evolution of the principle of effective link
before and after the Nottebohm Case and concludes that Nottebohm gave the
principle the "undoubted authority of a rule of international law" (p. 87).
One may express doubt, however, whetherjus soli and jus sanguinis merely
represent "a certain practice of States" (p. 44) rather than a "general princi-
ple" of nationality law as reflected in many municipal nationality laws.'
Furthermore, the question "Has the 'Effective Link' Replaced Nationality
for the Purpose of Diplomatic Protection?" (p. 72) remains unanswered.
This section would have profited from a more organic link with human
rights and more cross-references to chapter VI, which deals with human
rights conventions. The basic human rights with which a person is vested
regardless of nationality or the interest of a state in granting protection are
the main starting points for replacing nationality as the conditio sine qua non
for diplomatic protection. The clear and concise presentation of the Con-
vention on the Settlement of Investment Disputes (pp. 83-87) shows that in
the economic field, protection based on the interest of states in safeguarding
investment in foreign countries is already established in treaty law. Private
individuals or corporations are granted direct locus standi without the inter-
vention of any national government (Art. 1(2)), whereas, in the domain of
human rights, the individual still remains very much at the mercy of states,
particularly his national state.
The conclusions at the end of chapter II, that "in principle nationality is a
matter not regulated by international law" and that only obligations under
treaties may restrict the states' discretion (p. 94), appear, to this reviewer, to
be, first, inaccurate, as customary international law also restricts the discre-
tion of states, and second, inconsistent with the author's statement that "an
international law of nationality has evolved and been given added impetus
since the end of World War II" (p. 15). Paul Weis, an outstanding writer on
nationality, speaks "only of a so-called international law of nationality"
because "its rules, derived from the rules governing the relations between

II. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 386 (3d ed. 1979).
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 81

States . . .are mainly negative rules, restricting the freedom of States to

confer or withdraw nationality.".2 "The [remaining] relative freedom of
States . . .leads to what are usually called conflicts of nationality laws:
statelessness and plural nationality,"' both of them undesirable but legal
under international law. Donner rightly states that "public international law
now sets a standard for nationality laws, requiring a connecting link or bond
between the individual and his State, without which his nationality may not
be recognized in the international sphere" (p. 46). However, in this re-
viewer's opinion, the effective link is not "a mixture of fact and law" (p. 95).
Once permanent residence and the center of the individual's interests are
established as facts, international law draws legal consequences from them
that are similar to those of nationality.
Chapter III examines the legality of the imposition and withdrawal of
nationality by analyzing many cases, none of them very recent. The section
on "Historical Migrations" (pp. 100ff.), in particular, would have benefited
from an expanded treatment of "the most recent development" (p. 101),
economic migration, the movement of populations in the wake of colonial-
ism and starvation. Such movements put a strain not only on the economies
of host countries but also on the achievement of international law with
respect to foreigners. In discussing the recognition of denationalization
decrees of third states (pp. 129ff), one has to be aware that a nonrecogni-
tion of such decrees would force the persons concerned to remain nationals
of a state that obviously wants to separate itself from them. De j ure and de
facto denationalization should not be disconnected. Although denational-
ization per se is not illegal under international law, an unfounded depriva-
tion of nationality combined with expulsion or refoulement at the border
upon the return of the former national will give rise to responsibility on the
part of the denationalizing state vis-i-vis the state of sojourn of the dena-
tionalized individual.
The imposition of nationality against a person's will is not binding on
third states (p. 141). Two lines of argument are possible: first, from the
point of view of human rights, the individual's will has to be respected;
second, from the point of view of sovereignty, forced naturalization is an
infringement of the other state's sovereignty.
I The author rightly stresses the close relationship of denationalization and
the imposition of nationality in the following chapter on human rights in-
struments. She shows that the formal requirement of nationality is softened
by the tendency to upgrade the individual's position under international
law, of which the Universal Declaration of Human Rights is a cornerstone.
It certainly carries more weight than "mere moral force" (p. 149) although,
technically, as a resolution of the General Assembly, it is not legally binding.
However, an analysis of each right proclaimed reveals that many of them are
part of customary international law, which recognizes basic human rights.
The International Court of Justice recently referred to the principles of the
2
P. WEIS, NATIONALITY AND STATELESSNESS IN INTERNATIONAL LAw 241 (2d ed. 1979).
Id.at 243.
1987] BOOK REVIEWS AND NOTES 973

