[635] This is the consequence of Section 10, Nos. 1 and 3, of the Naturalisation Act, 1870.
Position of Individuals with Double Nationality.
§ 310. Individuals owning double nationality bear in the language of diplomatists the name sujets mixtes. The position of such "mixed subjects" is awkward on account of the fact that two different States claim them as subjects, and therefore their allegiance. In case a serious dispute arises between these two States which leads to war, an irreconcilable conflict of duties is created for these unfortunate individuals. It is all very well to say that such conflict is a personal matter which concerns neither the Law of Nations nor the two States in dispute. As far as an individual has, through naturalisation, option, and the like, acquired his double nationality, one may say that he has placed himself in that awkward position by intentionally and knowingly acquiring a second without being released from his original nationality. But those who are natural-born sujets mixtes in most cases do not know thereof before they have to face the conflict, and their difficult position is not their own fault.
Be that as it may, there is no doubt that each of the States claiming such an individual as subject is internationally competent to do this, although they cannot claim him against one another, since each of them correctly maintains that he is its subject.[636] But against third States each of them appears as his Sovereign, and it is therefore possible that each of them can exercise its right of protection over him within third States.
[636] I cannot agree with the statement in its generality made by Westlake, I. p. 221:—"If, for instance, a man claimed as a national both by the United Kingdom and by another country should contract in the latter a marriage permitted by its laws to its subjects, an English Court would have to accept him as a married man." If this were correct, the marriage of a German who, without having given up his German citizenship, has become naturalised in Great Britain and has afterwards married his niece in Germany, would have to be recognised as legal by the English Courts. The correct solution seems to me to be that such marriage is legal in Germany, but not legal in England, because British law does not admit of marriage between uncle and niece. The case is different when a German who marries his niece in Germany, afterwards takes his domicile and becomes naturalised in England; in this case English Courts would have to recognise the marriage as legal because German law does not object to a marriage between uncle and niece, and because the marriage was concluded before the man took his domicile in England and became a British subject. See Foote, "Private International Jurisprudence," 3rd ed. (1904), p. 106, and the cases there cited.
How Absent Nationality occurs.
§ 311. An individual may be destitute of nationality knowingly or unknowingly, intentionally or through no fault of his own. Even by birth a person may be stateless. Thus, an illegitimate child born in Germany of an English mother is actually destitute of nationality because according to German law he does not acquire German nationality, and according to British law he does not acquire British nationality. Thus, further, all children born in Germany of parents who are destitute of nationality are themselves, according to German law, stateless. But statelessness may take place after birth. All individuals who have lost their original nationality without having acquired another are in fact destitute of nationality.
Position of Individuals destitute of Nationality.
§ 312. That stateless individuals are objects of the Law of Nations in so far as they fall under the territorial supremacy of the State on whose territory they live there is no doubt whatever. But since they do not own a nationality, the link[637] by which they could derive benefits from International Law is missing, and thus they lack any protection whatever as far as this law is concerned. The position of such individuals destitute of nationality may be compared to vessels on the Open Sea not sailing under the flag of a State, which likewise do not enjoy any protection whatever. In practice, stateless individuals are in most States treated more or less as though they were subjects of foreign States, but as a point of international legality there is no restriction whatever upon a State's maltreating them to any extent.[638]