ONLY a few years ago a distinguished Senator wrote to the Secretary of State saying that he did not understand how it was possible for an individual to have the nationality of two countries at the same time. The letter was surprising only because of its source. Probably the percentage of people who have heard of the problem of dual nationality is a very small one. Yet it is true that many individuals at birth acquire the nationality of two countries, sometimes even of three, and it is possible to imagine a state of facts where the number would be four. It is also practicable for an individual having one nationality to acquire another without losing the first.

For example, a person born on United States soil is generally an American citizen, a "native-born citizen" as we say. Various other countries have the same rule. Under our law the child of American parents born abroad is an American citizen. Accordingly if a child is born to an American couple while they are visiting or residing in a country which, like our own, has the rule of jus soli, such a child has the nationality of that country and also of the United States. Similarly, if a French couple have a child born to them while they are visiting the United States that child is French under French law and American under our law.

Thus the fact of dual nationality at birth has its source in the nationality laws of various countries and not in international law; and furthermore the fact of dual nationality does not wholly arise, as is sometimes thought, from conflicting or divergent national laws. Clearly, if every country in the world had the same law on the subject as does the United States, there would still be very many cases of dual nationality at birth.

Again, it is quite possible for a child to be born without any nationality; and it is also possible for a person to lose his nationality without getting that of any other country and thus become what we call "stateless." For example, under our law, an American citizen who takes an oath of allegiance to a foreign country loses his American nationality. Accordingly an American citizen who enlists in a foreign army and takes an oath of allegiance without acquiring the nationality of the other country becomes stateless. There are many stateless persons. One fairly large class is composed of those wives of American citizens who on marriage lost their prior nationality because of the foreign law and who for one reason or another have not as yet acquired the nationality of this country.

Statelessness is generally recognized as an evil, but it is mostly an evil for the individual. A stateless person may find it very difficult or even impossible to get a passport or some equivalent document. But statelessness does not cause much trouble to foreign offices. In the very nature of things no government is obligated to afford diplomatic protection to a stateless person. Actually, if it happens that the stateless person is a highly undesirable individual and liable to deportation under the law, it may not be easy to find a way of carrying out the law in his case, for other countries may well regard him as undesirable too and refuse to admit him.

But problems of dual nationality cause a great deal of international discussion, as might be expected. When a person is a national of two countries, the law of each considers that his allegiance involves certain duties, and each country may consider that he is under its diplomatic protection if necessary. Thus an individual may be in one of his two countries and make some appeal to the government of the other; or he may be in a third country and find himself in difficulties with the government there. In any such case diplomatic correspondence is likely.

All the ramifications of the subject cannot be discussed here, but there is involved in the matter of nationality one major and well-established policy of the United States, namely our policy in favor of the right of expatriation. For a century and a half, the population of the United States has been very largely built up by immigrants from other countries. It has naturally been our policy to make citizens of these arrivals. No other policy was desirable or possible. In almost every country nationality may be acquired by naturalization, but the United States has naturalized more individuals and still does naturalize more individuals than all the other countries in the world put together.

According to our law a naturalized citizen must renounce his former allegiance; some other countries recognize this renunciation here, but others do not. If the naturalized American remains in our country no problem is apt to arise, but if he gets a passport (as he may) and goes back to his old home and is told that he must serve a year or two in the army there, the Department of State is pretty sure to have some news about him.

Congress has been very emphatic in the matter. The declaration of policy which was formulated in a statute of 1868 and which is still in force says among other things that: ". . . any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic."

Nationality was one of the three subjects considered at The Hague by the recent Conference for the Codification of International Law. However extensive or however limited a meaning be given to the word "codification" it is obvious that any international act on the subject, whether it be called a code or treaty or convention or anything else, must be almost wholly a negotiated agreement. Only in a very minor degree would it be possible for any one to say that the terms of such a document were drawn from international law. They would on the contrary be an agreement for the future as to national laws and national policies.

And furthermore, while in respect of some of the perplexities of nationality it is possible to find a middle ground of compromise, this is not the case in so far as some national policies are concerned; and one of these, I think, is our own policy regarding the right of expatriation.

It is our policy that, when naturalization is granted in good faith to an individual here after five years of residence and the other usual requirements of the statute, the naturalized citizen owes allegiance to this Government and no other. Some countries, however, insist that their nationals when naturalized are still under the obligation of the original allegiance. The answer to the question presented must in any given case be either yes or no and nothing in between. It is clearly impossible for the policy of the United States in this regard to change. As a practical matter everyone knows that Congress would not even consider such a change and there is no reason why such a change should be considered.

The discussions on nationality at The Hague were bound to involve and did involve this matter of expatriation and the nationality of naturalized citizens. As was to be expected, various countries found it impossible to accede to the United States' position, although, in some cases at least, the reasons arose less from considerations as to the effect of naturalization in this country than to its effect elsewhere. At a comparatively early stage of the proceedings our delegation formally declared that they would not "sign any convention in which there is any clause whatever which could be construed to qualify or limit this declared policy of the United States of America regarding the right of expatriation." There are such clauses in the convention that was drawn up by the Conference, and the United States did not sign it.

