British Institute of International and Comparative Law

Nationality in International Law

Source: Transactions of the Grotius Society, Vol. 28, Problems of Peace and War, Papers
Read before the Society in the Year 1942 (1942), pp. 151-168
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
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 ( 151 )

NATIONALITY IN INTERNATIONAL
LAW

Discussion on the report of the Committee appointed by

the Executive Committee of the Society for the study of
the Status of Stateless Persons, as adopted by the Com
mittee in their meeting dated 30 April, 1942, and sub
mitted to the Executive Committee with a recommendation
that it should be read and debated at a meeting of the
Society.

Introduced by Dr. W. R. Bisschop before the Society on

Wednesday, 7th October, 1942.

Sir Cecil J. B. Hurst, G.C.M.G., K.C.B., K.C., in the chair.

DR. W. R. BISSCHOP: Before reading my introduction which

was considered and approved by the Committee, I want to say
that the Committee was only interested in the legal aspect of the
question. Some of the members of the Committee proposed
the elaboration of recommendations concerning the present
situation of Stateless Persons. It was agreed, however, by the
Committee that their recommendations referred to the future only,
that is to say, that provided they were applied by the Governments
concerned, the incidence of statelessness would be substantially
overcome.

As regards the problem of the present large numb

persons scattered throughout the world, in so far a
term refugees, the solution of their problem cannot
of all in the legal field ; it is rather an economic and
Three solutions will offer themselves after the war f
refugee. He will either be able to remain in his coun
and legal absorption, i.e. the acquisition of the na
State of refuge, will in due course crown the process
social absorption. Or, he will be re-emigrated ove
he will be admitted like any ordinary alien emigrant
naturalisation after a certain number of years. Or e
repatriated to his country of origin and it will be in
the International Refugee Authority of the post-war
it that besides economic rehabilitation he will regain
nationality status.
The legal aspect of the question leads to the follo
The word "Nationality" does not mean what it says, nor
does it say what it means. Etymologically it would mean the
condition of belonging to a nation, of being a national. In Inter-

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152 NATIONALITY IN INTERNATIONAL LAW

national Law " nations " are an unknown quantity. A natio

conception of municipal law and means a group of persons
through racial, religious or economical ties, are bound tog
to follow a common pursuit.
The word " national ", if used in International Law, has a
technical meaning.
The Law of Nations or Public International Law is the law
prevailing between States. A State is a political conception which
may comprise a nurfiber of nations, like Great Britain, which is con-
stituted of three nations or four, if Northern Ireland is included, or
the U.S.S.R., which consists of some 160 or 170 nations. The word
" national " is used in connection with a State and then means a
member or a subject of such a State. An individual who is a
national of a State is internationally only known through the State
to which he belongs.
Nationality, that is to say membership of a State, is the link
through wh.ch an individual can enjoy the benefits of the law of
nations.' From the standpoint of Public International Law it is
for each State to decide who shall, and who shall not, be admitted
as a member.
In Private International Law "nationality " is used as a basis
for the solution of conflicts of law. In countries where nationality
is not such a criterion, " domicile " is used for the same purpose.
These expressions in the same way as " jus soli ", "jus sanguinis "
are used in Private International Law and have no relation to
questions attached to nationality in the law of nations or Public
International Law.
Individuals are objects of the Law of Nations. It is only
through the medium of their nationality, that is to say their being
members of a State, that individuals can enjoy benefits from the
Law of Nations. Such individuals as do not possess any nationality
enjoy no protection whatever and if they are aggrieved by a State
they have no way of redress since there is no State which would
be competent to take their case in hand.2
The State therefore holds the ultimate decision whether any
individual shall be entitled to enjoy any, and what, rights as a
member of the community of nations or be considered an outcast in a
politcial sense as being a stateless person. As no two States legis-
late alike on the subject of admission of individuals as members,
or of releasing them from' the bond which attaches them to the
State, and moreover circumstances which are the outcome of war or
revolution cause cession of territory or State dismemberment, a
variety of conditions are created which render certain individuals
stateless and give others more than one nationality with all the
consequences emanating therefrom.

1 Oppenheim-Lauterpacht, Vol. I, 5th Ed. Para. 291, p. 508.

A Ibid.

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 NATIONALITY IN INTERNATIONAL LAW 153

