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British Institute of International and Comparative Law
Nationality and State Succession General Principles of the Effect of Territorial Changes on
Individuals in International Law
Author(s): Rudolf Graupner
Source: Transactions of the Grotius Society, Vol. 32, Problems of Public and Private
International Law, Transactions for the Year 1946 (1946), pp. 87-120
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
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(87)
NATIONALITY AND STATE SUCCESSION
General Principles of the Effect of Territorial Ch

on Individuals in International Law.
by
RUDOLF GRAUPNER, LL.B. (LOND.)
(Read before the Society on the 5th June, 1946)

SIR CECIL HURST, President, in the Chair.
The numerous nationality problems raised by the peace

treaties following the first World War were hardly settled when,
through the acts of aggression by Germany, Italy and their
satellites, State practice and legal science were faced with new
questions as to the effect of territorial changes on nationality.
The fact that a multitude of inhabitants of the annexed provinces
or subjugated States left their homes seeking refuge in other
countries or, if they happened to live or to stay abroad, refused to
return, gave to those events a new political and legal aspect in
the field of the law of nationality. Previously, the comparatively
secure position of aliens in most States and the possibility of easy
naturalization prevented the question of their true nationality
from becoming a frequent issue in litigation or the serious concern
of Government departments. These circumstances and the fact
that nearly all treaties of cession in the last hundred and fifty years
contained more or less elaborate provisions as to the fate of the
people resident in, or originating from, ceded territories are
apparently the reason that this side of State succession was
somewhat neglected compared with the elaborate treatment of
other aspects, such as the effect on public debts, private property
rights, and concessions. As regards the position of individuals
writers mainly discussed the law of treaties of cession, e.g., inter-
preting the Treaty ot Frankfort in 1871 and the peace treaties
after the first World War.
It may well be that the insufficient elaboration of this subject
in public international law still makes publicists and courts rely
88 NATIONALITY AND STATE SUCCESSION
on provisions of the municipal law of various c

decisions of national courts which apply their o
even if they sometimes profess to pronounce, o
ance with, a rule of international law. It would
failure to distinguish between municipal law an
law is the chief ground for the divergent and o
judgments of national courts when they are
determine the nationality of individuals who a
of their own countries; and in cases heard before international
tribunals it would seem to be the same error in principle which
leaves several of their decisions, rendered in the last few decades,
open to criticism.'
A fuller examination of the problem at this juncture appears
to be justified as there can be no doubt that the present world-wide
resettlement of both frontiers and populations will give rise to
new legal problems in the field of nationality which, even if they
are to a large extent regulated by treaties, will in all probability
frequently require consideration of the general principles of
international law relative to the various modes of State succession.
Bearing this in mind we will limit our discussion to a state of
affairs where all the nations concerned are at peace one with
another and we will also give only occasional attention to the
effect of non-recognition of territorial changes by third States as
the true problems recede into the background being in such a case
overshadowed by the primary fact of non-recognition.
In every discussion on the effect of territorial changes on
nationality it must be realised that this question is only a part of
the wider problem of State succession. Whereas most of the
older jurists applied to this process the rules of private (especially
I Thus, writers on international law when discussing the position of

nationals of a State which has been extinguished by incorporation almost
invariably refer to the decision of the Supreme Prussian State Court in the
case of Count Platen-Hallermund in 1868. Apart from the apparently
unnoticed facts that the decision is practically worthless as a precedent
because it was given in default and not reasoned, and that the court was in
all probability incompetent (see the pamphlet " The Prussian State Trial of
Count A. Platen ", London, 1868, where the whole material is collected), the
judgment can at most be taken as laying down a rule of Prussian municipal
law. Likewise, the striking French decision of Ikelheimer v. Richault (in
re Clmenti), Sirey 1878. I. 45, where the de cuius's French nationality was at
issue, rests on French municipal law.
NATIONALITY AND STATE SUCCESSION 89
Roman) law of general succession2 the majority o

regard State succession as an event where the
its sphere of sovereignty in its whole territory
in favour of another, the successor State, and
the possibility of expanding its own sovereign
The annexed or ceding State does not transf
this territory to the successor State. The latter exercises its
power non-derivative-in an original way, by its own will. This
applies equally to annexation total or partial, to cession, and to
secession. Even if restrictive conditions are agreed upon in
treaties of cession that does not mean that the successor State
derives its jurisdiction from the ceding State; the former h
only promised to bind itself in some respect but the nature o
original jurisdiction is by no means altered thereby.
The theories of either general succession or a special one w
regard to nationals were advocated by most of the writers in
nineteenth century and it appears that the latter theory is
prevailing one up to the present day. Most treatises on inte
national law asserts that territorial change effects " automatic
a change of the nationality of the people concerned unless th
be special stipulations in the respective treaties. Which peop
are effected is often in dispute, but the people who are actu
concerned are said to become automatically nationals of the
successor State, i.e. they lose the old and immediately acquire the
new nationality through the very act of annexation, cession, etc.
Mostly, the existence of a rule of international law to that effect
is assumed.4 Yet this theory of automatic acquisition has been
mostly held good subject only to an important qualification.
2 See Lauterpacht, Private Law Sources and Analogies of International

Law (1927), p. 125.
3 See, e.g. Keith, The Theory of State Succession (1907); Schoenborn,
Staatensukzessionen (1913); and in Strupp's W6rterbuch des Volkrrechts
Vol. II (1925), p. 578; Gidel, Des effets de l'annexion sur les concessions
(1904); Feilchenfeld, Public Debts and State Succession (1931), §§ 193-197,
290-298.
4 See Heilborn, System des Volkerrechts (1896), p. 136; Harvard
Research Draft on Nationality (1929) infra, note 32; Kelsen, General Theory
of Law and State, (1945), p. 239; apparently also Oppenheim-Lauterpacht,
International Law (5th ed., 1937), Vol. I, §§ 219, 240. Similarly Michel, Die
Einverleibung Frankfurts in den preussischen Staat als Fall einer Staaten-
sukzession (1911), pp. 70 et seq., and McNair in 7 Cambridge Law Journal
(1941), p. 384.
Following the principles as laid down with regar

earlier distinguished writers,5 it was argued that
or at least not any longer " glebae adscripti " an
nationality may be imposed upon them against
In the case of cession, therefore, an option for r
nationality was demanded; and in the case of an
whole territory of a State when its nationality b
extinguished and an option in the true sense was
conquering State was held to be entitled to impo
upon the nationals of the incorporated State only if
in the new dominion.6 Frequently their right to
asserted. It would seem, however, that the su
theory have not felt any inconsistency between t
automatic change of nationality on the one hand
for taking into consideration the wishes of the p
on the other hand. We should add that this theo
legacy from the ideas of the law of nature as wel
liberal thought of the last century, has still some ad
own times.7
But on closer juristic examination both the method and the
result of these theories were bound to be questioned. Schoenborn8
would appear to have been the first who quite distinctly taught
that replacement of sovereignty while immediately accompanied
5 Pufendorf, De Jure Naturae et Gentium, lib. VIII, c. 5, s. 9; Vattel,

Le Droit des Gens, Iv. I, c. 16, s. 195, liv. III, c.13, s. 201 ; C.G. Schwarz, De
Jure Victoris in Res incorporales (1720), p. 27; Burlamaqui, Principes du
droit de la nature et des gens (1820/21), T.V. Pte. 4, ch. VIII; Kliiber,
Europaisches Volkerrecht (1821), § 258.
6 E. G. Halleck, International Law (1861), p. 816 et seq., also later
editions ; G. F. Martens, Precis de droit des gens moderne de l'Europe (1864),
Vol. I, p. 334; Zachariae in Allgemeine Deutsche Strafrechtszeitung, 1868,
pp. 304 et seqq., L. v. Neumann, ibid, pp. 316 et seqq.; Bluntschli in
Kritische Vierteljahrssehrift fur Gesetzgebung und Rechtswissenschaft,
Vol. XII (1870), p. 455, at pp. 464-466; Stoerck, Option und Plebiszit (1879),
p. 154; Holtzendorff, Handbuch des Volkerrechts (1887), Vol. II, p. 42;
Pitt Cobbett, Leading Cases on International Law (1885), p. 230; Calvo, Le
Droit International (1880), § 2467; v. Bar, The Theory and Practice of Private
International Law (English translation, 1892), p. 132; Bonfils, Manuel de
droit international public, ed. by Fauchille (1898), § 397, p. 193; Westlake,
International Law, Vol. I (1904), p. 70, and Collected Papers (1914), p. 487;
Piggot, Nationality, Vol. I (1907), pp. 87/88.
7 So Cobbett-Walker, Leading Cases on International Law, Vol. II,
(5th ed., 1937), pp. 310/311; Foote-Bellot, Private International Law (1925),
p. 9.
Die Staatensukzessionen (1913), passim.
by acquisition of territorial jurisdiction wit

territory, merely gives the successor State t
expanding its personal jurisdiction over the nati
State as far as these are subjected to its territo
But he infers from the fact that in most cases of State succession
in recent times the successor States did impose their nationality
upon the persons concerned the existence of a rule of international
law to that effect.
The gist of the problem has, however, been clearly set out by
some recent writers, particularly by E. H. Feilchenfeld9 and by
the Austrian jurist von Verdross.'0 Feilchenfeld who adheres
to the replacement-of-sovereignty theory points out that in
virtually all cases of incorporation this replacement is accompanied
by a replacement of personal sovereignty over the nationals of
the incorporated State. However, in cases of partial replacement
of territorial sovereignty change of nationality of the people
concerned does not form a necessary part of the transfer of
territory but is, if it takes place, to be regarded as an additional
change effected simultaneously with the change of territorial
sovereignty or as a legal incident attached by positive or inter-
national law to this change. In case of incorporation normally
all nationals within the incorporated area become nationals of the
incorporating State; but this is in Feilchenfeld's opinion at least
controversial in regard to nationals living abroad. He states
elsewhere'1 that these " are not necessarily affected by the change."
Pondering upon the legal construction of the change he states that
"even with regard to the resident nationals it is by no means
clear how the change of nationality is effected ". He disfavours
the idea of general succession to all nationals of the extinguished
State as a matter of positive international law or even the existence
of a rule of special succession to sovereignty over all nationals.
As such rules of international law are not clearly recognised,
Feilchenfeld prefers to base the change of nationality in all cases
of State succession on the municipal laws of the States concerned.'2
9 Op. cit., §§ 285-292, 297, 298.

