Chapter III: Individuals (1)

I

POSITION OF INDIVIDUALS IN INTERNATIONAL LAW

Lawrence, § 42--Taylor, § 171--Heffter, § 58--Stoerk in
Holtzendorff, II. pp. 585-592--Gareis, § 53--Liszt, §§ 5 and
11--Ullmann, § 107--Bonfils, Nos. 397-409--Despagnet, No.
328--Mérignhac, II. pp. 169-172--Pradier-Fodéré, I. Nos.
43-49--Fiore, II. Nos. 568-712--Martens, I. §§ 85-86--Jellinek,
"System der subjectiven öffentlichen Rechte" (1892), pp.
310-314--Heilborn, "System," pp. 58-138--Kaufmann, "Die
Rechtskraft des Internationalen Rechtes" (1899)--Buonvino,
"Diritto e personalità giuridica internazionale" (1910)--Rehm and
Adler in Z.V. II. (1908), pp. 53-55 and 614-618--Kohler in Z.V.
III. (1909), pp. 209-230--Diena in R.G. XVI. (1909), pp. 57-76.

[Sidenote: Importance of Individuals to the Law of Nations.]

§ 288. The importance of individuals to the Law of Nations is just as great as that of territory, for individuals are the personal basis of every State. Just as a State cannot exist without a territory, so it cannot exist without a multitude of individuals who are its subjects and who, as a body, form the people or the nation. The individuals belonging to a State can and do come in various ways in contact with foreign States in time of peace as well as of war. The Law of Nations is therefore compelled to provide certain rules regarding individuals.

[Sidenote: Individuals never Subjects of the Law of Nations.]

§ 289. Now, what is the position of individuals in International Law according to these rules? Since the Law of Nations is a law between States only and exclusively, States only and exclusively[597] are subjects of the Law of Nations. How is it, then, that, although individuals are not subjects of the Law of Nations, they have certain rights and duties in conformity with or according to International Law? Have not monarchs and other heads of States, diplomatic envoys, and even simple citizens certain rights according to the Law of Nations whilst on foreign territory? If we look more closely into these rights, it becomes quite obvious that they are not given to the favoured individual by the Law of Nations directly. For how could International Law, which is a law between States, give rights to individuals concerning their relations to a State? What the Law of Nations really does concerning individuals, is to impose the duty upon all the members of the Family of Nations to grant certain privileges to such foreign heads of States and diplomatic envoys, and certain rights to such foreign citizens as are on their territory. And, corresponding to this duty, every State has by the Law of Nations a right to demand that its head, its diplomatic envoys, and its simple citizens be granted certain rights by foreign States when on their territory. Foreign States granting these rights to foreign individuals do this by their Municipal Laws, and these rights are, therefore, not international rights, but rights derived from Municipal Laws. International Law is indeed the background of these rights in so far as the duty to grant them is imposed upon the single States by International Law. It is therefore quite correct to say that the individuals have these rights in conformity with or according to International Law, if it is only remembered that these rights would not exist had the single States not created them by their Municipal Law.

[Footnote 597: See above, §§ 13 and 63.]

And the same is valid as regards special rights of individuals in foreign countries according to special international treaties between two or more Powers. Although such treaties mostly speak of rights which individuals shall have as derived from the treaties themselves, this is nothing more than an inaccuracy of language. In fact, such treaties do not create these rights, but they impose the duty upon the contracting States of calling these rights into existence by their Municipal Laws.[598]

[Footnote 598: The whole matter is treated with great lucidity by Jellinek, "System der subjectiven öffentlichen Rechte" (1892), pp. 310-314, and Heilborn, "System," pp. 58-138.]

Again, in those rare cases in which States stipulate by international treaties certain favours for individuals other than their own subjects, these individuals do not acquire any international rights under these treaties. The latter impose the duty only upon the State whose subjects these individuals are of calling those favours into existence by its Municipal Law. Thus, for example, when articles 5, 25, 35, and 44 of the Treaty of Berlin, 1878, made it a condition of the recognition of Bulgaria, Montenegro, Servia, and Roumania, that these States should not impose any religious disability upon their subjects, the latter did not thereby acquire any international rights. Another instructive example[599] is furnished by article 5 of the Peace Treaty of Prague, 1866, between Prussia and Austria, which stipulated that the northern district of Schleswig should be ceded by Prussia to Denmark in case the inhabitants should by a plebiscite vote in favour of such cession. Austria, no doubt, intended to secure by this stipulation for the inhabitants of North Schleswig the opportunity of voting in favour of their union with Denmark. But these inhabitants did not thereby acquire any international right. Austria herself acquired only a right to insist upon Prussia granting to the inhabitants the opportunity of voting for the union with Denmark. Prussia, however, intentionally neglected her duty, Austria did not insist upon her right, and finally relinquished it by the Treaty of Vienna of 1878.[600]

[Footnote 599: See Heilborn, "System," p. 67.]

[Footnote 600: It ought to be mentioned that the opinion presented in the text concerning the impossibility for individuals to be subjects of International Law, which is now mostly upheld, is vigorously opposed by Kaufmann, "Die Rechtskraft des internationalen Rechtes" (1899), §§ 1-4, and a few others.]

Now it is maintained[601] that, although individuals cannot be subjects of International Law, they can nevertheless acquire rights and duties from International Law. But it is impossible to find a basis for the existence of such rights and duties. International rights and duties they cannot be, for international rights and duties can only exist between States. Likewise they cannot be municipal rights, for municipal rights and duties can only be created by Municipal Law. The opponents answer that such rights and duties nevertheless exist, and quote for example articles 4 and 5 of Convention XII. (concerning the establishment of an International Prize Court) of the second Hague Peace Conference, according to which individuals have a right to bring an appeal before the International Prize Court. But is this a real right? Is it not more correct to say that the home States of the individuals concerned have a right to demand that these individuals can bring the appeal before the Court? Wherever International Law creates an independent organisation, such as the International Prize Court at the Hague or the European Danube Commission and the like, certain powers and claims must be given to the Courts and Commissions and the individuals concerned, but these powers and claims, and the obligations deriving therefrom, are neither international nor municipal rights and duties: they are powers, claims, and obligations existing only within the organisations concerned. To call them rights and duties--as indeed the respective treaties frequently do--is a laxity of language which is quite tolerable as long as one remembers that they neither comprise any relations between States nor any claims and obligations within the province of Municipal Law.

