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NATIONALI
AND STATELESSNESS
IN INTERNATIONAL
LAW

EDITION
 NATIONALITY AND
STATELESSNESS IN
INTERNATIONAL LAW

by

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

with a foreword
by

- SIR HERSCH LAUTERPACHT

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

Second edition

SIJTHOFF & NOORDHOFF 1979

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

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

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

ISBN 90 286 0329 8

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

Library of Congress Catalog Card Number: 79-89781.

Printed in the Netherlands

To the memory of my parents
 CONTENTS

Foreword to the first edition XI

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

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

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

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

3. State Practice 186

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

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

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

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

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

Bibliography 313

Index 323

About the author 339

 FOREWORD TO THE FIRST EDITION

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

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

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

The Peace Palace, The Hague H. Lauterpacht

]un£, 1955.
 PREFACE TO THE FIRST EDITION

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

ionality a question of conventional international law and, so far

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

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

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

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

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

Geneva, P. Weis

December, 1954.

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

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

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

Geneva P. Weis

September, 1978
 CASES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

''

I,
--

TREATIES
(MULTILATERAL)

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

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

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

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

TREATIES
(BILATERAL AND PLURILATERAL)

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

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

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

'I
 STATUTES
AND OTHER LEGISLATIVE INSTRUMENTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

South Africa (Union of)

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

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

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

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

Union of Soviet Socialist Republics . . . .

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

United Kingdom of Great-Britain and Northern Ireland

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

1967 British Protectorates, Protected States and Protected Persons Order

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

United States of America

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

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

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

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

AJ. American Journal of International Law.

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

European Treaty Series, published by the Council of E

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

relatin~ to Judgments and Advisory Opinions. Series D-

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

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

Re. p. 15 line 24 ss.

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

Re. p. 34 Right to protection.

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

Re. pp. 129 and 199.

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

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

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

At p. 96 after line 22 should be added:

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

The International Covenant on Civil and Political Rights 3 provides in

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

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

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

THE CONCEPTION
OF NATIONALITY
 Chapter 1

"Nationality" and its Synonyms

A. Nationality and Citizenship

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

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

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

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

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

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

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

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

"Staatsangehoerigkeit ist die Abgrenzung der personalen Staatshoheit, waehrend Staats-
buergerschaft das R echtsverhaeltnis des Buergers zum Staat behandelt." ("Nationality is the
delimitation of personal jurisdiction, while citizenship refers to the legal relationship of the
citizen to the State.") (Author's translation. )
15. Treaty of Peace between the United States and Spain, December 10, 1898 (30 Stat.
1754); U.S. Act ofju1y l, 1902 (32 Stat. 691 ); U .S. Act of August 29, 1916 (39 Stat. 545); U.S.
Act of March 24, 1934 (48 Stat. 456). It has been held that Philippine subjects are not aliens in
the United States: Gonz;ales v. Williams, 192 U.S. 1, at p . 13 (1903); Toyota v. United States, 268
U.S. 402, at pp. 410- 2 ( 1925).
16. Public Law 414-82nd Congress, 2nd Session, 66, Stat 163; section 308 is entitled
"Nationals but no t citizens of the United States at birth". So-called non-citizen nationals; cf In
rt Bautista U.S. District Court of Guam 183 F. Suppl. 271 at p. 274, 41 Int. Law Reports p. 323.
That the term " American national" has a wider meaning than "United States citizen" was
recognised in Administrative Decision .No. V of the Mixed Claims Commission between the United
States and Germany (Decisions and Opinions, vol. I, pp. 189- 93; Hackworth, vol. III , p. 5;
Whiteman, vol. I, p. 5; Annual Digtst, 1923-1924, case No. 100).
17 · Law of February 10, 1910, as amended .June 10, 1927, Staatsblad, 1927, No. 17 5 (Art. 1).
As regards the terminology used in the British Commonwealth, see infra, pp. 15- 18.
1~. Cf H arvard Law Research (23 A..J. (1929), Suppl. II, p. 23), where reference is made to
Arttcle 6 of the General Treaty of Peace and Amity between the Central American Republics,
conclu~:d at Washington on February 7, 1923 (17 A.j. ( 1923), Suppl. p. 119), as expressly
rec~gmsmg this distinction. This provision does not, however, even if read in conjunction wit~
Article 7, bear out this contention.
19. Title II " Hondurans", Title IV "Citizens", the latter being · escribed as Hondurans over
~I years of age and those over 18 years of age who know how to read and write. (Constitution of
eptember 10, 1924: Law and Treaty Series No. 2 (1925), Pan-American Union. )
20. See Peaslee, Constitutions rif .Nations, 3rd revised ed., vol. IV, p. 959.
21. Cf infra, n. 24.
 "Nationality" and its s1J'-'nonyms
6
. . . , r the State
neccssanlv a ctuzc 11 0 .
concerned; whether this is the case dcp .
. . r ·. . ends
.
on mumCipa aw,
: 1 1. . the qucsuon IS not rcle\ ant 10r mternatwnal Jaw F
. . . . . . . rorn
. f ., f'ntcrnatwnallaw It IS not mcorrect to say, m the word . f
thcpomto VICWO I . • . . 'd )'· h' )' fb. So
Oppcn1Cim.l . .22 "Nationahtv. of an mdtvJ .
ua IS Is qua Hy o emg a sub'
. . , 1 . J'k . ~ect
o f a ccrtam · State ·mel
' therefore Its citizen. . t . IS I ewisc a log,·ca1
consequence o f the exclusive · relevance of natwnahty . · for the purpose o·f
. ti'onal law that distinctions 1 1
mterna . made by mumc1pa . .aw between
. various·
, o f' nationals arc immatenal from the pomt of v1ew of mternational
c Iasses
• Z:i
law. Oppenheim states-
}11 genera. 1, 1·t rnatters
c ·
not ' as· t;1• r as• the
•
Law
•
of Nations
•
is concerned,
• • h . that Municipal
. Law m·ay
distinguish between different kmds of .s~lbj ects- for m stancc t ose who enJoy full potential
. 1Hs, anc1ar ron that. account
ng . named Citizens. and those who are less favoured, and arc on th at
account not named crttzcns. 2 ~

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

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

22. Sec pp. 642-3.

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

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

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

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

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

B. Ressortissants

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

28. See infra, pp. 29 et seqs.

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

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

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

C. Note on "Enemy Character"

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

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

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

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

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

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

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

competent authorities by Order in Council. 54 This practice became

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

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

Nationality in Composite States and Dependencies

A. Composite States 1

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

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

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

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

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

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

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

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

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

B. The British Commonwealth

The question of nationality in the British Commonwealth of Nations,

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

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

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

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

12.4 & 5 Geo. 5, c. 17.

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

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

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

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

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

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

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

C. British Protected Persons 22

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

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

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

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

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

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

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

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

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

D. Mandated and Trust Territories

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The International Functions of Nationality

A. The Hague Codification Conference

As the International Conference for the Codification of International Law

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

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

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

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

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

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

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

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

B. The United Nations

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

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

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

C. Nationality as a Tenn of International Law

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

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

15. Gen. Assembly Resolution 174 (II).

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

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

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

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

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

The definition given by international and national judicial authorities is

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

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

D. International Protection

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

37. Ibid., at p. 23.

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

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

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

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

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

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

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

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

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

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

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

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

British Claims Tribunal that-

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

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

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

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

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

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

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

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

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

88. 34 Stat. 1228.

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

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

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

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

102. Infra, pp. 222-30.

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

E. The Duty of Admission

(a) Nationals

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

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

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

cxp ·I them arbitrarily and witl~•,.ttjwu •:ausc. 111 It fi ,Jinw~ th:ll .tiH· (·xpul j,, 11
of a nationa l may only hl' earn ·d (lilt wtth.tlw co.mH't~l olt.lti· :~t; 1 tt· ,,, wl 11 ,, 11 •
t Tritory h. is to be CX ))i'llcd, and that tlw St :tt l' olu:lltonah ty m uucll'l' a dttl
towards oth T Stat s to rc ~e,· vc IlK . uattolla
. I11 IJac k 011 1 y
. t 11 h'I' I' ·Jt 1,ry ." ~ 1 iM
1
significant that on AJ~ril 2, IB.I7 , Franc:c ·nac t cc~ a n Onlin:ull ·~· JH'ovidinK
that a sent ·n -. of bamshmcnt 1s to be ·ommtttl'cl 111tu tli-t ('llttoll 111 a fi 'r'II'<·K:i
if oth ~r States refus ~ Lo admit the person f!t· ut cuced to IJa nislirn,·JJt .t•a
When a national of one Stat • is t:xpdlcd to anot h 'r Statt· wlticJ. l1a11 0111
consented to admit him, or wh ~u n Stat(: is pn:v ·nt ·d from n·tlt rrti 11 K i:l
foreign national to th, Stat· of' his nationality 114 hy tht: lau ·r's rd'usal lo
receive him back, the for ign Stat· may d ·maud fmrn t lw St at . ,,r
nationality that it should refrain from ·xpulsion or, as tht; cast· may IJt:, n·~
admit its national, on the ground of the duty of th · St at · to gTallL t11 it s
nationals the right to reside on its t ·rritory. That duty ofth" Stat· towards it s
nationals under municipal law becnm •s a duty towa.n.ls other Statts; it
becomes an obligation of international law. 1111 The right of sojourn in the
form of the converse duties of Stat s resulting from it hash~ ·n mentioned by
Finland in her observations on the points drawn up by the Pr ·paratury
Committee to the Conference for the Codification of Int rnational law.11•1
Authorities in positive international law on this point hav · b ·en rare IJUt
have been increasing lately. The Universal 0 claration of Human Rights-
which, though not a legally binding instrument, carries consid rabl •
weight-provides in Article 13: "I. Everyone has the right to freedom of
movement and residence within the borders of each State." ''2. Ev •ryonc
has the right to leave any country, including his own, and to return to his
count1y'' (emphasis added).
The International Covenant on Civil and Political Rights 117 provides in
Art. 12, para. 4: "No one shall be arbitrarily deprived of the right to ent r
his own country."
The International Convention on the Elimination of All Forms of Racial
Discrimination 118 obliges the States Parties to guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic origin,
to equality before the law, notably in the enjoyment of certain rights, inter
111. Cf Att.-Gen.for Canada v. Cain [1906) A.C. 542, at p. 546, and Oppenheim, pp. 69 1- 3.
112. Cf van Panhuys pp. 55, 5b.
113. Cf Lessing, Staatsangelwerigkeit, p. 113.
114. So-called " reconduction" (droit de renvoi, refoulement ) of a non-resident, as distinct from
expulsion, i.e., an order to a resident to leave the territory.
115. Cf Havana Convention on the Status of Aliens, February 20, 1925, Article 6: "Stat~s
arc .reqmred to receive their nationals expelled from foreign soil who seck to enter their
terntory." (U.S. Treary Series, vol. IV, p. 4722, at p . 4724. )
116. Bases of f:!~~~sion, p. 16. Cf Fischer Williams! loc. cit. p. 55; Blunt~chli, Das moder~e
~oelkerrecht der zwzlmerten Staaten als Rechtsbuch dargestellt, p. 215; Oppenheim, vol. I • P· 64 '
Sieber, Das Staatsb~Urgerrecht im internationalen Verkehr p A
' • T. f
117. Annex to General Assembly Resolution 2200/XXI of December 16, 1966; as 0
August 31, 1978, 50 States had become Parties. . b
ll8 U.N.T.S. vol. 660, p. 195; as of August 31, 1978, the Convention had been rauficd Y
100 States.
The Duty of Admission 47

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

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

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

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

(b) United Kingdom Immigration Legislation

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

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

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

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

128. 1971 c. 77.

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

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

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

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

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

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

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

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

(c) Former nationals

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

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

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

141. See infra, pp. 115-6.

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

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

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

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

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

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

I 56. See supra, p. 27.

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

La C irconstance que !'indigent

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

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

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

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

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

I63. Op. cit., p. 132.

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

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

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

F. Summary

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

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

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

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

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

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

MUNICIPAL LAW AND

INTERNATIONAL LAW
 Chapter 4

"Exclusive Domestic Jurisdiction"

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

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

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

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

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

The matters primarily thought of in this connection were tariffs and

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

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

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

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

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

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

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

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

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

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

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

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

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

25. General Assembly R esolution 429 (V) .

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

Decisions of International Tribunals

A. Nationality Decrees in Tunis and Morocco

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

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

72 Decisions of International Tribunals

situation of the specific Protectorate concerned from the standpoint of

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

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

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

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

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

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

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

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

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

B. Other Decisions of International Tribunals

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

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

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

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

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

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

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

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

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

In the Flegenheimer Claim 40 the Italian-United States Conciliatio

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

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

Decisions of Municipal Courts

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

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

I. [1921] 2 Ch. 67.

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

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

decisions cited merely refused to give effect to such denatwnahsatiOns for

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

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

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

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

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

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

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

I. Bases <if Discussion, p. 118.

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

The United States Government replied: 3

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

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

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

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

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

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

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

The Views of Writers

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

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

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

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

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

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

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

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

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

Summary

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

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

1. See supra, p. 73.

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

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

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

4. CJ Lessing, Staatsangehoerigkeit, p. 200.

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

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

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

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

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

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

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

 Part Three

THE PUBLIC
INTERNATIONAL LAW
OF NATIONALITY
 Chapter lO

Limitations on Conferment
and Withdrawal of Nationality

A. Acquisition of Nationality

1. Original Acquisition

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

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

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

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

'·
96 Limitations on Conferment and Withdrawal of Nationality

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

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

2. Derivative Acquisition (Naturalisation)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As regards this, the Law Officers advised:

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

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

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

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

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

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

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

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

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

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

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

7 ~i. /hid., p. :l1·BI.

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

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

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

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

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

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

that loss of British nationality should be consequential on

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

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

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

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

....
Acquisition of Nationality 109

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

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

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

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

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

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

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

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

acquisition of nationality by legitimation or adoption or of minors through

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Loss of Nationality

1. In General

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

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

121. See infra, p. 162.

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

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

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 117

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

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

.:. . Drnatitmnlisatiotl

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

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

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

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

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

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

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

(ii) Departure or sojourn abroad:

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

(iii) Convictionfor certain crimes:

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

(iv) Political attitude or activities:

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

(v) Racial and national grounds:

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

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

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

143. By Presidential Decree of August 2, 1945.

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

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

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

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

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

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

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

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

168. Ibid. p. 340.

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

Article 9 of the Convention absolutely prohibits discriminatory de-

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

172. See infra, p. 162.

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

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

175. See supra, pp. 53-7.

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

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

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

3. Expatriation and Substitution of Nationality

It seems expedient to investigate the questions of expatriation and

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

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

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

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

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

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

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

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

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

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

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

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

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

The Convention between the Kingdom of Wiirttemberg and the United

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

205. Ibid., p. 665.

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

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

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

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

Effect of Territorial Transfers on Nationality

A. Introduction

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

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

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

B. Universal Succession

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

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

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

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

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

In the Comment it is stated:

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

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

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

assumes th at the successor State confers

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

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

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

successor State conferred its nationality without exception on the former

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

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

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

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

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

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

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

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

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

originally of Czechoslovak nationality and was resident in the United States

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

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

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

C. Partial Succession

1. In General

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

transferred unless they expressly opt to change their original nationality,

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

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

The view presented here is supported by the decisions of international

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

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

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

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

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

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

2. Cession

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

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

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

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

3. Decolonisation92

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

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

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

93. No. 60-752.

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

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

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

98. Cf de Burlet p. 153.

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

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

.
"patrimoine humain" ·

4. Option

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

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

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

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

107. Supra, p. 140n.

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

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

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

also possessed United Kingdom or another nationa lity were entitled to

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

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

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

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

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

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

"Conflict Rules"

A. Introduction

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

B. Statelessness

1. In General

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

I. See supra, p. 90.

162 " Conflict Rules"

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

2. (a) International Action on Statelessness

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

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

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

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

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

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

I0. See below, Appendix I.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Plural Nationality

1. In General

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

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

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

2. Decisions of International Tribunals ( a) Earlier cases

The problem of plural nationality has frequently. arisen before international

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

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

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

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

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

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

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

61. At pp. 1209, 1210.

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

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

65. Moore, Arb. , p. 2456.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court declared:

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

88. At pp. 20-l.

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

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

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

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

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

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

10 I. Supra pp. 9-12.

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

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

(c) The Italian Conciliation Commissions

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

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

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

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

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

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

112. At pp. 455- 6.

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

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

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

(d) Conclusions

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

128. 25 Int. Law Reports p. 91.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The present writer understands that the confidential "Diplomatic Service

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

151. See Appendix 2.

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

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

3. State Practice: (c) Treaties

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

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

a tegorv belong the num erous naturalisation conventions, beginning with

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

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

163. See supra, pp. 131-2.

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

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

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

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

4. Decisions of Municipal Courts

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

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

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

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

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

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

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

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

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

191. [1946 ) A.C. 347.

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

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

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

5. The Views of Writers

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

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

resembling that of the third State. 20s

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

D. Conclusions

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

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

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

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

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

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

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

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

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

220. See supra, Chaps. 10 and 11.

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

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

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

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

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

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

For the purpose of this Order . .

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

241. See supra, p. 164.

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

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

245. Supra, p. 201.

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

Proof of Nationality

A. In General

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

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

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

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

B. The Practice of International Tribunals

I. Introduction

The following review of decisions of international tribunals purports to

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

3. Op. cit., p. 485.

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

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

2. Municipal Law of Evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Rules of Evidence
(a) Nature of the Evidence Required
The first question which arose in claims cases before internatio 1
tribunals as to evidence of nationality was that .of the conclusiveness of~
proof to be furnished .. Convincin? .pro~f was re~Uired by the United States~
Mexican General Claims CommiSSion m Hatton s Case. 37 The case of Willi
A. Parker has also been cited in support, 38 but it was explicitly stated in t~:
case:
... the Commission rejects the contention that evidence put forward by the claimant and not
rebutted by the respondent ~ust n~cessarily be considered as conclusive. But, when the
claimant has established a pnma facie case and the respondent has offered no evidenc .
rebuttal the latter may not insist that the r.aormer pi'I e up evi'dence to estabhsh
· its allegat'em
' • . r. d b. IOns
beyond a reasonable doubt without pomung out some reason aor ou tmg.. . .ae
That prima facie evidence is sufficient was indeed the view held by
international tribunals in the majority of cases. It was held "with practically
unbroken uniformity" that a certificate of naturalisation was prima facie
evidence of nationality. 40 This view was also taken in the Dominguez Case
decided by the United States-Spanish Commission. 41 More recently, prim~
facie evidence was considered sufficient by the Mexican Claims Commissions
in the cases of Lynch42 and Pinson. 43 In both these cases the Presiding
Commissioners took the view that to ask for conclusive evidence would be to
ask for a "probatio diabolica". 44
As pointed out by Feller,45 the difference between the requirements of
"convincing proof' and "prima facie evidence" of nationality is superficial.
The furnishing of absolutely conclusive proof frequently being impossible,
the claimant has to furnish satisfactory evidence, which may be challenged
by the defendant Government.
In the Flegenheimer Claim46 before the United States-Italian Conciliation
Commission the facts were as follows: Albert Flegenheimer's father had
emigrated in 1864 from the Grand Duchy of Baden to the United States
where he was naturalised in 1873. In 1874 he returned to Germany and
settled in Wiirttemberg where he was naturalised in 1894. Three of his
children, including Albert, were included in his naturalisation. The latter
lived in Germany until 1937 when, being Jewish, he was ordered to leave
Germany. He went to Italy, then, in 1939, to Canada where he had his

37. U.N. Reports, vol. IV, p. 329; Annual Digest, 1927- 28, Case No. 335.
38. See Feller, p. 271, n. 60.
39. U..N. Reports, vol. IV, p. 39.
40. Borcha~d, .P: 522, who cites Delgado (U.S.) v. Spain (Moore, Arb., p. 2590) and Madan
(U.S.) v. Spam (tbtd., pp. 2638, 2641) in S""r:--.·-t
41. Ibid., pp. 2595-6. .
42. Decirions and Opinions, p. 20, at p. 21; U..N. Reports, vol. V, p. 17, at p. 19.
43. U.N. Reports, vol. V, at pp. 367, 372, 375-9.
44. ~nch Case, at p. 21, Pinson Case, at p. 366.
45. At p. 272.
46. 25 Int. Law Reports p. 91; see supra, p. 184.
Thr Practicl' of lntrmational Tribunals 211

German pa ·sport renewed. In November of that year he submitted his first

claim for United States nationality. The claim was decided nega tively by a
Board of Special Inquiry but Flegenheimer was admitted to the United
States for a limited period. In December 1939 the Department of State
informed him that he could not be registered as a United States national.
~feanwhile, Flegenheimer had been divested of his German nationality
under the Law of July 14, 1933. In February 1942 the Immigration and
Naturalisation Service of the Department of Justice ordered after a
"supplemental inquiry' that he be ''given the status of American national"
and, after some delay, the State Department issued a passport to him in
October 1946. On May 8, 1952 Flegenheimer applied for a certificate of
United States nationality. The State Department declared, as against his
statement that he had made inquiries for the purpose of obtaining
recognition of his American nationality at various consulates and at an
American Embassy, that there was no record ofsuch inquiries. Onjuly 10,
1957, more than a year after the introduction of the proceedings before the
Conciliation Commission, the American authorities ordered that a
certificate of citizenship be issued to the claimant. ·
The Commission, in an unusually long and thorough decision, examined
the question of Flegenheimer's nationality, of his treatment as an enemy
under Article 78 of the Peace Treaty with Italy and of evidence of
nationality.
On the question of nationality the Commission held that Flegenheimer
acquired German and Wiirttemberg nationality as the result of his
naturalisation in \.Viirttemberg in 1894 and thereby lost, under the Bancroft
Treaty of 1868 between the United States and Wiirttemberg, his American
nationality after five years' residence in Wiirttemberg, and that he never
reacquired American nationality.
On the question of the probative value of the certificate of nationality the
Commission made a thorough review of the precedents, the practice of the
United States before international tribunals and the writings of publicists. It
held that "in an international dispute, official declarations, testimonials or
certificates do not have the same effect as in municipal law. They are
statements made by one of the Parties to the dispute which, when denied,
must be proved like any other allegation"Y " The Commission could not
disregard the scope of the presumption of truth 'omnia rite acta praesumuntur'
but it was a prtUSUmptio juris tantum which could be reversed by con-
trary evidence.""
"The Commission", it went on, "in conformity with the case law of
international tribunals, holds that it is not bound by the provisions of the
national law in question, either as regards the manner or as regards the form
in which proof of nationality must be submitted ... " 49 "The Commission, on

47. 25 Int. Law Reports, at p. 98.

48. At p. 107.
49. At p. 109.
 212 Proof of .Nationality

the basis of the research mad e in jurisprudence a nd a uthorita tive doctrine

holds tha t its powers of investigation as to whether Albert I· lcgcnhcirnc;
validly acq uired United States nationality is all the less disputable in that 110
American judgmen t of naturalisation has been introduced during these
proceed ings but a mere ad ministrative statem ent which, accord ing to the
interna tional practice commonly followed, is subjected to the valuation of
every court, whether national or international, to which the question of the
validity of a nationality is submitted ... " 50
" The Commission nevertheless considers that the observations made by
the commentators of the M edina Case cannot be ignored, a nd that
international jurisdictions must ac t with the greatest caution and exercise
their powers of investiga tion only if the criticism directed by one Party
against the allegations of the other, not only are not manifestly groundless
but are of such gravity as to cause serious doubts in the minds of thei;
M embers with regard to the reality and truth of the nationality invoked. "51
" From the standpoint of merit, even certificates of nationality the content
of which is proof under the municipal law of the issuing State, can be
examined and, if the case warrants, rejected by international bodies
rendering judgment under the Law of Nations, when these certificates are
the result of fraud, or have been issued by favour in order to assure a person a
diplomatic protection to which he would not be otherwise entitled, or where
they are impaired by serious errors, or where they are inconsistent with the
provisions of international treaties governing questions of nationality in
matters of relationship with the alleged national State, or, finally, when they
are contrary to the general principles of the Law of Nations on nationality
which forbid, for instance, the compulsory naturalization of aliens. It is thus
not sufficient that a certificate of nationality be plausible for it to be
recognized by international jurisdictions; the latter have the power of
investigating the probative value thereof even if its "prima facie" content does
not appear to be incorrect. " 52
The petition was rejected on the ground of inadmissibility.

(h) Admission by Defendant

What constitutes satisfactory evidence will be determined by the tribunal
on the merits of the case. Since the task of the tribunal is the ascertainment of
truth, the fact that the nationality of the claimant has not been disputed by
the defendant Government is not decisive. It was held in the Parker Case:
On the other hand, the Commission rejects the contention that evidence put forward by the
claimant and not rebutted by the respondent must necessarily be considered as !conclusive. ... 63
Ralston 54 states that "in many Commissions the mere presentation of the

50. At pp. 109- 10.

51. At p . 110.
52. At p. 112.
53. U.N. Reports, vol. IV, p. 35, at p. 39.
54. Law and Procedure, p. 173.
The Praflice of International Tribunals 213

claim by the accredited representative of the claimant countrv ha in the

absence of di pute or circumstances of suspicion, been tre~ted 'by the
Comm1s ·wn a satisfactory". The Law Officers of the Crown wh en consulted
by the For.eign Office o n. t.he rej ec tion of the claim of one James Noble, a
British subJ <:Ct, by the Bnt1sh-Chilean Claims Commission, on the ground
that the cla1mant had not proved his nationality, stated that
... it appeared that the Tribunal no t having laid down any rule that preliminary proof of
British nationality would be required, it was assumed by the British agent that the fact of the
claim being presented by him would be accepted as prima facie proof. .. tha t we think H.M .
Government would be justified in addressing a remonstrance to the Chilean Government on the
subject, and in asking them to agree to the case being reopened in ord er to allow of evidence
being gi\'en to prove the nationa lity of the claimant.~
Feller56 states that "even the admissions of the respondent government
cannot in all cases take the place of adequate proof of nationality". It was
held, however, in Hendry's Case, decided by the United States-Mexican
General Claims Commission in 1930,57 that since the respondent
Government had admitted the claimant's nationality it was estopped from
challenging it.
The view that admission by the respondent Government is insufficient
seems indeed the correct view, since it is the aim of international tribunals to
establish absolute truth, not relative truth, or what is accepted as truth inter
partes. An international tribunal will, however, ab initio, presume that a
Government espousing a claim has acted in good faith. This was the view
taken by the British-United States Mixed Claims Commission in the case of
the schooners The Jessie, Thomas F. Bayard and Pescawha in 1921.58 The
opposite view put forward by the Spanish Arbitrator in the Delgado Case, 59 in
objecting to the admission of a naturalisation certificate as evidence on
account of the frequency of fraudulent naturalisation practices, was not
accepted in that case, nor has it been followed in other cases.

(c) The "Best Evidence" Rule

The so-called "best evidence" rule is a rule of common law, whose scope
has not been precisely defined. The term has, for this reason, been subjected
to criticism.so It certainly covers the principle that the terms of a document
have to be proved by the document itself, and that copies of documents are
only to be admitted when the original has been lost or destroyed.
International tribunals, however, not being bound by local rules of evidence,
are not bound by this rule. They have followed it in so far as they have
preferred primary or direct evidence to secondary or indirect evidence. Not
being tied to any strict rule, they have, however, admitted secondary

55. L.O.R. (F.O.), 1884, No.6, p. 5.

56. At p. 271.
57. U.N. Reports, vol. IV, p. 616.
58. 16 A.J. (1922), p. 115.
59. Moore, Arb., at pp. 2590, 2591.
60. See Wigmore on Evidence, pp. 705- 15.
 214 Proof of Nationality

evidence, even when primary e~iden~e might. have been available.

International tribunals have almost mvanably considered themselves free t
assess the weight ofsuch evidence. 61 Certified copies of documents have bee~
accepted somewhat freely as sufficient proof of the contents of the original
document.
The British-Mexican Claims Commission referred indirectly to the "best
evidence" rule in the Udell Case. 62 In Cameron's Case, decided by the same
Commission, the British Commissioner referred to the rule as regards
establishment of birth, for which, in England, the Register of Births was the
best evidence. 63

(d) Specific Methods of Proof

Writers on international law have, in a somewhat eclectic way, reviewed
the attitude of international tribunals towards specific kinds of proof and
methods of establishing nationality, including documentary evidence, both
as regards their admissibility and as regards their probative force.64 It is
submitted that such eclecticism serves little purpose. The decisions were
largely taken by tribunals established ad hoc and, in the absence of the
principle stare decisis, their practice can only to a very small extent be
considered as having contributed to the development of rules of evidence by
way of precedent. Decisions as to the admissibility of certain means and
modes of proof and their probative value were taken on the merits of each
case, and have to be understood in the light of all the circumstances of the
case. The probative value of certain types of documentary evidence, such as
documents describing a person as a national of a certain State, depends on
the intrinsic value of the document itself, and on the nature and amount of
evidence required by the issuing authority for the establishment of the
nationality of the person. It follows that where indirect documentary
evidence of nationality is admitted, the probative value of such evidence will
depend on the laws and regulations of the country concerned which define
the nature and amount of evidence required for the issue of such documents,
and as to whether these laws and regulations have been observed by the
issuing authority in order to satisfy itself that the person described in the
document was a national. The same type of document issued by the
authorities of different countries may, therefore, have a different probative
value. Moreover, documents of the same type issued by different authorities
of the same State may be of different value. The probative value of consular
certificates and passports will be discussed later, when these specific types of
documents of municipal law, which are designed to operate extrater-
ritorially, will be examined.65

61. Cf. Sandifer, Evidmct bifore International Tribunals, 2nd ed. 1975, pp. 202- 205.
62. Further Decision.r and Opinion.r, p. 61, at p. 63.
63. Decision.r and Opinion.r, p. 33, at pp. 38, 39; U.N. Reports, vol. V, p. 27, at p. 32.
64. For example, Ralston, Law and Procedure, pp. 173-9; Feller, pp. 271-7; and Sandifer, op.
cit., pp. 219-229.
65. See infra, pp. 222- 36.
The Practice of International Tribunals 215

If anything, the prac tice of international tribunals shows that no unifo rm

rules have been developed as to the admissibility and evaluation ofkinds and
types of proof of nationality. As was stated in the Solis Case:
It requires only_a ~oderate measure of familiarity with international arbitral decisions, many
of which are conAicung, to know that no concrete rule of international law has been formulated
on this subject of proof of nationa lity.ea
While international tribunals are not bound by municipal rules of evidence,
the fact that they have to rely on municipal kinds of proof, in particular on
documentary evidence established in accordance with municipal law, and
that they have to judge the intrinsic value of such documents, bears out the
already-quoted statement of Commissioner Nielsen in the Solis Case67 that
"an international tribunal should not ignore local laws and practice with
regard to proof of nationality".
The kinds ofproofand the methods by which nationality may be proved
before an international tribunal may be manifold. Since nationality is
determined by the law of the country whose nationality is claimed,
evidence-usually of a documentary nature-that the person was con-
sidered as a national by an authority qualified under municipal law to
determine or to certify nationality will, as a rule, be the best evidence.
The laws of many countries contain provisions as to how nationality may
be proved. Thus in the United Kingdom the Secretary of State for the Home
Department may, according to section 25 of the British Nationality Act,
1948:
. .. on the application of any person with respect to whose citizenship of the United Kingdom
and Colonies a doubt exists, whether on a question offact or of law, certify that that person is a
citizen of the United Kingdom and Colonies; and a certificate issued under this section, shall
unless it is proved that it was obtained by means offraud, false representation or concealment of
any material fact, be conclusive evidence that that person was such a citizen on the date thereof,
but without prejudice to any evidence that he was such a citizen at an earlier date.
This " certificate of citizenship in case of doubt" must not be confused with
the "certificate of British nationality" which is issued in certain cases by
British consuls. 68 The Act contains further provisions as to evidence. In
section 27 it is stated that a document certified as a true copy by the person
who issued the original document shall be prima facie evidence of such
document and that a certificate given by or on behalf of the Secretary of
State that a person was at any time in Crown Service under H.M.
Government in the United Kingdom shall be conclusive evidence of that
fact.
There exists, in addition, the possibility of applying in certain
circumstances to the High Court for a decree declaring the right of the
applicant "to be deemed a natural-born subject of His Majesty". 69

66. U.N. Reports, vol. IV, p. 358, at p. 360.

67. See supra, p. 209.
68. See infra, p. 233.
69. Supreme Court of judicature (Consolidation) Act, 1925, s. 188 (15 & 16 Geo. 5, c. 49).
 Proof of .Nationality
216
'ted States the Immigration and Nationality Act, 195 2
I n t he U nl , I' . b ,
'd c.0 r the issue of a certificate of natura tsat10n. y the Clerk of the
provl es •• . . ( . 338) b h
C ourt wh1c . h effected the naturahsauon secu on or y t e Attorney-
h'ld d . .
G enera 1 I · n . the case of an adopted c 1 an m certam other cases
'fi f ·· h' b
(section 343), and for the issu~ of a certt cate o Citizens tp y the Attorney-
General in certain cases (section 341) · . . ..
The Code de La Nationalite franfaise co? tams d e.talled provlSlons concerning
proofofnationality by judicial proc.eedt~gs (Artt.cles 124, 128, 129, 131., 136)
and the issue of certificates of natiOnality (Articles 149-51 ). Accordmg to
these provisions every person has th.e right to institute proceedings in the civil
courts in order that it may b e dectded whether he does or does not possess
French nationality (Article 129). Such decision has the authority of res
judicata, that is, it takes effect erga omnes. T?eJuges ~e paix are sol~ly competent
to issue certificates of French nationality (Article 149 ) whtch constitute
prima facie evidence of that nationality (Article 150) .
In the absence of documentary evidence of nationality of such a nature
international tribunals have admitted secondary evidence of nationality. In'
this category fall documents showing that the holder was considered a
national by the issuing authority-that authority, however, not being
qualified under national law to d etermine questions of nationality
conclusively. The most important of these documents are consular
°
certificates, · which will be discussed separately. 7 Finally, international
tribunals have on occasion admitted evidence of certain facts from which
nationality may be inferred, such as voting in elections, holding of public
office, etc. 71
Another method of proving nationality has been the production of
evidence of facts the existence of which confers nationality according to
municipal law, i.e., birth in the territory injus soli countries, d escent from
parents possessing the nationality concerned in jus sanguinis countries, or of a
combination of facts required as a condition for the possession of nationality
under municipal law. In some cases, evidence of certain facts given by
witnesses or an a ffidavit has been admitted in the absence of other evidence
or as corroborative evidence. 7 2
Writers have also distinguished, as regards the necessary proof of
nationality, between the various modes of acquisition of nationality; but
such distinction is irrelevant where proof of nationa lity is concerned. Where
nationality is established by the proof of certain facts conferring nationality,

70. See infra, pp. 230- 6.

71. Cf the Eakin Claim, decided by the British-United States Commission in 1871 (Hale's
Report, P· 15, .Moore, Arb., P·. 2819), the Canevaro Case (see supra, p. 170), the Archuleta Claim,
before the Umtcd Statcs-Mex1can Genera l Claims Commission (U.N. Reports, vol. IV, p. 376, at
P· 378), and the Deut~ and Deut~ Claim (ibid. , p . 472) and Sewell Claim (ibid. , p. 626, at p. 628)
before the same Commission.
~2: Cf the Kidd .Claim, decided by the British-Mexican Claims Commission (Decisions and
Opmwn:, .P· 50). Wlt~esses were held to be insufficient evidence by the German-Venezuelan
Comm1ss1on of 1903 m the Valentiner Case (U.N. ReportS, vol. X , p. 403) .
7 ht Pwrtirc q/ lntt'171tlliano/ 7 r-ibunals

the nw<k l'f acqui:-;itioll d c~<·nnilleS, IHlWl'\' ('1', til(' fact~ to lw provC'd . But
sinCt' natiollality is acquin·d Ul Uirtla a\I(Otllatira JI I, \>Vitlanttl the iute"I'Ve'lllioll
of any authority. docunwntary prnof of llatioll:dit y S\ l nrquirt'd will he· le-ss
frequently ava ilable th:m in the· case of nationalit acqu ir"d suhsrqttl'lll tn
birth. with or by th · illtervc·ntiotl o f tlu· a ttthoritit's, partintlarl y hy
naturalis~Hion. Proof of nationalit y acquitTd at birth IIICII't' frC'qttl'ntl y
req uires, ti.H'rcfore, proofofthe rcquircnu·nts oflhrt on which the arquisitiou
of thl' n<Jtionality depends.
Nationality acquired by birth in the tt·nitory ca n b · prt~vcd b y prov iu~
the place of birth. Wh('l'C ollicial registers or hirth c·xist they {'(,)llstitUtC' bl'St
evidence of the d ate and place of birth. In the- Camrron Cau 7 a hdtll'" the
British-Mexican Claims Commission, th · Rritish onnnissiona in his
separate Opinion opposed the contention ofthl' Mcxi ·au C:ornmissionC'r tha t
birth certificates arc primary eviclcnCl'; tlwy w Te, accnrding- to English law,
secondary evidence, like baptismal certificates or entrie-s in a l~tmil y bible:
the Register of Births was the only prim~ry evidence. Ba ptismal certilicates
were, as evidence, in some respt'cts even superior to a birth rcrt ifirat ". 74
Transcripts from a famil y l>il>lc were acccpt<'d iu the Munror Cast' bcli~t·c the
United Sta tcs-Mc:·xican Claims Cummissiou in 1920. 76 Affidavit" of the
mother a nd of a n older sister, together with th(· statement of the claimant,
were considered as sufTicient proof as to the place of birth in the Dyches Casr. 76
On tlu; whole, the practice of intematioua l tribunals in admiuiug
seconda ry evidence of birth has not been unif(Jnn. It was stat ed in th ·Parker
Case 17 tha t:
While ordinarily it is dcsirahl<- that C<Ttifkatcs of n:~istration of birth which an· usually
contemporaneous with th e facl of birth, shoulcf be prnduct•d in suppo rt of a claim ofnaliona lity
by birth, or the absence of such certificates cxplairwd, it by no means fi)llows tha t proof of birth
cannot be made in any other way. 7"
Proof of acquisition of nationality a t birth jure sangu£nis provides gr --ater
difficulties, since it involves, besides evidence of the fact of dt·sccut from thl'
parent from whom na tionality is derived, evidence of the nationality of tha t
parent. Proof of the relevant facts ofbirth, by a birth ccrtifkat ·or othC'rwisc,
is therefore of little relevance in such cases, as it merely rders back to the
question of evidence of the nationa lity of the person to the question of
evidence of the nationality of his ascenda nt- which may well prove to be a
probatio diabolica, as was stated in the PinJfm Case, in which pcrtint"nt remarks
as to the difficulty of proving na tionality by tlcscen t were macle.n

73. Decisions and Opinions, p. 33; U.N. Reports, vnl. V, at p. :12.

74. Decisions and Opinions, at pp. 38, 39.
_75. Opinions of Commissioners (Gcn.t!I.C. ) ( 1929), p. 31 4; U.N. Reports, vol. IV, p. 53U; Amtual
Drgest, 1929- :iO, Case No. 109.
76. Opinions of Commissioners (Grn.CI.C. ) (1929), p. 195; U.N. Reports, vol. IV, p. ·~513 (at
p. 460).
77. U.N. Reports, vol. IV, p. 35.
78. At p. 38.
79. U.N. Reports, vol. V, p. 327, a t pp. 364- 7.
218 Proof of Nationality

(e) Evidence of Naturalisation: the q._uesti~n of F:aud . .