In addition, in modern times totalitarian States have b

nationalising masses of their citizens created large categor
stateless persons.
Several attempts have been made to overcome the difficul
caused by the above mentioned theories and to regularis
'ituation.
In principle, as pointed out by the Institut de Droit Inter-
national, every individual should have one-and only one-
nationality. If the early realisation of such, theory appears im-
possible certain rules might be adopted to simplify matters.
In 1930 a conference held at the Hague on the progressive
codification of international law attempted to regulate the issue by
drawing up rules to cope with the situation.
As a result of the work of its First Committee, the Conference
adopted :
(a) a Convention concerning certain questions relating to
the Conflict of Nationality Laws;
(b) a Protocol relating to military obligations in certain
cases of double nationality ;
(c) a Protocol relating to a certain case of statelessness ; and
(d) a special Protocol concerning statelessness.3
In the preamble to the Convention the High Contracting
Parties declared that it was in the interest of the international
community to secure that all its member States should recognise the
de irability that every person should have a nationality and one
nationality only; and that the efforts of humanity should be
directed towards the ideal in this domain, viz.: the abolition of
all cases both of statelessness and of double nationality. The
Parties were of opinion, however, that under the economic and
social conditions which then existed in the various countries, it was
not possible to reach an immediate uniform solution of all the
problems connected with nationality and statelessness.
The Convention and the Protocols deal with the various diffi-
culties created by the existing conditions and provide rules to deal
with these in an approved manner.
By making attenmpts at regularising what in point of fact is
unnatural and by adhering to concbptions which have become out-
grown by human development, we fail to make progress. The
conception of States as subjects and individuals as objects of the
Law of Nations seems to ignore the fact that States-after all-
are built up by individuals and that the well-being of the individual
should be the principal aim of all legislation and international inter-
course.

St. Augustine, in his Epistolae 138.104 reminds

3 The Convention and the Three Protocols came into force in 1937 follow-
ing upon the receipt of the tenth ratification. The States bound by the
Convention are: Brazil, Great'Britain, Canada, India, China, Monaco, the
Netherlands, Norway, Poland, Sweden and Australia.
4 Ed. Goldbacher, III. 135.

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154 NATIONALITY IN INTERNATIONAL LAW

human element of States. "Quid enim est respublica

populi? Res ergo communis, res ubiquc civitatis; q
est civitas nisi hominum multitudo in quoddam vincul
concordiae "?
C. B. Fawcett, in the New Commonwealth Quarterly of January
1942, defines a State as "a human group based on the need of
civilised men for an organisation which will maintain and defend
their civil rights and liberties".
To recognise public international law as a law between State
without taking the individuals into consideration who constitu
the State is no longer considered acceptable as a doctrine. The
character of sovereignty has given the State an abstract identit
separate from the human group of which it consists. The Stat
has become a superstructure which dictates to the individuals
whom it is composed. It decides who shall be its nationals an
assumes power without being responsible for the exercise thereof.
In the words of Professor Julian S. Huxley -6 " The State a
something of value in its own right is an unreal abstraction; an
when, as in Nazi Germany, it is erected into something of higher
value than the individuals who compose it, it becomes a false an
dangerous one."
All this is unsatisfactory. Unless we return to the recognition
of the natural consequences of a grouping of individuals into
number of States which remain the creation of such individuals in
general and to whom the States (as a conception) remain subservient
we shall never succeed in extricating ourselves from the difficulties
which are the result of an artificial and unnatural division of world
powers.
The present conception of a State is unjustified. As a State is
not able to express its will except through individuals who wield a
certain authority within the State or represent the majority of the
individuals who compose it, this must necessarily lead to a majority
rule or superior class rule without finding a proper check. The
sovereignty idea prevents any effective remedy and creates endless
obstruction.
There is no inherent necessity for such abstract individuality.
The division of humanity into groups is essential for organisation
purposes and in order that individuals may authoritatively express
their will as a unity in the intercourse between the various groups or
States which mankind has created.
The real function of the State is to act as a conduit pipe for the
expression in international intercourse of the joint will of the
nationals and carry it out.
It is the duty of each State so to frame its national constitu-
tion that it is able to ascertain such joint will of the nationals and
carry it out.
STowards a New English Democracy. The Yale Review. Yale Univer
sity Press. Winter, 1942, p. 237.

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 NATIONALITY IN INTERNATIONAL LAW 155

It is in the interest of any international group sys

joint will of the nationals of any one group or state ca
ascertained so that such international intercourse r
joint wills of the individuals who compose each grou
In that respect it is of international interest that ea
shall belong to a State and form part of its members
membership shall be inviolable.
The individual is thus recognised as a member o
community and who is for organisation purposes
nationality as belonging to a certain group or Sta
groups or States into which mankind is divided.
As a member of the world community the individu
able to call for protection by the community. Through
tion such protection is delegated to the group or State
individual is a national.
Such protection is a duty resting upon any State towards its
nationals, the countervailing duty of the national being loyalty to
the State to which he belongs.
Under the law of nations the individual thus classified has a
right to call for protection even against his own State if such dut
is not properly observed for the national is oppressed by his own
State.
The order viewed in Oppenheim-Lauterpacht, viz., that the
State is the link whereby the individual obtains the enjoyment
of the benefits under the law of nations is hereby reversed and
should be reversed.
From the unit or body clothed with absolute sovereignty, the
State becomes a part of the world community and such community
assumes sovereign rights under the law of nations, leaving to the
State a restricted sovereignty for municipal purposes only.
The individuals being under the direct protection of the law of
nations receive such protection through the intermediary of the
State to which they belong with a right of appeal should such
protection fail to be given.6
The benefits derived from such world order are: (1) equality
of all individuals under the law of nations irrespective of the national
group or State to which any one individual belongs/ (2) protection
of the individual against violation by a State of rights based upon
such equality, e.g., denationalisation, class treatment, pogroms, etc.
6 Dr. Georges Kaecekenbeeck, in his recent publication, The International
Experiment of Upper Silesia, on p. 521, writes as follows, viz. :-
" As to the experience of the Arbitral Tribunal, in this matter ......
it appears to me to be conclusive in showing the great advantage of an inter-
national judicial control, especially where racial and political antagonisms
are to be feared. It demonstrated the value of some such notion as that of an
individual right to one's nationality, the acquisition or loss of which should be a
matter of law, and not simply one of discretion for national authorities.
" It also proved the usefulness of letting individuals claim and defend
their right to a nationality before bilateral and even international judicial
organs.''

