2022
Statelessness & Citizenship Review
4(2)
relationship between nationality and citizenship.14 For them, nationality as
citizenship can, for the most part, be used interchangeably. In this article, I follow
their approach.
However, it is not clear whether the concept of statelessness is meant to address
this connection, as the denial of citizenship rights does not render someone
stateless under the current legal framework. In law, nationality can function
independently of citizenship and vice versa.15 Georg Schwarzenberger, for
instance, contends that ‘[f]or the purposes of his own municipal law, a [state] may
deny to groups of inhabitants … all or most rights of citizenship, yet still consider
himself entitled to protect them in relation to other subjects of international law’.16
Referring to Sigismund Gargas’ early enquiry, The Stateless, in 1928, Paul Weis
makes the same point. He argues that ‘[c]onceptually and linguistically, the terms
“nationality” and “citizenship” emphasize two different aspects of the same
notion: State membership. “Nationality” stresses the international, “citizenship”
the national, municipal, aspect’.17
Hence, the second understanding of nationality takes individuals to have a
position in international law through their attachment to their country of
nationality.18 As seen in the previous paragraph, the concept of statelessness has
historically described this lack of attachment. More precisely, the stateless are
either de jure or de facto without such a position in international law. Yet, even if
someone possesses a nationality and thereby, a position, it has not been clear what
that entails. In the following Part, I examine the most recent research and argue
that ordinary individuals must be seen as objects of international law.
1
Object Versus Subject Theory
Tracing back to the 18th century and Emer de Vattel’s work, The Law of Nations,19
the so-called object theory holds that individuals, unlike states, cannot be subjects
of international law. The theory instead claims that they are mere objects,
comparable to ships and territory,20 ostensibly worthy of protection by the country
of nationality against other countries.21 The object theory is based on the following
disjunctive syllogism:
Binary premise: Individuals must either be a subject or an object of
international law.
Elimination premise: Individuals cannot be a subject of international law.
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21
Alice Edwards, ‘The Meaning of Nationality in International Law in an Era of Human Rights:
Procedural and Substantive Aspects’ in Alice Edwards and Laura van Waas (eds), Nationality
and Statelessness under International Law (Cambridge University Press 2014) 14.
Therefore, some states, such as Honduras, Bolivia, Mexico and Latvia, clearly distinguish
between nationality and citizenship: Delia Rudan, ‘Nationality and Political Rights’, in Serena
Forlati and Alessandra Annoni (eds), The Changing Role of Nationality in International Law
(Routledge, 1st edn, 2013) 117, 117.
Georg Schwarzenberger, A Manual of International Law (Professional Books Ltd, 6th edn,
1976) 141–42.
Paul Weis, Nationality and Statelessness in International Law (Brill 1979) 4–5.
L Oppenheim, International Law — A Treatise (Longmans and Green, 2nd Edn, 1912) vol 1,
366.
Kate Parlett, The Individual in the International Legal System: Continuity and Change in
International Law (Cambridge University Press 2011) 10.
George Manner, ‘The Object Theory of the Individual in International Law’ (1952) 46
American Journal of International Law 428, 429.
ibid 428–29.
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