[614] Beyond the right of protection and the duty to receive expelled citizens at home, the powers of a State over its citizens abroad in consequence of its personal supremacy illustrate the function of nationality. (See above, § [124].) Thus, the home State can tax citizens living abroad in the interest of home finance, can request them to come home for the purpose of rendering military service, can punish them for crimes committed abroad, can categorically request them to come home for good (so-called jus avocandi). And no State has a right forcibly to retain foreign citizens called home by their home State, or to prevent them from paying taxes to their home State, and the like.
So-called Protégés and de facto Subjects.
§ 295. Although nationality alone is the regular means through which individuals can derive benefit from the Law of Nations, there are two exceptional cases in which individuals may come under the international protection of a State without these individuals being really its subjects. It happens, first, that a State undertakes by an international agreement the diplomatic protection of another State's citizens abroad, and in this case the protected foreign subjects are named "protégés" of the protecting States. Such agreements are either concluded for a permanency as in the case of a small State, Switzerland for instance, having no diplomatic envoy in a certain foreign country where many of its subjects reside, or in time of war only, a belligerent handing over the protection of its subjects in the enemy State to a neutral State.
It happens, secondly, that a State promises diplomatic protection within the boundaries of Turkey and other Oriental countries to certain natives. Such protected natives are likewise named protégés, but they are also called "de facto subjects" of the protecting State. The position of these protégés is quite anomalous, it is based on custom and treaties, and no special rules of the Law of Nations itself are in existence concerning such de facto subjects. Every State which takes such de facto subjects under its protection can act according to its discretion, and there is no doubt that as soon as these Oriental States have reached a level of civilisation equal to that of the Western members of the Family of Nations, the whole institution of the de facto subjects will disappear.
Concerning the exercise of protection in Morocco, a treaty[615] was concluded at Madrid on July 3, 1880, signed by Morocco, Great Britain, Austria-Hungary, Belgium, France, Germany, Holland, Italy, Portugal, Spain, Sweden-Norway, and the United States of America, which sanctions the stipulations of the treaty of 1863 between France and Morocco concerning the same subject. According to this treaty the term "protégé" embraces[616] in relation to States of Capitulations only the following classes of persons:—(1) Persons being subjects of a country which is under the protectorate of the Power whose protection they claim; (2) individuals corresponding to the classes enumerated in the treaties with Morocco of 1863 and 1880 and in the Ottoman law of 1863; (3) persons, who under a special treaty have been recognised as protégés like those enumerated by article 4 of the French Muscat Convention of 1844; and (4) those individuals who can establish that they had been considered and treated as protégés by the Power in question before the year in which the creation of new protégés was regulated and limited—that is to say, before the year 1863, these individuals not having lost the status they had once legitimately acquired.
[615] See Martens, N.R.G. 2nd Ser. VI. (1881), p. 624.
[616] See p. 56 of the official publication of the Award, given in 1905, of the Hague Court of Arbitration in the case of France v. Great Britain concerning the Muscat Dhows.
It is of interest to note that the Court considers it a fact that the Powers have no longer the right to create protégés in unlimited numbers in any of the Oriental States, for the Award states on p. 56:—"Although the Powers have expressis verbis resigned the exercise of the pretended right to create 'protégés' in unlimited number only in relation to Turkey and Morocco, nevertheless the exercise of this pretended right has been abandoned also in relation to other Oriental States, analogy having always been recognised as a means to complete the very deficient written regulations of the capitulations as far as circumstances are analogous."
Nationality and Emigration.