2018] NATIONALITY AND DEFINING “THE RIGHT TO HAVE RIGHTS”
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There exists some measure of scholarly dispute over to whom
States owed the obligation to admit. 155 Weis and Panhuys, two of the
foremost scholars on post-World War II nationality in international
law, suggested that the obligation resulted in “a duty of a State towards another State” as an extension of States’ territorial integrity. 156
Richard Plender, citing to the UDHR, post-World War II human
rights treaties, and States’ practice of accepting their unlawfully expelled nationals, countered that norms had crystallized in a manner
recognizing individuals’ right of entry. 157 Discussions regarding the
UDHR’s inclusion of the right to return, or nationals’ right of entry,
support Plender’s interpretation; State representatives asserted that it
was “logical” that every person had the right to return to his or her
own State. 158
2. The Relationship Between Nationality and Citizenship
The travaux préparatoires for the UDHR show that State representatives ultimately distinguished between nationality and citizenship and did not consider the former to include political rights. Initially, there was considerable confusion among the State
representatives regarding the meaning of legal nationality, as compared to historico-biological nationality 159 and citizenship. 160 Only
upon clarification from the French, Belgian, and Dutch representatives, who argued that “nationality and the right of asylum were
closely linked” 161 and that nationality bore on the availability of legal
155. WEIS, supra note 1, at 50; PLENDER, supra note 125, at 133–34.
156. PANHUYS, supra note 115, at 57.
157. See PLENDER, supra note 125, at 133–39.
158. Comm’n on Human Rights, Hundred and Twentieth Meeting, U.N. Doc.
A/C.3/SR.120 (Nov. 2, 1948).
159. See, e.g., Comm’n on Human Rights, Sub-Comm’n on Prevention of
Discrimination and Protection of Minorities, First Session: Summary Record of Fifth
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.5 (Nov. 27, 1947) (statement from Australian
representative McNamara) (addressing the confusion of the Belgian representative by
suggesting that “national origin” is “synonymous with nationality, but . . . might also have a
wider meaning”). For a brief discussion of the distinction between legal nationality and
historico-biological nationality, see supra note 1.
160. See, e.g., Comm’n on Human Rights, Sub-Comm’n on Prevention of
Discrimination and Protection of Minorities, First Session: Summary Record of Eleventh
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.11 (Dec. 1, 1947) (“Mr. McNamara (Australia)
thought that some members had a different idea of the concept of ‘nationality.’ Mr. Borisov
appeared to interpret it as meaning the citizenship of a State.”).
161. Comm’n on Human Rights, Second Session:
Meeting, supra note 134.
Summary Record of the Fifth
Electronic copy available at: https://ssrn.com/abstract=2954729