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RIGHTS AND DUTIES OF STATE AND CITIZEN ABROAD
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 pplying 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. 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 govered by such rules of national municipal law as the territorial state,
Van Dyne, F., Citizenship of the United States, Rochester, 1904, p. 111. Sargant, E. B., British citizenship, in “United Empire" (May, 1912), 366,
* 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, 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.
3 Wittmann, Ernő, 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.
* 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.
RIGHTS AND DUTIES OF STATE AND CITIZEN ABROAD
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.1 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.? 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.,
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.
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, 1, 114.
2 Bar, op. cit., 112; see also Savigny, op. cit., 88 et seq.
3 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.
DIPLOMATIC PROTECTION A LIMITATION ON JURISDICTION
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. 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.
§ 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.
2 Bar, op. cit., 139.