[Footnote 601: See Diena in R.G. XVI. (1909), pp. 57-76; Rehm and Adler in Z.V. I. (1908), pp. 53 and 614; Liszt, § 5; Kohler in Z.V. II. (1909), pp. 209-230.]

[Sidenote: Individuals Objects of the Law of Nations.]

§ 290. But what is the real position of individuals in International Law, if they are not subjects thereof? The answer can only be that they are _objects_ of the Law of Nations. They appear as such from many different points of view. When, for instance, the Law of Nations recognises the personal supremacy of every State over its subjects at home and abroad, these individuals appear just as much objects of the Law of Nations as the territory of the States does in consequence of the recognised territorial supremacy of the States. When, secondly, the recognised territorial supremacy of every State comprises certain powers over foreign subjects within its boundaries without their home State's having a right to interfere, these individuals appear again as objects of the Law of Nations. And, thirdly, when according to the Law of Nations any State may seize and punish foreign pirates on the Open Sea, or when belligerents may seize and punish neutral blockade-runners and carriers of contraband on the Open Sea without their home State's having a right to interfere, individuals appear here too as objects of the Law of Nations.[602]

[Footnote 602: Westlake, Chapters, p. 2, maintains that in these cases individuals appear as _subjects_ of International Law; but I cannot understand upon what argument this assertion is based. The correct standpoint is taken up by Lorimer, II. p. 131, and Holland, "Jurisprudence," p. 341.]

[Sidenote: Nationality the Link between Individuals and the Law of Nations.]

§ 291. If, as stated, individuals are never subjects but always objects of the Law of Nations, then nationality is the link between this law and individuals. It is through the medium of their nationality only that individuals can enjoy benefits from the existence of the Law of Nations. This is a fact which has its consequences over the whole area of International Law.[603] Such individuals as do not possess any nationality enjoy no protection whatever, and if they are aggrieved by a State they have no way of redress, there being no State which would be competent to take their case in hand. As far as the Law of Nations is concerned, apart from morality, there is no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals.[604] On the other hand, if individuals who possess nationality are wronged abroad, it is their home State only and exclusively which has a right to ask for redress, and these individuals themselves have no such right. It is for this reason that the question of nationality is a very important one for the Law of Nations, and that individuals enjoy benefits from this law not as human beings but as subjects of such States as are members of the Family of Nations. And so distinct is the position as subjects of these members from the position of stateless individuals and from subjects of States outside the Family of Nations, that it has been correctly characterised as a kind of international "indigenousness," a _Völkerrechts-Indigenat_.[605] Just as municipal citizenship procures for an individual the enjoyment of the benefits of the Municipal Laws, so this international "indigenousness," which is a necessary inference from municipal citizenship, procures the enjoyment of the benefits of the Law of Nations.

[Footnote 603: See below, § 294.]

[Footnote 604: See below, § 312.]

[Footnote 605: See Stoerk in Holtzendorff, II. p. 588.]

[Sidenote: The Law of Nations and the Rights of Mankind.]

§ 292. Several writers[606] maintain that the Law of Nations guarantees to every individual at home and abroad the so-called rights of mankind, without regarding whether an individual be stateless or not, or whether he be a subject of a member-State of the Family of Nations or not. Such rights are said to comprise the right of existence, the right to protection of honour, life, health, liberty, and property, the right of practising any religion one likes, the right of emigration, and the like. But such rights do not in fact enjoy any guarantee whatever from the Law of Nations,[607] and they cannot enjoy such guarantee, since the Law of Nations is a law between States, and since individuals cannot be subjects of this law. But there are certain facts which cannot be denied at the background of this erroneous opinion. The Law of Nations is a product of Christian civilisation and represents a legal order which binds States, chiefly Christian, into a community. It is therefore no wonder that ethical ideas which are some of them the basis of, others a development from, Christian morals, have a tendency to require the help of International Law for their realisation. When the Powers stipulated at the Berlin Congress of 1878 that the Balkan States should be recognised only under the condition that they did not impose any religious disabilities on their subjects, they lent their arm to the realisation of such an idea. Again, when the Powers after the beginning of the nineteenth century agreed to several international arrangements in the interest of the abolition of the slave trade,[608] they fostered the realisation of another of these ideas. And the innumerable treaties between the different States as regards extradition of criminals, commerce, navigation, copyright, and the like, are inspired by the idea of affording ample protection to life, health, and property of individuals. Lastly, there is no doubt that, should a State venture to treat its own subjects or a part thereof with such cruelty as would stagger humanity, public opinion of the rest of the world would call upon the Powers to exercise intervention[609] for the purpose of compelling such State to establish a legal order of things within its boundaries sufficient to guarantee to its citizens an existence more adequate to the ideas of modern civilisation. However, a guarantee of the so-called rights of mankind cannot be found in all these and other facts. Nor do the actual conditions of life to which certain classes of subjects are forcibly submitted within certain States show that the Law of Nations really comprises such guarantee.[610]

[Footnote 606: Bluntschli, §§ 360-363 and 370; Martens, I. §§ 85 and 86; Fiore, I. Nos. 684-712, and Code, Nos. 614-669; Bonfils, No. 397, and others.]

[Footnote 607: The matter is treated with great lucidity by Heilborn, "System," pp. 83-138.]