The question of evidence of nattonahty which has occupied. . mternationa1
tribunals most freque~tly is that of pro? f 0 f 1
na~wna tty acquired by
naturalisation. The certificate of naturahsauon,. .
and, m d"
the case of countr·•es
I
such as the United States, where natura Isatwn ~rocee mgs are conducted
by the courts, the judicial record o~ the proceed~ngs are the best evidence.
Other evidence will only be adm1tted where lt can be sho~n that the
certificate or record has been lost or destroyed .. Such othe~ evidence may
include circumstantial evidence and even the testimony ?fwttnesses as to the
naturalisation proceedings. 80 The latter was accepted m the Mantin Claim
before the United States-Mexican Claims Commission in 1868.81
A problem which frequently exercised the Claims Commissions was
whether they were conclusively bound by evidence of naturalisation
whether the claim to a particular nationality by a person to whom ~
certificate of naturalisation had been granted could be validly contested by
the defendant Government. This is the so-called question of impeachment of
certificates of naturalisation.82 It is one of the few questions in this field where
a rule seems to have been developed by international tribunals by way of
precedent.
The question was dealt with by the United States-Spanish Claims
Commission set up under an Agreement of February 12, 1871,83 which
provided that the Spanish Government could "traverse the allegation of
American citizenship", in which case "competent and sufficient proof
thereof ' would be required.84 The relevant cases before the Commission, as
well as similar cases before other Commissions, have been extensively
reviewed by Moore 85 and Bochard. 86 The dictum in the Medina Case has
already been quoted.87
The power of an international tribunal to inquire into the legality of a
naturalisation which it was sought to prove by the production of a certificate
of naturalisation was at first contested by the United States Department of
State. In Buz.z.i's Case,88 Secretary of State Blaine stated, in 1881:
For the present it is sufficient that I refuse to recognise the power of the Commission to
denationalise an American citizen. When a court of competent jurisdiction, administering the
law of the land, issued its regular certificate of naturalisation to Pedro Buzzi, he was made a
citizen of the United States, and no power resides in the Executive Department of this
Government to reverse or review that judgment. And what the power of the Executive cannot

80. Cf Sandifer op. cit. pp. 219-24.

81. Moore, Arb., p. 2540; Ms. Opinions, vol. III, p. 417.
82. Moore, Digest, vol. Ill, p. 499.
83. U.S. Treaties, p. 1661.
84. Moore, Digest, vol. III, p. 506.
85. Arb., pp. 2583-2655, Digest, vol. III, pp. 506-9.
86. At pp. 522-6.
87. See supra, pp. 208-9.
88. Moore, Arb., p. 2613 (see on this case also supra, p. 76).
"[ h1• Pmdit'f' of lnlnnationnl 7 ribuna/s

do it self it canno t ddf·g.tll' tu a C:ollllllissio n, w hic h is thr nttTc crea tion of a n t·xl·rutivc
,\j~TCI'Oit'llt . ~~~

His successor, 1\lr. Fre liugha usen, took a difl'crcnt view, however. He wrote
to thr Amaican Agent in 1882:
... the tnH' rule tn g-overn till' Commission is, tha t when an allegation of naturalisation is
tr.tvrr:<cd :md thr a llegation is <·stahlishcd prima farit b y till' produc tion of a rcrt ificat(' of
nawralisation. or b y other compt·tl'llt a nd sufliricnt proof~ it can only be impeaciH'd by showing
in ronl(>nnity with tlw adjudicatio n of" the courts of the Un ited !:>tatf·s on that topic that fraud,
consisting of intentional a nd dishonest misre presentation or suppn·ssion of material f:tc ts, by the
party obtaining the j udgment, was p rac tised upon it, o r tha t the na turalisation was granted in
violation of a trea ty stipulation or of a rule of internationallaw."o
This rule was adopted by the Arbitrators, and the Commission decided
further cases in accordance with it.
It was broadly followed by the French-United States Mixed C laims
Commission of 1880 in the Kuhnagel Claim (where a certificate of
naturalisation was set aside on the ground of wilful misrepresentation of
material facts), 91 by the Spanish Treaty Claims Commission of 1901 in the de
Rui<. Case, 92 and by the United States-Venezuelan Commission of 1903 in the
Flutie Case.93 The rule was incorporated in the draft Convention prepared by
the Harvard Law R esearch (Article 17).
The Egyptia n Mixed Court of Appeal held in 1937, in Marie Taamy et al.
v. Adele Taamy et al., that while in principle a certificate ofnaturalisation was
conclusive evidence, the court would disregard a naturalisation obtained by
fraud sufficiently established. 94 In the Salem Case, decided by the Special
Arbitral Tribunal set up by the United States and Egypt in 1931, the
Tribunal stated:
... [An] arbitral tribunal should usc the greatest caution when giving a decision that the
nationality which is claimed and acknowledged as valid b y a sovereign power has been acquired
by fraud , and as each d oubt in this respect sh ould be interpre ted in favour of the validity of the
act of naturalisation, the Arbitral Tribunal cannot, in the Saltm Case, consider tha t there was a
fraudulent acquisition of American citizenship. 116
Dr. Nielsen, in his Dissenting Opinion, expressed "serious doubts with
respect to the propriety of attempts of any international tribunal in effect to
nullify the decrees of a domestic tribunal conferring naturalisation ". 96
In the Nottebohm Case conclusive evidence of naturalisation was produced
but fraud had been alleged. The Court did not pronounce on the question of
fraud but held that Nottebohm's naturalisation " was lacking in the
genuineness requisite to an act of such importance, if it is entitled to be

89. Ibid., at pp. 2618, 2619.

90. Ibid. , at p. 2620.
91. Moore, Arb., pp. 2647, 2649.
92. Decision quoted from van Dyne, .Naturalisation, pp. 167- 8.
93. R alston, Report, p. 38, at pp. 41 - 5.
94. Clunet, 1938, pp. 552-4.
95. U.N. Reports, vol. II , at p. 1186; Annual Digest, 1931- 32, Case No. 98.
96. At p. 1209.
 Proof of N aliona{zry
·
220
te in the position of Guatemala. It was granted with
respected b Y a Sta . d d · · . · (Jut
h Cept of nationahty a opte m mtcrnat10nal relations 97
regard to t e con . d h . . ..
c Guggenheim summe up t c pract1ce of mtcrnatio 1
.
Ju dge ad ho
. h e words: "Accordmg
.
tot
h
e prevai
.1.
mg
.
vtcw
. .
m mtcrnatio
na
tnbuna1s m t es . . . . . na1
. d' . d · ·ons there 1s no doubt that an mternatJOna 1 tnbunal 1s cntitl d
JU lCla1 eClSl ' . . 'fi f . C
. .
to mvesuga e t the circumstances m which a certi 1cate o naturahsation h as
been granted . " 98 .
Under the law of the United Kmgdom, a person who has obtained a
'fi t f naturalisation by means of fraud , false representation or th
certl ca e o b d · d f h' · · e
ment of any material fact may e epnve o IS Citizenship (British
conceal d 'fi f ··
Nationality Act, 1948, s. 20 (2) ), an a cert1 cate o Citizenship is not
conclusive evidence if obtained by such mean.s (s: 25) . . .
Under the law of the United States, na.tur~l~sahon obt~med m this way is
to be revoked with retroactive effect by JUdicial proceedmgs (Immigration
and Nationality Act, 1952, s. 340 (a)). Accordmg to the practice of the
United States Department of State, certificates of naturalisation are not
considered as conclusive upon the Executive if they have been improperly
obtained. 99
It is submitted that the practice of international courts in this matter
touches upon a question of substance rather than of evidence. 100 The fact
that the de cujus had been naturalised by the competent authority was
conclusively proved in the cases cited above; he was therefore a national
according to the law of the State concerned unless and until the
naturalisation was cancelled. The international tribunals disregarded,
however, the nationality obtained by fraud, and in so doing they deviated
from the general rule of international law that questions of nationality are
determined by the State concerned under its own law, acting on the general
principles of law fraus omnia corrumpit and ex injuria jus non oritur.

4. Conclusions

1. International tribunals are not bound by municipal rules of evidence of

nationality.
2. International tribunals are free to determine the admissibility of evidence
for the establishment of nationality, and to evaluate the evidence adduced.
3. Before an international tribunal, the question of nationality is a question
of law, not ofjact. The reference to the " fact of nationality" made obiter in the
ParkerCast 101 seems open to dispute. (The Umpire may have been influenced

97. I.C.J. Reports, 1955, p. 4, at p. 26.

98. At p. 50.
~9. See Moor~, Di~est, vol. III, pp. 509, 510-3; and Borchard, pp. 526, 527.
ud~·J the DISSentl~g Opinions ofjudge Klaestad (at pp. 32-3),Judge Read (at P· ~8) ~nd
J0 f ~ hoc. Guggenhetm (at p. 65) in the Nottebohm Case who considered that the exammatwn
t e questton of fraud should have been joined to the merits.
101. See supra, p. 209.
 The Practice of International Tribunals 221

by the rule of English law that "foreign law" is a question of fact. ) The
correct view was taken in the Pinson Case:
. . . car en rcalite le "fait" de Ia nationalite (qui, soit dit incidamment, n 'est pas du tout un
" fait" mais plutot une relation ou une situationjuridique, qui n'est guere susceptible de preuves
directes) est beaucoup plus complique.tot
The dictum ofthe Permanent Court oflnternationaljustice in its judgment
concerning Certain German Interests in Polish Upper Silesia (Merits) toa that
From the standpoint of international law and of the court which is its organ, municipal laws
are merely facts which express the will and constitute the activities of States, in the same
manner as do legal decisions or administrative measures,
is, it is submitted, not in conflict with this point of view. The court went on to
say:
The court is certainly not called upon to interpret the Polish law as such, but there is nothing
to prevent the court's giving judgment on the question whether or not, in applying that law,
Poland is acting in conformity with its obligations towards Germany under the Geneva
Convention.
The position of the international tribunals mentioned above was similar.
They were either, as was the A~bitral Tribunal for Upper Silesia, called
upon to determine nationality on the basis of treaties, i.e., as a question of
international law; or, as Claims Tribunals, they had to decide on questions
of nationality as a preliminary point, in order to ascertain whether they had
jurisdiction according to the arbitral agreements under which they had been
set up. In this case, too, the question of nationality ceased to be solely a
question of municipal law.
As a matter of law, the question of nationality is not accessible to direct
proof. What can be proved are facts from which the possession of nationality
follows according to municipal law, e.g., birth on the territory.
International tribunals have also admitted evidence of the fact that the
person was considered a national by the authorities of the State concerned.
They considered themselves free, however, to assess the weight to be
attached to such evidence for the determination of the legal question of
nationality. Such evidence might consist in direct proof, usually by
documentary evidence, that the competent authority had determined the
person to be a national or had certified his nationality with conclusive effect.
It might further consist in evidence, as a rule documentary, that an authority
of the State concerned was satisfied that the person possessed the nationality
of that State. Finally it might consist in proof of facts from which it could be
inferred that the person was considered as a national by a competent
authority of the State (e.g., proof of voting in elections, holding of public
office).
An international tribunal is free to judge the relevance of such facts for the
determination of nationality, but in doing so it may have to take into

102. U.N. Reports, vol. V, at p. 364; Annual Digest, 1927- 28, Case No. 318.
103. P.C.I.J., Series A, No. 7, at p. 19.
 '"' '\lltlll 1111111 h·ip.d tllks of,., idt·ncc (t -.1! .. tht· .l!Ht 1 lllll a11d tt.llurc of tht'
:., idcth't' ,,(' 11 , 1titllt.tlit\ rcquirnl tin· c.'tltry i11 thc dcrtor.d rrgistn, lllldn
1111111 j,·ip.tl '·"' , will he ' ''~''" ill It ~ .tn'tll~lll by: '" i~ttcm.atiollal tribun.tl in
Pl'dcr "' .t:>:-c:-s the rdt'\':ltH't' (ll thr l.n·t ul \'ottll~ lor till' pmposl' of
dctcrtlliniu~ thr 11.\linll.dit~ nf thc dt' ruj11.1). u
11

·1. \\'la·r:-. ncnwdi11~ to ltltlltit·ip.tllaw. nationalit · is coutl-rrcd by . rtion

pf ,111 .tutl 11wi t\' .tud /nr tht' isstH' of a dontlllt'llt {as i11 the cast• of
11 .uuralis.tti~m ) . t'\ idrthT that the act has takc11 pl.tl't' and /or prorluctinn of
the dtll'tlllH'nt is sutlicicntly nmdusi\'1' to cktnmim· that the prr~on in
qucsti1111 pnss 1·ss 1·s the n.\lionalit · ~-c.HH't~mcd: The ~·Hie arlopted by
illtt't'l\:ttitmal tribunals th. t such natumaltt )' wtll bt· dtsrq:~;ardtd if it is
t'st.thlisht•d that it h;td been nbtainerl by fraud, i.r., that tlw authurity whirh
c11 nkrn'tl the n.\tinn:dit y and /or issued tlw documt•nt had bt--t'll wilfully
dt'<' t'i\'l'tl as to tht• ndsh·nn· of tlw f:tcts n'qHired by law for the confi.·tTncnt of
n:llit)tutlit\', is a rule of substnnce ratha tha n of procedur<'. It is a rule of
intt·rn.ltin;tal l:n.,., t()llowing- ti·om tht· principle.- fmus omnia rorrumpit, of tlw
s.mw n.\llll't' a~ tht• rule that. arrording to intcrnntional lnw, n;Hionality
\t.'qnit·1-d by a municipal lnw whirh i · inconsistent with int<·rnational law
must bt• di~tTgarcf<'d . ttl~

C. Internationally Accepted Nationality Documents

/. Pa.rsports

\\'hilt· the term passport has been used for centuri<'s, its meaning has
undergone considerable changes in the course of timt'. Its first usc in an
English statute was in 15+8. 108 where it was applied to a licence gin~n by a
militar · nuthorit y to a soldier to go on furlough. 107 In a Treaty between
Great Britain and Dt.'mnark ofjuly I L 1670 the v. ord is ust'd to cotmott'
"st·a brit.'fs" issued for ships but it is statt.-d in tht.' Treaty that "letters of
passport" might bt• rt"C}uired to be produced on land by men tran~lling. 108
Under a statutt' of 1793. 1119 aliens were required to obtain a passport from tht•
loc ll authorities of their place of residence. no It would seem that in the
eightt"enth cemury the term was mainly used for documents issued to aliens
by the so\'ereign of the territory in which the documents were effective. At
the beginning of t he nineteenth century the term was applied in particular to
a written pcrmission !,ri\'en by a belligerent to aliens allowing tlwm to trawl

l().f . Cf tht" dictum in tht" Solis Casr, syr11, p. 209.

10~. Cf th<' PiMlll Cast , svpra, p. 106, tht" .Notul.olmc Casr, svpra, pp. 176-8.
lOti. 'l. &. 3 Edw. 6. c. 2, s. 10.
107. Cf Sible. , "The Passport System .. , in } otmtal of tltt Sorirtv of CDW~paratic¥ Lltislatiort
(1906), pp. 26-33. llt p. :t?. .
1~. ~~ Sibl~ • 1«. rit.• p. 30; Diplod.:, "Passports and Prot<"Ction in lntt"rna tional Law". in
Grotr.u TfUSIJ('tu>J&S. 19--16, pp. 'l'l.- 59, a t p . -15.
H'l9. 33 Gt-o. 3, c. -l.
110. Diplock. '''" rit.• p. -16.
 Internationally Accepted Nationality Documents
223
in his territory or in territory occupied by him 111 This me · h · d
" r , . · · anmg as survive
in the request •Or passports by diplomatic envoys wishing t d r.
· · S · o epart •rom
the receivmg tate .m consequence . of ill-treatment , and the h an mg o th eir
d' f ·
passports by a belligerent to dtplomatic envoys of the other belligerent for
their departure on. thef.outbreak
. of war . 112 In the course of the n me
· t een th
h
century t e practice o Issum~ passports to aliens for travel in the issuing
co~ntry seems to have fallen mt? disu~e. During the French Revolution,
while passpo~ts ~~re at first abohshed m accordance with the proclaimed
right of the md1v1dual to freedom of movement, a number of laws were
enac.ted which prohibited the departure from France without a passport and
restnct.e? the nght to leave the cou~try.l.13 The use of passports issued by the
authonttes of the country of nationality to nationals travelling abroad
became more frequent in the nineteenth and the beginning of the twentieth
century. The possession of a passport was, however, not as a rule a
requirement for the crossing of frontiers. Only since the First World War has
the passport system in its modern sense been introduced in most countries,
i.e., the system whereby aliens who wish to enter a foreign territory are
required to produce a passport issued by the authorities of their country of
nationality. Not infrequently, admission is made dependent on the
possession of a visa, that is, the passport must have been visaed by a consul of
the CQuntry which the alien wishes to enter. It appears, indeed, that the visa
has replaced the passport in the earlier sense, i.e., a document issued to aliens
for the purpose of travel in the issuing country. 114
Thus, the modern passport is largely an identity and travel document
issued to the State's own nationals. Largely, but not exclusively, the
historical development is still reflected in the fact that many States issue
passports to non-nationals. There is no rule of international law which
prevents them from doing so. The issuing of passports to foreign nationals is
not inconsistent with international law, but the actual exercise of protection
over such persons abroad might violate the right of protection of the State of
nationality and would, therefore, be inconsistent with international law.
Consequently, at least a usage has developed that passports or travel
documents are issued only to nationals, resident stateless persons and such
foreign nationals as are unable or unwilling to obtain passports from the
authorities of their country of nationality.
These remarks seem necessary for an understanding of the question with
which we are concerned here, i.e., the relationship between passport and
nationality. The passport is a document whic~ is, as ~ rule, regulated by
municipal law. There may, and in fact do, exist treaties, most ,!'requently
bilateral treaties, which affect passports and regulate the effect wh1ch IS to be

III. Ibid., p. 48.

112. Oppenheim, vol. I, p. 817. . .
113. Cf Reale, "Le Probleme des passeports", in Hague &cuezl, 1934 (tv), PP· 89- 197 (at PP·
99-104).
114. See Borchard, p. 493; Diplock, loc. cit., p. 50.
 224 Proof of Nationality

given to them by the other Contracting Stat~ (_s) on the .basis of reciprocity.
In the absence of treaty regulations the conditions of exit from and entry to
the State territory, including the requirements of a documentary nature, are
a matter for municipal law.
Both the League ofNations and the United Nations have made efforts-
and the United Nations continues to do so-to arrive at uniform rules
governing questions of passports. 115 T~ey have hit?~rto mainly consisted of
recommendations and have been designed to facilitate travel, to simplify
travel procedures and to standardise the form ~f ~assports. Their success has
so far been limited. They are more advanced withm the European Economic
Community.
Internatiol)al agreements relate mainly to travel documents to be issued
by the authorities of their countries of residence to persons who are unable or
unwilling to obtain national passports, i.e., refugees and stateless persons.
The so-called " Nansen certificate", a travel document issued to Russian and
assimilated refugees under several agreements concluded between the First
and Second World Wars, and the so-called "London Travel Document"
issued to refugees under the Agreement on the Adoption of a Travel
Document for Refugees, concluded in London on October 15, 1946,116 have
received wide recognition. These travel documents have, as between the
Contracting States, been replaced by a travel document issued under the
Convention relating to the Status of Refugees of July 28, 1951, 117 to all
persons as defined in the Convention. The Convention relating to the Status
of Stateless Persons of September 28, 1954, provides also for the issue of a
Travel Document to stateless persons covered by the Convention. 118 Most
States issue to persons in their territory who do not hold national passports,
travel documents of their own (laissez-passer, sauf-conduit, foreigners'
passports). The main features of the travel documents issued to non-
nationals under international agreements are that they have to be recognised
by the other Contracting States and that, as a rule, they entitle the holder to
return to the issuing country.
The question of the relationship between passports and nationality arises
mainly in regard to national passports, i.e., passports in which the holder is
described as a national of the issuing State.n9 The modern passport, as has

115. For the work of the League of Nations, cJ. Reale, Le Regime des Passeports et La Societe des
Natwns. For the work of the United Nations and other organisations, cJ. Turack "The Passport in
International Law" ( 1972) pp. 23-34.
116. U.N.T.S., vol. 11, p. 73.
117. Articles 18 and 37 of the Convention. See supra p. 168, and (for the text) Appendix 9.
118. See supra, pp. 168-9 and Appendix 11.
119. The case of Tchemiak v. Tckrniak, decided by the Cour de Justice of Geneva on
November 29, 1927 (reproduced in the decision of the Swiss Federal Court of June 15, 1928:
Ojjicial Collection of Decisions, 54, II, p. 225; Annual Digest, 1927- 1928, Case No. 39), forms an
exception. It was there held that ''the possession of a N ansen certificate was not proof of loss of
Soviet nationality; the Nansen certificates were, according to international agreements,
d elivered to persons who did not enjoy the protection of the U.S.S.R.; loss of protection did not,
however, allow to conclude therefrom with certainty loss of nationality".
Jnurnational!J Accepted ft ationality Documents 225
just been said, serves mainly as an identity and travel document. Since,
however, it is a document issued according to municipal law, even its nature
may vary from country to country. In the common law countries the purpose
on which the main emphasis seems to have been laid is that of enabling the
holder of a passport to enjoy abroad the diplomatic protection which 1s
granted to the nationals of the issuing country.
No definition of a passport can be found in English statutes, but a
definition was given by Lord Alverstone C.J. in R. v. Brai/sjord,12o and it was
adopted by the House of Lords in the Joyce Case: 121
It is a document issued in the name of the Sovereign on the responsibility of a Minister of the
Crown to a named individual, intended to be presented to the Governments of foreign nations
and to be used for that individuars protection as a British subject in foreign countries. .. _IH
The passport is property of the Crown. 123 An American passport has been
defined 124 as
... a document of identity and nationality issued to persons owing aUegiance to the United
States and intending to travel or sojourn in foreign countries. It indicates that it is the right of
the bearer to receive the protection and good offices of American diplomatic and consular
officials abroad and requests on the part of the Government of the U nited States that the
officials of foreign governments permit the bearer to travel or sojourn in their territories and in
case of need to give him all lawful aid and protection. It has no other purpose . .. .
Accordingly, British and American passports contain a request "to whom it
may concern" to afford protection to the holder. The passports of most other
countries do not contain such a request.
The relationship between passport and protection, and consequently
between passport and allegiance, according to English law, was authori-
tatively dealt with in the Joyce Case. The question at issue, whether Joyce
was guilty of treason, was one of English law only, but the importance which
the House of Lords attached to the holding of a British passport is not with-
out interest for the matters with which we are dealing. Joyce, who was not a
British subject but to whom a British passport had been issued, was convicted
of treason because he had, while abroad, adhered to the King's enemies.

Article 17 of the Agreement ofOctober 15, 1946, on the Adoption of a Travel Document for
Refugees, as well as paragraph 15 of the Schedule to the Convention ofj uly 28, 1951, relating to
the Status of Refugees, and paragraph 15 of the Schedule to the Convention of September 28,
1954, relating to the Status of Stateless Persons, provide identically: "Neither the issue of the
document nor the entries made thereon determine or affect the status of the holder, particularly
as regards nationality".
120. [1905] 2 K.B. 730.
121. [1946) A.C. 347. The definition was also adopted by the Court of Appeal in Regina v.
Secretary of State for the Home Departmint and others ex. p. Bhurosah and others (T.L.R. August 12,
1967) .
122. At p. 745.
123. Cf In re Suwalsky the Bankrupt v. The Trustee and the Official Receiver, August 28, 1928 {4
B.I.L.C. p. 780).
124. By the Assistant Secretary of State (Carr) to the Consul-General at Berlin
(Messerschmidt), October 26, 1933, MS Dept. of State, file 138 (Unofficia l Endorsements/ !
Hackworth, vol. III, p. 435).
 226 Proof of Nationality

Lord Jowitt L.C., in delivering judgment, referred to Calvin's Case 125 and to
the dictum: protectio traltit subjectionem et subjectio protectionem. By the possession
of a British passport Joyce was enabled, it was held, to obtain in a foreign
country the protection extended to British subjects. The document spoke for
itself. It was capable of aflording the appellant protection. He applied for it
and obtained it, and it was available for his use. By accepting it he extended
his duty of allegiance beyond the moment when he left the shores of Great
Britain. He had taken no overt step to withdraw from his allegiance, unless
reliance was placed on the act of treason itself as withdrawal. In the Lord
Chancellor's view such an act could not be interpreted as withdrawal, as it
was not inconsistent with his still availing himself of the passport. 126
The court was concerned with the nature of the relationship created
between Joyce and the British Crown by the issue of a British passport to
him. Nevertheless the court referred to international law and quoted
Oppenheim's statement127 that by a universally recognised customary rule of
the law of nations every State holds the right of protection over its citizens
abroad-
This rule thus recognised may be asserted by the holder of a passport which is for him the
outward title of his rights. It is true that the measure in which the State will exercise its right lies
in its discretion .... us
This is, indeed, the true position. An application for a national passport is
equivalent to a request for protection.l 29 But the right of a State to exercise
diplomatic protection extends to its nationals, whether or not they hold a
passport. In most countries the authorities may use their discretion to grant
or refuse a passport. Diplomatic protection may be accorded to nationals
abroad who do not possess passports, and it may be denied them even though
they hold passports. 130
It is worthy of note that applying to the authorities of one State for a
passport does not amount to a renunciation of any other nationality which
the applicant possesses. This was held by the Upper Silesian Arbitral
Tribunal in Re Bulla. 131 It was contended by the German Agent that by
applying to the Polish authorities for a passport Bulla renounced his German
nationality in the meaning of Article 26 (3) of the Geneva Convention of
May 15, 1922. The Tribunal held that:
.. . the application for a passport for the purpose of enabling the applicant to obtain work
cannot in the p~ese~~ case and ha~ing regard to the conditions of employment at the time, be
regarded as prejudJcmg the question of nationality.

125. 7 Co. Rep. la.

126. At pp. 366-73, passim.
127. 5th ed., vol. I, p . 546.
128. At p. 371.
129. Mervynjones, op. cit. 1st ed. (1947), p. 290.
130. Cf L.O.R. (F.O.), 1887-No. 35, p. 55. See Dip1ock, loc. cit., p. 55; Borchard, pp.
493- 5. .
131. Official Collection of Decisions, vol. VI (2), p. 106; Annual Digest, 1933-1934, case No. Ill.
Internationally Accepted N ationality Documents 2'27

The nationa l passport indicates the holder's national status. As such it

normally enables the holder to receive diplomatic protection. It is therefore,
as a general rule, issued ?nly ~o persons who can satisfy the issuing authority
that they possess the n.auona~Jty of the country concerned. In the Joyce Case
a British passport was Issued m error to a non-national. There arc, moreover,
the passports issued to British Pro tected Persons13 2 and to inhabitants of
mandated and trust territories 133 which, like national passports, give a
potential right to British protection abroad. In general, however, travel
documents issued to non-nationals are not designed for the purpose of
protection. Thus, Article 18 ofthe Agreem ent on the Adaptation of a Travel
Document for Refugees, and , identically, paragraph 14 of the Schedule to
the 1951 Convention relating to the Status of Refugees, provide:
The issue of the document does not in any way entitle the holder to the protection of the
diplomatic or consular authorities of the country of issue, and does not confer on these
authorities a right of protection.
Paragraph 16 of the Schedule to the 1954 Convention relating to the Status
of Stateless Persons, which otherwise has the same wording, stipulates more
accurately:
... and does not ipso facto confer on these authorities a right of protection.
Such passport-type documents are not national passports.
In order to obtain a national passport the applicant has to establish his
nationality to the satisfaction of the issuing authority. There are no statutory
provisiom in Great Britain as to the conditions required for the issuance of
passports, in particular to the manner in which the possession of British
nationality has to be established. In the United States the question of
passports is regulated by statute: section 4076 of the Revised Statutes,
amended by section 2 of the Act of.June 14, 1902,134 provides:
No passport shall be granted or issued to or verified for any other persons than those owing
allegiance whether citizens or not, to the United States.
The requirements of an application for a passport are laid down in the
Passport Regulations of 1938, which provide that each applicant has to
subscribe to an "oath or affirmation of allegiance to the United States", 13 &
and also prescribe the evidence which must be submitted in support of the
application.I36
A passport is considered in Great Britain and the United States to be
prima facie evidence of the national status of the holder, but it is not
conclusive evidence. 137 The United States has on many occasions insisted

132. Cf supra. pp. 18-20.

133. Cf supra, pp. 20-26.
134. 32 Stat. 386.
135. Paras. 39, 61 (Hackworth, vol. III , p. 493).
136. Paras. 23-38, 40-75, 100-22.
137. Moore, Digest, vol. III, p. 492; Hackworth, pp. 347, 436; Whiteman, vol. 8, p. 43.
Borchard, pp. 489, 491.
228 Proof of Nationality

that foreign authorities were not entitled to "ignore an American passport''

i.e., to refuse to regard it as sufficient proof of the hold.er's ~ationality. tas Th~
Mexican Government's disregard of the proof of nauonahty afforded by an
American passport was considered by Mr. Evarts, Secretary of State,
... as wanting in proper courtesy to the government of a friendly power. 131
On another occasion, the United States asserted:
... the universally admitted. d~ct~ine that ~ State is .the '>Ole ultimate jud~e of the citizenship
of its own dependents, and 1s, m Its sovere1gn capacity, competent to certify to the fact.ICO
These cases concerned mainly naturalised citizens who had travelled to their
countries of origin and were still reg~~de~ as natio_nals ther~. More recently,
however, the Department of State, whtle assertmg the nght and holding
that a passport is prima facie evidence of citizenship", has "admitted the
right of the foreign government to traverse the evidence of a passport by
showing fraud in its procurement or forfeiture of the right to protection".l41
This seems in fact to constitute broadly the administrative practice of
States.l42 In the normal intercourse of States, a foreign national passport is,
as a rule, accepted as prima facie evidence of the holder's nationality. As
such it can be rebutted by other evidence that the holder does not possess the
nationality indicated by his passport, in particular if there is good reason to
believe that he has obtained the passport by fraud or misrepresentation.
The importance attached by municipal courts to foreign national
passports as evidence of nationality seems to have varied greatly. 143 The
question of evidence, again, has to be distinguished from the question of
substance. A person holding a foreign national passport will normally be
treated as a national of the State whose passport he holds; his nationality as
evidenced by the passport may, however, be disregarded if there is good
reason to believe that he has obtained that nationality by fraud or
misrepresentation or in a manner inconsistent with international law. Thus
in R. v. Burke, Casey and Mullady, 144 a case before the Central Criminal Court,
it was held by Bramwell B. that:
The mere production of a passport, found on a prisoner, which is proved to be granted by the
authorities of a foreign State to natural-born subjects only, is not evidence of being an alien.
Where the holder of a passport has, in addition to the nationality indicated
therein, one or more other nationalities, including in particular the
nationality of the country in which he finds himself, the principles of

138. Cf Moore, Digest, vol. III, pp. 985- 94.

139. MS. Inst. Mex. XIX 593, june 16, 1879 (Moore, Digest, vol. III , p. 986).
140. Mr. Gresham, Secretary of State, to Mr. Tripp, Minister to Austria-Hungary,
September.4, 1893, For. Rei. 1893, 23, 24 (Moore, Digest, vol. III, p. 987).
141. Actmg Secretary of State (Ader) to Mr. Lee, Minister to Guatemala and Honduras, No.
40. August 13, 1907, MS. Dept. of State, file 7335/4 (Hackworth, vol. Ill, p. 436).
142. On proofofnationality and passports cJ. Plender op. cit. pp. 83- 7.
143. Cf Makarov op. cit. pp. 358-62 and the decisions there cited.
144. 11 Cox C.C. 138.
Internationally Accepted Nationality Documents 229

international law relating to plural nationality will apply. us There is thus no

obligation to permit the State of nationality to accord its diplomatic
protection to a ~ational in another State whose nationality he also
possesses.146 Thus, m Saad v. Tabet, 147 the French Civil Tribunal of the Seine
held in 1930 that Tabet, who had been naturalised in France had remained )

a French national although various documents, among them passports,

describing him as an Ottoman subject, had been produced. The court said:
Tabet had been French in the eyes of the French courts, while remaining an Ottoman subject
in the eyes of the Ottoman authorities. The documents produced as evidence of his Ottoman
nationality were not sufficient to infer renunciation of French nationality.t4s
There seems to be a dearth of decisions of international tribunals shedding
light on the question ofthe value ofpassports for the proofofnationality. 149
In Bulla's Case before the Upper Silesian Arbitral Tribunal, already cited, 150
the issue was one of substance, i.e., whether an application for a passport by a
sujet mixte amounted to a renunciation of another nationality held by the
applicant. In Ruinart Pere and Sons v. Franzmann, before the Franco-German
Mixed Arbitral Tribunal, which has also already been mentioned, 151 an
Argentine passport was produced by the defendant as proof that he was not a
German national, but he also produced a document showing that he had
been released from German nationality. The Tribunal held that these
documents created a presumption that the defendant was no longer a
German national, which would have to be rebutted by the claimant. The
importance which an international tribunal ascribed to a passport for the
freedom of movement appears from the decision of the United States-
Venezuelan Claims Commission of 1903 in the Underhill Case152 where the
claimant was awarded damages for unlawful detention on the ground that
the Venezuelan authorities had refused a passport to her.
The scarcity of cases in which passports were produced as positive
evidence of nationality may perhaps be explained by the fact that, as has
been shown, the growth of the importance of the passport is of comparatively
recent date, and also by the fact that passports are not primarily designed to
prove the holder's nationality.

145. See, on the granting ofBritish passports to double nationals, L.O.R. (F.O.), 1886-No.
28, p. 43, 1887- No. 35, p. 55.
146. See supra, p. 200.
147. Clumt, 1932, p. 968; Annual Digest, 1929-30, Case No. 139.
148. In U~an and Sultan v. Ministere Public (28 Int. Law R eports p. 162) the Court of Appeal of
Paris regarded the passport held by Uzan when he entered France as one of the criteria for
determining the effective nationality of this dual national.
149. Plender (op. cit. p. 84 n. 68) cites Kaham (Successor) v. Parisi and the Austrian State (supra pp.
8-9), the Spaulding, <:,angrilli and Mergi Claims (supra p. 181- 3) as cases in which international
tribunals have taken cognizance of a claimant's passport in order to determine his nationality
status. No view was, however, expressed on its probative value.
150. Supra, p. 226.
151. Supra, p. 207.
152. Ralston, Report, p. 45.
 Prooj or
'J
.Nat;, ... ~ ~
"'I'&(L(lry
230
c. • tcrnational tribunal, a passport is regarded as in·'J'r
BCIOrC an In . . u CCt
'd f
ev1 cnce o na ti'ona
< II'ty Its
· · probative wc1ght
. would be .con.'> Jdered {)JJ t'
l lt
merits of the case, particularly in the hgh~ of proof req uired by the i~~uin~
authority as to the nationality of the apphc~nt. ..
While national passports issue~ by f?rei~n authontK~ are~ th~rtfure,
normally accepted by States as prz"!a facze :vidence of natiOnality, Jt is, in
the absence of decisions of internatiOnal tnbunals, doubtful whether then:
exists a rule of international law to this effect.
The nature and legal effect of the national. passport has, in the view of the
present writer correctly,, been summed u~ m paragraph I of the. General
Administrative Regulations for the ExecutiOn of t~e Passport Law ISsued by
the Government of the German Federal Republic on August 15, 1952,Isa
which reads: ,
The passport is a document which is not only rec?gnised internation~lly, as proof of the
holder's identity, but one which serves also as a basts for a number of tmportant decisions
affecting the person of the holder and his personal affairs. It has, however, to be borne in mind
that the passport is neither a document conferring nat.ionality nor do~ it cc:>nstitute proof of
nationality. u• It merely creates a rebuttable presumpuon as to the nauonahty of the holder.
The holder may, according to international usage [" Brauch" ) without further examination
claim the protection of the diplomatic and consular representatives of his country. (Author's
translation.)

2. Consular Certificates

This compendious term is intended to connote certificates of registration

issued by consular officers, i.e., documents certifying that the holder has been
entered in the register of nationals resident within the area for which the
consulate is competent, and which is kept by the consular officer concerned.
The register is, therefore, primary evidence, the certificate secondary
evidence, of the fact of registration as a national. Iss

153. Bundtsanzeiger, 1952, No. 164, p. 1.

154.. Certain provisi?ns of the South African Citizenship Act, 1949 (No. 44 of 1949, Statutes of
tht Umon of South Ajru:a, 1949, p. 414) would seem to constitute an exception to this rule.
According to s. 5 (3) of the Act:
"a person who immediately prior to the date of commencement of this Act was a Union
nationa_l by virtue of the provisions of para. (d) of s. 1 of the Union Nationality and Flags Act,
1~27, [r.t., a person born abroad and whose father was a Union national at the time of the
brrth), and who
::(b) _ir tht hol~er of a. valid South African passport [italics added) or
(c) ts the mmor child of a person referred to in para. (h)
shall be a South African citizen".
Acc.ord~ng to 5 • 18, such a person "shall cease to be a South African citizen" "upon the
exp.trattOn °~ t~e peri~ of validity of his passport unless he has, before the expiration of t~.e
P(;nod ofvahdtty ofhts passport, lawfully entered the Union for permanent residence therein ·
en~ the case of _the minor child of the holder of a valid South Mrican passport unless he has
l!
b r.ered th~ mon. for permanent residence before expiration of the validity of the passport or
e ore attammg hts 22nd y~a~, whichever is the earlier.) .
15
?·
. Cf the Separate Opmton of the British Commissioner in the Cameron Cast (Deciswns and
0 ljJzmons, at p. 39; U.N. Reports, vol. V, at p. 32). .
Internationally Accepted Nationality Documents 231

The registration of nationals is an administrative act, regulated by

municipal law or administrative regulations. The certificate of registration
is, therefore, a municipal document giving evidence of the fact of registration.
Registration is as a rule voluntary, but is recommended by the authorities in
the interest of nationals resident abroad. Only in exceptional cases is
registration compulsory; in the past this was frequently the case in countries
under capitulations, e.g., for British subjects in the Ottoman Empire by an
Order in Council of December 12, 1873 (Article 16); 166 such compulsory
registration is also likely to be required in time of war or national emergency.
Failure to comply may involve penal sanctions and loss of protection and of
certain benefits, such as arrangements for repatriation in time of war.
Registration may also be a necessary requirement for the enjoyment of
certain rights and benefits according to treaty provisions. It was, for
example, required for the establishment of French nationals in Switzerland
under a Treaty between France and Switzerland of February 23, 1882, 157
and reciprocally for the exercise of trade and the establishment of Spanish
nationals in France and of French nationals in Spain under a Treaty
between these countries of January 7, 1862. 158
As a rule, however, registration takes place for municipal purposes. It may
have important legal consequences, such as the overcoming of a presumption
of expatriation. Thus, for instance, a naturalised citizen of the United
Kingdom may by order of the Secretary of State be deprived of his
citizenship if the Secretary of State is satisfied that
[he] has been ordinarily resident in foreign countries for a period of seven years and during that
period has . . . [not]
(b) registered annually in the prescribed manner at a U.K. consulate his intentions to retain
his citizenship of the United Kingdom and Colonies. 158
The legal consequences of registration depend on municipal law and vary,
therefore, from country to country according to its law. The ruling given by
the United States Department of State160 that the purpose of registration is
... to put the consular officers in possession of facts that the registrant is an American citizen
and thus entitled to the services of the Consul in case they are needed,
is, however, of general application.
A certificate of registration is prima facie evidence of the right to
protection, 161 but it is not a guarantee of protection. 162 As a general rule, on
the other hand, registration is not an absolute prerequisite to protection.163
156. Br. and For. St. Papers, 1872- 73, p. 64.
157. de Clercq, Recueil des Traitis de Ia France, 1880- 1917, vol. XIII, p. 294.
158. Ibid. , vol. VIII, p. 376. Cf Jordan, "Des Preuves de la Nationalite et de
l'Immatriculation", in Revue de Droit international et de Ugislation comparee, 1907, pp. 26 7-96.
159. British Nationality Act, 1948, s. 20 (4); similarly, Article 7 para. 4 of the Convention on
the Reduction of Statelessness (see supra p. 166 and Appendix 4).
160. To the Consul at Colon on june 15, 1933, MS Dept. ofState, file 131 /5618. (Hackworth
vol. III, p. 538.)
161. Hackworth, ibid.
162. Borchard, p. 668.
163. Ibid.
232 Proof of Nation at·zry

For our present purpose, the question of main interest is that of th

relevance of consular certificates in .showing proof of nati~nality .. In order t~
be registered the applicant must satisfy the consul tha.t he Is a natiOnal. What
evidence of nationality has to be produced for this purpose depends
municipal laws and regulati?ns. ~?nsular officers of .the United Kingdo~
will, as a rule, accept a vahd Bntish passport as satisfactory evidence £
registration as a citizen of the United Kingdom and Colonies. In the absen~r
of a passport, other documentary proof of nationality may be accepted, an~
the applicant may be required to make a written statement concerning his
national status.
According to the regulations in force in the United States, the
"satisfactory evidence of nationality" to be submitted should be of the same
nature as that required by the Consular Regulations to be submitted with an
application for a passport. 164
The probative value of certificates of registration for the establishment of
nationality for municipal purposes is a matter for municipal law. As a rule
such certificates are not conclusive evidence and do not bind the courts.ls~
The opinion of the Umpire in the Klemp Case that
... the Consular Certificates of Registration establish nationality for purposes of statistics, of
complying with the laws of compulsory military service, etc.166
is a generalisation which is difficult to justify seeing that the effect of such
certificates must depend on the municipal law concerned. The dictum was,
moreover, not relevant to the question of the probative value of the
certificate in establishing nationality before an international tribunal, which
was the question at issue.
Consular certificates of registration, being documents issued by duly
admitted agents of a State may, however, have important extraterritorial,
international effects. They certify the identity and nationality of the holder
and so constitute evidence of the fact that the issuing consul was satisfied that
the person concerned was a national of the State which the consul represents.
It has become customary for them to be accepted by the authorities of
foreign countries, particularly by the authorities of the country in which the
consul exercises his function. They are, therefore, frequently used to establish
the nationality of the holder before these authorities.
Consular certificates are as a rule accepted as sufficient evidence of
nationality by foreign authorities, as a matter of international comity. As
acts of public officials there exists a presumption in favour of their regularity,
unless the contrary is proved as was stated in the Pinson Case.167 They

164. Consular Regulations, U.S., Sec. 173, n. 5, March 1933. (Hackworth, vol. III, p. 543.)
165. Cf the decision of the Cour d'Appel of Bordeaux (1st Chamber) in Prifet de La Gironde v.
Li"!a _Mayer, of July 13, 1892 Uournal de Droit international prive, 1892, p. 1168). As to Great
Bntam, the Law Officers declared in 1876, with the concurrence of the Lord Chancellor, that
"registration in a British Consulate affords no proof of nationality" (L.O.R. (F.O. ), 1876, No.
57, p. 42; No. 60, p. 45).
166. 24 A.j. (1930), p. 622.
167. U.N. Reports, vol. V, at p. 378.
 Internationally Accepted Nationality Documents 233

constitute, therefore, for foreign authorities at least prima facie evidence of

nationality. 168
British consuls issue certificates of British nationality if evidence of
nationality is required by foreign authorities, or by the local laws and
regulations of the country in which the consul exercises his functions,
provided that the production of a British passport is not sufficient for the
purpose or not possible. These certificates do not, according to English law,
constitute absolute proof of possession of British nationality; they purport to
show that the issuing consul, on the evidence before him, takes the view that
the person concerned is a British national.
The practice of international tribunals regarding the probative weight of
consular certificates has not been uniform. In the Brockway Case, H19 decided in
1868, Umpire Thornton, of the United States-Mexican Claims Commission,
considered recognition of nationality by a United States consul to be
insufficient proof. In the case ofGaray, 170 decided in 1875, on the other hand,
the same Umpire considered the claimant's nationality to be sufficiently
established by a document issued by the Mexican Consul General describing
the claimant as a Mexican national and by a certificate of a Provincial
Governor to the same effect.
A consular certificate was held to be admissible as evidence of nationality,
and the claimant's nationality was regarded as established thereby in the
Esteves Case before the Spanish-Venezuelan Claims Commission of 1903.171
In the Canevaro Case172 a consular certificate was accepted as proof of
nationality by the Permanent Court of Arbitration.173
The same Court, in the Expropriated Religious Properties Case in 1913, held
that a Spanish consular certificate was sufficient evidence of nationality, in
one instance, 174 when it was not contested by the Portuguese Government,
but in another instance175 that it was insufficient as not proving Spanish
nationality in accordance with the requirements of the Spanish and
Portuguese176 Civil Code.
The Egyptian Mixed Court of Appeal, in Mohamed Bey Azamel v.
Panayatopoulo, in 191 7, held that the proof of Greek nationality of one of the
parties by the production of a consular certificate could not be rebutted by
the production, by the other party, a local subject, of a declaration by a
Governor

168. Consular registration may constitute absolute proof of nationality under treaty
provisions. Cf, e.g., the Treaty between Argentina and Spain referred to supra, p. 205.
169. Moore, Arh., p. 2534.
170. /hid., p. 2532.
171. Ralston, Report p. 922, at p. 923.
172. See sufJra, p. 170.
173. U.N. Reports vol. XV p. 420 at pp. 421-2.
174. Dona Tomaso Rocatallada y Escartin (Scott, Reports, vol. II, p. 23, U.N. Reports vol. I,
p. 76).
175. Dona Magdalena Rodriguez y Lapiana (Scott, Reports, vol. II, p. 25, U.N. Reports vol.
I, p. 51 ).
176. See supra, pp. 206-7 where this reference to Portuguese law is criticised.
234 Proof of Nationality

