§ 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.1 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 1 Stoerk in 2 R. G. D. I. P. (1895), 277 et seq.

2 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.1 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., § 2.

right is in some states even granted to persons not citizens, either of the State or of the United states. In the British Empire, with its scattered dominions, the term "British citizenship" has received a peculiarly local meaning, not extended, for example, to the natives of India. In our international use of the term citizenship or nationality we are not concerned with variations in the municipal tests or degrees of citizenship, nor need we be detained by any supposed difference between the terms "subject" and "citizen," the former applying generally to nationals of a state whose government is a monarchy, the latter to those where there is no kingship. The term "nationals" is perhaps the most appropriate, inasmuch as it disregards differences in constitution and form of government.

13. Rights and Duties of State and Citizen Abroad.

As has been observed, the mere separation of the individual from his home soil leaves him still subject to the law of his own state in so far as this has been made applicable to him. This remains so until physically and legally he has become incorporated as a citizen of another state. The continuity of the bond is evidence of the continuation of the reciprocal relation between the state and the citizen. The most important of the rights and duties which exist between the state. and its citizen abroad may now be enumerated.

First, self-preservation gives the state the necessary right of calling upon its citizen for military duty, for which purpose the state may recall its absent citizen.3 The state of residence is not, however, obliged to facilitate his return to fulfill the obligations imposed by his national law, though it is bound not to prevent his performance of these duties. The machinery provided for retaining control of the citizen abroad and for assuring him the enjoyment of certain international rights is the consular and diplomatic service, which is governed by such rules of national municipal law as the territorial state,

1 Van Dyne, F., Citizenship of the United States, Rochester, 1904, p. 111.

* Sargant, E. B., British citizenship, in "United Empire" (May, 1912), 366, 373.

'Stoerk in Holtzendorff's Handbuch, II, 630 et seq.; Bluntschli, Droit international codifié (Lardy's) 5th ed., Paris, 1895, § 375; Martens, F., op. cit., 442; Bonfils, H., Manuel de droit int. public, 6th ed. (by Fauchille), § 433.

by comity and the force of the principle of the protective surveillance of the national state over its citizens, has permitted it to apply.

Again, the state may impose certain taxes upon the citizen abroad,1 as has been done by the Federal Income Tax Law of 1913, although international practice usually ascribes the collection of personal taxes to the state of residence.2 Questions of double taxation are still an important source of international difficulty.3

These requirements and injunctions of national law are binding between the state and its citizen, and impose duties upon him. The extent to which they are enforceable and their effect is measured by the application of the territorial principle, according to which, except for such concessions as are made by other states, national law loses its coercive force at the frontiers of the territorial dominions of the state. If effect is given by other states to these provisions of national law it is the result of concession in derogation of local territorial jurisdiction, which concessions by custom and comity have become a definite and important part of international law. Nevertheless, the failure by a citizen abroad to obey national law is not without its consequences in the home state. It may be met either immediately by a loss of national protection and sometimes denationalization, or else with penalties inflicted either on his property in the national state or upon rights which he may have retained there, or on his person when he returns. Similarly, many states punish their citizens, on return, for crimes committed abroad. In a general way, the exercise of this right of the state to punish its delinquent

1 Rivier, Principes, I, 271.

2 Stoerk in Holtzendorff's Handbuch, II, 631; Bluntschli, op. cit., § 376.

3 Wittmann, Ernö, Double imposts, in 24th Report of the International Law Association (at Portland), London, 1908, pp. 214-229; Bar, op. cit., 245 et seq.; Salvioli, G., Le doppie imposte in diritto internazionale, Napoli, 1914, 94 p.

4 Germany, by the law of July 22, 1913, art. 27, reserves the right to punish with denationalization the failure to heed the summons to return. Sec. 28 provides the same penalty for those who, having entered the service of a foreign state do not, on demand, resign their office. 8 A. J. I. L. (1914) 479. The Hungarian law of Dec. 20, 1879 (Art. 50, Annuaire de législation étrangère, 1880, p. 351) makes a similar provision. See also French civil code, Art. 17, § 4, as amended by law of June 26, 1889 and Art. 17, § 3. See also Chrétien, Principes de droit international public, Paris, 1893, p. 218.

citizen depends (1) upon the intrinsic importance of the offense,thus, some states, as, for example, Great Britain and the United States, limit to such punishment the important crimes, such as treason, counterfeiting the national coinage, etc.; (2) on its effect upon his own state and its citizens; and (3) on its punishability by national law and by the lex loci actus. If the penalty has already been paid in the place where the crime was committed, the home state will not usually enforce its own penalty, and this is always the case where the crime is against local law alone. As in most cases where the individual is thus subject to the laws of two states, it is by mutual agreement and concession of the respective states that the rights and obligations of the individual are controlled and regulated, the object being to permit him neither to escape obligations nor twice to be subject to them.

The control of the national state is again evidenced in the fact that by the legislation of many countries the acceptance of foreign titles. is conditioned upon the consent of the national sovereign.2 So, compliance with national law is occasionally necessary to the marriage of citizens abroad. National consent is sometimes a prerequisite to the marriage of military officers, as in Austria, Germany and France.3 Those countries which do not permit divorce, as, e. g., Italy and Brazil, decline to give legal effect to a divorce of their nationals in a state where such divorce is legal.4

There is a large field of private international law in which the individual's national law controls his legal relations abroad. Thus, his personal status and his capacity to enter into certain contracts, as, for example, marriage, his right to succession, questions of guardian

1 An exhaustive comparative study of the subject of extraterritorial crime, with extracts from the statutes of the more important countries and quotations from the writings of publicists, is to be found in John Bassett Moore's Report on extraterritorial crime and the Cutting case, Washington, 1887, 129 p. See also Chrétien, op. cit., 221.

2 Stoerk in Holtzendorff's Handbuch, II, 631; Chrétien, op. cit., 218; Law of Costa Rica, Dec. 20, 1886, Art. 4, Annuaire de legislation étrangère, 1887, p. 869.

Renton, A. W., and Phillimore, G. G., The comparative law of marriage and divorce, London, 1910, pp. 253–254.

Buzzati, G. C., Le droit international privé d'après les conventions de la Haye, French translation by Francis Rey, Paris, 1911; Lomonaco, op. cit., 166.