[Footnote 608: It is incorrect to maintain that the Law of Nations has abolished slavery, but there is no doubt that the conventional Law of Nations has tried to abolish the slave trade. Three important general treaties have been concluded for that purpose during the nineteenth century, since the Vienna Congress--namely, (1) the Treaty of London, 1841, between Great Britain, Austria, France, Prussia, and Russia; (2) the General Act of the Congo Conference of Berlin, 1885, whose article 9 deals with the slave trade; (3) the General Act of the anti-slavery Conference of Brussels, 1890, which is signed by Great Britain, Austria-Hungary, Belgium, the Congo Free State, Denmark, France, (see, however, below, § 517), Germany, Holland, Italy, Luxemburg, Persia, Portugal, Russia, Spain, Sweden, Norway, the United States, Turkey, and Zanzibar. See Queneuil, "De la traite des noirs et de l'esclavage" (1907).]

[Footnote 609: See above, § 137.]

[Footnote 610: The reader may think of the sad position of the Jews within the Russian Empire. The treatment of the native Jews in Roumania, although the Powers have, according to the spirit of article 44 of the Treaty of Berlin of 1878, a right of intervention, shows even more clearly that the Law of Nations does not guarantee what are called rights of mankind. See below, § 312.]

II

NATIONALITY

Vattel, I. §§ 220-226--Hall, §§ 66 and 87--Westlake, I. pp. 213,
231-233--Halleck, I. p. 401--Taylor, §§ 172-178--Moore, III. §§
372-376--Bluntschli, §§ 364-380--Stoerk in Holtzendorff, II. pp.
630-650--Gareis, § 54--Liszt, § 11--Ullmann, § 108--Bonfils, Nos.
433-454--Despagnet, Nos. 329-333--Pradier-Fodéré, III. No.
1645--Rivier, I. p. 303--Nys, II. pp. 214-220, 229-237--Calvo, II.
§§ 539-540--Fiore, I. Nos. 644-658, 684-717, and Code, Nos.
638-641--Martens, I. §§ 85-87--Hall, "Foreign Powers and
Jurisdiction" (1894), § 14--Cogordan, "La nationalité au point de
vue des rapports internationaux" (2nd ed. 1890)--Gargas in Z.V. V.
(1911), pp. 278-316 and [...]

[Sidenote: Conception of Nationality.]

§ 293. Nationality of an individual is his quality of being a subject of a certain State and therefore its citizen. It is not for International but for Municipal Law to determine who is and who is not to be considered a subject. And therefore it matters not, as far as the Law of Nations is concerned, that Municipal Laws may distinguish between different kinds of subjects--for instance, those who enjoy full political rights and are on that account named citizens, and those who are less favoured and are on that account not named citizens. Nor does it matter that according to the Municipal Laws a person may be a subject of a part of a State, for instance of a colony, but not a subject of the mother-country, provided only such person appears as a subject of the mother-country as far as the latter's international relations are concerned. Thus, a person naturalised in a British Colony is for all international purposes a British subject, although he may not have the rights of a British subject within the United Kingdom itself.[611] For all international purposes, all distinctions made by Municipal Laws between subjects and citizens and between different kinds of subjects have neither theoretical nor practical value, and the terms "subject" and "citizen" are, therefore, synonymously made use of in the theory and practice of International Law.

[Footnote 611: See below, § 307, and Hall, "Foreign Powers and Jurisdiction," § 20, who quotes, however, a decision of the French Cour de Cassation according to which naturalisation in a British Colony does not constitute a real naturalisation. But this decision is based on the Code Civil of France and has nothing to do with the Law of Nations. See also Westlake, I. pp. 231-233.]

But it must be emphasised that nationality as citizenship of a certain State must not be confounded with nationality as membership of a certain nation in the sense of a race. Thus, all Englishmen, Scotchmen, and Irishmen are, despite their different nationality as regards their race, of British nationality as regards their citizenship. Thus, further, although all Polish individuals are of Polish nationality _qua_ race, they have been, since the partition of Poland at the end of the eighteenth century between Russia, Austria, and Prussia, either of Russian, Austrian, or German nationality _qua_ citizenship.

[Sidenote: Function of Nationality.]

§ 294. It will be remembered that nationality is the link between individuals and the benefits of the Law of Nations.[612] This function of nationality becomes apparent with regard to individuals abroad, or property abroad of individuals who themselves are within the territory of their home State. Through one particular right and one particular duty of every State towards all other States this function of nationality becomes most conspicuous. The right is that of protection over its citizens abroad which every State holds and occasionally vigorously exercises towards other States; it will be discussed in detail below, § 319. The duty, on the other hand, is that of receiving on its territory such citizens as are not allowed to remain[613] on the territory of other States. Since no State is obliged by the Law of Nations to allow foreigners to remain within its boundaries, it may, for many reasons, happen that certain individuals are expelled from all foreign countries. The home State of those expelled cannot refuse to receive them on the home territory, the expelling States having a claim on the home State that the latter do receive the expelled individuals.[614]

[Footnote 612: See above, § 291.]

[Footnote 613: See below, § 326.]

[Footnote 614: Beyond the right of protection and the duty to receive expelled citizens at home, the powers of a State over its citizens abroad in consequence of its personal supremacy illustrate the function of nationality. (See above, § 124.) Thus, the home State can tax citizens living abroad in the interest of home finance, can request them to come home for the purpose of rendering military service, can punish them for crimes committed abroad, can categorically request them to come home for good (so-called _jus avocandi_). And no State has a right forcibly to retain foreign citizens called home by their home State, or to prevent them from paying taxes to their home State, and the like.]

[Sidenote: So-called _Protégés_ and _de facto_ Subjects.]

