ship and similar matters are largely controlled by his national law.1 This personal law of the individual, which the principle of territoriality has recognized, is directly connected with the period of the early Middle Ages when the personal law or personal statute controlled the entire legal status of the individual.

Before jurisdiction became national within a politically and geographically defined territory, this personal law was usually the law of the domicil, an inheritance from the Roman law. The legislation following the French Revolution (for example, Article 3 of the French Code Napoléon) first gave expression to the principle of nationality as controlling the status and capacity of persons. This principle was followed in the Austrian Allgemeines bürgerliches Gesetzbuch of 1811 (Article 4), though the capacity of foreigners was still left to the old rule of domicil. The principle of nationality as governing status, capacity and the family relations received its greatest impetus, however, from the Italian school, of which Mancani was the principal apostle, and after adoption in the civil code of Italy, Spain, Germany and to some extent by Switzerland, it has been recognized by almost all the countries of Europe in the Hague Conventions on private international law, resulting from the conferences of 1893, 1894, 1900 and 1904. Certain federal states, like Switzerland, still lend emphasis to the principle of domicil as the criterion of status and capacity, as do the United States and Great Britain. Where political nationality is distributed throughout the world among various systems of private law, as for example, British nationality, which exists in Quebec, Scotland and South Africa, this personal law must refer to domicil within the political nationality.

The state in turn undertakes toward its citizens certain duties which

1 Bluntschli, op. cit., § 379; Rolin, A., Principes de droit international privé, Paris, 1897, I, 114.

2 Bar, op. cit., 112; see also Savigny, op. cit., 88 et seq.

The conventions established rules concerning the adjustment of conflicts of law in matters of marriage, divorce and guardianship. With but slight qualifications, the law of the nationality was adopted as the law governing these legal relations. See Meili, F., und Mamelok, A., Das internationale Privat-und Zivilprozessrecht auf Grund der Haager Konventionen, Zürich, 1911. See also Westlake, J., A treatise on private international law, 4th ed., London, 1905, 27 et seq.

are an outgrowth of the relation itself, but which in their exercise are the result of international agreement and concession. The most important of these duties of the state is the obligation to receive its own citizens expelled by other states, or repatriation. This obligation von Bar considers the true kernel of nationality.2 Banishment has now been practically abandoned as a penalty against citizens. No state can legally require other states to receive its banished citizen, and if they were to refuse him admission, it would be obliged to accept him again as a resident member of the national community.

The second duty which is imposed upon the state by virtue of the relationship is the protection of the citizen abroad. The security of international intercourse depends upon the fact, recognized by the practice of nations, that states assume toward their citizens the obligation, and possess as against other states the right, of assuring their citizen abroad the exercise and enjoyment of certain legal rights.

PROTECTION ABROAD

§14. Diplomatic Protection a Limitation on Territorial Jurisdiction. The bond of citizenship implies that the state watches over its citizens abroad, and reserves the right to interpose actively in their behalf in an appropriate case. Too severe an assertion of territorial control over them by the state of residence will be met by the emergence of the protective right of the national state, and the potential force of this phenomenon has largely shaped the rights assumed by states over resident aliens.

The principles of territorial jurisdiction and personal sovereignty are mutually corrective forces. An excessive application of the territorial principle is limited by the custom which grants foreign states certain rights over their citizens abroad, sometimes merely the application of foreign law by the local courts, sometimes, in acknowledgment of the principle of protection, a certain amount of jurisdiction. In the Orient and in semi-civilized states this often involves a com

1 Martitz, F. von., Das Recht der Staatsangehörigkeit im internationalen Verkehr in Hirth's Annalen des deutschen Reichs, 1875, p. 794; Stoerk in 2 R. G. D. I. P. (1895), 288; also in Holtzendorff's Handbuch, II, § 119; Gareis, op. cit., 163. 'Bar, op. cit., 139.

plete surrender of local jurisdiction in favor of the foreign state, and in states conforming more closely to the highest type of civilized government, it consists in partial derogations from territorial jurisdiction in special classes of cases, e. g., consular jurisdiction in certain commercial disputes and over national merchant vessels.1 Fundamentally, these concessions are made to assure individuals the most appropriate regulative agency for their legal relations.

2

It is the obligation of every state to regard the citizens of other states as the subjects of legal rights, and to furnish the machinery for enforcing the rights granted by municipal law.

