Advisory Opinion No. 4 (Nationality Decrees issued in Tunis and Morocco)

Parties (including notable third parties)

France; Great Britain

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Summary of Facts

On 8 November 1921, a series of decrees were issued by the French Government and local authorities in the French protectorate territories of Tunis and Morocco. The decrees purported to bestow automatic French nationality on individuals born in Tunis or Morocco, who had at least one parent also born in the same territory and subject to the jurisdiction of the French courts of the protectorate.

Great Britain disputed the application of these decrees to British subjects in Tunis and Morocco. Great Britain sought for the dispute to be referred to arbitration before the Permanent Court of International Justice (“PCIJ”) but France refused on the basis that the PCIJ did not have jurisdiction. Great Britain then raised its intention to submit the dispute before the Council of the League of Nations. This was also challenged by France on the basis that the dispute was expressly excluded by the reservation in paragraph 8 of Article 15 of the Covenant of the League of Nations, which provided:

“If the dispute between the parties is claimed by one of them, and is found by the Council to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.” (p. 23)

The matter was submitted to the Council of the League of Nations and, at the request of both France and Great Britain, on 4 October 1922 the Council referred the following question to the Permanent Court of International Justice for an advisory opinion:

“Whether the dispute between France and Great Britain as to the Nationality Decrees issued in Tunis and Morocco (French zone) on November 8^th, 1921, and their application to British subjects, is or is not, by international law, solely a matter of domestic jurisdiction (Article 15, paragraph 8, of the Covenant).” (p. 21)

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Legal Arguments

According to France, the public powers exercised by the protecting State, taken in conjunction with the local sovereignty of the protected State, constitute full sovereignty. That is, the protecting and protected States may exercise and divide between them within the protected territory the whole extent of the powers which sovereign States enjoy under international law. This was disputed by Great Britain. (p. 28)

Great Britain denied that the 8 November 1921 decrees were applicable to British subjects due to earlier treaties between Great Britain and Morocco in 1856 and Tunis in 1875, which gave British subjects a measure of extraterritoriality incompatible with the imposition of another nationality. France disagreed, claiming that those treaties had lapsed by virtue of the principle clausula rebus sic stantibus (‘a fundamental change of circumstances’), because the establishment of a legal and judicial regime according to French legislation had created a new situation which deprived the British regime of its raison d’etre. (p. 29)

France and Great Britain held further divergent views regarding the scope of Great Britain’s rights of jurisdiction in Tunis and Morocco, in light of various international conventions and other engagements. (pp. 29-30)

Great Britain also sought to rely on the most-favoured-nation clause in the Anglo-French Arrangement 1897 and related exchanges of notes to assert a claim to the benefit in the Franco-Italian Consular Convention 1896 that allows Italian subjects in Tunis to preserve their nationality. France denied the applicability of the most-favoured-nation clause, arguing the clause had an exclusively economic bearing and that the Franco-Italian Convention was synallagmatic in character. (pp. 30-31)

Outcome

The PCIJ observed that “[t]he question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations.” (p. 24)

On this basis, the PCIJ concluded that, although questions of nationality were in principle solely within the jurisdiction of a State, such jurisdiction is limited by rules of international law insofar as the right of a State to use its discretion is restricted by obligations undertaken towards other States. Where States are entitled to invoke the rules of international law, the question of whether a State has the right to take certain measures becomes a dispute of an international character and falls outside the scope of the exception in paragraph 8 of Article 15 of the Covenant. (p. 24)

For protected territories, the question of whether the exclusive jurisdiction of a protecting State in regard to nationality questions in its own territory extends to the territory of a protectorate depends upon an examination of the whole situation from the standpoint of international law. Therefore, the PCIJ concluded the question is no longer solely one of domestic jurisdiction. (p. 28)

The PCIJ further commented that it was necessary to have recourse to international law in order to resolve the specific contentions raised by Great Britain and France (pp. 28-32). Accordingly, those questions do not, by international law, fall solely within the domestic jurisdiction of a State.