§ 295. Although nationality alone is the regular means through which individuals can derive benefit from the Law of Nations, there are two exceptional cases in which individuals may come under the international protection of a State without these individuals being really its subjects. It happens, first, that a State undertakes by an international agreement the diplomatic protection of another State's citizens abroad, and in this case the protected foreign subjects are named "_protégés_" of the protecting States. Such agreements are either concluded for a permanency as in the case of a small State, Switzerland for instance, having no diplomatic envoy in a certain foreign country where many of its subjects reside, or in time of war only, a belligerent handing over the protection of its subjects in the enemy State to a neutral State.

It happens, secondly, that a State promises diplomatic protection within the boundaries of Turkey and other Oriental countries to certain natives. Such protected natives are likewise named _protégés_, but they are also called "_de facto_ subjects" of the protecting State. The position of these _protégés_ is quite anomalous, it is based on custom and treaties, and no special rules of the Law of Nations itself are in existence concerning such _de facto_ subjects. Every State which takes such _de facto_ subjects under its protection can act according to its discretion, and there is no doubt that as soon as these Oriental States have reached a level of civilisation equal to that of the Western members of the Family of Nations, the whole institution of the _de facto_ subjects will disappear.

Concerning the exercise of protection in Morocco, a treaty[615] was concluded at Madrid on July 3, 1880, signed by Morocco, Great Britain, Austria-Hungary, Belgium, France, Germany, Holland, Italy, Portugal, Spain, Sweden-Norway, and the United States of America, which sanctions the stipulations of the treaty of 1863 between France and Morocco concerning the same subject. According to this treaty the term "_protégé_" embraces[616] in relation to States of Capitulations only the following classes of persons:--(1) Persons being subjects of a country which is under the protectorate of the Power whose protection they claim; (2) individuals corresponding to the classes enumerated in the treaties with Morocco of 1863 and 1880 and in the Ottoman law of 1863; (3) persons, who under a special treaty have been recognised as _protégés_ like those enumerated by article 4 of the French Muscat Convention of 1844; and (4) those individuals who can establish that they had been considered and treated as _protégés_ by the Power in question before the year in which the creation of new _protégés_ was regulated and limited--that is to say, before the year 1863, these individuals not having lost the _status_ they had once legitimately acquired.

[Footnote 615: See Martens, N.R.G. 2nd Ser. VI. (1881), p. 624.]

[Footnote 616: See p. 56 of the official publication of the Award, given in 1905, of the Hague Court of Arbitration in the case of France _v._ Great Britain concerning the Muscat Dhows.

It is of interest to note that the Court considers it a fact that the Powers have no longer the right to create _protégés_ in unlimited numbers in any of the Oriental States, for the Award states on p. 56:--"Although the Powers have _expressis verbis_ resigned the exercise of the pretended right to create '_protégés_' in unlimited number only in relation to Turkey and Morocco, nevertheless the exercise of this pretended right has been abandoned also in relation to other Oriental States, analogy having always been recognised as a means to complete the very deficient written regulations of the capitulations as far as circumstances are analogous."]

[Sidenote: Nationality and Emigration.]

§ 296. As emigration comprises the voluntary removal of an individual from his home State with the intention of residing abroad, but not necessarily with the intention of renouncing his nationality, it is obvious that emigrants may well retain their nationality. Emigration is in fact entirely a matter of internal legislation of the different States. Every State can fix for itself the conditions under which emigrants lose or retain their nationality, as it can also prohibit emigration altogether, or can at any moment request those who have emigrated to return to their former home, provided the emigrants have retained their nationality of birth. And it must be specially emphasised that the Law of Nations does not and cannot grant a right of emigration to every individual, although it is frequently maintained that it is a "natural" right of every individual to emigrate from his own State.[617]

[Footnote 617: Attention ought to be drawn to the fact that, to ensure the protection of the interests of emigrants and immigrants from the moral, hygienic, and economic view, the Institute of International Law, at its meeting at Copenhagen in 1897, adopted a body of fourteen principles concerning emigration under the heading "Voeux relatifs à la matière de l'émigration"; see Annuaire, XVI. (1897), p. 276. See also Gargas in Z.V. V. (1911), pp. 278-316.]

III

MODES OF ACQUIRING AND LOSING NATIONALITY

Vattel, I. §§ 212-219--Hall, §§ 67-72--Westlake, I. pp.
213-220--Lawrence, §§ 94-95--Halleck, I. pp. 402-418--Moore, III.
§§ 372-473--Taylor, §§ 176-183--Walker, § 19--Bluntschli, §§
364-373--Hartmann, § 81--Heffter, § 59--Stoerk in Holtzendorff,
II. pp. 592-630--Gareis, § 55--Liszt, § 11--Ullmann, §§ 110 and
112--Bonfils, Nos. 417-432--Despagnet, Nos.
318-327--Pradier-Fodéré, III. Nos. 1646-1691--Rivier, I. pp.
303-306--Calvo, II. §§ 541-654, VI. §§ 92-117--Martens, II. §§
44-48--Fiore, Code, Nos. 660-669--Foote, "Private International
Jurisprudence" (3rd ed. 1904), pp. 1-52--Dicey, "Conflict of Laws"
(1896), pp. 173-204--Martitz, "Das Recht der Staatsangehörigkeit
im internationalen Verkehr" (1885)--Cogordan, "La nationalité, &c"
(2nd ed. 1890), pp. 21-116, 317-400--Lapradelle, "De la
nationalité d'origine" (1893)--Berney, "La nationalité à
l'Institut de Droit International" (1897)--Bisocchi, "Acquisto e
perdita della Nazionalità, &c." (1907)--Sieber, "Das
Staatsbürgerrecht in internationalem Verkehr," 2 vols.
(1907)--Lehr, "La nationalité dans les principaux états du globe"
(1909), and in R.I. 2nd Ser. X. (1908), pp. 285, 401, and 525.

