2018] NATIONALITY AND DEFINING “THE RIGHT TO HAVE RIGHTS”
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States that had not acceded to the Hague Convention took it upon
themselves to revise their nationality laws in accordance with the
Hague Convention. 72 Altogether, the majority of States had yet to
incorporate the provisions of the Committee’s model statute or the
stipulations of the Hague Convention into their municipal laws by the
start of World War II. 73 Instead, States including the Soviet Union,
Turkey, and Italy implemented nationality-stripping decrees and legislation. 74 Ethnic minorities, and Jews in particular, were denationalized or denied nationality throughout Europe. 75
Though customary international law regarding States’ nationality practices did not crystallize—for want of “extensive” and generally uniform State practice supported by opinio juris 76—treaties
concluded in response to World War I still altered the nature of
States’ obligations to one another and to individuals within their jurisdiction. The promulgation of treaties regulating nationality reflected a stark break from pre-war practice. The growing support for
regulation of nationality at the international level would be critical
for the development of law in the post-World War II period.
1. What It Meant to Have a Nationality
Nationality enabled States to “exercise the right of diplomatic
protection on behalf of [an injured] person.” 77 The Committee 78 and
the Draft Convention 79 suggested that nationality also bore on States’
ability to conscript and expel individuals. Relatedly, passport practice from the interwar period suggested that nationality bore on
72. Id.
73. Id.
74. VISHNIAK, supra note 38, at 21–23.
75. Id. at 19.
76. ANTONIO CASSESE, INTERNATIONAL LAW 157 (2d ed., 2005).
77. First Codification Conference: Schedules of Points Drawn up by the Preparatory
Committee for Submission to the Governments, League of Nations Doc. C.44.M.21 1928 V
(1928). This is further evident from the work done by the Committee and from the
preliminary draft convention produced by the League Committee of Experts, which
foregrounded diplomatic protection in its proposed Article 1.
78. Id. at 32.
79. Article 11 provides that individuals with multiple nationalities cannot be
conscripted by one State of nationality if they reside in another State of nationality. Article
20 provides that States must allow their nationals, as well as their former nationals, if
stateless, entry upon their expulsion or exclusion from the territory of another State.
ZILBERSHATS, supra note 64, at 188–89 (reprinting the Draft Convention).
Electronic copy available at: https://ssrn.com/abstract=2954729