Another problem of nationality is the problem of the nationality of married women. The discussions on this point, of course, attracted more attention and received more publicity here than all the other proceedings of The Hague Conference taken together. The legislative policy of the United States has tended toward the abolition in matters of nationality of any distinction based on sex. The Cable Act of 1922 went a long way in this regard and legislation during the present Congress will probably go still farther. There is even pending a proposal formally to declare sex equality in matters of nationality as the policy of the United States. A general formula in the same sense was brought forward at The Hague Conference by the delegation of Chile.

Of course, no one ever seriously supposed that such a formula would be accepted by the forty-seven countries which sent delegates to The Hague Conference. A majority, probably quite a large majority, of the countries were opposed to it. Any question of the rights of married women in a particular country is not only political but social, economic and religious. In many countries women do not vote. In sharp contrast with views prevalent here, various governments believe that the unity of the family is part of the foundation of national life; and in some countries, as various speakers at The Hague were careful to point out, there is no such thing as divorce. To some delegates, indeed, the very idea that a man and his wife could or should be of different nationalities was not only unacceptable but abhorrent.

Under such conditions it must be considered that the Conference went pretty far in recommending to the governments "the study of the question whether it would not be possible to introduce into their law the principle of equality of the sexes in matters of nationality, taking particularly into consideration the interests of the children." The language quoted was substantially that proposed by the American delegation.

Something should be said about this question of the nationality of children, which is involved in the application of the principle of sex equality in nationality. The nationality of children is far from unimportant. Children who travel have to have passports. In various countries boys of eighteen are liable to military service and indeed eighteen was our age under the draft. We do not regard minors as legally capable of making a choice as to nationality, although to some extent we permit their parents to choose for them. Under our law generally the children of an American father who are born abroad are American citizens. When both parents are of the same nationality, there is no difficulty so far as the principle of the equality of sex is concerned. But when, as is now frequently the case, the two parents are nationals of different countries, an extension of the statute so as to include either parent would bring some very curious results, and if other countries followed with similar laws the consequences would seem to us still more curious.

For example, suppose (a most improbable supposition) that Italy had such a statute. Then suppose that an Italian girl marries an American and the couple make their home in Indiana. The wife for some reason does not choose to give up her Italian nationality which under the supposed Italian statute she may retain. Then her children born in Indiana, native-born American citizens, eligible for the Presidency, would also be Italian subjects. Such a possibility, however improbable, causes one to think, and is also an illustration of the perplexity of the whole question of nationality. Dual nationality and statelessness are considered by almost everyone to be evils which should so far as possible be done away with, but changes in the law of nationality which seem reasonable at first glance may easily increase the number of cases of dual nationality instead of reducing them.

In our law we limit very strictly the acquisition of American nationality by children born abroad to those whose fathers have resided in the United States. It is possible to visualize such acquisition of nationality by descent as continuing from generation to generation. Indeed some countries do, but the consequences may become fantastic. A story was told at The Hague of a young man who was required to serve in the army of a certain country which he visited, because his family tree had started in that country and despite the fact that none of his ancestors for a thousand years back had lived there.

It is easier to picture the difficulties, national and international, which surround this question of nationality than it is to offer a solution of them all; but the debates and documents of The Hague Conference will be very helpful in the progress toward a solution. The nationality laws of various countries are to a considerable extent based upon different social and economic conditions. If The Hague Conference had merely led to a clearer understanding of the problem it would have been well worth while; but it adopted a convention which has in it features of real value, and while the United States did not sign that treaty, the objections of our Government to it were to some extent based on the fact that it does not go sufficiently far. It may well prove to be the beginning of a more progressive agreement; and it should also be mentioned that in a separate document, called a protocol, the Conference drew up clauses quite in line with our policy regarding liability to military service; the question of signing this agreement is awaiting consideration by our Government.

For some time past there has been a great deal of sentiment in the United States in favor of the codification of international law generally. Those who have discussed the matter pro and con have not always been in accord as to precisely what was intended by such codification, but the idea of the statement or restatement of international law on certain subjects or even on all subjects is one which has had a great deal of appeal here. This sort of codification has some peculiar difficulties. A legislature may make a code and change it next year, as indeed our legislatures often do. Any international code, however, must be reached by international agreement, for there is no legislature to write or to approve it. It must be subject to change by a later agreement, for any code must have its chance of growth or improvement, however limited its field may be; and the more extensive the field attempted internationally, the more difficult and the more slow must be the reaching of a result.

At The Hague Conference, which lasted for a month, three subjects were on the agenda, after very elaborate preparation. One of these, as has been mentioned, was nationality; the others were territorial waters, and the responsibility of states for damage caused in their territory to the person or property of foreigners.

I myself think that the program was too extensive. There are physical difficulties in the way of considering three such subjects at one conference. Like almost every other kind of a gathering, an international conference works in committees, and three committee meetings a day are too many even for delegations of several members. There is almost no time left for the necessary discussions and consideration outside of the meetings proper. Indeed each one of the three subjects considered at The Hague is of itself of sufficient importance for a conference devoted to it alone.

