Position of Individuals destitute of Nationality. Redress Absent ality. selves, 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 in so far objects of the Law of Nations 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' 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.2 § 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 1 See above, § 291. 2 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 above, p. 347, note 3. apply for naturalisation or to leave the country; it can even naturalise them by Municipal Law against their will, as no other State will and 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. Again, The case of Martin Koszta ought here to be mentioned, details of which are reported by Wharton, II. § 175, and Hall, § 72. Koszta was a Hungarian subject who took part in the revolutionary movement of 1848, escaped to the United States, and intended to become naturalised there. After remaining nearly two years in the United States, but before he was really naturalised, he visited Turkey, and while at Smyrna he was seized by Austrian officials and taken on board an Austrian man of-war with the intention to bring 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 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.1 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.2 the custody of the French Consul at Smyrna until the matter was settled between the United States and Austrian Governments. Fi. nally, 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. 1 The United States have, through the so-called "Bancroft Treaties," attempted to overcome conflicts arising out of 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.) In the same and the following year treaties of the same kind were concluded with many other States. A treaty of another kind, but with the same object, was concluded be tween the United States and Great Britain on May 13, 1870. (See Martens, N.R.G., XX. p. 524.) 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. 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), VI RECEPTION OF FOREIGNERS AND RIGHT OF ASYLUM Vattel, II. 100-Hall, $$ 63-64-Westlake, I. pp. 208-210-Lawrence, §§ 117-118-Phillimore, I. §§ 365-370-Twiss, I. § 238Halleck, I. pp. 452-454-Taylor, § 186-Walker, § 19-Wharton, II. § 206-Wheaton, § 115, and Dana's Note-Bluntschli, §§ 381-398Hartmann, §§ 84-85, 89-Heffter, §§ 61-63-Stoerk in Holtzendorff, II. pp. 637-650-Gareis, § 57-Liszt, § 25-Ullmann, §§ 102-103Bonfils, Nos. 441-446-Despagnet, Nos. 340-362-Rivier, I. pp. 307-309-Calvo, II. §§ 701-706, VI. 119-Martens, II. § 46. tion to ers. § 314. Many writers maintain that every member No Obligaof the Family of Nations is bound by International admit Law to admit all foreigners into its territory for all Foreignlawful purposes, although they agree that every State could exclude certain classes of foreigners. This opinion is generally held by those who assert that there is a fundamental right of intercourse between States. It will be remembered 2 that no such fundamental right exists, but that intercourse is a characteristic of the position of the States within the Family of Nations and therefore a presupposition of the international personality of every State. A State, therefore, cannot exclude foreigners altogether from its territory without violating the spirit of the Law of Nations and endangering its very membership of the Family of Nations. But no State actually does exclude foreigners altogether. The question is only whether an international legal duty can be said to exist for every State to admit all unobjectionable foreigners to all parts of its territory. And it is this duty which must be denied as far as the customary Law of Nations is concerned. It must be emphasised that, apart from general conventional arrangements, See, for instance, Bluntschli, § 381, and Liszt, § 25. * See above, § 141. VOL. I. BB as, for instance, those concerning navigation on international rivers, and apart from special treaties of commerce, friendship, and the like, no State can claim the right for its subjects to enter into and reside on the territory of a foreign State. The reception of foreigners is a matter of discretion, and every State is by reason of its territorial supremacy competent to exclude foreigners from the whole or any part of its territory. And it is only an inference from this competence that the United States and other States1 have made special laws according to which paupers and criminals, as well as diseased and other objectionable aliens, are prevented from entering their territory. Every State is and must remain master in its own house, and such mastership is of especial importance with regard to the admittance of foreigners. Of course, if a State excluded all subjects of one State only, this would constitute an unfriendly act, against which retorsion would be admissible; but it cannot be denied that a State is competent to do this, although in practice such wholesale exclusion will never happen. Hundreds of treaties of commerce and friendship exist between the members of the Family of Nations according to which they are obliged to receive each other's unobjectionable subjects, and thus practically the matter is settled, although in strict law every State is competent to exclude foreigners from its territory.2 Reception § 315. It is obvious that, if a State need not receive foreigners at all, it can, on the other hand, of Foreigners under conditions. 1 The Aliens Bill brought in by the British Government in 1904 has not been passed by Parliament, but a similar bill will again be introduced in 1905. 2 The Institute of International Law has studied the matter, and adopted at its meeting at Geneva in 1892 (see Annuaire, XII. p. 219) a body of forty-one articles concerning the admission and expulsion of foreigners; articles 6-13 deal with the admittance of foreigners. |