When the citizen leaves the national territory he enters the domain of international law. By residence abroad he does not merely carry with him certain rights and duties imposed by the municipal law of his own state, but he enters into a new sphere of mutual rights and obligations between himself as a resident alien and the state of his residence. By receiving the alien upon its territory, the state of residence admits the sovereignty of his national country and recognizes the bond which attaches him to it. A failure on his part to comply with his newly created obligations to the state of residence is met by repression and punishment in the local courts. On the other hand, a failure of the territorial state to fulfill its obligations toward the alien is met by repression on the part of his home state. The extent of these obligations toward the resident alien has been measured by international law and practice, though the very nature of repressive action has permitted the element of physical power and political expediency at times to obscure and even obliterate purely legal rights.

Legally, the measure of the obligation of the state of residence to resident aliens is the measure of the national state's right. The extent of the failure to fulfill the obligation, ordinarily known as the international responsibility of the state, is in exact proportion to the amount of diplomatic pressure or protection which the national state is authorized to interpose.

States are legal persons and the direct subjects of international law. They are admitted into the international community on condition that 1 Hall, W. E., Foreign powers and jurisdiction, Oxford, 1894, pp. 4-6.

2 Heilborn, op. cit., 75 et seq.

they possess certain essential characteristics, such as a defined territory, independence, etc. In addition, they must manifest their power to exercise jurisdiction effectively and, as will be seen presently, to assure foreigners within it of a minimum of rights. This minimum standard below which a state cannot fall without incurring responsibility to one or more of the other members of the international community has been shaped and established by the advance of civilization and the necessities of modern international intercourse on the part of individuals. The home state of the resident alien is concerned not with the legal legitimacy of a foreign government,' but with its actual ability to fulfill the obligations which this international standard imposes upon it. The resident alien does not derive his rights directly from international law, but from the municipal law of the state of residence, though international law imposes upon that state certain obligations which under the sanction of responsibility to the other states of the international community, it is compelled to fulfill. When the local state fails to fulfill these duties, "when it is incapable of ruling, or rules with patent injustice," the right of diplomatic protection inures to those states whose citizens have been injured by the governmental delinquency.2

International law recognizes on the part of each member of the family of nations certain norms or attributes of government for the purpose of assuring the rights of the individual. The independence of states, with the right of administering law and justice uncontrolled by other states, is one of the norms by which this end is attained. In countries which habitually maintain effective government, the protective function of the national government of a resident alien is usually limited to calling the attention of the local government to the performance of its international duty. The right, however, is always reserved, and in the case of less stable and well-ordered governments frequently exercised, of taking more effective measures to secure to

1 The assassination of the King of Servia by certain nobles and of President Madero by rebels was of no special concern for international law, in view of the immediate establishment of a government having the power to fulfill the international obligations of the state.

* Hall, W. E., Foreign powers and jurisdiction, 4; Bluntschli, op. cit., § 380.

their citizens abroad a measure of fair treatment conforming to the international standard of justice. While the right of every state to exercise sovereignty and jurisdiction within its territory over all persons within it is recognized, foreign nations retain over their citizens abroad a protective surveillance to see that their rights as individuals and as nationals receive the just measure of recognition established by the principles of municipal and international law.1 Non-interposition is the rule only so long as states are careful to observe their international duties. Diplomatic protection, therefore, is a complementary or reserved right invoked only when the state of residence fails to conform with this international standard.

States normally avoid the two extremes (1) of leaving their citizens entirely unprotected and (2) of improperly impairing the administration of justice in a foreign country by immediately interposing in their behalf before local remedies have been exhausted. When interposition is immediate, it is justified by the allegation that the local administration of justice was not up to the international standard of civilized justice which requires forbearance of diplomatic action.

The rules of international law in this matter fall with particular severity upon those countries where law and administration frequently deviate from and fall below this standard; for the fact that their own citizens can be compelled to accept such maladministration is not a criterion for the measure of treatment which the alien can demand, and international practice seems to have denied these countries the right to avail themselves of the usual defense that the alien is given the benefit of the same laws, the same administration, and the same protection as the national.

The broad principle of international law that when an individual establishes himself in a foreign state he renders himself subject to the territorial jurisdiction of that state and must normally accept the institutions which the inhabitants of the state find suitable to themselves, must be viewed in its relation to the complementary principle that the individual in question still owes allegiance to his own state

1

1 Address before the American Society of International Law, April 29, 1910, Proceedings, 46; Heilborn, op. cit., 64 et seq.; Pillet, A., Recherches sur les droits fondamentaux des états, Paris, 1899, p. 19 et seq., particularly at p. 28.