2011] AN INTERNATIONAL LAW OF CITIZENSHIP 699 Naturalization in such a case, according to Hall, would have been “inconsistent with a due recognition of the independence of the state to which he belongs.”15 A universally respected corollary prohibited states from imposing nationality on children born in their territory to envoys from other states.16 The principle was contested in cases where states attributed nationality on foreigners by operation of law— on the basis, for instance, of owning property, residing in the state, or holding certain professional appointments (such as a faculty position at a national university).17 The weight of opinion in these cases held against the validity of extending nationality to such individuals when they had not formally undertaken to naturalize.18 States could not, in other words, draw the lines of human community in an arbitrary, overinclusive fashion, in much the same way that they could not redraw territorial maps to include lands to which they had no rightful claim. But the constraint was a minor one, an exception that effectively proved the rule. Although states coveted individuals as much as they coveted territory (for manpower was an important determinant of state power),19 they had little incentive to claim those clearly beyond their reach. In the overwhelming majority of cases, nationality was extended on either a jus soli or jus sanguinis basis—that is, in cases in which a person had either been born in the territory of a state or born of a parent who was a national. There was no effort to limit state prerogatives to determine nationality on those criteria. As Hall put it, “where a difference of legal theory can exist international law has made no choice, and it is left open to states to act as they like.”20 Not that nationality practices were otherwise off the international radar screen. On the contrary, nationality practice was an important source of serious interstate difficulties. Nationality produced little contention in times of relatively sedentary populations; indeed, the concept of nationality emerged only in the nineteenth century (thus explaining its absence from earlier legal treatises).21 So long as people largely lived and died where they were born, states had little to be United Kingdom nationals, . . . then prima facie certain general principles of international law would have been violated.”). 15 HALL, supra note 12, at 195. 16 Brownlie, supra note 14, at 304 – 05; see also Convention on Certain Questions Relating to the Conflict of Nationality Laws, Art. 12, Apr. 12, 1930, 179 LNTS 89, at http://www.unhcr.org/refworld/docid/3ae6b3b00. html [hereinafter Hague Convention on Nationality] (“Rules of law which confer nationality by reason of birth on the territory of a State shall not apply automatically to children born to persons enjoying diplomatic immunities in the country where the birth occurs.”). 17 International Law Commission, Report on Nationality, Including Statelessness, 1952 Y.B. INT’L L. COMM’N 3, 8, UN Doc. A/CN.4/50/1952 (1952) (prepared by Special Rapporteur Manley O. Hudson) [hereinafter Hudson Report on Nationality]. 18 See 3 MOORE, supra note 6, at 302– 03 (describing 1840 U.S. protest of Peruvian law extending citizenship on the basis of property ownership); id. at 308 (in response to 1890 Brazilian law, U.S. secretary of state asserted that “[t]o hold that the mere residence of an individual in a foreign country was conclusive evidence of his desire and intention to become one of its citizens would . . . involve an assumption of the most violent character”); see also EDWIN BORCHARD, THE DIPLOMATIC PROTECTION OF CITIZENS ABROAD 43 (1919) (a state “cannot confer citizenship upon [an individual] against his will, or without his manifesting an intention to change nationality”). But see Brownlie, supra note 14, at 306 – 07 (questioning rule against “involuntary” naturalization). 19 See, e.g., JOHN C. TORPEY, THE INVENTION OF THE PASSPORT: SURVEILLANCE, CITIZENSHIP, AND THE STATE 72 (2000). 20 HALL, supra note 12, at 233; see also Kay Hailbronner, Nationality in Public International Law and European Law, in 1 ACQUISITION AND LOSS OF NATIONALITY, supra note 5, at 35, 54 (“[s]carcely any dispute exists that the two criteria are sanctioned by customary international law”). 21 See, e.g., PATRICK WEIL, HOW TO BE FRENCH: NATIONALITY IN THE MAKING SINCE 1789, at 258 –259 (2008) (explaining origins of term); DONNER, supra note 3, at 21 (noting that Grotius did not address the concept of nationality as such). 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