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 § 287. The protection afforded to submarine telegraph cables finds
its expression in the following stipulations of this international treaty:
—
(1) Intentional or culpably negligent breaking or damaging of a
cable in the Open Sea is to be punished by all the signatory Powers,
[585]
except in the case of such damage having been caused in the
effort of self-preservation (article 2).
[585] See the Submarine Telegraph Act, 1885 (48 & 49 Vict. c. 49).
(2) Ships within sight of buoys indicating cables which are being
laid or which are damaged must keep at least a quarter of a nautical
mile distant (article 6).
(3) For dealing with infractions of the interdictions and injunctions
of the treaty the Courts of the flag State of the infringing vessel are
exclusively competent (article 8).
(4) Men-of-war of all signatory Powers have a right to stop and to
verify the nationality of merchantmen of all nations which are
suspected of having infringed the regulations of the treaty (article
10).
(5) All stipulations are made for the time of peace only and in no
wise restrict the action of belligerents during time of war.[586]
[586] See below, vol. II. § 214, and art. 54 of the Hague rules concerning land warfare
which enacts:—"Submarine cables connecting a territory occupied with a neutral territory
shall not be seized or destroyed except in the case of absolute necessity. They also must
be restored and indemnities for them regulated at the peace."

VIII
WIRELESS TELEGRAPHY ON THE OPEN SEA

Bonfils, Nos. 53110, 11—Despagnet, 433quater—Liszt, § 29—Ullmann, § 147—Meili,

"Die drahtlose Telegraphie, &c." (1908)—Schneeli, "Drahtlose Telegraphie und
Völkerrecht" (1908)—Landsberg, "Die drahtlose Telegraphie" (1909)—Kausen, "Die
drahtlose Telegraphie im Völkerrecht" (1910)—Rolland in R.G. XIII. (1906), pp. 58-
92—Fauchille in Annuaire, XXI. (1906), pp. 76-87—Meurer and Boidin in R.G. XVI.
(1909), pp. 76 and 261.

Radio-telegraphy between ships and the shore.

 § 287a. To secure radio-telegraphic[587] communication between
ships of all nations at sea and the continents, a Conference met at
Berlin in 1906, where Great Britain, Germany, the United States of
America, Argentina, Austria-Hungary, Belgium, Brazil, Bulgaria, Chili,
Denmark, Spain, France, Greece, Italy, Japan, Mexico, Monaco,
Norway, Holland, Persia, Portugal, Roumania, Russia, Sweden,
Turkey, and Uruguay were represented, and where was signed on
November 3, 1906, the International Radio-telegraphic Convention.
[588]
This Convention, which consists of twenty-three articles, is
accompanied by a Final Protocol, comprising six important articles,
and by Service Regulations, embodying fifty-two articles. The more
important stipulations of the Convention are the following:—Coast
Stations and ships are bound to exchange radio-telegrams
reciprocally without regard to the particular system of radio-
telegraphy adopted by them (article 3). Each of the contracting
parties undertakes to cause its coast stations to be connected with
the telegraph system by means of special wires, or at least to take
such other measures as will ensure an expeditious exchange of
traffic between the coast stations and the telegraph system (article
5). Radio-telegraph stations are bound to accept with absolute
priority calls of distress from ships, to answer such calls with similar
priority, and to take the necessary steps with regard to them (article
9). An International Bureau shall be established with the duty of
collecting, arranging, and publishing information of every kind
concerning radio-telegraphy, and for some other purposes
mentioned in article 13.
[587] See above, § 173, and below, §§ 464 and 582, No. 4.
[588] See Martens, N.R.G. 3rd Ser. III. (1910), p. 147. But not all the signatory Powers
have as yet ratified the Convention, ratification having been given hitherto only by Great
Britain, Austria-Hungary, Belgium, Brazil, Bulgaria, Denmark, France, Germany, Japan,
Mexico, Monaco, Holland, Norway, Portugal, Roumania, Russia, Spain, Sweden and
Turkey; and Tunis acceded to it. Italy has reserved ratification on account of her relations
with the Marconi Wireless Telegraphy Co.

Radio-telegraphy between ships at sea.

