Boll, Alfred --- "Nationality and Obligations of Loyalty in International and Municpal Law" [2005] AUYrBkIntLaw 4; (2005) 24 Australian Year Book of International Law 37
[∗] SJD, University of Sydney, Faculty of Law, 2004. The author was Professor Shearer’s doctoral student from 1999-2003.
The present article is taken from the author’s thesis, ‘Multiple Nationality: The context and significance of state practice in international law’, University of Sydney, 2003. The views expressed are the author’s and do not necessarily represent those of the United States Department of State, where the author is employed as a Foreign Service Officer.
[1] Ivan A Shearer, ‘Non-Extradition of Nationals’ (1966) Adelaide Law Review 273.
[2] Ivan A Shearer, ‘Jurisdiction’ in Sam Blay, Ryszard Piotrowicz and B Martin Tsamenyi (eds), Public International Law. An Australian Perspective (1997) 161-92.
[3] Not to be confused with citizenship, which may be defined as possession of the highest category of political rights/duties in municipal law. ‘Nationality’ here refers to the legal status of, or relationship between, an individual and the state, which regards him or her as its national, giving rise to personal jurisdiction over the individual, and standing vis-à-vis other states under international law. It should be distinguished from ‘nationality‘ meaning belonging to an ethnic group, sometimes called a ‘race’ or ‘nation’, or a legal subclass used to group persons in the municipal law of certain states, usually according to ethnic background.
[4] Peter Weis, Nationality and Statelessness in International Law (1979) 32.
[5] Ivan A Shearer, Starke’s International Law (11th ed, 1994) 309.
[6] Eg the Argentine military government that ruled between 1976 and 1983 reversed the Argentine policy, in effect since 1853, of favouring the naturalisation of foreigners, and for the first time instituted grounds for the revocation of the Argentine nationality of the native-born, namely treason, and naturalisation abroad. Numerous grounds for naturalised citizens to be denaturalised were established. Dionisio Petriella, El Convenio de Doble Ciudadanía entre la Argentina e Italia (vol 30, 1988) 15-16. These provisions and their specific effects were reversed by the subsequent civilian government.
[7] Maximilian Koessler, ‘‘‘Subject,’ ‘Citizen,’ ‘National,’ and ‘Permanent Allegiance’’ (1947) 56 Yale Law Journal 58.
[8] Clive Parry, John P Grant, Anthony Parry, and Arthur D Watts (eds), Encyclopaedic Dictionary of International Law (1986).
[9] The idea of an obligation of loyalty attaching to the national’s relationship to his or her state seems to have its roots in the early days of modern international law and the establishment of nation states. The feudal relationship of allegiance, expanded on below, which incorporated rights and duties, is directly relevant in this sense. A difference can nonetheless be detected between the feudal norm and the ‘national’ one; whereas the former was contractual, the latter is emotional. Vattel, writing in terms of the post-feudal nation-state, says ‘If every man is bound in conscience to love his country sincerely, and to procure its welfare as far as lies in his power, it is a shameful and detestable crime to do an injury to one’s country. He who becomes guilty of it violates the most sacred of compacts and exhibits a base ingratitude; he disgraces himself by the blackest perfidy, since he abuses the confidence of his fellow-citizens and treats as enemies those who had reason to expect from him only his help and his services. We find traitors to their country only among men who are moved solely by base motives, who look to their own interest first, and whose hearts are incapable of any sentiment of affection for others. Therefore they are justly despised by all the world as the most infamous of all criminals.’ Emmerich de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns (transl Charles G Fenwick) (1758) (vol 3, 1916) 52. ‘That we have some special obligation to our country is a view not confined to rabid nationalists but almost universally held. This appears particularly clearly in the case of war.’ Alfred Cyril Ewing, The Individual, the State, and World Government (1947) 213. Gans points out that the relationship between citizen and country casts an ‘intimacy’ over even the duty to obey the law in one’s country, as opposed to the laws of other states. Chaim Gans, Philosophical Anarchism and Political Disobedience (1992) 8. But Simmons writing on political obligation, concludes, ‘citizenship does not free a man from the burdens of moral reasoning. … Most of us have no special obligation of obedience. But second, even if we had such an obligation, the citizen’s job would not be to blithely discharge it in his haste to avoid the responsibility of weighing it against competing moral claims on his action. For surely a nation composed of such “dutiful citizens” would be the cruellest sort of trap for the poor, the oppressed, and the alienated.’ A John Simmons, Moral Principles and Political Obligations (1979) 200-01. The question of loyalty is thus directly related to questions of political obligation, moral obligation, and obedience.
[10] Sue v Hill and Another [1999] HCA 30; (1999) 163 ALR 648, 677.
[11] In the context of the succession to the throne of Sachse-Coburg-Gotha in 1893 by Alfred, Duke of Edinburgh and of Sachse-Coburg-Gotha, Queen Victoria’s second son, Neubecker outlines the political and legal controversy in Germany and Englandat the time, over whether a reigning German Sovereign might also be considered another state’s subject. He concludes that this could never be the case due to the position of Sovereign as such (author’s transl): ‘Duke Alfred is a German Sovereign and as such cannot be the subject of a foreign power, of another State.’ Arguing that this position automatically terminated Alfred’s British nationality, Neubecker nevertheless has to deal with the fact that the United Kingdom still seemed to regard the Prince as its national. He argues that even if England did give the Prince certain rights, that rights as such do not create a subject, only duties, and the Prince had none of the latter, as a German Sovereign. Friedrich Karl Neubecker, ‘Thronfolgerecht und fremde Staatsangehörigkeit. Ist die Zugehörigkeit eines regierenden deutschen Fürsten zu einem fremden Staatsverband vereinbar mit den Normen des Staats- und Völkerrechts?’ Dissertation presented at the Königliche Friedrich-Wilhelms-Universiatät zu Berlin, Juristische Fakultät, Berlin, 1897, 14-15. This is an exclusive view of the multiple nationality that the Prince probably did possess in terms of the two countries’ municipal laws. In regard to the Austrian nationality of the Prince of Thurn and Taxis, see Hans Kelsen, Beiträge zur Kritik des Rechtsgutachtens über die Frage der Österreichischen Staatsbürgerschaft des Fürsten von Thurn und Taxis (1924).
[12] Nottebohm Case (Second Phase) [1955] ICJ Rep 4, 23. Randelzhofer does not consider that the ICJ in fact intended this to be a general definition of nationality, and says it is limited to the issue of ‘diplomatic protection in the particular case of conferment of nationality by naturalization’. Albrecht Randelzhofer, ‘Nationality’ in Rudolf Bernhardt and Max Planck Institute for Comparative Public Law and International Law (eds), Encyclopedia of Public International Law (vol 8, 1985) 416-24, 421. Many authors do, however, cite this as a general definition.
[13] Nottebohm Case (Second Phase) [1955] ICJ Rep 4, 20.
[14] Ibid.
[15] See the spirited public response that seeks to explain the Church’s doctrine of papal infallibility in theological terms, as opposed to political, repudiating Gladstone’s stand. John Henry Newman, A Letter Addressed to His Grace the Duke of Norfolk on Occasion of Mr. Gladstone’s Recent Expostulation (1875).
[16] Chip Le Grand, ‘Pragmatism takes hold in nationality stakes. Adopting a new country is a common occurrence in world tennis’, The Weekend Australian (20-21 January 2001) Sports 34.
[17] Nissim Bar-Yaacov, Dual Nationality (1961) 1. Bar-Yaacov may well have been influenced by the ICJ: ‘Naturalization is not a matter to be taken lightly. To seek and to obtain it is not something that happens frequently in the life of a human being. It involves his breaking a bond of allegiance and his establishment of a new bond of allegiance.’ Nottebohm Case above 13. Under the municipal laws of many countries today, naturalisation does in fact not involve loss of nationality, or in that sense the breaking of a bond of allegiance.
[18] Clive Parry et al (eds), above n 8, 16-17. See also Clive Parry (ed), A British Digest of International Law (vol 5, 1965) 48. De Burlet labels the United Kingdom the exception in terms of adherence to allegiance as a source of nationality into modern times, indicating that the idea had ceased to be valid in most European states with the end of the absolute monarchies. ‘C’est à la suite d’une assez longue évolution que la notion féodale d’allégeance qui désignait primitivement la foi absolue et inconditionelle due au suzerain par le vassal et qui impliquait protection du vassal par le suzerain, est devenue une institution permettant de départager l’étranger du non’étranger. Il fallut pour cela que l’allégeance en arrive à ne plus désigner que la foi due au Roi par ses sujets, ce qui ne fut possible qu’à partir du moment où la féodalité ayant englobé tous les hommes dans une hiérarchie de vassaux et de suzerains, le Roi se trouva placé au sommet de cette hiérarchie avec cette conséquence qu’il devenait automatiquement le seul bénéficiaire de la féauté lige ou foi inconditionelle’. Jacques de Burlet, Nationalité des Personnes Physiques et Décolonisation (1975) 17 (author’s transl) ‘Only after quite a long evolution did the feudal notion of allegiance that originally designated the absolute and unconditional loyalty due the lord by the vassal, and implied protection of the vassal by the lord, become an institution allowing for the separation of foreigner from non-foreigner. For this to happen, the meaning of allegiance had to evolve to mean only the loyalty due the king by his subjects. This only became possible when the feudal system had encompassed all persons in a hierarchy of vassals and lords, and the king found himself placed at the summit of this hierarchy. As a consequence, he automatically became the only beneficiary of the vassal’s fealty, or unconditional loyalty.’ The feudal roots of the term ‘allegiance’ are illustrated by the lack of ideas of reciprocity underpinning obligation in Roman law. Yet obligation was clearly a consequence of membership in, or relationship to, the state, albeit not necessarily citizenship as such. See generally on treason and crimes against the state in Rome, O F Robinson, The Criminal Law of Ancient Rome (1995) 74-89.
[19] ‘Treason, being in essence a breach of allegiance to the government, can be committed only by a person who owes either perpetual or temporary allegiance. The term allegiance is not synonymous with loyalty but refers to the duty of obedience which one owes to a sovereign power within whose jurisdiction he finds himself in return for the protection which he receives from that sovereign. Allegiance is owed to the United States not only by its citizens, whether citizenship was acquired by birth or naturalization, but also by aliens temporarily present within the country. The difference between the allegiance owed by citizens and that owed by aliens is that the duty of a citizen exists wherever he may be, while the duty of an alien exists only while he is physically present within the United States.’ Charles E Torcia, Wharton’s Criminal Law (vol 4, 1981) 499-500. Used in this sense, allegiance gives rise to a right to exercise jurisdiction territorially, and generally over nationals. This definition of ‘treason’ however, does not match that of many countries’ laws, an issue discussed below.
[21] ‘Deprived of one of the essential ingredients, which went into its feudal meaning, namely of the subject’s right to claim his lord’s protection, and also minus the whole general background of the one-time feudal society, ‘permanent allegiance,’ referred to in a modern definition of nationality, cannot be more than a synonym for “nationality”.’ Above n 7, 69.
[22] De Burlet even links the feudal relationship of ‘allegiance’ to the notion of effective nationality. ‘Il est possible que la notion de nationalité effective trouve sa source dans la réalité de l’allégeance, cette dernière ayant indéniablement influencé la notion moderne de nationalité’. De Burlet, above n 18, 19 (author’s transl) ‘It is possible that the notion of effective nationality originated in the reality of [feudal] allegiance, as the latter undeniably influenced the modern notion of nationality.’
[24] ‘Most people have a working knowledge of the meaning of “nationality”, but even scholars are at a loss to explain “allegiance”. Characteristically, the Harvard Research on Nationality suggests defining nationality as “the status of a natural person who is attached to the state by the tie of allegiance”, and then muddies the picture by saying “No attempt is made in this draft to define the meaning of allegiance. It may be observed, however, that the “tie of allegiance” is a term in general use to denote the sum of the obligations of a natural person to the state to which he belongs. The draft itself does not spell out these obligations, since they are quite different in different societies.’” Koessler, above n 7, 69.
[25] Ibid. An example of mixing of these ideas is found in a United States government statement on dual nationality. ‘The country where a dual national is located generally has a stronger claim to that person’s allegiance. However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.’ United States Department of State, Dual Nationality (2004) <http://travel.state.gov/law/dualnationality.html> . The meaning of ‘allegiance’ is unclear from this statement. The first sentence seems to use ‘allegiance’ in the context of loyalty or obligation, whereas the next sentences seem to describe the status/relationship of nationality at international law. By injecting what seems to be an emotional notion that presence implies a stronger obligation of loyalty, the statement arguably does not reflect that United States laws place obligations on all United States citizens/nationals without distinction based on multiple nationality. This statement seems largely unchanged from a State Department administrative ruling referred to by the United States Supreme Court in Tomoya Kawakita v United States [1952] USSC 85; (1952) 343 US 717, 734. The United States Supreme Court seems to have approved of the view adopted in the government statement on dual nationality, although the Court’s holding can be distinguished as it seems to recognise duties not based on foreign nationality as such, but on residence and general obligation, which might apply to any person: ‘That is a far cry from a ruling that a citizen in that position owes no allegiance to the United States. Of course, an American citizen who is also a Japanese national living in Japan has obligations to Japan necessitated by his residence there. There might conceivably be cases where the mere non-performance of the acts complained of would be a breach of Japanese law. He may have employment which requires him to perform certain acts. The compulsion may come from the fact that he is drafted for the job or that his conduct is demanded by the laws of Japan. He may be coerced by his employer or supervisor or by the force of circumstances to do things which he has no desire or heart to do. That was one of petitioner’s defences in this case. Such acts – if done voluntarily and wilfully – might be treasonable. But if done under the compulsion of the job or the law or some other influence, those acts would not rise to the gravity of that offence. The trial judge recognized the distinction in his charge when he instructed the jury to acquit petitioner if he did not do the acts willingly or voluntarily “but so acted only because performance of the duties of his employment required him to do so or because of other coercion or compulsion”. In short, petitioner was held accountable by the jury only for performing acts of hostility toward this country which he was not required by Japan to perform.’ Tomoya Kawakita v United States [1952] USSC 85; (1952) 343 US 717, 734.
[26] Defence Security Service (USA), Allegiance Test (1997) <http://www.dss.mil/nf/adr/alleg/allegT.htm> .
[27] Universal Declaration of Human Rights, GA Res 217A (10 December 1948).
[28] International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171.
[29] Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949), 75 UNTS 31 (Geneva Convention I); Convention for the Amelioration of the condition of the Wounded and Sick and Shipwrecked Members of Armed Forces at Sea (12 August 1949), 75 UNTS 85 (Geneva Convention II); Convention Relative to the Treatment of Prisoners of War (12 August 1949), 75 UNTS 135 (Geneva Convention III); Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949), 75 UNTS 287 (Geneva Convention IV); Protocol Additional to the Geneva Conventions (12 August 1949) and Relating to the Protection of Victims of International Armed Conflicts (8 June 1977), 1125 UNTS 3 (Protocol I); Protocol Additional to the Geneva Conventions (12 August 1949) and Relating to the Protection of Victims of Non-International Armed Conflicts (8 June 1977), 1125 UNTS 609 (Protocol II).
[30] See also generally, F Kalshoven, Constraints on the Waging of War (2001) 40-60. This argument is presented below.
[31] Shearer, above n 2, 170-1; Shearer, above n 5, 211. Lawrence, citing other nineteenth-century authors, opposes jurisdiction on both the principle of passive nationality and the security principle, and denies a right of jurisdiction in such cases. He argues that ‘an occasional failure of justice is preferable to putting the subjects of every state at the mercy of the law and administration of its neighbors’. T J Lawrence, The Principles of International Law (3rd ed, 1900) 222. But the security principle has old roots, arguably reflecting an idea expressed by Vattel. ‘A Nation or State has the right to whatever can assist it in warding off a threatening danger, or in keeping at a distance things that might bring about its ruin. The same reasons hold good here as for the right to whatever is necessary for self-preservation. Vattel, above n 9, 14.
[32] Shearer cites United States cases where aliens have been prosecuted under the protective principle in relation to immigration offences, sham marriages and fraudulent concealment of assets abroad. Shearer, above n 5, 211 fn 10. An Australian example of this power is perhaps found in the Passports Act 1938 (Cth) that ‘extends to acts, matters and things outside Australia, and to everyone irrespective of nationality or citizenship’. David Lanham, Cross-Border Criminal Law (1997) 272.
[33] Shearer, above n 2, 170-1.
[34] I Brownlie, Principles of Public International Law (6th ed, 2003) 307. Lanham however, cites cases in relation to acts of nationals abroad, for this principle. Lanham, above n 32, 35-36.
[35] Both Brownlie and Shearer point to the case of Joyce v DPP [1946] AC 347 in which the House of Lords found that an alien could be tried for the crime of treason. But the case does not seem to give rise to a general rule: as the alien in question had been issued with a British passport, and had held himself out as a Briton, the Court found that he thus owed a certain duty of allegiance to the Crown. See Brownlie, above n 34, 307.
[37] It should be noted that ‘treason’ in terms of the Common Law, related to levying war against the sovereign, ‘levying war’ encompassing ‘to use force to prevent the government from the free exercise of any of its lawful powers’, cited in The State v Ratu Timoci Silatolu and Josefa Nata, 26 March 2002, High Court of Fiji, Criminal action no misc HAM 002 (2002), Wilson J (unreported). In the Silatolu Case, the Fijian High Court summarised the law of treason in Fiji, stemming from the law of England, and held that ‘Treason is an offence against the King or Sovereign (His Majesty’s Person) or against the Government, and I think that it may be committed by “any person or persons” whether allegiance is owed or not’. The State v Ratu Timoci Silatolu and Josefa Nata, 19. Thus while it would seem that treason can only be committed by someone owing ‘allegiance’ under the laws of the United States (see above n 19), the Court held that it could be committed by anyone under the laws of England and Fiji. The holding in Silatolu arguably reflects the fact that ‘treason’ as defined by Fijian (or English) law is simply one expression in municipal law of an obligation of loyalty to the state, irrespective of nationality or territorial presence. This kind of obligation may be expressed differently in different states, but it is not uncommon for it to attach to anyone, perhaps reflecting the security principle of jurisdiction. Before 1997 crimes endangering state security were known as ‘counterrevolutionary’ crimes in the People’s Republic of China. Lawyers Committee for Human Rights, Wrongs and Rights. A Human Rights Analysis of China’s Revised Criminal Law (1998) 41. This is not to say that the substance of what is criminalised under current Chinese law, notwithstanding what is to many a more palatable label, accords with international rules and standards of human rights. See Lawyers Committee for Human Rights, ibid 41-46. Mittlebeeler points out that in much of South African society, the traditional African notion of treason ‘embraced many elements which would not in a Western system constitute treason. The crime of treason was any action that might be considered antagonistic to the welfare of the Ndebele king or the Shona chief. This included injuries to his person or household, as well as seditious plots … misuse of his cattle could, in some cases, be considered treason, as well as the invocation of magic against him.’ Emmet V Mittlebeeler, African Custom and Western Law. The Development of the Rhodesian Criminal Law for Africans (1976) 24. In Sweden, any person, regardless of nationality or residence can commit treason (högmålsbrott) and crimes against state security. Swedish nationals are mentioned only in relation to a prohibition on working in the diplomatic service of a foreign state in affairs that affect Sweden, without permission. Ch 19, s 4 Gerhard Simson (ed), Das Schwedische Kriminalgesetzbuch vom 21. Dezember 1962 (1976) 150-58. Norway‘s Penal Code’s provisions on state security also attach to ‘anyone’ with the exception of s 97a: ‘Any Norwegian citizen or resident of Norway who receives from a foreign power or party or organization acting in its interest, for himself or for a party or organization, economic support to influence public opinion about the country’s form of government or foreign policy or for party purposes, or is accessory thereto, shall be punished by jailing or imprisonment up to two years.’ The Norwegian Penal Code (transl H Schjoldager) (1961) 45-54. Under Romania‘s Communist government, offences against state security were broadly defined. Treason could only be committed by a Romanian citizen or stateless person residing in Romania, but exactly the same acts committed by foreigners or stateless persons were punishable by penalties including death. Simone-Marie Vrabiescu Kleckner (ed), The Penal Code of the Romanian Socialist Republic (1976). In Nigeria, following England, treason and sedition were general crimes, not related to a link of nationality. C O Okonkwo, Okonkwo and Naish on Criminal Law in Nigeria (1980) 337-48. For an historical survey of treason in feudal France, see S H Cuttler, The Law of Treason and Treason Trials in Later Medieval France (1981).
[38] International Law Association Committee on Feminism and International Law, ‘Final report on women‘s equality and nationality in international law‘, 265. The MP made the statement while opposing transmission of British nationality by mothers to their children by jus sanguinis. ‘[T]his law was for some bound up with a stereotype of women as devoted to “the preservation and care of life” and therefore incapable of demonstrating the love of country that would entitle them to pass its nationality on to their children. … Ayelet Shachar argues that even now, the Israeli paradigm of the citizen as soldier means that women are, to some degree, lesser citizens of Israel because although both men and women are obliged to perform military service, women can be exempted if they are wives or mothers.’ Ibid.
[39] Margaret Levi, Consent, Dissent, and Patriotism (1997) 42-43. ‘Throughout the eighteenth century (and into the nineteenth) a single shilling pressed into the hand of a drunken man in a public house by a recruiting sergeant constituted the enlistment of a soldier in the British army. In France, the dreaded milice royale relied on a lottery to choose which peasants would be forced into the King’s service. The army was not a popular institution, at least not for those who had to serve in its rank and file. Some joined because they liked the life, but most did so because they were coerced or needed the work or were fleeing from something worse. Those who refused did so because being in the army was inconvenient or actively repugnant. … It was only with the American and French revolutions that national patriotic feeling began to take root, but it took root very slowly.’ The notorious reputation of press gangs lives on today.
[40] Shearer, above n 5, 315. In Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 70, the High Court of Australia unanimously held that an Act of Parliament obliged aliens to serve in the armed forces, notwithstanding any possible rule of international law to the country. The Court accepted that there was a general rule of international law ‘which prevented the imposition upon resident aliens of an obligation to serve in the armed forces of the country in which they resided, unless the State to which they belonged consented to waive this ordinarily recognized exemption. This rule, however does not prevent compulsory service in a local police force, or, apparently, compulsory service for the purpose of maintaining public order or repelling a sudden invasion. … [T]he distinction is drawn between the use of military force for ordinary national or political objects and police action to preserve social order or to protect the population against an invasion by savages.’ It held that regulations requiring aliens to serve in the Pacific region were valid, notwithstanding the rule. While several justices held that such service during the Second World War did not contravene the rule, Chief Justice Latham held that Parliament knew what it was doing and the legislation was valid under the Australian Constitution and thus valid. ‘It is not for a court to express an opinion upon the political propriety of this action. It is for the Government of the Commonwealth to consider its political significance, taking into account the obvious risk of the Commonwealth having no ground for objection if Australians who happen to be in foreign countries are conscripted for military service there. Parliament has, in my opinion, placed upon the Executive the responsibility of making agreements with other countries which will remove international difficulties or of accepting the risk of such difficulties being created.’ Polites v The Commonwealth, 73. ‘During the Second World War most belligerent states compelled resident aliens to perform some kind of service connected with the war effort, even to the extent of making voluntary service in the armed forces an alternative to the performance of compulsory civilian duties.’ Shearer, above n 5, 315. ‘In the US, aliens can be called up for service, but have the right to opt out, in which event: (a) if they subsequently leave the US, they cannot return; and (b) if they stay, they will not be granted US citizenship. The position as to alien migrants, as distinct from temporarily resident aliens, is at least open to doubt. In 1966 the Australian Government purported to make alien migrants subject to compulsory service, formal protests being received from the USSR, Italy, Spain, and other countries.’ Shearer, above n 5, 315 fn 13. For historical examples of the liability of aliens to military service see McNair (Lord), International Law Opinions (1956) 113-37.
[41] Aram Karamanoukian, