Page 113 - Law of Peace, Volume ,

end of the war. 21 submit the dispute to arbitration, the British government placed the
6-6. Nationality as a Concept of International Law. a. matter before the Council of the League of Nations. France there
General concepts. The preceding discussion has been argued that the dispute arose out of a matter solely within its domestic
jurisdiction, and the Council requested an advisory opinion of the Per-
directed toward an appreciation of the inherent semantic
manent Court of International Justice on the preliminary question
difficulties involved in the study of nationality and to not- whether the dispute between France and Great Britain was "by interna-
ing those problems which appear to be, but are not, within tional law solely a matter of domestic jurisdiction (article 15, paragraph 8
the ambit of the international law of nationality. For the of the Covenant). . . ."I
purposes of a study of substantive principles, the content The question whether a certain matter is or is not solely within the ju-
risdiction of a State is an essentially relative question; it depends upon
of the international law of nationality may be said to be
the development of international relations. Thus, in the present state of
those rules of law which define the relative rights of states international law, questions of nationality are, in the opinion of the
regarding the relationship between themselves and foreign Court, in principle within this reserved domain.
persons, a relationship which is governed, at least in part, For the purpose of the present opinion, it is enough to observe that it
by rules of international law. 22 The international law of may well happen that, in a matter which, like that of nationality, is not,
in principle, regulated by international law, the right of a State to use its
nationality is not concerned with all the rights and duties
discretion is nevertheless restricted by obligations which it may have un-
of states, but only those which concern the relationship dertaken towards other States. In such a case,jurisdiction which, in prin-
between one or more states [the subjects of international ciple, belongs solely to the State, is limited by rules of international law.
law] and foreign persons [the objects of international ...
[The Court held that the nationality decrees had to be considered in
law]. 23
the light of a number of international agreements invoked by France
It is through the medium of their nationality that individuals can nor- and Great Britain; for that reason, the dispute did not arise out of a mat-
mally enjoy benefits from the existence of the Law of Nations. This is a ter solely within France's domestic jurisdiction.]
fact which has consequence over the whole area of International Law. 24 *
It is obvious that while mental segregation of municipal
CONVENTION ON CERTAIN QUESTIONS RELATING TO
and international law of nationality is essential to clarity of THE CONFLICT OF NATIONALITY LAWS
thought, physical segregation of the two in discussion is %gned at The Hague, April 12, 1930
impossible. This results from the fact that it isnecessary to 179 L.N.T.S. 89, 5 Hudson, Int'l Legislation 359
consider simultaneously the rules which the sovereigns Art. 1. It is for each State to determine under its own law who are its
nationals. This law shall be recognized by other States in so far as it is
have imposed upon their subjects and the effect these
consistent with international conventions, international custom, and the
rules have upon the relative rights of various sovereigns; principles of law generally recognized with regard to nationality.
and conversely, the effect the rights of various sovereigns Art. 2. Any question as to whether a person possesses the nationality
as to one another has had upon the rules which each en- of a particular State shall be determined in accordance with the law of
forces on its own subjects. In the words of a United States that State.
Court of Appeals: "Each country determines for itself Art. 3. Subject to the provisions of the present Convention, a person
having two or more nationalities may be regarded as its national by each
who are its nationals, subject to certain limitations on ex- of the States whose nationality he possesses.
pansive claims imposed by international law." 25
(2) What limits does international law, particularly
b. Determination of nationality under International
"international custom" and "the principles of law
Law.
generally recognized with regard to nationality," impose
(1) Limitations imposed by International Law.
on the power of states to legislate on matters of na-
NATIONALITY DECREES IN TUNIS AND MOROCCO
tionality? Harvard Research in hternational Law sug-
(GREAT BRITAIN v. FRANCE)
Permanent Court of International Justice, 1923
gested in 1929 that the power of a state to confer its na-
P.C.I.J., Ser. B, No. 4; 1 Hudson, World Ct.Rep. 143
tionality was "not unlimited," observing that although it
[Decrees promulgated in Tunis and Morocco on November 8, 1921, may be dficult to specifjr the limitation imposed by inter- ,
declared every person born in Tunis or the French zone of Morocco of national law on the power of a state to confer its na-
parents at least one of whom was a foreigner who had also been born tionality, "it is obvious that some limitations do exist." 26
there to be, subject to certain conditions of proof, a French national.
The British government objected to the enforcement of the demes (par- (3) The Hague Codification Conference of 1930 was
ticularly with respect to forcible induction into military service) against unable to agree upon a more precise formulation than that
persons who were the descendants of British subjects and therefore, adopted in Article 1of the Convention on Conflict of Na-
under British law, themselves British subjects. France having refused to tionality Laws quoted above. However, a number of par-
21. Terhoch v. Daudin et Assistance Publique France, [I9471 ticipating governments asserted that states were not obli-
Ann.Dig. 121 (No. 64). gated under international law to recognize nationality con-
22. See P. Weis, supra, note 7, at 34-35 for the complexities that ferred upon a person in the absence of some generally
may arise in attempting to outline clearly the scope of such a law. recognized relationships or co~ection between the per-
23. As noted in chapter 1 and throughout this publication, the
above subject-object distinction is still generally observed in nationality son and the state claiming him as its national. The Ger-
matters. See generally, H. Briggs, The Law of Nations, 64, 93-98 (2d man Government, for example, stated:
ed. 1952).
24. 1 L. hpenheim, supra, note 8 at 640. 26. Harvard Research in International Law, The Law of Na-
25. United States ex re/.Schwarzkopf v. Uhl, 137 F.2d 898 (1943). tionaliry, Art. 2, 23 Am. J. Int7Spec. Supp. 11, 24-27 (1929).