§ 287b. To secure radio-telegraphic communication between such
ships at sea as possess installations for wireless telegraphy, an
Additional Convention[589] to that mentioned above in § 287a was
signed on November 3, 1906, by all the Powers who signed the
forementioned Convention except by Great Britain, Italy, Japan,
Mexico, Persia, and Portugal. According to this additional Convention
all ships at sea which possess radio-telegraphic installations are
compelled to exchange radio-telegrams reciprocally at all times
without regard to the particular system of radio-telegraphy adopted.
[589] See Martens, N.R.G. 3rd Ser. III. (1910), p. 158. But this Convention likewise has
not yet been ratified by all the signatory Powers.
It is to be hoped that in time all the Powers will accede to this
Additional Convention, for its stipulation is of great importance in
cases of shipwreck. If ships at sea can refuse to exchange radio-
telegrams, it is impossible for them to render one another
assistance. It ought not to be possible for the following case[590] to
occur, to which attention was drawn at the Berlin Conference by the
delegate of the United States of America:—The American steamer
Lebanon had received orders to search the Atlantic for a wrecked
vessel which offered great danger to navigation. The Lebanon came
within communicating reach of the liner Vaderland, and inquired by
wireless telegraphy whether the Vaderland had seen the wreck. The
Vaderland refused to reply to this question, on the ground that she
was not permitted to enter into communication with a ship provided
with a wireless apparatus other than the Marconi.
[590] See Hazeltine, "The Law of the Air" (1911), p. 101.

IX
THE SUBSOIL BENEATH THE SEA BED

Five rules concerning the subsoil beneath the Sea Bed.

§ 287c. The subsoil beneath the bed of the Open Sea requires
special consideration on account of coal or other mines, tunnels, and
the like, for the question is whether such buildings can be driven into
that subsoil at all, and, if this can be done, whether they can be
under the territorial supremacy of a particular State. The answer
depends entirely upon the character in law of such subsoil. If the
rules concerning the territorial subsoil[591] would have analogously to
be applied to the subsoil beneath the bed of the Open Sea, all rules
concerning the Open Sea would necessarily have to be applied to
the subsoil beneath its bed, and no part of this subsoil could ever
come under the territorial supremacy of any State. It is, however,
submitted[592] that it would not be rational to consider the subsoil
beneath the bed of the Open Sea an inseparable appurtenance of
the latter, such as the subsoil beneath the territorial land and water
is. The rationale of the Open Sea being free and for ever excluded
from occupation on the part of any State is that it is an international
highway which connects distant lands and thereby secures freedom
of communication, and especially of commerce, between such States
as are separated by the sea.[593] There is no reason whatever for
extending this freedom of the Open Sea to the subsoil beneath its
bed. On the contrary, there are practical reasons—taking into
consideration the building of mines, tunnels, and the like—which
compel the recognition of the fact that this subsoil can be acquired
through occupation. The following five rules recommend themselves
concerning this subject:—
[591] See above, §§ 173, 175.
[592] See Oppenheim in Z.V. II. (1908), p. 11.
[593] See above, § 259.

(1) The subsoil beneath the bed of the Open Sea is no man's land,
and it can be acquired on the part of a littoral State through
occupation, starting from the subsoil beneath the bed of the
territorial maritime belt.
(2) This occupation takes place ipso facto by a tunnel or a mine
being driven from the shore through the subsoil of the maritime belt
into the subsoil of the Open Sea.
(3) This occupation of the subsoil of the Open Sea can be
extended up to the boundary line of the subsoil of the territorial
maritime belt of another State, for no State has an exclusive claim to
occupy such part of the subsoil of the Open Sea as is adjacent to the
subsoil of its territorial maritime belt.
 (4) An occupation of the subsoil beneath the bed of the Open Sea
for a purpose which would endanger the freedom of the Open Sea is
inadmissible.
(5) It is likewise inadmissible to make such arrangements in a part
of the subsoil beneath the Open Sea which has previously been
occupied for a legitimate purpose as would indirectly endanger the
freedom of the Open Sea.
If these five rules are correct, there is nothing in the way of coal
and other mines which are being exploited on the shore of a littoral
State being extended into the subsoil beneath the Open Sea up to
the boundary line of the subsoil beneath the territorial maritime belt
of another State. Further, a tunnel which might be built between
such two parts of the same State—for instance, between Ireland and
Scotland—as are separated by the Open Sea would fall entirely
under the territorial supremacy of the State concerned. On the other
hand, for a tunnel between two different States separated by the
Open Sea special arrangements by treaty would have to be made
concerning the territorial supremacy over that part of the tunnel
which runs under the bed of the Open Sea.

The proposed Channel Tunnel.

§ 287d. Since there is as yet no submarine tunnel in existence, it
is of interest to give some details concerning the project of a
Channel Tunnel[594] between Dover and Calais, and the preliminary
arrangements between France and England concerning it. Already
some years before the Franco-German War the possibility of such a
tunnel was discussed, but it was not until 1874 that the first
preliminary steps were taken. The subsoil of the Channel was
geologically explored, plans were worked out, and a shaft of more
than a mile long was tentatively bored from the English shore. And
in 1876 an International Commission, appointed by the English and
French Governments, and comprising three French and three English
members, made a report on the construction and working of the
proposed tunnel.[595] The report enclosed a memorandum,
recommended by the Commissioners to be adopted as the basis of a
treaty between Great Britain and France concerning the tunnel, the
juridically important articles of which are the following:—
[594] See Oppenheim in Z.V. II. (1908), pp. 1-16; Robin in R.G. XV. (1908), pp. 50-77;
and Liszt, § 26.
[595] See Parliamentary Papers, C. 1576, Report of the Commissioners for the Channel
Tunnel and Railway, 1876.
(Article 1) The boundary between England and France in the
tunnel shall be half-way between low-water mark (above the tunnel)
on the coast of England, and low-water mark (above the tunnel) on
the coast of France. The said boundary shall be ascertained and
marked out under the direction of the International Commission to
be appointed, as mentioned in article 4, before the Submarine
Railway is opened for public traffic. The definition of boundary
provided for by this article shall have reference to the tunnel and
Submarine Railway only, and shall not in any way affect any question
of the nationality of, or any rights of navigation, fishing, anchoring,
or other rights in, the sea above the tunnel, or elsewhere than in the
tunnel itself.
(Article 4) There shall be constituted an International Commission
to consist of six members, three of whom shall be nominated by the
British Government and three by the French Government....

The International Commission shall ... submit to the two

Governments its proposals for Supplementary Conventions with
respect—(a) to the apprehension and trial of alleged criminals for
offences committed in the tunnel or in trains which have passed
through it, and the summoning of witnesses; (b) to customs, police,
and postal arrangements, and other matters which it may be found
convenient so to deal with.
(Article 15) Each Government shall have the right to suspend the
working of the Submarine Railway and the passage through the
tunnel whenever such Government shall, in the interest of its own
country, think necessary to do so. And each Government shall have
power, to be exercised if and when such Government may deem it
necessary, to damage or destroy[596] the works of the tunnel or
Submarine Railway, or any part of them, in the territory of such
Government, and also to flood the tunnel with water.
[596]This stipulation was proposed in the interest of defence in time of war. As regards
the position of a Channel Tunnel in time of war, see Oppenheim in Z.V. II. (1908), pp.
13-16.
In spite of this elaborate preparation the project could not be
realised, since public opinion in England was for political reasons
opposed to it. And although several times since—in 1880, 1884,
1888, and 1908—steps were again taken in favour of the proposed
tunnel, public opinion in England remained hostile and the project
has had for the time to be abandoned. It is, however, to be hoped
and expected that ultimately the tunnel will be built when the
political conditions which are now standing in the way of its
realisation have undergone a change.

CHAPTER III
INDIVIDUALS

I
POSITION OF INDIVIDUALS IN INTERNATIONAL LAW

Lawrence, § 42—Taylor, § 171—Heffter, § 58—Stoerk in Holtzendorff, II. pp. 585-592

—Gareis, § 53—Liszt, §§ 5 and 11—Ullmann, § 107—Bonfils, Nos. 397-409—
Despagnet, No. 328—Mérignhac, II. pp. 169-172—Pradier-Fodéré, I. Nos. 43-49—
Fiore, II. Nos. 568-712—Martens, I. §§ 85-86—Jellinek, "System der subjectiven
öffentlichen Rechte" (1892), pp. 310-314—Heilborn, "System," pp. 58-138—
Kaufmann, "Die Rechtskraft des Internationalen Rechtes" (1899)—Buonvino,
"Diritto e personalità giuridica internazionale" (1910)—Rehm and Adler in Z.V. II.
(1908), pp. 53-55 and 614-618—Kohler in Z.V. III. (1909), pp. 209-230—Diena in
R.G. XVI. (1909), pp. 57-76.

Importance of Individuals to the Law of Nations.

