Chapter 3 Domaine Réservé?

Statehood, Sovereignty and Nationality

In: The Human Right to Citizenship
Author:
Barbara von Rütte
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58–86
DOI:
https://doi.org/10.1163/9789004517523_004
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Thus, in the present state of international law, questions of nationality are, in the opinion of the Court, in principle within this reserved domain.1

pcij, Advisory Opinion on the Nationality Decrees Issued in Tunis and Morocco, 1923

In 1923, the pcij held in its seminal Advisory Opinion on the Nationality Decrees Issued in Tunis and Morocco that questions of nationality are within the reserved domain of states.2 That ruling, and the underlying legal theory, influenced the concept and regulation of nationality in international law for many years to come. The recognition that citizenship forms the basis of the body politic and is, therefore, a constitutive element for every nation state did not mean that nationality matters were recognized as questions of statehood and of international law, but to the contrary, had the consequence that the acquisition and loss of citizenship were referred exclusively to the domestic jurisdiction of each individual state.3 Consequently, international law has for a long time refrained from regulating nationality matters and thereby possibly imposing limitations on states’ sovereignty. Only recently has the changed perception of the individual in international law and the international system of human rights protection challenged the exclusive competence of states over the question of nationality and membership in the state.

In the previous chapter, I discussed the concept of citizenship as a legal status and its relevance as a moral human right. This chapter now moves from this rather theoretical focus to a more doctrinal discussion of the interrelationship between statehood, sovereignty and citizenship in international law and their relevance for the regulation of nationality at the international level. The chapter first assesses how nationality relates to statehood (i.1), how statehood implies a certain extent of sovereignty (i.2) and how the concept of state sovereignty shaped the doctrine of domaine réservé in international law (i.3). A second section then shows how the doctrine of state sovereignty and the close connection between statehood and citizenship provided the foundation for the traditional qualification of nationality as one of such domaines réservés that are outside the realm of international law (ii.). It critically reflects on this traditional approach and argues that nationality has always been subject to international law. This conclusion supports the argument that the recognition of a right to citizenship finds more international support than the doctrine of domaine réservé would imply. The third section (iii.) further substantiates this claim by discussing the historical evolution of the international law on nationality throughout the 20th century.

i Statehood and Sovereignty in International Law

1 Elements of Statehood

Classic international law defines a state as an entity that has a population, a territory and effective power over that population and territory. These three elements of statehood trace back to the German legal scholar Georg Jellinek.4 The definition of a state has later on been codified in the 1933 Montevideo Convention on Rights and Duties of States.5 6 According to Article 1 of the Montevideo Convention a state is characterized by:
  1. a)a permanent population;
  2. b)a defined territory;
  3. c)government; and
  4. d)capacity to enter into relations with the other states.

A permanent population in the sense of Article 1 Montevideo Convention is defined as a stable, organized community living within the territory in question.7 Today, that community according to Article 1 Montevideo Convention is usually equated with the community of citizens.8 This makes nationality one of the elements of statehood.9

Hence, nationality directly impacts statehood and, vice-versa, statehood impacts nationality.10 The question of access to nationality and power to decide on the rules for such access is, therefore, a question that concerns the heart of the state as a political entity. As Richard Perruchoud explains:

Migration law, including laws on nationality, is essential to the creation of States: for a State to exist, it must have both inhabitants (nationals) and borders. Migration and nationality laws establish the dividing line between nationals and non-nationals, and make the border meaningful for people attempting to cross it either way.11

In a scenario where no one intends or needs to cross borders, this is theoretically not problematic. However, given that populations are not static, territorial borders are not naturally formed but politically created and migratory movements across international borders are a reality, the answer to who can cross the physical, territorial border and the legally constructed boundary between nationals and non-citizens becomes highly political and controversial.12 This crucial link between the population of nationals and statehood from an international legal perspective offers an explanation as to why states were so reluctant to abandon competences in nationality matters in favor of international regulations. States were invoking their sovereignty to justify the absence of legal constrains in nationality matters to retain decision making powers in one of the crucial aspects of statehood.

2 Statehood and Sovereignty

Sovereignty is not in itself a precondition for statehood but is the legal consequence thereof.13 In simple terms, an entity possessing all elements of statehood is sovereign for the purposes of international law.14 The modern understanding of state sovereignty in international law dates back to the Westphalian peace treaty of 1648, which laid the foundation for the system of sovereign, territorially independent and formally equal nation states in Europe.15 The concept of state sovereignty has since been central to the understanding and legitimacy of nation states as autonomous subjects of international law.16 Nevertheless, until today, it remains highly contested.17

In the Island of Palmas case, sovereignty was famously described as follows:

Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.18

On that basis, sovereignty is defined in legal scholarship as the “supreme legitimate authority within a territory”19 or as “a certain combination of autonomy and authority that serves as the organizing principle of the inter-state system”.20 At the domestic level, as Mantu points out, sovereignty:

is identified with legal competence; it indicates supremacy and superiority, qualities that we tend to associate with the legal capacity of the state to act in supreme and competent manner in any field, so that no other authority can override its functions.21

A delineation is often made between internal and external dimensions of state sovereignty.22 The internal dimension of sovereignty, on the one hand, refers to the competence of the sovereign state to establish jurisdiction within its territory. This internal perspective looks at the relationship between the state and individuals and the power the state has over individuals on its territory.23 As such, it encompasses the people’s — the sovereign’s — right to self-determination and constitutional autonomy.24 This self-determination entails the competence of states to determine who is recognized as a citizen and who belongs to the demos.25 The external dimension of sovereignty, on the other hand, relates to the legal independence of sovereign states as subjects of international law and the immunity from external interference.26 This dimension is concerned with the relationship among states at the international plane. It covers states’ ability to enter into relations with other states, to be bound by international law and the duty to respect the sovereignty and internal exclusive jurisdiction of other states. The external dimension of sovereignty is based on the recognition of the equality of states as sovereign.27

If states make use of their external sovereignty by entering into agreements with other states, they often limit their internal sovereignty by accepting certain obligations vis-à-vis others. Limitations on the internal sovereignty of states through international law, however, has primarily external effects: other states do not have to recognize the national legislation or acts of a state that is in contradiction of their international obligations. This is well-illustrated by Article 1 of the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws of 1930 which states that:

It is for each State to determine under its own law 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 of law generally recognised with regard to nationality. (emphasis added)

The interplay of internal and external sovereignty shows that sovereignty cannot mean unfettered, discretionary power.28 Rather sovereignty denotes the legal authority of states to govern certain questions.29 It is a legal power within a certain framework — the framework of international law — and as such it is a relative and dynamic concept.30 It is relative because it depends on the scope of international law and the margin that is left to states’ internal jurisdiction. It is dynamic because it changes over time, in parallel to the development of international law. In parallel to the evolution of international law, the nature and scope of sovereignty is constantly changing.31

In sum, sovereignty of states is not to be equated with the absence of obligations towards other subjects of international law. A broad understanding of sovereignty as a shield for state power against external standards or accountability must be rejected.32 It is inherent to the concept of sovereignty that it can be and is in fact limited by the actions of, and interactions with, other states.33 Sovereignty as a legal concept of international law is, therefore, “a quality which is both ascribed and delineated by the rules of international law and is wholly dependent on the development of international law”.34 Accordingly, as we will see in the following section, the scope and nature of state sovereignty in nationality matters has changed in parallel to the evolution of international law and particularly international human rights law.35

3 State Sovereignty and the Doctrine of Domaine Réservé

In international legal theory, the internal dimension of state sovereignty is reflected in the doctrine of domaine réservé.36 The notion of domaine réservé traditionally refers to those spheres of state authority that are considered to fall within a state’s internal jurisdiction and outside the realm of international law. Thus, the doctrine of domaine réservé shields certain areas of state competence from international obligations, regulations and from international intervention.37

The doctrine of domaine réservé dates back to the era of the League of Nations in the early 20th century.38 The Covenant of the League of Nations of 1919 stated in Article 15(8) that questions found to arise out of a matter which, according to international law, is solely within the domestic jurisdiction of a state party shall not be the subject of the dispute settlement mechanism of the organization.39 The UN Charter of 1945 echoed that approach in Article 2(7), according to which the UN shall not “intervene in matters which are essentially within the domestic jurisdiction of any state”.

The content of a state’s domaine réservé is determined by international law.40 Matters not regulated by international instruments, in principle, fall within states’ domestic jurisdiction. Just as state sovereignty, the scope of states’ domaine réservé is thus relative and changes over time depending on the evolution of the international legal framework.41 Hence, it is not for the states to determine their sphere of exclusive domestic jurisdiction. A matter only falls within a state’s domaine réservé, “because international law allows it to”.42

According to international law, which matters do fall within a state’s domaine réservé? In classic international law, it was argued that the states’ internal jurisdiction covered at least the essential elements of their statehood, ie the way they organize their respective government, the way they treat their citizens and the way they use their territory.43 Today, however, the scope of domestic jurisdiction must be drawn tighter. State sovereignty has significantly been restricted in domains where it formerly was considered to be unfettered.44 Since the founding days of modern international law after World War ii, the international system has evolved from a sovereignty-centered system to one that is individual-oriented.45 In particular, the way a state treats its citizens is no longer seen as a purely internal affair but is limited by international (human rights) law.46

One area that was traditionally said to be a matter of domaine réservé, but today is subject to increasing regulation by international law, is migration.47 Migration control, including the claim to control the entry and residence of migrants, was often described as “the last bastion of sovereignty”.48 The ECtHR, for example, has consistently held that “as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory”.49 Todays predominant form of migration control is an invention of the late 19th century.50 Before that, migration across international borders was largely unregulated.51 The control over access to the territory was not necessarily seen as a corollary of state sovereignty.52 Only with the growing power of nation states as the fundamental territorial and political entities and main subjects of international law, the development of social welfare within those states, an increasing nationalism, a growing number of newly independent former colonies, as well as larger migratory movements from the Global South to the Global North (rather than the other way round) around the turn of the last century, did the ‘control’ of migration and the regulation of entry, residence and departure of foreigners increase in importance as a political issue.53 Throughout the 20th century, this developed into a situation where the sovereign prerogative of states to control migration was taken for granted. In ‘The Origins of Totalitarianism’ Arendt still noted that “[s]overeignty is nowhere more absolute than in matters of emigration, naturalization, nationality and expulsion”.54 It is only with the rise of international human rights law and the processes of globalization that this slowly started to change, and international law gained increasing weight vis-à-vis the domestic jurisdiction of nation states. Today, the previously broad sovereignty of nation states over migration is being put into perspective. On the one hand, directly through the expansion of international regulation of migration and the emergence of a dedicated international migration law.55 On the other, indirectly through a growing impact of international human rights standards on the treatment of non-citizens and the recognition of individuals as subjects of international law.56 Against that background, it is recognized today that migration matters are not just a domaine réservé but subject to rights and obligations derived from international law.57

Generally, state sovereignty, and with it states’ domaine réservé, is not absolute. As Anne Peters writes:

Sovereignty is not only […] limited by human rights, but is from the outset determined and qualified by humanity, and has a legal value only to the extent that it respects human rights, interests, and needs. It has thus been humanized. […] Consequently, conflicts between state sovereignty and human rights should not be approached in a balancing process in which the former is played off against the latter on an equal footing, but should be tackled on the basis of a presumption in favour of humanity.58 (emphasis added)

What was accepted as a domaine réservé some decades ago, like migration, is now subject to international regulation and obligations. Where states formerly had no or few international obligations, individuals might, today, have legitimate claims based on internationally guaranteed rights. Thus, states can no longer simply refer to their domestic jurisdiction to shield themselves entirely from the scrutiny of international law.59 It is against this background that the next section discusses the historical perception of nationality and citizenship matters as a domaine réservé that is left almost entirely to the internal jurisdiction of states and questions whether this traditional approach still holds true.

ii The Traditional Perception of Nationality as a Domaine Réservé and Its Development

Just as migration, the entry and the stay of foreigners across territorial borders have been considered a stronghold of state sovereignty, nationality matters have been declared to be another bastion of state sovereignty.60 The boundaries of membership in the state have been vigorously guarded by states as their sovereign prerogative. And while — as just discussed — limitations upon state sovereignty in migration matters are not that controversial anymore, citizenship still seems to have a different quality for many — lawyers and state representatives alike.

As mentioned above, the idea that nationality was governed exclusively by domestic law appeared in the late 19th century when the formation of nation states — and in parallel a rising nationalism — required a clear delimitation of peoples with separate national identities.61 With the rise of nation states and the increasing tendency to control migration in the early 20th century, the regulation of nationality became more important for states. It was the pcij, however, that prominently qualified nationality matters to be within states’ domaine réservé. In its opinion on the Nationality Decrees Issued in Tunis and Morocco of 1923 the Court held that:

Questions of nationality are, in the opinion of the Court, in principle within this reserved domain [of a State]. [They are not] in principle, regulated by international law. As regards such matters, each State is sole judge.62

The 1930 Hague Convention codified this principle. According to Article 1 “it is for each State to determine under its own law who are its nationals”. After World War ii and the foundation of the modern human rights framework, the International Court of Justice confirmed in its Nottebohm ruling that “it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality”.63 Nationality, in other words, was found to fall within the domestic jurisdiction of the state.64 40 years later the cjeu in the Micheletti case still used the same wording: “Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality”.65 Even the European Convention on Nationality, which is considered to be one of the most progressive international instruments on nationality, reaffirms that “each State shall determine under its own law who are its nationals”.66

Human rights bodies regularly assert that nationality falls within states’ domaine réservé. The ECtHR, for example, stated that “decisions on naturalisation or any other form of granting of nationality are matters primarily falling within the domestic jurisdiction of the State”.67 The UN Human Rights Committee argued that international law does not, in general, spell out “specific criteria for the granting of citizenship through naturalization”.68 And even the Inter-American Court of Human Rights — the most progressive body regarding migrants’ and nationality rights — has confirmed that “the determination of who has a right to be a national continues to fall within a State’s domestic jurisdiction”.69

The legal doctrine, in a similar vein, often posits that nationality falls within states domestic jurisdiction.70 James Crawford, for example, points out that states have a general freedom of action in nationality matters.71 Michelle Foster and Timnah Rachel Baker describe the tension between states’ sovereignty in nationality matters and the individual rights-dimension of citizenship as “perennial” and note that “the sovereign fortress of nationality laws still seems somewhat impervious to direct attack”.72 Kay Hailbronner finds that the exclusive jurisdiction of states in nationality matters is a general principle of international law.73 Weis even argued that the exclusive domestic jurisdiction of states on nationality was a rule of customary international law.74

The reason for qualifying nationality as a domaine réservé is its link to statehood itself.75 The decision of who belongs to a permanent population and who, in consequence, has the right to permanently remain in the state and — at least in democratic states — determines the politics of that state, potentially has far-reaching consequences for a state. Hence, liberal nationalists defend the power to decide on membership as a central tenet of state sovereignty with reference to collective self-determination.76 Therefore, only citizens ought to decide on the conditions of admission of newcomers. Following this line of argument, nationality matters are to be decided at the national level and not a matter for international law.77 A committee of the League of Nations noted in a report in 1924 that:

From the outset of its work the Committee realised that nationality is one of the most delicate and difficult matters to regulate, since, although it is primarily a matter for the municipal law of each State, it is nevertheless governed to a large extent by principles of international law. […] the difficulty — indeed the impossibility — of settling this matter is due to the fact that nationality is essentially a political problem which affects the life of the State throughout the course of its development.78 (emphasis added)