.. . que 1e consulat general de Grece n'a pas fourni

.d, Ia, preuve de. Ia nationalite hellene d e 1a
partie adverse, qui doit en consequence etre cons1 ere comme sujette 1oca1e. 111
The same Court held in 1932, in the cases of Wieros v. Saleh et a/.178 and
,Zagdoun v. ,Zagdoun et a[.,t79 that consular certificates which were not
contested by the local authorities nor .cont~adicted by other eviden~e before
the court were sufficient proof of natwnahty. On the other hand, m Boubez
v. Dame Edra Sabbagh Beytso where the Spanish nati?nality of the defendant
was contested by the Egyptian Government, a certificate from the Spanish
consul was held not to be sufficient.
In the Klemp Case, before the German-Mexican Mixed Claims
Commission in 1927, the Umpire came to the conclusion that a German
consular certificate was not "ab~o.lute proof' of the cla·i·m.a nt's na~ionality.
The criticism levelled at this decision by Professor VerziJl m the Pznson Case
has already been mentioned. 181 Feller182 also criticises the decision on the
ground that it rests on a confusion of substance and procedure. The status of
nationality arises, he argues, irrespective of any rules relating to proof.
Nationality was not acquired by entry in a register but because under
municipal law conferment of nationality was consequential on the existence
of certain facts.
In the present writer's opinion, the decision in the Klemp Case is open to
objection on the grounds that it deals only with the question whether a
consular certificate is conclusive evidence of nationality (which it is not), and
that the rejection of this thesis is based on erroneous reasoning, i.e., that
natioqality was a question of civil status and that it had to be proved before
an international tribunal according to the rules of evidence of the municipal
law concerned.183
The precedents were reviewed and the problem examined most thoroughly
in the Pinson Case, where Professor Verzijl, the President of the Commission,
came to the conclusion:
. .. pour les raisons exposees dans les pages precedentes, je me vois oblige de repeter que, en
regie generate, les certificats d 'immatriculation detivres par les consuls et autres fonctionnaires
c?nsulaires de France sont dignes de foi, prima facie, comme preuve de nationalite fran~aise des
reclamants, sous reserve de Ia faculte de J'agence mexicaine d 'en attaquer Ia force probante
dans des cas particuliers.... 184
The British-Mexican Claims Commission of 1929 found in the case of
Robert John Lynch185 that the claimant's nationality was sufficiently

177 · Gazette des Tribunaux Mixtes d' Egypte, 1917, p. 125; Clune/, 191 7, pp. 1817- 18.
178. Gazette des Tribunaux Mixtes d'Eo"'"le 1933- 34 p. 75· Annual Digest 1931- 32 Case No.
96·. 0//' ' ' ' ' '

179. Gazette des Tribunaux Mixtes d' Egypte, 1933-34, p. 153.

180. Gazette des Tribunaux Mixtes d'Eo"'"te · 1933-34 p. 79· Annual Digest 1931-32 Case No.
123. &'/' ' ' ' ' '

181. See supra, pp. 207-8.

182. At p. 273.
183. See supra, p. 207.
184. V ..N. Reports, vol. V, at p. 378.
185. Decisions and Opinions, p. 20.
 /nternational!J Accepted Nationaliry Documents 235

established by the production of a certificate of consular registration

supported by a baptismal certificate. The majority of the Commission took
the view that:
... when, as in this case, nothing is alleged which raises the slightest doubt as to the accuracy or
bona fides of the entries in the register, a consular certificate ought to be accepted as prima facie
evidence which does not in any way lose its force from the general objections taken by the
respondent government. 186
In the Cameron Case, 1s7 however, the same Commission held that Or.
Cameron's nationality was not sufficiently established by the production of a
certified copy ofhis entry in the register of the British Consulate at Tampico.
In the Salem Case between Egypt and the United States in 1931, a
certificate issued by the American Diplomatic Agent and Consul General
certifying that Salem was an American citizen played a considerable role.
The fact that an Egyptian court had not discontinued proceedings when
Salem presented the certificate (which, incidentally, had not been legalised
by the Egyptian authorities), was not regarded by the tribunal as "an
injustice against Salem or a violation of the treaty rights of the capitulatory
power" _Iss Or. Nielsen dissented.IS9
As a member of the Claims Commission in the Turkish Claims Settlement
Case190 between Turkey and the United States in 1934, Or. Nielsen accorded
considerable probative value to a consular certificate. He said:
When a consular officer is required by the law of his country to examine into the question of
citizenship before registering an applicant, and when his action is subject to review by
authorities of his government, it can probably be said that the determination of the question of
nationality Is made by the best expert authority with respect to the law on that subject.
Authorities dealing with the matter may be said to act in a quasi-judicial capacity, even though
of course judicial authorities may in any given case have the last word in such matters. When a
consular certificate-one not made solely for the purpose of the presentation of the claim-is
presented to a commission, the commission assuredly has before it a very authoritative
pronouncement of a judicial character. m
To attach to consular certificates judicial character goes, in the present
writer's view, too far. They are documents of an administrative nature, but
their value for proving nationality should not lightly be disregarded.
The Flegenheimer Claim 192 rested on the claimant's American nationality
shown by a certificate issued by the Department of State. The Commission
stated:
From the standpoint of form, international jurisprudence has admitted, without divergence
of views, that consular certificates as well as certificates issued by administrative bodies which,
according to the national legislation of the subject State do not have absolute probative value,

186. Decisions and Opinions, at p. 22; U.N. Reports, vol. V, at p. 19.

187. Decisions and Opinions, p. 33; U.N. Reports, vol. V, p. 17.
188. U.N. Reports, vol. II, at p. 1198.
189. Ibid., pp. 1217-9.
190. (Claim of Levenson): Opinions and Report by Dr. F. K. Nielsen (Washington, 1937).
191. At p. 533.
192. 25 Int. Law Reports p. 91; see supra pp. 210-12.
 236 Proof of Nationality

arc not sufficient to establish nationality before international bodies, but that the latter
nevertheless entitled to take them into consideration if they have no special reason for den ~re
their correctness. 193 Y•ng

It follows from this survey that no uni~or~ .~ractice has bee~ developed by
international tribunals a~ to the adr~uss1b_1hty and probative weight of
consular certificates as evidence of natiOnality. They have, as a rule, been
admitted as prima facie evidence.
In fact, no general rule on the question of the probative value of consular
certificates can be laid down. It depends on the nature of the proof of
nationality required by the consul before he will effect the registration.I94
Consular certificates issued oy the consuls of different countries may
therefore, differ in value according to the requirements of proof of
nationality for entry into the consular register, according to municipal laws
and regulations. Even the probative force of certificates issued by consuls of
the same country may differ in so far as consuls usually have a certain
discretion as to the evidence they are to require for registration, and
according to the circumstances of each case. In so far as national passports
are frequently accepted by consuls as proof of nationality for the purpose of
entry into the consular register of nationals, the question is closely linked to
th.e question of the probative value of passports as evidence ofnationality.I9s

193. At p. 112.
194. Cf Feller, pp. 274- 5.
195. See supra, pp. 227-30.
 Part Four

SUMMARY AND
CONCLUSIONS
 Chapter 14

Summary

Nationality, in the sense of membership of a State, the "belonging" of an

individual to a State, presupposes the co-existence of States. Nationality is,
therefore, a concept not only of municipal law but also of international law.
As a concept of municipal law it is defined by municipal law; as a concept of
international law it is defined by international law. From the aspect of
municipal law there is, therefore, no one concept of nationality but as many
concepts as there are municipal laws; in fact, however, the concepts of
nationality under municipal law have a great many common features and
they show a large measure of conformity. Whether conceived as a status or
as a relationship between State and individual, nationality has specific
functions: in municipal law it confers upon the individual specific rights and
imposes upon him specific obligations in relation to his State of nationality.
The function of nationality in international law is usually described as
that of providing a link between the individual and the benefits of the Law
of Nations. However, in international law, as at present constituted,
nationality as a concept can only be defined by reference to the rights and
duties of States. Nationality, according to international law, is a specific
relationship between an individual and a particular State: it entitles that
State to grant permanent and unconditional protection to the national and
his property. There are exceptions in which diplomatic protection may not
be exercised but they confirm the rule. And it imposes, on the other hand, on
the State of nationality the duty, in relation to other States, to admit the
individual to its territory.
Nationality has, therefore, according to international law, definite
functions. Koessler's view that nationality is a purely formal concept,1 or
that it has no extraterritorial effect (the Cardenas doctrine), is not shared by
the present writer. Kelsen, who denies the existence of the principle of
personal jurisdiction in international law, considers that the need for the
notion of nationality in international law is conditional, not absolute.
According to Kelsen, a State is not obliged to have nationals, as all persons in
its territory are subject to its territorial jurisdiction: Quidquid est in territorio,
etiam est de territorio. He sees, therefore, no difference of principle between the
subjection of nationals abroad and that of aliens abroad to the jurisdiction of

I. Sec Sll.pra, p. 60.

 IIIIUIL(I')I

tht· ~tate of ~ojnum . ll Tha t ' tate dues not , hr argues, violate int ernational
law if it takt·~ t'tll~w Tlltcnt a ·tiun a~a inst an alicu in its t Tritor on th(•
~wund of nn ilk~a l ar t rummittcd b th : alit'll abroad . Wh ·ther against
nationa ls M a~a iust alit-us, cnforccml'nt acttun un accou nt of acts ommitt.cd
.tbruarl <'. 11 0~1 1 • bt· taken it' thl.' p t"un rom:crm:d is in th · t rritory of the
Stat ·. This reason in~ k. d!\ to a n csscntiall nega tive ronc pt of nationality
i.11 .• tha t na tionals a;c thtlSl' persons in n"lation to whom the Sta t d oes not
ha\'C th · bli~ati ns \vhirh internation. 1 law impos ·s on tatcs as regards
ali ·ns and th ·prop 'l't of a liens in their territory. In the view of the present
writer. howt'\Tt'. the functions ofnationalit in int ernational law ar~ positive
functions.
Persons in re~ard to whom a Stat e has the a for ·mention ·d rights and
obli :rations in rela tio n to ther States ar" n ationals ac ording to
interna tionall:nv, whrth ' r they a re na tionals a ·ording to municipal law or
n t. P 't'Sonsl or classes of persons on the ot h ·r ha nd in respect of whom a
State does not claim as a ma tt ~ r of law or policy, the right of diplomatic
pl'Ot . tion , or to ,,vhom it denies, as a ma tter of law or policy vis-a-vis other
tates, a duty of admission to its territory, a re not nationa ls, even if they are
defined as nationa ls by its municipal law.
Th existen e of a separate nationality, according to international law of
member States of 'omposit international persons d epends on the question
"h ther the member State is a subject of interna tional law. The nationality
of the inhabitants of ma ndat d and trust territories is according to
international law distinct from the na tionality of the administering State,
even if these inhabita nts are regarded as nationals of the administering State
according to its municipal law.
Questions of nationality are considered as falling into the domain of
exclusive domestic jurisdiction. This term has no other legal meaning than
that a given matter is normally regulated by national, not by international,
law. It does not in any way preclude regula tion by international law. In this
sense questions of nationality are, in principle, questions within this reserved
domain. This means that acquisition and loss of nationality are normally and
primarily determined by municipal law-although treaties relating to
nationality are not infrequent. While this is the normal position, questions of
nationality may well become questions of international law in specific
situations, for example:
( l ) where determination of nationality is affected by existing treaty
obligations,
(2) in questions relating to nationality of composite international persons
where the relations between the component parts are relations of
international law, as in the case of certain protectorates,3
(3) in questions of nationality arising from territorial transfers.

2. Kelsen, " Theorie generale du Droit international public- Problemes choisis'' in Hague
Recueil, 1932 {iv), pp. 121-351 , at pp. 236-48.
3. See the Tunis and .~forocco Nationality Decrees Case, supra, pp. 71-5.
 l'hr l'' 'bkm ,,r ·"' iotan.n i,,n,d Llw ,)rn.uit.n.dit' mu:'~ ht· di~ tin~uisht-d
ti •m dw qu("Stl'-'" '-'r tht• tkt<:nnin.Hiun . _,r tht· n.ui,m~llitv ~t.Hus of
mdi' idu.ds. \\' ht·tha ·' pt'L''-'" h.1s ,,,. h.t..... " '-'t tht· n.u i'-malit\' t'f ,, p.lrtintl.lr
~t .l H' is·' qut•sthm to l t' ,,kta m iawd t':\dusi\'d\' in • ~(·urd.mtT with the In"
~_,fth.\1 St.ltr. lf sud1 Llw is iu,·,'nSi:'tr nt with ntsh mar\' intnn.uion.d 1..1w or
" ith tl'l',\1\ \_lbli~,,ti,ms, it is .\1\ infrin~'\· nu·nt tlf intcrnation ..\1 l.1w. uch ~'
nmniripal 1.1" lWt'-i •wt he rtYo~nist:>t.l b,· '-'tlwr Statt·s: it m.w lw d~nied
t'~tr.\h'rrihH'i,\1 t·fll:~t. and it will bt· disn·~ardt-d by tribum; ls .tpp lying
tt:
iutt·m:\1 it'"·' I I,, w . huwt'\'t'r. tlw St n tt' Ct)llt't' rtlt'tl docs no t remt~\' the
situ.\tlt'll whkh is inl't1 nsistt·nt with intn n.Hional la w, a n ind iYidu.ti will
h.n·t· tlw .n.uionality whir h i · ast·ribt:'li to him by the municipa l law.
in.llhni~.;ihk thnn the pt1 int f\'it•w ofintt•rn.ttionalla w though tha t law may
be..·. T o ,\scribe..· tn sudt an indiYidua l a na titma lity other than tha t which he
pt:~..--st·s..;cs under nnmkip.tl law w uld bt• to n·sc...wt to a legu l fiction.
lntt•rn.Hi•.m a l law co ntt-t~ . in gt•ncra l. ri~hts :md obligations on States.
Interna tiona l law d ocs nu t. thertlore. direl:tl • confer nationa litv on or
withdraw it from indi\'iduals. It ti._~lkm ·. howt•n:r. fro m the rights at~d duties
0f States that they are bound b · interna tiona l law to beha,·e in a certain
manner wlwn regulating q ue!\tions of na tionnlit y. From the general rules of
internationa l law gon •rning the relations between States a few rules can be
derh·ed whirh limit tht' frt• 'dom of Stntes to confer or withdraw their
nationality. \Vhile questions of na tionality are norma lly determined by
municipa l law this legisla ti,·e competence of Sta tes does not amount to
omnipotence. The rules of customa ry interna tional law relating to
na tionality are mainly indirec t rules d eri,·ed from the rules governing the
relations b etween States partic ula rly from those rela ting to State
jurisdiction· one can therefore, speak only of a so-called interna tiona l law of
nationality. These rules a re m ainly negative rules, restricting the freedom of
States to confer or withdraw nationa lity.
There are no rules of customary internationa l law which impose a duty on
States to confer their n ationality on certain individuals at birth. In so far as
rules of interna tional law rela ting to acquisition of na tiona lity exist they
concern acquisition subsequent to birth, that is, by natura lisation in the
wider sense. There is no rule of internationa l law which restricts the right of
States to grant natura lisation in the n arrower sense, that is, the conferment
of nationality by a formal act to persons residing in its territory, on
application , or which stipulates a prior period of residence. The naturali-
sation of persons residing abroad requires, however, recognition by the State
of residence in order to have legal effect there. The conditions for
naturalisation are d etermined by municipa l law. International law, while
requiring the existence of p ersonal ties, a social fact ofattachment, 4 b etween
the naturalising State a nd the individua l, does not lay down any rules
defining the nature of these ties; this is a matter for municipal law.
It is, however, an accepted rule of international law that naturalisation of

4:. I.CJ . Reports 1955, p. 23.

242 Summary

r. .
.ore1gn na t.Ionals must be based on a. voluntary act. of the individual .
r.
C on.ermen t of nationality by operation of law, without any specific
. · ·d 1 h h c. b
voluntary act on the part of the mdi.v~ ua ' as t ere.ore to e considered
ffer ofnaturalisation reqmrmg acceptance; such acceptance may
on ly as an O · 1 f h · · ·
be cxp lICI or implicit. Whether any part1cu
. ·t
h har .act. o t e. md1v1dual is
considered as tacit acceptance depends on w et er It IS rec?gmsed ?-s such by
t l1e prac tl.ce of States: it depends on the. development
. of mternatiOnallaw.
The reason for the rule that naturahsat10n may not be conferred on
r. . • rs against the will of the individual is that such naturalisation results
.orc1gne · f h ·
in an infringement of the right of protection o t e previous State of
nationality. It follows, therefore, t~at .the co~pulsory naturalisation of
stateless persons is not inconsistent wit~ mte.rnatl?nal law: ..
The right of States to withdra~ their nat10na~Ity ~rom md1~1duals is, on
the whole, not limited by internat10nallaw. Depnvation of natiOnality, even
mass denationalisation, is not prohibited by international law, with the
possible exception of the prohibition of discriminatory denationalisation.
There is no rule of international law in its present state of development
which requires a state to admit former nationals to its territory, although a
State may be bound to admit a denationalised person in those exceptional
cases where deprivation of nationality has been resorted to in order to
deprive the State of residence of the possibility of expulsion-as it would, in
this case, infringe the right to expel aliens inherent in territorial jurisdiction.
Whether acquisition of another nationality by a national entails the loss of
his existing nationality depends on the municipal law of the State concerned.
Nationality is no longer considered as inalienable. According to the laws of
maPY' countries, release from nationality upon acquisition of another
nationality requires special authorisation (expatriation permits); but it may
be concluded from consistent treaty practice and from the administrative
practice of most States that such authorisation must not be withheld without
valid reasons where the acquisition of the foreign nationality has taken place
voluntarily, in a manner consistent with international law and in good faith.
If authorisation is refused in violation of this rule, the person concerned
retains his nationality according to municipal law but such nationality need
n~t be rec?gnised by other States and will be disregarded by international
tnbunals: m other words, it will be denied extraterritorial effect.
In the case of territorial changes questions of nationality cease to be solely
~ ~atter of municipal law. Rules of international law exist although to a
lim~ted ~xtent only, concerning the effect of territorial changes on the
nationality of the inhabitants of the territory subject to the transfer. They
are. bot~ negative rules, restricting the freedom of States to regulate
nat~onal~ty, and positive rules, imposing on States the duty of regulating the
natiOnality of the inhabitants in a certain manner. A distinction must be
?rawn between cases. of universal succession and cases of partial successio?;
m the former the mhabitants of the transferred territory become, 10
conse~uence of the extinction of the predecessor State, stateless. Contrary to
the VIew taken by many publicists, there does not, in the writer's opinion,

...
 243

exist a rule of intc:rna tio nal la w whic h imposes a duty o n the successor S ta te
10 corde r its na tion a lit y o n the inha bit a nts o f the transferred territory. The
ti·equent . tho ugh no t unilo rm, prac tice o f S tates to confer their nationa lit y
has not crysta llised into a positivt· rule of customar y interna tional la w ,
parti~ularly be~aus~ the~ crit~ria appli~d for dcfinin~ the inhabita nts who
arqturc the na u o nahty o f the su cct:ssor Sta te have vaned greatly from case to
case. The practice fo llowed in the case of d ecolo nisatio n seems to show tha t
the new S ta tes a ttach greater impo rta nce to p erson a l (ethnic, racial) links to
the collect ivity fo rming the n ew State tha n to the te rritoria l link. In the
a bsence of a n y positive rules unde r the la w of the successor Sta te, there exists,
however, a presumption of interna tio na l la w tha t its municipal la w has the
effect 0f conf(:rring its n ation a lity o n those fo rme r na tion a ls of the
prrdccrssor S ta te w ho h ave their h a bitua l residen ce in the tra nsferred
territory.
As to the efTect of th~ territoria l ch a nge o n p ersons who a rc outside the
tra nsferred territory a t the time of the c ha nge of sovereignty, the d istinc tion
between universal a nd p artia l succession is of esp ecial importa nce. As the
tormer n a tion a ls of the extinc t S ta te b ecom e stateless the successor State ma y
confer its n a tion a lity on them b y op era tion o f la w. In the case of p a rtial
succession, they re ta in the n a tio na lity of th e pred ecessor S ta te; as they d o not
come under the territoria l jurisdic tion of the successor S ta te, the la tter
cannot confer its n a tio n a lity o n them a u tom a tically; a nd a ny legisla tion to
this effect h as to be considered a s an ofle r of collective na tura lisation which
requires accepta nce.
W here the p a rtia l su ccession has ta ken place by treaty (cession ) or
otherwise in accord a nce with interna tion a l la w, the pred ecessor Sta te is, in
consequence of its duty to recognise the ch a n ge of sovereignty, under a duty
to withdra w its n ationality from those p ersons who com e under the
jurisdiction of th e successor S tate a nd a cquire its n a tion a lity accord ing to its
law.
Interna tio na l la w d oes no t, in the a bsence of treaty obligations, gra nt the
inhabita nts of th e tra n sferred territor y a right of option in the sense tha t they
may repudiate the n a tionality of the su ccessor State or r eta in the nationa lity
of the pred ecessor Sta te by virtue of a d ecla ra tion . A right of option or
election m ay, how ever, b e d erived from the a bove -mention ed rule of
interna tiona l la w con cerning the effect of the territoria l tra nsfer on p ersons
outside the j urisdic tion of the successor Sta te, in the sen se tha t the
inhabitants of the territor y can a void the compulsory acquisition of the
nationality of the successor Sta te by leaving the territory prior to the ch a nge
of sover eignty. It seem s r ea son a ble to interpret d ep a rture immedia tely a fter
the transfer simila rly as a repud ia tion of the n a tion a lity of the su ccessor
State, seeing tha t it manifests the d esire not to m a inta in ha bitua l residen ce in
the territory, n o t to rema in a n " inhabita nt" of the territory.
The rela tive freed om ofStates in the field ofnation a lity la w lead s to wha t
are usua lly called conflic ts of n a tion a lity la ws: statelessn ess a nd plura l
nationality. Statelessn ess is no t prohibited b y interna tiona l la w a nd its
244 Summary

reduction or elimination can, therefore, only be ~ffccted by treaty. Similarly,

international law cannot prevent plural nattonahty, but any nationality held
by an individual under municipal law which is inconsistent with
international law will be disregarded in international law. In this sense one
may speak of rules of international law for the solution of conflicts
of nationality laws. Thus, for example, the nationality retained by a
naturalised person owing to refusal of an expatriation permit without valid
reason, or the nationality of the predecessor State retained by an individual
who has become a national of the successor State under its law, consistent
with international law, in consequence of transfer of territory based on a
valid title, are irrelevant in international law; they do not have to be
recognized by other States or by international tribunals.
Apart from the few rules of international law for the solution of conflicts of
nationality laws, international law contains only rules for the solution of
difficulties arising from plural nationality, for example:
( 1) Each of the States whose nationality a person possesses may regard him
as a national.
(2) The principle of equality, i.e. that protection may not be afforded by the
State of nationality against a State whose nationality the person also
possesses, has been embodied in the Hague Convention of 1930 and was
considered as well established some time ago. It still reflects the normal
practice of States but lately international tribunals have applied the
principle of effective or active nationality, the so-called "link concept", i.e.
they considered the nationality of the State with which the claimant is more
closely connected as determining for the admissibility of the claim.
(3) Different tests are applied as to the nationality which is to be ascribed to
plural nationals in a third State, or by an international tribunal in cases
where the person on whose behalf the claim is made also holds a nationality
other than that of the States between which the tribunal is called upon to
adjl~Dicate.
Recently, particularly since the decision of the World Court in the
Nottebohm Case, the test of effective nationality, has gained ground. It plays
an important role when the question of nationality is relevant for the purpose
of municipal law of a third State or for purposes of international law.
It is difficult to speak of rules of international law as to evidence of
nationality because such rules, if any, have been developed by international
tribunals acting on the basis of specific arbitral agreements and because
before such tribunals the question of nationality is a question of law rather
than one of fact. The principle that international tribunals are not bound by
municipal rules of evidence seems, however, to be generally accepted.
It follows from the nature of the question of nationality before
international tribunals that they may disregard a nationality possessed
according to municipal lcj.w, even though conclusively proved, if the
municipal law is inconsistent with international law or if the nationality has,
in the determination of the tribunal, been acquired by fraud, misre-
presentation or concealment of material facts.
Summary 215
Of docume?ts of an ~nternational character indicating nationa lity,
passport~ are, m th~ practice of States, accepted as prima facie evidenc<' of
nationality, but their value has rarely been tested by international tribunals.
Consular certificates are, as a rule, considered as prima facie evidence of
nationality, but no uniform rule to this effect can be considered as
established .
A few words on the importance of nationality in international law a t iL'i
present stage of development may usefully here be added.
While nationality is still the primary link between the individual and
international law, it is no longer the only link. There is an increasing
tendency to provide the rights of individuals-apart from their international
protection by the State of nationality and even in relation to the State of
nationality-with the safeguards of international law by the conclusion of
plurilateral or multilateral treaties for the protection ofhuman right<;. There
is, moreover, an increasing tendency to regulate, by the conclusion of
multilateral agreements relating to the status of refugees and stateless
persons, the status of persons devoid of diplomatic protectio n, in
international law. Such tendencies may to a certain extent reduce the
importance of nationality in the international sphere; it is none the less an
"essential legal attribute of human personality".5

5. Lauterpacht, Jn1ml4liorud J..ou; an4 Humatt Rig/us, PP· 347-8.

 Chapter 15

Conclusions

A. The Esisting Law (De Lege Lata}

An effort to ascertain the rules of customary international law on natio 1.

· · w h 1c
meets with all the dtfficulttes · h are mvo
· lved m
· t h e ascertainmenat Ityf
customary international law in general. They are even aggravated innth~
field since the rules of nationality are, as has been pointed out, indirect rul Is
rules' derived from rules of'mternatiOna
· llaw governmg
· t h e relations betwees,
States; they are further aggravated by the primarily municipal charactere~
nationality law. Consequently the examples of State practice as a source of
knowledge of customary international law on nationality are, as a rule
negative rather than pos~ti~e: t?ey are ~xamples of c~ses where foreig~
municipal laws and admmtstrative practices were considered by govern-
ments to be inconsistent with internationall.aw. F~om them we have to try to
derive, inter alia, our knowledge as to what IS considered to be in accordance
with international law in this field, what are the rules of international law
relating to nationality.
Besides international custom and international conventions, Article 1 of
the Hague Convention relating to the Conflict ofNationality Laws mentions
"the principles of law generally recognised with regard to nationality" as
one of the elements which qualify the exclusive jurisdiction of States in this
field in the sense that municipal law, which is inconsistent with one of these
elements, may be denied extraterritorial effect. The question whether such
principles exist calls for an answer. There has been opportunity to refer in
this work to certain general principles of law: they are those "general
principles of law recognised by civilised nations" which, according to
Article 38 of the Statute of the International Court ofjustice, are a source of
international law. But do there exist, as Article 1 of the Hague Convention
seems to imply, any "principles of law generally recognised with regard. to
nationality"-any principles of law common to all civilised States which
relate specifically to nationality? Rundstein, who can certainly be regar?e?
as an authority on the matter, came to a negative conclusion. 1 If thts IS
correct, it is not clear why the Conference incorporated a reference to these
principles in the text of the Convention. Some such principles as to the
modes of acquisition and loss of nationality had been proposed by the

1. Cf supra, p. 87.
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we pt-:Y.J·' u:r ,.. d~· ~.~, t4: d.v. '1"'/ ~:v. ' ~~ t-:;,.~•t '{. ~ . • ,.h '",... . e-xr .;.;:.: ,..
at,.. '!T•~-:tf m;:. , r;rl> 'A v~riJCaUtJIIJ. ' I • ~flit "'m;;: :4.-:.rl ...:z,.~ '.t'/"..1": I ""'' . ·, tfx,_, s-x
((JAil:• , t:al~. ~Jtl 'ft~ rh '"~~~ V-'1'" '"' ;~ m~y t~_yy-r. 1:1 ~ , 11 ;t , ( 1§ ~ • r ,~ l:,r_u,.
\"/-: ar~ ~mJ~l; :ru.rl-.11 ~ •All tt,-. V"'"'' '· Uut u. r",s r".:<•%J d , 1 -y, n..:.: ...,n> r1 : ' .... ~ ..... ~ p:-
:v:1 w·n':f'&Jl-1 f-:t.I~Jln;'3 ~t.r tph •A ."li f~tl ll..-- -. , ·IJ-:a u *"
:~:, .t":nn lf'JI'J • ,h · ; ~ ." " ~- "'-V-
that rJ(}'; th.jo th~ fumt;<UIRJ -:aJ pt~:T• •m>~~rtJ«.&J --r,. ,,J 'h.fl~r,- :t ~~ • J {r/f~ • V~~ .r,t
vft:<,. o( o A lllf.A!vHi '
On the authority of the Chainnan and (.A .\L R JJnd~ ~r~ tl ~- fiT«)!, · _r,..h.
W'Juld, thcrt.-fc:m;, ~t..·rn w com iw e 4 kind r.Jf antu:i~ r - uff';
·. . vAihv.~a·>n, an
enrourag ~m(.-rJl Jf further dcvd()pmem t)f in :rna ic;nal l..a r1./ in h~ fi~.
1

Almc~t fifi y rca" haw; -since p<~:w.:cJ ;i~.nd Cl;J"'t4in prindpl~ y-,J.;.:rn ,,.., h~w;
emerged ~uch a~ the pmhihition of d iKriminaliJfY d{-na ir1ru1l~km and trJt::
principl ·of e-ffective nati,,nal ity ahhough it i' dcJUb lui ~.ileth.~ and lh what
extent they have maturoo int6 binding rul~. They~ r.r,o~ mi~t be r~rd~
a.~ being derived from general principk~ ofintematirm.at Jar,.·, the principk of
effecti venc~~-if t,ne admits the e-:i\ tcnc.:e tiC wch a w.:nero.l principk-an.d
the principle of non-d i_~ rimi natkm. The fort.~~' ,,f th~ dra.fter~ of the I 1J'YJ
Cr.,nv(:Tltio n ha~ tn be admired. N, to the fJth("T t~...-o YJ1Jr~, international
conventions and interna tiona l cu·~wm , th(-re ha.~ been frer4 uent ~ion in
thib boo k w refer to the interdependence of the"~ t~m VJUTCO; VJ the
interactifJn bet ween c uMom and treaty. The treati~ concluded in the field of
nationality are for the m(;')t pa rt bilateral and muhilateral agreements
regula ting specific questions of nationality, usually those which were of
importance for the good relations between the parties; they were de51gned w
settle controversies which had arisen be tween the parties in the pa~t ~-ing to
different legal and political conceptions of nationality and consequent
divergences of their Laws and prac tices. The treaties, as such, ha\re not made
very deep inroads into municipal law of natio nalitr, into the exclusive
jurisdiction of States, althoug h they have in ce-rtain instances. such as in the
case of the Bancroft Treaties,• contributed by their uniformity to the
development of rules of general international law.
The multilateral treaties, the acts of international legislation in the field of
nationality, arc essentially the in11truments which were adopted by the
Hague Codification Conference, and the Conventions on the r\ationality of
Married Women and the Reduction ofStatelessnes.s. The direct effect of the

2. CJ. supra, p. 83.

3. Mirwtes of 1M First Commit/«, p. 197.
4. Ibid., p. 207.
5. See supra, p. 87.
6. See supra, pp. 131 - 2, 197.
 ''Ill

,lll' fllllllc 'll 1' ,11 1II 11I ,.1 1 111

• 1'1'1111 1 ,,, 111 vie-w ccl dw l111111c•d l11 ltltl wy c••vc•t
' ' t •llcrf
the• lilltitc·d 11111111 11'1 "' Sll tf l' wide II lt.I VI' "c c•clc'clt." 11 11'111 , .ldlllill l'cJi y 11(' 1•11
,· • ,1j .
'11 1111 II • IIll I 111 , 11 111 ' 11 1 1• 1 11
, 11111 .d :11111 • Jlli t h11I11V,IC
'
.d• , c•llc·ct•
I'"" 111 11 1,,.,. ,,
· 1 111 ~ ·11 11'1,11I II··'
1111 • 1'1 ·,ll 1•·llc•t tt•cl ill till' 1'"111 "' ~ l a ,ic• , • llllllldiiiK1 St;. lc•ll •··I · I
•• Ill 1

II .I\'( ' 1111 I I I •c c•cJc•tl lll tllc 'lll '

111111 ill llllllll'lllll'l 111111111
,
1p,.J, ~,
f:IWII :J IId lt't'l
1"'1
ll'ciJ'
' i llllj
wltic 11 lt.I\'C' , j 111 ,. lwt 'll c'IIIH tc•cl i11 llt.III Y l'tciiiiiiii'M; Ji lt' I dl1 ·c fit 111 1, 11 till'
( :e~rtll'l l'llt 1• 11 ~j 1 ( :1·1 il lltll /11 :t l " · • 1111111'1t'lll 'c' wl11c I. w:tli 11 lll'f l'd i11 Wi ll,
IJiJ,{ Il lu•III'Ha 11cl c'llllc·d ill cl i:nll ;d l :~il llll'." '• '.ll ll tiii'Jt'llclt', Wlll'f(' tlw wc 11 k ,,f
till' ( ;1111 JI 'li' II I'C' j 11 fill' fic •lcl llllt:tllllll:tltf y I I'CIIII 'I'I'III'd , Hl'f'lll llcll lii'VI' II·,
W hile· 11 11' 111111 11 . ,, . lt'l'llll:l 111' till' ( :""li·t.'l'llf'l' i11 llw lwl~ l ul: rt:tliuu;dity
Wc'l'l' 11111 tJ 1 -.~ t . it IHtH IIC 'VI' I'tlll'lc-MN lll llllc· :Ill IIIIJIIII' tlllll C'llllltdllltlflll lciWilfdH
till' clc-wle~lllllc' lll ctl'i 11 tc·r·ll:t til.'l rallnw .ill tl li~.twlcl .. ANw:. •~o~ 11 t:rtt ·d l1y M. 1'111il iH
i11 his c'lwd11M11111'1'1 '11 IN ( :llllll'lll.l ll 11f till' l•1nlt ( ·lllllllllflt•c·:
l11 111~' c•p l11 l1111 Il l!' 11111~11 111'111 111 11111 llllllf-1 ~~· l 111 ,. clc•IH' le .e ~ lcc•c•ce ''' "1"'11 ll I11·Hie 1111., 11 11
lhcnug h whlc le inlc'lllllliclllill luw i' ll ll 11111kc· II ~ w, ey , 1d11Wi y l1111 "''"'ly, l11111 llcc• dc,c 11;c 111 ,,,
ll.ll ioll.tfiJ V wfe iclc 11111if11ttW /1,111 11 fW11 /1 111'1 '11 1f11• I' c fii NiV I' JIII. HI' I VC' of lf W icufivid11af S l iclc·~.N
A:-~ to till' l lnitc·tl N:ttioll/1 ( :ull vc·r~liun~, tlw c.:IIII VI'IIt iclll.llll tlw Natiou:dir y
of' ~l;n'l' il'tl Wnlllt'll Ita .~ had a t'IIIIIWic·m l,lc· dlrc·t, I1oth du·t·c ·tl y l1y 1111' l : u'~c·
1111111 1wr ol' ratifkatio11s il h t~li olll:tillnl, a 11d indirc'l'tl y, b y it ~ illfllt i'IJI '(' tJII
11:1 1io11a l l q..:i~ l n t ion . ThiN i:-~ tiiiC loll lltc·tll y dnl' lo till' wide· ac·c·c·pt :ll lt'c· of' till'
pri uc ·iplc- of' tlw ('qll:tlit y of' WII IIJC ' II, it :o~..J J' o11c' of' tlw c·xpn·ssions uf' tht'
pri11ri plco of' llnll ·cli :-~c'l' iiiJilla tioll c•nshri tlf'd i11 tlw ( :ltal'll'l' of tlw lJ nitnl
N.1tious. Thr din·c·t dlcTI ol' tlw ( :oll vt·rrtiou 011 tlw R ~·clu rt ion of'
Sl!ltl'lt·N~ tii'NS Ita~ .-;n f:tr lwt'll ltJodn:t, till' 1111111lwr ol' ra til ira tions IH II:dl.
'l'o,Lo\t'tlte•t' wit h thr rdcva ut J{cTotllllll'tHI:tliPIIS ol'tlll' U uitC'cl Nations il may
well h.tw 1111 intlit·c•e'l dti·e·t 011 uatio11:tl lt·g-isb tillll ,
An a tii'IIIJ>I ha ~ he·c·11 lll:tdr in thi :-~ wmk tu ascTJ'Iaiu rule·.~~ cJI' 1111ivc-rsal,
t'llstntll:tl' i11tl'rll:t tio11:d la w rdatill,Lo\' to ll:ttiou :tlit y a t it :-~ lll'c·sc·llt stag-e· of'
drvrlopiiH'IIl. 'l'h•· rcs11lts whirh ha ve· IHT II Slllltllt:t.risc·cl 111ay well S('c·rn
cl is a ppoi 111 i ll).t'. Thc·n· is 110 haN is i11 pn·sc·ut ru.rlomruy illll'l'll:t Iion:t I Ia w fiJI' a
ri~ot'ht to a ua tiortalit y; tll'itlu·t' haN lltc· iucliviclual a rig"hl to arqu in· a
rta tinua lit at bi rt h, IIIII' dews intc·ntatiort:tl law prohihil loss oJ' uatio11a lit y
:tfic·t· birth hy dq>rivatinn or nlhl'rwisc·, with lhe· possi llk c· xtrption of'llll'
prnhihitinll ol' tlisnilllill:t tnry de · naliouali:-~alion. EVC'n tiH' rule- ag-ainst
iuvnlullt:tl')' illlpositioll ol'uatiou:tlit y is, iu the' v ie·w ol' tltt· pn·:-~c ·rtt writrr, not
:111 a hsolutl' rule-; it applie·s onl y to lin·l'ig'n n:~ti oua ls, to those· who have· a
,Lo\'IIVI'I'IIIIlt'lll Ill fJI'IIh'CI 1111'111 1 II Il i ttl Slillt'ftoss pe 'J'SIIIIS.
The po:o~ itio n It a:-~ ht'l'll SIIC'diiC' tl y cll'st'l'iiH'd u y Sir Aruold (latc·r Lord}
MrNair, whcu Ill' sa id:
· · · i1 1'.111111 11 Ill' !'aid llw1 111un· limn .t 11111 til pnl'liun nf' lhl' licold of' na tiunnli1 y is at pn'Sl'lll

7. q . J ll/llfl, pp. '27 II.

II. "A l'lc·.t liu· the· <:,,.lilic•ntinn ul' lntc'l'll:t tiuna l law nn uc•w l.itu-s," iu (,'roticu '/ rmiSfiCiillltJ,
HHti, pp. l :l.'i .'i:l. ttp. l :l!l.
!1. i\/iml/1'.1 11( tltr1 /o'it .l'f C.'ommiflflfl, p. 27'1.
Tilt' Exij fing Law 249

1 cgul.ltt'd U\ public internation.1l law ... _I O

This i hardl y surprising. As the exi tence of a " people" in the sense of the
su m-total of persons linked to the State by the bond of nationality is one of
the I.'SSl'lltia l requisites of sta tchood , questions of nationality are very likely to
be regarded by States as a ffecting their vital interests. n
frnm the point of view of the individua l, too, important in terests are at
stake i11 questions of na tionality. The Chinese Delegate in the First
Committee of the Hague Conference, Mr. Wu, put it in words which refl ect
the spirit of his ancient nation and which it seems worth quoting:
Natinnalit is not merely a matter of law, it is not a matter of technicality, it is a matter of the
hc.lrt. 12
Thus, non-lega l, " meta-legal" considera tions of a political, social,
economic, demographic and even sentimental nature play an important role
in the field of nationa lity.
Both the interests of the State and those of the individual are involved;
conflicts betvo~een them a re inevitable. The American delegate in the First
Committee, Mr. Flournoy, referred to this relationship:
Nationalit y is a dual relation. The rights arc not all with the individual. On the other hand,
the rights are not a ll with the State .. . 13
Each State has to strike a bala nce between these interests according to its
political and legar system. Each Sta te regulates questions of nationality in
accordance with its political, economic, social and demographic position.
This finds expression in the nationality laws ofStates and it accounts for their
diversity.
Apart from the interests of individual States a nd from those of individuals,
there exists the interest of the international community in a matter which so
deeply affects internationa l rela tions. This interest has led to the
development of rules of customary international law and to the adoption of
multilateral treaties in this field. The scarcity of rules of universal
international law in the form of customary law and of general international
law in the form of international legislation, on a subject which by its nature
presupposes the co-existence of States, is, indeed, an inherent antinomy (Die
grundlegende Antinomie) .14 In view of the diversity of legal and political
concepts and of the diversity of the interests of States in the field of
nationality, it is however not surprising that the common consent, which is a
condition for the d evelopment of international custom and for the
development of general international law in the form of multilateral treaties,
has been obtained only rarely and to a limited extent. Progress in the field of
development of international law on nationality is bound to be slow.

10. Camridge Law Journal, 1941, p. 384.

It. Cf supra, p. 67.
12. M inutes of the First Committee, p. 48.
13. Ibid., p. 141.
14. Rundstein, Loc. cit., p. 20.
250 Conclusions
\Vriters on international law have not infrequently asserted the .
• . 1" h" eXIstenc
of rules of international law concernmg natwna lty w 1ch go further th e
. . h" b k
rules of which an ou dine has b een given m t IS oo , particularly r u1es of a e an th
absolute nature· some of them have b een referred to in the p .n
' . h recedm
chapters. In the view of the present wnter, sue rules cannot be deriv d c. g
. . 1 .b 1 e •rorn
the practice of States and mternationa tn una s. They may ll
desirable from the pomt · o f view
· of m· d.IVI"d ua1s; t h e wnters
· concernwed be
have been inspir~d by .the. ~ost _lau~able motives and may hav: ~:~
influenced by theu own mdtvtduahst, hberal . outlook or that of thei·r era. A
rule does not ' however, become
. law by bemg stated as law · Such effio rts to
substitute wishes for reahty do not serve the cause they are intended to
advance. They reflect, however, a very human tendency from which no
including the present wnter,. can c1aim. to b e entire . 1y £iree. In seekingoneth'
truth, human beings can only strive to detach themselves from their wishe~
and to recognise them as such.
If it may be permitted to use a ~etapho~ here, the development of
international law can be compared with a tram moving at a given speed
towards the future; humanity is its passengers. The passengers may have
different ideas about the train's speed; to many a passenger who is anxious to
arrive at a certain destination it may move too slowly. Only the man who
sees the train passing by, the railway official who has to observe its
movement, can measure its speed objectively. The train is driven by the
statesman; the lawyer is the observer who has to watch its movement from
outside-but he is also a passenger.
It is the task of the statesmen to make the law; it is that of the lawyer to
state it.