o1 Volkerrecht (1937), p. 241.
11 Encyclopaedia of Social Sciences, Vol. XIV (1936), p. 345.
12 Public Debts and State Succession, § 292.
The same method of approach underlies von

He rejects the theory of ipso jure acquisition
the ground that " a rule of international law to
exist since international law leaves it to the States themselves
to determine their nationality. At the most, therefore, a du
international law on the part of the successor State to gra
nationality to those persons might come into question. But
even such a duty founded on international law cannot be proved.13
Practically, such a duty might possibly be asserted merely in case
of cession but not in the case of extinction of the predecessor
State as only in the former instance a subject of international
law exists towards which such an obligation can exist ". Yet
Verdross thinks the establishment of such an obligation not
necessary since the States concerned are in a position to regulate
those questions in the treaty of cession, a course usually adopted
in practice. The successor State is entitled to impose its national-
ity upon the nationals of the predecessor State in so far as an
internal point of contact exists, namely " residence in, or belonging
to, a commune situated in the transferred territory, or origin
from a person residing therein or belonging thereto ".
These expositions appear to be justified from a genuine insight
into the nature and effect of State succession as well as from an
appreciation of the diversity between international law and
municipal law. For international law "regulates relations be-
tween the member States of the Family of Nations ".14 It
certainly effects the single individuals, but merely by virtue of
their membership of a State, while their relations to their own
State and to other States are regulated by municipal law. Inter-
national law does not directly operate upon their relations in
the sense that a rule of international law on the strength of its
very existence can bring about a juridical alteration of the
status of a person; it is only a body of legal rules which the single
13 Of the same opinion is Wheaton-Keith, International Law (1929), Vol.

I, p. 77. The opposite view is held by Triepel in Zeitschrift fiir auslandisches
6ffentliches Recht und Volkerrecht, Vol. I (1929), p. 195, and by Erich Kauf-
mann in Hague Academy, Recueil des Cours, Vol. 54 (1935), p. 372, but
refuted by Schoenbor in Strupp's Worterbuch des Volkerrechts, Vol. III
(1929), p. 862, and by Lessing, Das Recht der Staatsangehorigkeit (1937), pp.
186, 197, n. 7.
14 Oppenheim-Lauterpacht, op. cit., Vol. I, § 20.
States are bound to observe. It grants legal capacit

to the single States and imposes upon them duties
ions.15
The effect of State succession on nationality t
quite clear. In the first place there cannot be any
of international rights upon the individuals aff
territorial change, for at most the States concerne
rights and duties against each other, the indivi
being the objects of international law. Secondly
proposition were not true or should no longer beco
some development of international law, the pos
individuals as far as their nationality is concerned
directly affected by international law. For it is ge
nised that only the particular State is entitled to de
individuals are its nationals16 and of what kind the
enjoying full civil and political rights or mere natio
less deprived of them. Indeed, a State may bind itse
to restrict the full use of its jurisdiction17 or may
general principles of international law to exercise
diction to a restricted extent only,18 but in such c
likewise the individuals themselves do not-as a
immediate rights in international law. Their pos
on, and is exclusively determined by, the municip
State under whose sovereignty they live. The St
may have violated an obligation in international law and be bound
to alter the individuals' position but as long as it has not acted
in this way by its municipal law their position remains unchanged.19
This also applies on principle to matters of nationality in connec-
tion with State succession.20
15 See Oppenheim-McNair, International Law (4th ed., 1928), Vol. I,

§ 289.
16 See Oppenheim-Lauterpacht, op. cit., Vol. I, § 293, p. 512. See also
the Advisory Opinions of the Permanent Court of International Justice,
Series B, No. 4, No. 7.
17 See the Advisory Opinion No. 7 and No. 4.
18 See Flournoy in Am.J. Int. L., Vol. 24, pp. 457, 469; Triepel, loc.
eit., p. 187. See also for instances, Moore, Digest of International Law,
§ 378, and 9 U.S. Att. Gen. Opinions 356.
19 See, however, for an important qualification of this statement, infra,
p. 95.
20 See Fenwick, International Law (2nd ed., 1934), p. 127, and Feilchen-
feld, op. cit., p. 622.
It is generally admitted today that a State whic

territory from another State by unilateral or b
permitted by international law to impose its nat
individuals, either nationals of the losing State or st
who have come bodily under its territorial sovere
has renounced that right by treaty, e.g. by agree
option.
It should be emphasized that even if in a treaty of cession
change of nationality is provided for, the treaty by itself cannot
effect the change. It must become municipal law as well unless
the existing municipal law of the contracting States determines
by customary or statutory law loss and acquisition of nationality
for the people concerned. Hence it follows that in any case only
the successor State can determine which of those individuals
shall become its nationals.2' It can decline to claim some or even
all of them as its own nationals. Such people then become
stateless.22 23
Yet this general principle would only seem to apply to cessions

and incorporations for in cases of partial annexation and of
secession the losing State does not, at least not for some time,
recognise the territorial change and the measures taken by the
annexing or newly created State in connection therewith. The
question arises whether and how far the latter are entitled to
continue to regard nationals of the losing State as their own.
We must leave that to later discussion.
2t Therefore, the interpretation of the Minorities Treaty between Ger

many and Poland by Kaekenbeeck, Arb., (Annual Digest, 1923-24, Case No.
117), appears not quite convincing as regards the reasoning since the acqu
tion of Polish nationality could only be effected by Polish municipal law wh
Poland was bound to provide in compliance with the treaty. See on those
questions arising from the Treaty of Versailles, and particularly on the right
of option, Kunz, Die volkerrechtliche Option (1923/28), Vol. I, p. 176
22 Of the same opiliion as Feilchenfeld, Public Debts etc., p. 615 ; appar-
ently also Schoenborn, Strupp's W6rterbuch, Vol. III, p. 862, and Verdross,
op. cit., p. 241. The opposite view seems to have been held by Heilborn,
op. cit., pp. 127, 136.
23 Cf. Oppenheim-Lauterpacht, op. cit., Vol. I, § 312, n. 4. That there
can exist a large body of persons without any nationality (in the international
sense) within the boundaries of a territory whichl is under thle sovereignty or
at least under the actual rule of a State is proved by the Mandates, see Oppen-
heim-Lauterpacht, op. cit., Vol. I, pp. 193-195, and, particularly, W. Schneider,
Das volkerrechtliche Mandat (1926), pp. 56-58. See also King v. Kettler
(1940), 1 K.B. 787. As to the point of view of English law, see Iicey-Keith,
Conflict of Laws (5th ed., 1932), p. 168.
Nevertheless, existence and, in a given case

of international law may be of material i
ascertainment of the nationality in special c
only municipal law is valid within the spher
the annexing State even if contrary to int
latter circumstance may involve non-recogniti
law in other States. On principle, each State
legal or administrative measures of another
duty under international law. But if any suc
sistent with international law, other States wi
to recognise it. This may happen if a State e
other regulations to have effect in foreign t
effect of such regulations is permitted by i
consented to by the State passively concerned
Finally, we must briefly mention the posit
third States and of stateless persons when th
they reside comes under a new sovereignty. As to the first
category, it is today unanimously recognised by both State practice
and writers25 that they are not affected by this change. Nothing
but formal naturalization subject to the usual requirements can
render them nationals of the acquiring State. Stateless persons,
however, are by no means in the same position as nationals of
third States since they do not enjoy the protection of any State.
24 The nature of both the operation and recognition of foreign laws has
been stated with great lucidity by the United States Supreme Court in the
well-known case of Hilton v. Guyot (1895) i59 U.S. 118, see especially pp.
163/164. For an important (reverse) case see Apostolidis v. Turkish Govern-
ment, decided by the Franco-Turkish Mixed Arbitral Tribunal (1928) VIII
Recueil, p. 373 (abridged in Annual Digest 1927/28, Cawe No. 207).
25 Cf. Massen v. Mexico, 3 Moore, International Arbitrations, pp. 2542-
2543; Goldbeck v. Mexico, ibid., p. 2507. also Kunz. op. cit., Vol. I, p. 102.
Halleck, International Law (4th Engl. ed.,-1908), p. 512, would seem to be the
only publicist who has taken a somewhat different view. His opinion (which
was affirmatively referred to by Juta, I. in the South African case of Mar-
burger v. Minister of Finance, 1918 C.P.D. 183) originates from some early
American decisions relating to the nationality of nationals of third States who
lived in the American Colonies when these became independent or in the
Territories when these obtained Statehood. See Chanet v. Villeponteaux
(1825) 3 McCord, South Carolina Rep. 29 (concerning a French national);
see also Hardy v. Leon, (1849) 5 Tex. 211; Kilpatrick v. Sisneros (1859) 23
Tex. 113; Desbois' case (1812) 2 Martin 185 (concerning a stateless person of
former French nationality); U.S. v. Laverty (1813) Martin I, p. 733 (Louisiana
Term Rep.); In re Harrold, 1 Clark 214, 1 Pa Law J. 119. U.S. v. Ritchie
17 How. 525, 539; Cummington v. Springfield (1824) 19 Mass. 394.
The successor State may render them its nationals or lea

their former position as stateless persons.2
The Position of Individuals under the Various Modes

of Territorial Changes
I. INCORPORATION27.
Writers on international law have repeatedly dealt with

the question of the nationality of the nationals of the losing Stat
living abroad, or emigrating after incorporation, particularly
since the incorporation by Prussia in 1866 of the Kingdom o
Hanover and some other smaller German States. Most of the
older publicists28 deny not only the de facto acquisition of
nationality of the successor State but also the right of the la
to impose its nationality on such former nationals of the pr
decessor State who show their unwillingness to acquiesce in
new domination by emigrating after incorporation " sine an
revertendi "; they are considered as having become statel
until their naturalisation by a foreign State.
26 Treaties of cession apparently contain rarely provisions with resp

to stateless persons. An instance can be found in Arts. 6 of the various
Minorities Treaties of 1919, see Manley 0. Hudson, International Legislation,
Vol. I, pp. 283-323, 426, 489. See also Keekenbeeck, The International
Experiment of Upper Silesia (1942), pp. 180 et seqq, and Official Collection of
the Decisions of the Arbitral Tribunal for Upper Silesia, Vol. I, pp. 68 et seqq.
(Dominik's case).
27 By incorporation we mean the annexation by one State of the whole
of the territory of another State, e.g.: the Prussian annexation of Hanover
in 1866; the annexation of Great Britain of the Boer Republics in 1901;
and the annexation by Germany of Austria in 1938. Incorporation can also
be effected by peaceful means, mostly by a treaty with the subsequently
disappearing State. A well-known example is the incorporation by the
United States in 1845 (by Joint Resolution of Congress) of the independent
State of Texas on the latter's request. Since by the act of annexation not
merely the treaty but also the one of the contracting parties ceases to exist,
the annexing State becomes necessarily free from the treaty obligations, and
its position towards the annexed State becomes the same as in the case of
subjugation. See on this point Schoenborn, Staatensukzessionen, pp. 19/20,
85-88, and Cavaglieri in Annuaire de l'Institut de Droit International, 1931,
p. 188.
28 Zachariae, loc. cit., p. 304; L. v. Neumann, loc. cit., p. 316; Calvo
Le droit international (5th ed., 1896). §§ 2467-2469; Halleck, International
Law (1st ed., 1861) p. 816, (also 3rd English ed., 1908, Vol. II, p. 510). Of more
recent writers may be mentioned Westlake, International Law (1904), Vol. I,
p. 70; Coleman Philipson, Termination of War and Treaties of Peace (1916),
pp. 36-38; Cobbett-Walker, op. cit., Vol. II, pp. 310/11.
The majority of the modem writers29, howeve

that nationals of the incorporated State who
annexed territory or in other territory of th
become "ipso facto" nationals of the annexing
which cannot be undone by subsequent emigr
nationals who were abroad at the time of incorp
necessarily acquire the nationality of the annex
may, however, acquire it by voluntary submissi
by express declaration or by return to their ho
other parts of the annexing State. Very few writ
tain that the annexing State is entitled from th
international law to claim such individuals sta
nationals of its own " since in such a case no other State is entitled
from the standpoint of international law to lay claims upon
them ".31 The latter theory met, however, with a favourable
reception by the Draft Convention concerning the Law of National-
ity, prepared in anticipation of the First Conference on the
Codification of International Law, The Hague, 1930.32 Art. 18
sec. 1 of this Draft proposes the following regulation: " When
the entire territory of a State is acquired by another State those
persons who were nationals of the first State (regardless of resi-
dence) become nationals of the successor State unless in accordance
with the provisions of its law they decline the nationality of the
successor State ". The draftsmen assert that this provision
corresponds to a rule of international law generally recognised
even though there might arise divergencies of opinion as to its
application under special conditions.33 The reason for this
proposal is stated to be the wish to avoid statelessness and it is
soothingly added that such persons residing in another country
29 E.G. Oppenheim-Lauterpacht, op. cit., Vol. I, pp. 451/452, 529

(emphatically); Schoenborn, Staatensukzessionen, pp. 89 et seqq.; and in
Strupp's Worterbuch des Volkerrechts, Vol. III (1929), p. 812; Heilborn,
op. cit., pp. 131 et seqq., 136; Liszt-Fleischmann, Volkerrecht (1925),
p. 152; Wheaton-Keith, op. cit., Vol. I, p. 76.
30 Verdross, op. cit., p. 241; Lessing, op. cit. pp. 183, 196/197.
31 Verdross, op. cit., p. 241.
32 Research in International Law, Harvard Law School, Supplement to
Am. J. Int. Law, April, 1929.
33 Loc. cit., p. 61. The reasoning adduced shows clearly that the drafts-
men were fully aware of the questionableness of attributing to international
law a direct effect on nationality.
7
"may be able to obtain naturalization therein,

naturalization there is no apparent hardship in
nationality of the annexing State ". Still the C
not concerned itself with this special problem.
Having regard to the absence of a settled rule
practice in the different States and, on the ot
greater number of individuals who find the
situation at the present day a more elaborate ex
question appears to be called for. The acquiesce
incompatible with the conception of moder in
the solution can merely be found on the basis
preceding lines. A State has outside its terri
over the nationals only, called personal suprema
istic preliminary condition of which is the exis
of nationality. Personal supremacy does not ex
persons living outside a State's territory and it d
existence for the purpose of claiming such per
The argument advanced by Verdross and Le
successor State does have a right under inte
impose its nationality upon stuch individuals as
entitled to lay claims upon them cannot be reg
For such stateless persons lacking any national
not being subject to any personal supremacy of
completely subjected to the jurisdiction of the
territory they stay. After acquiring such jurisd
this State only may determine how to make u
undoubtedly entitled according to internatio
them its own nationals. This being so, no othe
the State which has incorporated their native
right to make pretensions upon these people. N
national law can be proved according to whi
State has such a right.
And still another reflection may support th
stateless persons, at least the great majority of the
be anxious to acquire the nationality of the Stat
them asylum. Whether or not they acquire by
34 See Flournoy in Am. J. Int. Law, Vol. 24, p. 470.
or by general conduct some " inchoate right "35 to l

tion appears to be irrelevant, but the State whic
them has at any event such " inchoate right " to
at a later date in accordance with its naturalizat
such time of probation these people should be c
only under the actual territorial supremacy but
personal supremacy of their State of residence.36
If, however, the State of residence gives his c
measure of the successor State the nationals of
State who are living in the former's territory acquir
ity of the successor State and this result has to b
third States. For it is generally admitted th
exercise its jurisdiction in a territory of another Sta
allows the former to do so.37 But an express act
effect is required; mere recognition of the inco
cannot be taken to imply such intention.
The legal position of persons who are physically
annexed territory at the time of annexation is d
are nationals of the incorporated State, irrespecti
natural born or naturalized, residing or only ha
therein at the crucial moment, or if they are stat
by the fact of incorporation they come under the
of the successor State. This may then determine
regard them as its nationals. If it does so they h
nationals; if it does not they have become or
and that from the moment of the incorporation. Th
even if it takes place immediately after the inc
35 Such an " inchoate right " on the part of aliens i

persons was explicitly affirmed in Desbois' case (1812) 2 M
36 In the famous Koszta case in 1853 (see Moore, Diges
Law, Vol. III, pp. 320-837) the United States gave diplom
an Hungarian revolutionary who, having lost his Austr
taken refuge in the United States, had declared his inten
citizen.
37 An outstanding example for a far-reaching exercise of sovereignty
within a foreign State's dominion can be found in the British legislation
regarding the recognition of the activities of the various Allied Governments
in exile in Great Britain, see F.E. Oppenheimer in Am. J. Int. Law, Vol. 36,
pp. 568-595, and the English cases in re Amand (1941) 2 K.B. 239 and (1942)
1 K.B. 445, and Lorentzen v. Lydden and Company, Ltd. (1942) 2 K.B. 202.
In the United States the recent decisions of Anderson v. N.V. Transandine
Handelmaatschappij (Am. J. Int. Law, Vol. 36), p. 701), and Fields v. Predion-
ica iTranica (ibid., Vol. 40, p. 197) are in point. See also infra. p. 45.
not change their legal status. Once they have ac

nationality of the successor State, they remain i
equally after emigration unless they lose it by specia
in the municipal law of the successor State. But if t
other 'hand, have not acquired that new nationa
emigration, they have left the country as stateless
they remain in this position even if the successor S
later declare them its nationals. For such laws, even i
to be retroactive,38 have no effect abroad.
Although municipal courts had rather frequently
whether a person was a national of the court's own
this has incorporated another State, judgments of na
or international tribunals relating to the establishm
nationality of a foreign national who has been af
territorial change occurring between two other State
scarce.
In Ferdinand Brown v. United States39 the claimant had come

to the United States in 1860 being a national of the then existing
Kingdom of Hanover which was incorporated by Prussia six
years later. In an action against the United States Government
Brown had to prove that he was a national of a State which
granted American nationals to sue its Government. The court
being satisfied that such a right existed in Prussia the ascertain-
ment of the actual nationality of the claimant became decisive.
Counsel for the Treasury pleaded for the defendant "that the
claimant, domiciled in this country at the time of conquest of his
native country, never became a subject of the King of Prussia
or owed him any allegiance whatever and can claim no resulting
protection from the laws of that country; an alien whose country
has been " wiped out " .... has become a man without a country ".
But Nott, J., delivering the opinion of the court, said : Therefore,
Brown was regarded as a Prussian national.
" We cannot accept the idea that the matter of domicile affects the
fact of citizenship nor that mere foreign residence of itself can work a
38 As was the case when by the Decree of July 3, 1988, regarding German
Nationality in Austria (Reichsgesetzblatt 1988, Pt. I, p. 790) Austrian nat-
ionality was replaced by that df Germany with retrospective effect from the
date of incorporation, i.e., March 13, 1988.
39 (1869) 5 U.S. Court of Claims 571. This decision was disapproved in
the Schwartzkopf case, see infra, n. 43.
forfeiture of political rights. When the territory an

a Kingdom pass to, and become merged in, the terri
nation, all of its subjects pass also. The tie which bin
them is not bodily presence but allegiance ".
The court thus attributed an immediate effec
law to an alleged rule of international law wherea
have made sure in the first place whether the claim
a Prussian national according to Prussian law
itself whether the Prussian State was entitled at international
law to claim Brown as its national. The fact that Brown described
himself as a Prussian national must be considered irrelevant, for
though it is universally admitted that the national of an exting-
uished State living abroad may become a national of the successor
State by voluntary declaration of submission or by application
for naturalization, this requires, if the successor State so provides,
delivery of some such declaration to an authority of the latter.
Self-characterization pure and simple before a court of the State
of residence cannot entail such a result.
The Egyptian Mixed Court of Appeal in Alexandria was seized
of two similar cases in 1925.
In the case of Pini v. Pini41 on the occasion of a litigation
relating to the estate of one Carlo Pini who had died domiciled
in Egypt, it fell to be decided whether the deceased was an Italian
national or an Egyptian (local) subject. Jus sanguinis bein,
solely applicable, the court had to trace the nationality of his
ancestors.
The deceased was descended from a Venetian family establish

in Egypt for five generations. His great-grandfather, who w
indisputably of Venetian nationality, his grandfather, father
he himself had resided continuously in Egypt. Having reg
to the changing fate of the Republic of Venice the court poin
out that though the principle of origin had been generally aba
doned in favour of that of domicile, the former principle had
been retained in cases of incorporations of the whole of a Sta
in order to avoid the undesired creation of stateless persons. T
40 As to this, see the Patent of the King of Prussia of October 3, 18

(56 British and Foreign State Papers (1865-66), pp. 1078-1082) and the cas
Count Platen-Hallermund in 1868 (see supra, note 1).
41 April 28, 1925, Gazette des Tribunaux Mixtes d'Egypte, XVI, p. 16
and abridged in Annual Digest, 1925/26, Case No. 196.
court then, reviewing the varied history of

extinction of the Republic of Venice in 1797
" The principle that has been developed just no
not only to the inhabitants but also to the person
living abroad; they have become in turn subjec
Cisalpine Republic, the Kingdom of Italy and then once more of
Austria ".
As to the Treaty of 1866 by which Austria ceded Venice to Italy

the court was of opinion that art. 14 of this treaty gave an optio
not only to the inhabitants of the ceded territory but also to
persons bor therein; these persons became Italian nationals i
default of the exercise of this option. In consequence of thi
opinion and of further inquiries into the ancestry of thedecease
from which it appeared that they had always described themselve
as Italian nationals before Italian as well as other authorities,
the court arrived at the conclusion that the deceased was an
Italian national.
In Romano v. Comma,42 a similar issue was before this court.
Romano, the deceased de cuius, was the grandson of a Jew born
in Rome. He himself had been registered in 1863 in Egypt as an
Austrian protege. Not until an Italian court had decided that
he was an Italian national had he registered as such with the
Italian consulate. The Egyptian Government claimed him as
local subject. Whether Italian or Egyptian law of succession
had to be applied depended on his nationality.
Defining its jurisdiction in respect of the nationality issue the
court found itself competent only if the Government concerned
could not come to an understanding thereon. On the facts of the
case it regarded the grandfather of the deceased and consequently
'also his descendants as nationals of the former Papal States
though Jews did then not enjoy civic rights in Rome. When in
1870 the city of Rome was annexed by Italy and the Papal States
disappeared, all the subjects of these States became automatically
nationals of the annexing State; no option for nationality is
possible if the predessor State is extinguished. As therefore the
change of nationality is effected by law it is irrelevant whether
the person continues to regard himself as a protege of the State
42 Romano v. Hoirs feu Hakim dit Ezra Comma et Cts., May 12, 1925,
Gazette der Tribunaux Mixtes d'Egypte, XVI, p. 158. and abridged in Annual
Digest, 1925/26, Case No. 195.
which exercises protection over persons of his previous

Both these decisions invite the same criticism as does Brown's
case. The Egyptian Mixed Court of Appeal has likewise,
without any closer examination, taken for granted the existence
of a rule of international law to the effect that incorporation
" automatically " changes the nationality of the people concerned
and it has not even touched upon the problem whether inter-
national law can have such an effect at all. Not only was no
attention paid to the attitude of the annexing State, here Italy,
but in the one case an Italian judgment (by which the Italian
nationality of the de cuius was recognised) was disregarded as
not being binding. What, if the Italian judgment had not
recognized or the Italian Government had contested the Italian
nationality of the de cuius ? Would he nevertheless have become
an Italian national " by international law ", or " automatically",
or " ipso jure "? Or does international law only apply if it is not
contrary to a rule of municipal law? It is submitted that the
court should first of all have gone back to special provisions, if
any, or to the general rules of the municipal law of the annexing
State and the judicial practice of its domestic courts, then the
competence of the Egyptian Government should have been
examined. Only if the claim of the Egyptian Government could
have been answered in the negative the attitude of the individual
as to their desire for being accepted as nationals of the incorporat-
ing State, if this was prepared to accept them, should have beem
ascertained.
At last, in a recent decision by the United States Court of

Appeals or the Second Circuit43 the court held that an Austrian
national who was resident in the United States when Austria was
incorporated by Germany, did not become a German national.
The court's elaborate reasoning culminates in the statement that
" in our view an invader cannot under international law impose
43 United States ex. rel. Paul Schwartzkopf v. Byron, District Director of

Immigration, 18th August, 1943, see Am. J. Int. Law, Vol. 87, pp. 634-640.
The decision turns upon the meaning of the term "citizen" in the Alien
Enemy Act 1798, but as this term is conceived as being identical with that of
" national " in the international sense, the scope of the decision is not restricted
to the interpretation of a special municipal law. Whether or no the United
States had recognized the incorporation was held to be irrelevant to the issue.
its nationality upon non-residents of the sub

without their consent express or tacit ".
Two special questions belonging to this head

considered.
Firstly, the effect upon the nationality of its nationals when a

hitherto independent and sovereign State merges into a federal
State and becomes a member of the latter. From the point of
view of international law the nationals of the member State once
they have come under the sovereignty of the federal State are
regarded as nationals of the federal State. Their special position
according to the municipal law of the federal State and of the
new member State is of no moment as far as international law is
concerned.4 45 Those writers who advocate in some way or othe
the acquiescence theory will also apply the principles resulting
from this doctrine to the case of merger into a federal State. B
in our submission this opinion cannot hold good for reasons th
we have ventured to expound above. Once those individuals
are under the actual territorial supremacy of the federal State
of which their original State now forms a part, there can legiti-
mately be imposed upon them a new nationality. With regard
to the position of absentees (i.e. absent from the new member
State as well as from the other parts of the federal State at the
time of the merger) the correct view would appear to be that the
principles which we have 'stated above must also govern this case.
By the merger the hitherto independent and sovereign State is,
on principle, extinguished as an international person, at least as
far as the question of nationality in international law is concerned.46
Therefore an absentee who is the national of a State disappearing
by merger into a federal State is in the same position as one of a
44 See Oppenheim-Lauterpacht, op. cit., Vol. I, pp. 512, 519; see also
Fenwick, op. cit., p. 122.
45 The nationality of the member State can either involve that of the
federal State as was the case in Germany prior to the law of February 5. 1934
(Reichsgesetzblatt 1984, Pt. I, p. 85), and as it is still in Switzerland and in the
U.S.S.R., or the nationals of a federal State possess immediately the nationality
of the federal State and may have additionally that of a member State. The
latter system prevails in the U.S.A. and in the South American Republics.
46 This view would seem to be in concord with that of Oppenheim-Lauter-
pacht, op. cit., Vol. I, § 88.
NATIONALITY AND STATE SUCCESSION ib5
State which is forcibly or voluntarily incorpor

