BOOK REVIEWS
NATIONALITY AND STATELESSNESS IN INTERNATIONAL
LAW
By P. WEISS, WITH A FORWARD BY H. LAUTERPACHT; THE LONDON
TITUTE OF WORLD AFFAIRS: STEVENS & SONS, LTD., LONDON, 1956
Pp. xxvii, 323.
IN-
Dr. Weis has written a most valuable study of one of those areas of public
international law where the interplay with municipal law is direct, con-
tinuous and of great practical consequence. His experience as a member of the
Office of the High Commissioner for Refugees as well as the earlier Inter-
national Refugee Organization has given him a feeling for the urgent char-
acter of nationality and statelessness questions in the wake of war and the
migration of uprooted peoples.
In organizing his study Dr. Weis had a number of objectives. It was
necessary to examine the concept of nationality as that concept has evolved
in the municipal and international doctrine on the subject as well as in state
practice. One might have thought that the concept itself is sufficiently under-
stood to prevent any real difficulty but Part I of Dr. Weis’s volume takes us
through a maze of refinements, sufficiently sophisticated to suggest that there
is no simple, single description of “nationality”. What does emerge from his
analysis, however, is that the term “nationality ….
. . . has developed from
and is based on municipal law and has assumed a specific meaning in inter-
national law owing to the fundamentally different structure of that legal
system from the system of municipal law” (p. 62).
In Part II Dr. Weis examines the relationship of municipal law to inter-
national law in matters of nationality and we have here, of course, the clas-
sical problem of reconciling the “supremacy” of municipal law in determining
who are citizens or subjects of a state and the parallel supremacy of inter-
national law in determining the limits of jurisdiction of states, including
limitations on authority over certain persons and their property stituated for
the time being in that state. If ever there was a good illusration of the suprem-
acy of international law, if supremacy is the right word, it i:. the extent to
which municipal law cannot impose its norm on the international community
whenever disputes arise between states involving even such a question as to
who is or is not subject to the jurisdiction or the protection of the disputing
states. The Tunis and Morocco Decrees case’ retains its vitality and validity
for all students not merely of the problem of nationality itself but on the
reciprocal impingement of municipal law and international law on each other.
The bulk of the study, however, is to be found in Part III dealing with
such matters as limitations on states to confer or withdraw nationality; the
effects of territorial transfers on nationality; conflicts rules arising out of
‘Permanent Court of International Justice 1923. P.C.I.J., Series B, No. 4; Hudson,
World Court Reports, 1, 143.
No. 2]
BOOK REVIEW
statelessness and plural nationality; proof of nationality before international
tribunals. All of this from the international aspect and employing source
materials from the available store of international adjudications, treaties,
and municipal cases and statutes.
Finally, Dr. Weis performs a valuable service in summarizing his entire
thesis in less than twenty pages, including an examination of the main
directions of nationality problems in the future, particularly those concerned
with the elimination of statelessness and the effects of the International Law
Commission recommendations in the area.
In assembling such comprehensive and useful materials Dr. Weis has had
the patience to prepare with great care, his tables of cases, treaties and
statutes as well as the bibliography and appendices, with the result that apart
from its substantive analysis, the volume is a most helpful research tool for
any one concerned with nationality questions, either the municipal or inter-
national law aspects.
For example the relevant municipal statutes are set out under the heading
of the country concerned and these, of course have been listed alphabetically.
The result is to give the student a quick view of the entire body of legisla-
tion on nationality enacted in each of the coutries referred to. In the case of
Canada the citations seem quite complete and similarly with respect to the
United Kingdom and the -United States of America.
Among the more fascinating questions
that are posed by nationality
disputes is the matter of determining nationality for purposes of giving a
state locus standi in a dispute with another state where some individual’s
claim has become the concern of the demanding state. Ever since the Lynch2
and Flutie cases 3 it has been clear that international tribunals are prepared
to reject the most positive assertion by the claiming state, of nationality for
one of its residents, and this law has now been brought to a climax, of course,
by the Nottebohm case. 4 One has only to reflect for a moment on the im-
plications of the Nottebohm case to realize that in nationality matters we have
certainly entered a stage of development in international law where inter-
national tribunals adjudicating such disputes will ignore the most vigorous
assertion of municipal jurisdiction even where there is evidence of complete
formal compliance by the state concerned when it granted nationality to an
individual whose protection the state now seeks to assert abroad.
Now if one relates this development to the other extreme in municipal law
exemplified by Joyce v. Director of Public Prosecutions5 there is a quite
extraordinary situation. For what we now have in Anglo-Canadian law is a
rule that provides the most drastic burdens of nationality and citizenship,
2British-Mexican Claims Commission, 1929. Decisions and Opinions of Commissioners,
(1931), 20.
