CHAP. XI The scope of internal independence dence" or "external sovereignty" of the state, and it connotes the supreme power possessed by the state to determine the nature of the relations which it will maintain with other states. Internal independence makes the state a free agent in dealing with its own citizens and its own territorial property; external independence makes the state a free agent in dealing with other states. The term "sovereignty," while in common use, is open to the objection that, because of the historical associations connected with it, it has been used at times by nations to assert a complete freedom from control, which is both inconsistent with the principle of law between nations and in reality contradicted on many points by the facts of international life.1 The general principle that a state has jurisdiction over all persons and property within its territorial borders creates a legal presumption that what the state does within its domains is justified in default of the most urgent claims of other states that their own right of self-protection is thereby impaired. Thus a state may organize its government in any manner which is most satisfactory to it; it may change from a monarchial system to a republican system and vice versa, as its own judgment may dictate; it may regulate the personal and property rights of its citizens as it believes to be best for the general welfare; it may concede liberal privileges to aliens in its midst, or it may restrict their privileges narrowly or even refuse them admission to the country altogether. At the same time, however, all these rights are subject to the condition, intangible and difficult of strict definition, that they may not be exercised in such a way as to menace the security or disturb the domestic peace of other states. In consequence, a state may not maintain military or naval forces in such evident excess of the requirements of self-defense as to suggest aggressive designs, nor may it persecute a section of its people to a degree which arouses the indignation of the people of another state,* nor 3 See above, p. 44. When, for example, in 1895, in relation to the Venezuela boundary controversy, Secretary Olney announced that "the United States is practically sovereign on this continent, and its fiat is law upon the subjects to which it confines its interposition," the statement was either incorrect or to be understood as not impairing the general rights of other states at international law. See above, p. 154. In addition there are the restrictions imposed upon certain states by conventions providing for the protection of racial and religious minorities. Above p. 91. Compare the advisory opinion of the Permanent Court of International Justice on September 10, 1923, upon questions submitted to the Court by the Council of the League of Nations in respect to the property rights of settlers of German origin residing in the territory ceded XI may it discriminate unfairly against aliens whom it has admitted CHAP. into its midst.1 This necessary adjustment of the right of independence of one state to the right of self-protection possessed by other states is, as has been seen, a judicial function for which no provision has as yet been made by the society of nations. The jurisdiction of existing international courts does not extend to it.2 tion over the determi One of the primary problems connected with the internal inde- b. Jurisdic pendence of a state is that of determining the membership of its citizens: citizen body. The question is a purely municipal one in so far as nation of it merely involves the right of the state to say that particular citizenship persons shall be identified with its corporate personality and shall, in consequence, be permitted to enjoy the rights of citizenship and be obligated to perform corresponding duties. The international problem arises when the state undertakes to give protection to, and demand allegiance of, certain persons as its citizens, when similar and conflicting claims are made by other states. In such cases there exists a dual claim upon the citizen, and he is held to have a dual or double nationality. The term "nationality" expresses in international law, not the racial group to which an individual belongs, but the bond which unites him to a given state, or his membership in such state.3 The law is well established that persons are citizens if born on Citizenship the soil of a state and of parents who are themselves citizens of by birth the state. This general rule covers, in most states, the large majority of the citizen body. Apart from this general rule, the practice of nations varies widely. Great Britain, the United States, and a number of Latin-American states adhere primarily to the principle of jus soli, by which mere birth upon the soil is sufficient to confer nationality, irrespective of the citizenship of the parents.* to Poland by Germany. Above, p. 122, n. 3. See also the advisory opinion rendered by the Court on September 15, 1923, on questions arising out of Art. 4 of the Polish Minorities Treaty of June 28, 1919. Advisory Opinions, Series B, No. 7. See above, p. 157. 2 See below, pp. 408 ff. The term "national" has come into use of recent years in place of "citizen" or "subject” to avoid the necessity of distinguishing between citizens and others who are members of the body politic without possessing the full rights of citizens. In the United States, however, since the adoption of the Fourteenth Amendment citizenship and nationality coincide. The Fourteenth Amendment of the United States Constitution proclaims that "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." Prior to the Civil Rights Act of 1866, which preceded the adoption of the amendment, the American federal courts followed the principle as a rule of the common law. The above provision of the Fourteenth Amendment was interpreted in the CHAP. Claims based upon both principles This principle was of feudal origin, and it originally prevailed in France and other continental countries, which, however, in time abandoned it. By contrast with the jus soli France (since the adoption of the Code Napoléon), Germany, Austria-Hungary, and other states adhere primarily to the civil law principle of jus /sanguinis, by which the nationality of children follows that of their parents, irrespective of their place of birth. In the one case the basis of jurisdiction is the locus and in the other case the persona. It follows, therefore, that a conflict of jurisdiction may arise whenever a child is born on the soil of one state of parents who are citizens of another state. For example, a child born in the United States of French parents is an American citizen jure soli, but the child is at the same time a French citizen jure sanguinis. His effective citizenship will then depend upon the jurisdiction to which he is subject. In the United States he is an American; in France, a Frenchman; in