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156 NATIONALIT\Y IN INTERNATIONAL LAW
By viewing the problem of a world order from this point most
-if not all-difficulties vanish. The 1930 congress at the Hague
for the codification of international law could not find a solution
of the difficultiez attached to statelessness and double nationality
for the simple reason that the various States adhered to their
absolute sovereignty which gave them the right to decide who shall
be their nationals.
By granting to the individual the basic human right of being a
world citizen first and foremost, and by subjecting all sovereign
States to a higher power consisting of the joint collectivity of the
world states, a State is placed in its right position and an oppor-
tunity is created of framing a world constitution based upon inter-
national law.
It will require various other solutions, viz. : a form of a world
community of States, the expression and formulating of its will, and
the carrying out thereof. Those are problems not directly con-
nected with nationality which loses its problems as soon as state
sovereignty is curtailed and the State is reduced to an instrument
of Government at the dictation of the individuals who form its
nationals.
In view of the above we arrive at the following conclusion.
As soon as the State is no longer considered as a soul-less
superstructure or unit over and above the human group which
forms its body, but as subservient to that body for its intercourse
with other States in order by such form to express the will of the
human group in the family of nations, the individual member of the
State has (a) an indirect, and (b) direct interest in any international
organisation.
His indirect interest is that through the medium of his nation-
ality, that is to say his citizenship or membership of a State, he can
normally enjoy benefits from the existence of the law of nations.
His direct interest is that such relationship shall not be
severed whereby he would be deprived of the possibility of the
enjoyment of such benefits.
By sovereignty of the State is meant the sovereignty of the
human group which forms the State and whereby it exercises as an
independent body its rights vis-a-vis other States. In that respect
a State should recognise the same rights vested in its fellow States
in the family of Nations, one of the State's duties being not to
burden other States with its own -members.
It is the State's duty to maintain its nationals and to protect
them inside and outside its territory.
If the recognition of a State's sovereignty were considered to
include the right to abandon its duty to protecti its nationals, the
rights of the individuals would no longer be paramount and pre-
ference would be given to the machinery embodied in the formation
of the State instead of to the individual, and the State sovereignty
then becomes a means of oppression by one individual over another,

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 NATIONALITY IN INTERNATIONAL LAW 157

although all nationals should receive equality of treatment wi

State.
The formation of the State is based on the need of civilized
men for an organisation which will maintair and protect their civil
rights and liberties.7 If the State fails to do so the individuals
should find protection elsewhere vis-a-vis their own State.
If nationality is the link between an individual and the enjoy-
ment of the benefits of the Law of Nations, the individual is entitled
to invoke the protection of that law against the State which intends
to sever such link.
The individual cannot be left to the arbitrary power of the
State to which he belongs.
Every State must look after its own nationals. Also in that
respect another State is entitled to invoke the Law of Nations in
order to compel the State to which an individual belongs to dis-
charge its obligations in maintaining and protecting its own mem-
bers.
It is essential that the protection of the individual against
oppression by his own State is recognised as an international right.
These considerations seem to justify the following proposals :-
PROPOSED NATIONALITY RULES IN CONNECTION WITH
STATELESSNESS.

1. A cquisition. Every individual has a basic right to acquire

at birth a nationality (membership of a State). If no
other nationality is acquired the individual should acquire
the nationality of the State in which'he is born.
2. Retention. Nationality as such is inalienable.
(a) Nationality cannot be abandoned by the
national's own act unless and until another nationality
is acquired by him.
(b) A national cannot be deprived of his nationality
by a unilateral act of the State of which he is a member
unless and until he acquires another nationality (member-
ship of another State).
3. Protection :
(a) It is the duty of the State to protect and to
serve its nationals. Such protection and such service
secures to the individual the benefits which he is entitled
to under the Law of Nations.
(b) By depriving any one or more of its.nationals
either as an individual or " en masse " of his or their
nationality or by refusing him or them protection and
service, a State would cast a burden upon another State
which would be contrary to the Law of Nations.
4. Recognition. Within the territory of a State other than
7 C. B. Fawcett in The New Commonwealth Quarterly, January, 1942.
p. 204.

