[638] The position of the Jews in Roumania furnishes a sad example. According to Municipal Law they are, with a few exceptions, considered as foreigners for the purpose of avoiding the consequences of article 44 of the Treaty of Berlin, 1878, according to which no religious disabilities may be imposed by Roumania upon her subjects. But as these Jews are not subjects of any other State, Roumania compels them to render military service, and actually treats them in every way according to discretion without any foreign State being able to exercise a right of protection over them. See Rey in R.G. X. (1903), pp. 460-526, and Bar in R.I. 2nd Ser. IX. (1907), pp. 711-716. See also above, [§ 293, p. 369, note 2].
Redress against Difficulties arising from Double and Absent Nationality.
§ 313. Double as well as absent nationality of individuals has from time to time created many difficulties for the States concerned. As regards the remedy for such difficulties, it is comparatively easy to meet those created by absent nationality. If the number of stateless individuals increases much within a certain State, the latter can require them to apply for naturalisation or to leave the country; it can even naturalise them by Municipal Law against their will, as no other State will, or has a right to, interfere, and as, further, the very fact of the existence of individuals destitute of nationality is a blemish in Municipal as well as in International Law. Much more difficult is it, however, to find, within the limits of the present rules of the Law of Nations, means of redress against conflicts arising from double nationality. Very grave disputes indeed have occasionally occurred between States on account of individuals who were claimed as subjects by both sides. Thus, in 1812, a time when England still kept to her old rule that no natural-born English subject could lose his nationality, the United States went to war with England because the latter impressed Englishmen naturalised in America from on board American merchantmen, claiming the right to do so, as according to her law these men were still English citizens. Thus, further, Prussia frequently had during the sixties of the last century disputes with the United States on account of Prussian individuals who, without having rendered military service at home, had emigrated to America to become there naturalised and had afterwards returned to Prussia.[639] Again, during the time of the revolutionary movements in Ireland in the last century before the Naturalisation Act of 1870 was passed, disputes arose between Great Britain and the United States on account of such Irishmen as took part in these revolutionary movements after having become naturalised in the United States.[640] It would seem that the only way in which all the difficulties arising from double and absent nationality could really be done away with is for all the Powers to agree upon an international convention, according to which they undertake the obligation to enact by their Municipal Law such corresponding rules regarding acquisition and loss of nationality as make the very occurrence of double and absent nationality impossible.[641]
[639] The case of Martin Koszta ought here to be mentioned, details of which are reported by Wharton, II. § 175; Moore, III. §§ 490-491, and Martens, "Causes Célèbre," V. pp. 583-599. Koszta was a Hungarian subject who took part in the revolutionary movement of 1848, escaped to the United States, and in July, 1852, made a declaration under oath, before a proper tribunal, of his intention to become naturalised there. After remaining nearly two years in the United States, but before he was really naturalised, he visited Turkey, and obtained a tezkereh, a kind of letter of safe-conduct, from the American Chargé d'Affaires at Constantinople. Later on, while at Smyrna, he was seized by Austrian officials and taken on board an Austrian man-of-war with the intention of bringing him to Austria, to be there punished for his part in the revolution of 1848. The American Consul demanded his release, but Austria maintained that she had a right to arrest Koszta according to treaties between her and Turkey. Thereupon the American man-of-war Saint Louis threatened to attack the Austrian man-of-war in case she would not give up her prisoner, and an arrangement was made that Koszta should be delivered into the custody of the French Consul at Smyrna until the matter was settled between the United States and Austrian Governments. Finally, Austria consented to Koszta's being brought back to America. Although Koszta was not yet naturalised, the United States claimed a right of protection over him, since he had taken his domicile on her territory with the intention to become there naturalised in due time, and had thereby in a sense acquired the national character of an American.