B. Future Developments (De Pacto Ferendo)

This book is devoted to an inquiry into the problem of nationality in present

international law; questions of legal policy are, therefore, not its primary
object, but a few remarks on the further development of international law in
the field of nationality may be permitted.
In order to recognise the trends of this development, it seems appropri,ate
to examine current efforts for international legislation in this field. ~h.ese
efforts have so far been centred mainly in the International Law Commtsswn
of the United Nations.
In addition, the United Nations Commission on the Status ofWomen has
elaborated a Convention on the Nationality of Married Women15 based on
the principle of sex equality.
·
R egwnal ·
Intergovernmental · to
organisations have also devoted attentio~
questions of nationality law. Within the framework of the Pan-Amenc~
Union, the Inter-American Juridical Committee prepared in 1952~ ~
1

0
compliance with a Resolution adopted by the Inter-American Council

15. See supra, p. 98 and Appendix 5.

Future Developments 251

Jurists, a Report and Draft Convention on the Nationality and Status of

Stateless Persons, to which reference has been made earlier. 16 The
Consultative Assembly of the Council of Europe placed, in May, 1954, the
' 'possibility of concluding a European Convention on statelessness and
multiple nationality" on its Agenda, 17 and referred the question for report to
its Committee on Legal and Administra tive Questions. The Committee
resolved in December, 1954, on the basis of a preliminary report, prepared
by Mr. Wahl (German Federal Republic), that, as regards statelessness, the
Secretariat shou ld keep the Committee informed offuture progress achieved
by the United Nations in this field ; that, as regards multiple nationality, the
Secretariat should, in collaboration with the competent authorities in
Member States, make a comparative study of cases of multiple nationality
indicating which of these cases are, or would be, covered by the Hague
Conventions and Protocols of 1930; that it should be ascertained why
Member governments had not acceded to these instruments; and that in the
light of this information the Rapporteur should report on the problem with a
view to the possible preparation of one or more Conventions in co-operation
with the Rome Institute for the Unification of Private Law.
These efforts resulted in the adoption of the Convention on Reduction of
Cases of Multiple Nationality and Military Obligations in Cases of Multiple
Nationality, and Protocols thereto. 18 In addition, the Committee of
Ministers of the Council adopted resolutions on the nationality of spouses of
different nationality and of children born in wedlock.l 9
The International Law Commission initia ted its work on the topic
" nationality, including statelessness", at its Fourth Session in 1952. After
having elaborated, besides certain suggestions relating to present stateless-
ness, a Draft Convention on the Elimination of Future Statelessness and a
Draft Convention on the Reduction of Future Statelessness, the Commission
decided to defer any further consideration of multiple nationality and other
questions of nationality. 2o
In preparing the Draft Conventions the International Law Commission,
whose object is, in pursuance of Article 13, paragraph 1 of the Charter of the
United Nations, "the promotion of the progressive development of
international law and its codification", 21 was clearly engaged in work for the
development of international law rather than for its codification. This work
resulted in the adoption of the Convention on the Reduction of
Statelessness.22 The views on the subject of na tionality expounded by the

16. See supra, pp. 109- 10, 130, 149, 191.

17. Consultative Assembly of the Council of Europe, Documen t 236.
18. See supra, pp. 191- 2 and Appendices 6-8.
19. See supra, pp. 98- 9.
20. Report of the International Law Commission covering the work of its Sixth Session
Y.B.l.L.C. 1954- 1, p. 149.
21 . Statute of the International Law Commission, Article 1, para. I (Annex to General
Assembly Resolution 174 (II ) ofNovember21 , 1947).
22. See Appendix 4.
252 Conclusions

Mem ber~ of the Interna tiona l C?mrT_lission a nd the views exp~essed by

Governments a nd their representa tives 111 the course of the preparat 1on of the
Convention a rc indicative of existing trends.
From the outset the views of the members of the Commission on the
method of its work on the subj ect differed sha rply. T wo of its members
Professor Kozhevnikov (Soviet U nion) a nd Dr.. Z?ur~k (C zechoslovakia):
were o pposed to a ny new a ttempt f~r the elm~mat10n or reduction of
stateles~ncss by the method s of inter~auonal Ia~, z.e:, bY. the preparation of
multila teral conventions, since questions of natiOnality fell almost entirely
within the domestic competence o f States " · " Th e so1ution . Ia y m . measures
23

ta ken by governments within the fra mework of their d omestic legislation.''24

T his view was not sha red by the other m embers of the Commission, but
their opinions were divided on the question o~ t~e scope ?~ such conventions
and the extent to which they should a m end eXlstmg mumc1pallaws. Some of
the members felt tha t a n a ttempt should be mad e towards the complete
elimina tion of sta telessness by way of a n interna tiona l convention. This view
was expounded forcefull y by Professor La uterpacht (U nited Kingdom). He
d eclared , in substa nce, tha t sta telessness wa a n evil a nd was generally
recognised as such. It involved ha rdship a nd inhuma nity, offensive to
human dignity. Secondly, statelessness was contra ry to the structure of
interna tion al law as a t present constituted . Nation ality a t present afforded
the only link between the individua l a nd interna tional law, and only by
possession of a nationality could the individua l enjoy the benefits which
interna tional law was designed to confer upon him. Thirdly, statelessness
was not determined by a ny vital interest of a ny S ta te, or by the fundamental
concept of a ny system of law. Lastly, the reduc tion or elimination of
sta telessness had increasingly become part of the d eliberate a nd common
policy of Sta tes. H e hoped tha t the Commission would not pay too much
attention to the argument tha t the texts proposed conflicted with existing
nationa lity laws. Experience showed that years would ela pse before they
were ratified. " It would therefore be prudent to be bold." 25 Other members,
pa rticularly Professor Fra m;:ois (Netherla nds)26 and Professor Amado
(B:az.il),27 felt that the Commission should no t go too far, that some of the
pnnc1ples would hardly b e acceptable to Sta tes; the Commission could best
~er~e. the cause by proposing a convention which would be complete,
JUndically .sound a nd ~t the same time accepta ble.
In the Sixth Com~Ittee of the G en era l Assembly the d eba te was largely
devoted . to the question of the further proced u re for the conclusion of a
c? nvention for the elimina tion or reduction of fut u re sta telessness. In so far as
views were expressed on the substa nce of the m a tter, they showed a di,1sion

.. 123 .. ProyfessBolr LKCozhevnikov: see Summary Records of the /ntrrnational Law Commission, 162nd
., eetmg . . . . . 1952- I, p. 136.
24. Dr. Zourek: ibid. , 2 llth Meeting Y .B. I.L.C. 1953- I 174
25. See Summary Rtcords 0 r tlu 1 tt 1· l r _ . ' p. · . · 171 I i?
26. Ibid. , p. l l2. ~ n rna zona LaW Commzssion, 2 11 th Meeting, zbzd, PP· - -·
27. Ibid. , p. 174.
Futurr Drl'rlopmmtJ

nf op.i nion si mibr It ) that which existnl in llu· lnt 1·•·••·•ti••ll:tl l.aw
Commission. ome dckg-a~t·s ohjt'l'lnl In tlw d ra ft ( :u11 •·utiuus 1111 till'
ground that th<"y \WIT incunsisH'III w ith tht· doiiii'Siit' t' harat'l('l ol
nationalit y l:n ; tht)Sl' who upposcd this point of vit'w point I'd 11111 ll1a1 ll1is
did not pn·clude the cuudusiou of intt·rua 1 inn a I I'Oil I'll 1ions rda 1i ug 111
nationalit y. tha t the que, tion of'nation:dit y was nolfJPY .If' withintlw douwstic
jurisdiction of S!atcs,:!M and that whilt' nationalit y was a lll:tllt'l' within tlw
domestic jurisd ic tion of Statt•s the subjl'rt <'ould al.-;o J.avl' g•·•w•·al
international asp e<.· ts.211
These debates show c karly the t·xistt·nct· of <·ourlit·ting tt·nd l'nl' il's in llw
approach to nationalit y law: the national and thl' intl'rllational tc·ndc·u•·y;
within the latter diflcring trends ma y again be distinguishc·d as to thf' t•x tc·nt
of the limitations which should he imposed by intc ruational law on
municipal n a tiona lity law. In accordance with the d erision of tlw
Intrrnational Law Commission to con centrate on tlw probkm of
statelessness, the Draft Convent ions and t.h' Conve ntion itself do not a ltelllpl
to impose general limita tions on munic ipal nationality laws except so far as
they a re productive of statelessness. In cons<'q u cnre, the applicability (Jf
some of the provisions is limited to cases whcr otherwise, i.e., in the abscucc
of such a provision, statelessness would rcsult. 30
The adoption of these provisions would, in a number of Statc·s, create a
duality of nationality laws. This may be one of the reasons why th<"
Convention has so far been ratified by a rcgrellahly small uum~)(:r of Stat<"s
only. Another reason is undoubted ly the hesitatio n of S tates 10 arn<"ud thc·ir
nationality laws. The Commission did not, owing to the sclf~imposcd
limitation of its task to the e liminatio n or reductio n of sta telessness, consider
the question whether there exists sufficient common ground between States
in the field of nationality law for the e laboration of- at least some -
absolute rules, with the notable exception of the provision against
deprivation of nationa lity on racial, ethnic, religious or p olitical grounds.
The application of provisions of such a conditional c haracter in any given
case, d epends, moreover, on the inte rpretation of foreign nationality Ia w by
the Contracting States (whether the person concerned possesses or acquires
another nationality), an interpretation which might conflict with the
interpretation of its own nationality law by the State concerned.

28. The Mexican delegate, Mr. Castaneda: sec Official Record of the 402nd Meeting, para. 26.
29. The delegate of the United Kingdom, Sir Gerald Fitzmaurice: sec Official Record of the
40Ist Meeting, para. 17.
30. See Articles I and 4 of the Convention: "A person ... who would otherwise be statele~~S";
Articles 5 and 6: "such loss shall be conditional upon possession or acquisition of another
nationality"; Article 7, para. I (a) : "unless the person concerned possesses or acquires another
nationality"; Article 7, para. 2: " unless he acquired or has been accorded the assurance of
acquiring the nationality of that foreign country"; Article 7, para. 6: " if such loss would render
him stateless"; Article 8, para. I: " if such deprivation would render him stateless"; Article 10,
para. 2: "such persons as would otherwise become stateless".
For the full text of the Convention see Appendix 4.
254 Conclusions

The International Law Commission was aware of this difficulty; it was

thus faced with the problem whether a Convention desi~ned to eliminate
statelessness would if adopted, in fact have the desired effect if its
application and int~rpretation were left ~o the n~tional authori.ties of the
Contracting States. It decided at its Fifth Ses.s10n, after a? mtere~ting
debate 31 in favour of the establishment of machmery for the mternational
judici;l control of the interpretation or application of both draft
Conventions and maintained this decision in the light of the comments
received. 32
Article II of the draft Conventions provided for the establishment, within
the framework of the United Nations, of an agency to act, when it deems
appropriate, on behalf of stateless persons before ?overnme~~s or before an
international tribunal to be set up by the Parties, or, failmg agreement
between the Parties, by the General Assembly at the request of any one of the
Parties. The tribunal was to be competent to decide upon complaints
presented by the agency on behalf of individuals claiming to have been
denied nationality in violation of the provisions of the Convention. The
provision relating to a body to which a person claiming the benefit of the
Convention may apply for the examination of his claim and for assistance in
presenting it to the appropriate authority, was accepted by the Conference
of Plenipotentiaries but the provision for the establishment of an
international tribunal was not accepted. 33 The question of the solution of
conflicts of nationality laws and, in general, of the further development of
international law relating to nationality is, however, in fact, closely linked
to the question of the establishment of international judicial control of
individual claims relating to nationality.
International adjudication is particularly called for in the field of
nationality law. 34 Conflicts of nationality laws, statelessness and double
nationality result with particular frequency from varying interpretations of
nationality laws and treaties. The great number of persons who became
stateless after the dismemberment of the Austro-Hungarian Monarchy, for
example, was largely the consequence of differences in the interpretation of
the Peace and Minorities Treaties. 35 Present international law, according to

31.. See Summary Records of the International Law Commission, 2l8th, 2l9th, 220th, 223rd,
224th, 23lst and 232nd Meetings (Y.B.l.L.C. 1953- l pp 227 229 232-233 258-27 1
321-322, 325-329). ' . ' , , ,
32 .. See Summary Records of the International Law Commisssion, 244th, 245th and 25lst
Meetings (Y.B.l.L.C. 1954- 1, pp. 12-14, 15, 49- 50).
33. See Summary Records of the Committee of the Whole of the Conference 17th Meeting
(doc. A/Conf.9/C.l/SR.l7 p. 4). '
34. Cf the author's "Statelessness as a Legal-Political Problem" in The Problem of
Statelessness, at p. 23. '
35. Cf Graupn~~· '_'Statelessness as a consequence of the change of sovereignty over territory
after the last war ' m !ht Problem of Statelessness, pp. 27- 40; and Bentwich, "Statelessness
through the Peace Treaties after the First World War", in 21 B.Y. ( !944) . 171-6· see also
supra, p. 127. 'PP '
~uture lJeuelopr,nents 255

which each State is competent to d etermine who are its nationals, offers no
solution to these conflicts.
It seems worth quo ting here the opinion ofM. G. Kaeckenbeeck, formerly
Pre ident of the Arbitral Tribunal for U pper Silesia, on the experience
gained with the system established by the Geneva Convention on Upper
Silesia of May 15, 1922, according to which questions of nationality
involving interpretation of the Convention were, at the instance of
individuals, to be settled by a Conciliation Commission and ultimately, with
ctrect erga omnes, by the Arbitral Tribunal :
.. . they [i.e.; M. Kaecke nbeeck's conclusions) a re distinctly positive with regard to the
international j ud icial control of cha nge of na tionality and option. H ere I strongly believe that
there is room, nay an imperative need, for international judicial control precisely in cases where
racial and political antagonisms are to be feared.
1 believe that the experience of the Arbitral Tribunal in U pper Silesia is conclusive in this
rcspect. 36
and:
As to the experience of the Arbitral Tribunal in this matter, it appears to me conclusive in
showing the great advan tage of a n international judicial control. .. . It demonstrated the value
ofsome such notion as that of an individual right to one's nationality, the acquisition or loss of
which should be a matter oflaw, and not simply one of discretion for national authorities. It also
proved the usefulness of le tting individuals claim and defend their right to a nationality before
bilateral and even international judicial organs. 37
An argument frequently advanced against the establishment of international
judicial machinery for the determination of nationality in cases of conflicts is
that it would encroach on national sovereignty and that it would be
inconsistent with the character of nationality as a matter of domestic
jurisdiction. International judicial control can, however, only be established
by agreements, freely arrived at, between States; the power to make treaties is
an incident of national sovereignty. Just as nationality is not a matter within
domestic jurisdiction per se, the jurisdiction of international tribunals in
matters of nationality could only be established pro tanto, within the scope
and for the purpose of the treaties providing for such jurisdiction.
In the opinion of the writer, the establishment of international judicial
machinery for the adjudication of conflicts in questions of nationality which
could be set in motion by the individual whose nationality is in doubt and to
which individuals would, therefore, directly or through the intermediary of
an international agency acting on their behalf, have access, is essential for
their solution.
Such access appears to be particularly called for in the case of stateless
persons who, by definition, have no State to protect them and to espouse
their cause. as The interposition of an agency authorised to act on behalf of
individuals before governments and international tribunals would assist in

36. Tht International Expen'ment of Upptr Siltsia, pp. 213-4.

37. Ibid., p. 521.
38. Cf R eport of the International Law Commission covering the work of its Fifth Session,
drafted by Lauterpacht, para. 158 (Y.B.I.L.C. 1953- II, p. 227).
256 Conclusions

the settlement of claims of individuals to natio~a.lity wi t.ho~t. resorting to

international litigation; it would allow for a s1ftmg of mdividual claims
which would ensure that no manifestly unfounded complaint, nor
complaints which can be settled without the institution of international
proceedings, is brought before the internatio~al tribunal. I~ would thus meet
an objection which is frequently made agamst the grantmg of procedural
capacity before internationa~ tribunals to individuals.
It results from the antinomy w.hich is inherent in the prese~t relationship
between nationality and internatiOnal law that the very exerctse of domestic
jurisdiction in matters of nationality often leads-as examples in this book
have shown-to an encroachment on the domestic jurisdiction of other
States and, thus, to conflicts. It may sound paradoxical, but it is none the less
true: the very nature of nationality law as a matter primarily within
domestic jurisdiction explains the need for the jurisdiction of international
judicial organs in the case of conflicts of nationality laws and of differences of
interpretation which otherwise could not be settled.
One last word about the relationship between nationality and the rights of
individuals. Questions of nationality cannot be dissociated from the functions
of nationality. 39 These functions may differ in international law and
in municipal law, but they are closely interlinked . From the aspect of
municipal law nationality confers rights and imposes obligations on the
individual. With the enactment of the Charter of the United Nations human
rights and fundamental freedoms are no longer solely a ma tter of domestic
concern. If nationality is not a purely formal concept, the efforts for the
development of international law relating to nationality can hardly be
separated from the efforts for the integration of human rights in international
law and for their guarantee by the safeguards of international law. The
further development of international law in the field of nationality is thereby
closely, if not inseparably, linked with the entire development of the position
of the individual in international law.

39. See the prese?t writ~r's review of A Study of Statelessness (prepared by the United Nations
Department ofSoc1al Affaus and published in 1949), in 27 B.Y. ( 1950), at p. 511.
 Appendix 1

CONVENTION ON CERTAIN QUESTIONS

RELATING TO THE CONFLICT OF
NATIONALITY LAWS
(The Hague, 1930) 1

(The High Contracting Parties, ]

Considering that it is of importance to settle by international agreement questions relating to
the conflict of nationality laws;
Being convinced that it is in the general interest of the international community to secure that
all its members should recognise that every person should have a nationality and should have
one nationality only;
Recognising accordingly that the ideal towards which the efforts of humanity should be
directed in this domain is the abolition of all cases both of statelessness and of double nationality;
Being of opinion that, under the economic and social conditions which at present exist in the
various countries, it is not possible to reach immediately a uniform solution of all the above-
mentioned problems;
Being desirous, nevertheless, as a first step toward this great achievement, of settling in a first
attempt at progressive codification, those questions relating to the conflict of nationality laws on
which it is possible at the present time to reach international agreement,
Have decided to conclude a Convention and have for this purpose appointed as their
Plenipotentiaries ... Who . . . Have Agreed as follows:

Chapter I. General Principles

Article 1
It is for each State to determine under its own law who are its nationals. This law shall be
recognised by other Sta tes in so far as it is consistent with international conventions,
international custom, and the principles of law generally recognised with regard to nationality.

Article 2
Any question as to whether a person possesses the nationality of a particular State shall be
determined in accordance with the law of that State.

Article 3
Subject to the provisions of the present Convention, a person having two or more nationalities
may be regarded as its national by each of the States whose nationality he possesses.

Article 4
A State may not afford diplomatic protection to one of its nationals against a State whose
nationality such person also possesses.

Article 5
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·ofits law in matters of personal status and of any
conventions in force, a third State shall, of the nationalities which any such person possesses,
recognise exclusively in its territory either the nationality of the coun try in which he is

I. L.N. Doc. C. 24. M. 13. 1931. V.

 Appendix I

hahitu.11l · and prim:ipall y JTsitknt, or tht· nationalit y uf the country wi th which in the
cirnnnst.anCt'S he a ppt•ars to lw in litct most closely COiliH't'ted .

Articlf 6
\Vitlmut pn~judicc tu the liberty of a State to accord wider rights to renounce its ~ationality, a
pl'rson possessin~ two nationalities acquired without ~ny voluntary ~ct ~n lm par~ ma y
n:11011 ncc OIH:' of tlH'm with the autho risatioll of the State whose natwna hty he des1res to
stn't't'llrler.
This authorisation ma y not bt• refusecl i11 the case nf a person who has his habitual and
pri 11ripal residc11 n· abroad, if the conditions la id down in the law of tht: State whose nationality
he desires to surrender are satisfied.

Chapter D. Expatriation Permits

Articll' 7
1n so far as the taw of a Sta te pro,·idcs lo r the issue of an expatria tion permit, such a permit
shall no t t'ntail the loss oftlw nationa lit y of the State which issues it, unless the person to whom it
is issued pnsst•ssc·s another na tionality or unless a nd until he a~quires anoth.er n~tion~lity.
An expatria tion p(•rmit shall lapse if the holder does not acqUire a new na llonahty wuhm the
periorl fi xed by tlw State which has issued the permit. This provision shall no t apply in the case
of an inclividual who, at the time when he receives the expatriation permit , a lready possesses a
nationa lit\' o ther than that of the State by which the permit is issued to him.
The St~te whose nationalit y is acquired by a person to whom an expatriation p ermit has been
issued , shall notify such acquisition to the State which has issued the permit.

Chapter m. Na~onality of Married Women

Article 8
lftht• national law of the wife causes her to lose her na tion a lity on marriage with a foreigner,
this corlS<-quence shall be conditional on her acquiring the nationality of the husband.

Article 9
If the nationa l law of the wife causes her to lose her nationality upon a change in the
nationality ofh<·r husband occurring during marriage, this consequence shall be conditional on
her acquiring her husband's new nationality.

Article 10
Natura lisation of the husband during marriage shall not involve a change in the nationality of
the wife exc<·pt wit h her consent. •

Articlr 11
The wife who, under the law of her country, lost her nationality on marriage shall not recover
it after the dissolution of the marriage except on her own application and in accordance with the
law of tha t country. If she does recover it, she shall lose the nationalit y which she acquired by
reason of the marriage.

Chapter IV. Nationality of Children

Article 12
Rules of law. which con.fer na tionality by reason of birth on the territory of a State sha ll not
apply automatically to children born to persons enjoying diplomatic immunities in the country
where the birth occurs.
The law .or each ~tate .sh.all permit children of consuls de carriere, or of officials of foreign States
charg~ With officia! mi~JOns by their ~ove~nments, to become divested, by repudiation or
otherwise, of the nanonahty of the State m which they were born in anv case in which on birth
they acquired dual nationality, provided that they retain the n~tionality of their parents.
 Convention on Conflict of Nationality Laws) 1930 259

Article 13
Naturalisation of the parents shall confer on such of their children as, according to its law, are
minors the nationality of the State by which the naturalisation is granted. In such case the law
of that State may specify the conditions governing the acquisition of its nationality by the minor
children as a result of the naturalisation of the parents. In cases where minor children do not
acquire the, nationality of their parents as the result of the naturalisation of the latter, they shall
retain their existing nationality.
Article 14
A child whose parents are both unknown shall have the nationality of the country of birth. If
the child's parentage is established, its nationality shall be determined by the rules applicable in
cases where the parentage is known.
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
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 law of that State shall
determine the conditions governing the acquisition of its nationality in such cases.

Article 16
If the law of the State, whose nationality an illegitimate child possesses, recognises that such
nationality may be lost as a consequence of a change in the civil status of the child (legitimation,
recognition), such loss shall be conditional on the acquisition by the child of the nationality of
another State under the law of such State relating to the effect upon nationality of changes in
civil status.

Chapter V. Adoption

Article 17
If the law of a State recognises that its nationality may be lost as the result of adoption, this
loss shall be conditional upon the acquisition by the person adopted of the nationality of the
I person by whom he is adopted, under the law of the State of which the latter is a national
relating to the effect of adoption upon nationality.

Chapter VI. General and Final Provisions

Article 18
The High Contracting Parties agree to apply the principles and rules contained in the
preceding articles in their relations with each other, as from the date of the entry into force of the
present Convention.
The inclusion of the above-mentioned principles and rules in the Convention shall in no way
be deemed to prejudice the question whether they do or do not already form part of
international law.
It is understood that, in so far as any point is not covered by any of the provisions of the
preceding articles, the existing principles and rules of international law shall remain in force.

Article 19
Nothing in the present Convention shall affect the provisions of any treaty, convention or
agreement in force between any of the High Contracting Parties relating to nationality or
matters connected therewith.
Article 20
Any High Contracting Party may, when signing or ratifying the present Convention or
acceding thereto, append an express reservation excluding any one or more of the provisions of
Articles l to 17 and 21.
260 Appendix J

The provisions thus excluded cannot be appli~d against the Contracti~g Party who has made
the reservation nor relied on by that Party agamst any other Contractmg Party.

Article 21
If there should arise between the High Contracting Part~es a disp.u te of an~ kind relating to
the interpretation or application of the present Conven.tiOn and 1f such. d1spute cannot be
satisfactorily settled by diplomacy, ~t shall. b.e settled m accordance. wuh a.ny applicable
agreements in force between the parties prov1dmg for the settlement of mternauonal disput
. h d. es.
In case there is no such agreement in force betw~en the part1~s, t. e 1spute shall be referred to
arbitration or judicial settlement, in accordance w1th the coru:tltutiOnal proce.dure of each of the
parties to the dispute. In the absence of agreement o~ the chm~e o~ another tnb~nal, the dispute
shall be referred to the Permanent Court ofl nternatiOnal J u.st1ce, 1f all the part1es to the dispute
are parties to the Protocol of the 16th December, 1920, relatmg to the Statute of that Court, and
if any of the parties to the dispute is not a p~rty to the Pr? tocol ?f the 16th Decen:ber, 1920, the
dispute shall be referred to an arbitral tnbunal constituted m accordance wnh the Hag
Convention of the 18th October, 1907, for the Pacific Settlement of International Conflicts~e

Article 22
The present Convention shall remain open until the 31st December, 1930, for signature on
behalf of any Member of the League of Nations or of any non-Member State invited to the First
Codification Conference or to which the Council of the League of Nations has communicated a
copy of the Convention for this purpose.

Article 23
The present Convention is subject to ratification. R atifications sha ll be deposited with the
Secretariat of the League of Nations.
The Secretary-General shall give notice of the deposit of each ratification to the Members of
the League of Nations and to the non-Member States mentioned in Article 22, indicating the
date of its deposit.

Article 24
As from january 1st, 1931, any Member of the League ofNations and any non-Member State
mentioned in Article 22 on whose behalf the Convention has not been signed before that date,
may accede thereto.
Accession shall be effected by an instrument deposited with the Secretariat of the League of
Nations. The Secretary-General of the League of Nations shall give notice of each accession to
the Members of the League of Nations and to the non-Member States mentioned in Article 22,
indicating the date of the deposit of the instrument.

Article 25
A proces-verbal shall be drawn up by the Secretary-General of the League of Nations as soon
as ratifications or accessions on behalf of ten Members of the League of Nations or non-Member
States have been deposited .
A certified copy of this proces-verbal shall be sent by the Secretary-General of the League of
Nations to each Member of the League ofNations and to each non-Member State mentioned in
Article 22.

Article 26
The present Convention shall enter into force on the 90th day after the date of the proces-
verbal mentioned in Article 25 as regards all Members of the League ofNations or non-Mem~r
States on whose behalf ratifications or accessions have been deposited on the date of the proces-
verbal.
As regards any Member of the League or non-Member State on whose behalf a ratification or
accession is subsequently deposited, the Convention shall enter into force on the 90th day after
the date of the deposit of a ratification or accession on its behalf.
Convention on Conflict of Nationality Laws, 1930 261

Article 27
As from j anuary 1st, 1936, any Member of the League of Nations or any non-Member State
in regard to which the pres~nt Convention is then in force, may address to the Secretary-
General of the League ofNattons a request for the revision of any or all of the provisions of this
Convention. If such a re~uest, after bei~g communicated to the other Members of the League
and non-Member State_s m regard to wh1ch the ~nvention is then in force, is supported within
one year by at_least mne of them, the Council of the League of Nations shall decide, after
consultation with the Members of the League of Nations a nd the non-Member States
mentioned in Article 22, whether a conference should be specially convoked for that purpose or
whether such revision should be considered at the next conference for the codification of
international law.
The High Contracting Parties agree that, if the present Convention is revised, the revised
Convention may provide that upon its entry into force some or all of the provisions of the present
Convention shall be abrogated in respect of all of the Pa rties to the present Convention.

Article 28
The present Convention may be denounced.
Denunciation shall be effected by a notification in writing addressed to the Secretary-General
of the League of Nations, who shall inform all Members of the League of Nations and the non-
Member States mentioned in Article 22.
Each denunciation shall take effect one year after the receipt by the Secretary-General of the
notification but only as regards the M ember of the League or non-Member State on whose
behalf it has been notified.
Article 29
I. Any High Contracting Party may, at the time of signature, ratification or accession,
declare that, in accepting the present Convention, he does not assume any obligations in respect
of all or any of his colonies, protectorates, overseas territories or territories under suzerainty or
mandate, or in respect of oertain parts of the population of the said territories; and the present
Convention-shall not apply to any territories or to the parts of their population named in such
declaration.
2. Any High Contracting Party may give notice to the Secretary-General of the League of
Nations at any time subsequently tha t he desires that the Convention shall apply to all or any of
his territories or to the parts of their population which have been made the subject of a
declaration under the preceding paragraph, and the Convention shall apply to all the territories
or the parts of their population named in such notice six months after its receipt by the
Secretary-General of the League of Nations.
3. Any High Contracting Party may, at any time, declare that he desires that the present
Convention shall cease to apply to all or any of his colonies, protectorates, overseas territories or
territories under suzerainty or mandate, or in respect of certain parts of the population of the
said territories, and the Convention shall cease to apply to the territories or to the parts of their
population named in such declaration one year after its receipt by the Secretary-General of the
League of Nations.
4. Any High Contracting Party may make the reservations provided for in Article 20 in
respect of all or any of his colonies, protectorates, overseas territories or territories under
suzerainty or mandate, or in respect of certain parts of the population of these territories, at the
time of signature, ra tification or accession to the Convention or at the time of making a
notification under the second paragraph of this article.
5. The Secretary-General of the League of Nations shall communicate to all the M embers of
the League ofNations and the non-Member States mentioned in Article 22 all declarations and
notices received in virtue of this article.
Article 30
The present Convention shall be registered by the Secretary-General of the League of
Nations as soon as it has entered into force.
Article 31
The French and English texts of the present Convention shall both be authoritative.
 Appendix 2

PROTOCOL RELATING TO MILITARY

OBLIGATIONS IN CERTAIN CASES
OF DOUBLE NATIONALITY
(The Hague, 1930) 1

The Undersigned Plenipottniiaries, on behalf of their respective Governments,

With a view to determining in certain cases the position as regards their military obligatio
of persons possessing two or more nationalities, Have Agreed as follows : ns

Article 1
A person possessing two or more nationalities who habitually resides in one of the countries
whose nationality he possesses, and who is in fact most closely connected with that country, shall
be exempt from all military obligations in the other country or countries.
This exemption may involve the loss of the nationality of the other country or countries.

Article 2
Without prejudice to the provisions of Article l of the present Protocol, if a person possesses
the nationality of two or more States and, under the law of any one of such States, has the right,
on attaining his majority, to renounce or decline the nationality of that State, he shall be exempt
from military service in such State during his minority.

Article 3
A person who has lost the nationality of a State under the law of that State and has acquired
another nationality, shall be exempt from military obligations in the Sta te of which he has lost
the nationality.

Article 4
The High Contracting Parties agree to apply the principles and rules contained in the
preceding articles in their relations with each other, as from the date of the entry into force of the
present Protocol.
The inclusion of the above-mentioned principles and rules in the said articles shall in no way
be deemed to prejudice the question whether they do or do not already form part of
interna tional law.
It is understood tha t, in so far as any point is not covered by any of the provisions of the
preceding articles, the existing principles and rules of international law shall remain in force.

Article 5
Nothing in the present Protocol shall affect the provisions of any treaty, convention or
agreement in force between any of the High Contracting Pa rties relating to nationality or
matters connected therewith.
[The r~maining Articles (6-17) follow the provisions of Chapter VI (General and Final
Provisions) of the main Convention, for the text of which see Appendix l.)

I. L.N. Doc. C. 25. M . 1• . 1931. V.

 Appendix 3

PROTOCOL RELATING TO A CERTAIN CASE

OF STATELESSNESS
(The Hague, 1930) t

The Undersigned Plenipotentiaries, on behalf of their respective Governments,

With a view to preventing statelessness arising in certain circumstances, Have Agreed as follows:

Article 1
In a State whose nationality is not conferred by the mere fact of birth in its territory, a person
born in its territory of a mother possessing the nationality of that State and of a father without
nationality or of unknown nationality shall have the nationality of the said State.

Article 2
The High Contracting Parties agree to apply the principles and rules contained in the
preceding article in their relations with each other, as from the date of the entry into force of the
present Protocol.
The inclusion of the above-mentioned principles and rules in the said article shall in no way
be deemed to prejudice the question whether they do or do not already form part of
international law.
It is understood that, in so far as any point is not covered by any of the provisions of the
preceding article, the existing principles and rules of international law shall remain in force.

Article 3
Nothing in the present Protocol shall affect the provisions of any treaty, convention or
agreement in force between any of the High Contracting Parties relating to nationality or
matters connected therewith.
[The remaining Articles (4-15) follow the provisions of Chapter VI (General and Final
Provisions) of the main Convention, for the text of which see Appendix 1.]

I. L.N. Doc. C. 26. M. 15. 1931. V.

 Appendix 4

UNITED NATIONS CONVENTION ON THE

REDUCTION OF STATELESSNESS*

The Contracting States,

Acting in pursuance of resolution 896 (IX), adopted by the General Assembly of the United
Nations on 4 December 1954,
Considering it desirable to reduce statelessness by international agreement, Have agreed as
follows:

Article 1
1. A Contracting State shall grant its nationality to a person born in its territory who would
otherwise be stateless. Such nationality shall be granted:
(a) at birth, by operation of law, or
(b) upon an application being lodged with the appropriate authority, by or on behalf of the
person concerned, in the manner prescribed by the national law. Subject to the provisions of
paragraph 2 of this Article, no such application may be rejected.
A Contracting State which provides for the grant of its nationality in accordance with sub-
paragraph (b) of this paragraph may also provide for the grant of its nationality by operation of
law at such age and subject to such conditions as may be prescribed by the national law.
2. A Contracting State may make the grant of its nationality in accordance with sub-
paragraph (b) of paragraph 1 of this Article subject to one or more of the following conditions:
(a) that the application is lodged during a period, fixed by the Contracting State, beginning not
later than at the age of eighteen years and ending not earlier than at the age of twenty-one
years, so, however, that the person concerned shall be allowed at least one year during which he
may himself make the application without having to obtain legal authorization to do so;
(b) that the person concerned has habitually resided in the territory of the Contracting State for
such period as may be fixed by that State, not exceeding five years immediately preceding
the lodging of the application nor ten years in all;
(c) that the person concerned has neither been convicted of an offence against national security
nor has been sentenced to imprisonment for a term of five years or more on a criminal charge;
(d) that the person concerned has always been stateless.
3. Notwithstanding the provisions of paragraphs 1 (b) and 2 of this Article, a child born in
wedlock in the territory of a Contracting State, whose mother has the nationality of that State,
shall acquire at birth that nationality if it otherwise would be stateless.
4. A Contracting State shall grant its nationality to a person who would otherwise be stateless
and who is unable to acquire the nationality of the Contracting State in whose territory he '!"as
born because he has passed the age for lodging his application or has not fulfilled the reqUired
residence conditions, if the nationality of one of his parents at the time of the person's birth was
that of the Contracting State first above mentioned. If his parents did not possess the same
nationality at the time of his birth, the question whether the nationality of the person concerned
should follow that of the father or that of the mother shall be determined by the national law of
such Contracting State. If application for such nationality is required, the application ~hall be
made to the appropriate authority by or on behalf of the applicant in the manner prescnbed by
the national law. Subject to the provisions of paragraph 5 of this Article, such application shall
not be refused.

• U.N. doc. A/Conf. 9/15.

U11ittd Natiorzs Convention on the Reduction of Statelessness 265

5. The: Contracting State may make the grant of its nationality in accordance with the
provisions of paragraph 4 of this Article su~ject to one or more of the following conditions:
(a } that the application is lodged before the applicant reaches an age, being not less than
twenty-three yrar.;, fixed by the Contracting State;
(b) that the person concerned has habitually resided in the territory of the Contracting State for
such period immediately preceding the lodging of the application, not exceeding three years, as
may be fixed by that State;
(c) that the person concerned has always been stateless.

Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the
contrary, be considered to have been born within that territory of parents possessing the
nationality of that State.

Article 3
For the purpose of determining the obligations of Contracting States under this Convention,
birth on a ship or in an aircraft shall be deemed to have taken place in the territory of the State
whose flag the ship flies or in the territory of the State in which the aircraft is registered, as the
case may be.
Article 4
I . A Contracting State shall grant its nationality to a person, not born in the territory of a
Contracting State, who would otherwise be stateless, if the nationality of one of his parents at
the time of the person's birth was that of that State. If his parents did not possess the same
nationality at the time of his birth, the question whether the nationality of the person concerned
should follow that of the father or that of the mother shall be determined by the national law of
such Contracting State. Nationality granted in accordance with the provisions of this paragraph
shall be granted:
(a) at birth, by operation of law, or
(b) upon an application being lodged with the appropriate authority, by or on behalf of the
person concerned, in the manner prescribed by the national law. Subject to the provisions of
paragraph 2 of this Article, no such application may be rejected.
2. A Contracting State may make the grant of its nationality in accordance with the
provisions of paragraph I of this Article subject to one or more of the following conditions:
(a) that the application is lodged before the applicant reaches an age, being not less than
twenty-three years, fixed by the Contracting State;
(b) that the person concerned has habitually resided in the territory of the Contracting State for
such period immediately preceding the lodging of the application, not exceeding three years, as
may be fixed by that State;
(c) that the person concerned has not been convicted of an offence against national security;
(d) that the pc:rson concerned has always been stateless.

Article 5
I . If the law of the Contracting State entails loss of nationality as a consequence of any
change in the personal status of a person such as marriage, termination of marriage,
legitimation, recognition or adoption, such loss shall be conditional upon possession or
acquisition of another nationality.
2. If, under the law of a Contracting State, a child born out of wedlock loses the nationality of
that State in consequence of a recognition of affiliation, he shall be given an opportunity to
recover that nationality by written application to the appropriate authority, and the conditions
governing such application shall not be more rigorous than those laid down in paragraph 2 of
Article I of this Convention.

Article 6
If the law of a Contracting State provides for loss of its nationality by a person's spouse or
children as a consequence of that person losing or being deprived of that nationality, such loss
shall be conditional upon their possession or acquisition of another nationality.
266 Appendix 4

Article 7
I. (a) If the law of a Contracting State permits renunciation of nationality, such renunciation
shall not result in loss of nationality unless the person concerned possesses or acquires another
nationality. .
(h) The provisions of sub-paragraph (a) of t~iS. paragraph ~hall ~ot apply where their
application would be inconsistent w.ith the pnnciples stated m Articles 13 and 14 of the
Universal Declaration of Human Rights approved on 10 December 1948 by the General
Assembly of the United Nations. . . . .
2. A national of a Contracting State who seeks naturalizatiOn m a foreign country shall not
lose his nationality unless he acquired or has been accorded assurance of acquiring the
nationality of that foreign country. . . .
3. Subject to the provisions of paragraphs 4 and 5 of this Article, a national of a Contracting
State shall not lose his nationality, so as to become stateless, on the ground of departure,
residence abroad, failure to register or on any similar ground.
4. A naturalized person may lose his nationality on account of residence abroad for a period,
not Jess than seven consecutive years, specified by the law of the Contracting State concerned if
he fails to declare to the appropriate authority his intention to retain his nationality.
5. In the case of a national of a Contracting State, born outside its territory, the law of that
State may make the retention of its nationality after the expiry of one year from his attaining his
majority conditional upon residence at that time in the territory of the State or registration with
the appropriate authority.
6. Except in the circumstances mentioned in this Article, a person shall not lose the
nationality of a Contracting State, if such loss would render him stateless, notwithstanding that
such loss is not expressly prohibited by any other provision of this Convention.

Article 8
I. A Contracting State shall not deprive a person of its nationality if such deprivation would
render him stateless.
2. Notwithstanding the provisions of paragraph I of this Article, a person may be deprived of
the nationality of a Contracting State:
(a) in the circumstances in which, under paragraphs 4 and 5 of Article 7, it is permissible that a
person should lose his nationality;
(b) where the nationality has been obtained by misrepresentation or fraud.
3. Notwithstanding the provisions of paragraph I of this Article, a Contracting State may
retain the right to deprive a person of his nationality, if at the time of signature, ratification or
accession it specifies its retention of such right on one or more of the following grounds, being
grounds existing in its national law at that time:
(a) that, inconsistently with his duty of loyalty to the Contracting State, the person
(i) has, in disregard of an express prohibition by the Contracting State rendered or continued
to render services to, or received or continued to receive emoluments from, another State, or
(ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State;
(b) that the person has taken an oath, or made a formal declaration, of allegiance to another
State, or given definite evidence of his determination to repudiate his allegiance to the
Contracting State.
4. A Contracting State shall not exercise a power of deprivation permitted by paragraphs 2 or
3 of this Article except in accordance with law, which shall provide for the person concerned the
right to a fair hearing by a court or other independent body.

Article 9
A Contracting State may not deprive any person or group of persons of their nationality on
racial, ethnic, religious or political grounds.

Article 10 .
. l. Every t~~aty between Contracting States providing for the transfer of terntory sha~1
mclude provmons designed to secure that no person shall become stateless as a result of th
transfer. A Contracting State shall use its best endeavours to secure that any such treaty made
United Nations Convention on the Reduction of Statelessness 267
by it with a State which is not a party to this Convention includes such provisions.
2. In the absence of such provisions a Contracting State to which territory is transferred or
which otherwise acquires territory shall confer its nationality on such persons as would
otherwise become stateless as a result of the transfer or acquisition.

Article 1I
The Contracting States shall promote the establishment within the framework of the United
Nations, as soon as may be after the deposit of the sixth instrument of ratification or accession, of
a body to which a person claiming the benefit of this Convention may apply for the examination
of his claim and for assistance in presenting it to the appropriate authority.

Article 12
I. In relation to a Contracting State which does not, in accordance with the provisions of
paragraph I of Article I or of Article 4 of this Convention, grant its nationality at birth by
operation of law, the provisions of paragraph I of Article l or of Article 4, as the case may be,
shall apply to persons born before as well as to persons born after the entry into force of this
Convention.
2. The provisions of paragraph 4 of Article l of this Convention shall apply to persons born
before as well as to persons born after its entry into force.
3. The provisions of Article 2 of this Convention shall apply only to foundlings found in the
territory of a Contracting State after the entry into force of the Convention for that State.

Article 13
This Convention shall not be construed as affecting any provisions more conducive to the
reduction of statelessness which may be contained in the law of any Contracting State now or
hereafter in force, or may be contained in any other convention, treaty or agreement now
or hereafter in force between two or more Contracting States.

Article 14
Any dispute between Contracting States concerning the interpretation or application of this
Convention which cannot be settled by other means shall be submitted to the International
Court ofJustice at the request of any one of the parties to the dispute.

Article 15
This Convention shall apply to all non-self-governing, trust, colonial and other non-
metropolitan territories for the international relations of which any Contracting State is
responsible; the Contracting State concerned shall, subject to the provisions of paragraph 2 of
this Article, at the time of signature, ratification or accession, declare the non-metropolitan
territory or territories to which the Convention shall apply ipso facto as a result of such signature,
ratification or accession.
2. In any case in which, for the purpose of nationality, a non-metropolitan territory is not
treated as one with the metropolitan territory, or in any case in which the previous consent of a
non-metropolitan territory is required by the constitutional laws or practices of the Contracting
State or of the non-metropolitan territory for the application of the Convention to that territory,
that Contracting State shall endeavour to secure the needed consent of the non-metropolitan
territory within the period of twelve months from the date of signature of the Convention by
that Contracting State, and when such consent has been obtained the Contracting State shall
notify the Secretary-General of the United Nations. This Convention shall apply to the territory
or territories named in such notification from the date of its receipt by the Secretary-General.
3. After the expiry of the twelve-month period mentioned in para~raph 2 of this article,
the Contracting States concerned shall inform the Secretary-General of the results of the
consultations with those non-metropolitan territories for whose international relations they are
responsible and wh<1se consent to the application of this Convention may have been withheld.
268 Appendix 4
Article 16
I. This Convention shall be open for signature at the Headquarters of the United Nations
from 30 August 196 1 to 31 May 1962.
2. This Convention shall be open for signature on behalf of:
(a) any State Member of the United Nations;. . . .
(b) any other State invited to attend the Umted Nations Conference on the Elimination or
Reduction of Future Statelessness;
(c) any State to which an invitation to sign or to accede may be addressed by the General
Assembly of the United Nations. . .
3. This Convention shall be ratified and the instruments of ratification shall be deposited with
the Secretary-General of the United Nations.
4. This Convention shall be open for acce!.sion by the States referred to in paragraph 2 of this
Article. Accession shall be effected by the deposit of an instrument of accession with the
Secretary-General of the United Nations.

