§ 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.

§ 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]

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....

§ 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.

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.

§ 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]

§ 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.

§ 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]

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]