§ 288. The importance of individuals to the Law of Nations is just
as great as that of territory, for individuals are the personal basis of
every State. Just as a State cannot exist without a territory, so it
cannot exist without a multitude of individuals who are its subjects
and who, as a body, form the people or the nation. The individuals
belonging to a State can and do come in various ways in contact
with foreign States in time of peace as well as of war. The Law of
Nations is therefore compelled to provide certain rules regarding
individuals.
Individuals never Subjects of the Law of Nations.
§ 289. Now, what is the position of individuals in International Law
according to these rules? Since the Law of Nations is a law between
States only and exclusively, States only and exclusively[597] are
subjects of the Law of Nations. How is it, then, that, although
individuals are not subjects of the Law of Nations, they have certain
rights and duties in conformity with or according to International
Law? Have not monarchs and other heads of States, diplomatic
envoys, and even simple citizens certain rights according to the Law
of Nations whilst on foreign territory? If we look more closely into
these rights, it becomes quite obvious that they are not given to the
favoured individual by the Law of Nations directly. For how could
International Law, which is a law between States, give rights to
individuals concerning their relations to a State? What the Law of
Nations really does concerning individuals, is to impose the duty
upon all the members of the Family of Nations to grant certain
privileges to such foreign heads of States and diplomatic envoys,
and certain rights to such foreign citizens as are on their territory.
And, corresponding to this duty, every State has by the Law of
Nations a right to demand that its head, its diplomatic envoys, and
its simple citizens be granted certain rights by foreign States when
on their territory. Foreign States granting these rights to foreign
individuals do this by their Municipal Laws, and these rights are,
therefore, not international rights, but rights derived from Municipal
Laws. International Law is indeed the background of these rights in
so far as the duty to grant them is imposed upon the single States
by International Law. It is therefore quite correct to say that the
individuals have these rights in conformity with or according to
International Law, if it is only remembered that these rights would
not exist had the single States not created them by their Municipal
Law.
 [597] See above, §§ 13 and 63.
And the same is valid as regards special rights of individuals in
foreign countries according to special international treaties between
two or more Powers. Although such treaties mostly speak of rights
which individuals shall have as derived from the treaties themselves,
this is nothing more than an inaccuracy of language. In fact, such
treaties do not create these rights, but they impose the duty upon
the contracting States of calling these rights into existence by their
Municipal Laws.[598]
[598] The whole matter is treated with great lucidity by Jellinek, "System der
subjectiven öffentlichen Rechte" (1892), pp. 310-314, and Heilborn, "System," pp. 58-
138.
Again, in those rare cases in which States stipulate by
international treaties certain favours for individuals other than their
own subjects, these individuals do not acquire any international
rights under these treaties. The latter impose the duty only upon the
State whose subjects these individuals are of calling those favours
into existence by its Municipal Law. Thus, for example, when articles
5, 25, 35, and 44 of the Treaty of Berlin, 1878, made it a condition
of the recognition of Bulgaria, Montenegro, Servia, and Roumania,
that these States should not impose any religious disability upon
their subjects, the latter did not thereby acquire any international
rights. Another instructive example[599] is furnished by article 5 of the
Peace Treaty of Prague, 1866, between Prussia and Austria, which
stipulated that the northern district of Schleswig should be ceded by
Prussia to Denmark in case the inhabitants should by a plebiscite
vote in favour of such cession. Austria, no doubt, intended to secure
by this stipulation for the inhabitants of North Schleswig the
opportunity of voting in favour of their union with Denmark. But
these inhabitants did not thereby acquire any international right.
Austria herself acquired only a right to insist upon Prussia granting
to the inhabitants the opportunity of voting for the union with
Denmark. Prussia, however, intentionally neglected her duty, Austria
did not insist upon her right, and finally relinquished it by the Treaty
of Vienna of 1878.[600]
[599] See Heilborn, "System," p. 67.
 [600]It ought to be mentioned that the opinion presented in the text concerning the
impossibility for individuals to be subjects of International Law, which is now mostly
upheld, is vigorously opposed by Kaufmann, "Die Rechtskraft des internationalen
Rechtes" (1899), §§ 1-4, and a few others.
Now it is maintained[601] that, although individuals cannot be
subjects of International Law, they can nevertheless acquire rights
and duties from International Law. But it is impossible to find a basis
for the existence of such rights and duties. International rights and
duties they cannot be, for international rights and duties can only
exist between States. Likewise they cannot be municipal rights, for
municipal rights and duties can only be created by Municipal Law.
The opponents answer that such rights and duties nevertheless
exist, and quote for example articles 4 and 5 of Convention XII.
(concerning the establishment of an International Prize Court) of the
second Hague Peace Conference, according to which individuals
have a right to bring an appeal before the International Prize Court.
But is this a real right? Is it not more correct to say that the home
States of the individuals concerned have a right to demand that
these individuals can bring the appeal before the Court? Wherever
International Law creates an independent organisation, such as the
International Prize Court at the Hague or the European Danube
Commission and the like, certain powers and claims must be given
to the Courts and Commissions and the individuals concerned, but
these powers and claims, and the obligations deriving therefrom, are
neither international nor municipal rights and duties: they are
powers, claims, and obligations existing only within the organisations
concerned. To call them rights and duties—as indeed the respective
treaties frequently do—is a laxity of language which is quite tolerable
as long as one remembers that they neither comprise any relations
between States nor any claims and obligations within the province of
Municipal Law.
[601]See Diena in R.G. XVI. (1909), pp. 57-76; Rehm and Adler in Z.V. I. (1908), pp.
53 and 614; Liszt, § 5; Kohler in Z.V. II. (1909), pp. 209-230.

