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reinserted because of the persistence 146 of the French delegate, distinguished human rights advocate René Cassin, who insisted that
“[e]very person had a right to legal protection.” 147
The categorical inaccessibility of diplomatic protection would
render an individual stateless. Notwithstanding the primacy of diplomatic protection, the “mere fact of protection,” alone, could not
render an individual a national of the protecting State. 148
ii. Right of Entry
The passport practices that arose during World War I and solidified through World War II—exacerbating the mass displacement
crisis—rendered the right of entry a second salient component of nationality. Scholars argued that post-World War II customary international law obligated States to admit their own nationals. 149 Paul Weis
suggested that the obligation to admit was an obligation “inherent” in
the concept of nationality. 150 H.F. van Panhuys wrote that “[t]he duty to admit nationals is considered so important a consequence of nationality that it is almost equated with it.” 151 Judgments from international tribunals 152 and the practice of States 153 confirm that the
right to entry inhered in nationality. 154
146. Comm’n on Human Rights, Summary Record of the Sixtieth Meeting of the
Commission on Human Rights, U.N. Doc. E/CN.4/SR.60 (June 23, 1948); Comm’n on
Human Rights, Ninety-Second Meeting, U.N. Doc. A/C.3/SR.92 (Oct. 2, 1948); Comm’n on
Human Rights, France: Amendments to the Draft Declaration, U.N. Doc. A/C.3/244 (Oct. 8,
1948); Comm’n on Human Rights, Hundred and Twenty-Second Meeting, U.N. Doc.
A/C.3/SR.122 (Nov. 4, 1948).
147. Id.
148. PANHUYS, supra note 115, at 65. Note that several treaties concluded in the context
of demilitarization or decolonization entitled former powers to exercise diplomatic
protection on behalf of their denationalized former-nationals. See, e.g., Treaty of Versailles
art. 127, June 28, 1919, 2 Bevans 235 (“[T]he native inhabitants of the former German
oversea possessions shall be entitled to the diplomatic protection of the Governments
exercising authority over those territories.”).
149. WEIS, supra note 1, at 47; PANHUYS, supra note 115, at 55–56; PLENDER, supra
note 125, at 133.
150. WEIS, supra note 1, at 47.
151. PANHUYS, supra note 115, at 55–56.
152. See, e.g., Van Duyn v. Home Office, Case 41/74, (European Court of Justice, 1974).
153. PLENDER, supra note 125, at 135 (listing roughly fifty States, including Chile,
Egypt, Malaysia, and Spain, that have constitutional provisions protecting their nationals’
right to entry and noting that several States, like India and the United Kingdom, link the
right to entry and the right of residence).
154. See, e.g., R. v. Soon Gin An, 3 D.L.R. 125 (Canada, 1941).
Electronic copy available at: https://ssrn.com/abstract=2954729