Article 17
1. At the time of signature, ratification or accession any State may make a reservation in
respect of Article II, 14 or 15.
2. No other reservations to this Convention shall be admissible.

Article 18
1. This Convention shall enter into force two years after the date of the deposit of the sixth
instrument of ratification or accession.
2. For each State ratifying or acceding to this Convention after the deposit of the sixth
instrument of ratification or accession, it shall enter into force on the ninetieth day after the
deposit by such State of its instrument of ratification or accession or on the date on which this
convention enters into force in accordance with the provisions of paragraph I of this Article,
whichever is the later.

Article 19
I. Any Contracting State may denounce this Convention at any time by a written
notification addressed to the Secretary-General of the United Nations. Such denunciation shall
take effect for the Contracting State concerned one year after the date of its receipt by the
Secretary-General.
2. In cases where, in accordance with the provisions of Article 15, this Convention has
become applicable to a non-metropolitan territory of a Contracting State, that State may at any
time thereafter, with the consent of the territory concerned, give notice to the Secretary-General
of the United Nations denouncing this Convention separately in respect of that territory. The
denunciation shall take effect one year after the date of the receipt of such notice by the
Secretary-General, who shall notify all other Contracting States of such notice and the date or
receipt thereof.

Article 20
I. The Secretary-General of the United Nations shall notify all members of the United
Nations and the non-member States referred to in Article 16 of the following particulars:
(a) signatures, ratifications and accession under Article 16·,
(b) reservations under Article 17;
(c) the date upon which this Convention enters into force in pursuance of Article 18;
(d) denunciations under Article 19.
2. The Secretary-General of the United Nations shall, after the deposit of the sixth
instrument of ratifi~ation or accession at the latest, bring to the attention of the General
Assembly the question of the establishment, in accordance with Article 11, of such a body as
therein mentioned.

Article 21
This Convention shall be registered by the Secretary-General of the United Nations on the
date of its entry into force.
t "111 t d . a /i()ll\ .mr ' ntum un th Ul'du l iOn 1!/. 'tot,{ 1 '"' II

f, ll '•ttlr, ll 'h If / til 1111d I IJ.i ll ftl l'l r ll!J K lt ut ill ll' 1!.1 ll(llf"ll tid Con (' 1!11\ oll .
/) IJ , lll 1 \' YOJ k, th i thuti tltd .i ul \11 111 ,1 111 tlll•li .JIIdl!ill h1111111·d 111l i t •oti r , in
, 1 , , 11 I '' 'P" • f \~I lid• th · <:hmn , En li ~ h . Ft '"h. Ku I;J I! J i ll I Sp.tni It t l( f ~ >1 1 1qu,dl
un th t ll\11' und Wh it " lt.dl l r -1 li\i'itrd in th( .IJIIII V u itn l ,ltiou . oi!HI l{,fl d
, 1p1r "' \ hh·h h.dl h dr·li v rf.'t l IJ 1 the Su•rr tur • ;<' llf' ! I( .,r th r· t ui1 d N.ttiu u '" ..I I
~.~t- 111 h • ~ nl du uitrd t l." lr rr n l H1 In rti1 lr ll 111 t h i ~
~ "" ut i1lll
 Appendix 5

CONVENTION ON THE NATIONALITY

OF MARRIED WOMEN*

The Contracting States, . . . . .

Recognizing that, conflicts in Jaw in .P.r~cttce wtt? ref~rence to nauonahty anse as a result of
provisions concerning the Joss or acq ulSlttOn of nattonah ty by wom~n as a result of marriage of
its dissolution or of the change of nationality by the husband dunng marriage, '
Recognizing that, in article 15 of the Un~versal De~~ararion of Human. Rights, the GeneraJ
Assembly of the United Nations has procl~tmed th.at e~ery~ne has the .nght to~ nationality"
and that " no one shall be arbitrarily depnved of hts nattonabty nor demed the nght to change
his nationality",
Desiring to co-operate with the United Nations in promoting universal respect for, and
observance of, human rights and fundamental freedoms for all without distinction as to sex.
Hereby agree as hereinafter provided:
Article 1
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
marriage, shall 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 national.

Article 3
l. Each Contracting State agrees that the alien wife ofone ofits nationals may, at her request,
acquire the nationality of her husband through specially privileged naturalization procedures;
the grant of such nationality may be subject to such limitations as may be imposed in the
interests of national security or public policy.
2. Each Contracting State agrees that the present Convention shall not be construed as
affecting any legislation or judicial practice by which the alien wife of one of its nationals•may,
at her request, acquire her husband's nationality as a matter of right.

Article 4
I. The present Convention shall be open for signature and ratification on behalf of any State
Member of the United Nations and also on behalf of any other State which is or hereafter
becomes a Party to the Statute of the International Court ofjustice, or any other State to which
an invitation has been addressed by the General Assembly of the United Nations.
2. The present Convention shall be ratified and the instruments of ratification shaH be
deposited with the Secretary-General of the United Nations.

Article 5
1
I. The present Convention shall be open for accession to all States referred to in paragraph
of article 4.

• U.N.T.S. vol. 309 p. 65.

Convention on the Nationality of Married Women 271

2. Accession shall he clfcctcd by the deposit of an instrument of accession with the Secrctary-
Grncral of the United Nations.

Article 6
I . 'l.'hc prese~t C~nvcntion shall c~~e into force on the ninetieth day following the date of
deposll of thl' stxth mstrument of ratification or accession.
'l. For eac~1 S~ate ~atifying or .acceding to the Convention after the deposit of the sixth
instrument of ratificatiOn or accesswn, the Convention shall enter into force on the ninetieth day
after deposit by such State of its instrument of ratification or accession.

Article 7
I. The present Convention shall apply to all non-self-governing, trust, colonial and other
non-metropolitan territories for the international relations of which any Contracting State is
responsible; the Contracting State concerned shall, subject to the provisions of paragraph 2 of
the present article, at the time of signature, ratification or accession declare the non-
metropolitan territory or territories to which the Convention shall apply ipso facto as a result of
such signature, ratification or accession.
2. In any case in which, for the purpose of nationality, a non-metropolitan territory is not
treated as one with the metropolitan territory, or in any case in which the previous consent of a
non-metropolitan territory is required by the constitutional laws. or practices of the Contracting
State or of the non-metropolitan territory for the application of the Convention to that territory,
that Contrac ting State shall ~ndeavour to secure the needed consent of the non-metropolitan
territory within the period of twelve months from the date of signature of the Convention by
that Contracting State, and when such consent has been obtained the Contracting State shall
notify the Secretary-General of the United Nations. The present Convention shall apply to the
territory or territories named in such notification from the date of its receipt by the Secretary-
General.
3. After the expiry of the twelve-month period mentioned in paragraph 2 of the present
article, the Contracting States concerned shall inform the Secretary-General of the results of the
consultations with those nor1-metropolitan territories for whose international relations they are
responsible and whose cont ·nt to the application of the present Convention may have been
withheld.
Article 8
l. At the time of signatu•e, ratification or accession, any State may make reservations to any
article of the present Convention other than articles I and 2.
2. If any State makes a reservation in accordance with paragraph 1 of the present article, the
Convention, with the exception of those provisions to which the reservation relates, shall have
effect as between the reserving State and the other Parties. The Secretary-General of the United
Nations shall communicate the text of the reservation to all States which are or may become
Parties to the Convention. Any State Party to the Convention or which thereafter becomes a
Party may notify the Secretary-General that it does not agree to consider itself bound b y the
Convention with respect to the State making the reservation. This notification must be made, in
the case of a State already a Party, within ninety days from the date of the communication by
the Secretary-General; and, in the case of a State subsequently becoming a Party, within ninety
days from the date wh~n the instrument of ratification or accession is deposited. In the event
that such a notification is made, the Convention shall not be deemed to be in effect as between
the State making the notification and the State mak~ng the reservation. .
3. Any State making a reservation in accordance wllh paragraph I of the present arttcle may
at any time withdraw the reservation, in whole or in part, after it has been accepted, by a
notification to this effect addressed to the Secretary-General of the United Nations. Such
notification shall take effect on the date on which it is received.

Article 9
I. Any Contracting State may denounce the prese~t ~onvention by written notification to
the Secretary-General of the United Nations. Denunctallon shall take effect one year after the
date of receipt of the notification by the Secretary-General.
27._ Apprndix 5

2 Th~ pro;ent Com~ntion shml ~e.ISt' to be in tor~e as from the da te when the dcnu . .
. . . I .. b" •II' " . , , . nc•ataon
which reduces the num~r of P~1rtJt'S to k ss t tan SIX c.:com cs c ccti\C .

.'lrtidt 10
An,· dispute which ma)· arise between Ull)' two or more Contracting States concern·
. h' I . . tng the
int,.rnrctation or •application of the present Convent1on w 1c 1 1s not settled by negot' .
- r . . b · c: tatton
shall. a t the request of any one of the P:~rtlt"S to the dtsput c, c re.errrd to the lntcrna tionl Cour'
ofJustice for decision, unless the Partlcs a gree to anotht"r mode of settlcm('nt. t

Artidr II
T_h e Secretary-General of the Unitt."Cl Nntim ts sld1a~l noti~y ~-II S ta tesfmc~nbcrs of the United
Nauons and the non-memb<',r States con temp1ate m par..tgt •lP11 1 o a rttclc 4 of the present
Con\'ention of the following:
(a) Signa tures and instruments of ratification received in accordance with article 4;
(b) Instruments of accession receivt."Cl in a ccorda nce with a rticle 5;
(c) The date upon which the present Convention en ters into force in accordance with artie! 6.
(d) Communications and notifications received in accordance with article 8; c '
(e) Notifications of d enunciation recci"ed in accorda nce with paragraph 1 of article 9·
(f) Abrogation in accordance with paragra ph 2 of article 9. '

Article 12
1. The present Convention, ofwhich the Chinese, English, French , Russian and Spanish t
shall be equally authentic, shall be deposited in the a rchives of the United Nations. exts
2. Th~ Secretary-General of the United N~tions sh~ll transmit a certified copy of the
Convenuon to all States Members of the Umted Nat10ns and to the non-member St t
contemplated in paragraph l of article 4 . a es
 Appendix 6

CONVENTION
ON REDUCTION OF CASES OF MULTIPLE
NATIONALITY AND MILITARY
OBLIGATIONS IN CASES OF
MULTIPLE NATIONALITY*

The Member States of the Council of Europe, signatory hereto,

Considering that the aim of the Council of Europe is to achieve greater unity between its
Members;
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 Council of Europe;
Considering it desirable that persons possessing the nationality of two or more Contracting
Parties should be required to fulfil their military obligations in relation to one of those Parties
only,
Have agreed as follows:
Chapter I

Reduction of Cases of Multiple Nationaliry

Article I
l. Nationals of the Contracting Parties who are of full age and who acquire of their own free
will, by means of naturalisation, option or recovery, the nationality of another Party shall lose
their former nationality. They shall not be authorised to retain their former nationality.
2. Nationals of the Contracting Parties who are minors and acquire by the same means the
nationality of another Party shall also lose their former nationality if, where their national law
provides for the loss of nationality in such cases, they have been duly empowered or represented.
They shall not be authorised to retain their former nationality.
3. Minor children, other than those who are or have been married, shall likewise lose their
former nationality in the event of the acquisition ipso jure of the nationality of another
Contracting Party upon and by reason of the naturalisation or the exercise of an option or the
recovery of nationality by their father and mother. Where only one parent loses his former
nationality, the law of that Contracting Party whose nationality the minor possessed shall
determine from which of his parents he shall derive his nationality. In the latter case, the said
law may make the loss of his nationality subject to the prior consent of the other parent or the
guardian to his acquiring the new nationality.
However, without prejudice to the provisions of the law of each of the Contracting Parties
concerning the recovery of nationality, the Party of which the minor referred to in the foregoing
paragraph possessed the nationality may lay down special conditions on which they may
recover that nationality of their own free will after attaining their majority.
4. In so far as concerns the loss of nationality as provided for in the present Article, the age of
majority and minority and the conditions of capacity and representation shall be determined by
the law of the Contracting Party whose nationality the person concerned possesses.

Article 2
1. A person who possesses the nationality of two or more Contracting Parties may renounce
one or more of these nationalities, with the consent of the Contracting Party whose nationality
he desires to renounce.

• U.N.T.S. vol. 634, p. 221.

274 Appendix 6
t be withheld by the Contracting Party whose nationality a p
2. Such consent .ma~ no rovided that the said person has, for the past ten years ~~n ~f
full age pos~esses rp~o 1:e,t prritory of the Party whose nationality he intends to retai~ a hts
ordinary resJdencl.ek m .t e oet be withheld by the Contracting Party in the case of min~ h
Consent may I ewlse n . h .d d h rs w o
. .. sti ulated in the precedmg paragrap , provl e t at their national I
fulfil the cond•u.ons :'h ir nationality by means of a simple declaration and provided al haw
allows them to gJVe up e d so t at
have been duly empowered or represente . . . .
they f . 't and minority and the condttlons for bemg empowered or repres
3 The age o maJOrl Y . p h . . ented
· . d by the law of the Contractmg arty w ose nationality the perso .
shall be determme n tn
question desires to renounce.
Article 3
.
The Contractmg Party whose nationality a person desires to renounce
. . shall not require the
·
payment 0 f any spec1a1 tax or charge in the event of such renunc1at10n.

Article 4
. . th provisions of this Convention shall preclude the application of any provisi
Nothmg m e . . l' h h bod' on
more likely to limit the occurrence of muluple nauona tty w .et er em 1ed or subsequently
. od d · to et'ther the municipal law of any Contractmg Party or any other treaty
mtr uce m C · p · '
· or agreement between two or more of the ontractmg art1es.
convention

Chapter n

Military Obligations in Cases of Multiple Nationality

Article 5
l. Persons possessing the nationality of two or more Contracting Parties shall be required to
fulfil their military obligations in relation to one of those Parties only.
2. The modes of application of paragraph l may be determined by special agreements
between any of the Contracting Parties.

Article 6
Except where a special agreement which has been, or may be, concluded provides otherwise,
the following provisions are applicable to a person possessing the nationality of two or more
Contracting Parties:
I. Any such person shall be subject to military obligations in relation to the Party in whose
territory he is ordinarily resident. Nevertheless, he shall be free to choose, up to the age of 19
years, to submit himself to military obligations as a volunteer in relation to any other party of
which he is also a national for a total and effective period at least equal to that of the active
military service required by the former party.
2. A person who is ordinarily resident in the territory of a Contracting Party of which he is
not ~ ~tiona! or in that of a State which is not a Party may choose to perform his military
service m the territory of any Contracting Party of which he is a national.
_3_· A pers~n ":ho, i~ accordance with the rules laid down in paragraphs 1 and 2, shall fulfil his
mlhtary obhgat10ns m relation to one Party, as prescribed by the law of that Party, shall be
de~med t~ have fulfilled his military obligations in relation to any other Party or Parties of
wh1ch he IS also a national.
: A pers?n who, before the entry into force of this Convention between the Parties of whi~h
4
15
he a national, has, in relation to one of those Parties fulfilled his military obligations tn
acco:dance with the law of that Party, shall be deemed to 'have fulfilled the same obligations in
relatiOn to any other p t p · f . .
5 A . ar Y or art1es o wh1ch he 1s also a national. . .
1 · . person who, m conformity with paragraph 1 has performed his active military service In
~<;15atl~~
0
t ~ .mary res~de~ce to the territory of the other Party of which
1
o ml ttary servlce m the l .
h:
to one of the Contracting Parties of which 'he is a national and subsequently transfers
is a national, shall be liable
reserve on y m relation to the latter Party.

...
Convention on Reduction of CaJeJ
6. The appli at.ion of thi:~ Artic:le &hall uvt JJICJIIdtt t' , "' a 11y " ' I'' ' t, tl.• rrutt••m•I• •Y ''' tlr•
persons concerned .
7. In the event ofmobilis!ltion by a uy J1 m ty, tit• •JI,Iiy,.•trrrr.- ud~u•v. '"'"' r ""~ t\ rt HI• -1.., 11
not be binding upon tha t Party.

Chapter IU
Applrcatron of the ( .'(}11/Jtntum
Arttde 7
1. Each Contrac ting Part)' 8ha ll appl y the provl~lou11 of ( :Jra ptr r" I n wl I l
It is however understood that each <.:ontnn tiug Jlurty ma y d rc larr, ~tl tire t lr~w ,,f Httllwutlr•ti ,
accepta nce or accession, tha t it will avply t.hc prtJVillitJII~ of ( :twptt•t II •Jtd y. 111 ''''' '"_,. tlfl'
provisions of C hapter I shall .not be applicable in rrla tiu11 IIJ tlr.tl Pa rt y.
It may, a t any suhsequent time, notify the Sc-rrrtar-y-<:rnr ral oltlw (:.111111 II (II gt" ' ' '''' tlr~ot II
is applying the provisio ns of C hapt er I ru1 writ. Thi~ notiftra tion "" ''" J,<', •mrr ,.fff •t lvr ,,, ''''"'
the date of its receipt, and the provision~ of C haptr r I ~hall thrrruf""' " r • 111rlf' nJ•JJII• " "'" In
relation to that Party. ,
2. Each Contracting Party~hich ha~ applied the pr•wi~iwr• of thr '""' !IU h""IJ'" "~' ·'I''' l•f
paragraph I of this Article may declare, at thr tirnr of 11i~ni 11K ur <•I tltr titr fl' ,,j "''JI'"'" i"r, rl~
instrument of ratification, accepta n rc o r accc"io n tlrat it will ;•JJp ly tire prr.vi"ir"'' of ( :tr.tpl• r If
only in regard to Contracting Pa rties whi h arc: applyi ng tlrr pmvi"''''~ ul C lmpt rl\ I 1111d II In
this case the provisio ns ofChatJter II shalluot hr applica bl r ltrtwrrn thr J1a r ty rrta k l r~y, ~IH It .,
declaratio n and a Party applying the second sub-par .. gra ph ,,f paraJ<raplr I,

Chapter rv
Final ClauJeJ
Article 8
I. Any Contracting Party may, when signing this Cmvrnt ion or dcpo~iti11g it11 imtrurrrr 11l1 •f
ratification, acceptance or acces..'lio n , d eclare that it avaib it ~rlf of (Inc 'JT Jfli•T" ul I t.r
reservations provided for in the Annex to thr present Convr11tion. No utlrrr r ~rrva t i''" lllr.JII hr
permitted.
2. Any Contracting Party may who lly o r partly withd raw a rcsuvation it ht~ll rmulr l11
accordance with the foregoing paragraph by means of a no tificatio n addrc11,ed to tl•r Sr• T~'tar y·
General of the Council o f Europe, which shall beco me effrc tive as fro m the d a te 11f it" rnri JJt
3. A Contracting Party which has made a reserva tion in rCllpect of any pmvi\io11 r1f tltr
Convention in accordance with this Article may no t c laim application of the said pn!Vi~i•m by
another Party; it may, however, if its reservation i11 partial o r conditio11al claim the <•ppli<a tiwr
of that provision in so far as it has itself accepted it.

Article 9
I. Any Contracting Party may, by a declaratio n made to the Sccretary-(irrrr ra l of tire
Council of Europe on signature or o n depmiting its instrument of ratirlratiou , acccpta trl'" '''
accession, or at any subsequent time, with regard to S ta tes a ud territories fo r whirla it tlllliUIIII''I
international responsibility, o r fo r which it is empowered to contrac t, ucfirlc the tcrrrr
" nationals" and specify the "territorie!l" to which the present Conve ntio n ~halllw a pplicablr .
2. Any declaratio n made in accordance with this Article may, in rel'pcct uftlar nat imra l~ a ud
territories mentioned in such d eclaratio n, be withdra wn a ccording to the pr(Jcedurr la id drtwu
in Article 12 of this Convention.

Artick 10
I. This Convention shall be open to signature by the m cmiJer Stato of the C.:ounti l ofl~urr,pr.
It shall be subject to ratification or acceptance. I nstrumcnts of ratification o r a crrpt:mt r sha ll
be deposited with the Secretary-General of the Council of Europe.
2. This Convention shall enter into force one mo nth after the date of d cp11sit uf th1· ~,.( r_md
instrument of ratification or a cceptance.
 276 Appendix 6

3. In respect of a signatory State ratifying or accept~ng su?se~uently, the Convention shall

.
come mto fiorce one month after the date of deposit of Its mstrument of ratificat·ton or
acceptance.
Article 1/
I. After this Convention has com~ in_to force the Co~mi~tee of Ministers of the Council of
Europe may unanimously decide to mvtte any State d whtch
. . .IS not
. a Member of the. CounCJ.1 to
accede to it. Any State so invited may accede by eposllmg Its mstrument of accessiOn with the
Secretary-General of the Council: . .
2. The Convention shall come mto force m respc_ct of any State accedmg thereto one month
after the date of deposit of its instrument of accession.

Article 12
1. This Convention shall remain in force ind~fi~itely.
2. Any Contracting Party may, in so far as It IS concerned, denounc~ this Convention by
means of a notification addressed to the Secretary-General of the Council of Europe.
3. Such denunciation sha ll take effect one year after the date of receipt by the Secretary-
General of such notification.

Article 13
The Secretary-General of the Council of Europe shall notify the member States of the
Council and the Government of any State which has acceded to this Convention of:
(a) any signature and any deposit of instruments of ratification, acceptance or accession;
(h) all dates of entry into force of the Convention in accordance with Articles 10 and II thereof-
(c) any reservation made in accordance with Article 8, paragraph 1; '
(d) the withdrawal of any reservation in accordance with Article 8, paragraph 2;
(e) any declaration or notification received in accordance with the provisions of Article 7 and
Article 9, paragraph I;
{f) any notification received in pursuance of the provisions of Article 9, paragraph 2, and of
Article 12 and the date on which denunciation takes effect.
In witness whereof, the undersigned, being duly authorised thereto, have signed this
Convention.
Done at Strasbourg, this 6th day of May 1963 in English and in French, both texts being
equally authoritative, in a single copy which shall remain deposited in the archives of the
Council of Europe. The Secretary-General shall transmit certified copies to each of the
signatory and acceding Governments.

Any Contracting Party may declare that it reserves the right:

1. to make the loss of nationality referred to in Article 1, paragraphs 1, 2 and 3, subject to the
condition that the person concerned already ordinarily resides or at some time takes up his
ord~na~ reside?ce outside its territory, except where, in the case of acquisition of a foreign
nat10_n~llty of ht~ own free will, such person is exempted by the competent authority from the
condition of ordmary residence abroad;
2_. not. to reg~rd a declaration. made by a woman with a view to acquiring her hus~and's
nat10nali ty by virtue and at the time of marriage as an option within the meaning of Arucle I;
3. to aJI?w a?y of its nationals to retain his previous nationality if a Contracting Party for
whose nationabty he applies in the manner referred to in Article 1 gives its prior consent
thereto:
4 · _not to apply the provisions of Articles 1 and 2 when the wife of one of its nationals has
acquired another nationality while her husband retains the nationality of such Party.
 Appt•~tdix 7

PH. l 'O
L Al\1ENI)lNG 'fHE
C.l).N\ EN1'I N ON 'THE REDUCTION
OF jr\ ES 01· !vtUL'l'IPLE NATIONALITY
~\NO 1\[ILIT.A RY OBLIGATIONS IN CASES
OF l\1ULTIPLE NA1 IONALITY* 1

~~ .Hmthlf St11tu if tltt C01md l tif Eurc1(M, signatory to this Protocol,

fillt r,,/tt'tll,l! tht' dt•simbility nLun~nrling thr Con\'cn tion on tlu• R ccluction ofCascs of Multiple
1'\,,ti,,n.llit\' anct Militnry ObliRntion~ in Cases of Multiplr Nationality ~igncd in Strasbourg 011
,; ~~~"' l ~l!.\:i. hcn·in.1ficr rrfen'ffi to l S " the Con\'cntion '' ;
Ccllt•idm'~C,;: it desirable th:\J a pr1-son posst•:•.'\ing as a mattrr of right more than on e na tionalit y
~hC'Ould lH' .1bk t~\ rt'no1mcc by a tl\('l'e dt'<'lnration of will the na tionality of a Contracting Party
in wh,).~C tt"rritory he hns n o o rdinary rcsidrn<"r;
C..•rt.tidm~ it (ksirablt> to darif ' the meaning of Article 6, paragraph 3, of the Convcmion,
with r<.~u'\t h ) whith ctitllrultics {')f intcrpn•tation have appt•arcd ;
CI)I:Su/mitg it cksirahlc to permit the• acceptance of th<· provisions of C ha pter I of the
C'~mwntion only in order to n.'Ciucc to a greater extent the number of cases of plural na tionality;
Cort.ti1imitg th.lt the tl'C'nd of law con<'erning the married woman should entail deletion of
rt"s<'n-.ui,ms to the Com ·ention in ht•r reopt•<·t.
H111V ••grml as k\llows:

Articlt I
Artkk 2. par.lgrnph 2, sub-paragraph I of the Convention is amended as follows:
"Such ,;onscnt may not be withhdd by the Contmc ting Party whose nationality a person of
full ag<' f>OSS<'SS<'S ipso jurt provided that the said person has his ordinary residence outside the
tC'rritorr of tha t Part)r."

Article 2
Arti<'k 6, paragraph 3 of the Convention shall be replaced by the following provisions:
"3. :\ p<"rson who, in accordance with the rules la id down in paragraphs I and 2, sha ll fulfil
his military obligations in rela tion to one Party, as prescribed by the law of that Party, shall be
dttmro to have fulfilled his military obligations in relation to any other Party or Parties of
which he is also a natio na l. The same shall apply to a person who has been exempted from his
military obligntio ns or has fulfilled civil scrvict' as an alternative.
A P<'rson who is a national of a Contracting Party which docs not require obligatory military
servicr. ~hall b<' considered as having satisfied his milita ry obligations when he has his ordinary
residence in the territory of that Pa rty. Nevertheless he should be deemed not to have satisfied
his military obligations in relation to a Contracting Party or Contracting Parties of whic h he is
equally a national and where military service is required unless the said ordinary residence has
b<-en maintained up to a certain age, which each Contracting Party concerned shall notify at
the time of signature or when depositing its instrume nt of ratification, acceptance or accession.
Also a person who is a national o f a Contracting Party which docs not require obligatory
milita ry service shall b<' considered as having satisfied his military obligations when he has
~ndered voluntary military service for a total and effective period which is at least equal to that
of the acth·e military service of the Party of which he is also a national without regard to where
he has his ordinary residence. "

• EuroJXan T~&l)' 5<-ries No. 9~.

278 Appendix 7

Article 3
Article 7 of the Convention is amended as follow~:.
· Party shall apply the. provlSlons of Chapters I and. I I .
"1 Each Contracung
It 1:s however und erstood that each Contracung
. Party may declare,. at the Ume . ofsignat ure or
. . .
when d eposltmg Its m · strument of ratification, acceptance or accessiOn, that u will applY the
rovisions of Chapter I or Chapter II. only. .
P I bsequent time noufy the Secretary-General of the Counc1l of Europe th .
t may, at any su ' 'fi . k ffi at It
will apply all provisions of Chapters I and I I. Such notJ cation ta es e ect from the date of its
reception. b h 11 b r b
2. The provisions of Chapter 1 or II , as th~ case m~y .~' s a . e app ICa le only between
Contracting Parties which apply the chapter m questiOn.

Article 4
1. Paragraphs 2 and 4 of the Annex t~ the Convent~on~e rep~aled.
2. From the date on which a Contractmg Party to t e nvent10n also becomes a Party to
this Protocol, any reservations formulated by that Party under paragraphs 2 and 4 of the said
Annex shall be deemed to have been withdrawn.

Article 5
In relations between States Parties to the Convention but not Parties to this Protocol and
States Parties to the Protocol, the Convention shall continue in force in its original form.

Article 6
1. This Protocol shall be open to signature by the member States of the Council of Europe
having signed the Convention, which may become Parties to the Protocol by the procedure
provided for in Article 10, paragraph 1 of the Convention.
2. This Protocol shall enter into force one month after the date of deposit of the second
instrument of ratification, acceptance or approval.
3. In respect of a signatory State ratifying, accepting or approving subsequently, the Protocol
shall enter into force one month after the date of deposit of its instrument of ratification,
acceptance or approval.

Article 7
I. After this protocol has entered into force, any State ~hich has acceded to the Convention
may accede to this Protocol.
2. Any State which is not a member of the Council of Europe invited to accede to the
Convention shall be considered as having been invited also to accede to this Protocol.
3. Such accession shall be effected by depositing with the Secretary-General of the Council of
Europe an instrument of accession, which shall come into force one month after the date of
deposit.

Article 8
1. Any Contracting Party may denounce this Protocol only when denouncing simultaneously
the Convention in accordance with the procedure of its Article 12.
2. Denunciation of the Convention implies ipso jure the denunciation of this Protocol.

Article 9
The. Secretary-General of the Council of Europe shall notify the member States of the
Council of Europe and the governments of any State which has acceded to this Protocol of:
(a) any signature of this Protocol·
(b) the deposit of any instrument' of ratification acceptance approval or accession;
(c) any date of entry into force of this Protocol 'in accordan~e with Articles 6 and 7 thereof;
(d) any notifica~ion received in pursuance of the provisions of Article 2, paragraph l;
(e) any de~larat~on rece~ved .in pursuance of the provisions of Article 3, paragraph 1; 'ch
(f) any .no.tificatlOn receiVed m pursuance of the provisions of Article 8 and the date on whl
denunc1at10n takes effect.
 Appendix 8

ADDITIONAL PROTOCOL
TO THE CONVENTION ON THE REDUCTION
OF CASES OF MULTIPLE NATIONALITY
AND MILITARY OBLIGATIONS IN CASES
OF MULTIPLE NATIONALITY*

The Member Stales of the Council of Europe, signatory to this additional Protocol,
Considering the desirability of extending and promoting the application of the Convention on
the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple
Nationality, signed in Strasbourg on 6 May 1963, hereinafter referred to as "the Convention";
Considering that this Convention will be fully effective only if it is associated with an
arrangement for communication between the Contracting Parties about the acquisition of their
nationality by the nationals of other Contracting Parties;
Have Agreed as follows:

Article 1
Each Contracting Party undertakes to communicate to another Contracting Party any
acquisition of its nationality by an adult or a minor who is a national of this State, which has
taken place according to the conditions contained in Article I of the Convention.

Article 2
I. This communication is to be made by means of a form according to the appended model
within a delay of not more than six months from the date the acquisition of nationality has
become effective. The information printed on the form shall be drafted in all the languages of
the member States of the Council of Europe and in the languages of non-member States
adhering to the Convention. The Secretary-General of the Council shall produce the necessary
translations and communicate them to the governments of the member States of the Council
and States acceding to the Convention.
2. The authorities of the State issuing the communication may decline to complete the
information relating to item 4 of the form.

Article 3
Any Contracting Party on signature or on depositing its instrument of ratification,
acceptance, approval or accession shall indicate by means of a declaration addressed to the
Secretary-General of the Council of Europe the central authority which has been designated to
receive this transmission.

Article 4
This protocol shall be open to signature by the member States of the Council ofEurope which
are Parties to the Convention and which, if they are Parties to the Protocol amending the
Convention, have accepted the provisions of Chapter I of the Convention.

Article 5
I. Subject to the provisions of Article 4, the Contracting Parties to the Convention may
become Parties to the Additional Protocol by:
(a) signature without reservation in respect of ratification, acceptance or approval;
(b) signature with reservation in respect of ratification, acceptance or approval, followed by
ratification, acceptance or approval.

• European Treaty Series No. 96.

280 Appendix 8

atification acceptance or approval shall be deposited with the Sec

2 . I nstruments Of r • retary-
General of the Council of Europe.
Article 6
Th"s Protocol shall enter into force one month after the date on which two Contra .
I. 1 p . h" p . cttng
Parties to the Conventior. shall have become arues to t IS rotoco1 m accordance with the
provisions of Article 5. .
2 . As regards any Contracting Party to th~ Co?ventwn who shall subsequently sign this
Protocol without reservation in respect of rauficat1?n, acceptance or approval, or who shall
ratify, accept or approve it, this Protocol sh~ll enter mto fore~ one.month after the date of such
signature or after the date of deposit of the mstrument of ratificatiOn, acceptance or approval.

Article 7
1. After this Protocol has ~ntered into force, any State whic? acceded to the Convention may
accede to this Protocol provided that such State, when accedmg _to the Protocol amending the
Convention, accepts the provisions of Chapter I of the _Convention. . .
2. Any State which is not a member of the Council of Europe mv1ted to accede to the
Convention shall be considered as having been invited also to accede to this Protocol, provided
that, when it accedes to the Protocol amending the Convention, it accepts the provisions of
Chapter I of the Convention.
3. Any such State may accede by depositing with the Secretary-General of the Council of
Europe its instrument of accession, which shall come into force one month after the date of
deposit.

Article 8
I. Any Contracting Party may, in so far as it is concerned, denounce this Protocol by means
of a notification addressed to the Secretary-General of the Council of Europe.
2. Such denunciation shall take effec:;t one year after the date of receipt by the Secretary-
General of such notification.
3. Denunciation of the Convention implies ipso jure the denunciation of this Protocol.

Article 9
The Secretary-General of the Council of Europe shall notify the member States of the
Council and the governments of any State which has acceded to the Convention of:
(a) any signature without reservation of ratification, acceptance or approval;
(b) any signature with reservation, acceptance or approval;
(c) the deposit of any instrument of ratification, acceptance, approval or accession;
(d) any date of entry into force of this Protocol in accordance with Articles 6 and 7 thereof;
(e) any declaration received in pursuance of the provisions of Article 3;
IJ) any notification received in pursuance of the provisions of Article 8 and the date on which
denunciation takes effect.

Annes to the Additional Protocol

l. (a) Name prior to acquisition

(b) Name after acquisition

2. (a ) First names prior to acquisition

(b ) First names after acquisition

3. Place and date of birth

4. Present residence
(Name of the State and the town)

5. (a) Previous nationalit(y) (ies)

Additional Protocol to the Convention 281

(b)Last residence known in the State where th~ applicant was a national •

6. (a) Nationality acquired

(b) Type of document
(c) Date and number of document
(d) Date when the acquisition takes effect
(e) Type, number and date of the document, if any, which proves the previous nationality

7. Spouse to whom the acquisition extends *

(a) Name (maiden name if any)
(h) First names
(, ) Place of birth
(d) Date of birth

8. Known minor children to whom the acquisition extends*

Name First names Place of birth Date of birth

a a a a
b b b b
c c c c
d d d d
e e e e
f f f f
g g g g
h h h h

9. Observations

.............. the .............................................. .

Official seal Signature (official position of signatory)

The information is written in latin characters, the dates in arabic numerals, the months are
shown by a number according to their place in the year.

• Stat~ wh~thcr tbc acquisition occun ilutumati<:<illy or on req uest.

 Appendix 9

CONVENTION RELATING TO THE

STATUS OF REFUGEES*
(Geneva, July 28, 1951 )

Preamble

Tht High ContTacting Parties, . . .

Considering that the Charter of the Umted NatiOns and the Umversal Declaration of Human
Rights approved on December 10, 1948, by the General Assembly have affirmed the princ· 1
that human beings shall enjoy fundamental rig?ts and fr~edoms w.ithout .discrimination, tp e
Considering that the United Nations has on vanous occasiOns_, mamfest~d Its profound concern
for refugees and endeavoured to assure refugees the widest posstble exercise of these
fundamental rights and freedoms, . . . . .
Considering that it is desirable to revise and consolidate previOus mter:nahonal agreements
relating to the status of refugees and to extend the scope of and the protectiOn accorded by such
instruments by means of a new agreement,
Considering that the grant of asylum may place u~duly heavy burde~s on certain countries,
and that a satisfactory solution of a problem of whtch the Umted Nat10ns has recognised the
international scope and nature cannot therefore be achieved without international co-
operation,
Expressing the wish that all States, recognising the social and humanitarian nature of the
problem of refugees, will do everything within their power to prevent this problem from
becoming a cause of tension between States,
Noting that the United Nations High Commissioner for Refugees is charged with the task of
supervising international conventions providing for the protection of refugees, and recognising
that the effective co-ordination of measures taken to deal with this problem will depend upon
the co-operation of States with the High Commissioner,
Have agreed as follows:
Chapter L General Provisions
Article 1
Definition of the Term " Refugee"
A. For the purposes of the present Convention, the term " refugee" shall apply to any person
who:
(I) Has been considered a refugee under the Arrangements of May 12, 1926, and june 30, 1928,
or under the Conventions of October 28, 1933, and February 10, 1938, the Protocol of
September 14, 1939, or the Constitution of the International Refugee Organisation;
Decisions of non-eligibility taken by the International Refugee Organisation during the
period of its activities shall not prevent the status of refugee being accorded to persons who fulfil
the conditions of paragraph 2 of this section;
(2~ As a result of events occurring before January 1, 1951, and owing to well-founded fear.of
bemg 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, owi?g to
such fear, is unwilling to avail himself of the protection of that country; or who, not havmg a
nationality and being outside the country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality the term "the country of his
. 1"tty " sha 11 mean each of the countries of which he is a national,
natiOna ' and a person sha11 not be

• U.N.T.S. vol. 139, p. 137.

Convention on Status of Refugees, 1951 283

deemed to be Jacking the protection of the country of his nationality if, without any valid reason
based on well-founded fear, he has not availed himself of the protection of one of the countries of
which he is a national.
B. ( 1) For the purposes of this Convention, the words " events occurring before .January 1,
195 1" , in article I, section A, shall be understood to mean either
(a) " events occurring in Europe b efore january I , 1951 "; or
(b) " events occurring in Europe or elsewhere before .January I, 1951";
and each Contracting State shall make a declaration at the time of signature, ratification or
accession, specifying which of these meanings it applies for the purpose of its obligations under
this Convention.
(2) Any Contracting State which has adopted alternative (a) may at any time extend its
obligations by adopting alternative (b) by mea ns of a notification addressed to the Secretary-
General of the United Nations.
C. This Convention shall cease to a pply to any person falling under the terms of section A if:
( 1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily reacquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new
nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he
remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connection with which he has been
recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection
of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A (I) of this
article who is able to invoke compelling reasons arising out of previous persecution for refusing
to avail himself of the protection of the country of nationality;
(6) Qeing a person who has no nationality he is, because the circumstances in connection with
which he has b een recognised as a refugee have ceased to exist, able to return to the country of
his former habitual residence;
Provided that this paragraph shall not apply to a refugee falling under section A (I) of this
article who is able to invoke compelling reasons arising out of previous persecution for refusing
to return to the country of his former habitual residence.
D. This Convention shall not apply to persons who are at present receiving from organs or
agencies of the United Nations other than the United Nations High Commissioner for Refugeei
protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such
persons being definitively settled in accordance with the relevant resolutions adopted by the
General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits
of this Convention.
E. This Convention shall not a pply to a person who is recognised by the competent
authorities of the country in which he has taken residence as having the rights and obligations
which are a ttached to the possession of the nationality of that country.
F. The provisions of this Convention shall not apply to any person with respect to whom there
are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in respect of such crimes;
(h) he has committed a serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

Article 2
Gtr~tral Obligations
Every refugee has duties to the country in which he finds himself, which require in particular
that he conform to its laws and regulations as well as to measures taken for the maintenance of
public order.
284 Appendix 9

Article 3

Non-discrimination .. . .
The Contracting States shall apply the provlSl~n~ of thts Convention to refugees without
discrimination as to race, religion or country of ongm.

Article 4

Religion . . . . .
The Contracting States shall accord ~o refug~es wtthm the1r terntones treat_ment at least as
favourable as that accorded to their nauonal_s w1th respect ~o freedom to practise their religion
and freedom as regards the religious educatton of thetr ch1ldren.

Article 5
Rights granted apart from this Convention . . .
Nothing in this Convention shall be deem.ed to 1mp~1r any nghts and benefits granted by a
Contracting State to refugees apart from th1s Convention.

Article 6
The Term "in the same circumstances"
For the purpose of this Convention, the term "in the same circumstances" implies that any
requirements (including requirements as to length and conditions of sojourn or residence) which
the particular individual would have to fulfil for the enjoyment of the right in question, if he
were not a refugee, must be fulfilled by him, with the exception of requirements which by their
nature a refugee is incapable of fulfilling.

Article 7
Exemption from Reciprociry
1. Except where this Convention contains more favourable provisions, a Contracting State
shall accord to refugees the same treatment as is accorded to aliens generally.
2. After a period of three years' residence, all refugees shall enjoy exemption from legislative
reciprocity in the territory of the Contracting States.
3. Each Contracting State shall continue to accord to refugees the rights and benefits to
which they were already entitled, in the absence of reciprocity, at the date of entry into force of
this Convention for that State.
4. The Contracting States shall consider favourably the possibility of according to refugees, in
the absence of reciprocity, rights and benefits beyond those to which they are entitled according
to paragraphs 2 and 3, and to extending exemption from reciprocity to refugees who do not
fulfil the conditions provided for in paragraphs 2 and 3.
~- The provisions of paragraphs 2 and 3 apply both to the rights and benefits referr~d to i~
articles 13, 18, 19, 21 and 22 of this Convention and to rights and benefits for whtch this
Convention does not provide.
Article 8
Exemption from Exceptional Measures
. With regar~ to exception~! measures which may be taken against the person, property or
mterests of natiOnals of a foretgn State, the Contracting States shall not apply such measures t_o a
refugee who is formally a national of the said State solely on account of such nationahty.
Contracting States which, under their legislation, are prevented from applying the general
principle expressed in this article, shall, in appropriate cases, grant exemptions in favour of such
refugees.

Article 9
Provisional Measures
Nothing ~n this ?onvention shall prevent a Contracting State, in time of war or other grave
and exceptiOnal cucumstances, from taking provisional measures which it considers to be
Convention on Status of Refugees, 1951 285

essential to the national security in the case of a particular person, pending a determination by
the Contracting State that that person is in fact a refugee and that the continuance of such
measures is necessary in his case in the interests of national security.

Article 10
Continuity of Residence
1. Where a refugee has been forcibly displaced during the Second World War and removed
to the territory of a Contracting State, and is resident there, the period of such enforced sojourn
shall be considered to have been lawful residence within that territory.
2. Where a refugee has been forcibly displaced during the Second World War from the
territory of a Contracting State and has, prior to the date of entry into force of this Convention,
returned there for the purpose of taking up residence, the period of residence before and after
such enforced displacement shall be regarded as one uninterrupted period for any purposes for
which uninterrupted residence is required.

