706 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 Notwithstanding the conventional understanding to the contrary, Nottebohm was not a case about dual nationality, for under no version of the facts did he hold that status.71 But the decision had much to say about international law’s posture toward the status.72 Dual nationality (or “double nationality,” as it was more commonly known before the middle of the twentieth century)73 posed a great threat to international stability in a world in which states could do as they pleased to their own nationals at the same time that the doctrine of diplomatic protection constrained what they could do to the nationals of other sovereigns.74 The status was universally decried.75 So serious were its destabilizing tendencies that the issue assumed a thick moral overlay. Dual nationality wasn’t just a problem; it was an abomination, an offense to nature, a sin on the order of bigamy.76 The status could be eliminated only by harmonizing nationality practices; so long as states variably maintained regimes of jus soli and jus sanguinis in the face of migration, dual nationality would inevitably result. The Hague codification process was in its most ambitious conception aimed at achieving such harmonization. Short of that unattainable goal, the effort aimed to vitiate the frictions that arose when one state of nationality sought to exercise diplomatic protection against the other state of nationality—which had given rise to frequent bilateral disputes. As a sort of fallback position short of eliminating the status altogether, some asserted a rule precluding protection in those circumstances. The Hague Convention adopted that position.77 This approach gained little traction. States—and particularly the United States in the context of mass migration from Europe—were unwilling to surrender sovereign rights of protection insofar as they perceived an individual to be theirs exclusively. With perpetual allegiance and expansive regimes of citizenship, some states persisted in claiming individuals who otherwise maintained no continuing effective or affective ties to their or their parents’ homelands. States of naturalization or birth, meanwhile, often considered it important to preserve diplomatic protection in relation to the individual’s other state of nationality since that state was most likely to harm that individual’s interests. A typical scenario in the late nineteenth century involved an American born to immigrant parents or a long-ago naturalized citizen returning sufficient “title” to exercise protection, as if its national were a kind of property. See Nottebohm, 1955 ICJ REP. at 17–20. This vocabulary reinforces the comparison between sovereign claims to territory and to people. 71 Nottebohm held nationality only in Liechtenstein. His German nationality was terminated upon naturalization there; under section 25 of the 1913 German law on citizenship, a German not resident in Germany lost his citizenship on acquiring a foreign citizenship. See 8 AJIL SUPP. 217 (1914) (reproducing 1913 German law). Nor did he hold Guatemalan nationality. See 1955 ICJ REP. at 41– 42 (Read, J., dissenting) (asserting inapplicability of practice relating to dual nationality to Nottebohm’s case); see also Sloane, supra note 62, at 15. 72 The Court itself clearly saw the case as salient to dual nationality, drawing on the approach of arbitral tribunals to cases involving dual nationals. See Nottebohm, 1955 ICJ REP. at 21–23. 73 See Spiro, supra note 24, at 1431 n.84. 74 This problem was a far more pressing one than that resulting from the unusual fact pattern in Nottebohm. 75 See Spiro, supra note 24; see also League of Nations Experts Committee, supra note 13, at 32 (“double nationality . . . represents an absolutely abnormal phase in international life”). 76 As one prominent U.S. official observed in 1849, states should “as soon tolerate a man with two wives as a man with two countries; as soon bear with polygamy as that state of double allegiance which common sense so repudiates that it has not even coined a word to express it.” George Bancroft, Letter to Lord Palmerston ( Jan. 26, 1849), reprinted in S. EXEC. DOC. 36 –38, at 164 (1850); see also Spiro, supra note 24, at 1430 –31 (citing other examples). The analogy lingers even today. See, e.g., GEORGIE ANNE GEYER, AMERICANS NO MORE 68 (1996) (asserting that dual citizenship is “akin to bigamy”). 77 Article 4 provided that a “State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.” Hague Convention on Nationality, supra note 16, Art. 4. 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