In 1893 the British Government addressed a circular to its
representatives abroad requesting them to send in a report
concerning the laws relating to nationality and naturalisation in
force in the respective foreign countries. These reports have been
collected and presented to Parliament. They are printed in
Martens, N.R.G. 2nd Ser. XIX. pp. 515-760.

[Sidenote: Five Modes of Acquisition of Nationality.]

§ 297. Although it is for Municipal Law to determine who is and who is not a subject of a State, it is nevertheless of interest for the theory of the Law of Nations to ascertain how nationality can be acquired according to the Municipal Law of the different States. The reason of the thing presents five possible modes of acquiring nationality, and, although no State is obliged to recognise all five, nevertheless all States practically do recognise them. They are birth, naturalisation, redintegration, subjugation, and cession.

[Sidenote: Acquisition of Nationality by Birth.]

§ 298. The first and chief mode of acquiring nationality is by birth, for the acquisition of nationality by another mode is exceptional only, since the vast majority of mankind acquires nationality by birth and does not change it afterwards. But no uniform rules exist according to the Municipal Law of the different States concerning this matter. Some States, as Germany and Austria, have adopted the rule that descent alone is the decisive factor,[618] so that a child born of their subjects becomes _ipso facto_ by birth their subject likewise, be the child born at home or abroad. According to this rule, illegitimate children acquire the nationality of their mother. Other States, such as Argentina, have adopted the rule that the territory on which birth occurs is exclusively the decisive factor.[619] According to this rule every child born on the territory of such State, whether the parents be citizens or aliens, becomes a subject of such State, whereas a child born abroad is foreign, although the parents may be subjects. Again, other States, as Great Britain[620] and the United States, have adopted a mixed principle, since, according to their Municipal Law, not only children of their subjects born at home or abroad become their subjects, but also such children of alien parents as are born on their territory.

[Footnote 618: _Jus sanguinis._]

[Footnote 619: _Jus soli._]

[Footnote 620: See details concerning British law on this point in Hall, "Foreign Powers and Jurisdiction" (1894), § 14.]

[Sidenote: Acquisition of Nationality through Naturalisation.]

§ 299. The most important mode of acquiring nationality besides birth is that of naturalisation in the wider sense of the term. Through naturalisation an alien by birth acquires the nationality of the naturalising State. According to the Municipal Law of the different States naturalisation may take place through six different acts--namely, marriage, legitimation, option, acquisition of domicile, appointment as Government official, grant on application. Thus, according to the Municipal Law of most States, an alien female marrying a subject of such State becomes thereby _ipso facto_ naturalised. Thus, further, according to the Municipal Law of several States, an illegitimate child born of an alien mother, and therefore an alien himself, becomes _ipso facto_ naturalised through the father marrying the mother and thereby legitimating the child.[621] Thus, thirdly, according to the Municipal Law of some States, which declare children of foreign parents born on their territory to be aliens, such children, if, after having come of age, they make a declaration that they intend to be subjects of the country of their birth, become _ipso facto_ by such option naturalised. Again, fourthly, some States, such as Venezuela, let an alien become naturalised _ipso facto_ by his taking his domicile[622] on their territory. Some States, fifthly, let an alien become naturalised _ipso facto_ on appointment as a Government official. And, lastly, in all States naturalisation may be procured through a direct act on the part of the State granting nationality to an alien who has applied for it. This last kind of naturalisation is naturalisation in the narrower sense of the term; it is the most important for the Law of Nations, and, whenever one speaks of naturalisation pure and simple, such naturalisation through direct grant on application is meant; it will be discussed in detail below, §§ 303-307.

[Footnote 621: English law has not adopted this rule.]

[Footnote 622: It is doubtful (see Hall, § 64) whether the home State of such individuals naturalised against their will must submit to this _ipso facto_ naturalisation. See above, § 125, where the rule has been stated that in consideration of the personal supremacy of the home State over its citizens abroad no State can naturalise foreigners against their will.]

[Sidenote: Acquisition of Nationality through Redintegration.]

§ 300. The third mode of acquiring nationality is that by so-called redintegration or resumption. Such individuals as have been natural-born subjects of a State, but have lost their original nationality through naturalisation abroad or for some other cause, may recover their original nationality on their return home. One speaks in this case of redintegration or resumption in contradistinction to naturalisation, the favoured person being redintegrated and resumed into his original nationality. Thus, according to Section 10 of the Naturalisation Act,[623] 1870, a widow being a natural-born British subject, who has lost her British nationality through marriage with a foreigner, may at any time during her widowhood obtain a certificate of readmission to British nationality, provided she performs the same conditions and adduces the same evidence as is required in the case of an alien applying for naturalisation. And according to section 8 of the same Act, a British-born individual who has lost his British nationality through being naturalised abroad, may, if he returns home, obtain a certificate of readmission to British nationality, provided he performs the same conditions and adduces the same evidence as is required in the case of an alien applying for naturalisation.

[Footnote 623: 33 and 34 Vict. c. 14.]

[Sidenote: Acquisition of Nationality through Subjugation and Cession.]

§ 301. The fourth and fifth modes of acquiring nationality are by subjugation after conquest and by cession of territory, the inhabitants of the subjugated as well as of the ceded territory acquiring _ipso facto_ by the subjugation or cession the nationality of the State which acquires the territory. These modes of acquisition of nationality are modes settled by the customary Law of Nations; it will be remembered that details concerning this matter have been given above, §§ 219 and 240.

[Sidenote: Seven modes of losing Nationality.]

§ 302. Although it is left in the discretion of the different States to determine the grounds on which individuals lose their nationality, it is nevertheless of interest for the theory of the Law of Nations to take notice of these grounds. Seven modes of losing nationality must be stated to exist according to the reason of the thing, although all seven are by no means recognised by all the States. These modes are:--Release, deprivation, expiration, option, substitution, subjugation, and cession.

(1) Release. Some States, as Germany, give their citizens the right to ask to be released from their nationality. Such release, if granted, denationalises the released individual.

