2018] NATIONALITY AND DEFINING “THE RIGHT TO HAVE RIGHTS” S861 2. What It Meant to Have a Nationality Additional ILA conference materials, though not focused specifically on nationality, further clarify the implications of nationality in the prewar period. In 1879, a discussion on the slave trade and piracy touched on the role of nationality in determining the scope of States’ extraterritorial jurisdiction. 24 In an early articulation of universal jurisdiction over pirates, the ILA endorsed the notion that the courts of any State could try pirates, “without regard to their nationality.” 25 Impliedly, nationality was relevant for determining the scope of States’ extraterritorial jurisdiction. A 1907 paper regarding the exercise of diplomatic protection—the process through which a State invokes the responsibility of another State for its injury to an individual 26—articulated that diplomatic protection was the “right” of the national and the “duty” of the State. 27 The paper recognized that States, within their municipal laws or through ministerial decision, could deny certain nationals, or classes of nationals, diplomatic protection. 28 The exercise of diplomatic protection was contingent upon the ability of the national to “prove nationality,” through naturalization, descent, or birth on domestic soil. 29 Two ILA papers from this period, one from 1901 and another from 1892, curb the effect of nationality. The former, a discussion of neutrality and non-State actors, argued that nationality, alone, could not dictate the behavior of a neutral State’s nationals with respect to belligerent parties. 30 The latter, a discussion of domicile for the purpose of extradition, emphasized that most States distinguished between nationality and citizenship—or full, enfranchised membership of a State. In other words, most States would bestow on individuals “two distinct legal states or conditions, one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance . . . another by virtue of which he has ascribed to 24. The Slave Trade, 7 ASS’N REFORM & CODIFICATION L. NATIONS R. CONF. 224, 226 (1879). 25. Id. 26. Int’l Law Comm’n, Articles on Diplomatic Protection art. 1, [2006] Y.B. INT’L L. COMM’N 16, U.N. Doc. A/61/10. 27. Gaston de Leval, Diplomatic Protection of Citizens Abroad, 24 INT’L L. ASS’N R. CONF. 196, 197 (1907). 28. Id. at 198. 29. Id. at 199. 30. The Responsibility of Neutral States for Acts of Their Citizens, 20 INT’L L. ASS’N R. CONF. 394, 394 (1901). Electronic copy available at: https://ssrn.com/abstract=2954729