(p. 882) Double Nationality and Statelessness
Borchard, §§ 11, 253–62 Kunz, Die vülkerrechtliche Option, ii (1928), pp 290–301, and Ostrecht, ii (1928), pp 401–37 Van Pittius, Nationality within the British Commonwealth of Nations (1930), pp 131–50 Colanéri, De La Condition des ‘Sans-patrie’ (1932) Seckler-Hudson, Statelessness: With special reference to the United States (1934) Lipovano, L’apatridie (1935) Vishniac, Legal Status of Stateless Persons (1945) Flournoy, Yale LJ, 31 (1922), pp 702–19, 848–68, and AS Proceedings, 1925, pp 69–78 Audinet, 52 Clunet (1925), pp 882–96 ILA Rep, 33 (1925), pp 25–53 Gargas, Bibliotheca Visseriana, 7 (1928), pp 1–130 Répertoire, iv, pp 638–93, and viii, pp 557–74 Bouvé, AS Proceedings, 1928, pp 31–50 Becker, ZV, 15 (1930), pp 478–518 Vichniac, Hag R, 43 (1933), i, pp 119–246 Philonenko, Clunet, 60 (1933), pp 1161–87 Scheftel, ibid, 61 (1934), pp 36–69 François, Hag R, 53 (1935), iii, pp 287–374 Louis-Lucas, ibid, 64 (1938), ii, pp 5–65 Biscottini, Rivista, 32 (1940), pp 379–422 Loewenfeld, Grotius Society, 27 (1941), pp 59–112 A Study of Statelessness (United Nations Department of Social Affairs, 1949) International Law Association Report, 44 (1950), pp 36–62 Samore, AJ, 45 (1951), pp 476–94 Parry, BY, 30 (1953), pp 244–92, and Nationality and Citizenship (1957), pp 22–7, 123–30 UN Secretariat, Survey of the Problem of Multiple Nationality, YBILC, 1954, vol II, pp 52–111 Weis, Clunet, 83 (1956), pp 4–69, and Nationality and Statelessness, pp 161–203 Bar-Yaacov, Dual Nationality (1961) De Castro, Hag R, 102 (1962), i, pp 588–632 Mutharika, The Regulation of Statelessness Under International and National Law (1977) See also § 399, n 1, as to refugees.
§ 392 Possibility of double nationality and statelessness
As international law has no comprehensive and generally binding rules concerning acquisition and loss of nationality, and as the laws of the different states differ in many points concerning this matter, the necessary consequence is that an individual may possess more than one nationality as easily as none at all. The points to be discussed here are therefore:
References(p. 883) § 393 How double nationality occurs
An individual may possess double nationality knowingly or unknowingly, and with or without intention.1 Double nationality may be produced by every mode of acquiring nationality. Even birth can invest a child with double nationality, as where a child is born in a state applying ius soli of parents who are nationals of a state applying ius sanguinis. Legitimation of an illegitimate child can produce the same effect, as where it acquires the nationality of one of its parents on their subsequent marriage but does not lose the different nationality (usually its mother’s) which it acquired at birth. Naturalisation in the narrower sense of the term is frequently a cause of double nationality, since individuals may apply for, and receive, naturalisation in a state without thereby losing the nationality of their home state.2
§ 394 Position of individuals with double nationality
The position of persons possessing double nationality (sometimes known as sujets mixtes) may be awkward, since they are nationals of two different states who both therefore claim their allegiance. In the event of war between these two states, an irreconcilable conflict of duties is created for these individuals.1 Each of the states claiming such an individual as its national is internationally competent to do this, although they cannot claim him against one another, since each of them correctly maintains that he is its national.2 However, against third states each of them appears as his sovereign, and it would therefore appear possible in principle for each of them to exercise its right of protection over him within third states,3 and for the third state to treat a person possessing two nationalities as a national of either of the two states whose nationality he possesses. The special problems which arise in cases of double nationality in the application of rules as to the nationality of claims are considered at § 151.
References(p. 884) In cases of plural nationality in particular there arises the question of the extent to which states are obliged to recognise another state’s competence to confer its nationality on an individual.4
§ 395 Regulation of double nationality by treaty
The inconveniences resulting from double nationality became particularly prominent in consequence of the changes of nationality arising out of the Peace Treaties of 1919, and this was probably one of the reasons why the Hague Codification Conference of 1930 reached agreement on certain aspects of the matter. The Convention on Certain Questions Relating to the Conflict of Nationality Laws1 expressly declares that a person having two or more nationalities may be regarded as its national by each of the states whose nationality he possesses (Art 3), and that a state may not give diplomatic protection to one of its nationals against a state whose nationality that person possesses (Art 4). Further, the Convention provides that if a person has more than one nationality, he shall, within a third state, be treated as if he had only one; in particular, it is laid down that that third state shall recognise exclusively either the nationality of the state in which he is habitually and principally resident, or the nationality of the state with which he appears in fact to be most closely connected (Art 5). The Convention thus gives effect to what may be called the principle of effective nationality.2 It is laid down that if a person, without any voluntary acts of his own, possesses double nationality, he may renounce one of them with the permission of the state whose nationality he wishes to surrender, but that, subject to the laws of the state concerned, such permission shall not be refused if that person has his habitual residence abroad References(p. 885) (Art 6). In a special Protocol Relating to Military Obligations in Certain Cases of Double Nationality3 it was agreed that if a person of two or more nationalities possesses the effective nationality of one country in the meaning described in Art 5, he shall be exempt from all military obligations in the other country or countries subject to the possible loss of nationality in those countries (Art 1).4 It is provided, secondly, that if a person possessing two or more nationalities is entitled, under the law of any of the states, to renounce its nationality on coming of age, he shall be exempt during his minority from military service in the state in question (Art 2).5 Finally, it is laid down that if under the law of a state a person has lost its nationality and has acquired another nationality, he shall be exempt from military obligations in the state whose nationality he has lost (Art 3).
Other treaties have been concluded which contain provisions designed to reduce occasions for, or to ameliorate the consequences of, the possession of double nationality. Article 8 of the Arab League Convention on Nationality 1954, provides a right of option for persons having the nationality of two or more states of the League, and if within two years they have not made an option, they are deemed to have opted for the nationality whose acquisition was most recent or, if they were acquired at the same time, for the nationality of the country of habitual residence.6 In 1963, the member states of the Council of Europe concluded a Convention on Reduction of Cases of Multiple Nationality and Military Obligations in cases of Multiple Nationality.7 This provides that a person who has the nationality of a contracting party shall lose it upon voluntarily acquiring the nationality of another party, that a person may renounce the nationality of a contracting party where he is a national of two or more contracting parties, and, where a person is a national of two or more contracting parties, that his military obligations are to be fulfilled in only one contracting party (usually determined by his place of ordinary residence). The International Law References(p. 886) Commission gave some preliminary consideration to the problem of multiple nationality from 1952 to 1954,8 but reached no final conclusions before deferring further consideration of the matter.9
§ 396 How statelessness occurs
An individual may be without nationality knowingly or unknowingly, intentionally or through no fault of his own. Even by birth a person may be stateless, as where an illegitimate child is born in a state which does not apply ius soli to an alien mother under whose national law the child does not acquire her nationality, or where a legitimate child is born in such a state to parents who have no nationality themselves. Statelessness may occur after birth, for instance as the result of deprivation or loss of nationality by way of penalty or otherwise.1 All individuals who have lost their original nationality without having acquired another are, in fact, stateless.2
§ 397 Position of stateless individuals
Since stateless individuals do not possess a nationality, the principal link1 by which they could derive benefits from international law is missing. They may, therefore, lack the possibility of diplomatic protection or of international claims being presented in respect of harm suffered by them at the hands of a state. In practice, stateless individuals are in most states treated more or less as though they were nationals of foreign states.2 If they are maltreated,3 they in general fall outside the protection afforded by international law, with the important exception of provisions of the Charter of the United Nations, the Covenants on human rights and other treaties concerning human rights and fundamental freedoms,4 and such other treaties as expressly regulate their position. In such cases every contracting party may, References(p. 887) depending on the treaty in question, acquire the right to seek to secure the application of the treaty in respect of them notwithstanding the rule as to nationality of claims.5
§ 398 Regulation of statelessness by treaty
There has for some time been an effort to reduce by international conventions the possibilities of statelessness1 or, where that is impossible, to render less difficult the position of stateless persons.
The attempts made to reduce the occasions for statelessness are not only an expression of the desire to do away with a source of inconvenience to governments and of grave hardship to individuals. They also constitute recognition of the fact that so long as nationality is the link between the individual and the protection of rights accruing to him by virtue of international law,2 it is illogical that international law should permit a condition of statelessness, and the admissibility of statelessness must be regarded as a serious defect in this branch of international law. There are no vital interests of states which stand in the way of introducing such a measure of uniformity in the law relating to acquisition of nationality by birth, marriage, naturalisation or otherwise as may be sufficient to prevent statelessness arising on that account. The same applies to the abandonment of the practice, which is of comparatively recent origin, of adding the penalty of deprivation of nationality for disloyalty or other reasons to the manifold and severe punishments available to states under their municipal law.3
The Hague Codification Conference of 19304 adopted a number of provisions calculated to reduce the possibility of statelessness:
The United Nations has carried forward this international concern with the problem of statelessness. The Universal Declaration of Human Rights 1948 proclaimed everyone’s right to a nationality and prohibited arbitrary deprivation of nationality9 (Art 15). The United Nations Economic and Social Council in 1949 established an ad hoc committee to study the problem of statelessness,10 and in 1950 adopted a resolution11 requesting states to make arrangements for References(p. 889) the avoidance of statelessness where they were involved in any changes of territorial sovereignty, and inviting states to consider sympathetically applications for nationalisation from stateless persons habitually resident in their territory and to re-examine their nationality laws with a view to reducing the existence of statelessness.
Between 1952 and 1954 the International Law Commission considered statelessness together with the question of nationality, and it submitted two draft conventions to governments, recommending that they should consider and comment on both.12
The General Assembly decided in 195413
to convene a conference to conclude a convention on the reduction or elimination of future statelessness. The conference opened in 1959, and led to the adoption in 1961 of a Convention on the Reduction of Statelessness.14
Its main provisions are:
Meanwhile, in 1954, the Economic and Social Council, acting at the request of the General Assembly,23 convened24 a conference which drew up a Convention relating to the Status of Stateless Persons, which was opened for signature on 28 September 1954.25 This Convention was modelled on the earlier Convention relating to the Status of Refugees (see § 399), but gave stateless persons slightly less favourable treatment than had been given to refugees.
§ 399 Refugees
In addition to these attempts to resolve the problems caused by statelessness, attempts have been made to mitigate the lot of particular categories of stateless persons or persons whose position is analogous to statelessness. References(p. 891) These attempts have primarily been concerned with displaced persons or refugees1 who, where they are not stateless, are in virtually the same position, in that the state whose nationality they possess is unlikely to afford them any protection or otherwise provide them with the benefits which normally flow from the possession of a nationality.