Article 11
Rifugtt Seamen
In the case of refugees regularly serving as crew members on board a ship flying the flag of a
Contracting State, that State shall give sympathetic consideration to their establishment on its
territory and the issue of travel documents to them or their temporary admission to its territory
particularly with a view to facilitating their establishment in another country.

Chapter D. Juridical Status

Article 12
Personal Status
I. The personal status of a refugee shall be governed by the law of the country of his domicile
or, if he has no domicile, by the law of the country of his residence.
2. Rights previously acquired by a refugee and dependent on personal status, more
particularly rights attaching to marriage, shall be respected by a Contracting State, subject to
compliance, if this be necessary, with the formalities required by the law of that State, provided
that the right in question is one which would have been recognised by the law of that State had
he not become a refugee.
Article 13
Movable and Immovable Property
The Contracting States shall accord to a refugee treatment as favourable as possible and, in
any event, not less favourable than that accorded to aliens generally in the same circumstances,
as regards the acquisition of movable and immovable property and other rights pertaining
thereto, and to leases and other contracts relating to movable and immovable property.

Article 14
Artistic Rights and Industrial Property
In respect of the protection of industrial property, such as inventions, designs or models, trade
marks, trade names, and of rights in literary, artistic and scientific works, a refugee shall be
accorded in the country in which he has his habitual residence the same protection as is
accorded to nationals of that country. In the territory of any other Contracting State, he shall be
accorded the same protection as is accorded in that territory to nationals of the country in which
he has his habitual residence.
Article 15
Right of Association
As regards non-political and non-profit-making assoc1at10ns and trade unions the
Contracting States shall accord to refugees lawfully staying in their territory the most
favourable treatment accorded to nationals of a foreign country, in the same circumstances.
286 Appendix 9

Article 16

Access to Courts f1 h · f
l . A refugee shall have free access to the courts o aw on t e territory o all Contracting
States. . S · h" h h h h" h b" 1 ·
2. A refugee shall enjoy in the Contractmg t~t~ m w IC e as IS a ltu~ rest~ence the
.
same treatment as a na 1 t"onal ·n
1 matters pertammg
.
to access to the courts, mcludmg lega1
assistance and exemption from cautio judicatum solm. . .
3. A refugee shall be accorded in the m~tters referred to m paragraph 2 m cou.ntries other
than that in which he has his habitual residence the treatment granted to a nattonal of the
country of his habitual residence.

Chapter m. Gainful Employm.ent

Article 17
Wage-earning Employment . . . .
1. The Contracting States shall accord to refugees lawfully staymg m their terntory the most
favourable treatment accorded to nationals of a foreign country in the same circumstances, as
regards the right to engage in wage-earning employment.
2. In any case, restrictive measures imposed on aliens or. the employment of aliens for the
protection of the national labour market shall not be apphed to a refugee who was already
exempt from them at the date of entry into force of this Convention for the Contracting State
concerned, or who fulfils one of the following conditions:
(a) He has completed three years' residence in the country.
(b) He has a spouse possessing the nationality of the country of residence. A refugee may not
invoke the benefit of this provision if he has abandoned his spouse;
(c) He has one or more children possessing the nationality of the country of residence.
3. The Contracting States shall give sympathetic consideration to assimilating the rights of all
refugees with regard to wage-earning employment to those of nationals, and in particular of
those refugees who have entered their territory pursuant to programmes of labour recruitment
or under immigration schemes.

Article 18
Self-employment
The Contracting States shall accord to a refugee lawfully in their territory treatment as
favourable as possible and, in any event, not less favourable than that accorded to aliens
generally in the same circumstances, as regards the right to engage on his own account in
agriculture, industry, handicrafts and commerce and to establish commercial and industrial
companies.
Article 19
Liberal Professions
. 1. Each Contr~cting State shall accord to refugees lawfully staying in their territory who hold
dtplomas recogmsed by the competent authorities of that State and who are desirous of
practising a liberal profession, treatment as favourable as possible' and, in any event, not less
favourable than that accorded to aliens generally in the same circumstances.
2. !h~ Contracting States shall use their best endeavours consistently with their laws and
const1tut1?ns to ~ecure the settlement of such refugees in the territories, other than the
metropolitan terntory, for whose international relations they are responsible.

Chapter IV. Welfare

Article 20
Rationing
Where .a r~tio~ing system exists, which applies to the population at large and regulates the
gener~l dlstnbutlon of products in short supply' refugees shall be accorded the same treatment
as natwnals.
Convention on Status of Refugees, 1951

Article 21
Housing
As r~gards ~ousin?, the Contracting S!alf·s, _in so f~tr as llw 111 ,111 1• 1 i&1 , ~~~J ... ,, d 11y l.rw ,11
reg~latt~ns or ~s subj~Ct to the control ol puhl1c authorities,_:;hall "' , .,,d 1, 1 11 '''W 1 • j,rwf, jj y
staymg m thetr terrllory treatmen~ as favourable a~ po~~ 1 1 1 Je and , iu "'' Y , v• 1, 1, 11111 I•
favourable than that accorded to ahens generall y in tlw sanw c i11 ·11111sta rh t'~

Article 22
Public Education
1. The Contracting States shall accord to refugees th ,.. sarne fJ Pa tmr rlf a~ i~ ;v. 1,11j,.,j 111
nationals with respect to elementary education .
2. The Contracting States shall accord to refugees treamwu l as fll v•Jurahl•· a~ p·~illlr, ,11 ,,J, 111
any event, not less favourable than that accorded to alic::ns w·•wrall y in 1h.- sanw , 111 , 1111- l !liUJ
with r~pect t? educati.o~ other th~n elementary.educatim~ and, in pa.r ti• Hliu , a 11 f•'g,11,f• w,_..;
to studtes, thetr recogmuon offoretgn school certificates, d1plomas and dc·gJrt's, 1lw ,, 111 j~;, ,11 ,,,
fees and charges and the award of scholarships.

Articlt 23
Public Relief
The Contracting States shall accord to refugees la wftJJi y staying in J!wir IJ'Hi''" y 1/w • 4111,
treatment with respect to public relief and assistance as is acmrd<":d ~~~ t.hPir JJali(m.-.4

Article 21
lAbour Legislation and Social Stcurity
I. The Contracting States shall accord tn refugees Jawf•JIIy staying In tlwir v~11 i •h l y •tJJ• ~~~~~))
treatment as is accorded to nationals in respect of the:: follnwin~ maltrrs:
(a) In so far as such matters are governed by laws or reKulawm.s ,,r :ar~ svbjt~,t ''' thr th!IIJ• A •A
administrative authorities: remuneration, incl uding £amily allt"Jwanu;:s wlwrc> tll4~· £,,m JMII •A
remuneration, hours of work, overtime arrangement.s, hol ida y~ wi1h pay, t '$t fi1 t.illllli 1)JI JJ1111
work, minimum age of employment, apprenticeil•ip and training, Wt)fflfll'~ wttrll ~tlrlr}v 'I\'' IIi-
of young persons, and the enjoyment of the henefi LS of cnllectiv•• b;,1gainir1g;
(b) Social security (legal provisions in respect of empl0yrnent .injury, ("JI .rvpr.Hj,(m:.;l /jJti4.V~
maternity, sickness, disability, old age, death, unemplt>yment, famil y ' ~P"'"~ I>)IJ U. :.it~~ 4IJY
other contingency which , according tn national laws or rt>gul.atl!m~, i~ r_.c , yrrc>.li tq A ;.-;o~ u J
security scheme), subject to the following limitatitms: '
(i) There may be appropriate arrangements fi>r the mainL..naJl£"' ,..f auj'Jlt"A ng·h ',. :J 1.vi
rights in course of acq uisition ;
(ii) National laws or regulations of the w untry of r~ider.v m;jy J!f"ti! tt.l,.. t-J)'.A MiJ
arrangements concerning benefits or pl}rtions t)( heneftt~ whi!.;h art: pa yahl,. wtwJJy • 11JI 1 A,I!IJitiJ!
funds, and concerning allowances paid t.o perS<:IIl.b whQ dQ n.•Jt 1ulfJI d1 !.t)I)'IJ)I;o;t.,, o un0i1 ~#1i
prescribed for the award of a normal pemion .
2. The right to oompemation t<>r the deatt1 tJf a rrl'u~ee r~uhiug fr•,m ~mpit,ym,.IH ll1J~rt AI{
from occupational disease shall nnt be affecwi by th«: fat.t tl~ t th.- t ~1t'iesJA~ •A •J:t... IJI'JJ!.f~· 1:~ry ._
outside the territory of the Contractin~ State.
3. The Contracting Stat.a shall extend t.o refu~ea the t)l;fwfll.b •1/ a?;f~tll4'"4JU. AJJIY1·...;..~
between them, or which may be oonduded l)f"twqn them lu lJl,. fuu.u o;, ~hfl.')'J tJJJ.it t#J.P
maintenance of acquired rights and righu in tht> pr01~ qf w-~oi'-itYm m
·I"Yj~J1 VJ 11'~4~1
security, subject onl y to the oonditiflm which apJJiy V> nati•mal~ <A tJli! ~~ ~gn.av,.q v,
agreements in question.
4. The Contracting States will give sympathetic om~iderati(m 1/.1 n.t,.,>djp~ W r..-!•;7/'-'~ VI fu
as possible the benefit~ of b-irnilar agreernem.s whit:h ma y at .any tinv- I)" JJl 1<)1'0 ' "'"' .,..,,..,u w< 1J
Contracting States and non~ntractin~ Sr..aw,
 Appendix 9
288
Chapter v. Administrative Measures
Article 25

Administrative Assistance .
I. When the exercise of a right by a refugee would normally reqmre the ~istance of
.. f r. · n country to whom he cannot have recourse, the Contractmg States ·,
aut honues o a 10re1g . . n
whose territory he is residing shall arrang~ that such assistance be afforded to him by their own
authorities or by an international author.•ty. . .
2. The authority or authorities menuoned m paragraph I s~all ~ehver or cause to be
. ed under their supervision to refugees such documents
d eI1ver h · ·or certifications as would normally
be delivered to aliens by or through their national aut ~nt1es. . .
3. Documents or certifications so delivered shall stan~. m the stead of th~ official mstruments
delivered to aliens by or through their national authontles, and shall be g.ven credence in the
absence of proof to the contrary. . .
4. Subject to such exceptional treatment as may be granted to md1gent persons, fees may be
charged for the services mentioned h~re.in, but s.uch fees shall be moderate and commensurate
with those charged to nationals for similar s~rv1ces. . . .
5. The provisions of this article shall be without preJudice to articles 27 and 28.

Article 26
Freedom of Movement . . . .
Each Contracting State shall accord to refugees lawfully m Its temtory the nght to choose
their place of residence and to move freely within its territory, subject to any regulations
applicable to aliens generally in the same circumstances.

Article 27
Identity Papers
The Contracting States shall issue identity papers to any refugee in their territory who does
not possess a valid travel document.
Article 28
Travel Documents
l . The Contracting States shall issue to refugees lawfully staying in their territory travel
documents for the purpose of travel outside their territory, unless compelling reasons of national
security or public order otherwise require, and the provisions of the Schedule to this Convention
shall apply with respect to such documents. The Contracting States may issue such a travel
document to any other refugee in their territory; they shall in particular give sympathetic
consideration to the issue of such a travel document to refugees in their territory who are unable
to obtain a travel document from the country of their lawful residence.
2. Travel documents issued to refugees under previous international agreements by parties
thereto shall be recognised and treated by the Contracting States in the same way as if they had
been issued pursuant to this article.

Article 29
Fiscal Clulrges
1. !h.e Contracting States shall not impose upon refugees duties, charges or taxes, of any
descnpt10n whatsoever, other or higher than those which are or may be levied on their nationals
in similar situations.
2. N?thing in the.above para~aph shall prevent the application to refugees of the laws and
regulations concernmg charges m respect of the issue to aliens of administrative documents
including identity papers.

Article 30
Transfer of Assets
1. A Contracting State shall, in conformity with its laws and regulations, permit refugees to
Convention on Status of Refugees, 1951 289

transfer assets which they have brought into its territory, to another country where they have
been admitted for the purposes of resettlement.
2. A Contracting State shall give sympathetic consideration to the application of refugees for
permission to transfer. assets wherever they may be and which are necessary for their
resettlement in another country to which they have been admitted.

Article 31
Refugees unlawfully in the Country of Refuge
1. The Contracting States shall not impose penalties, on account of their illegal entry or
presence, on refugees who, coming directly from a territory where their life or freedom was
threatened in the sense of article I, enter or are present in their territory without authorisation,
provided they present themselves without delay to the authorities and show good cause for their
illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other
than those which are necessary and such restrictions shall only be applied until their status in the
country is regularised or they obtain admission into another country. The Contracting States
shaH allow such refugees a reasonable period and all the necessary facilities to obtain admission
into another country.
Article 32
Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds
of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in
accordance with due process of law. Except where compelling reasons of national security
otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to
appeal to and be represented for the purpose before the competent authority or a person or
persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek
legal admission into another country. The Contracting States reserve the right to apply during
the period such internal measures as they may deem necessary.

Article 33
Prohibition of Expulsion or Return ( " Refoulement")
I. No Contracting State shall expel or return (" refouler") a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social group or political
opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding as a danger to the security of the country in which he
is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes
a danger to the community of that country.

Article 34
.Naturalisation
The Contracting States shall as far as possible facilitate the assimilation and naturalisation of
refugees. They shall in particular make every effort to expedite naturalisation proceedings and
to reduce as far as possible the charges and costs of such proceedings.

Chapter VI. Executory and Transitory Provisions

Article 35
Co-operation of the .National Authorities with the United .Nations
1. The Contracting States undertake to co-operate with the Office of the United Nations High
Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in
 290 Appendix 9

the exercise of its functions, and shall in particular facilitate its duty of supervising the
application of the provisions of this Convention. . .
2 . In order to enable the Office of the High Comm1sswner or any other agency of the United
.
N auons w 1 h'ch may succeed it '
to make reports
•
to the
• hcompetent fi of the
. organs . h United
. Natt'ons,
the Contracting States undertake to provide them m t e appropnate orm wit mformation and
statistical data requested concerning:
(a) the condition of refugees, .
(b) the implementation of this Conv~ntwn, and . .
(c) laws, regulations and decrees wh1ch are, or may hereafter be, m force relatmg to refugees.

Article 36
Information on National Legislation . .
The Contracting States shall commumcate to the Secretary-Gen:ral. of the l!mted Nations
the laws and regulations which they may adopt to ensure the apphcatwn of this Convention.

Article 37
Relation to Previous Conventions
Without prejudice to article 28, paragraph 2, of this Convention, this Convention replaces, as
between parties to it, the Arrangements ofjuly 5, 1922, May ~I, 1924, May 12, 1926,june 30,
1928, and July 30, 1935, the Conventions of October 28, 1933, and February 10, 1938, the
Protocol of September 14, 1939, and the Agreement of October 15, 1946.

Chapter VU. Fi.aal Clauses

Article 38
Settlement of Disputes
Any dispute between parties to this Convention relating to its interpretation or application,
which cannot be settled by other means, shall be referred to the International Court ofj ustice at
the request of any one of the parties to the dispute.

Article 39
Signature, Ro.tification and Accession
1. This Convention shall be opened for signature at Geneva on July 28, 1951, and shall
thereafter be deposited with the Secretary-General of the United Nations. It shall be open for
signature at the European Office of the United Nations from july 28 to August 31, 1951, and
shall be re-opened for signature at the Headquarters of the United Nations from September 17,
1951 to December 31, 1952.
2. This Convention shall be open for signature on behalf of all States Members of the United
Nations, and also on behalf of any other State invited to attend the Conference of
Plenipotentiaries on the Status of Refugees and Stateless Persons or to which an invitation to
sign will have been addressed by the General Assembly. It shall be ratified and the instruments
of ratification shall be deposited with the Secretary-General of the United Nations.
3. This Convention shall be open fromJ uly 28, 1951, for accession by the States referred to in
?
para~aph of this article. Accession shall be effected by the deposit of an instrument of
accesswn with the Secretary-General of the United Nations.

Article 40
Territorial Application Clause
1. An~ State may, at the time of signature, ratification or accession, declare that. th~s
~onventi?n shall extend to all or any of the territories for the international relations of which It
IS responsible. Such a declaration shall take effect when the Convention enters into force for the
State concerned.
2. At any time thereafter any such extension shall be made by notification addressed to the
Secretary-General of the United Nations and shall take effect as from the ninetieth day after the
ConlJention on Status of Refugees, 1951 291

day of receipt by the Secretary-General of the United Nations of this notification, or as from the
date of entry into force of the Convention for the State concerned, whichever is the later.
3. With respect to those territories to which this Convention is not exte~ded at the time of
signa ture, ratificatio~ or accession, each Sta te concerned shall consider the possibility of taking
the necessary steps m order to extend the application of this Convention to such territories,
subject, where necessary for constitutional reasons, to the consent of the Governments of such
territories.
Article 41
Federal Clause
In the case of a Federal or non-unitary State, the following provisions shall apply:
(a) With respect to those articles of this Convention that come within the legislative jurisdiction
of the federal legislative authority, the obligation of the Federal Government shall to this extent
be the same as' those of Parties which are not Federal States;
(b) With respect to those articles of this Convention that come within the legislative jurisdiction
of constituent States, provinces or cantons which are not, under the constitutional system of the
federation, bound to take legislative action, the Federal Government shall bring such articles
with a favourable recommendation to the notice of the appropriate authorities of states,
provinces or cantons at the earliest possible moment.
(c) A Federal State Party to this Convention shall, at the request of any other Contracting State
transmitted through the Secretary-General of the United Nations, supply a statement of the law
and practice of the Federation and its constituent units in regard to any particular provision of
the Convention showing the extent to which effect has been given to that provision by legislative
or other action.
Article 42
Reservations
I . At the time of signature, ratification or accession, any State may make reservations to
articles of the Convention other than to articles 1, 3, 4, 16 (1), 33,36- 46 inclusive.
2. Any State making a reservation in accordance with paragraph I of this article may at any
time withdraw the reservation by a communication to that effect addressed to the Secretary-
General of the United Nations.
Article 43
Entry into force
I. This Convention shall come into force on the ninetieth day following the day of deposit of
the sixth instrument of ratification or accession.
2. For each State ratifying or acceding to the Convention after the deposit of the sixth
instrument of ratification or accession, the Convention shall enter into force on the ninetieth day
following the date of deposit by such State of its instrument of ratification or accession.

Article 44
Denunciation
I . Any Contracting State may denounce this Convention at any time by a notification
addressed to the Secretary-General of the United Nations.
2. Such denunciation shall take effect for the Contracting State concerned one year from the
date upon which it is received by the Secretary-General of the United Nations.
3. Any State which has made a declaration or notification under article 40 may, at any time
thereafter, by a notification to the Secretary-General of the United Nations, declare that the
Convention shall cease to extend to such territory one year after the date of receipt of the
notification by the Secretary-General.
Article 45
.Rnn.sion
1. Any Contracting State may request revision of this Convention at any time by a
notification addressed to the Secretary-General of the United Nations.
 292 Appendix 9
bl)' of the United Nations shall recommend the steps if an
2. The GeneraI Assem ' y, to be
taken in respect of such request.
Article 46
Notifications by the Secretary-General of the Uni~ed Nations_
The Secretary-G eneral of the United Nauons . shall10form all Members of the United Nallons
.
and non-member States referred to in arucle 39: . . .
. ns and notifications in accordance w1th sect10n B of article 1;
(a ) Of d ecIaraU o . . d ·h ·
(b) Of signatures, ratifications and access10ns 10 acco~ ance. wu article 39;
(c) Of declarations and notifications ~n accordance w~th art~cle 40:
(d) Of reservations and wit~drawals m. acco~dance ~lth article. 42, .
(e) Of the date on which th1s. Con~enu.on w1ll come mt.o fore~ 10 ac~ordance with article 42 ;
(f) Of denunciations and nouficauons 10 ac~ordan~e w1th arucle 44,
(g) Of requests for revision in accordance with article 45.

In faith whereof the undersigned, duly authorised, have signed this Convention on behalf of
their respective Governments, .
Done at Geneva, this twenty-eighth day ofjuly, one thousand mne h~ndred and fifty-~>ne, in a
single copy, of which the English and .French t~xts are equally authentiC a~d which ~hall remain
deposited in the archives of the Umted Nat10ns, and cert1fied true cop1es of wh1ch shall be
delivered to all Members of the United Nations and to the non-member States referred to in
article 39.

SCHEDULE
Paragraph I
1. The travel document referred to in article 28 of this Convention shall be similar to the
specimen annexed hereto.
2. The document shall be made out in at least two languages, one of which shall be English or
French.
Paragraph 2
Subject to the regulations obtaining in the country of issue, children may be included in the
travel document of a parent or, in exceptional circumstances, of another adult refugee.

Paragraph 3
The fees charged for issue of the document shall not exceed the lowest scale of charges for
national passports.

Paragraph 4
Save in special or exceptional cases, the document shall be made valid for the largest possible
number of countries.

Paragraph 5
The document shall have a validity of either one or two years at the discretion of the issuing
authority. '

Paragraph 6
I. The renewal or extension of the validity of the document is a matter for the authority
which issued it, so long as the holder has not established lawful residence in another territory
and resides la~f~lly in the territory of the said authority. The issue of a new document is, under
the san:e cond~uons, a matter for the authority which issued the former document.
2. Diplomatic or consular authorities, specially authorised for the purpose, shall be
empowered to extend, for a period not exceeding six months the validity of travel documents
issued by their Governments. '
~· !he Contracting States shall give sympathetic consideration to renewing or extending t~e
vahdlty of travel documents or issuing new documents to refugees no longer lawfully resident 10
Convention on Status of Rifugees, 1951 293

their terri10ry who are unable to obtain a travel document from the country of their lawful
residence.
Paragraph 7
The Contracting States sha ll recognise the validity of the documents issued in accordance
with the provisions of article 28 of this Convention.

Paragraph 8
The competent authorities of the country to which the refugee desires to proceed shall, if they
arc prepared to admit him and if a visa is required , affix a visa on the document ofwhich he is
the holder.
Paragraph 9
I. The Contracting States undertake to issue transit visas to refugees who have obtained visas
for a territory of final destination.
2. The issue of such visas may be refused on grounds which would justify refusal of a visa to
any alien.

Paragraph 10
The fees for the issue of exit, entry or transit visas shall not exceed the lowest scale of charges
for visas on foreign passports.

Paragraph II
When a refugee has lawfully taken up residence in the territory of another Contracting State,
the responsibility for the issue of a new document, under the terms and conditions of article 28,
shall be that of the competent authority of that territory, to which the refugee shall be entitled to
apply.

Paragraph 12
The authority issuing a new document shall withdraw the old document and shall return it to
the country of issue if it is stated in the document that it should be so returned; otherwise it shall
withdraw and cancel the document.

Paragraph 13
I. Each Contracting State undertakes that the holder of a travel document issued by it in
accordance with article 28 of this Convention shall be readmitted to its territory at any time
during the period of its validity.
2. Subject to the provisions of the preceding sub-paragraph, a Contracting State may require
the holder of the document to comply with such formalities as may be prescribed in regard to
exit from or return to its territory.
3. The Contracting States reserve the right, in exceptional cases, or in cases where the
refugee's stay is authorised for a specific period, when issuing the document, to limit the period
during which the refugee may return to a period of not less than three months.

Paragraph 11
Subject only to the terms of paragraph 13, the provisions of this Schedule in no way affect the
laws and regulations governing the conditions of admission to, transit through, residence and
establishment in, and departure from, the territories of the Contracting States.

Paragraph 15
Neither the issue of the document nor the entries made thereon determine or affect the status
of the holder, particularly as regards nationality.

Paragraph 16
The issue of the document does not in any way entitle the holder to the protection of the
diplomatic or consular authorities of the country of issue, and does not confer on these
authorities a right of protection.
 ......

294 Appendix 9
Annes

Specimen Travel Document

The document will be in booklet ~orm (approximately 15 x 10 cen.timetres).

It is recommended that it be so pnnted that any erasure ~r alteratiOn by chemical or oth
means can be readily detected , and that the words "Convent.JOn .of 28 July 1951" be printed ~~
continuous repetition on each page, in the language of the 1ssumg country.

(Cover of booklet)
TRAVEL DOCUMENT
(Convention of28Julv 1951 )

No ....... . ... .. .... .

(I ) ··· ·····

TRAVEL DOCUMENT
(Convention of 28 July 1951 )
-
···· ·················· ································· ······ ···· ·· ······· ······ ······ ························
This document expires on .......... .. ........ · · .. ...................... .. .... .. .. unless its validity
is extended or renewed.

Name .............. .. ....... .. .................. . ............ .. ... .. .. ........ ... .... ..... .... .. ... ...... ..

Forename(s) . .. ... ... .. ....... ... .. ...... ....... . .. ...... . .. .. ... .. . .... . ...... .. ...... . .. ....... ....... ..

Accompanied by .. .. ........ .. . .. .... .. .. .......... .. .. ... .. . . . . . ..... . ... ...... . .. . child (children).

l . This document is issued solely with a view to providing the holder with a travel document
which can serve in lieu of a national passport. It is without prejudice to and in no way affects the
holder's nationality.
2, The holder is authorised to return to .. ........ .... ...... .. .... .. ...... .... .... .. [state here the
country whose authorities are issuing the document] on or before ... .. ....... .. ...... . .. ....... ..
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. unless some later date is hereafter specified. [The period
during which the holder is allowed to return must not be less than three months.)
3. Should the holder take up residence in a country other than that which issued the present
document, he must, if he wishes to travel again, apply to the competent authorities of his
country of residence for a new document. [The old travel document shall be withdrawn by the
authority issuing the new document and returned to the authority which issued it. ]1
(This document contains pages, exclusive of cover. )
•The sentence in brackets to be inserted by Governments which so desire.

(2)
Place and date of birth ........... .. .... . .. . ... .. . .. ... . .. .. . . .. ...... . ... ...... .. .. .. .. .... · .. .... .. .. ·
Occupation ...... . .. .... ... ..... . .. . .. . ...... ........ .... ... ...... .. .. .. . .. . ... . ..... ... .... .... .. .... .. ..
Present residence ... . ... .. .. . .. . .. . .. . .. .. ... . ..... . .... . . ... . .. ............... ... .. . . .. .. .. .. · · ~· ·· ······
*Maiden name and forename(s) of wife ........ ........ .. ... ..... .. ...... .. .. .. ... .. .. .... · ...... · .. ·
~N·~~~- ~~d ·f~;e·n
..a. m
.. ·e·(·s·)..o.f..h. ..
us.b.a..n·d·. . .. . ......... .... .... . . ....... ' .. . ....... . ......... . ....... .... ::::
····· ·· ·· ······ ··· ··· ········ ············ ··· ··········· ·······
•s;;ik~·~~~ ·~hi~h;~~; ·d~~ -~~t· ~i>pi~: ·································································
Convention on Status of Refugees, 1951 295

Description
Height .............. ....... .. ......... ........................ .. .... .
Hair . ..... .............. ............... . .... .. ..... ............. . .... .
Colour of eyes ....... ....... .. ........... ............. . ....... .. .... .
Nose ....... . .... . ....... .. ................................ ... ........ .
Shape of face ........... .. ........... . ........ . .. .... .. ..... . ....... .
Complexion ...... .. .... . ............ . ...... ....... .... ...... ...... . .
Special peculiarities ...... ....... .................. . ..... ... ... .... .

Children accompanying holder

Name Forename(s) Place and date of birth Sex
························ ······· ········· ······· ············
······ ··········· ··· · ........................ ······· ·· ············ ···· ···· ······
············ ·· ······· ........................ ·························· ·········
····················· ························ ········ ··· ························
(This document contains pages, exclusive of cover.)

(3)
Photograph of holder and stamp of issuing authority
Finger-prints of holder (if required}
Signature of holder . . ..... .. ....... .. ... . ... . ... .. . .. .. .. ... .. ..... .. .. .............. ... ........... .. .
(This document contains pages, exclusive of cover.)

(4)
1. This document is valid for the following countries:
··············································································································
········································· ···························· ········································ ·
························· ··························· ···················· ······································
····································· ················································ ·························
2. Document or documents on the basis of which the present document is issued:
·························· ····················································································
··························································· ························· ··························
··· ················································································ ···························
Issued at .......... ... ........................ . .. .
Date ............... ... ......... ... .... .. . . ..... .. .
Signature and stamp of authority
issuing the document:
Fee paid:
(This document contains pages, exclusive of cover.)
 296 Appendix 9

(5)
Extension or renewal of validity
From .......... .. .... ... .... .. ...... ....... .
Fee paid: To ·· ······
Done at .. .. ..... ..... ...... ..... ..... ... .... ..... .. . Oat~· ::::::::::::::::::::::::::: : ::::::::::::::::::: :::·····
Signature. and hstamp_do.f autfhority extendin~· ~;
renewmg t e va11 tty o the document:

Extension or renewal of validity

Fee paid: From ......... ...... ...... .............. ............... .

To ................ .. ..... .... .............. .
···············
Done at ............ ....... .. .. ... ........ ...... .. .. . Date ... ...... .. ............. ............. .
Signature and stamp of authority ~~~~~di~·~·~;
renewing the validity of the document:
(This document contains 32 pages, exclusive of cover.)

(6)

Extension or renewal of validity

Fee paid: From ..... ............... ................................. .

To ..... ............. ....... ..... .... ........ .............. .
Done at ...... ......... .. .. .... .... ... .... .......... . Date ..... .... .. ..... ............. ......................... .
Signature and stamp of authority extending or
renewing the validity of the document:

Extension or renewal of validity

Fee paid:
Done at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
From ....... .... ....... ...... ...... ·· · · · ·· ·· ···············
To .... ..................... .. ........ ... .................. .
Date ......... ...... ...... ............ · · · · · · · · · · ·· ·· ·· ······
Signature and stamp of authority extending or
renewing the validity of the document:

(This document contains 32 pages, exclusive of cover.)

(7-32)
Visas
The name of the holder of the document must be repeated in each visa.
(This document contains 32 pages, exclusive of cover.)
 1\ ppc•nd i )( I 0

PR<J'I'( >( :( )L R ELl\' I' IN<; 'I'() 'l'llE

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~~~~~~"' 11 1imr em .NMhmal l .ttllllltlt/tm
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 298 Appendix 10
Article IV

Settlement. of Disputes
t en States Parties to the present p rotoco1 w h'1ch re1ates to lts
· ·
Any d 1spute bewe Interpretatlon
.
. .
or app1Jcatwn an w 1d h'ch cannot be settled by other means
. shall be . referred to the Internat'
Jonal
Court o fj usuce· a t the request of any one of the parties to the d1spute.

Article V

Accession .
The present Protocol shall be open for accessiOn ~n behal~ of all States Parties to the
Convention and of any other State Membe~ of the Umted NatiOns or member of any of the
specialized agencies or to wh.ich an i~vitatJOn to. accede may have been addressed by the
General Assembly of the Umted Nauons. AccessiOn shall b~ effecte~ by the deposit of an
instrument of acc_ession with the Secretary-General of the Umted Nauons.

Article VI
Federal Clause
In the case of a Federal or non-unitary State, the following provisions shall apply
(a) With respect to those articles of the Convention to be applied in accordance with article 1
paragraph 1, of the present Protocol that come within the legislative jurisdiction of the federal
legislative authority, the obligations of the Federal Government shall to this extent be the same
as those of States Parties which are not Federal States;
(b) With respect to those articles of the Convention to be applied in accordance with article I,
paragraph 1, of the present Protocol that come within the legislative jurisdiction of constituent
States, provinces or cantons which are not, under the constitutional system of the federation,
bound to take legislative action, the Federal Government shall bring such articles with a
favourable recommendation to the notice of the appropriate authorities of States, provinces or
cantons at the earliest possible moment;
(c) A Federal S•ate Party to the present Protocol shall, at the request of any other State Party
hereto transmitted through the Secretary-General of the United Nations, supply a statement of
the law and practice of the Federation and its constituent units in regard to any particular
provision of the Convention to be applied in accordance with article I, paragraph I, of the
present Protocol, showing the extent to which effect has been given to that provision by
legislative or other action.

Article VII
Rtservations and Declarations
I. At the time of accession, any State may make reservations in respect of article IV of the
present Protocol and in respect of the application in accordance with article I of the present
Protocol of any provisions of the Convention other than those contained in articles I, 3, 4, I6 (I)
and 33 thereof, provided that in the case of a State Party to the Convention reservations made
under this article shall not extend to refugees in respect of whom the Convention applies.
2. Reservations made by States Parties to the Convention in accordance with article 42
thereof shall, unless withdrawn, be applicable in relation to their obligations under die present
Protocol.
. 3. A?y State making a reservation in accordance with paragraph 1 of this article may at any
time Withdraw such reservation by a communication to that effect addressed to the Secretary-
General of the United Nations.
4· Declaration~ made under article 40, paragraphs 1 and 2, of the Convention by a State
Party thereto whtch accedes to the present Protocol shall be deemed to apply in respect of the
present Protocol, unless upon accession a notification to the contrary is addressed by th.e State
Party concerned to the Secretary-General of the United Nations. The provisions of arncle M),
para~aphs 2 ~nd 3, and of article 44, paragraph 3, of the Convention shall be deemed to apply
mutahs mutandrs to the present Protocol.
Protocol on Status of Refugees 299
Article VIII
Entry into Force .
1. The present Protocol shall come mto force on the day of deposit of the sixth instrumt·nt of
accession.
2. For each State acceding to the Protocol after the deposit of the sixth instrument of
accession, the Protocol shall come into force on the date of deposit by such State of its
instrument of accession.

Article IX
Denunciation
1. Any State hereto may denounce this Protocol at any time by a notification addressed to the
Secretary-General of the United Nations.
2. Such denunciation shall take effect for the State Party concerned one year from the date on
which it is received by the Secretary-General of the United Nations.

Article X
Notifications by the SecreUJ.ry-General of the United .Nations
The Secretary-General of the United Nations shall inform the States referred to in article V
above of the date of entry into force, accessions, reservations and withdrawals of reservations to
and denunciations of the present Protocol, and of declarations and notifications relating hereto.

Article XI
Deposit in the Archives of the Secretariat of the United .Nations
A copy of the present Protocol, of which the Chinese, English, French, Russian and Spanish
texts are equally authentic, signed by the President of the General Assembly and by the
Secretary-General of the United Nations, shall be deposited in the archives of the Secretariat of
the United Nations. The Secretary-General will transmit certified copies thereof to all States
Members of the United Nations and to the other States referred to in article V above.
 Appendix ll

CONVENTION RELATING TO THE STATUS

OF STATELESS PERSONS*
(New York, 1954)

Chapter I. General Provisions

Article 1
Definition of the ttrm "Statel~ss Person". " ,
I. For the purpose ofthts Convenuon, the term stateless person means a person who is n
. f. t ot
considered as a national by any State under the operatwn o lts aw.
2. This Convention shall not apply:
(i) To persons who are at present recei~~g from organs or agencies ?f the Uni.ted Nations other
than the United Nations High .commtssi~ner for Refugees protection or asststance so long a~
they are receiving such protecuons or asststance;
(ii) To persons who are recognised .b y the comp.ete~t auth~rities of the country in which they
have taken residence as having the nghts and obhgauons which are attached to the possession of
the nationality of that country;
(iii) To persons with respect to whom there are serious reasons for considering that:
(a) They have ct>mmitted a crime against peace, a war crime, or a crime against humanity, as
defined in the international instr1,1ments drawn up to make provisions in respect of such crimes;
(b) They have committed a serious non-political crime outside the country of their residence
prior to their admission to that country;
(c) They have been guilty of acts contrary to the purposes and principles of the United
Nations.

Article 2
General Obligations
Every stateless person has duties to the country in which he finds himself, which require in
particula r that he conform to its laws and regulations as well as to measures taken for the
maintenance of public order.

Article 3
Non-discrimination
The Contracting States shall apply the provisions of this Convention to stateless persons
without discrimination as to race, religion or country of origin.

Article 4
Religion
The Contracting States shall accord to stateless persons within their territories treatment at
le~t. as favourable as that accorded to their nationals with respect to freedom to practise their
religwn and freedom as regards the religious education of their children.

Article 5
Rights granted apart from this Convention
Nothi~g in this Convention sha ll be deemed to impair any rights a nd benefits granted by a
Contractmg State to stateless persons apart from this Convention.

• U.N.T.S. vol. 360 p. 117

Convention on Status of Stateless Persons, 1954 301
Article 6
.
Tht Tmn "in the samt cz~cumstances ". .
For the purpose o~ thts Co~vcnuon, the term "m the same circumstances" implies that any
uircmcnts (includmg requtrerncnts as to length and conditions of sojourn or residence) which
r~q particular individual would have to fulfil for the enjoyment of the right in question if he
t ere not a stateless person, must be fulfilled by him, with the exception of requirements ~hich
we . . bl
by their nature a stateless person ts mcapa e of fulfilling.

Article 7
Exetption from Reciproc;.ty . .
1. Except where thts Convention contams more favourable provisions, a Contracting State
shall accord to stateless persons the same treatment as is accorded to aliens generally.
2. After a period of three years' residence, all stateless persons shall enjoy exemption from
legislative reciproci~y in the territory ~f the Contracting States.
3. Each Contracung State shall contmue to accord to stateless persons the rights and benefits
to which they were already entitled, in the absence of reciprocity, at the date of entry into force
of this Convention for that State.
4. The Contracting States shall consider favourably the possibility of according to stateless
persons, in the absence of reciprocity, rights and benefits beyond those to which they are entitled
according to paragraphs 2 and 3, and to extending exemption from reciprocity to stateless
persons who do not fulfil the conditions provided for in paragraphs 2 and 3.
The provisions of paragraphs 2 and 3 apply both to the rights and benefits referred to in
articles 13, 18, 19, 21 and 22 of this Convention and to rights and benefits for which this
Convention does not provide.

.
Exemption from Exceptional Measures
Article 8

With regard to exceptional measures which may be taken against the person, property or
interests of nationals or former nationals of a foreign State, the Contracting States shall not
apply such measures to a stateless person solely on account of his having previously possessed the
nationality of the foreign State in question. Contracting States which, under their legislation,
are prevented from applying the general principle expressed in this article shall, in appropriate
cases, grant exemptions in favour of such stateless persons.

Article 9
Provisional Measures
Nothing in this Convention shall prevent a Contracting State, in time of war or other grave
and exceptional circumstances, from taking provisional measures which it considers to be
essential to the national security in the case of a particular person, pending a determination by
the Contracting State that that person is in fact a stateless person and that the continuance of
such measures is necessary in his case in the interests of national security.

Article 10
Continuity of Residence
I. Where a stateless person has been forcibly displaced during the Second World War and
removed to the territory of a Contracting State, and is resident there, the period of such
enforced sojourn shall be considered to have been lawful residence within that territory.
2. W~ere a stateless person has been forcibly displaced during the Second _World War fro~
the terntory of a Contracting State and has, prior to the date of entry mto force of this
Convention, returned there for the purpose of taking up residence, the period of residence before
and after such enforced displacement sha ll be regarded as one uninterrupted period for any
purposes for which uninterrupted residence is required.
 302 Appuulix II

Article II

Stateless Seanun
In the case of stateless persons regularly serving as.crc·w mcmbt·rs. on boa~d a sl~ip flying th('
flag of a Contracting State, that ~tate shall gtvc sympathcltc comuderat~ou to their
establishment on its territory and the ~ssue o~ travel d?~un.t cn ts t~ them '.'r tht·•r ~cntporary
admission to its territory particularly w1th a v1cw to facthtatmg tht:•r cstahhshmcnt m another
country.
Chapter D. Juridical Statua
Article 12

Person~~/ Status
1. The personal status of a stateless person shall be governed by ~he l~w of the country of his
domicile or, if he has no domicile, by the law of the country of hts restdence.
2. Rights previously acquired by a stateless person and dependent on p~rsonal status, more
particularly rights attaching to marriage, .shall ~~ respec~ed by a Contractmg State, subject to
compliance, if this be necessary, wi~h the lormahues requtred by the law of that State, provided
that the right in question is one whtch would have been recogmsed by the law of that State had
he not become stateless.

Article /3
Movable and Immovable Property
The Contracting States shall accord to a stateless person treatment as favourable as pos.,ible
and, in any event, not less favourable than that accorded to aliens generally in the same
circumstances, as regards the acquisition of movable and immovable property and other rights
pertaining thereto, and to leases and other contracts relating to movable and immovable
property.

Article U
Artistic Rights and lndustri4l Property
In respect of the protection of industrial property, such as inventions, designs or models, trade
marks, trade names, and of rights in literary, artistic and scientific works, a stateless person shall
be accorded in the country in which he has his habitual residence the same protection as is
accorded to nationals of that country. In the territory of any other Contracting State, he shall be
accorded the same protection as is accorded in that territory to nationals of the country in which
he has his habitual residence.

Article 15
Right of Association
As regards non-political and non-profit-making assoctattons and trade unions the
Contracting States shall accord to stateless persons lawfully staying in their territory treatment
as favourable as possible, and in any event, not less favourable than that accorded to aliens
generally in the same circumstances.

Article 16
Access to Courts
l. A stateless person shall have free access to the Courts of Law on the territory of all
Contracting States.
~· A stateless person shall enjoy in the Cqntracting &tate in which he has his habitual
~es1de~ce the sam~ treatment as a national in matters pertaining to access to the Courts,
mcludmg legal ass1stance and exemption from cautio judicatum solvi.
3. A stateless person shall be accorded in the matters referred to in paragraph 2 in countries
other than that in which he has his habitual residence the treatment granted to a national of the
country of his habitual residence.
Convention on Status of Stateless Persons, 1954 303

Chapter m. Gaiuful Employment

Article 17
Wage-earning Employment
1. The Contracting States s~all accord to stateless persons lawfully staying in their territory
treatment as favourable as possible and, in any event, not less favourable than that accorded to
aliens generally in the same circumstances, as regards the right to engage in wage-earning
employment.
2. The Contracting States shall give sympathetic consideration to assimilating the rights of all
stateless persons with regard to wage-earning employment to those of nationals, and in
particular of those stateless persons who have entered their territory pursuant to programmes of
labour recruitment or under immigration schemes.

Article 18
Self-employment
The Contracting States shall accord to a stateless person lawfully in their territory treatment
as favourable as possible and, in any event, not less favourable than that accorded to aliens
generally in the same circumstances, as regards the right to engage on his own account in
agriculture, industry, handicrafts and commerce and to establish commercial and industrial
compames.

Article 19
Liberal Professions
Each Contracting State shall accord to stateless persons lawfully staying in their territory who
hold diplomas recognised by the competent authorities of that State, and who are desirous of
practising a liberal profession, treatment as favourable as possible and, in any event, not less
favourable than that accorded to aliens generally in the same circumstances.

Chapter IV. Welfare

Article 20
Rationing
Where a rationing system exists, which applies to the population at large and regulates the
general distribution of products in short supply, stateless persons shall be accorded the same
treatment as nationals.

Article 21
Housing
As regards housing, the Contracting States, in so far as the matter is regulated by laws or
regulations or is subject to the control of public authorities, shall accord to stateless persons
lawfully staying in their territory treatment as favourable as possible and, in any event, not less
favourable than that accorded to aliens generally in the same circumstances.

