Imágenes de páginas

state of residence, that he may properly be regarded as possessing by virtue of his nationality. The alien thus has rights as an individual and as a member of a definite political group. While, therefore, we must look far beyond his nationality to find a guide to the complete source of the alien's rights, it is nevertheless true that in giving effect to and providing a sanction for his rights, his nationality is the most important factor, for it is by virtue of the bond of nationality that he is entitled to invoke the aid of a specific protector and that a definite member of the international society of states has the right to interpose in his behalf to secure a guarantee for his rights and reparation for their violation. The security of international relations rests largely upon this fact.

$ 9. Position of the Individual in International Law.

It seems unnecessary to review at any length the learned discussions in which particularly the German and Italian writers on international law have engaged in an endeavor to define the exact position of the individual in international law. Using the term “subjects” of law to connote those upon whom the law confers rights and imposes duties, the weight of authority considers states alone as the subjects of international law,' and individuals as objects of international law.? This conclusion is based on the theory that international law cannot ascribe rights and duties to individuals directly, and that individuals

1 Heilborn, P., System, 58 et seq.; Stoerk in Holtzendorff's Handbuch, II, $$ 113, 114; Jellinek, System der subjektiven öff. Rechte, 2nd ed., 1905, p. 324; Triepel, H., Völkerrecht u. Landesrecht, Leipzig, 1899, 20–21; Lomonaco, 218; Diena, G., Diritto int. pubblico, Napoli, 1908, p. 242, and in 16 R. G. D. I. P. (1909) 57; Chrétien, Principes de droit int. pub., Paris, 1893, p. 76. See the excellent discussion in Oppenheim, 2nd ed., I, 98 13, 63 and 288 et seq. See also Benjamin, Fritz, Haftung des Staates aus dem Verschulden seiner Organe nach Völkerrecht, Breslau, 1909, pp. 14–17; and Marinoni, Mario, La responsabilità degli stati, etc., Rome, 1914, pp. 8–10, note.

? Heilborn, System, 64 et seq., and in Handbuch des Völkerrechts, Stuttgart, 1912, 1, 1, $ 17; Triepel, op. cit., 21; Diena in 16 R. G. D. I. P. (1909) 58; Oppenheim, I, $ 290.

Oppenheim, I, $ 289 and authorities just cited. Rehm in 1 Zeitschr. f. Völkerrecht, 53-55, presents a good argument to show that in matters of contraband carriage, blockade and piracy, international law actually imposes duties of abstention upon individuals, the breach of which is punishable by internationally recognized methods.




cannot invoke for their protection a rule of international law which has not been incorporated in municipal law, i. e., to use Jellinek's term, individuals have no subjective rights based upon international law. Some writers like Heffter, Fiore, Martens, Kaufmann and Bonfils ? consider individuals as subjects of international law. 2

This conclusion is based upon different reasons, and finds some support in the following circumstances: (1) by the Washington conventions of 1907, an individual was given the right to sue one of the Central American states before the Court of Justice established at Cartago, and two such suits appear to have been brought; (2) by the unratified Prize Court convention concluded at The Hague in 1907, individuals were given the right to bring a suit in their own names; and (3) by the law of the United States and Great Britain, international law has been accepted as part of the common law, and in the United States, treaties are declared to be the supreme law of the land, the rights arising out of which an alien may invoke in municipal courts. Heilborn regards the first two circumstances as exceptional phenomena proving the general rule, and the third he explains by showing


[ocr errors]


1 Jellinek, G., System, 2nd ed., 327; Anzilotti in 13 R. G. D. I. P. (1906) 5, 17; Heilborn, System, 72; Triepel, op. cit., 328 et seq.; Oppenheim, I, § 289. Diena differs from this view and is supported by decisions of the courts of Great Britain and the U. S., to the effect that when municipal law is silent, the individual may invoke a well-established rule of international law for his protection. Taylor, § 103; The Paquete Habana, 175 U. S. 677.

? Heffter, Das europäische Völkerrecht, 8th ed. by Geffcken, Berlin, 1888, § 14; Fiore, P., Nouveau dr. int. pub. (Antoine's ed.) I, § 680; Martens, F., Traité, Paris, 1883, 88 53, 84, 85; Kaufmann, W., Die Rechtskraft des internationalen Rechtes, Stuttgart, 1899, 3 et seq.; Bonfils-Fauchille, Manuel de dr. int. pub., 6th ed., § 157. See also A. H. Snow in 8 A. J. I. L. (1914) 201 et seq. Kaufmann is the only one of these who is altogether clear. Heffter and Martens are quite equivocal. Bluntschli, Dr. int. cod., 5th ed. 88 22, 23 is difficult to reconcile. See Benjamin, op. cit. 14–16.

* Taylor, $ 103; Oppenheim, I, 98 21, 24, and authorities cited. See a recent work by Piciotto, 1915. See also the Paquete Habana, 175 U. S. 677. In the civil law countries generally, the judge is bound by the municipal law of his country, and the alien cannot invoke a rule of international law as the basis of a legal right. See Esteban Gil Borgas in 3 Rev. de derecho y legislación, Caracas (April, 1914), 145, and Diena in 16 R. G. D. I. P. (1909) 57 et seq. who believes judges have the power to apply international law.

* In Handbuch des Völkerrechts, Stuttgart, 1912, I, part 1, p. 96. See also Oppenheim, I, $21.


that the courts must by decision embody the international rule in municipal law before individuals may derive rights from it and that in invoking treaty rights the individual in the case posited invokes municipal and not international law.