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158 NATIONALITY IN INTERNATIONAL LAW

the State of which he is a national, any indivi

entitled to be recognised as such national. In case o
nationality the provisions of the Hague Conven
1930 on the Conflict of Nationality shall apply.
5. Law of Nations. In this respect the basic nation
rights of an individual are under the protection of
of Nations.
Should any future machinery be set up for the main-
tenance of the rules of international law, provisions should
be made for the carrying out of the aforesaid rules and
their application. It would be the function of the Law
of Nations to guarantee the nationality rights and the
following rule is considered suitable in such case.
6. International- Courts of Justice. For the protection of his
nationality rights under the Law of Nations in any one
State including his own, any individual will be entitled
-in case he has no remedy in the Municipal Courts of the
State where he is resident-to appeal to an International
Court with ultimate appeal to the Permanent Court of
International Justice.

PROPESSOR NORMAN BENTWICH in a written Summary of his

speech: I concur in the principle of the report which is that
every person must have a nationality and can not be deprived
of his nationality of origin by the unilateral act of the State:
I think, however, that some provision should be made for the
case of a naturalised person who shows by his conduct that he
does not associate himself with the country whose nationality he
has acquired.. In such cases the State which conferred nationality
would be entitled to cancel the naturalisation. That has been an
accepted practice of international relations for the better part of a
century. And if it were not recognised, the effect would be to make
States reluctant to grant naturalisation. In a case where naturalisa-
tion is cancelled, statelessness should be avoided by a provision
that the person denationalised would revert to his nationality of
origin. The position would be similar to that in regard to domicile
in English law whereby a person who loses or abandons his domicile
of choice reverts automatically to the domicile of origin.
2. The rules should be supplemented by a provision for the
status of a person who is deprived of the protection of the State of
which he is a national. There will be in the post-war world political
exiles and refugees for conscience, even though we may hope that
mass expulsions and forced emigrations will be avoided in the new
order. For these persons who are compelled to leave their state
the principles of the international conventions for the Nansen
and German refugees-adopted at Geneva in 1933 and 1938-
should be the basis of an international treaty. The provisions
which are now restricted to specific classes of refugees should apply

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 NATIONALITY IN INTERNATIONAL LAW 159

to all persons who lack the protection, in law or in

national state. They should include rules not only
status and the issue of a passport and the granting of v
about the right to social aid and to employment in
in which they are resident.
3. I suggest that, while the individual should hav
recourse to an international tribunal for the vindication of his
rights as a national, an appeal should not lie, as of right, to th
Permanent Court of International Justice. The jurisdiction o
that supreme tribunal could not normally be invoked by an
individual, but only by a state; but it would be open to the inter-
national court hearing a claim to certify that the question raised
is proper for submission to the Permanent Court of International
Justice.
MEMORANDUM FROM PROFESSOR LAUTERPACHT: While I am
not in the position to subscribe to the substance or the language
of the Report in its entirety, I am in full agreement with the prin-
cipal view expressed therein, namely that there is no room for
statelessness in any orderly, progressive and logical scheme of
international law. It is intolerable and indefensible that under a
system in which, as at present, the individual is protected by inter-
national law only in his capacity as a national of a State, the law
should permit or authorise a condition of statelessness. If States
claim the right to be the only link between the individual'and
international law, then they must not be permitted to render that
link non-existent.
The Hague Conventions of 1930 went a long way towards reduc-
ing the possibilities of Statelessness, and the municipal law of
various States has followed suit, as e.g. the British Nationality
and Status of Aliens Act, 1933, which did away with a typical case
of statelessness of married women.
In particular, international law ought to prohibit denationalisa-
tion by way of penal sanction on the part of municipal law.
It would be proper, in my opinion, that in the Report of the
Society there should be embodied the considered view of the Society
and of the Committee that punishment by way of deprivation of
nationality should be prohibited. It is easy to conceive and
proper to urge a rule of international law that no individual should
lose his or her nationality unless in connection with, or as the result
of, the acquisition of a new nationality.
MEMORANDUM FROM DR. PAUL WEIS : I think that these rules
would constitute a definite improvement in comparison with the
present position if and when-as Dr. Fletcher puts it-Sovereign
States cease to be predominant, i.e., if and when effective means
exist to enforce the application of these rules upon a State which
refuses to observe and to obey them. (This applies particularly to
point 3.) To this problem reference has been made in points 5 and
6 of the proposed rules. The reference to the Permanent Court of

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 160 NATIONALITY IN INTERNATIONAL LAW