Individuals Objects of the Law of Nations.

§ 290. But what is the real position of individuals in International
Law, if they are not subjects thereof? The answer can only be that
they are objects of the Law of Nations. They appear as such from
many different points of view. When, for instance, the Law of
Nations recognises the personal supremacy of every State over its
subjects at home and abroad, these individuals appear just as much
objects of the Law of Nations as the territory of the States does in
consequence of the recognised territorial supremacy of the States.
When, secondly, the recognised territorial supremacy of every State
comprises certain powers over foreign subjects within its boundaries
without their home State's having a right to interfere, these
individuals appear again as objects of the Law of Nations. And,
thirdly, when according to the Law of Nations any State may seize
and punish foreign pirates on the Open Sea, or when belligerents
may seize and punish neutral blockade-runners and carriers of
contraband on the Open Sea without their home State's having a
right to interfere, individuals appear here too as objects of the Law
of Nations.[602]
[602] Westlake, Chapters, p. 2, maintains that in these cases individuals appear as
subjects of International Law; but I cannot understand upon what argument this
assertion is based. The correct standpoint is taken up by Lorimer, II. p. 131, and Holland,
"Jurisprudence," p. 341.

Nationality the Link between Individuals and the Law of Nations.

§ 291. If, as stated, individuals are never subjects but always
objects of the Law of Nations, then nationality is the link between
this law and individuals. It is through the medium of their nationality
only that individuals can enjoy benefits from the existence of the
Law of Nations. This is a fact which has its consequences over the
whole area of International Law.[603] Such individuals as do not
possess any nationality enjoy no protection whatever, and if they are
aggrieved by a State they have no way of redress, there being no
State which would be competent to take their case in hand. As far as
the Law of Nations is concerned, apart from morality, there is no
restriction whatever to cause a State to abstain from maltreating to
any extent such stateless individuals.[604] On the other hand, if
individuals who possess nationality are wronged abroad, it is their
home State only and exclusively which has a right to ask for redress,
and these individuals themselves have no such right. It is for this
reason that the question of nationality is a very important one for
the Law of Nations, and that individuals enjoy benefits from this law
not as human beings but as subjects of such States as are members
of the Family of Nations. And so distinct is the position as subjects of
these members from the position of stateless individuals and from
subjects of States outside the Family of Nations, that it has been
correctly characterised as a kind of international "indigenousness," a
Völkerrechts-Indigenat.[605] Just as municipal citizenship procures for
an individual the enjoyment of the benefits of the Municipal Laws, so
this international "indigenousness," which is a necessary inference
from municipal citizenship, procures the enjoyment of the benefits of
the Law of Nations.
[603] See below, § 294.
[604] See below, § 312.
[605] See Stoerk in Holtzendorff, II. p. 588.

The Law of Nations and the Rights of Mankind.