The doctrine of domaine réservé influenced the regulation of nationality at the international level for most of the 20th century; states’ willingness to restrict their competences through international treaties was limited and few instruments that would limit state sovereignty in that domain were adopted.79 Nevertheless, even though nationality matters were historically qualified as falling within states’ domaine réservé, their sovereignty is not, and has never been, without limits.80 Even in nationality matters state discretion is, in fact, limited by international law. Nationality, as a legal status linking an individual to a specific state as opposed to other states, necessarily has an external dimension. Even though nationality is regulated domestically, it is therefore never an isolated system. It is constantly interacting with other nationality regimes and has consequences for other states and international law.81 As Vaclav Mikulka noted in his report for the International Law Commission (ilc), “[a]lthough nationality is essentially governed by internal legislation, it is of direct concern to the international order”.82 Nationality has effects beyond the borders of the state concerned.83 Against this background John Fischer Williams argued that “[t]o say that for questions of nationality there is no international law is to hand over a large mass of international matters to anarchy”.84

An important distinction has to be made here between the competence of states to determine their own rules on the acquisition and loss of their own nationality, and the question of whether nationality is outside the realm of international law. I have just argued that nationality is not outside the realm of international law. This does not mean, however, that international law sets the rules for acquisition and loss of nationality in each state. International law, in principle, leaves the determination of rules concerning the acquisition and loss of nationality to the states.85 If only on a practical level it would make little sense to establish universal rules on the acquisition and loss of nationality in every single state. This primary competence of states to adopt national legislation on nationality matters does not, however, exclude the existence of rules of international law establishing certain common standards on the same matter. Neither does it exclude the existence of human rights guarantees in that field. It lies in the nature of human rights as overarching principles that they complement national legislation and do not replace it. The sovereignty of states in nationality matters, in that sense, cannot be understood as a default rule granting states unlimited discretion in decisions relating to nationality.86 In fact, state sovereignty is always subject to international law, human rights standards and the rule of law. Thus, sovereignty in nationality matters is not exclusive and static, but relative and dynamic.87 Nationality is a subject that is normally regulated at the national level, but must respect international legal standards and the human rights of individuals concerned. Therefore, the blanket qualification of nationality as a domaine réservé must be reconsidered.88

Taking this into consideration, it is not surprising that nationality is increasingly regulated on the international level.89 Again, one can refer to the sources of international law mentioned above to illustrate this development. In the Opinion on Nationality Decrees Issued in Tunis and Morocco, for example, the pcij first noted that:

The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations.90 (emphasis added)

Then the Court continued to rule that, even though nationality is in principle not 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, jurisdiction which, in principle, belongs solely to the State, is limited by rules of international law.91 (emphasis added)

A second opinion of the Permanent Court of the same year makes this contingency of the sovereignty of states in nationality matters even more explicit. In the opinion on the Acquisition of Polish Nationality the pcij had to rule on a dispute concerning the nationality of the German minority in Poland after World War I.92 In its opinion the Court confirmed that obligations under international treaty law always limit states’ exclusive jurisdiction in nationality matters:

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 […].93

The question of the limitation of states’ sovereignty by international law was also discussed during the negotiations of the 1930 Convention.94 A proposal to explicitly and exhaustively define the limitations imposed by international law was rejected.95 Instead, the drafters adopted the general rule in the second sentence of Article 1 of the 1930 Convention according to which domestic rules on nationality matters shall only be recognized internationally as far as they are consistent with international law. As Brownlie notes, the provision thereby implicitly enshrines its own antithesis: the external impact of nationality legislation remains narrow due to the limited duty of recognition of other states.96 In view of this development, Manley Hudson, the special rapporteur of the International Law Commission on nationality including statelessness, observed that:

It has, therefore, to be examined whether there exist any rules of international law which limit the sovereign jurisdiction of a State to confer, withhold or cancel its nationality — apart from treaty obligations; such rules may either impose on States a duty to act in a certain manner or may restrict its freedom of action.97 (emphasis added)

One hundred years after the opinion of the pcij in the Nationality Decrees case it is clear that state discretion in nationality matters may be limited by international standards. International law has evolved considerably since 1923.98 Over the last century international law has increasingly regulated nationality — both at the bi- and the multilateral levels.99 International human rights law has also led to an opening of the sphere of domaine réservé in nationality matters.100 This underlines that state sovereignty in nationality matters is not, and in fact never was, unlimited.101 As the IACtHR noted:

The determination of who has a right to be a national continues to fall within a State’s domestic jurisdiction. However, its discretional authority in this regard is gradually being restricted with the evolution of international law, in order to ensure a better protection of the individual in the face of arbitrary acts of States.102

The question becomes what precisely the content of these restrictions is. As Laura van Waas stresses,

the question of just how free states are to determine who are their nationals, untouched by international obligations, can therefore only be answered by analyzing the developments in international law in that field and the current state of play.103

Due to the relative and dynamic character of sovereignty and, equally, of international law, those boundaries are shifting as time goes on. What is clear, however, is that from today’s perspective the theory of domaine réservé in nationality matters that grants states unlimited discretion and excludes any influence of international law is no longer tenable. States do not have unfettered discretion in nationality matters. Rather, international law sets the stage for the regulation of nationality at the domestic level and draws limitations upon state sovereignty. Domestic nationality legislation cannot only have the aim of controlling access to, and loss of, citizenship. It must also respect the rights of individuals. While this conclusion is not new, the question regarding the scope of limitations imposed by international law remains open.104 In order to identify the limits of state sovereignty, the next section looks at the evolution of the international legal framework on nationality in more detail.

iii A Historical Perspective on the Regulation of Nationality in International Law

In the previous sections I have explored the relationship between the theory of state sovereignty, statehood and citizenship and the evolution of the paradigm of nationality as a domaine réservé. I have argued that the doctrine of domaine réservé in nationality matters has never been absolute and surely is no longer accurate today. In fact, international law has addressed questions concerning nationality early on and continues to do to an increasing extent. This section shall now look at how the regulation of nationality in international law evolved from order management to a more rights-oriented frame.

The earliest regulations of nationality matters at the international level date back to the 19th and early 20th century. In the 19th century states started to conclude bilateral treaties dealing with questions concerning the nationality of migrants — primarily addressed at European emigrants in the colonies.105 These early treaties reveal that the regulation of nationality on the international plane has always been closely linked to international migration. Since nationality was at the time understood as a bond of allegiance between an individual and one particular state (and one state only), conflicts relating to nationality arose as soon as an individual had links to more than one state — most often as a consequence of crossing international borders, binational family relationships or a change in territorial sovereignty. It became obvious that the ostensibly internal matter of nationality directly affects international relations.106 In the early 20th century, these processes ultimately led to the adoption of a number of multilateral treaties addressing nationality matters.

1 Early Multilateral Regulation: Avoiding Conflicts

A first set of multilateral instruments dealing with nationality matters emerged in the inter-war period. The collapse of the Austro-Hungarian and the Ottoman empires and the resulting changes in territorial sovereignty and the realignment of colonial power in the Global South increased the need for common standards on nationality. One of these instruments is the Treaty between the Principal Allied and Associated Powers and Poland of 28 June 1919.107 The Treaty aimed to protect individuals belonging to minority groups on Polish territory and thereby directly touched upon the question of population, statehood and sovereignty of Poland as a newly independent state. Article 4 of the Treaty obliged Poland to recognize these minorities “ipso facto and without the requirement of any formality” as nationals if they were born on Polish territory to parents who were habitually resident, even if they were not habitually residing there at the time of entry into force of the treaty.108 A dispute arose regarding the German minority population and was brought before the pcij for an advisory opinion.109 The Court noted that the Treaty aimed to protect those inhabitants of the Polish territory who differ from the majority population in race, language or religion, irrespective of their nationality.110 The Treaty intended to recognize the ‘link’ these minorities had to the Polish territory and prevent the newly independent state from withholding nationality from them.111 To protect these minorities, it effectively acknowledged a right to Polish nationality based on their connection to the territory.112 The Court found no interference with Poland’s sovereign right as a state to decide on nationality.113 It noted:

A birth occurring in a family established in the territory, on the regular and permanent footing presupposed by habitual residence, would not be an accidental circumstance taking place during a temporary sojourn or visit. The establishment of his parents in the territory on this basis creates between the child and his place of birth a moral link which justifies the grant to him of the nationality of this country; it strengthens and supplements the material bond already created by the fact of his birth.114 (emphasis added)

Hence, the Treaty de facto guaranteed a right to nationality for former habitual residents based on a ‘moral link’ to the territory.115 The Polish Minority Treaty, as interpreted by the pcij in its opinion, is an early example for the limitations of states’ sovereignty to decide on the acquisition and loss of nationality imposed by international law. Moreover, the pcij’s opinions on the Polish Minorities Treaty and the Nationality Decrees illustrate the central role of the League of Nations as the primary international forum to address common standards on nationality matters in the inter-war period.116

2 Internationalization and Specialization: The 1930 Hague Convention

In parallel to these developments at the level of jurisprudence, the League of Nations in the 1920ies declared nationality to be an issue for international codification.117 It mandated a group of experts to identify common standards in the field of nationality law.118 This so-called Harvard Draft Convention on Nationality set the basis for a multilateral conference on nationality matters in The Hague in 1930.119 At this conference the Convention concerning Certain Questions Relating to the Conflict of Nationality Laws was adopted.120 The 1930 Convention — with its three protocols121 — was the first major international treaty dedicated specifically to nationality.122 It has the aim of securing that every person has one, but only one nationality.123 Thereby, both statelessness and dual nationality should be prevented.124 The 1930 Convention codified the doctrine of domaine réservé and the principle that nationality laws fall within the sovereign sphere of states in its Article 1.125 The remaining provisions are primarily concerned with avoiding dual nationality and statelessness.126 Hence, the Convention and its protocols first and foremost address unwanted consequences of nationality regulation and acknowledge the need for international standards to solve the conflicts arising from such regulation. By contrast, they do not effectively set limitations upon state sovereignty in the regulation of the acquisition and loss of nationality.127

The inter-war period also brought the adoption of two other multilateral treaties at the regional level — the Convention on the Nationality of Women (cnw)128 and the Convention on Nationality129 adopted by American states in 1933. The former was the first international treaty that effectively prescribed full equal treatment of men and women with respect to nationality rights.130

3 The After-War Period: The Rise of Individual Rights

After World War ii the number of international treaties on nationality increased. With the emergence of modern human rights law, and also under the impression of the high number of individuals left stateless after the war, the focus of these instruments shifted more towards the protection of individuals.131 At the same time, the UN became the main forum for the negotiation of international treaties on nationality and statelessness.

The two most important instruments of that period are the Convention Relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness, which will be discussed in more detail below.132 A third instrument, the Convention on the Nationality of Married Women (cnmw)133 of 1957 addresses the equality of women in nationality matters. Under the impression of Article 15 of the Universtal Declaration of Human Rights adopted in 1948, the cnmw aims at securing married women’s right to an independent nationality irrespective of their husbands nationality.134 It recognizes a right to a nationality and obliges states to ensure that neither marriage or its dissolution, nor the change of nationality of her husband automatically affects the nationality of a woman (Article 1). The unity of nationality for families shall be achieved through facilitated access to naturalization for wives of nationals (Article 3). With these provisions, the Convention took important steps towards overcoming the principle of dependent nationality, which causes discriminatory nationality regimes.135

New instruments were also created at the regional level. Under the auspices of the Council of Europe, several instruments addressing multiple nationality and state succession were adopted. The 1963 Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality136 is based on the idea that multiple nationality is undesirable and should be avoided as far as possible.137 It stands clearly in the classical tradition of international citizenship law aimed at preventing and solving conflicts between disparate nationality regimes and does not reflect the individual rights’ character of citizenship.138 While it does entail a mechanism to prevent statelessness, it allows for the automatic loss of nationality upon acquiring a new nationality to prevent dual nationality (Article 1). The second part of the Convention is concerned with mitigating one of the consequences of dual nationality: the question of military service.139 The tendency to shift the attention away from order management and the prevention of dual and multiple nationality towards more progressive and rights-based approaches to nationality eventually resulted in the drafting of the European Convention on Nationality in 1997.140 The youngest specific instrument on nationality adopted in the framework of CoE is the Convention on the Avoidance of Statelessness in Relation to State Succession, adopted in 2006.141 The 2006 Convention shows that in the 21st century, the international regulation of nationality has expanded at the regional level and is more and more shaped by a rights-approach.142 In parallel, the unhcr has intensified its efforts aimed at the prevention, reduction and elimination of statelessness at the global level.143

4 The Parallel Development: The Indirect Regulation of Nationality

The abovementioned instruments directly concern nationality — its possession or its absence, statelessness and the impact of marriage or its dissolution on nationality. In parallel to these specific instruments, nationality is an essential element of many other subfields of international law, from private international law, the law of diplomatic protection, international investment law, tax law, international humanitarian law and international criminal law to migration and refugee law.144

In particular, nationality is an important element of the law on diplomatic protection.145 The law on diplomatic protection is concerned with the right of states to intervene on behalf of its own nationals vis-à vis another state, if their rights are violated.146 Nationality is a precondition for the exercise of diplomatic protection by the state.147 Dual or multiple nationality has a disruptive potential for the system of diplomatic protection.148 If a person has two nationalities, which state can exercise diplomatic protection on her behalf? And can a state exercise diplomatic protection against the other state of nationality? The latter can be answered in the negative: under the law of diplomatic protection states were traditionally not allowed to exercise diplomatic protection for one of its nationals against a state whose nationality the person concerned also possesses.149 In the Nottebohm case — which is a landmark ruling on diplomatic protection just as much as it is one on nationality — the icj specified that nationality has to be effective in order for a state to exercise diplomatic protection.150 The question at hand was whether Liechtenstein, where Mr. Nottebohm only recently acquired the nationality and has never actually lived, could exercise diplomatic protection against Guatemala, where Nottebohm was a long term resident.151 In the judgment the icj coined the famous definition of nationality as a legal bond representing a genuine link.152 The Court held that nationality “only entitles that State to exercise protection vis-à-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”.153 The requirement of a genuine link has been heavily criticized, particularly as it effectively rendered Nottebohm without protection, having no other nationality than that of Liechtenstein.154 Today, this ‘nationality-of-claims rule’155 is no longer as strict. Article 3(1) of the Draft Articles on Diplomatic Protection of the ilc assigns the right to exercise diplomatic protection to the state of nationality without any limitation as to the genuineness or effectiveness of that nationality.156 In case of dual or multiple nationality, the state with the predominant nationality has the competence to exercise diplomatic protection, even against a state of which that person is also a national.157 A progressive approach is further found for stateless persons and refugees, on whose behalf diplomatic protection can be exercised in case of lawful and habitual residence.158

Questions relating to nationality are also inherent to the international framework governing state succession.159 The main question here is how a change of territorial sovereignty affects the nationality of the individuals in the territory concerned.160 According to a well-established rule of international law, nationality, in principle, follows the place of habitual residence.161 The Draft Articles of Nationality of Natural Persons in Relation to the Succession of States of 1999162 codify this principle in Article 5.163

Another area of international law where questions relating to nationality arise is the are international investment protection law and specifically investor-state disputes.164 Many bilateral investment treaties base their personal scope on the nationality of the investors concerned. Under Article 25 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States,165 the exercise of jurisdiction is contingent upon the nationality of an investor. Thus, nationality — both of natural persons, companies and corporations — is, in practice, decisive for accessing international investment dispute settlement mechanisms. Tribunals and arbitrators deciding on investment disputes are often called upon to decide as a preliminary question whether an investor can be considered as being a national for the purposes of the investment treaty.166