International Justice seems to me, however, to be somew

leading. The Permanent Court of International Just
present form would not be in a position to enforce these
State, which, in contradiction to fhese rules, denies its n
protection and the enjoyment of their basic nationality
deprives them of their nationality.
The proposed rules are, therefore, based on the under
that-as it has been put in point 5 of the " Final Draft of
of International Law "-" some system of internationa
authority involving the acceptance of considerable lim
national sovereignty has been established." The prop
can and must be understood only in connection with the
Memorandum by Dr. Bisschop on "Nationality in In
Law." The proposed rules are inseparably linked with the
of the Committee on " The Future of International Law "
which was'to be set up according to the resolution passed
meeting of the Society on December 17th, 1941.
It is absolutely essential, in my opinion, that indivi
should not only be objects, but should become subjects of
national Law and that Oppenheim's axiom that " nationality
only link between the individual and the benefits of the
Nations " should be abolished. It is equally essential that-
words of Dr. Bisschop's Memorandum-as a member of th
community the individual should be able to call for pro
by the community and that the sovereign right of the
deny this protection should be curtailed.
Unless and until these premises are given, I do not think
the proposed rules would improve the position of the individ
International Law. The proposed rules make the ties betw
national and the State even closer than they are now. As
it is possible for the individual State tc deny its nationals pro
and to deprive them-in law or in fact-of their basic nat
rights without being interfered with by a supranational aut
it cannot be considered desirable that an individual should not lose
his nationality without acquiring another. The assumption that
statelessness is undesirable cannot be regarded valid as long as a
state of affairs exists under which a State may use-or abuse-its
sovereign rights to deprive its nationals of their national rights,
but to impose on them their national obligations and all the inter-
national consequences of having the nationality oI a particular
State.
May I point out that the proposed rules go even beyond the
resolution passed at the meeting of the International Law Associa-
tion in Stockholm in 1924, when similar rules were recommended,
but the right of expatriation as laid down in the U.S. Act of Congress
of July 17th, 1868, was explicitly safeguarded. We can not shut
our eyes to the fact that a class of persons exists who do not enjoy
in law or in fact the protection of a State, and that the number of

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 NATIONALITY IN INTERNATIONAL LAW 161

these persons will increase as long as their creation

impossible by the establishment of an international au
a corresponding restriction of the sovereignty of t
State.
MEMORANDUM FROM DR. G. LEIBHOLZ: I cannot help feeling
that the status of nationality and herewith by implication also the
status of stateless persons will be greatly affected in future by the
revolutionary changes which are taking place to-day in modern
society and are finding their tragic expression in the present conflict.
I think the decisive point is: Are we still living to-day in the age of
the national State or not ? If this be the case then it seems right
to treat the problem in question in the traditional way of thinking.
The status of nationality in its traditional form must then occupy
a central part also in the international life of the future, and we
must limit ourselves to define those principles which should be
common to all nations, in order to avoid as far as possible the status
of stateless persons and of sujets mixtes. The latent antagonism
towards aliens which is characteristic of the national state will then
be quite understandable, and refugees and stateless persons cannot
be treated from any other but a purely humanitarian point of view
as was the case, for instance, during the years before the war in the
countries of liberal democracy and the League of Nations.
I myself have serious doubts whether this basic attitude of
mind is to-day still well founded. I think many signs point to the
fact that the ideas of the " Nation State " in the sense of the 19th
century are gradually losing their weight and that the 20th century
in its essential framework will take on a form quite different from
what we were used to in former times. I am not only thinking of
the special legislation in this matter in Nazi Germany and of the
various decrees which in all totalitarian States of to-day have led
to an expatriation of a large number of people for purely political
reasons, but much more of the character of the present conflict.
For this character will also determine the peace to come.
If the present conflict were like the last war, essentially a war
between national sovereign states in which the stake is only national
power, then, I admit, I am wrong. But I must openly confess that
-in my view-those are right who see in the present conflict more
than an imperialist war and call it an international or revolutionary
civil war. Without denying in the least that the present conflict
is also a life and death struggle for the United Nations, I agree
with those who see in the present war, at bottom, a spiritual con-
flict, a war between two principles or attitudes towards the world.
It implies a clash between two irreconcilable conceptions of life and
fundamental ideals.
From this it follows that the present struggle cannot be limited
by national frontiers, but stretches far beyond them and cuts across
all accepted frontiers and through every class in every country.
This is why many a highly distinguished member in the House of

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162 NATIONALITY IN INTERNATIONAL LAW