A state normally has the right to refuse entry into its territory to any alien,2 and to deport from its territory such aliens as it no longer finds acceptable.3 The exercise of these rights can be the cause of serious problems in the case of persons who are fleeing from areas of active hostilities4 or from political or social circumstances which they find intolerable. The political, social and legal seriousness of these problems is much increased where the numbers of persons involved are so great as to involve in effect a large-scale migration,5 with sometimes severe (p. 892) consequences which can affect the political stability of the state concerned and severely strain the relations between the states of origin and reception. While practical and humanitarian considerations call for states to accept refugees (even if only on an immediate or temporary basis — so-called ‘temporary refuge’ or ‘first asylum’ — as a purely practical step), the impact of large numbers of migrants on the states receiving them requires international effort and agreements to regulate in an acceptable manner the difficulties which ensue. Apart from the basic questions of asylum for refugees and their non-deportation to the state of origin, attention has largely concentrated on their position in the state of asylum, the extent to which they may be internationally protected by that state, and the definition of those who may qualify as ‘refugees’ so as to benefit from the special provisions applicable to them.6
In the Convention of 28 October 1933,7 relating to the International Status of Refugees, the contracting parties undertook definite obligations with regard to the treatment of Russian, Armenian, and assimilated refugees as defined in previous agreements concluded in 1926 and 1928.8 They agreed to grant to these persons so-called Nansen passports; not to expel, except for reasons of public order and safety, refugees regularly residing in the state concerned; and to grant References(p. 893) to them free access to the courts and exemption from the requirement of reciprocity applying in some cases to aliens.9 After the Second World War the persistence of the problem of refugees led to the adoption, on 25 July 1951, of a Convention on the Status of Refugees.10 The Convention applies: (a) to persons who had been considered refugees in accordance with previous treaties and arrangements on the subject, and (b) to every person who as a result of events occurring before 1 January 1951, and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former residence as a result of such events, is unable or unwilling to return to it.11 The Convention includes provisions protecting refugees against discrimination References(p. 894) on account of race, religion, or country of origin and provides for religious freedom and equal treatment with aliens unless the Convention contains more favourable provisions. The latter include most favourable treatment with regard to rights given to nationals of a foreign country regarding employment and the lifting of any restrictive measures imposed on aliens for the protection of national labour in all cases in which the refugee has resided in the country for three years12 or has a spouse or children possessing the nationality of the country. The Convention also provides for at least equal treatment with aliens with regard to the right to engage in agriculture, industry, commerce, practising a profession, education, and the like. It includes provisions for equal treatment with nationals13 with regard to elementary education, rationing system, public relief and social security, access to courts,14 and provisions to facilitate their References(p. 895) assimilation and naturalisation.15 No penalty may be imposed upon the refugee on account of illegal entry or presence when coming directly from a country where his life and freedom were threatened.15a The Convention also provides for the issue of travel documents to refugees,16 and provides for safeguards against expulsion, in particular to countries where the life or freedom of the refugee would be threatened.17 However, it is left to each of the parties to decide whether it intends to apply it to refugees outside Europe; and, as noted, the Convention does not apply to persons who are refugees as the result of events subsequent to 1 References(p. 896) January 1951.18 Under a protocol19 which entered into force in 1967 these temporal and geographic limitations ceased to apply.20 In relation to refugees from political persecution, it is particularly important for the state of asylum to bear in mind its obligation to ensure that no one on its territory engages in subversive activities against other states.21
Many supervisory functions over the application of the Convention and Protocol, including making representations to states on behalf of individuals asserting their refugee status, are performed by the Office of the United Nations High Commissioner for Refugees. The statute of this Office was laid down in 1950,22 and the Office itself came into being on 1 January 1951. It reports annually to the General Assembly through the Economic and Social Council. The mandate of the Office has been extended from time to time. An Executive Committee to determine the general policies governing the operation of the Office was established in 1959.23
Other conventions designed to resolve some of the problems of refugees include the agreement relating to Refugee Seamen 1957,24 the OAU Convention covering the Specific Aspects of Refugee Problems in Africa 1969,25 the European Agreement on the Abolition of Visas for Refugees 1959,26 and the European Agreement on the Transfer of Responsibility for Refugees 1980.27
1 As to the special situation in the Commonwealth, see § 385; and as to forced naturalisation, see § 386.
The following cases in which double nationality has been discussed may be mentioned: Ex parte Freyberger  2 KB 129; Vecht v Taylor (1917) 116 LT 446; Kramer v Attorney-General  AC 528; Baron Frédéric de Born v Yugoslav State, decided on 12 July 1926, by the Yugoslav-Hungarian Mixed Arbitral Tribunal: AD (1925–26), No 205; Barthez de Montford v Treuhander Hauptverwaltung, decided on 10 July 1926, by the Franco-German Mixed Arbitral Tribunal, ibid, No 206. See also § 151 as to double nationality in the context of the nationality of claims. A number of cases are discussed by Weis, Nationality and Statelessness, pp 170–76, 181–3.
1 See Kawakita v US, ILR, 18 (1951), No 73, in which the US Supreme Court affirmed the conviction for high treason of the accused who was of both American and Japanese nationality. See also Dos Reis v Nicolls, AD, 14 (1947), No 51, where the Court declined to deprive of nationality a person of double nationality who was compelled to serve in the army of the other state, and Mandoli v Acheson, ILR, 18 (1951), No 64, decided by the Supreme Court in 1952; Terada v Dulles, ILR, 21 (1954), p 185; Nishikawa v Dulles, ILR, 26 (1958-II), p 451.
2 See Re Rissman (1972), ILR, 71, p 577. By applying for a passport from the authorities of one of his states of nationality a dual national is not necessarily taken to have thereby renounced his other nationality: Re Bulla, AD, 7 (1933)–34), No 111.
4 See §§ 378, 387. As to the right of the Secretary-General of the UN to determine for administrative purposes which of two nationalities a UN official should be regarded as possessing, see Julhiard v Secretary-General of the UN, ILR, 22 (1955), p 809. As to the special position regarding the common status of Commonwealth citizens, see § 386.
1 LNTS, 179, p 89; TS No 33 (1937); AJ, 24 (1930), Suppl, p 192.
In 1812, a time when the UK still kept to the rule that no natural-born British subject could lose his nationality, the impressment of Englishmen naturalised in the USA proved one of the causes of the war between the two countries. There were also, for a similar reason, frequent disputes in the nineteenth century between the USA and Prussia. For a survey of the various treaties concluded between the USA and other states since 1868 (in which year the so-called ‘Bancroft Conventions’ were concluded with the North German Confederation and other German states) in order to regulate conflicting claims to the allegiance of naturalised persons, see Hackworth, 3, § 256; see also the Flegenheimer Claim, ILR, 25 (1958-II), pp 91, 123–38.