§ 292. Several writers[606] maintain that the Law of Nations
guarantees to every individual at home and abroad the so-called
rights of mankind, without regarding whether an individual be
stateless or not, or whether he be a subject of a member-State of
the Family of Nations or not. Such rights are said to comprise the
right of existence, the right to protection of honour, life, health,
liberty, and property, the right of practising any religion one likes,
the right of emigration, and the like. But such rights do not in fact
enjoy any guarantee whatever from the Law of Nations,[607] and they
cannot enjoy such guarantee, since the Law of Nations is a law
between States, and since individuals cannot be subjects of this law.
But there are certain facts which cannot be denied at the
background of this erroneous opinion. The Law of Nations is a
product of Christian civilisation and represents a legal order which
binds States, chiefly Christian, into a community. It is therefore no
wonder that ethical ideas which are some of them the basis of,
others a development from, Christian morals, have a tendency to
require the help of International Law for their realisation. When the
Powers stipulated at the Berlin Congress of 1878 that the Balkan
States should be recognised only under the condition that they did
not impose any religious disabilities on their subjects, they lent their
arm to the realisation of such an idea. Again, when the Powers after
the beginning of the nineteenth century agreed to several
international arrangements in the interest of the abolition of the
slave trade,[608] they fostered the realisation of another of these
ideas. And the innumerable treaties between the different States as
regards extradition of criminals, commerce, navigation, copyright,
and the like, are inspired by the idea of affording ample protection to
life, health, and property of individuals. Lastly, there is no doubt
that, should a State venture to treat its own subjects or a part
thereof with such cruelty as would stagger humanity, public opinion
of the rest of the world would call upon the Powers to exercise
intervention[609] for the purpose of compelling such State to establish
a legal order of things within its boundaries sufficient to guarantee
to its citizens an existence more adequate to the ideas of modern
civilisation. However, a guarantee of the so-called rights of mankind
cannot be found in all these and other facts. Nor do the actual
conditions of life to which certain classes of subjects are forcibly
submitted within certain States show that the Law of Nations really
comprises such guarantee.[610]
[606] Bluntschli, §§ 360-363 and 370; Martens, I. §§ 85 and 86; Fiore, I. Nos. 684-712,
and Code, Nos. 614-669; Bonfils, No. 397, and others.
[607] The matter is treated with great lucidity by Heilborn, "System," pp. 83-138.
[608] It is incorrect to maintain that the Law of Nations has abolished slavery, but there
is no doubt that the conventional Law of Nations has tried to abolish the slave trade.
Three important general treaties have been concluded for that purpose during the
nineteenth century, since the Vienna Congress—namely, (1) the Treaty of London, 1841,
between Great Britain, Austria, France, Prussia, and Russia; (2) the General Act of the
Congo Conference of Berlin, 1885, whose article 9 deals with the slave trade; (3) the
General Act of the anti-slavery Conference of Brussels, 1890, which is signed by Great
Britain, Austria-Hungary, Belgium, the Congo Free State, Denmark, France, (see,
however, below, § 517), Germany, Holland, Italy, Luxemburg, Persia, Portugal, Russia,
Spain, Sweden, Norway, the United States, Turkey, and Zanzibar. See Queneuil, "De la
traite des noirs et de l'esclavage" (1907).
[609]See above, § 137.
[610]The reader may think of the sad position of the Jews within the Russian Empire.
The treatment of the native Jews in Roumania, although the Powers have, according to
 the spirit of article 44 of the Treaty of Berlin of 1878, a right of intervention, shows even
more clearly that the Law of Nations does not guarantee what are called rights of
mankind. See below, § 312.

II
NATIONALITY

Vattel, I. §§ 220-226—Hall, §§ 66 and 87—Westlake, I. pp. 213, 231-233—Halleck, I.

p. 401—Taylor, §§ 172-178—Moore, III. §§ 372-376—Bluntschli, §§ 364-380—
Stoerk in Holtzendorff, II. pp. 630-650—Gareis, § 54—Liszt, § 11—Ullmann, § 108
—Bonfils, Nos. 433-454—Despagnet, Nos. 329-333—Pradier-Fodéré, III. No. 1645
—Rivier, I. p. 303—Nys, II. pp. 214-220, 229-237—Calvo, II. §§ 539-540—Fiore, I.
Nos. 644-658, 684-717, and Code, Nos. 638-641—Martens, I. §§ 85-87—Hall,
"Foreign Powers and Jurisdiction" (1894), § 14—Cogordan, "La nationalité au point
de vue des rapports internationaux" (2nd ed. 1890)—Gargas in Z.V. V. (1911), pp.
278-316 and....

