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THE BASIS OF PROTECTION TO CITIZENS RESIDING
I shall ask you to listen for a few minutes to some remarks regarding the protection which a nation should extend over its citizens in foreign countries. I do not select this topic because I have anything new to say about it, or because there is any real controversy among international lawyers concerning the principles involved or concerning the fundamental rules to be applied, but because there is a considerable degree of public misunderstanding about the subject, and situations are continually arising in which a failure of the public in one country or another to justly appreciate the extent and nature of international obligation leads to resentment and unfriendly feeling that ought to be avoided.
The subject has grown in importance very rapidly during recent years. The world policy of commercial exclusiveness prevailing in the early part of the last century has practically disappeared. The political relations on the one hand and the commercial and industrial relations on the other hand of different parts of the earth to each other are quite separate and distinct. It is not uncommon to find that a nation has commercial colonies which bear no political relation to her whatever, and political colonies which are industrially allied most closely to other countries.
The increase in facilities for transportation and communication — steamships and railroads and telegraphs and telephones — has set in motion vast armies of travelers who are making their way into the most remote corners of foreign countries to a degree never before known.
The general diffusion of intelligence among the people of all civilized, and to a considerable degree of semi-civilized, countries, has carried to the great mass of the people — the working people of the
1 Opening address by Hon. Elihu Root, president of the American Society of International Law, at the fourth annual meeting of the Society, in Washington, April 28, 1910.
world — a knowledge of the affairs and the conditions of life in other lands; and this, with the cheapness and ease of transportation, has led to enormous emigration and shifting of population. One of the salient features of modern political development has been the severance of the people from the soil of their native countries. The peasant, who was formerly a fixture in his native valley, unable to conceive of himself as a part of any life beyond the circle of the surrounding hills, now moves freely to and fro, not only from one community to another, but from one country to another. Labor is becoming fluid, and, like money, flows towards the best market without paying much attention to political lines. The doctrine of inalienable allegiance so inconsistent with the natural course of development of the new world, and so long and so stoutly contested by the United States, has been almost universally abandoned. It is manifest that the few nations which have not given their assent to the right of their citizens to change their citizenship and allegiance as they change their residence will not long maintain their position. This change has led to a new class of citizens traveling or residing abroad; that is, the naturalized citizen, who, returning to his country of origin or going to still other countries, claims the protection not of his native but of his adopted government. Among the great throngs of emigrants to other countries may be distinguished two somewhat different classes – one composed of those who hare transferred their substantial interests to the new country and are building up homes for themselves; the other class composed of those who still continue their principal interests in the country from which they have come and under their new conditions are engaged in accumulating means for the better support of the families and friends they have left behind them, or for their own future support after the return to which they look forward.
The great accumulation of capital in the money centers of the world, far in excess of the opportunities for home investment, has led to a great increase of international investment extending over the entire surface of the earth, and these investments have naturally been followed by citizens from the investing countries prosecuting and caring for the enterprises in the other countries where
their investments are made. For example, it was estimated three or four years ago that within the preceding ten years over seven hundred millions of capital had gone from the United States alone into Mexico for investment; and this capital had been followed by more than forty thousand citizens of the United States who had become resident in Mexico. This same process has been going on all over the world.
All these forms of peaceful interpenetration among the nations of the earth naturally contribute their instances of citizens justly or unjustly dissatisfied with the treatment they receive in foreign countries and calling upon their own governments for protection. In two directions the process has gone so far as to justify and receive limitation. On one hand, there has come to be a recognition of the essential difference between emigration en masse, by means of which the people of one country may virtually take possession of considerable portions of the territory of another country to the practical exclusion of its own citizens, and the ordinary travel and residence upon individual initiative to which the usual conventions relating to reciprocal rights of travel and residence relate. The occasion for considering this difference naturally depends very much upon the capacity of the emigrants for assimilation with the people of the country to which they go. The wider the differences in race, customs, traditions, and standards of living, the less is the probability of assimilation and the greater the certainty that emigration of large bodies of people will assume the character of peaceful invasion and occupation of territory. After many years of discussion China has come to recognize the existence of such a distinction in respect of Chinese emigration to North America. Japan has recognized it from the first, and there has never been any question between the Governments of Japan and the United States upon that subject.
On the other hand, the United States has itself put a limit upon the practice, which had already reached the point of serious abuse, of permitting the natives of other countries to become naturalized here for the purpose of returning to their homes or seeking a residence in third countries with the benefit of American protection,
Several years ago it was estimated that there were in Turkey seren or eight thousand natives of Turkey who had in one way and another secured naturalization in the United States and had gone home to live with the advantage over their friends and neighbors of being able to call upon the American embassy for assistance whenever they were not satisfied with the treatment they received from their own government. At the time of the troubles in Morocco, which were disposed of at the Algeciras Conference, an examination of the list of American citizens in Morocco showed that one-half of the list consisted of natives of Morocco who had been naturalized in the United States and had left this country and gone back to Morocco within three months after obtaining their naturalization papers. We have now adopted a rule, which has been embodied in a number of treaties and in the Act of Congress of March 2, 1907, for the purpose of checking this abuse. The new rule is, that when a naturalized citizen leaves this country instead of residing in it, two years' residence in the country of his origin or five years' residence in any other country creates a presumption of renunciation of the citizenship which he has acquired here, and unless that presumption is rebutted by showing some special and temporary reason for the change of residence, the obligation of protection by the United States is deemed to be ended.
I have dwelt upon the magnitude and diversity of the causes which are resulting in the presence in each civilized country of great numbers of citizens of other countries, because conditions so universal plainly must be dealt with pursuant to fixed, definite, certain, and universally recognized rules of international action.
The simplest form of protection is that exercised by strong countries whose citizens are found in parts of the earth under the jurisdiction of governments whose control is inadequate for the preservation of order. Under such circumstances in times of special disturbance it is an international custom for the countries having the power to intervene directly for the protection of their own citizens, as in the case of the Boxer rebellion in China, when substantially all the Western powers were concerned in the march to Pekin and the forcible capture of that city for the protection of the legations.