It would seem that the theory of the majority is correct, namely, that the rules of international law are binding upon and create rights and liabilities between states only. These rules have in view the conduct of states toward aliens, by imposing upon states manifold duties whose object is to assure the protection and well-being of aliens. 1 Individuals indeed are the beneficiaries of the rights and duties which international law ascribes to states. The state fulfills these duties by means of its municipal law, and under this law aliens have subjective rights which they may invoke in municipal courts. But when there has been an alleged violation of international law with respect to a particular alien, the state cannot plead its own municipal law or a decision of its own courts construing a treaty obligation as a defense against an international reclamation of another state. Nor does the alleged violation of international law give rise to any right of the individual to invoke the responsibility of the state, unless the rule violated is also incorporated in the state's municipal law. The remedy, then, is confined to that permitted by municipal law. As the rules of international law and treaties constitute obligations between states, their violation creates international responsibility, not to the individual, but to the state of which he is a member. This state, in demanding redress, does not represent the individual who has sustained the injury, and does not give effect to his right, but to its own right, the right, namely, that its citizen may be treated by other states in the manner prescribed by international law. This legal relation between states, however, may and usually does have as a consequence the indemnification of the individual injured, although he has no legally enforceable right either to the protection of his own state or to the payment of the indemnity when received.

1 Heilborn, System, 64.

2 Anzilotti in 13 R. G. D. I. P. (1906), 6, 17; Frisch, Hans v. Das Fremdenrecht. Berlin, 1910, p. 131.

3 Heilborn, System, 70; Anzilotti, in 13 R. G. D. I. P., 6; Oppenheim, I,





§ 10. Characteristics of Bond of Nationality.

Four principles dominate the bond of nationality. The first embodies the idea of legal attachment, expressed in former times by membership in a clan or tribe, advancing later into the broader bond of membership in a city, state and nation. This quality Stoerk calls the civitas or the quality of belonging to some nation, as every vessel at sea is recognized as belonging to some organized community. The second principle is the exclusiveness of nationality. In theory and in aim public law ascribes only one nationality to an individual, though differences in the municipal law of different states have occasionally endowed an individual with plural nationality. The third is the principle of mutability, which permits the individual at the present day to change his nationality; and the fourth, the principle of continuity, by which the nationality of origin is retained until a new one is acquired. Emigration without naturalization in another state does not break the bond of nationality. Such emigration may by municipal law under certain conditions involve a loss of diplomatic protection, but this is only one of the rights incidental to citizenship.

$11. Dual and No Nationality.

The same individual, as has been observed, is sometimes claimed as a citizen by two or more states, due to differences in their municipal legislation as to when citizenship begins and ends. The concurrent claims of the jus soli and the jus sanguinis, the absolute or conditional refusal of some states, e. g., Russia and Turkey, to permit expatriation, followed nevertheless by the naturalization of their emigrating subjects by other states, or any new naturalization before the bond of allegiance to the original state has been severed, create cases of dual nationality which have given rise to serious conflicts. Again, the imposition by some states of a deprivation of nationality as a penalty for certain acts, or a predication of loss of nationality upon mere residence abroad for a certain period, brings about the equally anomalous situation of an individual without nationality or the heimatlos. By international agreements and municipal law, states

? Stoerk in 2 R. G. D. I. P. (1895), 277 et seq. ? Weiss in 13 Annuaire of the Institute of Int. Law, 174–176, has mentioned eight cases in which conflicts in municipal law have most frequently caused cases of dual

have within the past forty years endeavored to remove these sources of conflict, or at least, by mutual concessions, to agree on the circumstances under which protection shall be accorded and permitted.

$ 12. Citizens in International and in Constitutional Law.

In the international sense the citizens of a state are those individuals over whom the state is admitted by the international community to have primary authority or personal sovereignty. There is, however, a difference between the citizens of international law and those of constitutional law. Leaving aside the broad constitutional principle that the state may impose its citizenship on all those within its sovereignty, there are classes of persons who, while not citizens in constitutional law, are nevertheless subjects of the state or nationals in international law. So, for example, the negroes before the Civil War, the American Indians, and natives of the unincorporated insular possessions, are citizens of the United States in international law, though not constitutionally citizens. Nor are constitutional disabilities attached to age or sex of any international concern.

Again, a person may be a citizen in constitutional law without being a citizen in international law. This case occurs in federal nations like the United States, for example. A person may be a citizen of a State without being a citizen of the United States. Confusion arises because, whereas the status of citizenship is a national grant, the enjoyment of many of its rights is within the jurisdiction of the States, and from the possession of these rights the term “State citizenship” has arisen. To be a citizen of the United States, birth or naturalization in the United States is necessary; to be a citizen of a State, usually only residence is required. Nor is the right to vote a criterion. This right is not granted or guaranteed by the federal Constitution, but is conferred and regulated by the States. This

nationality. See also Cockburn, op. cit., 108, 186, 187. Many publicists consider municipal penalties of loss of nationality as wrong in principle, as they increase the number of persons without nationality.

1 Wolfman, Nathan, Status of a foreigner who has declared his intention of becoming a citizen of the United States, in 41 American Law Rev. (1907), 499; Coudert, Frederic R., Jr., Our new peoples: citizens, subjects, nationals or aliens, 3 Columbia Law Rev. (1903), 13–32. See also Cogordan, op. cit., 8 2.

[ocr errors]
« AnteriorContinuar »