(2) Deprivation. According to the Municipal Law of some States, as, for instance, Bulgaria, Greece, Italy, Holland, Portugal, and Spain, the fact that a citizen enters into foreign civil or military service without permission of his Sovereign deprives him of his nationality.

(3) Expiration. Some States have legislated that citizenship expires in the cases of such of their subjects as have emigrated and stayed abroad beyond a certain length of time. Thus, a German ceases to be a German subject through the mere fact that he has emigrated and stayed abroad for ten years without having undertaken the necessary step for the purpose of retaining his nationality.

(4) Option. Some States, as Great Britain, which declare a child born of foreign parents on their territory to be their natural-born subject, although he becomes at the same time according to the Municipal Law of the home State of the parents a subject of such State, give the right to such child to make, after coming of age, a declaration that he desires to cease to be a citizen. Such declaration of alienage creates _ipso facto_ the loss of nationality.

(5) Substitution. Many States, as, for instance, Great Britain, have legislated that the nationality of their subjects extinguishes _ipso facto_ by their naturalisation abroad, be it through marriage, grant on application, or otherwise. Other States, however, as, for instance, Germany, do not object to their citizens acquiring another nationality besides that which they already possess.

(6) Subjugation and cession. It is a universally recognised customary rule of the Law of Nations that the inhabitants of subjugated as well as ceded territory lose their nationality and acquire that of the State which annexes the territory.[624]

[Footnote 624: See above, § 301. Concerning the option sometimes given to inhabitants of ceded territory to retain their former nationality, see above, § 219.]

IV

NATURALISATION IN ESPECIAL

Vattel, I. § 214--Hall, §§ 71-71*--Westlake, § I. pp.
225-230--Lawrence, §§ 95-96--Phillimore, I. §§ 325-332--Halleck,
I. pp. 403-410--Taylor, §§ 181-182--Walker, § 19--Wharton, II. §§
173-183--Moore, III. §§ 377-380--Wheaton, § 85--Bluntschli, §§
371-372--Ullmann, §§ 110-111--Pradier-Fodéré, III. Nos.
1656-1659--Calvo, II. §§ 581-646--Martens, II. §§
47-48--Stoicesco, "Étude sur la naturalisation"
(1875)--Folleville, "Traité de la naturalisation"
(1880)--Cogordan, "La nationalité, &c." (2nd ed. 1890), pp.
117-284, 307-316--Delécaille, "De la naturalisation"
(1893)--Henriques, "The Law of Aliens, &c." (1906), pp.
91-121--Piggott, "Nationality and Naturalisation, &c." 2 vols.
(new ed. 1907)--Hart, in the _Journal of the Society of
Comparative Legislation_, new series, vol. II. (1900), pp. 11-26.

[Sidenote: Conception and Importance of Naturalisation.]

§ 303. Naturalisation in the narrower sense of the term--in contradistinction to naturalisation _ipso facto_ through marriage, legitimation, option, domicile, and Government office (see above, § 299)--must be defined as reception of an alien into the citizenship of a State through a formal act on application of the favoured individual. International Law does not provide any such rules for such reception, but it recognises the natural competence of every State as a Sovereign to increase its population through naturalisation, although a State might by its Municipal Law be prevented from making use of this natural competence.[625] In spite, however, of the fact that naturalisation is a domestic affair of the different States, it is nevertheless of special importance to the theory and practice of the Law of Nations. This is the case because naturalisation is effected through a special grant of the naturalising State, and regularly involves either a change or a multiplication of nationality, facts which can be and have been the source of grave international conflicts. In the face of the fact that millions of citizens emigrate every year from their home countries with the intention of settling permanently in foreign countries, where the majority of them become sooner or later naturalised, the international importance of naturalisation cannot be denied.

[Footnote 625: But there is, as far as I know, no civilised State in existence which abstains altogether from naturalising foreigners.]

[Sidenote: Object of Naturalisation.]

§ 304. The object of naturalisation is always an alien. Some States will naturalise such aliens only as are stateless because they never have been citizens of another State or because they have renounced, or have been released from or deprived of, the citizenship of their home State. But other States, as Great Britain, naturalise also such aliens as are and remain subjects of their home State. Most States naturalise such person only as has taken his domicile in their country, has been residing there for some length of time, and intends permanently to remain in their country. And according to the Municipal Law of many States, naturalisation of a married individual includes that of his wife and children under age. But although every alien may be naturalised, no alien has, according to the Municipal Law of most States, a claim to become naturalised, naturalisation being a matter of discretion of the Government, which can refuse it without giving any reasons.

[Sidenote: Conditions of Naturalisation.]

§ 305. If granted, naturalisation makes an alien a citizen. But it is left to the discretion of the naturalising State to grant naturalisation under any conditions it likes. Thus, for example, Great Britain grants naturalisation on the sole condition that the naturalised alien shall not be deemed to be a British subject when within the limits of the foreign State of which he has been a subject previously to his naturalisation, unless at the time of naturalisation he has ceased to be a subject of that State. And it must be specially mentioned that naturalisation need not give an alien absolutely the same rights as are possessed by natural-born citizens. Thus according to article 2 of the Constitution of the United States of America a naturalised alien can never be elected President.[626]

[Footnote 626: A foreigner naturalised in Great Britain by Letters of Denization does not acquire the same rights as a natural-born British subject. See Hall, "Foreign Powers and Jurisdiction" (1894), § 22.]

[Sidenote: Effect of Naturalisation upon previous Citizenship.]