any other country he is both.1 Few states, however, abide strictly by one system or the other. Great Britain, before 1870, not only claimed the allegiance of the children born to aliens on the soil of the country, but that of children born to British citizens resident in other countries. The former claim has, since the Naturalization Act of 1870, been qualified to permit the children born of alien parents on the soil of the country to assume the nationality of their parents by a declaration of alienage made upon attaining majority. The United States in like manner has supported its claims jure soli by claims jure sanguinis. By a law of Congress, enacted in 1855,2 all children born out of the jurisdiction of the United States, whose fathers were at the time of the children's birth citizens of the United States, were declared to be citizens of the United States; but the rights of citizenship were held not to descend to children whose fathers never resided in the United States. A more recent law of 1907 restricts the act of 1855 by providing that such case of United States v. Wong Kim Ark, 169 U. S., 649 (1898), to confer citizenship upon the child of alien parents who were not themselves eligible to citizenship by naturalization, as being of Chinese descent. In commenting, obiter, upon the general principle of citizenship, the court said: "It is the inherent right of every independent nation to determine for itself, and according to its own Constitution and laws, what classes of persons shall be entitled to its citizenship."' 'See below, p. 175. Act of February 10, 1855; incorporated in Revised Statutes, § 1993. XI foreign-born children who continue to reside abroad must, in CHAP. order to receive the protection of the United States, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States, and must take the oath of allegiance to the United States upon attaining majority.1 In France while the jus sanguinis constitutes the primary claim of allegiance, elements of the jus soli are to be found in the provision that persons born in France of alien parents, and domiciled in France at the time of attaining majority, shall be considered French.2 Such children, if not domiciled in France upon attaining majority, may declare their intention to acquire a French domicile, and may claim French nationality by actually acquiring a French domicile within a year after the declaration. On the other hand, on attaining majority the native-born child of foreign parents may decline French nationality by means of an attestation showing that he has claimed the nationality of his parents. The various conflicts resulting from the simultaneous presence of these secondary and primary claims of allegiance are generally settled as a practical matter by the deference of the former to the latter, when the state asserting its primary claim of allegiance has at the same time de facto juris diction over the individual in question.. service Several cases of dual nationality, with resulting conflict of Dual national claims, were presented to the Department of State before nationality the entrance of the United States into the World War. In the military case of Frank Ghiloni the Department of State requested that the Italian Government release from compulsory military service a man born in the United States in 1885, whose father was at that time an Italian subject. Ghiloni had resided seventeen years in the United States before going to Italy in June, 1914, and it was held by the Department of State that such continued residence The object of this provision was, however, rather to put the Department of State in the position of being able to refuse to protect those who failed to comply with it than to assert a right on the part of the United States to protect those who should comply with it as against the possible claims of allegiance made by the state of their birth and residence. See Hyde, International Law, I, 65, n. 2. 'Civil Code, 1804, § 9. Compare the facts involved in the recent dispute between Great Britain and France as to the effect of the Tunisian and French nationality decrees of November 8, 1921. See the advisory opinion of the Permanent Court of International Justice, February 7, 1923. Advisory Opinions, Series B, No. 4. See M. O. Hudson, "The Second Year of the Permanent Court of International Justice," Am. Journal, XVIII (1924), 2; C. N. Gregory, "An Important Decision by the Permanent Court of International Justice," ibid., XVII (1923), 298. CHAP. XI Citizenship by naturali. zation indicated that Ghiloni, although born with dual nationality, had elected American nationality. The Italian Government, however, refused to recognize the prior claim of the United States, although a third party, Austria-Hungary, on capturing Ghiloni in battle, acknowledged the justice of the claim and released the prisoner.1 In the case of Ugo Da Prato, a native-born citizen who went to Italy in 1912 to study architecture, the father, a native of Italy, had been naturalized in the United States before the birth of his son; so that it did not appear to the Department of State that the son could be considered an Italian subject under Italian law. A request was, therefore, made for his immediate release from detention for military service.2 In the case of P. A. Le Long, the Department of State was presented with an inquiry whether a person born in the United States of a native French father who had emigrated to the United States at twenty years of age, could be held liable for military service in case he should visit France during the progress of the war. In reply the Department of State, after citing the provisions of the French Civil Code, explained the legal status of Le Long as being one of dual nationality, and informed him that it could not therefore give him "any assurance that you would not be held liable for the performance of military service in France should you voluntarily place yourself within French jurisdiction." 3 In addition to nationality based upon birth, international law recognizes a nationality acquired by voluntary act, in accordance with which a person, born a citizen of one state, obtains the status of an adopted citizen of another state. The procedure by which such new nationality is acquired is known as "naturalization," and it is a matter regulated by each state according to its own conception of the degree to which its national interests will be promoted by extending its citizenship to outsiders. In the United States the present procedure of naturalization, as provided by act of June 29, 1906, requires two distinct steps in the acquisition of citizenship. First, there must be a "declaration of intention" to become a citizen. This declaration, made under oath, expresses the bona fide intention of the applicant to become a citizen of the United States and to renounce his allegiance to any foreign state, naming the state of which he is at that time a citizen. The |