Article 22
Public education
I. The Contracting States shall accord to stateless persons the same treatment as is accorded
to nationals with respect to elementary education.
2. The Contracting States shall accord to stateless persons treatment as favourable as possible
and, in any event, not less favourable than that accorded to aliens generally in the same
circumstances, with respect to education other than elementary education and, in particular, as
regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the
remission of fees and charges and the award of scholarships.
304 Appendix 11

Article 23

Public Relief fi 11 · · ·
The C on traCt1.ng States shall accord to stateless persons
.
law u y staymg m theu territory th
· d d h . e
same treatment with respect to public relief and assistance as IS accor c to t etr nationals.

Article 24
Labour Legislation and Social Security . . .
I. The Contracting States shall accord. to stat.eless persons lawfully s~aymg m thetr territory
the same treatment as is accorded to natiOnals m respect o~ the followmg. matters:
(a) In so far as such matters are gover_ned ~y la~s or reg.ulauons or are subject to the control of
administrative authorities: remuneratiOn, mcludmg famtly allowances where these form part of
remuneration hours of work overtime arrangements, holidays with pay, restrictions on home
work, minim~m age of empl~yment, apprenticeship and training> woman'~ ~ork and the work
of young persons, and the employment of the benefits of collect~v~ bargammg;.
(b) Social security (legal provisions in respect of employment, mJ~ry, occup~t~~~al diseases,
maternity, sickness, disability, old age, death, unemployment, fa~1ly r~pons1b1ht1es and any
other contingency which, according to national laws or regulatiOns, IS covered by a social
security scheme), subject to the following limitations:
(i) There may be appropriate arrangements for the maintenance of acquired rights and
rights in course of acquisition;
(ii) National Jaws or regulations of the country of residence may prescribe special
arrangements concerning benefits or portions of benefits which are payable wholly out of public
funds, and concerning allowances paid to persons who do not fulfil the contribution conditions
prescribed for the award of a normal pension.
2. The right to compensation for the death of a stateless person resulting from employment
injury or from occupational disease shall not be affected by the fact that the residence of the
beneficiary is outside the territory of the Contracting State.
3. The Contracting States shall extend to stateless persons the benefits of agreements
concluded between them, or which may be concluded between them in the future, concerning
the maintenance of acquired rights and rights in the process of acquisition in regard to social
security, subject only to the conditions which apply to nationals of the States signatory to the
agreements in question.
4. The Contracting States will give sympathetic consideration to extending to stateless
persons so far as possible the benefits of similar agreements which may at any time be in force
between such Contracting States and non-Contracting States.

Chapter V. Administrative Measures

Article 25
Administrative Assistance
I. ~~en the exer~ise of a right by a stateless person would normally require the assistance of
authonttes_ of a fo~e1gn. c?untry to whom he cannot have recourse, the Contracting State in
whose ~e.rntory he IS restdmg shall arrange that such assistance be afforded to him by their own
au thon ties.
~· The authority or authorities mentioned in paragraph 1 shall deliver or cause to be
deh vered und er t h e1r
· superviSion
· · to stateless persons such documents or certifications as would
normally be delivered to aliens by or through their national authorities.
~· Documen_ts or certifications so delivered shall stand in the stead of the official instruments
delivered to ahens by or through their national authorities, and shall be given credence in the
absence of proof to the contrary.
4. Subject to such. exceptio~al treatment as may be granted to indigent persons, fees may be
c~arged for the services menuoned herein, but such fees shall be moderate and commensurate
wnh those charged to nationals for similar services.
5. The provisions of this article shall be without prejudice to articles 27 and 28.
Corwmtio11 on Stnh1.~· of Stntrlt•ss Per.m11s, 195-1

A rticlt 26

Frrrdo"' of .\lo;:nn~nl
r 3 d 1 Contractmg S tate sha ll accord to stntclel'S persons lawfu lly in its terri tory tl· . ·
IJ I' 'd d I( riR1I 1
10
choose their place o res1. encc an to move freely within its lt'JTitur)' su bJ.l't'l 10 , 111 y
rrgulations appli~aII
> e to a 1tens
· genera II)' m
. the sanw circumsta nces. ' ' . '·

Article 27

Jdrnti~ Papers
The Contracting States shall issue identity papers to any stateless person in thc·ir territory who
docs not possess a valid travel d ocument.

Article 28
Travel Documents
The Contracting States sha ll issue to stateless persons lawfully staying in their territory travel
documents for the purpose of travel outside their territory, unless compelling reasons of national
security or public order otherwise require, and the provisions of the Schedule to this Convention
shall apply with respect to such d ocuments. The Contracting States may issue such a travel
document to any other stateless person in their territory; they shall in particular give
sympathetic consideration to the issue of such a travel doc ument to stateless persons in their
territory who are unable to obtain a travel document from th e country of their lawful residence.

Article 29
Fiscal Charges
I. The Contracting States shall not impose upon stateless persons duties, charges or taxes, of
any description whatsoever, other or higher than those which arc or may be levied on their
nationals in similar situations.
2. Nothing in the above paragraph shall prevent the application to stateless persons of the
laws and regulations concerning charges in respect of the issue to aliens of administrative
documents including identity papers.

Article 30
Transfer of Assets
1. A Contracting State shall, in conformity with its laws and regulations, permit stateless
persons to transfer assets which they have brought into its territory, to another country where
they have been admitted for the purposes of resettlem ent.
2. A Contracting State shall give sympathetic consideration to the application of stateless
persons for permission to transfer assets wherever they may be and which are necessary for their
resettlement in another country to which they have been admitted.

Article 31
Expulsion
1. The Contracting States shall not expel a stateless person lawfully in their territory save on
grounds of national security or public order.
2. T he explusion of such a stateless person shall be only in pursuance of a decision reached in
ac<:)lrdance with due process of law. Except where compelling reasons of national security
oifierwise require, the stateless person shall be a llowed to submit evidence to clear himself, and
to appeal to and be represented for the purpose before competent authority or a person or
persons specially designated by the competent authority. . . .
3. The Contracting States shall allow such a .stateless person a reasonable penod wahm
which to seek legal admission into another country. The Contracting States reserve the right to
apply during that period such internal measures as they may deem necessary.
306 Appendix 11
Article 32
.Naturalisation
The Contracting State shall as far as possible facilitate the assimilation and naturalisation f
stateless persons. They shall in parti~ular make every effort to expedite naturalisatio:
proceedings and to reduce as far as poss1ble the charges and costs of such proceedings.

Chapter Vl. Fiaal ClauHII

Article 33
Information on .National Legislation
The Contracting States shall communicate to the Secretary-Gen~ral. of the United Nations
the Jaws and regulations which they may adopt to ensure the apphcat10n of this Convention.

Article 34
Settlement of Disputes
Any dispute between parties to this Convention relating to its interpretation or application
which cannot be settled by other means, shall be referred to the International Court ofjustice a;
the request of any one of the parties to the dispute.

Article 35
Signature, Ratification and Accession
1. This Convention shall be open for signature at the Headquarters of the United Nations
until December 31, 1955.
2. It shall be open for signature on behalf of:
(a) Any State Member of the United Nations;
(b) Any other State invited to attend the United Nations Conference on the Status of Stateless
Persons; and
(c) Any State to which an invitation to sign or to accede may be addressed by the General
Assembly of the United Nations.
3. It shall be ratified and the instruments of ratification shall be deposited with the Secretary-
General of the United Nations.
4. It shall be open for accession by the States referred to in paragraph 2 of this article.
Accession shall be effected by the deposit of an instrument of accession with the Secretary·
General of the United Nations.
Article 36
T mitori41 Application Clause
1. Any State may, at the time of signature, ratification or accession, declare that this
Convention shall extend to all or any of the territories for the international relations of which it
is responsible. Such a declaration shall take effect when the Convention enters into force for the
State concerned.
2. At any time thereafter any such extension shall be made by notification addressed to the
Secretary-General of the United Nations and shall take effect as from the ninetieth day after the
day of receipt by the Secretary-General of the United Nations of this notification, or as from the
date of entry into force of the Convention for the State concerned, whichever is the later.
3. With respect to those territories to which this Convention is not extended at the time of
signature, ratification or accession, each State concerned shall consider the possibility of taking
the necessary steps in order to extend the application of this Convention to such territories,
subject, where necessary for constitutional reasons, to the consent of the Governments of such
territories.
Articlt 37
Federal Claust
In the case of a Federal or non-unitary State, the following provisions shall apply: .
(a) With respect to those articles of this Convention that come within the legislativejurisdicuon
 ; n on Status of Stateless Persons, 1954
Conuent•0 307

h federal legislative authority, the obligations of the Federal Government shall to this extent
oft he ame as those of Parties which are not Federal States;
be t eiths · 1 f h" Co · that come w1.thm. the legaslatavejurisdiction
. . .
) W respect to those artac es o t as nventaon
(b 0

tituent States, provmces h" h

k 1 . or cantons
. w ach are not, under the constitutaonal system of the
0 0

0 f cons
1 .
federation, bound to ta e egts at.ave action, t e _Federal Government shall bdng such articles
. h a favourable recommendataon to the notace of the appropriate authorities of States
wtt ·nces or cantons at t he ear1"test possa"ble moment. '
provt p h" C . h
(c) A Federal State arty tot as onvenuon s all, at _the requ_est of any other Contracting State
nsmitted through the Secretary-General of the Umted Nations, supply a statement of the law
tra h Fed . d . . . .
d practice oft e eration an lts constituent umts m regard to any particular provision of
::e Convention showing the extent to which effect has been given to that provision by legislative
or other action.

Article 38
Reservations
1. At the time of signature, ratification or accession, any State may make reservations to
articles of the Convention other than to articles l, 3, 4, 16 (1) and 33 to 42 inclusive.
2. Any State making a reservation in accordance with paragraph 1 of this article may at any
time withdraw the reservation by a communication to that effect addressed to the Secretary-
General of the United Nations.

Article 39
Entry into Force
1. This Convention shall come into force on the ninetieth day following the day of deposit of
the sixth instrument of ratification or accession.
2. For each State ratifying or acceding to the Convention after the deposit of the sixth
instrument ofratification or accession, the Convention shall enter into force on the ninetieth day
following the date of deposit by such State of its instrument of ratification or accession.

Article 40
Denunciation
l. Any Contracting State may denounce this Convention at any time by a notification
addressed to the Secretary-General of the United Nations.
2. Such denunciation shall take effect for the Contracting State concerned one year from the
date upon which it is received by the Secretary-General of the United Nations.
3. Any State which has made a declaration or notification under article 36 may, at any time
thereafter, by a notification to the Secretary-General of the United Nations, declare that the
Convention shall cease to extend to such territory one year after the date of receipt of the
notification by the Secretary-General.

Article 41
Revision
1_. Any Contracting State may request revision of this Convention at any time by a
notification addressed to the Secretary-General of the United Nations. .
2. The General Assembly of the United Nations shall recommend the steps, tf any, to be
taken in respect of such request.

Article 42
Notifications by the Secretary-General of the United Nations . .
The Secretary-General ofthe United Nations shall inform all Members of the Umted Nations
and non-Member States .referred to in article 35:
(a) Of signatures, ratifications and accessions in accordance with article 35;
(b) Of declarations and notifications in accordance with article 36;
(c) Of reservations and withdrawals in accordance with article 38;
308 Appendix 11

. h h' C0 nvention will come into force in accordance with article 39.
(d) Of the date on wh IC t IS • • · 1 40· •
(e) Of denunClaUons and no t'fications
. . I
m accordance
.
with artie e ,
. I 41
{f) Of requests for revision in accordance with artie e .

. whereoif t he und ers1g

In Jarth · ned • duly authorised ' have signed this Convention on behalf of
their respective Governments, h d . h
Done at New York, th IS . twenty-eighth day of September,S one. th ousan mne undred and
r . . of which the English, French and pams texts are equally authentic
fifty-1our, m a smg1e copy, U · dN · d 'fi d
. h h 11
and wh1c s a remam · depos'lted in the archives of the
. mte· auons,
d an h certlMe true copies
of which shall be delivered to all Members of the Umted NattOns an tot e non- ember States
referred to in article 35.
SCHEDULE

Paragraph 1
1 Th
i:t 1 document referred to in article 28 of this Convention shall indicate that the
holder /~:~eless person under the terms of the Convention of Septe~ber 28, 1954.
2. The document shall be made out in at least two languages, one ofwh1ch shall be English or
French.
3. The Contracting States will consider the desirability of adopting the model travel
document attached hereto.
Paragraph 2
Subject to the regulations obtaining in the country of issue, children may be included in the
travel document of a parent or, in exceptional circumstances, of another adult.

Paragraph 3
The fees charged for issue of the document shall not exceed the lowest scale of charges for
national passports.
Paragraph 4
Save in special or exceptional cases, the document shall be made valid for the largest possible
number of countries.
Paragraph 5
The document shall have a validity of not less than three months and not more than two
years.
Paragraph 6
1. The renewal or extension of the validity of the document is a matter for the authority
which issued it, so long as the holder has not established lawful residence in another territory
and resides lawfully in the territory of the said authority. The issue of a new document is, under
the same conditions, a matter for the authority which issued the former document.
2. Diplomatic or consular authorities may be authorised to extend, for a period not exceeding
six months, the validity of travel documents issued by their Governments.
3. The Contracting States shall give sympathetic consideration to renewing or extending the
val.idity ?f tra~el do~umertts or issuing new documents to stateless persons no longer lawfull.y
resident m the1r tern tory who are unable to obtain a travel document from the country ofthe1r
lawful residence.

Paragraph 7
.The Contr~c.ting States shall recognise the validity of the documents issued in accordance
w1th the proviSions of article 28 of this Convention.

Paragraph 8
Th~ competent authorities of ~he. countr~ to which the stateless person desires to proceed
sha.ll, 1f th~y are prepared to adm1t h1m and 1f a visa is required affix a visa on the document of
wh1ch he 1s the holder. '
 Conventz
.on on Status of Stateless Persons, 1954 309

Paragraph 9
The Contracting States undertake to issue transit visas to stateless persons who have
1
· · d visas for a territory of final destination.
obtame . b fl d . . .
z. The issue of such visas may e re use on grounds which would JUStify refusal of a visa to
anY alien.
Paragraph 10
The fees for the issue of exit, entry or transit visas shall not exceed the lowest scale of charges
for visas on foreign passports.

Paragraph 11
When a stateless person has lawfully taken up residence in the territory of another
Contracting State, the responsibility for the issue of a new document, under the terms and
conditions of article 28 shall be that of the competent authority of that territory, to which the
stateless person shall be entitled to apply.

Paragraph 12
The authority issuing a new document shall withdraw the old document and shall return it to
the country of issue if it is stated in the document that it should be so returned; otherwise it shall
withdraw and cancel the document.

Paragraph 13
1. A travel document issued in accordance with article 28 of this Convention shall, unless it
contains a statement to the contrary, entitle the holder to re-enter the territory of the issuing
State at any time during the period of its validity. In any case the period during which the
holder may return to the country issuing the document shall not be less than three months,
except when the country to which the stateless person proposes to travel does not insist on the
travel document according the right of re-entry.
2. Subject to the provisions of the preceding sub-paragraph, a Contracting State may require
the holder of the document to comply with such formalities as may be prescribed in regard to
exit from or return to its territory.

Paragraph 14
Subject only to the terms of paragraph 13, the provisions of this Schedule in no way affect the
laws and regulations governing the conditions of admission to, transit through, residence and
establishment in, and departure from, the territories of the Contracting States.

Paragraph 15
Neither the issue of the document nor the entries made thereon determine or affect the status
of the holder, particularly as regards nationality.

Paragraph 16
. The issue of the document does not in any way entitle the holder to the protection of the
dtplomatic or consular authorities of the country of issue and does not ipso facto confer on these
authorities a right of protection.
310 Appendix II

MODEL TRAVEL DOCUMENT

.
I t ~~ ended that the document be in booklet form (approximately 15
recomm . b h . X 10
· t ) that it be so printed that any erasure or a1teratwn y c em1cal or other rne
cenume res , "Co . f 28 S b ans can
b e read 1.1y detected , and that the words
. nventtonf o h . eptem
. er 1954" be pr1•nted In.
continuous repetition on each page, m the language o t e tssmng country.

(Cover of booklet)
TRAVEL DOCUMENT
({;onven tion of 28 September 1954)

No
(1)
······················
T RAVEL DOCUMENT
(Convention of 28 September 1954)

This document expires on ............. .. .... .. ... .................. .. .... .. ................ unless its validity
is extended or renewed.

Name ..... .. .......... .. .... .. ... ...... .... .. .......... ................. .. ... ...... .. .... ................ ............. ..

Forename(s) ............. ..... ... .... .......... ..... · · · · ... · .. · .. · · · .. · · · · · · · · · · · · · · .. · .. ............................. .

Accompanied by .......... ....... .......... .......... ....... ... ........... ... .. ... ... .... ..... child (children).

1. This document is issued solely with a view to providing the holder with a travel document
which can serve in lieu of a national passport. It is without prejudice to and in no way affects the
holder's nationality.
2. The holder is authorised to return to .. .. .. .. .. . .. .. . .. . .. .. .. .. .. . .. .. .. .. . .. .. . .. .. . [state here the
country whose authorities are issuing the document] on or before ................................... .
.. .. .. .. .. .. .. . .. .. .. .. . .. .. .. .. .. .. .. .. .. .. .. . unless some later date is hereafter specified. [The period
during which the holder is allowed to return must not be less than three months except when the
country to which the holder proposes to travel does not insist on the travel document according
the right of re-entry.]
3. Should the holder take up residence in a country other than that which issued the present
document, he must, if he wishes to travel again, apply to the competent authorities of his
country of residence for a new document. [The old travel document shall be withdrawn by the
authority issuing the new document and returned to the authority which issued it.]1
(This document contains 32 pages, exclusive of cover.)

'The sentence in brackets to be inscncd by Governments which so desire.

(2)
Place and date of birth ............... .. .... .. ......... ... ... ....... ... ... .. ............... ... ....... · · · ·.... .. ·
Occupation ... ............ ... .............. .... ... ..... ....................................... ........... ·............ ·
Present residence ............. ...... ....... ................ .. .. .......... ...... .... .... ............. ....... · .. ·.. ..
*Maiden name and forename(s) of wife ........ ....... ........ ........ .. ....... ... ..... .... .... ............. .
................................. ............................. ~ ............................................................ .
*Name and forename(s) of husband ............. ...... .... ... ..... ... ... .......................... .......... ..
·························································································································
*Strike out whichever does not apply.
 Convention on Status Q[ Stateless Persons, 1954 311
Description
Heigh t ... ... ..... .... .......... ... ... .... ...... .. ... ... ... .. ...... .. .. .. .... . .
Hair .... .... ... ... ... ..... .... ...... .. ....... ... .. .......... .... .. ... ... ... .. . .
Colour of eyes .... ... .. ..... ... ... .. .. .... ..... ... .. .... ......... ........ .. .
Nose ..... ...... ... ............. ........ ... .......... ......... .. .. .. ....... 0000 0

Shape of face .......... .. 00 . . . . . . . 00 • • 00 • • 0 0 . 00 00 . . . . . . . . . . 00 . . . 00 00 . . 00 . . . . .

Complexion .. 00 • • • • 00 • • • 00 • • 00 • • • 00 . . .. .. . . 00 . . . . . 00 . 00 00 . . . . . 00 00 . . . . . . .
00
•

Special peculiarities .. ... .. .. ... 00 00 • • • 00 . 0 0 . 00 . 0 0 . . . 00 00 • • 00 . . . . . 00 .

00
.. ..

Children accompanying holder

Forename(s)
' Place and date of birth
Name Sex
························ ····· ······ ·····························
························
························
························
(This document contains 32 pages, exclusive of cover.)

(3)
Photograph of holder and stamp of issuing authority
Finger-prints of holder (if required)
Signature of holder ... . .......... ... .... ........ ...... ....... ..... 00 . . . . . . .... .. .. ....... . 00 • • • 00 . . . . .. . . . . . . 00 • •

(This document contains 32 pages, exclusive of cover.)

(4)
I. This document is valid for the following countries:
··················································································· ·········································
............., ............................................................................................................. .
··························· ······················ ···········································································

····························································································································
····························································································································
~·~~~~;; ·~~··· . ..... . . . .. ......... . ..... 0 •• • ••••• 0 000 0 • • ••••• •• ••••••••••••• ooo ooo••• ········ ............. ... ... 0 0 0 00 00 000 00

Date ···············································
····················································· Signature and stamp of authority
issuing the document:
Fee paid:
(This document contains 32 pages, exclusive of cover.)
312 Appendix 11

(5)

Extension or renewal of validity

Fee paid: From . ..... . ... ... . . .. ...... .. . . . .. . .. . .. .. .. ... .. . .
To
Oat~· · · ·· ······ ·· · ···· · ········ · · · ······ · ·· · ·· · · ·· · · ·
Done at ..... . . .. .. .... .. . ......... ...... .. . . .. .
Signat~;~· ~-~d· ~~;~~- ~f ;~~h~~i~~- ~~t·~~di~~ ~;
renewing the validity of the document:

Extension or renewal of validity

Fee paid:
Done at ... . . . .. . ... ..... . .... .. . ...... ... ..... .
(This document contains 32 pages, exclusive of cover.)
From . ........ ...... . . . .. . ........ . .. ... ........ .. ..
To . ...... .. .. . . . . . . .. ... . ..... . .... .. . . . . . ... ..... . .
Date .... .. .......... .. ........ . ...... . ...... . ... ... .
Signature and stamp of authority extending or
renewing the validity of the document:

(6)

Extension or renewal of validity

Fee paid:
Done at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
From .......... . ..... . . . ... . .. .. .. ... . .. . . .... .. . .. .
To .. .. .... . ..... ....... . ... . .. . . .... . . ..... . .. .. . .. .
Date . . . . . .. .. ..... . .... . . . .... . . . . .... .. .. .. .. .. .. . .
Signature and stamp of authority extending or
renewing the validity of the document:

Extension or renewal of validity

Fee paid:
Done at . . . . . . . ..... . ... . ............ . ... ..... . .
(This document contains 32 pages, exclusive of cover.)
From ... ... . ... .. .. ........ . . .... . . ...... .. . .. ... .. .
To . . .. ... ... . ..... . .. .. ... . .. . .. .. . .. . . ..... .... .. ..
Date . ....... ................... .... .. ..... .. .. .. .. ..
Signature and stamp of authority extending or
renewing the validity of the document:

(7-32)
Visas
The name of the holder of the document must be repeated in each visa.
(This document contains 32 pages, exclusive of cover.)
 BIBLIOGRAPHY

1. Collection• of Nationality Law•

Hriri8h Pnrliarr\l'ntM y (Command ) Pap rs (For ·ign Offi e): Nationality and Naturalization Laws
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(Crnd. 3!.107) ; Mis ·. No. 5 ( 1 9 ~i5) (Cmd. 5028).
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.NotiartaliU".
!In loose ltavcs th la w8 ofvario u countries are reproduced currently in annotated form-
with an introduction and bibliography. )
Flournoy, Ri cha rd W., and HudRon, Manley 0.: A Collection of Nationality Laws of Various
Countries as contained in Constitutions, StatuttS and Treaties. New York, 1929.
ForschungHMcllc fUr Volkcrr ·cht und Au Iandi hcs O cffcntliches Recht dcr Universitaet
Hamburg: C:eltende Staatsangehoerigkeitsgeset(.t. Systematic Survey.
lnstitut de Droit Compar' d · I'Universitc de Pari : La Nationa/iti dans Ia Science sociale tl dans le
Droit contemfJorain. Bordeaux, 1953. [Contributions by various authors. Preface by Levy-
UIIrnann and Gidcl.]
Lc~ke, Franz, and Loewenfcld, W.: "Das R echt d er Staatsangehoerigkeit der Europaeischen
und Aus~ -rcuropacischcn Staat en'' (Berlin, 1940), in Die Rechtsverfolgung im lnternationalen
Verkehr, vol. VII. (With introduction and comment for each country.)
Lichr, Willibald: Fachbuecherei des Standesbeamten, vol. 1: Das Oesterreichische und Auslaendische
Staatsbuergmchaflsrecht. Part I - Das Oestemichische Staatsbuergmchaftsrecht. Vienna, 1950.
Part. II - /)as Auslaendische Staatsbuergerschaflsrecht. Vienna, 1950.
Magnus, Julius: Tabellen zum lnttrnationalen Recht. Part 2 : Staatsangehoerigkeitsrecht. Berlin, 1926.
(Comparative Tables.)
Schmitz, L., and Wichmann, A.: ,(usammenstel/ung der in den Ku/turstaalen geltenden grset{lichen
Bestimmungen ueber die Erwerbung und den Verlust der Staatsangehoerigkeit. Duisburg-Ruhrort,
1908.
Unite~ Nations: Laws Concerning Nationaliry- Unitcd Nations Legislative Series (United
Nations Publications No.: 1954, V. 1), New York, 1954 (United Nations Publications No. :
1959, V. 3) New York, 1959.
- Laws Concerning Nationality - Supplement-United Nations Legislative Series.

2. Work• on Nationality

Alvarez, Alejandro: La Nationaliti dans It Droit intemational Americain. Paris, 1907.

:~.r Ya~cov, N.: Dual Nationality. London, 1961.
BJsocchJ, Carlo: Acquisto e Perdita della Nazionalita. Milan, 1907.
Bourb?usson, E.: Traitl glnlral de Ia NationaliU. Paris, 1931. Supplhnent, 1938.
reunrg, G.: Staatenlosigkeit und Entkolonisierung. Berlin, 1974.
8Curlet~ Jacques, d e: NationaliU de.r personnes physiques et dlcolonisation. Brussels, 1975.
albaJrac, Gaston: Traitl de Ia Nationaliti de Ia Femme mariee. Paris, 1926.
Cockburn, Alexander: Nationaliry. London, 1869.
314 Bibliography

Cogordan, George: La NationaliU au Point de Vue des Rapports intemationaux. 2nd edition. Paris
1890. ,
Colancri, Andre: De la Condition des "Sans-Patrie". Paris, 1932.
Daly, C. P.: Naturalization: Embracing the Past History of the Subject and the Present State of the Law in
the United States, Great Britain, British Colonies, France, Belgium, Holland, Sweden, etc. New York
1860. ,
Dutoit, Bernard: La nationaliU de La femme mariee, vol. I, Europe. Geneva, 1973.
Dyne, Frederick van: Citizenship of the United States. Rochester (N.Y.), 1904.
- -A Treatise on the Law of Naturalization of the United States. Washington, 1907.
Ehrlich, Kurt: ''Ueber Staatsangehoerigkeit. Zugleich ein Beitrag zur Theorie des Oeffentlich-
Rechtlichen Vertrages und der Subjektiven Ocffentlichen Rechte" (Aarau, 1930), in ,(iircher
Beitraege zur Rechtswissenschajt, New Series, Part 22.
Engestrom, E. Maxson: Les Changements de NationaliU d'apres les TraiUs de Paix de 1919-1920.
Paris, 1923.
Gargas, Sigismund: " Die Staatenlosen" (Leyden, 1928), in Bibliotheca Visseriana, vol. VI I. •
Gettys, Luella: The Law of Citizenship in the United States. Chicago, 1934.
Giese, Hannes: Staatsangehhiirigkeitsrechtliche Bestimmungen in volkemchtlichen Vereinbarun~n
Grossbritanniens. Frankfurt am Main, 1976.
Guggenheim, Paul: "Staatsangehoerigkeit" (Geneva, 1941-43), in Schweiz. Juristische Kartothek,
Nos. 38, 40, 59, 102, 138, 138a.
Hegi, Rene: La NationaliU de la Femme Mariie. Lausanne, 1954.
Herbert, Sydney: Nationality and its Problems. London, 1920.
lnstituto Argentino de Derecho lnternacional: La Nacionalidad en las Republicas Americanas.
Buenos Aires, 1936.
Inter-American Juridical Committee: Report and Draft Convention on the Nationality and Status of
Stateless Persons. Department oflnternational Law, Pan-American Union, Washington, 1952.
International Union for Child Welfare: Stateless Children. Revised edition. Geneva, 1950.
Jellinek, Hans Jorg: Der Automatische Erwerb und Verlust der Staatsangehoerigkeit durch
Voe/kerrechtliche Vorgaenge. Berlin-Detmold-Koeln, 1951.
Jones, Mervyn J .: British Nationality Law. Oxford, 1956.
Joseph, Bernard: Nationality, its Nature and Problems. London, 1929.
Joseph, Cuthbert: Diplomatic Protection and Nationality- The Commonwealth ofNations. Gateshead,
1968.
Kiefe, R.: La NationaliU des Personnes dans l' Empire Britannique. Paris, 1926.
Lapenna, Ernesto: La cittadinan<;a nel diritto intema<;ionale gennale (Publications of the Institute
of International Law of the University of Rome No. 8). Milan, 1966.
Lapradelle, Albert Gouffre de: De Ia Nationalitl d'Origine (Droit compare-Droit interne-
Droit international). Paris, 1893.
Lehr, Ernest: La Nationaliti dans les principaux Etats du Globe. Paris, 1909.
Leon, Remigio Romero: La Nacionalidad en las Relaciones lnternacionales. Cuenca, 1913.
Leske, Franz, and Loewenfeld, W.: Das Recht der Staatsangehoerigkeit der Europaeischen und der
Aussereuropaeischen Staaten. Vol. VII of Die Rechtsverfolgung im lnternationalen Verkehr. Berlin,
1940.
Lessing, H .: Das Recht der Staatsangehoerigkeit und die Aberkennung der Staatsangehoerigkeit zu Straj-
und Sicherungszwecken (Leyden, 1937), in Bibliotheca Visseriana, vol. XII.
Lessing, Hans (Lessing,Juan): "Los Momentos de Connexion en el Derecho de Nacionalidad"
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- - "La Obligacion Internacional de Admission de Apatridas" in Revista Argentina de Derecho
/nternacional, Nos. 3 and 4 {1944).
- - Problemas del Derecho de N acionalidad ( Proposiciones de Reforma) . Buenos Aires, 1946.
Makarov, Alexander M .: Allgemeine Lehren des Staatsangehiirigkeitsrechts. 2nd edition. Stuttgart,
1962.
Maury, Jacques: "Nationali te (Theorie generale et Droit fran~ais)" (Paris, 1931 ). Extract from
Repertoire de Droit international.
Morse, Alexander Porter: A Treatise on Citizenship. Boston, 1881.
Otten, Josef: Der Verzicht auf die Staatsangehoerigkeit. Eine Reclztsvergleichende Studie. Duesseldorf,
1934.
 111
Parr , Cli r · atwnahg and (.'itr~mtlllp lAws of thr (:ommonrurllth. Lrmrl()ll, 1 ~57
JJniHh atronrzlrt.J. l .oudou, I 1J5 1.
Pfriffrr, Chri~~~~~~~ : Das Problm~ d~r ~'JfrA~wm Stantranghouigknt im Vorlkmrrllt. J.,.ip.tig, 11f11.
Piggol l, Franc •~ I .: ntwnalrty rncludmg };aturalr~atron and £n~l11h Lnw on tht flrgh Sta r and bryond
thr Rralm. 2 vol~. Lo ud on , I 1.107.
Q.uadri, Ak~'a udra : I A f:iltadznan~a rlt/la /Jonna Maritala. Perugia- V I' Ot'Zia, 192'1.
Saba, Jran S.: /.'Islam t l Ia Natronalrti. Pari ~. 1'13 1.
Sau,rr-llall, Grnrge~ .Jran : lA Nntinnalitl dr Ia Frmmt Marik Zurir h, 1933.
_ /.11 Nationalitl en Droit Suisu, Dmit Fldlral rtvui, Droit Cantonal, Droit internatw.nal. lit·rnc,
192 1.
Srhmid1 , Horst Akxaucirr: Staat.wngthlirigktitnvrch.u/ btl Staatm.suk~ession . Di.,scrtation. Muui h,
19iJ6.
Srhwart7., Gustav: "Das R echt dr·r Staatsaugehocrigkci t in Ot>utschland und im Au, la nd seit
1914 ·· (Brrlin, 1925), in RrchtJvtr;,leichmdt Abhandlunxen, vol. I.
Srott ,.J. B., Ifill, 0 . V ., and Hunt, C .: Report on the Subjtet oJCiti{truhip, Expatriation and Protection
Abroad. U.S. H o u'\e of Rc prcsrntativcs Documenr No. 326- 59rh Congrcs.,, 2nd s~sion .
Washington, 1906.
Scott, .James Brown, and Maurtua, Victor M .: Obstroations on Nationality. Nt>w York, 1930.
Srcklcr-H udson, Cat ht·ryn : Stattlessnm, with Spuial rifermce to the United Statts. Washington,
1934.
Sirbcr, .Jakob: Das StaatJbuergtrricht im lnttrnationalen Verkehr, seine Erwerhung und sein Ver/u.st. 2
vols. Berne, 1907.
Standacrl, R.: La Nationalili Belgt. Lutlrr, 1934.
Stoicesco, C . J.: Etude sur La Naturalisation en Droit Romain, en Droit civil, tt dans It Droit du Gens.
1 Paris, 1876.

Suffrian, Hans: /)ie Rechtsstrllung dtr Htimatlosm . Hamburg, 1925.

Thao, Trinh Dinh: De /'Influence du Marriage sur Ia Nationalili rk Ia Ftmme. Aix-en-Provrnce,
1929.
Triepcl, Heinrich; " Virtucllc Staatsangchocrigkcit" (Berlin, 1921 ), in Abhandlungrn · ~um
Friedtnsvmag, No. I.
United Nations (D epartment of Social Affairs) : A Study of Statelessness. Lake Success- New
York, 1949. (U.N. Publications No.: 1949. XIV. 2 ).
United Nations- Commission on the Status of Women :Nationaliry of Marrud Women (R eport
submiu<.'Ci hy the Secretary-General). New York, 1950. (U.N. Publications No.: 1950.
IV. 12).
Valhy, .Jules: LA NationaliU Franfaise. Commentairt de Ia Loi du /0 aot1t, 1927. Paris, 1927.
Van Piuius, E. F. W. Gey: Nationaliry within the British Commonwealth of Nations. London, 1930.
Waltz, Waldo Emerson: The Nationa/iry of Married Womtn. A Study of Domestic Policies and
International Ltgislation. Urbana (Ill. ), 1937.
Wcis, Paul: The Undermining of the Nationaliry Concept by German Law. (Mimeographed) . Lo ndon,
1943.
W~is, Paul, and Graupn<'r, R .: The Problem of Statelessness. London, 1944.
~VIstrand, Tor Hugo: La Diplomatie et Its Conjlits dt Nationalilis. Paris, 1923.
Zatzcpinr, A.: l..e droit de Ia nationa/iU des Ripubliquesfrancophones d'Ajrique et de Madagascar. Paris,
1963.
Zcballos, E. S.: La NationaliU au Point de Vue de Ia Ugislation comparee et du Droit privlhumain. Paris,
1914.

3. Other Publications

Adler, Cyrus, and Margalith, Aaron M.: With Firmness in the Right. American Diplomatic Action
Affecting ]ews, 1840-/945. New York, 1946.
Baty, Thomas: International Law. London, 1930.
Berber, Friedrich: Lehrbuch des Viilkerrrchts. 2nd edition, 3 vols. Munich, 1969- 1977.
Blackstone, Sir William : Commentaries on the /..aws of England. 4 vols. in 2. Philaddphia, 1859.
 316 Bibliography

Bluntschli, Johann Kaspar: Das Moderne Voelkerrecht der Civilisierten Staaten als Rechtsbuch
dargestellt. 3rd edition. Noerdlingen, 1878.
Borchard, Edwin M.: The Diplomatic Protection of Citizens Abroad. New York, 1922.
Brierly, James Leslie: The Law of Nations. An Introduction to the International Law of Peace.
4th edition. Oxford, 1949.
British Institute of International and Comparative Law: British International Law Cases, 9 vols.
London, New York, 1964-1973.
Brownlie, Ian: Principles of International Law. 2nd edition. Oxford, 1973.
Burckhardt, Walter: Die Organisation der Rechtsgemeinschajt. Basle, 1927.
Carnegie Endowment for International Peace: The Hague Court Reports. Edited, with an
Introduction, by James Brown Scott. New York, 1916.
- - The International Conferences of American States, 1889-1928. Edited, with an Introduction, by
James Brown Scott. New York, 1931. First Supplement, 1933-1940. Washington, 1940.
Cheng, Bin: General Principles of Law, as Applied by International Courts and Tribunals. London,
1953.
Clercq, Alexander Jehan Henry de: Receuil des Traites de la France. 23 vols. Paris, 1880-1917.
Delessert, Charles: L'Etablissement et le Sljour des Etrangers au Point de Vue juridique et politique.
Lausanne, 1924.
Dicey, A. V.: The Conflict of Laws. 5th edition, by A. Berriedale Keith. London, 1932. *
Domke, Martin: Trading with the Enemy in World War II. New York, 1943. .
Fauchille, Paul: Traiti de Droit international public. 8th edition of Bonfils' Manuel de Droit
international public. Paris: Vol. I, Part I, 1922; Vol. I, Part 2, 1925; Vol. I, Part 3, 1926;
Vol. II, 1921.
Feller, A. H.: The Mexican Claims Commissions, 1923-1934. New York, 1935.
Feller, A. H., and Hudson, M. 0.: A Collection of the Diplomatic and Consular Laws and Regulations,
2 vols. Washington, 1933.
I:iore, Pasquale: Diritto Internazionale Privato. 5 vols. 4th edition. Turin, 1904-1913.
Goodwin-Gill, Guy S. : International Law and the Movement of Persons between States. Oxford,
1978.
Gsovski, Vladimir: Soviet Civil Law. 2 vols. Ann Arbor (Ill.), 1949.
Guggenheim, Paul: Lehrbuch des Voelkerrechts unter Beruecksichtigung der Internationalen und
Schweizerischen Praxis. 2 vols. Basle, 1948.
Hackworth, Green Haywood: Digest of International Law. 7 vols. Washington, 1940-1943.
Hall, William Edward: The Foreign Powers and Jurisdiction of the British Crown. Oxford, 1894.
- - A Treatise on International Law. 8th edition, by Pearce Higgins. Oxford, 1924.
Halleck, Henri Wager: International Law, or Rules Regulating the Intercourse of States in Peace and
War. 2 vols. 4th English edition, by Baker. London, 1908.
Heilborn, Paul: Das Systent des Voelkerrechts entwickelt aus den voelkerrechtlichen Begriffen. Berlin,
1896.
Heinrichs, A.: Deutsche Niederlassungsvertraege und Uebernahmsabkommen. Berlin, 1908.
Hold-Ferneck, Alexander : Lehrbuch des Voelkerrechts. 2 vols. Leipzig: Vol. I, 1930; Vol. II, 1932.
Holtzendorff, Franz Joachim Wilhelm Philipp von: Handbuch des Voelkerrechts. 4 vols. Berlin,
1885- 1889.
Hudson, Manley 0.: International Legislation. 7 vols. Washington, 1931- 1941.
Hurst, Sir Cecil J. B.: International Law- The Collected Papers. London, 1953.
Hyde, Charles Cheney: International Law, Chiefly as Interpreted and Applied by the United States.
3 vols. 2nd revised edition. Boston, 1945.
International Committee of the Red Cross: The Geneva Conventions of 12 August 1949. Geneva,
1949.
J ellinek, Georg: Das System der Subjektiven oifftnlichen Rechte. 2nd edition. Tuebingen, 1905.
Kaeckenbeeck, Georges: The International Experiment of Upper Silesia. London-New York-
Toronto, 1942.
Keith, Arthur Berriedale: The Theory of State Succession. London, 1907.

•This edition contains a chapter on British Nationality which is omitted from subsequent editions.
Bibliogmph] 317

"d~en . H.llls: Tht Lmc of tlu L"nittd Nati~ns. London. 1950.

_ P,inoplu of Jnttrnatwnal Law. New "\ ork, 1952.
" 'nwitJ. ~tilton R .: Ci~i/ ~ights in l"!"'agrati~n. New York, 1953.
" unz. jflscf Lorenz: ~~~ J CKiktrrtchtl!_c"! Optron. 2 \:ols. Breslau, 1925-1928.
L.tpraddk. A. G_ouflre de: and Points, N. : Rtcuttl des Arhitragts inttrnationaux. 2 vols. Paris:
Vol. 1. 1905: \i ol. II. 1924.
L.wtcrpacht. H .: Pri1•ate Law Sources and Analogies of International Law. London, 1927.
_ Tht Function of Law in the International Communiry. Oxford, 1933.
_ J11urnaJio,.al Law and Human Rights. London, 1950.
~kDondl. Eleatlorc C .: Digest of United Statts Practice in International Law 1975. Washington,
l9i6.
Mc~.Ur. Lord :\mold Duncan: International Law Opinions, 3 vols. Cambridge, 1956.
_ Thf ugal E.ffrrts of War. 3rd edition. Cambridge, 1948.
- The Law of Treaties, Oxford, 1938.
~lartcns. Gco. Fred. de: Rtcutil de Traitb, ttc. 2nd edition. 8 vols. Goettingen, 1791-1801 ;
.\ oul'fOu Rrl1lril, etc. 16 vols. Goettingen, 1817- 1842; Nouveaux Supplimmts au Recutil de Traitls,
f tc. 3 vols. Goettingen, 1839-1842; Nouveau Rtcutil Giniral, etc. QQeuingen, 1843-1875; Nouveau
RtC1leil Glniral, Deuxiime ShU, 35 vols., 1876- 1908; vols. 1- 21 , Goettingen, vols. 22- 35,
Leipzig; .Nouuau Recueil Gbltral, Troisilme ShU, vol. I ( 1909) to date, Leipzig.
Moore, J ohn Bassett: History and Digest of the International Arbitrations to which the United Statts has
htOI a Party, 6 vols. Washington, 1898.
- -A D1gest of International Law. 8 vols. Washington, 1906.
Neumann Hugo: lnttrnationales Privatrtcht in Form tines Gestt<.entwurfts. Berlin, 1896.
Niemeyer, Thomas: Das lnttrnationalt Privatrtcht des BuergeTlichm Gmt<.buches. Berlin, 1901.
O'Conell, D. P.: Tht Law of State Succession. Cambridge, 1956.
Oppenheim, L. V.: lntt.rnational Law. vol. I, 8th edition, 1955, vol. II, 7th edition, 1952, edited
by H . Lauterpacht. London, New York, Toronto.
Parry, Clive (editor, consulting editor Sir Gerald Fitzmaurice): British Digest of International Law,
9 vols. London, 1965-1967.
Peaslee, Amos jenkins: Constitutions of Nations. 4 vols. Concord (New Hampshire), 1965.
Phillimore, Sir Robert: Commentaries upon International Law. 4 vols. 3rd edition. London,
1877- 1888.
Pillet, Antoine: Trait/ pratique de Droit international privl. 2 vols. Grenoble. 1923-1924.
Plender, Richard: International Migration Law (Law and Population Series No.2). Leiden, 1972.
Pradier-Fodere, Paul Louis Emest: Trait/ de Droit international public. 9 vols. Paris, 1885-1906.
Ralston, Jackson H .: Venezuelan Arbitrations of 1903. Washington, 1904.
--Report of tht Funck- Vtnt<.uelan Mixed Claims Commission of 1902. Washington, 1906.
- - Th Law and Procedure of International Tribunals. Revised edition. Stanford (Cal.), 1926.
- - Suppltmmt to 1926 revised edition of Tht Law and Procedure of International Tribunals.
Stanford (Cal.), 1936.
Reale, Egidio: Manuel pratique des Passeports. Paris, 1931.
- Le Rigime des Passeports et La SocitU des Nations. Paris, 1931.
Robinson, Jacob : Human Rights and Fundamental Freedoms in the Charter of the United Nations. New
York, 1946.
Sandifer, Durward U.: Evidence before International Tribunals. R evised edition. Charlottesville,
. 1975.
Scelle, G~rges: Prtcis de Droit des Gens: Principes et Systematique. 2 vo1s. Paris, 1932-1934.
Schuecking, Walter Max Adrian: Das Werk vom Haag. Munich, 1914.
Schwarzenberger, Georg: Das Voelkerbundmandatfuer Palaestina. Stuttgart, 1929.
- lnttrnational Law, 3 vols. Vol. I: International Law as Applied by International Courts and
T ribllllllls. 3rd edition. London, 1957.
--:- A Manual of International Law. 3rd edition. London, 1952.
Smith, Herbert Arthur: Great Britain and tht Law ofNations. 2 vols. London: Vol. I, 1932; Vol. II,
1935.
Stier Somlo, Fritz (Editor): Handbuch des Voelkmechts. Stuttgart, 1920-1928.
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Stowell, Ellery Cory: International Law. A Restatement of Principles in Conformity with Actual Practice.
New York, 193 1.
Stoyanovsky, S.: The MandateforPalestine. London, 1928.
Strupp, Karl : Woerterbuch des Voelkerrechts und der Diplomatie. 3 vols. Berlin, 1924- 1929.
Stuyt, A. M .: Survey of International Arbitrations, 1784-1938. The Hague, 1938.
- - The General Principles of Law, as Applied by International Tribunals on Attribution and Exercise of
Stale Jurisdiction. The Hague, 1946.
T aracouzio, T. A.: The Soviet Union and International Law. New York, 1935.
Turac k, Daniel C.: The Passport in International Law. Lexington, 1972.
U nited Nations: Repertory of Practice of United Nations Organs. 5 vols and Index (Publication
No. 55. V. 2). New York, 1955.
Supplement No. I (Publication No. 57 V. 4) 2 vols. New York, 1957.
Supplement No.2 (Publication No. 64. V. 5- 7) 3 vols. New York, 1963, 1964.
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1972.
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Verdross, Alfred von : Viilkerrecht. 5th edition. Vienna, 1964.
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(jurisprudence de Ia Commission Franco-Mexicaine des R eclamations, 1924-1932.) Paris,
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- - International Law in Historical Perspective. 8 vols., Leiden, 1968-1976 (vol. 5 Nationality and
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Wolff, Martin: /nternationales Privatrecht. Berlin, 1933.