Problems of double nationality may give rise to particular problems in a state with a large immigrant population from another state, which may call for regulation on a bilateral basis between them. See, eg para 5 of the China-Malaysia Joint Communiqué on the Normalization of Relations 1974: ILM, 13 (1974), p 877.
2 See Pfeiffer, Das Problem der effektiven Staatsangehörigkeit im Völkerrecht (1933).
The principle of effective nationality has been much discussed in connection with the judgment of the ICJ in the Nottebohm case (see §§ 378, 387); see also § 150, as to nationality of claims. The principle of effective nationality is reflected in Art 3.2 of the Statute of the ICJ, which provides that a member of the Court who could be regarded as possessing more than one state’s nationality shall be deemed to be a national of that state in which he ordinarily exercises civil and political rights. A similar provision is to be found in Art 2.3 of the Statute of the ILC (GA Res 174 (II)). See generally Rode, AJ, 53 (1959), pp 139–44; also § 237, regarding the nationality of ships, and § 380, regarding the nationality of corporations.
3 LNTS, 179, p; 237; AJ, 24 (1930) Suppl, p 201; Hudson, Legislation, v, p 374. The Protocol has been ratified, among others, by the UK, the USA and Brazil, and has entered into force. See generally on double nationality and military service obligations, Karamanoukian, RG, 78 (1974), pp 459–84.
4 The Treaty of 1 November 1930, between Norway and the USA provides that a person born in the territory of one party of parents who are nationals of the other party, and having the nationality of both parties, shall not, if he has his habitual residence in the state of his birth, be held liable for military service or any other act of allegiance during a temporary stay in the territory of the other party: US TS, No 832; AJ, 25 (1931), Suppl, p 151. As to the Franco-Belgian Treaty of 12 September 1928, for avoiding conflicts in the matter of recruitment see Dreyfus in 56 Clunet (1929), pp 939–50. See also Vasquez v Attorney-General of the United States (1970), ILR, 56, p 557, as to the application of a US-Argentine Treaty of 1853.
See generally on military service obligations of aliens, § 404, n 12.
5 In the part of the Final Act relating to Nationality it was recommended: (a) that states should adopt legislation designed to facilitate, in cases of persons possessing more than one nationality, the renunciation of nationality in the countries in which they are not resident, and (b) that effect be given to the principle that the acquisition of a foreign nationality through naturalisation involves the loss of previous nationality: AJ, 24 (1930), Suppl, p 182.
6 See also, as to treaty provisions on the right of option in cases of double nationality, Makarov, in Varia Juris Gentium (1959), pp 194–202; and see Sipkov, AJ, 56 (1962), pp 1010–19, as to the settlement of double nationality problems, largely by way of option, in East European states.
7 TS No 88 (1971). See Makarov, ZöV, 33 (1973), pp 108–24. Note also the 1977 Protocol correcting the text: TS No 29 (1982).
8 See YBILC (1952), vol II, pp 11–12; and ibid (1954), vol II, pp 42–111.
9 YBILC (1954), vol II, p 149 (para 39).
2 As to English law see Stoeck v Public Trustee  2 Ch 67, and cases therein discussed; and Re P (GE) (An Infant)  2 WLR 1, as regards a stateless infant.
1 See § 376. And see the observations of the Mexico-USA General Claims Commission in Dickson Car Wheel Co v Mexico (1931), RIAA, iv, pp 669, 678.
2 In English law an alien is a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland: British Nationality Act 1981, s 50(1). A foreign national and a stateless person are thus equally aliens. As to the difficulty of deporting from Canada a stateless person, who has no country of origin to which he can be deported, see Re Immigration Act and Hanna, ILR, 24 (1957), p 465; but cf Expulsion Order Case (1968), ILR, 61, p 436.
3 It cannot be considered maltreatment if a state compels individuals destitute of nationality either to become naturalised or to leave the country.
4 See below, § 431ff.
As to humanitatian intervention see § 131. The position of the Jews in Romania before 1919 furnished an example. According to municipal law they were, with a few exceptions, considered as foreigners for the purpose of avoiding the consequences of Art 44 of the Treaty of Berlin 1878, according to which no religious disabilities were to be imposed by Romania upon her subjects. But as these Jews were not subjects of any other state, Romania compelled them to render military service, and actually treated them in every way according to discretion without any other state being able to exercise a right of protection over them. See Rey, RG, 10 (1903), pp 460–526; Bar, RI, 2nd series, 9 (1907), pp 711–16; Stambler, L’histoire des Israélites roumains et le droit d’intervention (1913); Kohler and Wolf, Jewish Disabilities in the Balkan States (1916); Kohler in Bulletin of the Jewish Academy of Arts and Sciences, No 1 (1933). But on 9 December 1919, Romania undertook, by a treaty with the Principal Allied and Associated Powers (TS No 6 (1920)), to recognise as Romanian subjects ipso facto and without any formality Jewish inhabitants who were stateless. See Rey, RG, 32 (1925), pp 133–62, and Kahane v Parisi, decided on 19 March 1929, by the Austro-Romanian Mixed Arbitral Tribunal: AD, 5 (1929–30), No 131.
1 The law of some states is framed so as to eliminate, for all or most practical purposes, the condition of statelessness, as by restricting the possibility of loss of nationality to cases where another nationality is already possessed or will be acquired (eg s 12(2) of the British Nationality Act 1981).