Finally, nationality is an inherent element of international migration and refugee law.167 Here the question of nationality is fundamental to create the delineation between ‘us’ and ‘them’, between ‘nationals’ and ‘foreigners that allows for the application of migration legislation at the national level. In the context of international migration, nationality, moreover, has the important function of granting the right to (re-)enter and reside in a state.168

iv Conclusion: Growing International Support

Looking at the international legal framework on nationality described in this chapter, four observations can be made: First, the traditional doctrine of nationality as a domaine réservé is no longer tenable in an absolute form. States’ discretion in nationality matters is not, and never was, blindly shielded from international legal standards. Second, the number of instruments addressing nationality matters has increased throughout the 20th and the 21st century. These instruments form a growing body of international citizenship law and contribute to the development of common standards in nationality matters. Third, the different instruments and standards are dispersed over different fields of international law, some regulating nationality or statelessness directly, such as the 1930 Convention or the European Convention on Nationality,169 and others merely touching upon the issue indirectly while primarily addressing other questions.170 Thus, international citizenship law is influenced by different fields of international law, including to a growing extent international human rights law.171 This creates a fragmented picture of international citizenship law. Fourth, under the increasing influence of human rights law, the focus of international standards on nationality has shifted from a primarily negative framework, obliging states to avoid conflicts with nationality regimes of other states and to refrain from interfering with other states’ jurisdiction, to an expanding body of positive obligations and growing recognition of the individual as a bearer of rights.172 Thus, international citizenship law increasingly evolves from order management to a system that (also) protects individual rights.173

Turning back to the elements set out by the UN General Assembly for the recognition of human rights in Resolution 41/120, the evolution towards individual rights described in this chapter can be seen as an indication that the right to nationality attracts more and more international support. The next chapter will turn to the other elements of Resolution 41/120 and look at the expanding framework for the protection of the right to nationality in order to answer the questions of whether the right to nationality is consistent with international human rights law, and to what extent the international legal instruments grant individuals a right to nationality.

1

Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion) [1923] pcij Series B No. 4.

2

ibid.

3

See also Opinion of Advocate General Maduro in Case C-135/08 (Rottman) [2009] cjeu c-135/08 para 17.

4

Stephan Hobe, Einführung in das Völkerrecht (10. Aufl., Francke 2014) 72.

5

Convention on the Rights and Duties of States of 26 December 1933, lnts Vol. 165, p. 19 (‘Montevideo Convention’).

6

Matthias Herdegen, Völkerrecht (16. Aufl., ch Beck 2017) 79.

7

James Crawford, Brownlie’s Principles of Public International Law (9th ed, Oxford University Press 2019) 117.

8

See James Crawford, ‘State’, Max Planck Encyclopedia of Public International Law (2011) para 21 <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1473>; Herdegen (n 6) 80.

9

See also Satvinder S Juss, ‘Nationality Law, Sovereignty, and the Doctrine of Exclusive Domestic Jurisdiction’ (1994) 9 Florida Journal of International Law 219, 222. Article 1 of the Montevideo Convention would, however, allow for alternative interpretations, see eg James Crawford, ‘The Criteria for Statehood in International Law’ (1977) 48 British Yearbook of International Law 93, 114; Anne Peters, ‘Extraterritorial Naturalizations: Between the Human Right to Nationality, State Sovereignty and Fair Principles of Jurisdiction’ (2010) 53 German Yearbook of International Law 669 f.

10

Peters, ‘Extraterritorial Naturalizations’ (n 9) 670.

11

Richard Perruchoud, ‘State Sovereignty and Freedom of Movement’ in Brian Opeskin, Richard Perruchoud and Jillyanne Redpath-Cross (eds), Foundations of International Migration Law (Cambridge University Press 2012) 124.

12

Galina Cornelisse, ‘A New Articulation of Human Rights, or Why the European Court of Human Rights Should Think Beyond Westphalian Sovereignty’ in Marie-Bénédicte Dembour and Tobias Kelly (eds), Are Human Rights for Migrants?: Critical Reflections on the Status of Irregular Migrants in Europe and the United States (Routledge 2011) 109. See also Vanessa Barker, ‘Democracy and Deportation: Why Membership Matters Most’ in Katia Franko Aas and Mary Bosworth (eds), The Borders of Punishment: Migration, Citizenship, and Social Exclusion (Oxford University Press 2013) 242.

13

Samantha Besson and others, Völkerrecht — Droit international public (2. Auflage, Dike 2010) 110; Crawford, Brownlie’s Public International Law (n 7) 432; Herdegen (n 6) 80; Anne Peters, ‘Humanity as the A and O of Sovereignty’ (2009) 20 European Journal of International Law 513, 517.

14

James Crawford, The Creation of States in International Law (2nd ed., Clarendon Press 2006) 32.

15

See Samantha Besson, ‘Sovereignty’, Max Planck Encyclopedia of Public International Law (2011) para 13 <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1472>; Bardo Fassbender, ‘Peace of Westphalia (1648)’, Max Planck Encyclopedia of Public International Law (2011) para 18 <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e739>; Daniel Philpott, ‘Sovereignty: An Introduction and Brief History’ (1995) 48 Journal of International Affairs 353, 360 ff. See for a discussion of the link between sovereignty and migration Galina Cornelisse, Immigration Detention and Human Rights: Rethinking Territorial Sovereignty (Martinus Nijhoff 2010). See for a critique of the notion of sovereignty from a postcolonial perspective Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (1st ed, Cambridge University Press 2007); Radhika V Mongia, ‘Historicizing State Sovereignty: Inequality and the Form of Equivalence’ (2007) 49 Comparative Studies in Society and History 384.

16

Hobe (n 4) 40. See also Sandra Mantu, Contingent Citizenship: The Law and Practice of Citizenship Deprivation in International, European and National Perspectives (Brill Nijhoff 2015) 25.

17

See eg Besson (n 15) para 3; Linda Bosniak, ‘Multiple Nationality and the Postnational Transformation of Citizenship’ in David A Martin and Kay Hailbronner (eds), Rights and Duties of Dual Nationals: Evolution and Prospects (Kluwer Law International 2003) 32; David Held, ‘Law of States, Law of Peoples: Three Models of Sovereignty’ (2002) 8 Legal Theory 1, 2; Juss (n 9) 224.

18

Island of Palmas Case (United States v Netherlands) [1928] pca ii riaa 829 8.

19

Philpott (n 15) 357. See also Mantu (n 16) 25.

20

Mongia, ‘Historicizing State Sovereignty’ (n 15) 394.

21

Mantu (n 16) 11.

22

See Besson and others (n 13) 110; Catherine Dauvergne, ‘Sovereignty, Migration and the Rule of Law in Global Times’ (2004) 67 The Modern Law Review 588, 593; Held (n 17) 3.

23

Manuela Sissy Kraus, Menschenrechtliche Aspekte der Staatenlosigkeit (Pro-Universitate-Verlag 2013) 154.

24

ibid 155. See on the notions of state sovereignty and popular sovereignty also Seyla Benhabib, ‘Twilight of Sovereignty or the Emergence of Cosmopolitan Norms? Rethinking Citizenship in Volatile Times’ (2007) 11 Citizenship Studies 19, 21.

25

See also Rainer Bauböck, ‘Citizenship and Migration — Concepts and Controversies’ in Rainer Bauböck (ed), Migration and Citizenship, Legal Status, Rights and Political Participation (Amsterdam University Press 2006) 16; James A Goldston, ‘Holes in the Rights Framework: Racial Discrimination, Citizenship, and the Rights of Noncitizens’ (2006) 20 Ethics & International Affairs 338.

26

Dauvergne, ‘Sovereignty in Global Times’ (n 22) 593. See also Peters, ‘Humanity’ (n 13) 516.

27

See Crawford, Brownlie’s Public International Law (n 7) 433. See also Article 2(1) of the Charter of the United Nations of 24 October 1945, 1 unts xvi (‘UN Charter’).

28

Christian Hillgruber, ‘Souveränität — Verteidigung eines Rechtsbegriffs’ (2002) 57 JuristenZeitung 1072, 1074 f. See also Anuscheh Farahat and Nora Markard, ‘Forced Migration Governance: In Search of Sovereignty’ (2016) 17 German Law Journal 923, 944.

29

Kraus (n 23) 154.

