International Law. A Treatise Volume I Part 48

-- 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 Const.i.tution 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 Munic.i.p.al 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 ant.i.thesis 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-Fodere, 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 Munic.i.p.al 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 dest.i.tute 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 Munic.i.p.al Laws of several absolutely different States. Such cases as are the consequence of the Munic.i.p.al 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 Munic.i.p.al 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 Munic.i.p.al Law, he does not thereby, according to German Munic.i.p.al 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 dest.i.tute 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 dest.i.tute 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 dest.i.tute 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 dest.i.tute of nationality.

[Sidenote: Position of Individuals dest.i.tute 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 dest.i.tute 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 Munic.i.p.al 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.]

-- 313. Double as well as absent nationality of individuals has from time to time created many difficulties for the States concerned. As regards the remedy for such difficulties, it is comparatively easy to meet those created by absent nationality. If the number of stateless individuals increases much within a certain State, the latter can require them to apply for naturalisation or to leave the country; it can even naturalise them by Munic.i.p.al Law against their will, as no other State will, or has a right to, interfere, and as, further, the very fact of the existence of individuals dest.i.tute of nationality is a blemish in Munic.i.p.al as well as in International Law. Much more difficult is it, however, to find, within the limits of the present rules of the Law of Nations, means of redress against conflicts arising from double nationality. Very grave disputes indeed have occasionally occurred between States on account of individuals who were claimed as subjects by both sides. Thus, in 1812, a time when England still kept to her old rule that no natural-born English subject could lose his nationality, the United States went to war with England because the latter impressed Englishmen naturalised in America from on board American merchantmen, claiming the right to do so, as according to her law these men were still English citizens. Thus, further, Prussia frequently had during the sixties of the last century disputes with the United States on account of Prussian individuals who, without having rendered military service at home, had emigrated to America to become there naturalised and had afterwards returned to Prussia.[639] Again, during the time of the revolutionary movements in Ireland in the last century before the Naturalisation Act of 1870 was pa.s.sed, disputes arose between Great Britain and the United States on account of such Irishmen as took part in these revolutionary movements after having become naturalised in the United States.[640] It would seem that the only way in which all the difficulties arising from double and absent nationality could really be done away with is for all the Powers to agree upon an international convention, according to which they undertake the obligation to enact by their Munic.i.p.al Law such corresponding rules regarding acquisition and loss of nationality as make the very occurrence of double and absent nationality impossible.[641]

[Footnote 639: The case of Martin Koszta ought here to be mentioned, details of which are reported by Wharton, II. -- 175; Moore, III. ---- 490-491, and Martens, "Causes Celebre," V. pp. 583-599. Koszta was a Hungarian subject who took part in the revolutionary movement of 1848, escaped to the United States, and in July, 1852, made a declaration under oath, before a proper tribunal, of his intention to become naturalised there. After remaining nearly two years in the United States, but before he was really naturalised, he visited Turkey, and obtained a _tezkereh_, a kind of letter of safe-conduct, from the American Charge d'Affaires at Constantinople. Later on, while at Smyrna, he was seized by Austrian officials and taken on board an Austrian man-of-war with the intention of bringing him to Austria, to be there punished for his part in the revolution of 1848. The American Consul demanded his release, but Austria maintained that she had a right to arrest Koszta according to treaties between her and Turkey. Thereupon the American man-of-war _Saint Louis_ threatened to attack the Austrian man-of-war in case she would not give up her prisoner, and an arrangement was made that Koszta should be delivered into the custody of the French Consul at Smyrna until the matter was settled between the United States and Austrian Governments. Finally, Austria consented to Koszta's being brought back to America. Although Koszta was not yet naturalised, the United States claimed a right of protection over him, since he had taken his domicile on her territory with the intention to become there naturalised in due time, and had thereby in a sense acquired the national character of an American.]

[Footnote 640: The United States have, through the so-called "Bancroft Treaties," attempted to overcome conflicts arising from double nationality. The first of these treaties was concluded in 1868 with the North German Confederation, the precursor of the present German Empire, and signed on behalf of the United States by her Minister in Berlin, George Bancroft. (See Wharton, II. ---- 149 and 179, and Moore, III. ---- 391-400.) In the same and the following years treaties of the same kind were concluded with many other States, the last with Portugal in 1908. A treaty of another kind, but with the same object, was concluded between the United States and Great Britain on May 13, 1870. (See Martens, N.R.G. XX. p. 524, and Moore, III. -- 397.) All these treaties stipulate that naturalisation in one of the contracting States shall be recognised by the other, whether the naturalised individual has or has not previously been released from his original citizenship, provided he has resided for five years in such country. And they further stipulate that such naturalised individuals, in case they return after naturalisation into their former home State and take their residence there for some years, either _ipso facto_ become again subjects of their former home State and cease to be naturalised abroad (as the Bancroft Treaties), or can be reinstated in their former citizenship, and cease thereby to be naturalised abroad (as the treaty with Great Britain).]

[Footnote 641: The Inst.i.tute of International Law has studied the matter, and formulated at its meeting in Venice in 1896 six rules, which, if adopted on the part of the different States, would do away with many of the difficulties. (See Annuaire, XV. p. 270.)]

VI

RECEPTION OF ALIENS AND RIGHT OF ASYLUM

Vattel, II. -- 100--Hall, ---- 63-64--Westlake, I. pp.

208-210--Lawrence, ---- 97-98--Phillimore, I. ---- 365-370--Twiss, I.

-- 238--Halleck, I. pp. 452-454--Taylor, -- 186--Walker, -- 19--Wharton, II. -- 206--Wheaton, -- 115, and Dana's Note--Moore, IV. ---- 560-566--Bluntschli, ---- 381-398--Hartmann, ---- 84-85, 89--Heffter, ---- 61-63--Stoerk in Holtzendorff, II. pp.

637-650--Gareis, -- 57--Liszt, -- 25--Ullmann, ---- 113-115--Bonfils, Nos. 441-446--Despagnet, Nos. 339-343--Rivier, I. pp.

307-309--Nys, II. pp. 232-237--Calvo, II. ---- 701-706, VI. -- 119--Martens, II. -- 46--Overbeck, "Niederla.s.sungsfreiheit und Ausweisungsrecht" (1906); Henriques, "The Law of Aliens, &c."

(1906)--Sibley and Elias, "The Aliens Act, &c."