State without retaining a semi-sovereign Stateh
This problem was at issue in the South Afric
Treasury v. Wolff4 The respondent, who wa
in 1851, left that country in 1869 and never returned. At a
later date he went to the Orange Free State where he became a
burgher in 1880 automatically by the acquisition of landed
property, but lost this citizenship three or four years later by
emigration. He came back to the Orange Colony in 1902, after
its incorporation by Great Britain. The Kingdom of Bavaria
lost its independence when it became a member of the newly
created German Reich in 1871. Having regard to the issue of
whether the respondent had lost his Bavarian and consequently
German nationality, the court said:
" The question then arises whether the act of these States in merging
themselves in that way, carried with it, as a matter of course, the
allegiance of their subjects. Allegiance is a contract, and as in all
cases of contract, two parties are required to sever it. But on the
other hand applying the principles of contract to questions of allegiance,
if one party does not carry out the essential terms of the contract the
other party is at liberty to break it ".
Although thus affirming the breach of the contractual relations as
to allegiance on the part of the State of Bavaria, the court held
that the respondent had not been shown to have exercised his
option, which arose on the merger of Bavaria, of severing his
allegiance to that country. Therefore, he was regarded as then
having become a German national, and as he failed to prove that
he had lost his German nationality when he obtained that of the
47 If an apparently new State is formed by the union of several formerly
independent States it has to be carefully ascertained whether really a new
State has come into existence, or whether one of the old States continues to
exist enlarged by the territories of the other extinct States. In the first case
the nationals of all States concerned have lost their original nationality. But
if there is in fact continuity of one of the States (which may even assume a
new name) the nationals of that State will not lose or change their nationality;
as regards the nationals of the other absorbed States our foregoing observations
hold good. The recent Italian decision in Costa v. Military Service Commis-
sion of Genoa (Appellate Court of Genoa, April 4, 1989, Annual Digest 1988-
i940, Case No. 18) would have to be followed if the issue in that case had to be
decided by a court of another country or by an international tribunal. Con-
versely, on the breaking up of a State into several fractions, none of which can
be regarded as identical with the extinct State, all its former nationals lose
their nationality. Acquisition of any new nationality is determined by the
aforementioned principles.
48 (1919) T.P.D. 25; see also (1919) A.D. 336.
former Orange Free State he was still to be conside

German.49 From our point of view this judgment appe
open to some criticism. We may agree, though without a
the line of reasoning,50 to the proposition that the exti
Bavaria as an independent State did put an end to the a
and thereby to the Bavarian nationality of the respond
the presumption that such a person retains his old nat
which necessarily involves the acquisition of that of
German Reich, by merely doing nothing in a case wher
abroad at the time of the merger and does not return, is
larly incompatible with the very doctrine of the acqui
theory which the court on principle followed. If a man i
abroad, the only attitude that can be required of him as a p
his option for severance is that he does not return to h
country or the incorporating State nor that he applies f
tance to the allegiance of the successor State while r
abroad. The respondent ought to have been regarded as
lost his Bavarian nationality, as this has become extinct
international significance, and as never having acquired
the German Reich.
In a French case5' where spouses of Bavarian nationality had

established themselves in Lorraine prior to the Treaty of Frankfort
in 1871 without the intention of returning to Bavaria, the court
considered them to be stateless as they had lost their Bavarian
nationality owing to Bavarian legislation and had not acquired
French nationality. Thus the court obviously relied only upon
the Bavarian law of nationality, leaving out of account the fact
that Bavaria had merged into the German federal State. But
49 Whether absence from Germany of more than ten years has caused
forfeiture of German nationality according to the German nationality law o
1870, which question was repeatedly at issue in similar cases (cf. Ex part
Weber (1916) A.C. 421 ; Stoeck v. Public Trustee (1921) 2 Ch. 67; Loewen-
stein v. Custodian of Enemy Property (1921) T.P.D. 606, at p. 620), was
obviously not taken into consideration.
50 The application of the conception of contract to allegiance shows a
relying on some kind of social contract theory in its most extreme form which
has been completely abandoned today. Allegiance and nationality are not
based upon contracts but are " a status imposed at birth independent of the
will of the individual" (Sir John Fischer Williams in British Year Book of
International Law, 1927, pp. 53/54).
51 Veuve T. v. Maire de Rombas, Tribunal de Metz, April 15, 1920, Revue
juridique d'Alsace et de Lorraine, I., 1920, p. 425.
on this reasoning the decision is hardly justifia

law did not recognize loss of nationality by em
simple, acquisition of a foreign nationality bein
court would have been on much safer ground if
the loss of Bavarian nationality to the fact that Bavaria had
ceased to exist as an independent State at international law.
The second question concerns the position of Heads of State
when their country has disappeared by incorporation. It would
seem to be the uncontested view53 that a deposed Head of a State
even if he does not leave the country until immediately after its
extinction does not become a national of the subjugating State.
Apparently even the adherents of the alleged rule of international
law according to which all nationals of the incorporated State
become automatically such of the annexing power do not apply54
this rule to Heads of a State. It is, however, submitted that there
is no reasonable ground why the Head of a State, be he monarch
or president, particularly since he loses this quality on the extinc-
tion of his State,53 should be treated differently from that of the
ordinary nationals.
II. PARTIAL, ANNEXATION AND SECESSION.
Although these two modes of territorial changes are entirely
different as regards their nature and their political motives and
implications they entail very similar legal consequences in thei
effect on the nationality of the people affected by the forced
separation of a portion of a State's territory. In the first case5
52 See Keller-Trautmann, Kommentar zum Reichs-und Staats-
angehorigkeitsgesetz von 1913 (1914), p. 330.
53 See Zachariae in " Gerichtssaal ", 1863, p. 225; Holtzendorff, op.
p. 42; v. Bar, op. cit., p. 182; Westlake, Coll. Papers (1914), p. 487, regar
the former Boer President Kriiger. The judicial authorities are to the
effect; see the case of Prince Elie de Bourbon-Parma, decided by the
Cour d'Appel of Orleans (February 29 1928 Sirey 1929, II. 33, at
p. 37), confirmed by the Cour de Cassation (civ.), Dalloz, Recueil Periodique
1932, p. 39, regarding the Duke Robert of Parma who was deposed in 1859,
and his family, and the decision of the Cour de Cassation in the celebrated
affaire de Bari (February 4, 1891, Sirey 1891, I., 449, and thereon Audinet in
Clunet, 1923, p. 787).
54 So particularly Pillet, Droit International Prive, Vol. I, (1923), p. 259.
55 See Oppenheim-Lauterpacht, op. cit., Vol. I, pp. 591/92.
56 Historical instances of partial annexation in recent times are the
annexation by Rumania of Bessarabia in 1918; the seizure of the then
Lithuanian city of Vilna by Poland in 1920; the annexation by Hungary of
the so-called Carpartho-Ukraine in March 1939 which formed a part of the
Czechoslovak Republic; the annexation by the U.S.S.R. of part of East
Prussia in 1945.
this comes under the sway of another already e

in the second event57 under that of a newly fo
characteristic common to both cases is the loss of t
preceding treaty.58
It is submitted that the successor State is not en
as its own nationals any nationals of the prede
were not found in the transferred territory at
irrespective of their origin from, or their habi
the lost territory. They continue to be national
sor State only unless this grants them a right of o
English practice after the secession of the Ame
More complicated is the legal position of tho
were staying in the annexed or separated territo
moment or proceed there later on. The annexing
State may regard them as its subjects provided
actual presence still another point of contact l
or origin from, the changed territory is presen
nationals of the predecessor State must be cons
abuse as claiming nationals of third States for t
does not deny the continuance of the existence
in its reduced size, and, in case of secession, the
sarily the recognition by the new State of the r
as a foreign State henceforth.
But what about the hitherto existing nationa
people, usually being the overwhelming majorit
territory who, on account of their residence, m
and actual presence, undoubtedly have become
new master ? We have seen that international law cannot effect
an immediate change of the nationality status and does theref
not bring about the loss of nationality. No rule of internatio
law is possible according to which on acquisition of the national
57 E.g., Czechoslovakia from the Austro-Hungarian Monarchy in 1918;