30

Farahat and Markard (n 28) 944; Hillgruber (n 28) 1072; Hobe (n 4) 73; Kraus (n 23) 153; Josef L Kunz, ‘The Nottebohm Judgment’ (1960) 54 American Journal of International Law 536, 545. See also Johannes M Chan, ‘The Right to a Nationality as a Human Right’ (1991) 12 Human Rights Law Journal 1, 13.

31

Catherine Dauvergne, ‘Challenges to Sovereignty: Migration Laws for the 21st Century’ (2003) unhcr Working Paper No. 92 3 <http://www.unhcr.org/research/working/3f2f69e74/challenges-sovereignty-migration-laws-21st-century-catherine-dauvergne.html>. See also Kim Rubenstein and Daniel Adler, ‘International Citizenship: The Future of Nationality in a Globalized World’ (2000) 7 Indiana Journal of Global Legal Studies 519.

32

See similarly from a migration law perspective Marie-Bénédicte Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) 119; Bas Schotel, On the Right of Exclusion: Law, Ethics and Immigration Policy (Routledge 2012).

33

See also Case of the SS Lotus (Lotus Case) [1927] pcij Series A No. 10.

34

Juss (n 9) 225.

35

See Held (n 17) 6 ff.

36

Katja S Ziegler, ‘Domaine Réservé’, Max Planck Encyclopedia of Public International Law (2013) para 1 <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1398>.

37

ibid.

38

Juss (n 9) 226.

39

Covenant of the League of Nations of 28 June 1919, 225 cts 195.

40

Art. 15(8) Covenant of the League of Nations. See also Nationality Decrees (n 1) 23.

41

ibid 24. See also Ziegler (n 36) para 2. The UN Charter, by contrast, leaves this question open.

42

Juss (n 9) 228 f.

43

Ziegler (n 36) para 4. See for example also the Nicaragua case of 1986 where the icj still found that “adherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole international law rests, and the freedom of choice of the political, social, economic and cultural system of a State”, Nicaragua v United States of America, Military and Paramilitary Activities [1986] icj Reports 1986, p. 116 para 263.

44

Namely in the domain of environmental protection, the use of natural resources, or as Perruchoud points out, the power of the state to admit and expel non-citizens, see Perruchoud (n 11) 125. Also with regard to the organization of the internal political system it is recognized that international law now imposes certain limits, see eg Article 25 iccpr.

45

Christian Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century General Course on Public International Law (Volume 281)’ [1999] Collected Courses of the Hague Academy of International Law 237.

46

Ziegler (n 36) 5. See also Hurst Hannum, ‘Reinvigorating Human Rights for the Twenty-First Century’ (2016) 16 Human Rights Law Review 409.

47

See Cornelisse (n 15) 58; David A Martin, ‘Effects of International Law on Migration Policy and Practice: The Uses of Hypocrisy’ (1989) 23 The International Migration Review 547; Perruchoud (n 11).

48

See Perruchoud (n 11) 124. See for a critical analysis of the nexus between sovereignty of nation states and the right to exclude E Tendayi Achiume, ‘Migration as Decolonization’ (2019) 71 Stanford Law Review 1509, 1530 f; Chantal Thomas, ‘What Does the Emerging International Law of Migration Mean for Sovereignty?’ (2013) 14 Melbourne Journal of International Law 392.

49

The ECtHR confirmed this for the first time in the case of Abdulaziz, Cabales and Balkandali v The United Kingdom [1985] ECtHR Application Nos. 9214/80 et al para 67. It has since repeatedly confirmed this “state control prerogative” in various cases, eg in Moustaquim v Belgium [1991] ECtHR Application No. 12313/86 para 43; Boujlifa v France [1997] ECtHR Application No. 25404/94 para 42; Boultif v Switzerland [2001] ECtHR Application No. 54273/00 para 46; Jeunesse v the Netherlands [2014] ECtHR Application No. 12738/10 para 100. See Dembour, When Humans Become Migrants (n 32) 3. See on the right to enter and remain Chapter 2, ii.3.3.3.

50

See Vincent Chetail, ‘Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel’ (2016) 27 European Journal of International Law 901, 922.

51

See Cornelisse (n 15) 166 ff; Catherine Dauvergne, ‘Irregular Migration, State Sovereignty and the Rule of Law’ in Vincent Chetail and Céline Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar Publishing 2014) 79. This is true at least for migration within the Global North or from the Global North to the Global South within Colonial regimes, see Achiume (n 48); Radhika V. Mongia, ‘Race, Nationality, Mobility: A History of the Passport’ (1999) 11 Public Culture 527.

52

See Chetail, ‘Sovereignty and Migration’ (n 50) 902; Dauvergne, ‘Sovereignty in Global Times’ (n 22) 589.

53

Cornelisse (n 15) 168.

54

Hannah Arendt, The Origins of Totalitarianism (Harcourt 1973) 278.

55

See on the development of international migration law Vincent Chetail, International Migration Law (Oxford University Press 2019).

56

See Vincent Chetail, ‘Sources of International Migration Law’ in Brian Opeskin, Richard Perruchoud and Jillyanne Redpath-Cross (eds), Foundations of International Migration Law (Cambridge University Press 2012) 56; Perruchoud (n 11) 125. See on the role of the individual in international law also Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (Cambridge University Press 2016).

57

See also Dembour, When Humans Become Migrants (n 32) 119; Perruchoud (n 11) 125.

58

Peters, ‘Humanity’ (n 13) 514.

59

See also Kraus (n 23) 153.

60

Peter J Spiro, ‘A New International Law of Citizenship’ (2011) 105 The American Journal of International Law 694. See also Conklin who describes nationality as the “primary incident” of the reserved domain, see William E Conklin, Statelessness: The Enigma of the International Community (Hart Publishing 2014) 94.

61

Ian Brownlie, ‘The Relations of Nationality in Public International Law’ (1963) 39 British Yearbook of International Law 284, 286. See for a detailed discussion of the interrelations between sovereignty, the emergence of nation states and citizenship Cornelisse (n 15) 71 ff.

62

Nationality Decrees (n 1) 24.

63

Nottebohm (Liechtenstein v Guatemala) [1955] icj Reports 1955 20.

64

ibid.

65

Micheletti and Others v Delegación del Gobierno en Cantabria [1992] cjeu c-369/90 para 10. Even though the cjeu points out that EU member states in any case must respect their obligations under EU law.

66

Article 3(1) ecn.

67

Petropavlovskis v Latvia [2015] ECtHR Application No. 44230/06 para 80.

68

Borzov v Estonia, Communication No 1136/2002 [2004] HRCttee UN Doc. ccpr/c/81/d/1136/2002 para 7.4. See also Sipin v Estonia, Communication No 1432/2005 [2008] HRCttee UN Doc. ccpr/c/93/d/1423/2005 para 7.4; Q v Denmark, Communication No 2001/2010 [2015] HRCttee UN Doc. ccpr/c/113/d/2001/2010 para 7.3.

69

Case of the Girls Yean and Bosico v Dominican Republic [2005] IACtHR Series C No. 130 (2005) para 140.

70

See eg Brownlie (n 61) 286 ff; Oliver Dörr, ‘Nationality’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2006) para 4; Lassa Francis Lawrence Oppenheim, Robert Yewdall Jennings and Arthur Desmond Watts, Oppenheim’s International Law (9th ed, Longman 1993) 853; Ivan Shearer and Brian Opeskin, ‘Nationality and Statelessness’ in Brian Opeskin, Richard Perruchoud and Jillyanne Redpath-Cross (eds), Foundations of International Migration Law (Cambridge University Press 2012) 93 ff; Paul Weis, Nationality and Statelessness in International Law (2nd ed, Sijthoff & Noordhoff 1979) 65 ff; Jo Shaw, The People in Question: Citizens and Constitutions in Uncertain Times (Bristol University Press 2020) 14 f. See also Spiro, ‘New Citizenship Law’ (n 60) 714.

