Weaponisation of citizenship: two wrongs will not make a right (or respect rights) Bronwen Manby* Neha Jain calls both for existing international law norms on nationality to be beefed up and enforced, and for nationality law to be transformed so that state discretion is further constrained.148 She urges that attention should be paid not only to deprivation of nationality and statelessness but also to the establishment of principles to evaluate ‘what types of conduct would constitute valid individual consent for the purposes of extraterritorial nationality attribution’. The reason for this focus is especially the Russian invasion of Ukraine, and Russian “passportisation” of Ukrainian citizens, in which Russia has carried out a mass naturalization of those resident in the occupied territories – nominally voluntary, but in practice under forms of coercion whose details will no doubt emerge over time. It is hard to disagree with these calls – even if, like the other contributors to this forum, we despair of the likelihood of success. But in this piece, I want to warn also about unintended consequences of non-recognition of nationality that has been imposed in violation of (even existing) international law, with particular reference to the Moroccan nationality attributed to residents of the former Spanish territory of Western Sahara, occupied by Morocco since 1975 in defiance of rulings from a range of international bodies, starting with the International Court of Justice.149 Imposition of nationality in international law In some ways, Neha Jain is returning to the origins of international norms on nationality. Before the institution of the post-war legal regime under the UN Charter, international law was more concerned about questions of wrongful attribution of nationality than it was about deprivation of nationality or statelessness. The principal concern was that a state’s imposition of nationality on individuals that it could not reasonably claim as its own would infringe on the sovereignty of other states. This indeed was the issue considered in the 1923 Advisory Opinion requested by Britain and France from the Permanent Court of International Justice on the Nationality Decrees issued in Tunis and Morocco,150 which established the first limits to state discretion in nationality matters. At that time, Tunis and Morocco were French protectorates, established by treaty in 1881 and 1912 respectively. In 1921, in agreement with France, the monarchs of the two territories under French “protection”, adopted laws regulating questions of nationality, in which it was stated that a person born in either Tunis or Morocco of one parent also born there would acquire nationality of that protectorate automatically. This rule of “double ius soli” – which would not raise an eyebrow among international lawyers today – was considered by Britain to be an infringement on the rights of the children of British subjects born in the territories, imposing on them a nationality against their will. The PCIJ opinion was the first authoritative statement that there were limits to national discretion in nationality matters. These limits related to the obligations undertaken by France towards other states in the treaties establishing the protectorates. The principle that other states would recognize nationality laws only in so far as they are ‘consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality’ was then enshrined in Article 1 of The Hague Convention of 1930 on Certain Questions Relating to the Conflict of Nationality Laws.151 * 148 149 150 European University Institute Jain 2022. Western Sahara, Advisory Opinion, [1975] ICJ Rep 12, 16 October 1975. Advisory Opinion No. 4, Nationality Decrees Issued in Tunis and Morocco, 4, Permanent Court of International Justice, 7 February 1923. 151 Convention on Certain Questions Relating to the Conflict of Nationality Law, 13 April 1930, 179 League of Nations series 89, No. 4137. European University Institute 28