[640] The United States have, through the so-called "Bancroft Treaties," attempted to overcome conflicts arising from double nationality. The first of these treaties was concluded in 1868 with the North German Confederation, the precursor of the present German Empire, and signed on behalf of the United States by her Minister in Berlin, George Bancroft. (See Wharton, II. §§ 149 and 179, and Moore, III. §§ 391-400.) In the same and the following years treaties of the same kind were concluded with many other States, the last with Portugal in 1908. A treaty of another kind, but with the same object, was concluded between the United States and Great Britain on May 13, 1870. (See Martens, N.R.G. XX. p. 524, and Moore, III. § 397.) All these treaties stipulate that naturalisation in one of the contracting States shall be recognised by the other, whether the naturalised individual has or has not previously been released from his original citizenship, provided he has resided for five years in such country. And they further stipulate that such naturalised individuals, in case they return after naturalisation into their former home State and take their residence there for some years, either ipso facto become again subjects of their former home State and cease to be naturalised abroad (as the Bancroft Treaties), or can be reinstated in their former citizenship, and cease thereby to be naturalised abroad (as the treaty with Great Britain).
[641] The Institute of International Law has studied the matter, and formulated at its meeting in Venice in 1896 six rules, which, if adopted on the part of the different States, would do away with many of the difficulties. (See Annuaire, XV. p. 270.)
VI RECEPTION OF ALIENS AND RIGHT OF ASYLUM
Vattel, II. § 100—Hall, §§ 63-64—Westlake, I. pp. 208-210—Lawrence, §§ 97-98—Phillimore, I. §§ 365-370—Twiss, I. § 238—Halleck, I. pp. 452-454—Taylor, § 186—Walker, § 19—Wharton, II. § 206—Wheaton, § 115, and Dana's Note—Moore, IV. §§ 560-566—Bluntschli, §§ 381-398—Hartmann, §§ 84-85, 89—Heffter, §§ 61-63—Stoerk in Holtzendorff, II. pp. 637-650—Gareis, § 57—Liszt, § 25—Ullmann, §§ 113-115—Bonfils, Nos. 441-446—Despagnet, Nos. 339-343—Rivier, I. pp. 307-309—Nys, II. pp. 232-237—Calvo, II. §§ 701-706, VI. § 119—Martens, II. § 46—Overbeck, "Niederlassungsfreiheit und Ausweisungsrecht" (1906); Henriques, "The Law of Aliens, &c." (1906)—Sibley and Elias, "The Aliens Act, &c." (1906)—Proceedings of the American Society of International Law, 1911, pp. 65-115.
No Obligation to admit Aliens.
§ 314. Many writers[642] maintain that every member of the Family of Nations is bound by International Law to admit all aliens into its territory for all lawful purposes, although they agree that every State could exclude certain classes of aliens. This opinion is generally held by those who assert that there is a fundamental right of intercourse between States. It will be remembered[643] that no such fundamental right exists, but that intercourse is a characteristic of the position of the States within the Family of Nations and therefore a presupposition of the international personality of every State. A State, therefore, cannot exclude aliens altogether from its territory without violating the spirit of the Law of Nations and endangering its very membership of the Family of Nations. But no State actually does exclude aliens altogether. The question is only whether an international legal duty can be said to exist for every State to admit all unobjectionable aliens to all parts of its territory. And it is this duty which must be denied as far as the customary Law of Nations is concerned. It must be emphasised that, apart from general conventional arrangements, as, for instance, those concerning navigation on international rivers, and apart from special treaties of commerce, friendship, and the like, no State can claim the right for its subjects to enter into and reside on the territory of a foreign State. The reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy competent to exclude aliens from the whole or any part of its territory. And it is only by an inference of this competence that Great Britain,[644] the United States of America, and other States have made special laws according to which paupers and criminals, as well as diseased and other objectionable aliens, are prevented from entering their territory. Every State is and must remain master in its own house, and such mastership is of especial importance with regard to the admittance of aliens. Of course, if a State excluded all subjects of one State only, this would constitute an unfriendly act, against which retorsion would be admissible; but it cannot be denied that a State is competent to do this, although in practice such wholesale exclusion will never happen. Hundreds of treaties of commerce and friendship exist between the members of the Family of Nations according to which they are obliged to receive each other's unobjectionable subjects, and thus practically the matter is settled, although in strict law every State is competent to exclude foreigners from its territory.[645]