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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

(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]

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.

§ 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.

§ 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.

§ 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]

§ 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.

§ 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]

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.)

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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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]

§ 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 Municipal 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 destitute of nationality is a blemish in Municipal 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 passed, 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 Municipal Law such corresponding rules regarding acquisition and loss of nationality as make the very occurrence of double and absent nationality impossible.[641]