3 See § 391 (as to deprivation of nationality). States often apply the penalty of denationalisation to naturalised persons only (by way of cancellation of naturalisation) — a limitation which lends itself to the interpretaion that naturalised persons are bound by duties of allegiance more exacting than those who are natural-born. It is clear that in most cases the persons affected live abroad and that their denationalisation takes place without regard to the legitimate interests of the state where they are resident at the time. For an attempt to safeguard some of these interests see text at nn 7, 8.
4 The Conference adopted a unanimous recommendation to the effect that it is desirable that in regulating questions of nationality states should make every effort to reduce so far as possible cases of statelessness.
6 See LNTS, 179, p 115; AJ, 24 (1930), Suppl, p 206.
7 See AJ, 24 (1930), Suppl, p 211.
8 However, his home state may even in that case refuse to receive him if it undertakes to meet the cost of relief. It will be noted that the provisions of the Protocol may be liable to objection in so far as they are calculated to interfere with the principle of asylum for political refugees — a category of persons most likely to be affected by measures of denationalisation. The Protocol entered into force on 11 October 1973. See generally as to expulsion of stateless persons Philonenko, 60 Clunet (1933), pp 1161–87, and Trachtenberg, RI, 3rd series, 17 (1936), pp 552–63. See also R v Goldfarb, R v Szczenslive  1 All ER 169; Staniszewski v Watkins, AD, 15 (1948), No 80; and generally as to expulsion of aliens, § 413.
10 Res 248B (IX) (1949). The Council had earlier requested the preparation by the Secretariat of A Study in Statelessness, UN Publication No 1949, XIV, 2, and The Problem of Statelessness (UN Doc A/CN 4/56, and Add 1 and 2).
11 ECOSOC Res 319 B III (XI) (1950); see also ECOSOC Res 352 (XII) (1951), and UN Doc E/2230 containing replies from governments in response to inquiries from the Secretary-General.
12 ILC Rep (5th Session, 1953), para 121 (YBILC (1953), vol II, p 221). For reports by Hudson and Córdova on statelessness, see YBILC (1952), vol II, pp 13–24; ibid (1953), vol II, pp 167–99; and ibid (1954), vol II, pp 26–42.
14 UNTS, 989, p 175; TS No 158 (1975). See Torres Bernardez, AFDI (1962), pp 528–56; Weis, ICLQ, 11 (1962), pp 1073–96. The Convention entered into force in 1975.
15 As to birth on ships and aircraft, see Art 3.
18 See also Art 12.3. See also Art 14 on the Hague Convention on the Conflict of Nationality Laws 1930.
22 See § 391, text at n 4ff.
24 Res 526 A (XVII) (1954).
25 UNTS, 360, p 117; TS No 41 (1960). See Weis, ICLQ, 10 (1961), pp 255–64. For the application of Art 12, providing that the personal law of a stateless person shall be the law of his country of domicile or, if none, the country of his residence, see Kurtz and Letushinsky v Kirschen (1967), ILR, 47, p 212.
As to Art 19, concerning the practice of the liberal professions, see Taragan v Federazione Nazionale Degli Ordini dei Medici (1966), ILR, 71, p 447; and as to Art 31 concerning expulsion, Stateless Person from Gaza v Secretary of State for the Home Department (1978), ILR, 71, p 503; Nemeth (1973), ILR, 77, p 384.
1 See Trachtenberg in Répertoire, vii, pp 582–99; Nitti, RG, 36 (1929), pp 739–59; Scheftel in 61 Clunet (1934), pp 36–69; Bentwich in Geneva Special Studies, vi, No 5 (1935), and BY, 16 (1935), pp 114–29; François, Hag R, 53 (1935), iii, pp 288–376; Kuhn, AJ, 30 (1936), pp 495–9; Rubinstein, International Affairs, 15 (1936), pp 716–34; Simpson, The Refugee Problem (1939); Jennings, BY, 20 (1939), pp 98–114; Poulin, Ann Suisse, 3 (1946), pp 95–196; Mezger in Nouvelle revue de droit international privé, 13 (1946), pp 56–95. As to the legal status of political refugees see Holborn, AJ, 32 (1938), pp 680–703, and, as to their entry into the USA, Evans, AJ, 62 (1968), pp 921–6. And see generally on the problem of refugees and displaced persons, Reut-Nicolussi, Hag R, 73 (1948), ii, pp 5–64; Nathan-Chapotot, Les Nations Unies et les Refugiés (1949); Balogh, Hag R, 75 (1949), ii, pp 371–488; Holborn, YB of World Affairs, 1952, pp 124–48; Vernant, Refugees after the War (1953); Goedhart, Hag R, 82 (1953), i, pp 265–369; Weis, AJ, 48 (1954), pp 193–221; Clunet, 83 (1956), pp 4–69; Clunet, 87 (1960), pp 928–1001; and Israel YB on Human Rights, 1 (1971), pp 35–50; Stoessinger, The Refugee and the World Community (1956); Ginsburgs, AJ, 51 (1957), pp 325–61; Coursier, Hag R, 99 (1960), i, pp 416–34; Kiss, Répertoire, iv, pp 427–45 (as to political refugees in particular); Schechtman, The Refugee in the World (1963); Schnyder, Hag R, 114 (1965), i, pp 339–446; Grahl-Madsen, The Status of Refugees in International Law (vol 1, 1966; vol 2, 1972); Krenz, ICLQ, 15 (1966), pp 90–116; Plender, International Migration Law (2nd ed, 1988), pp 393–458; Gotlieb, Can YBIL, 13 (1975), pp 3–24; Sadruddin Aga Khan, Hag R, 149 (1976), i, pp 287–352; Radley, AJ, 72 (1978), pp 586–604 (with particular reference to Palestine refugees); Goodwin-Gill, The Refugee in International Law (1983); Hathway, ICLQ, 33 (1984), pp 348–80 (outlining developments in the period 1920–50); Marrus, The Unwanted: European Refugees in the Twentieth Century (1985); Garvey, Harv ILJ, 26 (1985), pp 483–500; Lee, BY, 57 (1986), pp 317–36; Martin (ed), The New Asylum Seekers: Refugee Law in the 1980s (1988); Jaeger, Rev Belge, 22 (1989), pp 18–120; Hathaway, Harv ILJ, 31 (1990), pp 129–83; Loescher and Monahan, Refugees and International Relations (1990). See also works cited at n 22, on the UN High Commissioner for Refugees. See also § 402, on the right of asylum.
The large-scale exodus of refugees by boat, with the intention of seeking asylum after a journey across the high seas, raises particular problems both as regards their interception and rescue at sea and their refuge at their point of eventual landing. As to refugees of this kind from Vietnam see Pugash, Harv ILJ, 18 (1977), pp 577–604; Chooi Fong, BY, 52 (1981), pp 53–108; as to refugees by sea from Haiti to the USA see AJ, 83 (1989), pp 906–10.
4 See Oeter, ZöV, 47 (1987), pp 559–79 (as to refugees from civil wars).
5 As to large-scale movements of refugees and asylum-seekers, see Study on Human Rights and Massive Exoduses (Special Rapporteur, Sadruddin Aga Khan)(1981), UN Doc E/CN 4/1503; Martin, AJ, 76 (1982), pp 598–609; Lee, AJ, 78 (1984), pp 480–4, and AJ, 80 (1986), pp 532–67 (especially as regards the possible duty of the state causing an exodus of refugees to pay compensation); Doehring, ZöV, 45 (1985), pp 372–88; Hofman, ibid, pp 694–713 (on state responsibility for refugee-generating policies); various contributors, AS Proceedings, 1984, pp 339–61; Declaration of Principles of International Law on Mass Expulsions, adopted by the ILA in 1986 (Report of 62nd Conference, p 13), and Draft Declaration of Principles of International Law on Compensation to Refugees and Countries of Asylum, discussed by the ILA in 1988 (Report of 63rd Conference, pp 676–712); Report of the UN Group of Governmental Experts on International Cooperation to Avert New Flows of Refugees 1986, UN Doc A/41/324 (on which see GA Res 41/70 (1986), and Lee, BY, 57 (1986), pp 317–36). Note also that Art 3(2) of the Declaration on Territorial Asylum 1967 (§ 402, n 12) acknowledges that ‘in order to safeguard the population (ie of the state in which asylum is sought), as in the case of a mass influx of persons’, refugees may be rejected at the frontier or, if already in the state in which asylum is sought, expelled or compulsorily returned to a state even though it is one where they may be subject to persecution. See also above, n 1, second para, as to refugee movements by sea; § 413, n 17; and § 495, n 3, as to the mass emigration in 1989 from the German Democratic Republic to the Federal Republic of Germany through the latter’s embassies in third states.
The problems, especially in the field of human rights, created by mass exoduses of refugees and displacements of population have been regularly on the agenda of the UN General Assembly, starting with GA Res 35/196 (1980), and continuing, most recently, with GA Res 45/153 (1990).
6 It is in particular sometimes necessary to distinguish between refugees from various forms of persecution and those seeking improvements in their material circumstances (so-called economic migrants): this distinction assumed importance in relation to the large migration from Vietnam, especially to Hong Kong, in 1988–89. Similarly a distinction must be drawn between refugees in the proper sense of the term and law-breakers (such as terrorists) seeking refuge from pursuit in a neighbouring state. As to Basque terrorists enjoying safety in this way in France, see RG, 88 (1984), pp 693–4; and generally § 122, and § 402 (as to the right of asylum).
7 TS No 4 (1937). See as to this Convention Tager, 63 Clunet (1936), pp 1136–67.
8 For the agreement of 12 May 1926, concerning the Issue of Certificates to Russian and Armenian Refugees, see LNTS, 89, p 47; Hudson, Legislation, iii, p 1884. For the Arrangement of 30 June 1928, concerning the Legal Status of Russian and Armenian Refugees see League Doc LSC 11-1928 (1); Off J (1929), p 485; LNTS, 80, p 53; Hudson, Legislation, iv, p 2486. As to the validity of that Arrangement in France see Clot v Schpoliansky: AD, 5 (1929–30), No 218 and Note. Previously, the work of relief of refugees had been transferred in 1925 to the International Labour Office and re-transferred in 1930 to the Secretariat of the League. On 19 January 1931, the Council approved the statutes of the Nansen International Office for Refugees, which was placed under the direction of the League in accordance with Art 24 of the Covenant: Off J, 1931, p 156; Hudson, Legislation, v, p 872. The Office was liquidated in 1939, as provided by the Seventeenth Assembly, 1936, Plenary Meetings, p 139. A holder of a ‘Nansen passport’ has been held not to be a ‘ressortissant’ for the purposes of that term in a treaty: Security for Costs (Statelessness) Case, ILR, 21 (1954), p 303.
9 A similar arrangement was concluded on 4 July 1936, concerning the Status of Refugees from Germany: TS, No 33 (1936). This provisional agreement was replaced by a Convention signed on 10 February 1938 (LNTS, 192, p 59). And see Off J (1939), p 399, extending the Convention to Austrian refugees. In September 1933 the Fourteenth Assembly of the League decided, on the proposal of the Dutch government, that the problem of German refugees should be dealt with by international cooperation. As from 1939 a new organisation was set up under a ‘High Commissioner for Refugees under the Protection of the League of Nations’: Off J (1938), p 365. As the result of the Evian Conference held in July 1938 there was created an Intergovernmental Committee on Refugees: Doc C 244, M 143 (1938), XII. In December 1946 the GA adopted the Constitution of the International Refugee Organisation, which has taken the place of the Intergovernmental Committee on Refugees. For the Constitution of the Organisation see TS No 25 (1950). Its main purpose is the repatriation, legal protection, and resettlement of about one and a half million refugees and displaced persons. In October 1946 an Agreement was signed relating to the issue of a travel document to refugees who were the concern of the Inter-governmental Committee on Refugees: Cmd 7033. See also Jennings, BY, 20 (1939), pp 98–114; Simpson, The Refugee Problem (1939); and Cohn, MLR, 4 (1941), pp 200–209. The International Refugee Organisation terminated its activities in 1952. In connection with the work of the International Refugee Organisation there may be noted the Convention of 1950 on the Declaration of Death of Missing Persons, the purpose of which is to simpify the judicial procedure on the subject in the countries of the contracting parties.