For any coastal state a general agreement regarding territorial waters, their extent and the régime relating to them is a major problem. To the United States the problem involves the sea frontier of thousands of miles along the Atlantic, the Pacific and the Gulf of Mexico, to say nothing of Alaska, the Philippines and our other possessions. Furthermore, the problem has a dual aspect, for any general agreement regarding the régime of territorial waters involves also the treatment of our ships in coastal waters the world over. Beyond all that, in any such agreement one must think of the question of neutrality in time of war; for even if the agreement is limited to time of peace, it would still define the sea frontier which would be constant.

The position of the United States regarding the extent of the territorial sea is well known. In various recent treaties this Government has declared its intention to support the three-mile limit and, indeed, that has been our position from a very early date in our history. At The Hague quite a number of countries supported proposals for a different width of the zone. Norway and Sweden maintained their special position in favor of four miles and quite a number of countries, including most of those on the Mediterranean, declared for six miles. There is, however, a good deal more to the question of the width of the zone than its extent stated in terms of nautical miles. The rights of the coastal states on the one hand and the right of free navigation on the other are not determined even when one has drawn on a chart a line running along the coast and has had it agreed upon as the territorial limit. Admittedly there are some things which the coastal state refrains generally from doing in the territorial sea regardless of the law on the matter; and admittedly there are some things which the coastal state customarily does and even may do legally outside the territorial zone. The most common instance, perhaps, is when a fishing boat remains outside the limit but sends its small boats inside. The right in such a case to enforce the law against fishing is not limited to the small boats, but extends to the ship proper.

At The Hague the different views as to the extent of the territorial sea and as to the rights which might be exercised outside it either in a contiguous zone, as the French Government proposed, or otherwise, prevented the reaching of a general agreement. No convention was drawn up, although certain clauses were drafted as a basis for a later agreement for the régime of the territorial sea without attempting to state its extent.

But it would be difficult, I think, to overstate the value of the discussions of The Hague Conference regarding territorial waters. Particularly is this true in regard to the technical and geographical questions considered, which were very numerous. The committees included naval officers and scientists of distinction of Europe, Asia and America, and the meetings at times were somewhat like those held in a university, as the speakers were often in the habit of illustrating their remarks on a blackboard. Geography at times seemed more important than law. Is an isolated rock, although above water at any tide, to be regarded as an island? How about a long sand bank which may be covered at high tide but which for some hours of the day may be a perfect landing place for airplanes? If separate rules be drawn up for islands and straits, which set applies in the case of an island in a strait or in the case of a strait between two islands? Is there any different rule for islands in groups and if so just what is a group of islands, how many of them, how near each other? Can there be a single definition of low water mark, when as a matter of fact it is differently charted in different parts of the world -- on the Atlantic and Pacific coasts of our own country, for example?

These and many other questions were discussed by men who knew about them because they had sailed over the waters about which they talked, and who carried on their discussions from the point of view of mariners. Certainly on some of these technical points there was scientific progress; and perhaps it is not too much to say it was generally recognized that one of the real contributions was that proposed by the experts of the United States in a formula for defining a bay so as to distinguish it mathematically and geographically from a mere indentation or sinuosity of the coast line.

The third question which the Conference discussed was that of the responsibility of states. And here, perhaps, the political difficulties were the greatest of all. Curiously enough, it is a question upon which there is already an abundance of international law. There have been hundreds of decisions of international tribunals as to the responsibility of states towards foreigners in particular circumstances. Many writers have learnedly discussed the subject and there are thousands of diplomatic notes upon it. Still, at The Hague there turned out to be no possibility of a convention and no possibility of even a draft. No clauses at all were accepted in the committee. After the preliminary discussions some clauses were tentatively agreed upon in committee, but when it became obvious that they were unacceptable to many of the states represented at the Conference they were abandoned.

The two points of view that were represented have a political and economic background. Most countries, including all the Great Powers represented at the Conference and various others, took the position that there is an international standard of responsibility toward aliens, a standard laid down by international law and in the main capable of fairly precise statement. Another group of countries, including those of Latin America, the Little Entente, China and some others, do not admit this or at least only with such qualifications as would, in the other view, amount to a negation of the principle. Indeed, the extreme opinion was brought forward that a state has no duty toward a foreigner except its practice toward a national and that accordingly an alien who enters a country takes the same chances regarding the political, financial and social conditions of the land as he does about the weather. He is supposed to know about them in advance and if he does not like them, just as if he does not like the climate, he might better stay away. So the question of responsibility of states was left by the Conference where it now is -- in the field of existing international law according to the views of many countries, and to the law of the future according to the views of the others.

The program of the Conference at The Hague was an ambitious one. The results reached were less than those expected in many quarters and as a not unnatural consequence there has been a certain amount of disappointment. It may none the less be said that the Conference was of very real value and that on detailed examination the results reached will be found to be of great importance for the future. The foundation has been laid for the continuance of the movement for the codification of international law. This Conference at The Hague will be known in history as the first codification conference.

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  • DAVID HUNTER MILLER, Editor of Treaties in the Department of State; Chairman of the American delegation at the recent Conference for the Codification of International Law
  • More By David Hunter Miller