The PCIJ ultimately concluded, without determining the merits of the dispute,  that “the dispute arises out of a matter which, by international law, is not solely within the domestic jurisdiction of France” (pp. 31-32).

International, Regional and Domestic Instruments and Provisions Cited

This case does not cite any legal instruments.

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Robert D Sloane, 'Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality' (2009) 50(1) Harvard International Law Journal 1

• The author acknowledges that at the time of the Tunis and Morocco case, the development of international law limited state nationality to the state’s competence. However, Sloane asserts that “it quickly became clear that many international lawyers thought otherwise: namely, that, customary limits exist, even if their precise content is difficult to define concretely”. The case implied that customary international law and general principles of international law, not only treaty obligations, limit the states’ internal competence to confer nationality (p. 7).

Laura van Waas, 'Fighting Statelessness and Discriminatory Nationality Laws in Europe' (2012) 14(3) European Journal of Migration and Law 243

• This article recognises that at the time of the Tunis and Morocco case, the rules governing the acquisition and loss of nationality fell entirely within the domestic jurisdiction of states. The author highlights that the case acknowledged this position might change depending on the further development of international law (p. 243). The author accordingly posits that international law has “moved a long way” since this case. At global and regional levels, international standards have been developed imposing significant restrictions on the freedom of states to regulate access to nationality in accordance with their own sovereign interests (p. 244).
• The author asserts two principles that lie at the heart of international law today:
  • states must guarantee that the right to nationality is enjoyed on equal footing by everyone consistent with the principle of non-discrimination; and
  • states have an obligation to prevent, avoid and reduce statelessness.

William Thomas Worster, ‘International Law and the Expulsion of Individuals With More Than One Nationality’ (2009) 14 UCLA Journal of International Law and Foreign Affairs 423

• The author points out that the Tunis and Morocco case stipulated that the extent to which international law governs a state’s nationality measures depends on the development of international law (p. 448). Traditionally, questions of nationality were primarily within a state’s discretion, until the state’s acts affected other states.
• The author observes that states are increasingly adopting treaties that govern nationality or the processes for managing nationality. However, the inclusion of nationality in a treaty’s terms does not necessarily transform nationality into a human right. Worster concludes that there is no prohibition in international law for states to have the right to denationalise their nationals (p. 449). The author however acknowledges there are limitations under international law on this right:
  • the norm against the creation of statelessness without good reason; and
  • the requirement that denationalisation not be arbitrary or discriminatory.

Jeffrey L Blackman, ‘State Successions and Statelessness: The Emerging Right to an Effective Nationality Under International Law’ (1998) 19 Michigan Journal of International Law 1141

• This article considers that limits on state discretion over nationality matters were inherent as early as the Tunis and Morocco case, leaving open the possibility that international law might evolve to restrict such discretion (p. 1153). In particular, the author observes that the case’s dictum has been widely cited in literature and subsequent judicial opinions in support of two broader propositions:
  • that state discretion over nationality issues is subject to international limitations; and
  • these limitations evolve along with the development of international law (p. 1154).
• Blackman further posits that, based on reasoning from the Tunis and Morocco case and the 1930 Hague Convention, it would be difficult to deny that imposing nationality on aliens in transit through national territory is unlawful. Additionally, such imposition would be subject to the non-recognition by other states and international tribunals, at least in the face of a state’s effort to base a claim of diplomatic protection on such nationality (p. 1159).

Stephen M Schwebel, 'The Roles of the Security Council and the International Court of Justice in the Application of International Humanitarian Law' (1995) 27(4) New York University Journal of International Law and Politics 731

• Schwebel opines that the Tunis and Morocco case is one of the PCIJ’s seminal contributions to contemporary international law of human rights, highlighting that the case provided that the right of a State to use its discretion is “nevertheless restricted by obligations which it may have undertaken towards other States” (p. 748).