Belgium from the Low Countries in 1831; the American Colonies from Gr
Britain in 1776.
58 A treaty concluded after the completed partial annexation (e.g., t
recognition by Turkey of the British annexation of Cyprus in 1914 in the
Peace Treaty of Lausanne in 1928) or after secession (e.g., the Treaty of
Versailles of 1783 when Great Britain recognized the secession of the American
Colonies-cf. Mcllvaine v. Coxe's Lessee (1808) 3 Cranach 208) does not alter
this characteristic element of the territorial change.
of the successor State that of the passively

exist. There might conceivably be an obligat
the losing State to release from its allegiance
its nationals whom the succeesor State claims,
points of contact. But such an obligation wo
tion to recognize the annexation or secession
no obligation upon the losing State to recogniz
upon its sovereignty. Thus, in spite of their
of the successor State, they remain nationals
they become persons with double nationality.59
from the moment when they recognize the
nationality of the successor State is the sole
this applies only to such persons who remain
the successor State or emigrate later to other
however, proceed to the territory of their home
nationality which they have acquired mea
annulled? One should think that the succe
mitting emigration to the home State within
after the change of sovereignty must be dee
its claims to their allegiance or, if its nationa
acquired, have granted discharge therefrom.
The courts seem not frequently to have ha
with cases of this description through the d
international law. As one of the few cases of this sort we can note
the decision by the Rumanian-German Mixed Arbitral Tribunal in
Wildermann v. Stinnes,60 where this problem was put in its whole
impressiveness and intricacy. The plaintiff was born in 1863 in
Kilia-Nova in Bessarabia of parents permanently residing there,
Bessarabia then belonging to old Rumania. In 1878 Bessarabia
was ceded to Russia. A short time afterwards the plaintiff,
having obtained a Russian passport, emigrated and lived there-
after mainly in England and Germany. He passed as a Russian
and as late as 1922 he had his Russian passport renewed in
59 See Schatzel, Die elsass-lothringische Staatsangeh6rigkeitsregelung

und das Volkerrecht (1929), p. 40 (regarding Vilna) and p. 27 (regarding
Bessarabia); see also Makarov in Ostrecht, 1926, p. 33.
60 Recueil des Decisions des T.A.M., Vol. IV, p. 842, and Vol. VI, p.
485, abridged in Annual Digest, 1928/24, Case No. 120. See also Lapradelle,
Causes Celebres du Droit des Gens, L'Affaire Meyer-Wildermann v. Stinnes
(1931).
London. As to his Rumanian nationality, he did not claim it

until 1923 when he brought an action before the Rumanian-
German Mixed Arbitral Tribunal. This court had to ascertain
the true nationality of the plaintiff as the defendants conten
that he was either stateless or Russian.
In considering the history of Bessarabia the court stated that
in the spring of 1918, after secession from Russia in December,
1917, union took place with Rumania.61 Recognition of this
fait accompli was accorded by Great Britain, France and Italy on
March 9, 1920.62 It is clear that this declaration, to which Russia
was no party, could not effect any change in the nationality of
former Russian nationals. The court, as it pointed out, had
therefore to choose between two alternatives:
(i) either the Bessarabians must be regarded at inter-
national law as Russians until a treaty with Russia had
ratified the union of Bessarabia with Rumania;
(ii) or, conversely, the Bessarabians must be regarded
at international law as having become Rumanian nationals
by virtue of the secession followed by the union.
The tribunal adopted the second alternative. Stating first that
" the matter before the court concerning a conflict of private law
between a Bessarabian and a German national, it is of importance
that Germany agreed in advance to recognize what would happen
to the territories broken off from former Imperial Russia (Art. 117
of the Treaty of Versailles)", the tribunal decided that the change
of nationality could not be effected by the Treaty of 1920 or the
Rumanian Minorities Treaty of December, 1919,63 which " can
only serve to inform the tribunal as to the intention of Rumanian
laws ". It held that the plaintiff's right to Rumanian nationality
and the date of its acquisition are exclusively to be determined
by the acts of the union and Rumanian legislation, the former of
which by implication and the latter explicitly provide for the
61 As the secession was instigated by, and to the benefit of, Rumania,
the event on the whole must be classified as partial annexation. For particu-
lars see Lapradello, op. cit., pp. 288 et sq., 392, 397-400.
62 See Macartney, National States and National Minorities (1934) p. 203.
By a treaty of October 28, 1920, British Treaty Series No. 15 (1922), White
Paper Cmd. 1747 (1922), between Great Britain, France, Italy, and Japan
this political union was formally recognized but as Japan did not ratify this
treaty it did not come into force.
63 See Hudson, International Legislation, Vol. I, p. 426.
NATIONALITY AND STATE SUCCESSION Ill
plaintiff's acquisition of Rumanian nationality

resident in Bessarabia at the time of the union, was born in a
Bessarabian community of parents resident therein.
A critical analysis of the judgment cannot but agree with the
final finding of the tribunal though not with every part of its
reasoning.
The tribunal, on the one hand, rightly refused to concede to
the treaties of 1920 and 1919 the effect of an immediate change of
nationality, yet it attributed, on the other hand, to Rumanian
municipal law the power to confer Rumanian nationality on
persons living within a foreign jurisdiction. It is submitted that
the tribunal would have acted in conformity with international
law if it had construed the Rumanian law as a provision for
collective naturalization the offer for which the plaintiff had
accepted.
But even though the tribunal has not followed this order of
thought, its judgment, nevertheless, may be approved for other
reasons. The whole action lies within the ambit of the Treaty
of Versailles, on which also the tribunal itself and its jurisdiction
are grounded. The Great Powers having demanded from
Rumania by the declaration of March 9, 1920, the recognition as
Rumanians of former nationals of Imperial Russia who were born
in the territory of Bessarabia of parents who had their habitual
residence in that district even if they themselves were not resident
there at the time when that treaty came into force, their recogni-
tion of Rumanian law enacted in compliance with this request was
only a matter of course. As for Germany, she had also to recog-
nize all those treaties and agreements and, consequently, their
effects on nationality. The tribunal was therefore bound to
accept the effect of the Rumanian law and its recognition by the
Great Powers and Germany.64
In Agapios v. Sanitary and Quarantine Council of Egypt 65
the Egyptian Mixed Court of Appeal gave a decision right as to
both method and result. The applicant was born in the island of
64 For the rather curious issue of this cause see the decision rendered by
the Rumanian District Court of Ismail in 1933 (Recueil Geneeral, 1934, III,
p. 55, cited in Annual Digest 1933/34, p. 122).
65 June 21, 1920, Annual Digest, 1919/20, Case No. 136; for particulars
of the British nationality decrees regarding Cyprus, see Wheaton-Keith, op.
cit., Vol. I, p. 76.
Cyprus but for many years resided in Egypt.

1914, Cyprus then belonging to Turkey, was an
Britain. In this action he claimed to have become a British
national on the strength of the annexation. (Apparently
relied on an alleged rule of international law that, independe
provisions in the municipal law of the successor State, annex
entails automatically a change of nationality for all persons
in the annexed territory regardless of their place of reside
The tribunal, correctly referring to British municipal law,
the Orders in Council which determine upon which islan
British nationality should be conferred, held that these Orde
Council did not render all persons born in Cyprus ipso facto
British nationals and that therefore Ottomans born therein yet
residing elsewhere from 1914 to 1919 did not acquire British
nationality. Thus the applicant remained an Ottoman national.
Turning now to cases relating to secession we must distinguish
two classes of decisions, namely: (i) those in which at the time
when they come before the courts, no agreement on such questions
exists; (ii) those which come before the courts after a treaty has
been concluded. In this chapter we will only consider the first
class. The second is quite similar to the situation of cession of
territory as in either case, two States agreeing on and recognizing
a territorial change, settle by treaty the position as to the national-
ity of the persons concerned. Therefore, we will treat them
together with the cases that have arisen in connection with a
cession.
In a decision of the German Reichsgericht of September 20,

1922,66 the question arose whether Russian nationals, born in
Congress-Poland which before 1918 formed a part of the Russian
Monarchy, but had been living in Germany since 1914, continued
to be Russians or had become Poles in 1918. The court might
have left this problem undecided, still when dealing with this
point it quite truly remarked that there is a controversy in inter-
national law, thus emphasizing that the question in issue would
have to be decided by application of rules of international law
and not by the municipal law of the States to which the de cuius
66 Official Collection of the Decisions of the Reichsgericht in Civil
Matters, Vol. 105 (1922), p. 169,
might be attributed. Yet a decision in the matt

unnecessary in the opinion of the Reichsgericht) h
by the court below67 which held (correctly in our su
"the defendants had not forfeited their Russian nationality by
emigration. On the other hand, they had not acquired Polish national-
ity on account of the secession of Russian Poland from Russia. For the
jurisdiction (Staatsgewalt) of the new States extends merely over those
inhabitants who at that time had had their residence in Poland ".
In another secession case the German-Yugoslav Mixed Arbitral