71

Crawford, Brownlie’s Public International Law (n 7) 495.

72

Michelle Foster and Timnah Rachel Baker, ‘Racial Discrimination in Nationality Laws: A Doctrinal Blind Spot of International Law?’ (2021) 11 Columbia Journal of Race and Law 83, 86.

73

Kay Hailbronner, ‘Nationality in Public International Law and European Law’ in Rainer Bauböck and others (eds), Acquisition and Loss of Nationality: Policies and Trends in 15 European Countries, Volume 1: Comparative Analyses (Amsterdam University Press 2006) 52. See also Council of Europe, ‘Explanatory Report to the European Convention on Nationality’ (Council of Europe 1997) para 29.

74

Weis, Nationality in International Law (n 70) 65. See also Stephen Hall, ‘The European Convention on Nationality and the Right to Have Rights’ (1999) 24 European Law Review 586, 589; The Queen v Secretary of State for the Home Department, ex parte: Manjit Kaur [2001] cjeu c-192/99 para 20; ag Opinion Rottman (n 3) para 18.

76

See prominently David Miller, On Nationality (Oxford University Press 1995); Michael Walzer, Spheres Of Justice: A Defense of Pluralism and Equality (Basic Books 1983).

77

See on the impact of liberal nationalism on international law Achiume (n 48) 1523 ff. and more generally James Summers, Peoples and International Law (2nd ed, Brill Nijhoff 2014) 13 ff.

78

League of Nations, Acts of the Conference for the Codification of International Law, Annex 4, Report of the First Committee: Nationality, C.229.M.116.1930.V., p 69.

79

Peter J Spiro, ‘Citizenship, Nationality, and Statelessness’ in Vincent Chetail and Céline Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar Publishing 2014) 286.

80

As Brownlie notes, the idea of unlimited sovereignty as such is “ridiculous”, Brownlie (n 61) 291.

81

Shearer and Opeskin (n 70) 93. See also Brownlie (n 61) 290 ff.

82

Vaclav Mikulka, ‘First Report on State Succession and Its Impact on the Nationality of Natural and Legal Persons’ (International Law Commission 1995) UN Doc. a/cn.4/467 para 57 <http://legal.un.org/docs/?path=../ilc/documentation/english/a_cn4_467.pdf&lang=EFSX>. See also the Report on human rights and arbitrary deprivation of nationality according to which “the regulation [of acquisition and loss of nationality] is of direct concern to the international order”, Human Rights Council, ‘Report 13/34 of the Secretary General on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2009) UN Doc. a/hrc/13/34 para 19.

83

Jo Shaw and Igor Stiks, ‘Introduction: What Do We Talk about When We Talk about Citizenship Rights?’ in Jo Shaw and Igor Stiks (eds), Citizenship Rights (Ashgate 2013) xiii.

84

John Fischer Williams, ‘Denationalization’ (1927) 8 British Year Book of International Law 45, 51.

85

Carol A Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10 International Journal of Refugee Law 158 f. Also Iran v United States [1984] Iran-US Claims Tribunal Case No. A/17, Iran-US Claims Tribunal Report Vol. 5, 251–267, 260.

86

See by analogy Dembour, When Humans Become Migrants (n 32) 119.

87

See above Chapter 3, i.2 and i.3.

88

See also Spiro, ‘New Citizenship Law’ (n 60).

89

One can observe a general increase in international treaties on global, regional and bilateral level concerning migration issues, see Brian Opeskin, Richard Perruchoud and Jillyanne Redpath-Cross, ‘Conceptualising International Migration Law’ in Brian Opeskin, Richard Perruchoud and Jillyanne Redpath-Cross (eds), Foundations of International Migration Law (Cambridge University Press 2012) 6.

90

Nationality Decrees (n 1) 24. While the opinion refers to “international relations” only, it obviously also depends on the development of international law.

91

ibid.

92

Question Concerning the Acquisition of Polish Nationality (Advisory Opinion) [1923] pcij Series B No. 7 16.

93

ibid.

94

Convention on Certain Questions Relating to the Conflict of Nationality Laws, 12 April 1930, lnts Vol. 179, p. 89 (‘1930 Convention’).

95

Namely, the principles of jus soli and jus sanguinis, as well as acquiring nationality based on marriage, naturalization and transfer of territory and voluntary acquisition of a foreign nationality, marriage with a foreigner, de facto attachment to another country accompanied by failure to comply with provisions governing the retention of the nationality, and transfer of territory as concepts regarding the loss of nationality, see International Law Commission, ‘Report on Nationality, Including Statelessness’ (International Law Commission 1952) UN Doc. a/cn.4/50 7 <http://untreaty.un.org/ilc/documentation/english/a_cn4_50.pdf> (‘Hudson Report’).

96

Brownlie (n 61) 299.

97

International Law Commission, ‘Hudson Report’ (n 95) 7.

98

Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2008) 37.

99

See Mantu (n 16) 26.

100

Kraus (n 23) 157. See also Foster and Baker (n 72) 99.

101

Tamás Molnár, ‘The Prohibition of Arbitrary Deprivation of Nationality under International Law and EU Law: New Perspectives’ [2014] Hungarian Yearbook of International Law and European Law 67, 69.

102

Yean and Bosico (n 69) para 140.

103

van Waas, Nationality Matters (n 98) 37.

104

See eg Spiro, ‘New Citizenship Law’ (n 60); Foster and Baker (n 72) 98.

105

Gerard-René de Groot and Olivier Vonk, International Standards on Nationality Law: Texts, Cases and Materials (Wolf Legal Publishers 2016) 44.

106

Weis, Nationality in International Law (n 70) 249.

107

Treaty between the Principal Allied and Associated Powers (the British Empire, France, Italy, Japan and the United States) and Poland, 28 June 1919.

108

Similar provisions existed in other peace treaties concluded after the end of World War i, eg in Article 61 of the Treaty of Trianon of 4 June 1920 between Hungary and the Allied Powers. See also International Law Commission, ‘Hudson Report’ (n 95) 11 f.

109

Acquisition of Polish Nationality (n 92) 7.

110

ibid 14 f.

111

ibid 15.

112

ibid.

113

ibid 16.

114

ibid 18.

116

Mantu (n 16) 27.

117

International Law Commission, ‘Hudson Report’ (n 95) 5.

118

See in more detail Spiro, ‘New Citizenship Law’ (n 60) 700 ff.

119

Yaffa Zilbershats, The Human Right to Citizenship (Transnational Publishers 2002) 13.

120

See on the drafting history Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status (Hart Publishing 2016) 13 ff.

121

Protocol Relating to Military Obligations in Certain Cases of Double Nationality, 12 April 1935, lnts Vol. 178, p. 227; Protocol Relating to a Certain Case of Statelessness, 12 April 1930, lnts Vol. 179 p. 115; Special Protocol Concerning Statelessness, 12 April 1930, C.27.M.16.1931.v.

122

Weis, Nationality in International Law (n 70) 26. See also Kay Hailbronner and others (eds), Staatsangehörigkeitsrecht (6. Aufl., ch Beck 2017) 40; Kraus (n 23) 149; Mantu (n 16) 27; van Waas, Nationality Matters (n 98) 37.

123

Preamble to the 1930 Convention, Recital 2.

124

Preamble to the 1930 Convention, Recital 3. See also Ruth Donner, The Regulation of Nationality in International Law (2nd ed, Transnational Publishers 1994) 179.

125

Dörr (n 70) para 4. See also Chapter 3, ii.

126

They establish safeguards in case of renunciation of nationality or the situation of persons for whom dual or even multiple nationality but also statelessness is more likely to arise, namely married women, children and adopted persons. See in more detail de Groot and Vonk (n 105) 87.

127

See also Spiro, ‘New Citizenship Law’ (n 60) 703.

128

Convention on the Nationality of Women, 26 December 1933, oas Treaty Series No. 4 (‘cnw’).

129

Convention on Nationality, 26 December 1933, oas Treaty Series No. 37 (‘1933 Montevideo Convention on Nationality’).

130

de Groot and Vonk (n 105) 101. The 1933 Montevideo Convention on Nationality complements the earlier Convention establishing the Status of Naturalized Citizens Who Again Take up Their Residence in the Country of Their Origin, adopted on 13 August 1906 in Rio de Janeiro.

131

Spiro, ‘New Citizenship Law’ (n 60) 709 f.

133

Convention on the Nationality of Married Women, 20 February 1957, 309 unts 65 (‘cnmw’).

134

Article 2 cnmw. See also Martina Caroni and Nicole Scheiber, ‘Art. 9 CEDAW’ in Erika Schläppi, Silvia Ulrich and Judith Wyttenbach (eds), CEDAW: Kommentar zum UNO-Übereinkommen über die Beseitigung jeder Form der Diskriminierung der Frau: Allgemeine Kommentierung, Umsetzung in der Schweiz, Umsetzung in Österreich (Stämpfli, Manz 2015) para 12. See on Article 15 udhr Chapter 4, i.

135

Human Rights Council, ‘Report 23/23 of the Secretary General on Discrimination Against Women on Nationality-Related Matters, Including the Impact on Children’ (hrc 2013) UN Doc. a/hrc/23/23 para 10. Knop points out that the cnmw is illustrative for the first generation of instruments aiming to establish equal treatment of men and women in nationality matters: it is concerned with the equality of women as individuals and their equal right to chose their nationality, while the broader, relational factors such as transmission of nationality to children and other family relationships were not (yet) considered, see Karen Knop, ‘Relational Nationality: On Gender and Nationality in International Law’ in T Alexander Aleinikoff and Douglas Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (Carnegie Endowment for International Peace 2001) 102.

136

Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality, 6 May 1963, ets No. 43 (‘1963 Convention on Multiple Nationality’). The 1963 Convention is complemented by three protocols: Protocol Amending the Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, 24 November 1977, ets No. 95; Additional Protocol to the Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, 24 November 1977, ets No. 96; and Second Protocol Amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, 2 February 1993, ets No. 149. See Chapter 4, ii.2.2.1.3.a.

137

Council of Europe, ‘Explanatory Report ECN’ (n 73) para 6.

138

The subsequent protocols to the 1963 slightly loosen the restrictive approach towards multiple nationality.

139

Articles 5 ff.

140

See on the ecn Chapter 4, ii.2.2.1.1.

141

Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession, 19 May 2006, ets No. 200 (‘Convention on the Avoidance of Statelessness’, ‘2006 Convention’). See Chapter 4, ii.2.2.1.3.b.

142

See on the legislative developments in other regions Chapter 4, ii.2.2.

143

The unhcr #iBelong Campaign launched in 2014 with the aim to eradicate statelessness within ten years, https://www.unhcr.org/ibelong/.

144

See de Groot and Vonk (n 105) 17; Robert D Sloane, ‘Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality’ (2009) 50 Harvard International Law Journal 6.

145

Andreas Kind, Der diplomatische Schutz: Zwischenstaatlicher Rechtsdurchsetzungsmechanismus im Spannungsfeld von Individualrechten, Ausseninteressen, Staatsangehörigkeit und Schutzpflichten: Eine schweizerische Perspektive (Dike Verlag Zürich 2014) 47. For more details see eg also Eileen Denza, ‘Nationality and Diplomatic Protection’ (2018) 65 Netherlands International Law Review 463; Annemarieke Vermeer-Künzli, ‘Nationality and Diplomatic Protection, A Reappraisal’ in Alessandra Annoni and Serena Forlati (eds), The Changing Role of Nationality in International Law (Routledge 2013). See on the link between nationality and diplomatic protection also Chapter 2, ii.3.3.1.

146

Weis, Nationality in International Law (n 70) 33.

147

Panevezys-Saldutiskis Railway (Estonia v Lithuania) [1939] pcij Series A./B. No. 76 para 65.

148

See Weis, Nationality in International Law (n 70) 44.

149

Article 4 1930 Convention.

150

Nottebohm (n 63).

151

See also Sloane (n 144) 11 f; Ernst Hirsch Ballin, Citizens’ Rights and the Right to Be a Citizen (Brill Nijhoff 2014) 69.

152

See also Chapter 6, ii.1. Critically Sloane (n 144); Peter J Spiro, ‘Nottebohm and “Genuine Link”: Anatomy of a Jurisprudential Illusion’ (2019) Investment Migration Working Paper No 2019/1 <https://investmentmigration.org/download/nottebohm-genuine-link-anatomy-jurisprudential-illusion-imc-rp-2019-1/>.

153

Nottebohm (n 63) 23.

154

See eg Sloane (n 144).

155

Vermeer-Künzli (n 145) 76.

156

ibid 78.

157

Article 7 International Law Commission Draft Articles on Diplomatic Protection, 2006, Supplement No. 10, UN Doc. A/61/10 (‘ilc Draft Articles on Diplomatic Protection’). See also International Law Commission, ‘Commentary on the Draft Articles on Diplomatic Protection’ (ilc 2006) Yearbook of the International Law Commission, 2006, Vol. ii, Part Two 34 f.

158

Article 8 ilc Draft Articles on Diplomatic Protection (n 157). See Vermeer-Künzli (n 145) 89.

159

See generally Jeffrey Blackman, ‘State Successions and Statelessness: The Emerging Right to an Effective Nationality Under International Law’ (1998) 19 Michigan Journal of International Law 1141; Francesco Costamagna, ‘Statelessness in the Context of State Succession, An Appraisal under International Law’ in Alessandra Annoni and Serena Forlati (eds), The Changing Role of Nationality in International Law (Routledge 2013); Jane McAdam, ‘“Disappearing States”, Statelessness and the Boundaries of International Law’ [2010] unsw Law Research Paper; Ineta Ziemele, State Continuity and Nationality: The Baltic States and Russia: Past, Present and Future as Defined by International Law (Martinus Nijhoff 2005); Ineta Ziemele, ‘State Succession and Issues of Nationality and Statelessness’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014).

160

See also Weis, Nationality in International Law (n 70) 135.

161

de Groot and Vonk (n 105) 25.

162

International Law Commission, Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, 3 April 1999, Supplement No. 10, UN Doc. A/54/10 (‘ILC Draft Articles on Nationality’).

164

Giulia D’Agnone, ‘Determining the Nationality of Companies in ICSID Arbitration’ in Alessandra Annoni and Serena Forlati (eds), The Changing Role of Nationality in International Law (Routledge 2013) 153. See also Peters, Beyond Human Rights (n 56) 282 ff; Rubenstein and Adler (n 31) 536 ff.

165

Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 14 October 1966, 575 unts 159.

166

See eg Siag v Egypt, Decision on Jurisdiction [2007] icsid Case No. arb/05/15. See for more details Sloane (n 144) 37 ff.

167

See on the international refugee regime and in particular the 1951 Convention relating to the Status of Refugees, 28 July 1951, 189 unts 137 (‘1951 Refugee Convention’, ‘csr’), Chapter 4, ii.1.2.3.

168

See eg Kristine Kruma, EU Citizenship, Nationality and Migrant Status: An Ongoing Challenge (Martinus Nijhoff 2014) 92 ff; Weis, Nationality in International Law (n 70) 45 ff.

169

European Convention on Nationality, 6 November 1997, ets No. 166 (‘ecn’).

170

Fabien Marchadier, ‘L’articulation des sources du droit de la nationalité’ in Société française pour le droit international (ed), Droit international et nationalité (Editions Pedone 2012) 61.

171

Foster and Baker (n 72) 99.

172

Weis, Nationality in International Law (n 70) 90.

173

Spiro, ‘New Citizenship Law’ (n 60) 710.

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The Human Right to Citizenship

Situating the Right to Citizenship within International and Regional Human Rights Law

Series:  International Refugee Law Series, Volume: 21
Cover The Human Right to Citizenship
E-Book ISBN:
9789004517523
Publisher:
Brill | Nijhoff
Print Publication Date:
19 Dec 2022

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