3Ralston, Venezuelan Arbitrations of 1903, 38.
4[1952] International Court of Justice, 10.
5[1946] A.C. 347.
McGILL LAW JOURNAL
[Vol. 3
in the classic form of the duty of “allegiance” to the Crown, for anyone who
has sought the Crown’s protection even remotely through the mechanism of a
fraudulently obtained passport. We tend to forget that Joyce was hanged when
it was very likely he had been an American national; but he had obtained
a British passport by fraud, travelled to Germany and made broadcasts on
behalf of the Nazis. ,Now, by contrast, in the international forum, Nottebohm
became a citizen of Lichtenstein with all due formality and seemingly in
complete accordance with Lichtenstein nationality law. And yet the Inter-
national Court of Justice was able to hold that this nationality was not
“effective”, not founded upon a true association in terms of residence or
interests and that therefore, Lichtenstein could not claim that necessary link
with ,Nottebohm so as to protect his interests abroad and assert an inter-
governmental claim on his behalf.
Of course, it is possible to suggest that the Joyce case was an extreme
interpretation given under the pressures of a wartime climate and that the
concept of “allegiance” was extended here beyond that truly required for
the effectiVe policing of the security interests of the United Kingdom. Equally,
it is possible to argue that the International Court of Justice chose is own
special view of substance versus form in the relations of Nottebohm to
Lichtenstein because of Nottebohm’s close connection with Guatemala, the
defendant State. Form hanged Joyce; substance defeated Nottebohm; and
now the question is whether these two extremes can find some more doctrinal
approximation to each other so as to do less damage to the unity of concepts
in municipal and international law as well as to the interests of individual
human beings caught in the web of abstractions.
Dr. “Weis does not pretend to solve the great range of. difficulties that
modem life, war and politics has created for thousands of peoples whose
status has not fitted into the nice categories manufactured by lawyers, or
the regulations of states in determining who shall have sanctuary at home or
protection abroad. Undoubtedly the question of nationality will continue to be
of theoretical and practical interest not only because there are refugees in
large numbers still to be re-settled, but because the bond between the in-
dividual and international law is becoming far more widely woven than the
previous single strand in the concept of nationality. The United Nations
Charter, the European Convention of Human Rights and many bi-lateral
arrangements have given the individual a direct stake in the international
legal order with procedures that afford him in some cases almost a personal
remedy. As Dr. Weis’s book suggests we are not far from the day when the
easy distinction between “the subject” and “the object” of international law
will yield to a “merger” that both need and events will have imposed on
states and on doctrine.
MAXWELL COHEN*
*Professor of Law, McGill University.
No. 21
BOOK REVIEW
OBSCENITY AND THE LAW
BY NORMAN ST. JOHN-STEVAS. FIRST EDITION, LONDON; SECKER AND
WARBURG, 1956. Pp. xxii, 289. $3.65.
De Goncourt tells the story of M. Latour-Dumoulin –
a famous com-
missioner of police who wanted to prosecute a contributor to Le Paris for a
line of asterisks which he had deemed obscene.
Mr. St. John-Stevas in an orderly presentation of his subject matter, has
begun with the problem of definition:
“Apart from its subjective aspect, it must be remembered that a statement that a
certain book is obscene is more than a plain statement of fact. It conceals a deduc-
tion based on certain unstated premises, the code of manners prevalent in a com-
munity at any particular time. To understand the meaning fully one must be familiar
with the customs of the social system in question.
The attempt to understand ‘obscenity’ in the terms of a simple definition is fruit-
less and best abandoned, but when this has been said certain constant elements in
its meaning can be isolated. Obscenity has always been confined to matters related to
sex or the excremental functions. Although there is an ideological element in the
word and it is sometimes used to describe unconventional moral attitudes, the word
is normally related to the manner of presenting a theme or idea rather than to the
theme itself. A book is usually said to be obscene, not for the opinions which it ex-
presses, but for the way in which they are expressed. Further, ‘obscene’
is a
emotive word, conveying a feeling of outrage. Mere offensiveness is not enough to
constitute words or books obscene. If ‘immodest’ is taken as the positive, ‘indecent’
may be described as the comparative, and ‘obscene’ as the superlative.