4. Literature on the Nottebohm Case

Affaire Nottebohm. Arret de Ia Cour. (Revue des Nations Unies, 4me annee, n° 4, 1955, avril,
pp. 87- 90.)
Affaire Nottebohm. Conclusions des parties. (Revue des Nations Unies, 4 me annee, n° 3, 1955,
mars, pp. 87-89.)
Affaire Nottebohm. Ouverture de Ia procedure orale. (Revue des Nations Unies, 4m~ annee,
no. 1, 1955, janvier, pp. 69- 70.)
Affaire Nottebohm. Procedure orale. (Revue des Nations Unies, 4 me annee, n° 2, 1955, fevrier,
pp. 66-67.)
Agarwa1a, B. R.: " Diplomatic Protection of Nationals Abroad in the Light of recent decisions",
in Contributions to Synthetic Jurisprudence, (Bombay, 1962, pp. 144- 177). [Mainly on the
Advisory Opinion regarding the R eparation for Injuries Suffered in the Service of the United
Nations and on the Judgment in the Nottebohm Case (2nd phase). ]
Aguilar Navarro, Mariano: " Reg1amentaci6n internacional del d erecho de Ia naciona1idad" in
Revista espanola de derecho internacional, Vol. X , num. 3, 1957, pp. 333- 372. [Caso Nottebohm,
pp. 337, 345, 348, 357, 364.]
Bastid, Suzanne: "L'affaire Nottebohm devant Ia Cour internationale de Justice" in Revue
critique de droit intemational privi, vol. XLV, no. 4, 1956, October- December, pp. 607- 633.
 31~)
. J • Tc.•uria l'kkt\WIIO~c.·i oh watdstwa jrdllu'<tki we.: wsl>(kzc .
1\ Jt'li ll~ kI , . • 11 · : . . , . . ' I II Ill !)HIWU'
r . ·, j, ,u:trodowym . U ' ~~· " ·' lll .ll~IIH S I ~. w ro~ u M· ~dt )•m• roduwq.to T rybuualu
~~~~~~ ,·c'\lliwosci w spr~l\ ll' Now ·hohma . ( l'au:;two 1 P1.two, X III ~ ru 111 h. n" l 2 l!)'11\
spr·'"' l~'l. ) , , , .
l)c•f!'lllhl'r. PP· lUll ~ ll . . . .
. G B. (::::: C.trlo~ t ;:11nn Hauer): C:•' o No~ tt· buhm . l.u:dttt·mll· m m~ . (,u ttema la iu Rrui.~tn dr Ia
( .. •·.• In nuntrmaltrm dr /Jrr rdw lllli'r11flfltl11fll, llO . '2. I !)55, pp. I'J. I 12:).
111 1
··I·' ar"' F. ck·": J.n nntumalrtl,
· · I11 .douMr n~twrltl I'11I r l la Sllpra-natwrralitl.
· Rcr ul·il d<·s cours [prnfessl·s
C.t~trol']. f' raMmic <k droit 11\t err~:tttnnal, l.n ll.tyc , Hl6 1: I """ Vol. 10'}. of th<· collc·c·tt'o
•'I 5'11.,, I):H ). [Ail:tire Nc>l ll' I10 Iun, pp. :>r. 7hI .>114
r.
.1 II,

PP· • ,· • " Diplomnt ir protection of natio na ls abroad" in '/ ht Solicitor vol '''' 110 7 1nr.1r..
(:ht•ng. 11 111 • • • " " · • • :J , J,
. Jul\ pp. 178. IHO, ~ H3.. . .. . . . .
D~ Visscher, Pa ul: " L Allan·<· Nott<·bo.l~m 111 Rtvue gintrale dr drort mternllllOTial public, vul. GO,
nc'. 2. 1!)56. April-June, pp. 2~8-2()6 .
Ojahanbani, M .: L' a.ffairr Nottrbohm rt l'arrrl de Ia Cour i11tmwtio,ale de ]usticr. These, Paris, 195 7.
~limrcl. . . . .
Durante, Frnnrcsco : "' L acct•rta m cnto della nazumahta della domanda da parte rlcl giudicc
internazim\a le nella pro tt•:r.io nc diplomatica ' ' in Annali di diritto inttrna~ionale, 1953, vol. XI ,
PP· 53- 78. (Aflai~e Nottcbohm, pp .. 62 -;?~· 68- 72, 75,. 76). )
Eagleton, Clyde: "Ferment o r rcvoluuon? rn Tht Ammcan J ournal tif lntr.rnatiorwl Law, vol.
50. no. 4, 1956, O cto ber, pp. 9 16- 921. [On Nottcbohm Case, pp. 9 19- 920. )
''EI derecho intcrnacional y Ia natura lizario n . La Cort e fltlla en cl caso de Lcichtenstein vs.
Guatemala en favor de esle pais" in Revista de las N acionts Unidas, vol. I X, no. 239, 1955,
June, pp. 69- 71.
E\'rigcnis, Dimitrios J.: At1iJT'J'TPCDU 1. EVPT'I'Ytllfl A't8v~~ litKO:COII KO:L IOcryelltCCC. 'H
b:ndq>o:a'~ Toii Ac.e6vov~ AtKO:OTT'JPcDU ~"'' 'Ti)~ lnro8totw~ Nottcbohm . - Droit inttrMtional
tl nntionalitl. L'arrlt dt Ia Cour iTittrnalionale dt Ju.rtict sur l'lli faire NoUthohm. Ehooo:AOII,KT'J ,
1958. 8°, 34 pages. ( 'Av~t.lwwo'~ h 'TOV (('ApiJtvmrou AOU)) 1958, H I ew .)
Giurisprudenza interna lio nalc. Scnt enza ncll'alfare Nottebohm (eccezione preliminare.)
(Resume de I' Arret en fra nc;ais] in ( Riuista di Diritto interna~ionale, vol. X X XV I I, fasc. I, 1954,
pp. 92- 97).
Glazer,.). H.: ''Affaire No ttebohm , Liechtenstein v. Guatemala. A critique' ' in Georgetown Law
Journal, vol. 44, 1956, Janua ry, pp. 3 13- 325.
Goldschmidt, Hans: " R ecent applications of d om estic nationality laws by international
tribunals" in Fordham Law Revirw, 1959- 60, Winter, pp. 689- 736. [Inter alia on Nottcbohm
Case. )
G~lsong, Hcribert : "Nationalite et protection diplomatique. A propos d e !'affaire Nottebohm"
10 Jahrbuch fur intemationales Recht, Band 8, H eft 3, 1959, M ay, pp. 258- 266.

Grawitz~ Madeleine: "Cour internationa le d e Just ice. Affaire Not tcbohm" in Annuaire franf(lis
de droll inttrnational, 1955, pp. 262- 277.
Grossen, J acques-Michel: Nationa lite et pro tection diplo matique " in Ius et Lex. Festgabe fiir
M~x Gut~willtr, 1959, pp. 489-502 . [Sur !'Affaire Nottebo hm, arret du 6 avril 1955. )
Harns, David : "The Pro tection of Companies in Interna tional Law in the Light of the
Nottebohm Case" in Tlu International and Comparative Law Q,uartrrfy, vol. 18, no. 2, 1969, April,
p. 257- 317.
International Court ofjustice. "Nottebohm Case (Liechtenstein v. Gua temala)". lnter-American
.. ?uridica~ rearbook, 1955-1 957, pp. 135- 138.
~te~nattonal law applied to natura lization . Liechtenstein v. Guatemala". United Nations
" I rozew, ~ol. I, no. 12, 1955, June, pp. 64-66.
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1 ~;~n, D. ~ N .: "The natio nality of ships" in Tlu Indian Year Book of International Affairs,
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...
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Lissitzyn, Oliver J.: "Nottebohm Case. (Liechtenstein v. Guatemala.)" [Digested and
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Loewenfeld, Erwin H.: "Der Fall Nottebohm Ein Beitrag zur Rechtsprechung des
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387-410, j 0 pp. 479-481.
- - "Nationality and the right of protection in international public law." in The Grotius
Society, Transactions/or the year 1956, London, 1957, pp. 5-22.
Macheritas, Ch.: "L'arret Nottebohm et le probh~me de Ia position du juge international a
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Magarasevic, Aleksandar: Spor Nottebohm izmedu Lihterutajna i Gvatemale pred Medun-
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Makarov, Alexander N.: "Das Urteil des lnternationalen Gerichtshofes im Fall Nottebohm"
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Marinho, Ilmar Penna: Tratado sobre a nacionalidade. IV: Conflitos de leis em materia de
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• .
]uriduasy .
Soaales -
de Guatemala, Epoca o
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La Facu aWilhelm: "Betrac h tungen zum Begn·rr d er S taatsange hong .. . ke1t
., m
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Wenglle_rh, d staatsrechtliche Abhandkungen. Festschrift Walter Schiitz.el, pp. 545-558. [Nottebohm,
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W~rtley,t. · l;·et [e droit. Recueil d'etudes en l'honneur de H. Egawa, 1961, pp. 217-223.
znterna wna
 INDEX

Aaland Islands, question of, 68, 73

Abuse of Discretion. Su Abuse of Rights.
Abuse of Rights, 47, 87
conferment of nationality as, 113
denationalisation as, 123, 126
Act of State, 19n.
Active Nationality. See Effective Nationality.
Admission, Duty of.
of former nationals, 53-59, 12!}--6, 242
of nationals, 45--49, 50, 59, 123, 126, 239
United Kingdom immigration legislation and, 49-53
Adoption, acquisition of nationality by, 99
Alien Enemy. See Enemy Alien.
Allegiance,
doctrine of perpetual, 128
double nationality and, 194, 195
nationality and, 4, 13, 30-32
oath of, 41
passport and, 195, 196, 225, 227
permanent, and nationality, 43
release from, I00
Royal Commission on Naturalisation and, 128
transfer of, 105
Algeria
independence by treaty of, 153
nationality of, 154
option of nationality, 158
Ambassadors. See Diplomatic Representatives.
Annexation,
effect on nationality, 136-44
total and partial, 145n.
See also Austria; Burma; Cyprus; Danzig; Hanover.
Apatride. See Statelessness.
Apolide. See Statelessness.
Argentina, conferment of nationality by operation of law, 1949-1954, 108-9
Armenians, status in First World War 12n.
Austria, '
incorporation into Germany, effect of, 136, 142, 143, 150-2
"Ressortissant of," 7-8
See also Austro-Hungarian Monarchy.
Austn:Hungarian Monarchy,
diSmemberment of, 138, 254
nationality in, 14
 324 Index
Bancroft Treaties, 42, 131-2, 191, 21 I, 247
Banishment, 45-46, 1I 7
Basdevant on effective nationality, 196
Belligerent, 10, 11, 198, 223
occupation, I 36
protection of nationals of, 39
Bessarabia, inhabitants of, nationality of, 153
"Black Lists," 10, 180
Boer War, 1899-1902 ... 139, 140- 1, 143, 145n.
Bolivia, nationality of married women in laws of, 127
Bona Fides. See Good Faith.
Borchard
on impeachment of certificates of naturalisation, 218
on passports and consular certificates, 205
on protection, 33, 34, 38
Brazil, conferment of nationality by operation of law, 1889-1891...103-4, 106-7
British Commonwealth of Nations, nationality in, 3, 15-18
British Protected Persons, 18-20, 40, 52
passports issued to, 19, 227
Brown, P. M., on Cardenas doctrine, 60
Brownlie, on
doctrine of effective link, 197
functional nationality, II
nationality and international law, 85, 197
Burma,
annexation of, effect of, 139
option of nationality, 158
secession of, effect of, 153
Bustamente Code, 138, 191

Calvo Clause, 38
Capitulations, 39, 41, 231
Cardenas Doctrine, 60, 239
Cession, 23, 136
effect of, on nationality, 139, 145, 152-3, 243
option, in case of, 156
plebiscite, in case of. 160
Cicero on citizenship, 110
Citizenship,
dec_Jarat~on of intention of acquiring, 40--43
natJOnahty and, 4-7, 60
Clausula Rebus Sic Stantibus, 72
Coke, o~ allegiance, 30, 80, 128n.
Com~st~e States, nationality in, 13-IS
Commtsston lnternationale de l'Etat c· .l 167
Contied erat10n,
. nationality in, 14 IVt'
Conf~rence for the Codification of International Law 1930.
ee Hague Codification Conference. '
Conference on p · I .
Co ft. nvate nternatlOnal Law 1928 191
n tct of Laws, 169, 197-8 ' ···
nationality ~ules and, 90, 161, 188, 197-8
Co [.roof of nattonality and, 204
n tct Rules of Nationality, 90 161-203 244
Consula C ·fi ' •
r ertt cates of Registration 91 205 207
probative value of, 214, 245 ' ' • , 215, 230--36
Index 325

Consuls, · li b B . . h 233
certification of n~uona ty y nus '
tection of nationals by, 33
pro non-nationals by, 39
visa-ing of passports by, 223
Cordova, on . .
nationality and mtemauonal law, 86--7
Council of Europe, 52, 191, 251
European Com~ion of Human Rights, 51
Committee of Muusters on
African Asians, 52
nationality of spouses, 98
Cuba, status of person domiciled in, 70-1
Cyprus, ·
annexauon, ·
effect of, on nauona 1·tty, 141 - 2
decolonisation,
option of nationality under treaty, 158-9
status of inhabitants of, 9
Czechoslovakia,
denationalisation measures, 120
Hungary, exchange of populations with, 158
Su also Expulsion; Sudeten Territories.

Danzig,
annexation by Germany, 143
protection of citizens of, 40, 43n.
DebtllaJio, 136
Declaration of Alienage, 80, 11 7, 158, 194
Declaration of Intention of acquiring citizenship, 40-3
Decolonisation, 136, 153-56
acquisition and loss of nationality by, 153--6
option of nationality and, 158-9
statelessness, in case of, 153
Denationalisation, 117-27,242-3
enemy aliens, of, 80, 121- 2
grounds for, 118, 118-20
mass, 119-20, 242
naturalised persons, of, 118, 119, 231
non-recognition of, 120, 121-3
operation of law, by, 116, 118, 119
penalty, as, ll>-16, 117-23
readmission and, 47, 48n., 54-59, 124-6, 242
statelessness and. See Statelessness.
Denaturalisation. Su Denationalisa tion.
Denizen, 7
Deportation. Su Expulsion.
Deprivation of Nationality. Su Denationalisation.
Dicey, on effect on nationality of territorial transfers 138 140
D~itroff, case of, 101 ' '
D~plornatic Protection. Su International Protection.
Diplomatic Representatives,
passports of, on outbreak of war, 223
protection of nationals by, 33, 190, 225--6
D . non-nationals by, 39-40
omaurt Resirvi. Set Domestic Jurisdiction.
326 Index

Domes tic Jurisdiction,

customs and tariffs, 66, 70, 78
exclusive, notion of, 65-70
exit and entry, 48, 224
immigration, 66, 70, 74
nationality and, 65-8, 69-70, 71-8, 142, 240, 252
conferment and withdrawal of, 135
conflict rules and, 198
decisions of municipal tribunals, 79-81
international law aspects of, 248, 253, 255-6
State practice and, 82-4
Domicile,
effect of acquisition of, on nationality, 96, 99
enemy character and, 10
plural nationality and, 173-4, 185, 186, 191, 196
protection and, 40--1, 42
transfer of territory and, 142, 146, 157
Double Nationality, Dual Nationality. See Plural Nationality.

Effective Nationality, 3n., 74, 171, 178, 184, 185, 201 , 202, 244
enemy alien, of, 13-4, 194
principle of, 170,171,172,182,196,197,201,203
test, of, 188, 203, 244
Egypt, status of nationals of, 9
Eire. Set Irish Free State.
Election. See Option.
Enemy Alien, 9-11, 198
denationalisation and, 142-3
statelessness and, 79, 121-3
Estoppel, 55n., 213
Evidence of Nationality. See Proof of Nationality.
Excess of Jurisdiction. See Ultra Vires.
Expatriation, 116
permission for, 129-131, 188, 199, 242, 244
presumption of, 117, 191, 231
right of, 42, 103, 128, 133-4
Expulsion of
aliens, 47-9, 52-8, 108, 242
Jews from Germany, 49
nationals, 45--6, 49

Fauchille, on option of nationality, 157

Federal State, nationality in, 14-5
Feller on
nationality of claims, 200
proof of nationality, 207, 210, 213
France,
enemy character, test of, in, 10
law regarding nationality in case of transfer of territory 141 154
proof of nationality in, 216 ' '
. See also ~ecolonisation; Mandated Territories; Option; Tunis.
Fnendly Enemies, 11

Germany,
Austria, incorporation of (1938), 136, 142, 143, 150-2
Danzig, annexation of (1939), 143
/ J.t \

(;f'rJll.Ul' - tr11urd
distinction bt't\\ Ct'n nation.tlit and citi1c-n~hip in, G. 4 ~1. til)
)r" =· tn-atnH'nt of. by. 49. 60. 11 9. 1 11
·na tionals. right of rt'Sidt"tKt in law or, ·I ~111.
to prott'Ction in law ul~ :H
passport, d<'finition of, in l.tw ol~ :t~O
Poland, ()('cupation of ( 19:l9), 136
Sud<'tcn tcrritorit-s, annc..x ation of ( 1938), 143
Yugoslavia, ()('cupation of ( 1940), 136
Su also Dimitrotl~ case of.
Good Faith ( BoM Fidu),
acquisition of new nationality, and, 13:3
consular registration and, 235
presumption of, 213
principle of, 55, 84

Hobtas Corpus, 79, 142, 143, 194

Hague Codification Conference, 1930... 26-28, 88, 161,246, 248
Committee of Experts, 28, 186n.
Committee on Nationality on-
acquisition of nationality, 96, 246-7
domestic jurisdiction as to nationality, 67
double nationality, 187-9
loss of nationality, 89, 129, 246-7
nature of nationality, 248-9
re-admission of former nationals, 55-7
Final Act, 57, 163, 188, 199
Preparatory Committee, on-
acquisition ofnationality, 107, liOn., 246-7
loss of nationality, 246-7
married women, 11 On.
municipal legislation, 82-3, 88n., 107
option, 188.
plural nationality, 186
re-admission of former nationals, 55
. State succession, 137n.
Hague Conference on Private International Law, 1928 ... 191
Hall, on
~ffect of conquest on nationality, 147
tmposition of nationality, 114--5
limitation of State jurisdiction, 85
Halleck, on nationality of inhabitants of transferred territory, 157
Hanover
'
annexation by Prussia, effect of, 142
status of persons born in, 13
Harvard Law Research {Draft Convention on Nationality), 5n., lOOn., 219
on acquisition of terri tory, 137-8
choice between jus soli and jus sanguinis, 95
conditions for naturalisation I 00
definition of nationality, 31 _:2
duty to re-admit former nationals 54
~abitual residence, 196. '
lmposed naturalisation 110 1 12
. succession, 145,' 147 '
parttal
power of State to determine its nationals, 86, 102
repudiation of nationality, 156
328 Index

HtitTUZtlos. Stt Statelessness.

Htimalrtcht, 7, 127, 138
"Honour and Vital Interests," 67, 249
Humanitarian intervention, 41
Hungary,
conferment of nationality by operation of law, 105
Czechoslovakia, exchange of populations with, 158
Stt also Austro-Hungarian Monarchy.
Hyde, on
duty of admission of nationals, 57
protection of non-nationals, 42

India, dispute with South Africa (1946), 68

lndigtruzt, 7
Indonesia, 158
decolonisation, option of nationality under treaty, 159
Institute for the Unification of Private Law, 251
Institute of International Law, on
duty of readmission, 54
effective nationality (case of Dr. Stoerk), 170-l, 175
loss of nationality, l24n.
nationality in international law, 86
Inter-American Council ofJurists, 250-1
Inter-American Juridical Committee. Stt Pan-American Union.
Inter-Governmental Committee on Refugees, 40
International Court ofJustice, Statute of, 85, 193, 244, 246
International Law Association, 97n., 124n.
International Law Commission,
Draft Conventions, 165, 251- 2, 254
Economic and Social Council and, 165
nationality and domestic jurisdiction, on, 252
work of, on nationality, 16H, 250, 251
International Protection, 32-44, 126, 239
consular registration and 231
nationals, of, 32-9, 44, 59, 162, 239
as element of concept of nationality, 32-9, 43
conflicts of, 44
compulsory conferment of nationality and, 104, 107
declaration before naturalisation, and, 40-3
naturalisation and, I0 I
nature of, 32-7, 43-4
right of, 32-4
withdrawal of, 44
non-nationals, of, 25, 39-43, 53
passport and. Su Passport.
pulral nationality and, 172, 186, 187, 189--90
Stt also Danzig; Refugees; Saar; Salvador; Seamen.
International Refugee Organisation, 40
International Union for Child Welfare, 96
Iraq. Set Mandated Territories.
Irish Free State,
citizens resident in United Kingdom, status of 146
citizens of, status in United Kingdom, 18 '
Israel,
acquisition of nationality by operation of law, 114-5, l40n.
conferment of na~onality on persons abroad, 101-2
Index 329

I :.rael-conlimmi
effect of establishment of State on nationalit\' l.Wn.
Italians, cases of the, 42 ·'
Italy,
Brazilian nationality laws, and, 104
denaturalisation measures, 119
national:. domiciled in United States, protection of, 42
Peace Treaty of 1947 with, nationality under, 157-8

J encken, case of, 38

Jennings, on genuineness of naturalisations, 180- 1
Jews,
German, 49, 60, 119, 121-3, 211
in Italy, 119
in Papal State, 5
Roumanian, 5, 8-9
Jus Sanguinis,
acquisition of nationality and, 4, 17, 100, 162-3
jus soli, and, 4, 74, 88, 95--6, 185, 198
plural nationality and, 185, 196
proofofnationality acquired by, 216, 217
statelessness and, 162, 166
Jus Soli,
acquisition ofnationality and, 4, 17, 100, 162-3
jus sanguinis, and, 74, 88, 95--6, 185, 198
plural nationality and, 185, 196
proof of nationality acquired by, 216, 217
statelessness and, 162, 166

Kaeckenbeeck, on international adjudication of nationality claims, 255

Keith, on State succession, 137
Kelsen, on
composite States, 14
nationality, 239--40
private international law, 198
Kenya, Africanisation, policy of, 49
Koszta, case of, 41, 42
Kunz, on
imposition of nationality, 103
limitation of State jurisdiction, 85
option, 156, 159, 160

Lapradelle, de, on
effective nationality, 196
role of international law in nationality, 86
Lauterpacht, on
domestic character of nationality law, 66
link concept, 20 I
statelessness, 252
Link Concept of Nationality, 176, 177, 178, 180, 183, 184, 186, 197,200, 241
League of Nations
Assembly, 66
Council, 87
domestic jurisdiction, claims of, and, 66, 71, 73
nationality questions, competence as to, 75
status of inhabitants of mandated territories and, 2Q-l
330 Index
League of Nations-continued
Covenant,
domestic jurisdiction clause in, 66-7, 69, 71, 73
mandates in, 20, 23n.
High Commissioner for Refugees, 40
Inter-governmental Advisory Committee on Refugees, 58
mandates, 20, 25
passports, action on, 224
protection by, 40
See also Hague Codification Conference.
Lebanon. Su Mandated Territories.
Legitimation, effect on nationality, 99, Ill
Leibholz, on abuse of discretion, 4 7, 54
Lessing, on
duty to admit former nationals, 44
protection of refugees, 58
Madrid, Conference of, on Morocco, 1880 ... l27-8n.
Makarov, on
effective nationality, 197
imposition of nationality, Ill
legal nature of nationality, 29-30
nationality in international law, 86
McNair, Lord, on nationality in international law, 86, 248-9
sovereignty over mandates, 22
Mandated Territories,
nationality in, 20-5, 240
passports in, 227
See also British Protected Persons.
Marriage, effect of, on nationality, 96-9, 110, 112, 116, 179
Mervyn Jones, on
British practice regarding option, 157
nationality in international law, 85-6
R. v. Ketter, 23
Mexico, conferment of nationality by operation of law, 1857-1866 ... 103, 105-6, 107
See also Cardenas Doctrine.
Moore, on
impeachment of certificates of naturalisation, 218
protection of non-nationals, 42

Nationality,
acquisition of,
at birth, 95-6
by acceptance of public office, 96, 110
by adoption, Ill
by acquisition of domicile, 96, 99
real property, 103, 112
effect on former nationality, 100, 107-8, 127- 34
by immigration, 99, 114-5
by marriage, 9fr.99, 112, 127, 173
by naturalisation. See Naturalisation.
by option. See Option.
by transfer of territory. See Transfer of Terri tory.
claims, of, 170, 185, 200-l, 206
claims to, international judicial control of 254-56
extra-territorial effect of, 60, 65, 239, 241 '
limitations on, 89, 101, 104, 246
Index 331

Nationality -continued
loss of nationality and, 125, 126
transfer of territory, on 149, 152, 153
formal concept of, 60, 239, 256
functions of, 53, 239-40, 256
generally recognised principles relating to, 65, 88, 120-l, 212, 246-7
restriction on sovereignty, as, 70
views of writers on, 85- 7
imposition of, 102-115, 242
sovereignty, and, 74
transfer of territory, on, 144, 149
violation of international law, as, 75
loss of,
by deprivation. See Denationalisation.
by expatriation. See Expatriation.
by expiration, 116
by release or renunciation, 54, 112, 116, 130
British nationality, of, 128, 199
meaning of, 116
passports and, 226, 229
State practice as to, 132-3
treaty provisions as to, 132-3
by change of sovereignty, 136, 145-49, 152, 153
minors, acquisition of, by, Ill
passports, relationship to, 56, 205, 224-30
renunciation of. See under " loss of," supra.
resumption of, 79-80, 96
sex, equality in, 97-8
See also Allegiance; Annexation; Cession; Citizenship; Conflict Rules of Nationality;
Declaration of Alienage; Decolonisation; Domesticjurisdiction; Effective Nationality;
Link Concept; Personal Jurisdiction; Plural Nationality; Proof of Nationality;
Protected Persons.
Naturalisation,
"Collective," 102, 112, 137, 193
change of sovereignty, on, 137, 149, 150
compulsory naturalisation, 150, 243
Havana Convention, 1928, on, 138
connotation of tenn; 96, 99, 241
conventions, 131-3, 191
foreign, effect of, 127-34, 244
fraudulent, evidence of, 218-20
obtaining of, 171 , 204, 209, 212, 213, 244
Inter-departmental Committee on, 107-8, 189n.
proof of
"best evidence" rule, 213-4
fraud and, 218-20, 222
naturalisation certificates as, 208-9
nature of evidence required, 210-12
State practice as to, 216
residence, requirement of, 100-101, 241
return to native country, effect of, on, 130, 131, 133, 191
Royal Commission on, 128
transfer of terri tory, effect of, 139
wartime, in, 8 1
Netherlands, distinction between nationals of, 5
See also Uecolonisation; Option.
 332 Index

Neutrals, 8, 10, 11, 80.

Non-retroactivity of Laws, principle of, 107.

"Occupatio Be/lica," 136

Oppenheim, on
conquest, 160
definition of nationality, 6
domestic nature of nationality law, 65-66
duty to readmit nationals, 50, 51
modes of acquisition of nationality, 96
loss of nationality, 116
nationality in mandated territories, 21
protection of nationals, 226
Option,
decolonisation, in case of, 158-9
emigration, of, 156
nationality, of,
plural nationality, in case of, 74, 75, 172
domicile and, 187
majority, on, 195
third State, in, 188
transfer of territory, in case of, 139, 156-60, 243
enemy aliens and, 143
Montevideo Convention, 1933, on, 15D-l
Orange Free State. See Boer War.

Palestine. See Israel; Mandated Territories.

Pan-American Union,
Inter-American Council of Jurists, 25D-l
Inter-American Juridical Committee, 109, 130, 149, 191, 250
on double nationality, 191
renunciation of nationality of origin, 130
tacit naturalisations, 109-10
transfer of territory, 149
Panhuys van, on nationality and international law, 86
Papal State, 5
Parry, on
British nationality, 140
imposition of nationality, Ill
Passport,
connotation of term, 222-3, 225, 230
evidence of nationality, as, 227-30, 245
non-nationals and, 224, 227
protection and, 44, 190, 205, 224-5
relationship to nationality, 56, 205, 224-30
See also British Protected Persons; Mandated Territories; Trust territories.
"Pa trials", 50
Personal Jurisdiction, 7, 239
imposition ofnationality and, 112
loss of nationality and, 126
protection inherent in, 44
sovereignty and, 65
transfer of terri tory and, 144, 14 7, 199
Personal Supremacy. See Personal Jurisdiction.
Personal Union, nationality in, 13
Pertinu:.a. See Heimatrecht.
Index 333

Peru,
conferment of nationality by operation of law, 103
nationality of married women in law of. 127
Philippines, status of inhabitants of, 5
Phillimore, Sir Robert, on
dual protection, 42-3
limitation of State jurisdiction, 85
Pillet, on double nationality, 196
Plebiscite, transfer of territory, on, 160
Plural Nationality, 8, 27, 169-203
British Nationality Act, 1948, and, 116n., 128
conflict rules for, 90, 161, 244
European Convention on, 191-2
passports and, 228-9
protection and, 44
regional intergovernmental organisations and, 250-1
transfer of territory, on 148, 150
See also Allegiance; Effective Nationality; International Protection; Natura1isation;
Option.
Poland,
Danzig citizens, protection of, by, 40, 43n.
denationalisation measures, 120
stateless persons, imposition of nationality on, 113-4
status of nationals in First World War, lin.
Politis, on effective nationality, 196
Potsdam Conference, 1945... 141
Private International Law. See Conflict of Laws.
Hague Conference on, 1928... 191
Proof of Nationality, 90-1, 204-36, 244-5
Protected Persons, 8, 39-40, 41
Set also British Protected Persons.
Protection. See International Protection.
Protectorate(s), 9, 23, 240
Set also British Protected Persons
Proteges, 8, 25, 39-40
Prussia, annexation of Hanover by, effect of, 142
Public Office, acceptance of, acquisition of nationality by, 96, 110
Public Order. See Public Policy.
Public Policy, 121 , 123

Real Union, nationality in, 13-4

Reconduction, 48, 125-6
duty of reception on, 46n.
German nationals, of, 49, 60
Rejoulement. See Reconduction.
Refugees, 12, 58
protection of, 25, 40, 44, 164
status of, 168, 202, 245
travel documents for, 224, 227
Repatriation Treaties, 57
Ressortissant, 7- 9
Roman Law ,
concept of nationality in, 4, 30, 117, 128
deprivation of citizenship in, 11 7
Roumania, acquisition of Bessarabia by, effect of, 153. See also J ews.
334 Index

Rundstein, on
effective nationality, 87, 197
general principles of law regarding nationality, 87, 197, 247
nationality in international law, 249
Saar, protection of inhabita.nts of, ~ .
Salvador, protection of foreign natiOnals m, 33
Schwarzenberger, on
proof of nationality, 207
stateless persons, 162
Scelle, on limitation of State jurisdiction, 85
Seamen, protection of, 39, 43
Secession. See Transfer of Territory.
South Africa, Union of,
dispute with India (1946), 68
mandate over South-West Africa, 23, 24n.
passport and nationality in law of, 230n.
South-West Mrica,
status of, 23, 24n.
inhabitants of, 22, 23
Soviet Union. See Union of Soviet Socialist Republics.
Staatsangehoerigkeit, 4, 6
Statelessness,
absolute (original) and relative (subsequent), 162
Convention on Reduction of, 124-5, 166-7, 247, 248, 254
de jure and defacto, 164, 202
denationalisation as a cause of, 117, 120-4, 169
elimination and reduction of, 115, 124-5, 163, 164-5, 166-7, 244-5
international action for, 163-67, 251-4
married women, as to, 97, 116
stateless persons,
imposition of nationality on, 113-5, 242, 248
naturalisation of, 10 I, 242
status of, 9, 162, 168-9, 245
travel documents for, 224, 227
transfer of territory as cause of, 144, 149, 242, 243
imputed nationality, 126-7
international action as to, 164
relative statelessness, 162
treaty provisions and, 144, 145n., 152n., 254
See also Decolonisation; Unprotected Persons.
State Succession. See Transfer of Territory.
Stoerk, Dr., case of, 170-1 175
Subject, synonymous with '"National" 3 4 5
Subjugation. See Transfer ofTerrit~ry.' '
Sudeten Territories, status of inhabitants 143
Sujets. Mixtes. See Plural Nationality. '
Swazlland, status of inhabitants, 19n.
Switzerland,
im~sition ?f nationality on stateless persons, 114
. nationals, nght of residence in, 45n.
Syria. See Mandated Territories.
Tanganyika, 24n.
Territorial jurisdiction, 7, 239
cession and, 152, 243
domicile and, 185
Index 335

Territorial J urisdktion -contim.ud

expul~ion and non-admission, and 47, 54, 57, 126
imposition of nationa lity and, 112, 11 5
limits of, 126
nationality in case of transfer of territory and, 144, 146, 147, 149, 243
naturalisation and, 101
sovereignty and, 65
Territorial Supremacy. See Territorial Juri~iction .
Thrasher, case of, 40-l
Transfer ofTerritory, 91, 135-60, 24{), 242-3
Economic and Social Council recommendation a.. to, 164
original and derivative modes of acquisition of territory, 136, 144
partial succession,
inhabitants, acquisition and loss of nationality by, 144-52, 153
persons absent at time of, nationality of, 146, 149-52, 243
universal succession,
alien residents, nationality of, 143
inhabitants, acquisition and loss of nationality by, 13fr41, 143-4, 242-3
persons absent at time of, nationality of, 138-44, 243
Su also Annexationj Cession; Decolonisation; Domicile; Naturalisation; Option;
Personal jurisdiction; Plural Nationality; Statelessness; Territorial Jurisdiction.
Triepel, on limitation of State jurisdiction, 85
Trieste, 157-8
Trust Territories,
nationality in, 20-25
passports in, 227
See also British Protected Persons.
Tunis, status of nationals of, 9
Turkey, capitulations in, 41, 231

Uganda,
mass expulsion of Asians from, 51
"verification" of nationality of citizens of Asian origin, 153-4
"Ultra Vires" legislation, 87, 127
Union of Soviet Socialist Republics,
denationa1isation measures, 119, 120-1
domestic jurisdiction clause of United Nations Charter and, 68
imposition of nationality on stateless persons, 114
option, practice regarding, 157
plural nationality, treaties on, 193
Su also Dimitroff, case of.
United Kingdom,
British Subjects without Citizenship, 52
Crown service as residence in, 39n., 100
deportation from, 48n, 58-9
enemy character, in 10-12, 79-81, 121- 3, 143
test of, in, 10-11
foreign nationality laws and,
Argentine, 109
Brazilian, 104
Hungarian, 105
Peruvian, 103
foreign naturalisation, effect of, 107-8, 128
in time of war, 80-1, 81
Hanover, personal union with, effect of, 13
immigration legislation of, 49-52
nationality (citizenship) of, 3
336
Index

United Kingdom-<:ontinued
and Commonwealth citizenship, 1~18
effectiveness of, in law of, 201-2
proof of, 215,233
nationals abroad, registration of, 231, 232
passports,
allegiance and, 226
definition of, 225
double nationals, grant to, 229n.
non-national, 19, 227
origin, of, 222
plural nationality,
protection in case of, 189-90
renunciation of nationality in case of, 80, ll7n., 194, 199
protection of
French nationals, 40
United States declarants and, 43
Salvadorian legislation on foreigners and, 33
statelessness and, 58, 79, 122
transfer of territory, practice regarding nationality on,
acquisition, on, 139-41, 143
double nationality, 148
loss of territory, on, 146, 148, 153
option, 15~7
See also Admission; Boer War; British Commonwealth; British Protected Persons;
Burma; Consuls; Cyprus; Declaration of Alienage; Decolonisation; Egypt; Irish
Free State; Mandated Territories; Option; Personal Union; Seamen;
Tanganyika; Trust Territories.
United Nations
Charter, domestic jurisdiction in, 67, 68-70
Human Rights in, 256
Trusteeship in, 24
Economic and Social Council, statelessness, and, 164-5, 167, 168
functional protection by, 39
General Assembly, statelessness, and, 166, 167, 168, 252-3
High Commissioner for Refugees, 25, 40
Human Ri~hts, Commission on, 163
International Law Commission, statelessness, and, 18, 29, 165-6, 251-2, 154
passports, action on, 227
protection by, 25, 39, 40
Status of Women, Commission on, 28, 98, 250
Trust Territories, 2~25
See also Refugees; Statelessness.
United States of America,
acquisition of territory by, practice regarding nationality 139, 148, 156, 157
deportation by, 40, 58 '
enemy charcter in, 10, 12n., 143
test of, in, 10
expatriation, right of, 81, 128-9
foreign nationality laws and,
Brazilian, 105
Mexican, 105
foreign naturalisation, effect of, 129
in time of war, 81, 133-4n.
imposition of nationality and, 105, 107
nationality (citizenship) of, ~5, 30-1
Index 337

United States of America- continued

effectiveness of, in law of, 20 I
proof of, 216, 218-9, 227-8
nationals abroad, registration of, 231, 232
passports, 205, 225, 227- 8
plural nationality and, 186, 187, 190, 195
protection of,
declarants, 40-2, 43
plural nationals, 172, 173, 190
recognition of independence, effect on nationality, 146
Set also Bancroft Treaties; Citizenship; Cuba; International Protection; Option;
Philippines; Seamen.
Universal Declaration of Human Rights, 1948 .. . 139, 163, 164
Unprotected Persons, 44, 164
Upper Silesia, 114, 221, 255

Vatican City, nationality law of, 96

Vtcindad, 7
Voelkerrtchtsindi.s:enat, 53

Weiss, on
domestic character of nationality law, 66
plural nationality, 196-7
Westlake, on double nationality, 196

Yugoslavia, denationalisation measures, 120

 ABOUT THE AUTHOR

Dr. Paul Weis, Honorary Professor of the University of Vienna and, until
1977, Lecturer in Law at the University of Zurich, has had active and
distinguished careers as a lawyer, administrator and educator.
He earned his Dr. juris degree in 1930 from Vienna University, after
which he practised law and entered business in Austria. In 1934 he became a
Member of the Vienna Labour Court. After being held prisoner in Dachau
concentration camp, he immigrated to England in 1939.
In London he served as Secretary of the Free Austrian Movement and
later as Secretary of the Legal Section of the Research Committee of the
World Jewish Congress (British Section). In 1947 he joined the
International Refugee Organisation at Geneva, a specialized agency of the
United Nations, as legal adviser and was appointed Chief of the Protection
(Policy) Division of that organisation in 1949. In 1951 he became legal
adviser of the newly created Office of the United Nations High
Commissioner for Refugees at Geneva. In 1954 he obtained a Ph.D. in Law
at the University of London with the subject "public international law".
He assumed the duties of Director of the Legal Division of the High
Commissioner's Office in 1961. After reaching retirement age in 1967 he
served, until 1972, as Special Adviser on Legal Affairs to the High
Commissioner and is at present Honorary Consultant to the High
Commissioner.
Dr. Weis is the author of numerous articles on subjects of international
law, refugee law, nationality and statelessness, and of a booklet on
"Protection against Group Defamation".
He received the Golden Nansen Ring ( 1970), Special Distinction by the
President of the German Federal Republic in lieu of the Order of Merit,
First Class ( 1971) and the C. B. E. (Commander of the Order of the British
Empire) (1977).
Colophon
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Some reviews of the first edition:

"... what I consider to be the most comprehenstve modern treatment of

the law of nationality that has appeared in the English language."
(FOREWORD BY HERSCH LAUTERPACtm

"... an excellent and notable contribution to a much neglected field~

(THE AMERICAN JOURNAL OF INTERNATIONAL LAW, GERHARD BEBR)

"... exceptional insight into the practice of States and international

tribunals . . . a penetrating doctrinal analysis."
(INTERNATIONAL AFFAIRS, NORMAN BENTWICH)

"... cet Important ouvrage, le meilleur paru sur Ia matiere~

(REVUE DE DROIT INTERNATIONAL)

"... a first-class contribution to the literature of international law ...

invaluable .. ."
(THE TIMES LITERARY SUPPLEMENn

ISBN 90 286 0329 8