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CHAPTER V.

NATIONALITY.—INTERCOURSE OF STATES.—RELATIONS BE

TWEEN THE NAVY AND DIPLOMATIC AND CONSULAR OFFI-
CERS.—INTERNATIONAL FUNCTIONS OF NAVAL OFFICERS.
-PROTECTION OF CITIZENS IN FOREIGN STATES.

Nationality the link between individuals and international law.-Oppenheim says, with respect to nationality as a link between international law and individuals, that“ it is through the medium of their nationality only that individuals can enjoy benefits from the existence of the law of nations. This is a fact which has its consequences over the whole area of international law. Such individuals as do not possess any nationality enjoy no protection whatever, and if they are aggrieved by a state they have no way of redress, there being no state which would be competent to take their case in hand. As far as the law of nations is concerned, apart from morality, there is no restriction whatever upon a state to abstain from maltreating to any extent such stateless individuals. On the other hand, if individuals who possess nationality are wronged abroad, it is their home state only and exclusively which has a right to ask for redress, and these individuals themselves have no such right. It is for this reason that the question of nationality is a very important one for the law of nations, and that individuals enjoy benefits from this law not as human beings but as subjects of such states as are members of the family of nations. And so distinct is the position of subjects of these members from the position of stateless individuals, and from subjects of states outside the family of nations, that

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it has been correctly characterized as a kind of international indigenousness.

Right to protect citizens abroad.—The existence of nationality in an individual, which is generally termed citizenship, carries with it a right to protection from the home country, both as to the individual when abroad or as to his property abroad when he is at home.

Duty to receive expelled citizens. There is a duty also on the part of the home state of receiving within its territory such of its citizens as are not permitted to remain abroad. These are generally paupers, idiots, habitual criminals, diseased persons and others likely to be detrimental to the state into which they have come. They may, however, be persons also expelled for political reasons.

Other rights of states with respect to citizens abroad. In addition to the right and duty just mentioned with regard to citizens abroad the state has the right to tax its people abroad for its own purposes; it can require them to come home for military or other purposes, or can punish them for offenses committed abroad. On the other hand, a state cannot forcibly detain foreign citizens called home by their own state, or to prevent them from paying taxes to the state of their allegiance.

Nationality either natural or acquired.—Sir Alexander Cockburn, in speaking of the sources of nationality, says that “nationality or, in other words, the status of an individual as a subject or citizen in relations to a particular state, is either natural or acquired; natural, when it results from birth; acquired, when an individual is accepted as a subject or citizen by a state to which he did not originally belong. Nationality by birth or origin depends according to the law of some nations on the place of birth; according to that of

Oppenheim, Vol. 1, p. 345.

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others on the nationality of the parents without reference to the place of birth. In many countries both elements exist, one or the other predominating." *

Citizenship regulated by municipal law. It is the function of municipal or state law to define what constitutes a citizen or subject of a country. Citizenship denotes the possession within a particular state of full civil and political rights, subject to special disqualifications such as minority or sex.' The Fourteenth Amendment to the Constitution of the United States defines citizenship of the United States as follows: “ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

There are five methods, generally recognized by all states, for acquiring nationality through citizenship. They are:

1. By birth.
2. By naturalization.
3. By revolution.
4. By, cession.
5. By subjugation.

The vast majority of those enjoying the citizenship of the various states acquire it by right of birth. Such citizenship by birth exists by reason of birth in a particular place or by reason of the nationality of the parents. There are certain exceptions to the general rule which may be noted, so far as the United States is concerned. The first is as to children of aliens who are born in the United States, but who return to the country of their parents. These parents were not, properly speaking, subject to the jurisdiction of the United States. This would also apply to the children of diplomatic officials serving temporarily in the United States. There has been

Cockburn on Nationality, 1869. 3 Moore's Digest, Vol. 3, p. 273.

varying opinions and decisions as to the status of women of American birth and citizenship after marrying foreigners. On the whole it may be considered settled that if the laws of her husband's country makes her a citizen or subject of that country the United States concedes that status as settling the question of her citizenship. A change of citizenship may be made after birth by naturalization. In the case of a birth, however, in the United States of a child of parents who renounce their American citizenship and place themselves under the jurisdiction of their lately adopted country, the child has the right to elect his American citizenship.'

A person born on board of an American vessel of parents who are citizens of the United States, but who are at the time in a foreign country, having touched there in the course of a voyage, is to be regarded as a citizen of the United States. Section 1993 of the Revised Statutes of the United States provides further upon this subject that “all children heretofore or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the right of citizenship shall not descend to children whose fathers have never resided in the United States.” Notwithstanding this law children of alien parents born in the United States are ruled to be of American citizenship if they remain there.

As å rule illegitimate children take the nationality of their mother, but if they are born abroad of an American mother this does not apply.

It is conceded that an American-born woman who has lost her nationality by marrying an alien can revert to her original nationality by return to the United States.

Naturalization. The second mode of acquiring citizenship is by naturalization. This in the United States is considered

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a judicial act which must be performed by the courts. The courts maintained by the ministers and consuls of the United States in countries where they exercise, by law and treaty, judicial powers, are not authorized to naturalize aliens.

Naturalization requirements of United States. Under the Constitution of the United States the power to establish a uniform rule of naturalization is vested in Congress. By the laws enacted by Congress a person must declare on oath before a court two years at least before his admission, and after he has reached the age of eighteen years his intent to become a citizen.

After five years of residence and within seven years of the first declaration he may obtain citizenship by taking an oath of allegiance to the United States and of renunciation of his former country. The result of naturalization is to make the

person

naturalized a citizen of the state with full claim to protection, and with political powers almost the same as a person native born. In the United States he lacks eligibility to the office of President of the United States.

As to Mongolians and American Indians.—White persons and persons of African descent are the only persons capable of naturalization in the United States. Chinese are expressly forbidden naturalization by law. Japanese, Burmese and Indians of American birth are not capable of naturalization.

Naturalization in countries with and without compulsory military service.--Between the United States and Great Britain the matter of double nationality is regulated by the convention of May 13, 1870, by which naturalization in either state is to be valid in all respects and for all purposes immediately upon its completion, but if the emigrant shall renew his residence in his old country he may be readmitted to his old nationality on his application and on such conditions as

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• Sts. at Large, 590, 1 Gould vs. Tucker 513; 2 idem 202.

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