A pornographic book can easily be distinguished from an obscene book. A por-
nographic book, although obscene, is one deliberately designed to stimulate sexc
feelings and to act as an aphrodisiac. An obscene book has no such immediate and
dominant purpose, although
like
Ulysses certainly contains obscene passages, but their insertion in the book is not
to stimulate sex impulses in the reader but to form part of a work of art.”‘
its effect. A work
incidentally
this may be
The author gives us a broad survey of his subject: he presents a historical
view of obscenity and the law, beginning with a brief discussion of Greece
and Rome, Anglo-Saxon literature, Mediaeval
times, printing, licensing,
the Ecclesiastical Courts, the Stuart Censorship, the Commonwealth and the
Restoration. There follows a more protracted discussion of the eighteenth
century during which obscene libel was recognized as a crime at common law
in the famous Curll case.
A chapter is devoted to the Victorian conscience. There are interesting
references to specific authors, and apt considerations of related phenomena
such as publishing methods, the libraries, “family literature”, and the difficulties
of writing against a background of censorship. The relevant social background
is also drawn in –
one important factor was the increase in the number of
women readers in the late eighteenth century.
With the stricter standards of taste we are led to more severe laws. (The
Customs Consolidation Act of 1853 contained the first express prohibition
1Obscenity and the Law, page 2.
McGILL LAW JOURNAL
[Vol. 3
intended to ban the importation of pornography. This was followed in 1857
by Lord Campbell’s Act, aimed at domestic sources of supply. In 1868 Sir
Alexander Cockburn by rendering his decision in the Hicklin2 case raised
up a great bulwark across this field of law. During the course of his jugment
he said:
The test of obscenity is whether the tendency of the matter charged as obscenity is
to deprave and corrupt those whose minds are open to immoral influences and into
whose hands a publication of this sort may fall.
This statement has ever since been accepted by the judges as being the
English law. It was reinforced in 1877 by the Bradlaugh3 case which em-
phasized that the particular publication was not justified by the appellant’s
innocent motives or object, and that he must be taken to have intended the
natural consequences of his act. Thus “tendency” is the essence of the com-
mon law offence.
“A further question which must be answered is to whom do the words ‘corrupt
and deprave’ apply? The answer may be normal adults, abnormal adults, normal
children, or abnormal children. The English law has always stressed the importance
of protecting the young. Thus the old form of indictment contained an averment
about the ‘morals of youth’, and Lord Campbell stated that he had the youth of the
nation in mind when he introduced his Obscene Publications Act in 1857. In the
Hicklin judgment the words occur ‘whose minds are open to such immoral influences
and into whose hands a publication of this sort may fall’. Chief Justice Cockburn
specifically mentioned youth in his judgment and the protection of the young seems
to have been uppermost in the minds of most judges and counsel who have taken
part in obscenity trials. In The Philanderer4 case, however, Mr. Justice Stable
rejected the youth criterion. ‘A mass of literature’, he said, ‘great literature, from
many angles is wholly unsuitable for reading by adolescents, but that does not mean
that the publisher is guilty of a criminal offence for making those works available to
the general public.” 5
In the 1953 case of The Philanderer, Mr. Justice Stable gave a common
sense Hiew of the contemporary meaning of the words ‘obscene’, and indicated
that in applying the law, contemporary and not Victorian standards were
to be applied. This decision seems to have presented a sensible attitude con-
cerning the four outstanding points relevant to obscenity:
1–Corrupt whom? The law does not “forbid all which might corrupt
like the criterion
the most corruptible”, but rather accepts something
of the Ulysses6 case, where it was stated:
“Whether a particular book would tend to excite such impulses and thoughts must
be tested by the Court’s opinion as to its effects on a person with average sex in-
stincts – what the French would call l’hommne moycn sensuel – who plays, in this
branch of legal inquiry, the same role as does the ‘reasonable man’ in the law of
torts and ‘the man learned in the art’ on questions of invention in patent law.”
(Woolsey’s jdt.).
2-Is the object of the author important? The author’s sincerity of purpose
is important in judging what is the essential nature of his book.
2[1868] L.R. 3 Q.B. 360.
3[1878] 3 Q.B.D. 509.
4[1954] 2 All E.R. 683.
50bscenlty and the Law, page 128.
6[1933] 5 F. Supp. 182.
No. 2]
BOOK REVIEW
3-Is it the publication as a whole which will be judged, or parts of it?
It is the essential or dominant nature of the publication, taken as a whole,
which is to be considered on a charge of obscenity.
4-What standard of obscenity is to be applied? A contemporary one:
not a Victorian standard.