Conception of Nationality.
§ 293. Nationality of an individual is his quality of being a subject
of a certain State and therefore its citizen. It is not for International
but for Municipal Law to determine who is and who is not to be
considered a subject. And therefore it matters not, as far as the Law
of Nations is concerned, that Municipal Laws may distinguish
between different kinds of subjects—for instance, those who enjoy
full political rights and are on that account named citizens, and those
who are less favoured and are on that account not named citizens.
Nor does it matter that according to the Municipal Laws a person
may be a subject of a part of a State, for instance of a colony, but
not a subject of the mother-country, provided only such person
appears as a subject of the mother-country as far as the latter's
international relations are concerned. Thus, a person naturalised in a
British Colony is for all international purposes a British subject,
although he may not have the rights of a British subject within the
United Kingdom itself.[611] For all international purposes, all
distinctions made by Municipal Laws between subjects and citizens
and between different kinds of subjects have neither theoretical nor
practical value, and the terms "subject" and "citizen" are, therefore,
synonymously made use of in the theory and practice of
International Law.
[611] See below, § 307, and Hall, "Foreign Powers and Jurisdiction," § 20, who quotes,
however, a decision of the French Cour de Cassation according to which naturalisation in
a British Colony does not constitute a real naturalisation. But this decision is based on
the Code Civil of France and has nothing to do with the Law of Nations. See also
Westlake, I. pp. 231-233.
But it must be emphasised that nationality as citizenship of a
certain State must not be confounded with nationality as
membership of a certain nation in the sense of a race. Thus, all
Englishmen, Scotchmen, and Irishmen are, despite their different
nationality as regards their race, of British nationality as regards
their citizenship. Thus, further, although all Polish individuals are of
Polish nationality qua race, they have been, since the partition of
Poland at the end of the eighteenth century between Russia, Austria,
and Prussia, either of Russian, Austrian, or German nationality qua
citizenship.

Function of Nationality.
§ 294. It will be remembered that nationality is the link between
individuals and the benefits of the Law of Nations.[612] This function
of nationality becomes apparent with regard to individuals abroad, or
property abroad of individuals who themselves are within the
territory of their home State. Through one particular right and one
particular duty of every State towards all other States this function
of nationality becomes most conspicuous. The right is that of
protection over its citizens abroad which every State holds and
occasionally vigorously exercises towards other States; it will be
discussed in detail below, § 319. The duty, on the other hand, is that
of receiving on its territory such citizens as are not allowed to
remain[613] on the territory of other States. Since no State is obliged
by the Law of Nations to allow foreigners to remain within its
boundaries, it may, for many reasons, happen that certain
individuals are expelled from all foreign countries. The home State of
those expelled cannot refuse to receive them on the home territory,
the expelling States having a claim on the home State that the latter
do receive the expelled individuals.[614]
 [612] See above, § 291.
[613] See below, § 326.
[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.

§ 296. As emigration comprises the voluntary removal of an
individual from his home State with the intention of residing abroad,
but not necessarily with the intention of renouncing his nationality, it
is obvious that emigrants may well retain their nationality.
Emigration is in fact entirely a matter of internal legislation of the
different States. Every State can fix for itself the conditions under
which emigrants lose or retain their nationality, as it can also prohibit
emigration altogether, or can at any moment request those who
have emigrated to return to their former home, provided the
emigrants have retained their nationality of birth. And it must be
specially emphasised that the Law of Nations does not and cannot
grant a right of emigration to every individual, although it is
frequently maintained that it is a "natural" right of every individual to
emigrate from his own State.[617]
[617] Attention ought to be drawn to the fact that, to ensure the protection of the
interests of emigrants and immigrants from the moral, hygienic, and economic view, the
Institute of International Law, at its meeting at Copenhagen in 1897, adopted a body of
fourteen principles concerning emigration under the heading "Vœux relatifs à la matière
de l'émigration"; see Annuaire, XVI. (1897), p. 276. See also Gargas in Z.V. V. (1911),
pp. 278-316.