10 UNTS, 189, p 150; TS No 39 (1954). See Weis, BY, 30 (1953), pp 478–89.
11 There have been many cases in which the existence of a well-founded fear of persecution in a person’s state of origin has been in issue, usually involving that person applying for asylum in another state or resisting deportation from it; the cases have sometimes involved the application of the Convention, and sometimes of municipal laws using equivalent language. See, eg Lluvia v Lluvia, ILR, 23 (1956), p 388; X v Dame X, ILR, 23 (1956),p 390; Grundul Bryner & Co GmbH and Richteramt III Bern, ILR, 24 (1957), p 483; Yugoslav Refugee (Germany) Case, ILR, 26 (1958-II), p 496; In re Ouakli, Abdi and Zaouche (1960), ILR, 31, p 327; Determination of Refugee Status (Germany) Case (1960), ILR, 32, p 227; Asylum (Algerian Refugee) Case (1961), ILR, 32, p 230; Polish Refugee (Germany) Case (1962), ILR, 38, p 146; Yugoslav Refugee (Germany) Case (1962), ILR, 40, p 202; Polish Refugee (Germany) Case (1962), ILR, 40, p 205; Re Gonzales (1963), ILR, 44, p 147; Re Tombouros (1966), ILR, 47, p 237; Seicaru v Cismigiu (1968), ILR, 70, p 383; Refugee Compensation Claim Case (1968), ILR, 60, p 369; Kovac v Immigration and Naturalization Service (1969), ILR, 53, p 532; Refugee Status Case (1969), ILR, 61, p 495; Rosenberg v Yee Chien Woo (1971), ILR, 70, p 346; Czech Refugee Asylum Case (1975), ILR, 74, p 409; Citizen of Greece v Secretary of State for the Home Department (1976), ILR, 71, p 496; Citizen of Ethiopia v Secretary of State for the Home Department (1977), ILR, 71, p 500; Pierre v United States, AJ, 71 (1977), p 534; Wiesner v OFPRA (1977), ILR, 74, p 403; Shaik v OFPRA (1977), ILR, 74, p 407 (according the protection of the Convention to a minor child of a refugee, even though the child had a nationality); HNDMR v State Secretary of Justice (1978), ILR, 74, p 405; JAN v State Secretary of Justice (1978), ILR, 74, p 406; Chinese American Civic Council v Attorney-General of the United States, AJ, 72 (1978), p 672; Hurt v Minister of Manpower and Immigration (1978), ILR, 73, p 595; Conté (1981), ILR, 74, p 417; Immigration and Naturalization Service v Stevic (1984) 104 S Ct 2489 (with comment by Hecht, Harv ILJ, 26 (1985), pp 225–34); Immigration and Naturalization Service v Cordoza-Fonseca (1987), ILR, 79, p 610 (and comment by Sherman, Harv ILJ, 28 (1987), pp 482–9); Desir v Ilchert, AJ, 82 (1988), p 830; MA A26851062 v Immigration and Naturalization Service, AJ, 83 (1989), p 384; Doe v Immigration and Naturalization Service, AJ, 83 (1989), p 569. See also n 17, as to cases of expulsion or deportation; and §§ 422, n 2, and 421ff, as to extradition in relation to war crimes and political offences.
The Convention’s definition of refugees also contains, in Art 1 C-F, certain specific exclusions from the basic definition of a refugee, relating to: C — acquisition or reacquisition of a nationality, or reasons for being a refugee ceasing to exist; D — protection by UN organs or agencies other than the High Commissioner for Refugees; E — possession of rights and obligations of nationality of the state of residence; F — serious grounds for believing that a person has committed crimes against peace or humanity, war crimes, or serious non-political offences. As to these exclusions see Re Kleinmann, ILR, 22 (1955), p 467; Yugoslav Refugee (Austria) Case, ILR, 23 (1956), p 382 (on which see Abel, ICLQ, 6 (1957), pp 533–5); Hungarian Refugee (Germany) Case (1960), ILR, 32, p 223 (Art 1 C); Romanian Refugee Case (1969), ILR, 72, p 580 (Art 1 C); Loss of Refugee Status Case (1970), ILR, 72, p 584 (Art 1 C); Reinald v OFPRA (1977), ILR, 74, p 401 (Art 1 C); Polish Refugee Compensation Case (1971), ILR, 72, p 646 (Art 1 E); Josef B v Ministry of the Interior (1969), ILR, 71, p 278 (Art 1 F); Georg K v Ministry of the Interior (1972), ILR, 71, p 284 (Art 1 F). Obtaining a travel document or a passport from the state of a person’s nationality has been held to disentitle him from being considered a refugee under the Convention: Gabriel M (Refugee) Case (1965), ILR, 43, p 182; Spanish Refugee Case (1965), ibid, p 184.
On the question how long after arrival in the state of refuge a person can still claim refugee status see Art 1 C of the Convention; Rosenberg v Yee Chien Woo, AJ, 65 (1971), p 828, and note by Evans, AJ, 66 (1972), pp 101–7, discussing that Supreme Court decision; Ochoantesana-Badiola, RG, 89 (1985), p 542.
The danger of persecution which is a requirement for refugee status, has been held to include persecution at the hands of private persons or non-governmental groups: Zacharia v Republic of Cyprus  2 All ER 438; McMullen v Immigration and Naturalization Service (1981), ILR, 79, p 602 (but interpreting the terms of national legislation rather than the Convention); Dankha, RG, 88 (1984), p 753.
12 See In re Czubak (1961), ILR, 44, p 133.
13 See Zikman v Lopato (1962), ILR, 44, p 71; and (1971), ILR, 72, p 586.
14 See Fliegelman v Pinsley (1962), ILR, 44, p 143; Pater v Pater (1967), ILR, 72, p 639; Eglin v Marculeta (1970), ILR, 70, p 356; Loprato v Zickman (1971), ILR, 72, p 586. But the provision as to access to courts does not operate so as to make an alien refugee a national for the purposes of an extradition treaty allowing only the extradition of non-nationals: Re Colafic (1961), ILR, 44, p 187; T v Swiss Federal Prosecutor’s Office (1966), ILR, 72, p 632.
15 See Czech Refugee Naturalization Case (1975), 74, p 393; Ertl (1970), ILR, 69, p 202; Constantinescu v Ministry of the Interior (1975), ILR, 77, p 578.
15a Art 31. Underlying the word ‘directly’ in this article is the so-called ‘first asylum’ principle, which has grown up in international practice and according to which those claiming refugee status should do so in the first state they reach on leaving that from which they have fled; the ‘first asylum’ state, which is prohibited from penalising the refugees for their illegal entry or presence in its territory (whereas subsequent asylum states are not) thus has the responsibility of either accepting them into its territory or finding for them a state willing to receive them. See also the Convention Determining the State Responsible for examining Applications for Asylum lodged in one of the member States of the European Communities, signed on 18 June 1990.
16 Art 28. This provision superseded the Agreement relating to the issue of a Travel Document to Refugees 1946: UNTS, 11, p 84.
17 Arts 32 and 33. The former excludes the expulsion of a refugee except on grounds of national security or public order, but only where the refugee is ‘lawfully in’ the state. The latter prohibits expulsion or return (refoulement) of a refugee ‘in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’ But note State of Japan v Mitsuyo Kono and Takao Kono, cited at § 413, n 14.
As to the expulsion or deportation of persons granted or claiming refugee status under the Convention or Protocol see, eg Yugoslav Refugee (Germany) Case, ILR, 23 (1956), p 386; Homeless Alien (Germany) Case, ILR, 26 (1958-II), p 503; Expulsion of Alien (Austria) Case (1958), ILR, 28, p 310; Refugee (Germany) Case (1959), ILR, 28, p 297; Banda v Belgian State (Minister of Justice) (1959), ILR, 43, p 229; Molefi v Principal Legal Adviser  AC 182; Waver v State Secretary for Justice (1972), ILR, 73, p 674; Chim Ming v Marks, (1974), ILR, 70, p 360; Constantinescu v Ministry of the Interior (1975), ILR, 77, p 578; Cheng v Immigration and Naturalization Service, AJ, 70 (1976), p 578; Henry v Immigration and Naturalization Service, AJ, 71 (1977), p 784; Stateless Person from Gaza v Secretary of State for the Home Department (1978), ILR, 71, p 503; Ceskovic v Minister for Immigration and Ethnic Affairs (1979), ILR, 73, p 627; Haitian Refugee Centre v Smith, ILM, 21 (1982), p 603; Immigration and Naturalization Service v Cardoza-Fonseca (1987), ILR, 79, p 610, and comment by Sherman, Harv ILJ, 28 (1987), pp 482–9; R v Secretary of State for the Home Department, ex parte Bugdaycay  AC 514 (on which, and the joined case ex parte Musisi, see Hutchinson, BY, 58 (1987), pp 429–38); R v Secretary of State for the Home Department, ex parte Sivakumaran  AC 958.
The interception of vessels on the high seas and the return of would-be refugees sailing on them to their state of origin has been held not to conflict with the Convention or Protocol: Haitian Refugee Centre Inc v Gracey, AJ, 79 (1985), p 744.
Other human rights provisions may similarly limit a state’s right to return or expel refugees to another state: see eg Art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (§ 440, n 12), which expressly precludes return to a state where there are substantial grounds for believing that the refugee would be in danger of being subjected to torture, and Art 3 of the European Convention of Human Rights (§ 442) which prohibits torture, and equivalent treatment, and which has been held by the European Court of Human Rights to cover also the return of a person to a state where there is a real risk of exposure to treatment proscribed by Art 3.
18 But see Hungarian Refugee (Austria) Case, ILR, 24 (1957), p 488; Pater v Pater (1967), ILR, 72, p 639.
19 UNTS, 606, p 267; ILM, 6 (1967), p 78; TS No 15 (1969). And see GA Res 2198 (XXI) (1966).
20 See Weis, BY, 42 (1967), pp 39–70.
21 See §§ 122, and 402, n 14.
22 GA Res 428 (V). See also GA Res 319 (IV) (1949) appointing the first UN High Commissioner for Refugees. The High Commissioner took over the principal functions of the International Refugee Organisation (n 9). See generally on the work of the UN High Commissioner for Refugees, Fowler, Human Rights Journal, 7 (1974), pp 119–44; Holborn, Refugees: A Problem of our Times (2 vols, 1975): van Krieken, Neth IL Rev, 26 (1979), pp 24–36; Maynard, ICLQ, 31 (1982), pp 415–25.
23 GA Res 1166 (XII) (1957); ECOSOC Res 672 (XXV) (1958). The Committee replaced the Refugee Fund Executive Committee and, before it, the Advisory Committee on Refugees.
24 TS No 3 (1962). See Weis, ICLQ, 7 (1958), pp 334–48.
25 UNTS, vol 691, p 14; AJ, 64 (1970), p 228; ILM, 8 (1969), p 1288. See Weis, Human Rights Journal, 3 (1970), pp 449–64; D’Sa, Neth IL Rev, 31 (1984), pp 378–97.
26 TS No 32 (1969); European TS No 31.
27 TS No 50 (1987); ILM, 20 (1981), p 1391.