Tribunal67& held that the plaintiff who possessed rights of citizen-
ship (Heimatrecht) in that part of Austro-Hungarian Monarchy
which after the First World War became the newly arising S.H.S.
State (later Yugoslavia), did not become a national of that State
in October, 1918, but only on January 10, 1920, when the Treaty
of Versailles came into force. The tribunal pointed out that
"there does exist a rule in international law that when a territory
passes to a new sovereign it must in case of doubt be assumed that the
' ressortissants de ce territoire ' who have not their residence there do
not acquire the new nationality "
In a decision of the Egyptian Mixed Court of Appeal in 1935,68
the facts were as follows: An Ottoman national of Albanian
origin who resided in Egypt on July 29, 1913, on which da
Albania was constituted as an autonomous and sovereign princi
pality in execution of the Treaty of London of May 17/30, 1913
did nothing to acquire the nationality of the new State to whic
he was attached by his origin. He continued his habitul residenc
in Egypt until May 26, 1926, when the first Egyptian nationalit
law was enacted. It was held (correctly in our submission) that
he had become, on the strength of this law, an Egyptian nationa
opere legis, having secured his quality of an Ottoman national
until the new Egyptian nationality law came into force.
III. CESSION.
In the case of cession, i.e. on change of territorial soverei
in pursuance of a preceding agreement concluded betwee
States concerned, a settlement of the various questions rela
to the nationality of the population affected by the cession i
67 Referred to in the decision of the Reichsgericht.
67a In re Peinitsch (1922), Vol. II, p. 611.
68 Hassan Khattab v. Christo Callifas, Bulletin Institut, Vol. 88 (1935),
p. 817.
rule also agreed upon.68a Generally, the princ

(or, more accurately, of habitual residence69) is t
determining which people are to change their na
theless, in some cases the principle of origin7
obtained by cumulation or alternation of both pr
applied71 But there may exist still another altern
of citizenship within a commune (indegenat, Heim
has been chosen in the Treaties of St. Germain and Trianon.72 73
For more than a century treaties of cession contained pro-

visions for an option by the individuals affected by a change of
sovereignty. These may retain their hitherto existing nationality
by virtue of an express declaration or by emigration from the
ceded territory. In the first case it depends on the actual agree-
ment whether those persons who exercise this right are allowed to
remain in that territory as foreign nationals; if such a privilege
is not granted the successor State may either expel them or regard
them as its own nationals by reason of non-consummation of
their option.74 Yet if there is no such clause of option in the
treaty then no obligation exists for the successor State to grant
an option.75 It must be borne in mind that also in case of cession
loss of the old and acquisition of the new nationality is brought
68a That sometimes modern treaties of cession contain no provisions as

regards the nationality of the inhabitants is shown by the treaty between
Great Britain and the re-established Transvaal State of August 3, 1881, cf.
the interesting South African case of R. v. Ramage (1902) 23 Natal Rep. 45.
69 This has as a rule been applied on the cessions by Germany under the
Treaty of Versailles.
70 The principle of origin was chosen in the Anglo-German Heligoland-
Zanzibar Treaty of 1890 (Art. XII, 2) and in the Anglo-French treaty of April
8, 1904 (Art. VII), see Kunz, op. cit., Vol. I, pp. 44/45.
71 E.g. in the Peace Treaty of Frankfort in 1871.
72 Art. 70 and 61 respectively, see W. 0. Molony, Nationality and the
Peace Treaties (1984), pp. 48/44, 91, 148 et seqq. As regards the peculiar
regulations in the post-war treaties between Soviet Russia and her neighbour
States Poland and the three Baltic Republics, see Taracouzio, The Soviet
Union and International Law (1935), pp. 96 et seqq.
73 For another primitive system of a regrouping of the population by way
of emigration with retention of the original nationality, applied in several
treaties concluded by Turkey, see Schatzel, op. cit., p. 184.
74 The peace treaties of 1919, however, provided that the option is
completed by the act of declaration; optants were thus liable to expulsion
unless a right of residence was expressly stipulated, see Kunz, op. cit., Vol.
II, p. 17.
75 See Kunz, op. cit., Vol. I, pp. 88-91; Hall-Higgins, International
Law (8th ed., 1924), p. 678.
about solely on the strength of the municipal law of

States; thus the individuals concerned acquire the
only by the municipal law of the successor State.
States are bound by treaties of cession-which ma
multilateral peace settlement like the peace trea
1920-to create corresponding municipal law; and
also here incorrect to speak of ipso facto or ipso
nationality.76 The question as to the nationality o
who were staying in the ceded territory at the time
leave it afterwards depends on the contents of the t
and the municipal law of the successor State. A d
numerous problems which have arisen from m
cession does not fall within the compass of this s
they are mostly questions of interpretation of a
even though hereby general principles of intern
been or ought to have been observed.
A question as regards the position of "peop
staying abroad can hardly occur if the princ
residence is chosen because in this case only those
resident in the ceded area change their national
it might arise if a person is just temporarily sta
instance on a journey. If he returns to the cede
temporary absence will not affect his subjugation to
of the successor State. But if he remains abroad, it is to be
assumed that he has given up his residence at the time of the
cession on account of his place of residence coming under foreign
sway. Whether he retains his nationality or becomes stateless
depends upon the municipal law of the ceding State. As a rule,
he will retain it, not having been resident in the ceding district
when the cession took place. Yet this question will play a far
76 Unless expressly stipulated change of nationality is brought about

neither by the mere conclusion of a treaty nor the enactment of municipal
law in conformity therewith but only by the actual change of sovereignty,
i.e. by taking possession of the transferred territory by the cessionary State.
Municipal law to that effect has to be construed as being conditional upon the
actual transference. This was expressly confirmed by Lord Stowell in the
" Fama " (1804) 5 Rob. 106, at pp. 118-120, relating to the cession of Louisiana
by Spain to France in 1800 which was not implemented until November 80,
1808. The Austrian Administrative Court has rightly applied this rule in the
Oedenburg (Change of Nationality) Case of September 2, 1927, cf. Annual
Digest 1927/28, Case No. 201.
more important part if the principle of origin

(or in combination with the principle of habit
that of indigenat is applied. What then is the p
living in third countries, if the contracting St
that all persons who were born in the ceded ter
principle of indigenat is applied, have an indige
tory) change their nationality ? Just as in the c
tion or partial annexation the successor State c
nationality upon nationals of the predecessor S
jurisdiction this result cannot be achieved b
whereby the ceding State, so to speak, "transf
nationals to the successor State. Looking more
one will have to admit that the ceding State ha
It can loosen the tie of allegiance but it cannot
former national a foreign nationality; for this mig
by the successor State whose acts, however, ha
no effect in other States. It is respectfully sub
opposite view advocated by Westlake77 would see
for the last act of sovereignty cannot go farthe
of nationality. It must not influence the attitud
that two contracting States (and possibly other
in a relevant treaty of cession) treat such absent pe
to the terms agreed upon. Third States, bec
parties to the treaty, are bound and entitled t
stateless. This problem occurred in connection
of Frankfort in 1871. France had been compell
in an Agreement78 additional to the peace trea
that besides those inhabitants of the ceded pro
Lorraine who were born there, as was provided for
Peace Treaty, all persons wheresoever they migh
to be regarded as German nationals unless they
Cogordan reports79 that this stipulation has bee
practice of both countries. With reference to t
Oppenheim80 seems to concede only loss of Fre
77 International Law (1904), p 71.

78 Treaty of December 11, 1871, Art. 1, part 2 (Martens, N.R.G. XX, p.
847); see Cogordan, La Nationalit, (2nd ed., 1890), p. 361.
79 Op. cit., p. 861.
80 Oppenheim-Lauterpacht, op. cit., Vol. I, 219a, n. 3.
but does not infer therefrom acquisition of Germ

Therefore, the court of a third country would ha
such persons as stateless.
The same problem arose when German courts
World War had frequently to determine the nationa
who had emigrated into Germany from those pro
Imperial Russia which had become parts of the n
As we have seen above, a German court in 192281
as still being Russians since the establishment of Pol
over their places of birth did not affect their nation
when later on German courts took account of th
of March 18, 1921, between Poland and Soviet
decided in accordance with its stipulations. Art.
of this treaty provide that those former Russian
" ascribed " to these provinces now forming a par
to be regarded as Poles if they lived on the Polish
Polish-Russian frontier, and as Russians if th
other side; still both groups are entitled to op
Russian nationality respectively. Sec. 3 of Art. V
with those persons who at the material time (i.e.
of Riga came into force-April 30, 1921) were ou
Ukraine, and Poland makes the regulation of s
applicable to this category. In four decisions83 G
accepted the regulation of the Treaty of Riga con
living in Germany without asking themselves w
and Russia could after all validly determine the
81 See supra, notes 66 and 67.
82 See for the text of this treaty League of Nations, T
pp. 62, 63, 132, 133 (the English translation of Art. VI, s
The wording of sec. 3 admittedly being rather inexact,
whether such people if they did not opt had become Po
their Russian nationality (see Freund in Juristische Woch
3455 on the one, and Makarov, ibid., 1932, p. 3800, on the
83 Kammergericht Berlin, June 27, 1929, in Deutsche
auf dem Gebiete des internationalen Privatrechts, 1980, Sonderheft der
Zeitschrift fiir auslandisches und internationales Privatrecht, No. 121;
Oberlandesgericht Celle, November 16, 1938, in Juristische Wochenschrift,
1934, p. 1920; Reichsgericht, Decisions in Civil Matters, Vol. 150, p. 298;
Kammergericht Berlin, July 21, 1938, in Juristische Wochenschrift, 1988, p.
2799. Whereas in the first decision the de cuius was regarded as having
retained his Russian nationality which he only lost through subsequent
Russian legislation, in the three later cases the parties concerned were deemed
to have acquired Polish nationality, the courts following Makarov's opinion
as quoted above (supra. note 82).
of persons outside their territorial jurisdictions.