§ 306. Since the Law of Nations does not comprise any rules concerning naturalisation, the effect of naturalisation upon previous citizenship is exclusively a matter of the Municipal Law of the States concerned. Some States, as Great Britain,[627] have legislated that one of their subjects becoming naturalised abroad loses thereby his previous nationality; but other States, as Germany, have not done this. Further, some States, as Great Britain again, deny every effect to the naturalisation granted by them to an alien whilst he is staying on the territory of the State whose subject he was previously to his naturalisation, unless at the time of naturalisation he was no longer a subject of such State. But other States do not make this provision. Be that as it may, there can be no doubt that a person who is naturalised abroad and temporarily or permanently returns into the country of his origin, can be held responsible[628] for all acts done there at the time before his naturalisation abroad.

[Footnote 627: Formerly Great Britain upheld the rule _nemo potest exuere patriam_, but Section 6 of the Naturalisation Act, 1870, does away with that rule. Its antithesis is the rule _ne quis invitus civitate mutetur, neve in civitate maneat invitus_ (Cicero, "Pro Balbo," c. 13, § 31; see Rattigan, "Private International Law" (1895), p. 29, No. 21).]

[Footnote 628: Many instructive cases concerning this matter are reported by Wharton, II. §§ 180 and 181, and Moore, III. §§ 401-407. See also Hall, § 71, where details concerning the practice of many States are given with regard to their subjects naturalised abroad.]

[Sidenote: Naturalisation in Great Britain.]

§ 307. The present law of Great Britain[629] concerning Naturalisation is mainly contained in the Naturalisation Acts of 1870, 1874, and 1895.[630] Aliens may on their application become naturalised by a certificate of naturalisation in case they have resided in the United Kingdom or have been in the service of the British Crown for a term of not less than five years, and in case they have the intention to continue residing within the United Kingdom or serving under the Crown. But naturalisation may be refused without giving a reason therefor (section 7). British possessions may legislate on their own account concerning naturalisation (section 16), and aliens so naturalised are for all international purposes[631] British subjects. Where the Crown enters into a convention with a foreign State to the effect that the subjects of such State who have been naturalised in Great Britain may divest themselves of their status as British subjects, such naturalised British subjects can through a declaration of alienage shake off the acquired British nationality (section 3). Naturalisation of the husband includes that of his wife, and naturalisation of the father, or mother in case she is a widow, includes naturalisation of such children as have during infancy become resident in the United Kingdom at the time of their father's or mother's naturalisation (section 10). Neither the case of children who are not resident within the United Kingdom or not resident with their father in the service of the Crown abroad at the time of the naturalisation of their father or widowed mother, nor the case of children born abroad after the naturalisation of the father is mentioned in the Naturalisation Act. It is, therefore, to be taken for granted that such children are not[632] British subjects, except children born of a naturalised father abroad in the service of the Crown.[633]

[Footnote 629: As regards naturalisation in the United States of America, see Moore, III. §§ 381-389, and Dyne, "Naturalisation in the United States" (1907).]

[Footnote 630: 33 Vict. c. 14; 35 and 36 Vict. c. 39; 58 & 59 Vict. c. 43. See Foote, "Private International Jurisprudence," 3rd ed. (1904), pp. 1-51; Westlake, "Private International Law," 4th ed. (1905), §§ 284-287; Dicey, "Conflict of Laws," 2nd ed. (1908), pp. 172-191.]

[Footnote 631: See Hall, "Foreign Powers and Jurisdiction," §§ 20 and 21, especially concerning naturalisation in India.]

[Footnote 632: See Hall, "Foreign Powers and Jurisdiction," § 19.]

[Footnote 633: See Naturalisation Act, 1895 (58 & 59 Vict. c. 43).]

Not to be confounded with naturalisation proper is naturalisation through _denization_ by means of Letters Patent under the Great Seal. This way of making an alien a British subject is based on a very ancient practice[634] which has not yet become obsolete. Such denization requires no previous residence within the United Kingdom. "A person may be made a denizen without ever having set foot upon British soil. There have been, and from time to time there no doubt will be, persons of foreign nationality to whom it is wished to entrust functions which can only be legally exercised by British subjects. In such instances, the condition of five years' residence in the United Kingdom would generally be prohibitory. The difficulty can be avoided by the issue of Letters of Denization; and it is believed that on one or two occasions letters have in fact been issued with the view of enabling persons of foreign nationality to exercise British consular jurisdiction in the East." (Hall.)

[Footnote 634: See Hall, "Foreign Powers and Jurisdiction," § 22.]

V

DOUBLE AND ABSENT NATIONALITY

Hall, § 71--Westlake, I. pp. 221-225--Lawrence, § 96--Halleck, I.
pp. 410-413--Taylor, § 183--Wheaton, § 85 (Dana's note)--Moore,
III. §§ 426-430--Bluntschli, §§ 373-374--Hartmann, § 82--Heffter,
§ 59--Stoerk in Holtzendorff, II. pp. 650-655--Ullmann, §
110--Bonfils, No. 422--Pradier-Fodéré, III. Nos.
1660-1665--Rivier, I. pp. 304-306--Calvo, II. §§ 647-654--Martens,
II. § 46.

[Sidenote: Possibility of Double and Absent Nationality.]

§ 308. The Law of Nations having no rule concerning acquisition and loss of nationality beyond this, that nationality is lost and acquired through subjugation and cession, and, on the other hand, the Municipal Laws of the different States differing in many points concerning this matter, the necessary consequence is that an individual may own two different nationalities as easily as none at all. The points to be discussed here are therefore: how double nationality occurs, the position of individuals with double nationality, how absent nationality occurs, the position of individuals destitute of nationality, and, lastly, means of redress against difficulties arising from double and absent nationality.

It must, however, be specially mentioned that the Law of Nations is concerned with such cases only of double and absent nationality as are the consequences of conflicting Municipal Laws of several absolutely different States. Such cases as are the consequence of the Municipal Laws of a Federal State or of a State which, as Great Britain, allows outlying parts to legislate on their own account concerning naturalisation, fall outside the scope of the Law of Nations. Thus the fact that, according to the law of Germany, a German can be at the same time a subject of several member-States of the German Empire, or can be a subject of this Empire without being a subject of one of its member-States, does as little concern the Law of Nations as the fact that an individual can be a subject of a British Colonial State without at the same time being a subject of the United Kingdom. For internationally such individuals appear as subjects of such Federal State or the mother-country, whatever their position may be inside these States.

[Sidenote: How Double Nationality occurs.]

§ 309. An individual may own double nationality knowingly or unknowingly, and with or without intention. And double nationality may be produced by every mode of acquiring nationality. Even birth can vest a child with double nationality. Thus, every child born in Great Britain of German parents acquires at the same time British and German nationality, for such child is British according to British, and German according to German Municipal Law. Double nationality can likewise be the result of marriage. Thus, a Venezuelan woman marrying an Englishman acquires according to British law British nationality, but according to Venezuelan law she does not lose her Venezuelan nationality. Legitimation of illegitimate children can produce the same effect. Thus, an illegitimate child of a German born in England of an English mother is a British subject according to British and German law, but if after the birth of the child the father marries the mother and remains a resident in England, he thereby legitimates the child according to German law, and such child acquires thereby German nationality without losing his British nationality, although the mother does lose her British nationality.[635] Again, double nationality may be the result of option. Thus, a child born in France of German parents acquires German nationality, but if, after having come of age, he acquires French nationality by option through making the declaration necessary according to French Municipal Law, he does not thereby, according to German Municipal Law, lose his German nationality. It is not necessary to give examples of double nationality caused by taking domicile abroad, accepting foreign Government office, and redintegration, and it suffices merely to draw attention to the fact that naturalisation in the narrower sense of the term is frequently a cause of double nationality, since individuals may apply for and receive naturalisation in a State without thereby losing the nationality of their home State.

[Footnote 635: This is the consequence of Section 10, Nos. 1 and 3, of the Naturalisation Act, 1870.]

[Sidenote: Position of Individuals with Double Nationality.]

§ 310. Individuals owning double nationality bear in the language of diplomatists the name _sujets mixtes_. The position of such "mixed subjects" is awkward on account of the fact that two different States claim them as subjects, and therefore their allegiance. In case a serious dispute arises between these two States which leads to war, an irreconcilable conflict of duties is created for these unfortunate individuals. It is all very well to say that such conflict is a personal matter which concerns neither the Law of Nations nor the two States in dispute. As far as an individual has, through naturalisation, option, and the like, acquired his double nationality, one may say that he has placed himself in that awkward position by intentionally and knowingly acquiring a second without being released from his original nationality. But those who are natural-born _sujets mixtes_ in most cases do not know thereof before they have to face the conflict, and their difficult position is not their own fault.

Be that as it may, there is no doubt that each of the States claiming such an individual as subject is internationally competent to do this, although they cannot claim him against one another, since each of them correctly maintains that he is its subject.[636] But against third States each of them appears as his Sovereign, and it is therefore possible that each of them can exercise its right of protection over him within third States.

[Footnote 636: I cannot agree with the statement in its generality made by Westlake, I. p. 221:--"If, for instance, a man claimed as a national both by the United Kingdom and by another country should contract in the latter a marriage permitted by its laws to its subjects, an English Court would have to accept him as a married man." If this were correct, the marriage of a German who, without having given up his German citizenship, has become naturalised in Great Britain and has afterwards married his niece in Germany, would have to be recognised as legal by the English Courts. The correct solution seems to me to be that such marriage is legal in Germany, but not legal in England, because British law does not admit of marriage between uncle and niece. The case is different when a German who marries his niece in Germany, afterwards takes his domicile and becomes naturalised in England; in this case English Courts would have to recognise the marriage as legal because German law does not object to a marriage between uncle and niece, and because the marriage was concluded before the man took his domicile in England and became a British subject. See Foote, "Private International Jurisprudence," 3rd ed. (1904), p. 106, and the cases there cited.]

[Sidenote: How Absent Nationality occurs.]

§ 311. An individual may be destitute of nationality knowingly or unknowingly, intentionally or through no fault of his own. Even by birth a person may be stateless. Thus, an illegitimate child born in Germany of an English mother is actually destitute of nationality because according to German law he does not acquire German nationality, and according to British law he does not acquire British nationality. Thus, further, all children born in Germany of parents who are destitute of nationality are themselves, according to German law, stateless. But statelessness may take place after birth. All individuals who have lost their original nationality without having acquired another are in fact destitute of nationality.

[Sidenote: Position of Individuals destitute of Nationality.]

§ 312. That stateless individuals are objects of the Law of Nations in so far as they fall under the territorial supremacy of the State on whose territory they live there is no doubt whatever. But since they do not own a nationality, the link[637] by which they could derive benefits from International Law is missing, and thus they lack any protection whatever as far as this law is concerned. The position of such individuals destitute of nationality may be compared to vessels on the Open Sea not sailing under the flag of a State, which likewise do not enjoy any protection whatever. In practice, stateless individuals are in most States treated more or less as though they were subjects of foreign States, but as a point of international legality there is no restriction whatever upon a State's maltreating them to any extent.[638]

[Footnote 637: See above, § 291.]

[Footnote 638: The position of the Jews in Roumania furnishes a sad example. According to Municipal Law they are, with a few exceptions, considered as foreigners for the purpose of avoiding the consequences of article 44 of the Treaty of Berlin, 1878, according to which no religious disabilities may be imposed by Roumania upon her subjects. But as these Jews are not subjects of any other State, Roumania compels them to render military service, and actually treats them in every way according to discretion without any foreign State being able to exercise a right of protection over them. See Rey in R.G. X. (1903), pp. 460-526, and Bar in R.I. 2nd Ser. IX. (1907), pp. 711-716. See also above, § 293, p. 369, note 2.]

[Sidenote: Redress against Difficulties arising from Double and Absent Nationality.]