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Digest of In-
ternational Law
, Washington, DC, 1967, vol. VIII, pp. 1–22, 64–101, 105–13, 119–87;
R. Donner,
The Regulation of Nationality in International Law
, 2nd edn, New York, 1995;
D. Campbell and J. Fisher,
International Immigration and Nationality Law
, The Hague,
1993; M. J. Verwilghen, ‘Conflits de Nationalit´e, Plurinationalit´e et Apatridie’, 277 HR,
1999, p. 9; J. F. Rezek, ‘Le Droit International de la Nationalit´e’, 198 HR, 1986 III, p. 333; H.
Silving, ‘Nationality in Comparative Law’, 5
American Journal of Comparative Law
, 1956,
p. 410, and Brownlie,
Principles
, p. 301 and chapter 19. See also Nguyen Quoc Dinh, P.
Daillier and A. Pellet,
Droit International Public
, 7th edn, Paris, 2002, pp. 492 ff., and below,
chapter 14, p. 808.
59
Note that several instruments provide for a right to a nationality: see e.g. the Universal
Declaration on Human Rights, 1948; the International Covenant on Civil and Political
Rights, 1966; the Convention on the Rights of the Child, 1989 and the European Convention
on Nationality, 1997. See also A. Grossman, ‘Nationality and the Unrecognised State’, 50
ICLQ, 2001, p. 849.
660
i n t e r nat i o na l l aw
The concept of nationality is important since it determines the benefits
to which persons may be entitled and the obligations (such as conscrip-
tion) which they must perform. The problem is that there is no coherent,
accepted definition of nationality in international law and only conflicting
descriptions under the different municipal laws of states. Not only that,
but the rights and duties attendant upon nationality vary from state to
state.
Generally, international law leaves the conditions for the grant of na-
tionality to the domestic jurisdiction of states.
This was the central point in the
Nationality Decrees in Tunis and
Morocco
case.
60
This concerned a dispute between Britain and France
over French nationality decrees which had the effect of giving French na-
tionality to the children of certain British subjects. The Court, which had
been requested to give an advisory opinion by the Council of the League
of Nations, declared that:
[t]he question of whether a certain matter is or is not solely within the
jurisdiction of a state is an essentially relative question, it depends upon
the development of international relations. Thus, in the present state of
international law, questions of nationality are, in the opinion of this court,
in principle within this reserved domain.
61
However, although states may prescribe the conditions for the grant of
nationality, international law is relevant, especially where other states are
involved. As was emphasised in article 1 of the 1930 Hague Convention
on the Conflict of Nationality Laws:
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.
The International Court of Justice noted in the
Nottebohm
case
62
that,
according to state practice, nationality was:
a legal bond having as its basis a social fact of attachment, a genuine con-
nection of existence, interests and sentiments, together with the existence
of reciprocal rights and duties.
60
PCIJ, Series B, No. 4, 1923; 2 AD, p. 349.
61
PCIJ, Series B, No. 4, 1923, p. 24.
62
ICJ Reports, 1955, pp. 4, 23; 22 ILR, pp. 349, 360. See also below, p. 813.
j u r i s d i c t i o n
661
It was a legal manifestation of the link between the person and the state
granting nationality and a recognition that the person was more closely
connected with that state than with any other.
63
Since the concept of nationality provides the link between the individ-
ual and the benefits of international law, it is worth pointing to some of
the basic ideas associated with the concept, particularly with regard to its
acquisition.
64
In general, the two most important principles upon which nationality
is founded in states are first by descent from parents who are nationals
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