International Law. A Treatise Volume I Part 47

[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 Inst.i.tute of International Law, at its meeting at Copenhagen in 1897, adopted a body of fourteen principles concerning emigration under the heading "Voeux relatifs a la matiere de l'emigration"; 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-Fodere, 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--Mart.i.tz, "Das Recht der Staatsangehorigkeit im internationalen Verkehr" (1885)--Cogordan, "La nationalite, &c"

(2nd ed. 1890), pp. 21-116, 317-400--Lapradelle, "De la nationalite d'origine" (1893)--Berney, "La nationalite a l'Inst.i.tut de Droit International" (1897)--Bisocchi, "Acquisto e perdita della n.a.z.ionalita, &c." (1907)--Sieber, "Das Staatsburgerrecht in internationalem Verkehr," 2 vols.

(1907)--Lehr, "La nationalite dans les princ.i.p.aux etats 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 Munic.i.p.al 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 Munic.i.p.al 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 Munic.i.p.al 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 Munic.i.p.al 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 Munic.i.p.al 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 Munic.i.p.al Law of most States, an alien female marrying a subject of such State becomes thereby _ipso facto_ naturalised. Thus, further, according to the Munic.i.p.al 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 Munic.i.p.al 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, subst.i.tution, 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 Munic.i.p.al 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 citizens.h.i.+p 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 Munic.i.p.al 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) Subst.i.tution. 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-Fodere, III. Nos.

1656-1659--Calvo, II. ---- 581-646--Martens, II. ---- 47-48--Stoicesco, "etude sur la naturalisation"

(1875)--Folleville, "Traite de la naturalisation"

(1880)--Cogordan, "La nationalite, &c." (2nd ed. 1890), pp.

117-284, 307-316--Delecaille, "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 citizens.h.i.+p 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 Munic.i.p.al 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 citizens.h.i.+p 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 Munic.i.p.al 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 Munic.i.p.al 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.]