Commons and the House of Lords, as well as among t

public, has laid stress on the point that " the division we
make . . . is not between one nationality and another natio
. but between those who have different ideals " (Mr.
White). If this is right, as I think it is, and it were po
reach an agreement on this poifit, then I think one can
coming to the further conclusion that the revolutionary c
of the present conflict has brought about a fundamental c
the significance of the conception of nationality. Then, th
ception has lost the momentum which formerly character
It is perhaps interesting to note in this connection that th
mentary Under-Secretary to the Home Office, Mr. Peake, s
House of Commons in 1940: " Labels of nationality in
have meant very little in the last twenty years." This
true. Nationality is becoming more and more a purely
conception devoid of its original meaning. We can perh
more rightly of a passport-nationality which no longer, as i
times, throws any light on those questions which are
decisive significance in the life of to-day, i.e., above a
question whether a man is a friend or a foe either of a to
or of a western-democratic conception of life.
If I. am not -mistaken, I should say that we shall have
in times to come with a new conception of ideological citi
The obvious lesson of our political experience in both hem
is that already to-day among the nations, under the su
working in various directions, there exists an interdep
which will inextricably bind the countries together by mut
and will leave no room for the disruptive forces in the
world. Europe and the world must and will become an
even in the political fields. This trend of history towards
tion of Europe or even the world is-as far as I can see-irre
Therefore, all political systems, principles and concepti
include among them also that of nationality-which tend t
in some way that process of unification must go or, at
perience a basic change, From this attitude of mind,
conception of ideological citizenship will be the expression
new ideological community in the future. In a consti
even though still imperfect, form this was recognized in th
Act of Union proposed by the British Government to the
Government on the 16th June, 1940: " Every citizen o
will immediately enjoy citizenship of Great Britain. Every
subject will become a citizen of France," This will be t
which in future the nationality legislation will take.
I think there is one touchstone which shows that my ex
of the subject is not entirely wrong. I have in mind th
problem, the treatment of which has become of symbolic
cance for the spirit in which the present war is waged. W
there are some contradictions in the manner of dealing w

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 NATIONALITY IN INTERNATIONAL LAW 163

question. From a formal legal point of view, the refugee

Nazi oppression coming from Germany or Austria or Italy
no better position than the ordinary enemy alien or prisoner o
For as Sir John Anderson said in the House of Commons o
22nd August, 1940, the refugees are " of enemy nationalit
matter of law and national status". From the theoretical
point of view, therefore, it seems to be impossible to disting
between prisoners of war and enemy aliens, on the one hand,
refugees, on the other. " There is no other category under w
they come, and I am sorry about it," said Mr. Morrison on th
December, 1940. From this point of view, it is only correct w
the refugee, once at large, is treated as an enemy alien, tempo
exempted from the special restrictions, otherwise impo
enemy aliens.
But at the same time we know that this legal classific
gives an entirely wrong picture of the actual position of the r
in this country. In practice, the refugees are treated mo
friendly than as enemy aliens and the Government has manif
its sympathy with the refugees in many directions. I nee
give you details in this matter.
This inconsistency between theory and practice is, at bott
due to the fact that the fundamental change nationality has
gone in the present conflict has well been noticed. It has
realised that a definition of the " enemy " in the sense of th
century and the last war according to nationality would l
a conflict with political reality. But, on the other hand,
not in a position to draw the corresponding conclusions from
understanding for the legal classification of the refugees. Ther
gap which cannot be filled with the traditional legal principle
conceptions.
This, however, is not surprising because-and not by chance-
a fundamental alterations in the conception of the refugee goes
hand in hand with the basic change of the conception of nationality.
This alteration corresponds to the change in the structure of the
political ideas in the 19th and 20th centuries. To-day the refugee
problem has more a political than a humanitarian character. This
explains why the refugee problem in its present structure is an
entirely new problem in political experience and why it is useless
to seek precedents from the last war. This explains also why the
traditional right of asylum cannot provide the starting-point for a
new creative policy with regard to the refugee problem. For in
the last resort, all rights of asylum, regardless of their scope and
character, rest on humanitarian and religious considerations, but

not on
that thepolitical, conceptions.
totalitarian It is perhaps
states have always treated also
this worth
problemmentioning
in a
political manner as a political problem and have openly treated
political refugees, wherever they have come from, as their political
friends and allies. From all this it follows that to-day the political

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164 NATIONALITY IN INTERNATIONAL LAW

and legal status of refugees is a special one which is qu

from that of aliens who are not refugees, and to which
codification.
I feel that another objection can be raised to this manner of
considering the problem in question. One can say that a lawyer
who proceeds in this way transgresses the limits set to him. On
the other hand, I may perhaps say that, to my mind, it is also the
task of a lawyer to keep contact with the political and sociological
reality and carefully to watch the basic changes in the structure
of modern life (at least in so far as these entail possibly modifica-
tions of far reaching significance in our own outlook) and to antici-
pate the problems which we shall have to face in our special field
in the future. I have tried to point out the fundamental direction
which-as far as I can see-the nationality legislation will take in
the course of time. It is not my task to analyse the special prob-
lems which will be the result of the revolutionary events we are
living through to-day.
DR. FLETCHER in a written Summary of his speech: If it
is convenient perhaps I can indicate shortly at this stage what
my trouble is about the report of the Committee. As I under-
stand it, the Committee was not concerned with the question of
nationality or statelessness in so far as it affects Private Inter-
national Law, but chiefly in so far as it affects Public Inter-
national Law. In the realm of Private International Law it is
convenient that every individual should be able to relate his ow
status and capacity to some municipal code of laws, as in th
way alone is it possible for his capacity to contract, his capacity t
enter into marriage, and his testamentary capacity to be decided.
But whether his status under Private International Law is govern
on a basis of domicile, residence or nationality was not the primary
matter with which your Committee was concerned.
My fear is that the rules suggested by the Committee an
their approach to the problem will not cure the evil they are design
to meet. It seems to me very difficult to consider this matte
except in the light of existing circumstances, especially because t
Committee was constituted very largely for the purpose of conside
ing the specially aggravated circumstances of to-day, when t
number of stateless persons has shown a very considerable increase
The Committee, if one may summarise the Report, appear to
have said that it is the duty of the State to serve and protect its
nationals; and, therefore, if you can so arrange matters that ever
individual has at all times some nationality, you will be able
secure that he gets, somehow or other, that right of protecti
and service enforced.
It seems to me idle to frame a rule that it is the duty of the
State to " protect and serve its nationals ' without considering
how the obligation of the State is to be enforced. The protection
sought by the proposed rules would, I believe, be quite illusory