earlier decision of the Reichsgericht of Septembe
referred to. Apparently in none of these cases t
concerned availed themselves of the right of option
mitted that Germany, being no party to the Treaty
onlly obliged to recognize such effects of the treaty as
about within the territorial jurisdiction of the contra
but that she had to disregard such provisions of th
were designed to operate outside thereof. Though a
intricate, the problem as to whether a State must p
treaties between two other countries (particularly if
the regulation of the nationality of nationals of eit
States) solves itself comparatively easily. For if we
one State cannot in such case extend its jurisdiction
abroad, then this result cannot be reached either if
law of either or both States is enacted in pursuance o
The right approach to such an issue is shown in a
the Arbitral Tribunal for Upper Silesia.85 The ap
had been living in the German part of Upper Silesia
1920, originated from a part of Eastern Poland whi
acquired from Russia under the Treaty of Riga. I
secure the right of residence in German Upper Sile
prove that he was a Polish national. The contention
a Pole was refused by both the German and Polish
sentative. The Arbitral Tribunal not being satisfied
these denials or the (negative) interpretation of the
clauses86 of the said treaty by the Polish administrative
which it found inconsistent with its own interpreta
the Russian practice was in line with that of the Polish
relied on a precedent decided by the Polish Supreme
tive Court which had confirmed the Polish nationa
category of persons to whom the applicant belonge
Polish municipal law and the wish of the applicant t
national concurred, the tribunal's decision was the only
However, the attitude of a third State which is a
treaty of cession or has bound itself to recognize it m
84 See supra, note 66.
85 In re Simon Kurz, see Kaekenbeeck, op. cit., pp. 172-174. The
decision itself is not published.
86 See supra, n. 82.
different. Therefore, in the illustrative case of

Minister Public the Rumanian Court of Appea
correctly regarded the plaintiff as a Polish natio
and had been permanently resident in Ruman
rights of citizenship in a commune situated in the
Hungarian Monarchy which was transferred to
Treaty of St. Germain in 1919. In this treaty, to
was a party, the principle of right of citizenship
the determination of nationality. The court the
the plaintiff had lost his Austrian nationality and b
a Polish national, his permanent residence in Ru
no moment in this connection.
EXCHANGE OF POPULATION.
A new problem arose on the exchange of Greek and Turkish
minorities after the last War. Though such exchanges of parts
of populations do not fall within the category of State succession
proper as no transference of sovereignty over territory takes
place, the questions raised thereby are frequently kindred to
those occurring in cases of cessions. Article 7 of the relevant
Convention of January 30, 192388 provided that the emigrants
were to lose the nationality of the country which they left and
acquire the nationality of the country of their destination at th'
moment when they arrived in the territory of the latter. Previous
emigrants acquire the new nationality on the date of the signature
of the convention, i.e. on January 30, 1923. Now, there were
many Greek refugees who, in the preceding years, had emigrated
from Turkey to other countries, mainly to Egypt and to the
United States. No provision was made in the convention in
respect of those persons. There appears to be unanimity on two
points, namely (i) that such emigrants lost the nationality of the
country which they left on crossing the frontier to a third State
87 April 6, 1925, Revue critique de droit international prive (Darras-
Lapradelle), 1928, p. 683. The reference to this case should merely be under-
stood as an illustration of a principle for it is doubtful whether the Rumanian
Law of Nationality of February 23, 1924, from which Rumanian courts had
to proceed, is in accordance with Arts. 3, 4 and 6 of the Rumanian Minorities
Treaty of. 1919, see Vichniac in Hague Academy, Recueil des Cours, Vol. 43
(1938), p. 156.
88 See Stephen P. Ladas, The Exchange of Minorities: Bulgaria, Greece
and Turkey (1932), p. 398.
irrespective of whether such emigrations took place

the signature of the convention; (ii) that they h
nationals of any such third State because the
only binding between Greece and Turkey accord
142 of the Treaty of Lausanne of 1923 of which
forms a part. But did they become Greeks or Tu
according to their religion or did they become state
Both Tenekides89 and Seferiades90 express doubts as
ness of the former alternative though such a
correspond to the spirit of the convention. Sefer
statelessness "would certainly be the most exact
the legal point of view ". The Mixed Commission
the convention decided91 however that refugees
lost the nationality of the State which they left
of the other signatory of the convention upon a
country. The juridical weakness of this ruling
been rather plain to the Greek Government wh
concerned by this question, for a Greek law of
provided that the Turkish nationals of Greek or
who had entered third States had not automatically become
Greek nationals but could only become such by an application
on their part. According to S6efriades's information this has
been interpreted as being applicable only to refugees who had left
Turkey prior to the conclusion of the convention whilst the position
of later emigrants was governed by the decision of the Mixed
Commission. Approving this interpretation on the ground that
a naturalization can only be effected with the consent of the
individual concerned, Seferiades would thus seem to suggest that
people leaving Turkey after the coming into force of the conven-
tion must be deemed to have given that consent while still on
Turkish soil. Referring to what we have said above92 on a
State's power to confer its nationality on persons abroad if the
State of residence agrees, the Greek law can be regarded as com-
plying with the requirements of international law in an exemplary
way. As regards the attitude of courts or administrative author-
ities in third States towards this issue nothing seems to be known.
89 Revue G6enrale de Droit International Public, 1924, pp. 13/14.
90 Hague Academy, Recueil des Cours, Vol. 24 (1928), p. 404.
91 See Ladas, op. cit., p. 898; Seferiades, loc. cit., p. 404.
92 See supra, p. 99.

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British Institute of International and Comparative Law

Cambridge University Press, British Institute of International and Comparative Law

NATIONALITY AND STATE SUCCESSION

General Principles of the Effect of Territorial Ch

(Read before the Society on the 5th June, 1946)

The numerous nationality problems raised by the peace

on provisions of the municipal law of various c

I Thus, writers on international law when discussing the position of

Roman) law of general succession2 the majority o

2 See Lauterpacht, Private Law Sources and Analogies of International

Following the principles as laid down with regar

5 Pufendorf, De Jure Naturae et Gentium, lib. VIII, c. 5, s. 9; Vattel,

by acquisition of territorial jurisdiction wit

9 Op. cit., §§ 285-292, 297, 298.

The same method of approach underlies von

13 Of the same opinion is Wheaton-Keith, International Law (1929), Vol.

States are bound to observe. It grants legal capacit

15 See Oppenheim-McNair, International Law (4th ed., 1928), Vol. I,

It is generally admitted today that a State whic

Yet this general principle would only seem to apply to cessions

2t Therefore, the interpretation of the Minorities Treaty between Ger

Nevertheless, existence and, in a given case

The successor State may render them its nationals or lea

The Position of Individuals under the Various Modes

Writers on international law have repeatedly dealt with

26 Treaties of cession apparently contain rarely provisions with resp

The majority of the modem writers29, howeve

29 E.G. Oppenheim-Lauterpacht, op. cit., Vol. I, pp. 451/452, 529

"may be able to obtain naturalization therein,

34 See Flournoy in Am. J. Int. Law, Vol. 24, p. 470.

or by general conduct some " inchoate right "35 to l

35 Such an " inchoate right " on the part of aliens i

not change their legal status. Once they have ac

In Ferdinand Brown v. United States39 the claimant had come

forfeiture of political rights. When the territory an

The deceased was descended from a Venetian family establish

40 As to this, see the Patent of the King of Prussia of October 3, 18

court then, reviewing the varied history of

As to the Treaty of 1866 by which Austria ceded Venice to Italy

which exercises protection over persons of his previous

At last, in a recent decision by the United States Court of

43 United States ex. rel. Paul Schwartzkopf v. Byron, District Director of

its nationality upon non-residents of the sub

Two special questions belonging to this head

Firstly, the effect upon the nationality of its nationals when a

State which is forcibly or voluntarily incorpor

former Orange Free State he was still to be conside

In a French case5' where spouses of Bavarian nationality had

on this reasoning the decision is hardly justifia

this comes under the sway of another already e

57 E.g., Czechoslovakia from the Austro-Hungarian Monarchy in 1918;

of the successor State that of the passively

59 See Schatzel, Die elsass-lothringische Staatsangeh6rigkeitsregelung

London. As to his Rumanian nationality, he did not claim it

plaintiff's acquisition of Rumanian nationality

Cyprus but for many years resided in Egypt.

In a decision of the German Reichsgericht of September 20,

might be attributed. Yet a decision in the matt

In another secession case the German-Yugoslav Mixed Arbitral

rule also agreed upon.68a Generally, the princ

For more than a century treaties of cession contained pro-

68a That sometimes modern treaties of cession contain no provisions as

about solely on the strength of the municipal law of