698 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 emerged only when state practice impinged on the interests of other states by drawing their membership circles too broadly— especially when they laid claim to individuals over whom other states might establish better claims. International law confronted these issues as conflicts questions that did not, in theory, challenge a state’s established prerogative to define membership. This characterization fits the most famous ruling on nationality practice from an international tribunal, the Nottebohm decision from the International Court of Justice.11 International law had something to say about nationality, but only as a matter of order management. The early law of nationality was bounded by the interests of states vis-a-vis each other, not the interests of individuals. Only with the dawn of the human rights revolution in the mid-twentieth century did international law come tentatively to pose an alternate conception of nationality, one that took rights into account— but even then, only in ways that minimally affected the identity function of national rules. Early-Era Failures Nineteenth- and early-twentieth-century international law commentators disclaimed any international legal constraint on nationality determinations. In his late nineteenth-century treatise, W. E. Hall found that “[i]t follows from the independence of a state that it may grant or refuse the privileges of political membership . . . . Primarily therefore it is a question of municipal law to decide whether a given individual is to be considered a subject or citizen of a particular state.”12 Four decades later, in 1926, Szymon Rundstein observed that “[t]here can be no doubt that nationality questions must be regarded as problems which are exclusively subject to the internal legislation of individual States. It is, indeed, the sphere in which the principles of sovereignty find their most definite application.”13 The sole exception to the full discretion afforded states regarding nationality involved the extension of that status to individuals to whom a state could not reasonable lay claim. As the Harvard Research observed: If State A should attempt . . . to naturalize persons who have never had any connection with State A, who have never been within its territory, who have never acted in its territory, who have no relation whatever to any persons who have been its nationals, and who are nationals of other states, it would seem that State A would clearly have gone beyond the limits set by international law.14 11 Nottebohm (Liech. v. Guat.), 1955 ICJ REP. 4 (Apr. 6). WILLIAM EDWARD HALL, A TREATISE ON INTERNATIONAL LAW 200 (2d ed. 1884). 13 See League of Nations Committee of Experts for the Progressive Codification of International Law, Nationality, 20 AJIL 21, 23 (Special Supp. 1926) [hereinafter League of Nations Experts Committee] (“There is no rule of international law, whether customary or written, which might be regarded as constituting any restriction of, or exception to” the exclusive jurisdiction of individual states.); see also, e.g., PAUL WEIS, NATIONALITY AND STATELESSNESS IN INTERNATIONAL LAW 102 (1956) (“The power of a state to confer its nationality is derived from its sovereignty. It is an attribute of territorial supremacy.”); R. S. Fraser, Nationality and Expatriation, in INTERNATIONAL LAW ASSOCIATION, REPORT OF THE THIRTY-THIRD CONFERENCE 54, 57 (1924) (“With the rise and growth of nations in Europe the doctrine of absolute sovereignty developed pari passu and carried with it a corresponding development of the doctrine of nationality.”). 14 Harvard Research, supra note 9, at 26 (further suggesting that if a state “should attempt to naturalize all persons living outside its territory but within 500 miles of its frontier, it would clearly have passed those limits; or similarly if [it] should attempt to naturalize all persons in the world holding a particular political or religious faith or belonging to a particular race”); Ian Brownlie, The Relations of Nationality in Public International Law, 1963 BRIT. Y.B. INT’L L. 284, 295 (“If the United Kingdom were to declare that all French nationals living in Brittany were henceforth 12 This content downloaded from 82.196.111.31 on Thu, 07 Oct 2021 15:20:30 UTC All use subject to https://about.jstor.org/terms