This decision differed on all four points from the prior attitude of the
English courts. But since this decision, their attitude seems to have re-
gressed to its former state. For this reason, in November 1954 the Society of
Authors set up a committee presided over by Sir Alan Herbert to examine
the existing law of obscene libel and to recommend reforms. The Herbert
Committee presented a Bill which was introduced into the House of Com-
mons in March, 1955. It has not yet been passed. The Bill did not attempt
to define obscenity, but instructed juries and magistrates to take into ac-
count literary or artistic merit in all cases of obscene publication. In
general the Bill follows the Philanderer decision.
The failure of the English legal system to break away from the Hicklin
case naturally leads the author to a consideration of the United States ex-
perience. If we can speak of evolution in the law, the Ulysses decision of the
United States Court of Appeals, rendered August 7, 1934 by Augustus Hand,
Learned Hand concurring and Manton J. dissenting, was a mutation. Here
the Hicklin case was for all practical purposes discarded, and in its place
was set up the same attitude concerning the four outstanding points as was
almost twenty years later presented in the English decision of The Philand-
erer. Concerning the Hicklin case, Judge “Augustus Hand ruled: “The rigor-
ous doctrines laid down in that case are inconsistent with our own decision(s)
…
, and in our opinion do not represent the law.”
The Ulysses case suggests that there had been a sort of progression in the
law concerning obscenity, and that in England a similar progression has so
far been blocked by the bulwark of the Hicklin case and by the refusal of the
English courts to follow the innovations of the Philanderer case. Progression
seems similarly blocked by the fact that the proposed Bill to amend the law
relating to obscene publications has not been passed.
It may be well to note in addition to Mr. St. John-Stevas’ observations,
that in this development or “progression” of the Law, neither England nor
the “United States has reached the position of several continental countries
where if a work has artistic merit it cannot be subsumed under the law re-
garding obscenity. That is: a book may be obscene, but because it has
artistic (or scientific) merit it is not obscene, or, to put it another way, it
cannot be successfully prosecuted. This goes beyond the Ulysses decision,
for there it was held that though parts of the book were obscene, the book
as a whole was not, and therefore did not violate the law. If the book as a
whole were obscene, it would have been condemned by the courts, despite its
McGILL LAW JOURNAL
[Vol. 3
great artistic merit. One may wonder if the position of these continental
countries is not a desirable goal to attain in legal development.
Mr. St. John-Stevas devotes a chapter to the Irish censorship, which he
considers as an experiment.
The last chapter is a discussion of the law in relation to society, and we
meet that taunting question as to whether or not pornography corrupts. It
would appear that there is much evidence on either side, and our knowledge
of psychology and sociology is not sufficiently advanced for us to answer this
question, which the author of necessity leaves open. He merely presents
enough evidence so that any categorical reply will be immediately suspect.
“Undoubtedly, the general moral standards and social customs prevailing in a
community are frequently formed or changed by the influence of books. ‘I am
convinced’, wrote Bernard Shaw in his preface to Mrs. Warren’s Profession, ‘that
fine art is the subtlest, the most seductive, the most effective instrument of moral
propaganda in the world, excepting only the example of personal conduct’. In our
own time we have the example of Andr6 Gide, whose books changed the outlook
of a generation. The law, however, cannot be invoked to protect prevailing moral
standards, first because this assumes a finality which such standards do not possess,
since much of what passes for morality is merely convention, and secondly, be-
cause in a country such as England there is no common agreement on ultimate moral
attitudes.”7
The appendices contain material on the law relating to obscenity as
legislated in sixteen countries, plus information about the Roman Index.
Thus we are also provided with material to begin a comparative law study.
There is a helpful bibliography, though one might wish it were more com-
plete.
The author has dealt thoroughly with the problem of what is obscene,
but he does not go deeply into other aspects of the legal problems of obscenity.
For example, he does not discuss what constitutes distributing obscene matter
or possesion with the intent to distribute. :However, he has laid the founda-
tion for a more comprehensive study of the legal issues involved.
The Canadian law relating to obscenity was derived from the English
law, and the Hicklin case is constantly referred to by the Canadian courts,
though the recent decisions of Rex vs. Conway,” Rex vs. National News
Co.,9 and Rex vs. Stroll0 seems to dispose of it much as the later Philanderer
case in England did. Hence Mr. St. John-Stevas’ book will be of equal in-
terest to Canadian and English lawyers. And since the prose style is familiar
and the presentation is well ordered and clear, the book can in fact be read
with as much interest and enjoyment by the layman as by. the lawyer.
PETER E. GRAHAM*
7Obscenlty and the Law, page 196.
8(1944) 81 C.C.C. 189.
9(1953) 106 Can. C.C. 26.
10(1951) 100 Can. C.C. 171.
*B.C.L. (McGill), 1956.