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 NATIONALITY IN' INTERNATIONAL LAW 165

except within the framework of an international order in

Sovereign States cease to be predominant-and in the e
ment of such an order the rules would, in my opinion, bec
necessary or anomalous, or contradictory.
Reference has been made to an individual's " basic r
and it seems to me the real vice which troubles people in co
with this question of Statelessness is not so much that peo
by totalitarian and other States, be deprived of their natio
but that they can be deprived of what are conveniently ca
or elementary rights.
It does not seem to me that you begin to cure that p
by saying that every individual should at all times have a na
You must also have some means to secure that an individual who
is ill-treated in that way by his State is able to enforce some remedy,
or obtain some relief. You must also have some more exact defini-
tion of the content of the so-called basic rights which the State
cannot challenge ; because, however much you limit the sovereignty
of a State, a State would still have a considerable area of jurisdiction
in criminal matters, police matters and matters of all kinds, not
only over its nationals, but individuals within its territory.
I do not believe that an individual's " basic rights ", however
the phrase may be defined, should be dependent upon an individual's
position as a citizen of a State. Therefore, it seems to me that
while, no doubt, everybody would desire a world order in which
individuals had some elementary rights which were universally
recognised and enforced, it does not seem at all necessary, or even
desirable, that they should be granted or enforced on the basis of
nationality.
If you get settled the two other elements in the problem, that is
a different world order in which States can be brought to account,
and you get some universal recognition of elementary human
rights, then you get all you want, and it is not necessary to give
individuals those rights because they are the nationals of any
particular State. You give them those rights because they are
members of the human race.
It seems to me a disadvantage to relate that idea, which is
probably in the minds of all of us, to this problem of nationality.
Dr. Bisschop has indicated the desirability of limiting the sovereignty
of States ,and the Grotius Society has recently-adopted a set of
proposals which involve a limitation of the Sovereign Power and
Sovereign States as they now exist. It seems to me to be funda-
mentally contrary to that conception for the Stateless Persons
Committee to adopt proposals which at every turn stress and
emphasize the supremacy of the Sovereign States.
The other aspect of the matter which troubles me is this.
Nationality is a contract as well as a status. It is a contract
between the Sovereign State and the individual. I am not at all
sure that it is desirable to foist a contract of that kind on either

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166 NATIONALITY IN INTERNATIONAL LAW

party. I do not believe that individuals should have any

ticular nationality thrust upon them contrary to their own
or that any particular State should be bound to adopt or r
any individual as a subject contrary to its wishes.
The Committee appear to have proceeded from the assu
that the status of statelessness is in itself undesirable. I doubt the
validity of that assumption, or whether there are any disadvantages
attaching to the condition of statelessness as distinct from the
status of aliens. There are to my knowledge a large number of
persons living in England to-day who by nationality are Germans.
I believe a great many of them would much prefer to be stateless.
There is also a class of persons who must not be overlooked,
who do not desire to have any nationality. A prominent example
is the case of Leon Trotsky. If an individual desires not to have a
nationality, why should he be compelled to have a nationality ?
If a State in the case of certain individuals wishes not to give them
rights of protection or rights of any kind, perhaps because they have
no connection with the country except that they happen to be born
there, why should the State be compelled to recognise them as
nationals ?
I find myself in profound disagreement with your Committee
in attempting to adopt rules in a framework which makes nationality
the all-important, universal, and unescapable condition of every
individual.
I believe that many of the difficulties with which stateless
persons believe themselves to be confronted, would disappear if
instead of attempting to eliminate the condition of statelessness,
nationality were to become optional and the group of stateless
persons were to become much enlarged.
While, therefore, I am in entire sympathy with the object of
protecting individuals in the exercise of certain " basic rights "
against the tyranny of Sovereign States, I do not think that this
object will be secured, or indeed advanced, by the adoption of the
rules suggested by the Committee. On an analysis of each of the
particular rules, I should prefer that they were all framed in terms
almost entirely opposite to those proposed, and roughly as follows :
(1) No individual has any right or obligation at birth or at
any other time to acquire any nationality ;
(2) Nationality is not inviolable :
(a) It can be abandoned at any time either by the
act of the national or by the act of the State ;
(3) The State owes the same duty to observe the " basic
rights " of all those domiciled and/or resident within
its territory as of its own nationals;
(4) No individual is entitled to be recognised as a national
of any State contrary to the wishes of the State, and
there is no objection to any individual having more than
one nationality or no nationality at all.
DR. E. J. ConN in a written Summary of his speech I