Declaration as a yardstick for human rights on the same level as those of the
UN Charter.4 In the discussion of the various instruments, special attention
is given to statelessness and dual nationality. In her analysis of Article 20 of
the American Convention on Human Rights (p. 173), Donner should have
referred to its Preamble, which sets the stage for a new concept regarding
the protection of human rights:
Recognizing that the essential rights of man are not derived from
one's being a national of a certain state, but are based upon attributes
of the human personality, and that they therefore justify international
protection in the form of a convention reinforcing or complement-
ing the protection provided by the domestic law of the American
states ....
This is in sharp contrast to the decision handed down by an arbitrator in
Dickson Car Wheel Co. (USA) v. United Mexican States (1931): "A State . . .
does not commit an international delinquency in inflicting an injury upon an
individual lacking nationality, and consequently, no State is empowered to
intervene or complain on his behalf either before or after the injury." 5
The section on "Humanitarian Intervention" (pp. 176-78) treats this
controversial issue very briefly, at the expense of accuracy. Napoleon III's
intervention in Mexico looks more like an act of aggression than an excess of
humanitarian intervention. It may also be questioned whether the "nation-
ality link" is the "essential prerequisite for mounting any rescue operation
of individuals in the name of humanitarian intervention." This argument
turns a "humanitarian" into a "national" intervention. Furthermore, hu-
manitarian considerations should not depend on a person's nationality. Al-
though politically widely accepted under compelling circumstances, interna-
tional law clearly outlaws the use of force (Art. 2(4) of the UN Charter)
unless authorized by the Security Council, which could determine grave
violations of human rights to be a threat or breach of the peace and act
accordingly. In,short, the author considers the right to a nationality (Art. 15
of the Universal Declaration) as not yet accepted by the community of states.
Under the heading of "State Succession," the importance of nationality in
municipal law is highlighted and the practice of former colonial powers and
their successor states outlined.
Functional nationality as discussed in the final chapter on international
organizations is, in the opinion of this reviewer, a "nationality" acquired by
the operation of international law and therefore an exception to the rule
that "nationality cannot be bestowed or acquired under international law,
only under municipal law" (p. 185). A further example of the influence of
international law is the so-called defacto nationality, based on the interest of
a state in assimilating a non-national to the status of a national in order to
enable him to benefit from municipal rights granted to nationals or for the
purpose of diplomatic protection in the international sphere. This last

" United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ REP. 3, 42
(Judgment of May 24).
' 4 R. Int'lArb. Awards 678 (1931).
974 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 81

chapter also contains an interesting and unusual section on the nationality of

international judges, arbitrators and members of the International Law
Commission. Here competence, merit, integrity and the fact that each rep-
resents a particular legal system or, in the case of ad hocjudges, the trust of
the nominating state, soften or even override the bond of nationality.
The international protection of the UN High Commissioner for Refugees
is the foremost example of protection not based on nationality. It follows
clearly from the definition of a refugee in Article 1 of the Convention
relating to the Status of Refugees (1951) that persecution or fear of it for
various reasons (including nationality) and the lack of protection by the
country of nationality (or former residence for stateless persons) are the
basis of refugee status and not "lack of national status" (p. 264).
A treatise on nationality in international law requires, in the words of
Seydel, "a circular tour, through all the sectors of law."' Therefore it is
challenging in itself, especially when undertaken in the form of a disserta-
tion, for any author to demonstrate mastery of this particular topic as well as
international law in general. Donner's monograph offers such a circular
tour, based on extensive research and focused primarily on historical devel-
opments and the lex lata. Some tightening of details and a closer link of the
conclusions to the preceding chapters would have made the arguments flow
more smoothly. With regard to formal considerations, the cited dates of the
state of ratification of various instruments could have been harmonized, as
they range from 1977 (p. 91) to 1981 (p. 163). Finally, at the time of
writing, Weis had already published the thoroughly revised second edition
of his Nationality and Statelessness in InternationalLaw;7 consultation of that
work might have been rewarding for the author.
MICHAEL REITERER
Austrian Trade Commission

Les garantiesfondamentales de la personne en droit humanitaireet droits de

l'homme. By Mohamed El Kouhene. Dordrecht, Boston, Lancaster:
Martinus Nijhoff Publishers, 1986. Pp. xxii, 258. Index. Dfl.150;
$59.50; £41.75.
The International Committee of the Red Cross (ICRC) has bestowed the
Paul Reuter Prize for 1985 on this thesis, which deals with the fundamental
guarantees for human beings under international humanitarian law and
human rights law. The author is a young Moroccan lawyer who works for
the Independent Commission on International Humanitarian Problems,
established in Geneva in 1983. This commission was created in support of a
proposal made by Jordan to the UN General Assembly in 1981 that aimed at
the establishment of a "New International Humanitarian Order." Such a
vast enterprise must start by taking stock of the humanitarian order as it
6Quoted in H. VAN PANHUYS, THE ROLE OF NATIONALITY IN INTERNATIONAL LAW 19
(1959).
' See note 2 supra; the same holds true for 1. BROWNLIE, supra note 1.