Nationality v. Recognition: when Reality Collides with Law, what Prevails?
| Author | R.J. Blaise MacLean |
| Pages | 55-89 |
Nationality v. Recognition:
when Reality Collides with Law, what Prevails?*
R.J. Blaise MacLean**
As ‘a manifestation of sovereignty, nationality is jealously
guarded by States’.1
Nationality has no positive, immutable meaning. On the
contrary its meaning and import have changed with the
changing character of states.2
“If international law is all but irrelevant to international
relations, as some
skeptics maintain, why do states spend so much time and
eort justifying their actions under international law? 3
* El presente capítulo es producto de las investigaciones sobre nacionalidad para el proyecto –Obser-
vatorio de derecho internacional – dentro de la línea “El derecho internacional a la luz de los diferentes
tribunales internacionales y nacionales”, parte del Grupo de Investigación en Derecho Internacional de la
facultad de Jurisprudencia de la Universidad del Rosario.
** Faculty of Law, Universidad del Rosario, Bogotá, Colombia, B.A.1980 (Acadia), LLB 1983 (Dal-
housie), B.Ed. 2003 (York), formerly on the Ontario and Nova Scotia bars.
1 PETERS, Anne, “Extraterritorial Nationalizations: Between the Human Right to Nationality,
State Sovereignty and Fair Principles of Jurisdiction” (2010) German YIL 623 at p. 624 (citing Johannes
M. Chen, “e Right to Nationality as a Human Right” [1990] 12 HRLJ 1).
2 “Harvard Research draft on e Law of Nationality”, American Journal of International Law,
(1929) Vol. 23, Spec. Suppl. 13, at p. 21
3 BORGEN, Christopher J., “e Language of Law and the Practice of Politics: Great Powers and
the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia”, (2009) 10 Chi. J. Int’l L. 1
Derecho internacional: varias visiones, un maestro
Introduction
e concept of “nationality” exists on two planes…the national or municipal
plane and on the international plane. While international law pays deference to
State rules on nationality, this is subject to exceptions. International recognition
of nationality is a separate and distinct issue from the right of States to dene
who their nationals are4.
It is considered a benet for individuals to have a “nationality”; indeed, as
we shall discuss below, it has evolved into a “right”. A number of conventions
and international instruments have come into force seeking to avoid “state-
lessness”. In e Case of the Girls Yean and Bosico the Inter-American Court
of Human Rights said:
e importance of nationality is that, as the legal and political bond that
connects a person to a specic State, it allows the individual to acquire
and exercise rights and obligations inherent in membership in a political
community. As such, nationality is a requirement for the exercise of spe-
cic rights5.
us, an individual possessing no internationally recognized “nationality”
is unable to exercise those rights6. e adverse consequences of lack of nationa-
4 Nottebohm Case, (Liechtenstein v. Guatemala). Second Phase, 1955 ICJ Reports 1955, at p. 23
5 Inter-American Court of Human Rights, e Case of the Girls Yean and Bosico, Judgment of 8
September 2005, Para. 137.
6 Even if is not the mean subject of this article, an example of these situation could be found in the
article 25 of the Convention on the Settlement of Investment Disputes Between States and Nationals of
Other States - International Centre for Settlement Of Investment Disputes, Washington, 1965 which statues
as follows:
“1. e jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment,
between a Contracting State (or any constituent subdivision or agency of a Contracting State designated
to the Centre by that State) and a national of another Contracting State, which the parties to the dispute
consent in writing to submit to the Centre. When the parties have given their consent, no party may with-
draw its consent unilaterally.
2. “National of another Contracting State” means:
(a) any natural person who had the nationality of a Contracting State other than the State party to the
dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration as
well as on the date on which the request was registered pursuant to paragraph (3) of Article 28 or paragraph
(3) of Article 36, but does not include any person who on either date also had the nationality of the Con-
tracting State party to the dispute; and
(b) any juridical person which had the nationality of a Contracting State other than the State party to
the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration
and any juridical person which had the nationality of the Contracting State party to the dispute on that date
Nationality v. Recognition: when Reality Collides with Law, what Prevails?
lity range from inconvenience to prejudice, as Taiwanese and Palestinians can
attest to.
Yet a nationality, at least an undesired one, may not always be a benet. Natio-
nality may, on occasion, not be sought or born into, but imposed. Some states do
not permit their citizens to renounce their nationality and regard them as subject
to their State’s laws at all times, even if the individuals have ed the country. Dual
nationality can present obstacles in terms of the availability of diplomatic pro-
tection and consular protection7. Even the ability to travel freely can be aected.
It is important to highlight that the meaning of “nationality” carries both
a legal and ethnic signicance8. is article seeks to examine the issue of loss of
nationality through a process which, in itself, could constitute an internationally
wrongful act. is is distinct from the situation in which “a people” has never
had a state (for example Palestinians9) or a people who govern themselves auto-
nomously but whose territory continues to be recognized as part of the “mother
country” (for example Taiwan). Rather, a question arises as to whether a people
can lose their nationality through an act that could well be an international
wrong. A number of examples of this exist, including citizens of the Republic of
Georgia living in the region of South Ossetia and the very interesting problem
presented by the Chinese occupation10 of Tibet.
May a nationality, at risk under municipal law, survive at international law,
to examine this topic the article shall employ the following methodology. Part
One, examines the meaning of nationality and the interplay of municipal and
international law in respect of recognition of nationality, including the meaning
and which, because of foreign control, the parties have agreed should be treated as a national of another
Contracting State for the purposes of this Convention (…)”.
7 See MacLean, R.J. Blaise, “Fresh Hay from Old Fields: e Continuing Usefulness of Diplomatic
Protection”.
8 In her 1927 article “e Eect of Changes of Sovereignty on Nationality” (1927) 21 AJIL 268 at
note 1, C. Luella Gettys stipulates from the outset that there there is a distinction between the juridical and
ethnological conception of “nationality”. Also, see generally Jerey L. Blackman, “State Successions and
Statelessness: e Emerging Right to an Eective Nationality Under International Law”, (1998) 19 Mich.
J. Int’l. L 1141, p. 1145-1151.
9 It should be noted, however, that uidity in the denition of nationality has allowed some writers
to posit that there is a Palestinian nationality. is is a subject for another paper.
10 e term “occupation” is used while recognizing the People’s Republic of China’s position that
Tibet is and has always been an integral part of China. is issue will be explored below.
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