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 NATIONALITY IN INTERNATIONAL LAW\ 16*7

have been very much impressed with the Report of th

mittee. I think that the Committee deserves most hear
gratulations on the excellent work which they have don
been deeply impressed by the fundamental conception
of National and of International Law, which form the basis
of this Report. The Report has logically adopted the principle
that International Law has supremacy over National Law. It
has adopted this view with regard to a problem on which Inter-
national Law up to now has had nothing to say. At the
moment any State can take away nationality from any of its citizens
or give it to any foreigner without International Law, providing
any rules on the case. If this Report were to become part of
International Law, States could not any more grant or withdraw
their nationality according to their own free will. International
Law would override their Municipal Laws and force them either
to grant or to abstain from withdrawing their nationality.
Let me put the following case: A, a citizen of the country of
Ruritania, has been deprived of his nationality contrary to Inter-
national Law, but in accordance with the Municipal Law of Ruri-
tania. If this Report were to become part and parcel of Inter-
national Law, A would apply to the International Court and that
International Court would rule that he is still a subject of Ruritania.
That ruling, if I understand the Committee rightly, would apply not
only outside Ruritania, but would be law inside Ruritania as well.
I think that would be a tremendous advance. It may perhaps be
said that the diplomats are very far from accepting this kind of law
and that it will take centuries before they will do so. However,
I think that the Committee was quite right in formulating their
views in the way they have done, because we are lawyers and not
diplomats. It is for us to say what we think that should be done
and for the diplomats to see that it is done. We are like doctors
who tell the international world what should be done to secure
universal sanitation. The diplomats may consider in their Com
mittees how far they can follow the doctors' recommendation
The Utopian tendency of this Report does not worry me, and
invite you to agree with me that this Report should be adopted
not only notwithstanding, but because of its Utopian character.
Though I agree with the basic conception of this Report, I
think that the Committee should have gone a little further an
carried its conclusions to their logical end. There are two point
on which I am not quite sure that they have done that. They sa
nationality as such is inalienable. That is right. Nationality i
nothing but a term which we apply to the relations of mutual faith
or trust between the individual citizen and the state. The state
owes protection to the citizen, and the citizen owes loyalty to th
state. These are mutual relations. Neither party can throw of
its obligations vis-a-vis the other. In this respect I quite agr
with Dr. Fletcher. This relation is comparable to that arising o
of a contract. In a contract, too, there are mutual obligations

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168 NATIONALITY IN INTERNATIONAL LAW

both sides. But I cannot follow the Committee when

because of that, that nationality is inalienable, even if b
and citizen want it to be abrogated. I agree there with D
In my view, it is no use to press nationality upon a man w
want to be a member of the state, if that state at the same time
itself does not want him. The example of Trotsky, which Dr.
Fletcher gave, is very much to the point. Trotsky was a man who
did not want to be a citizen of any state, and no state wanted
him as its citizen. To urge the adoption of citizenship on such a
man would be contrary to the principles of liberty and freedom
which form the basis of this Report.
The second question to which I should like to refer, is that of
naturalisation. Professor Bentwich made one exception from the
principle of inalienability. He said that the naturalised citizen
should as heretofore be subject to the state's right to cancel that
naturalisation. First of all, I should like to add a question mark
to the words " as heretofore". It is not right that naturalisation
can be withdrawn under all national laws. The contrary is true.
The number of laws which allowed naturalisation to be withdrawn
was very small before 1933. Before 1933 the laws of this country
and to a much more limited extent those of the U.S.A. and of France
formed exceptions to the rule that a naturalisation once granted
cannot be withdrawn.
Let us compare the case of one of the leaders of the German
American Bund, who was a naturalised German-American and had
been convicted of high treason, with the case of the original Quisling.
Why is it right to say on the one hand that the United States must
have the right to withdraw U.S.A. nationality from the naturalised
American, whereas on the other hand we say that Norway must not
have the right in any circumstances to withdraw nationality from
Quisling ? I cannot see the difference. I think a man born in a
country and possessing the nationiality of the country from the
moment of his birth, is under a liability to be as faithful and as
loyal to the state as a man who has acquired the nationality of
that state by naturalisation.
I also want to draw your attention to the word " basic right "
employed by the Committee in their Report. I believe that by
" basic rights " the Committee mean those rights which are really
founded upon the highest conceptions of contemporary morality.
The Committee appear to me to say that future international law
shall aspire to be the expression of the highest moral conceptions
of contemporary society instead of being, as it is now, a weak
compromise of the individual rules and intentions of the various
national states. That, I think, is a tendency which is to be
welcomed and I feel that in this respect also the Committee deserves
hearty congratulations on their achievement.
At the suggestion of Dr. H. R. Pyke and Dr. G. G. Kullmann,
the report was returned to the Committee for revision in the light
of the observations made in the debate.

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