III
MODES OF ACQUIRING AND LOSING NATIONALITY

Vattel, I. §§ 212-219—Hall, §§ 67-72—Westlake, I. pp. 213-220—Lawrence, §§ 94-95

—Halleck, I. pp. 402-418—Moore, III. §§ 372-473—Taylor, §§ 176-183—Walker, §
19—Bluntschli, §§ 364-373—Hartmann, § 81—Heffter, § 59—Stoerk in Holtzendorff,
II. pp. 592-630—Gareis, § 55—Liszt, § 11—Ullmann, §§ 110 and 112—Bonfils, Nos.
417-432—Despagnet, Nos. 318-327—Pradier-Fodéré, III. Nos. 1646-1691—Rivier,
I. pp. 303-306—Calvo, II. §§ 541-654, VI. §§ 92-117—Martens, II. §§ 44-48—
Fiore, Code, Nos. 660-669—Foote, "Private International Jurisprudence" (3rd ed.
1904), pp. 1-52—Dicey, "Conflict of Laws" (1896), pp. 173-204—Martitz, "Das
Recht der Staatsangehörigkeit im internationalen Verkehr" (1885)—Cogordan, "La
nationalité, &c" (2nd ed. 1890), pp. 21-116, 317-400—Lapradelle, "De la
nationalité d'origine" (1893)—Berney, "La nationalité à l'Institut de Droit
International" (1897)—Bisocchi, "Acquisto e perdita della Nazionalità, &c." (1907)—
Sieber, "Das Staatsbürgerrecht in internationalem Verkehr," 2 vols. (1907)—Lehr,
"La nationalité dans les principaux états du globe" (1909), and in R.I. 2nd Ser. X.
(1908), pp. 285, 401, and 525.
In 1893 the British Government addressed a circular to its
representatives abroad requesting them to send in a report
concerning the laws relating to nationality and naturalisation in force
in the respective foreign countries. These reports have been
collected and presented to Parliament. They are printed in Martens,
N.R.G. 2nd Ser. XIX. pp. 515-760.
 Five Modes of Acquisition of Nationality.
§ 297. Although it is for Municipal Law to determine who is and
who is not a subject of a State, it is nevertheless of interest for the
theory of the Law of Nations to ascertain how nationality can be
acquired according to the Municipal Law of the different States. The
reason of the thing presents five possible modes of acquiring
nationality, and, although no State is obliged to recognise all five,
nevertheless all States practically do recognise them. They are birth,
naturalisation, redintegration, subjugation, and cession.
Acquisition of Nationality by Birth.
§ 298. The first and chief mode of acquiring nationality is by birth,
for the acquisition of nationality by another mode is exceptional only,
since the vast majority of mankind acquires nationality by birth and
does not change it afterwards. But no uniform rules exist according
to the Municipal Law of the different States concerning this matter.
Some States, as Germany and Austria, have adopted the rule that
descent alone is the decisive factor,[618] so that a child born of their
subjects becomes ipso facto by birth their subject likewise, be the
child born at home or abroad. According to this rule, illegitimate
children acquire the nationality of their mother. Other States, such as
Argentina, have adopted the rule that the territory on which birth
occurs is exclusively the decisive factor.[619] According to this rule
every child born on the territory of such State, whether the parents
be citizens or aliens, becomes a subject of such State, whereas a
child born abroad is foreign, although the parents may be subjects.
Again, other States, as Great Britain[620] and the United States, have
adopted a mixed principle, since, according to their Municipal Law,
not only children of their subjects born at home or abroad become
their subjects, but also such children of alien parents as are born on
their territory.
[618] Jus sanguinis.
[619] Jus soli.
[620] See details concerning British law on this point in Hall, "Foreign Powers and
Jurisdiction" (1894), § 14.

Acquisition of Nationality through Naturalisation.

 § 299. The most important mode of acquiring nationality besides
birth is that of naturalisation in the wider sense of the term. Through
naturalisation an alien by birth acquires the nationality of the
naturalising State. According to the Municipal Law of the different
States naturalisation may take place through six different acts—
namely, marriage, legitimation, option, acquisition of domicile,
appointment as Government official, grant on application. Thus,
according to the Municipal Law of most States, an alien female
marrying a subject of such State becomes thereby ipso facto
naturalised. Thus, further, according to the Municipal Law of several
States, an illegitimate child born of an alien mother, and therefore an
alien himself, becomes ipso facto naturalised through the father
marrying the mother and thereby legitimating the child.[621] Thus,
thirdly, according to the Municipal Law of some States, which declare
children of foreign parents born on their territory to be aliens, such
children, if, after having come of age, they make a declaration that
they intend to be subjects of the country of their birth, become ipso
facto by such option naturalised. Again, fourthly, some States, such
as Venezuela, let an alien become naturalised ipso facto by his
taking his domicile[622] on their territory. Some States, fifthly, let an
alien become naturalised ipso facto on appointment as a
Government official. And, lastly, in all States naturalisation may be
procured through a direct act on the part of the State granting
nationality to an alien who has applied for it. This last kind of
naturalisation is naturalisation in the narrower sense of the term; it
is the most important for the Law of Nations, and, whenever one
speaks of naturalisation pure and simple, such naturalisation through
direct grant on application is meant; it will be discussed in detail
below, §§ 303-307.
[621] English law has not adopted this rule.
[622] It is doubtful (see Hall, § 64) whether the home State of such individuals
naturalised against their will must submit to this ipso facto naturalisation. See above, §
125, where the rule has been stated that in consideration of the personal supremacy of
the home State over its citizens abroad no State can naturalise foreigners against their
will.

Acquisition of Nationality through Redintegration.

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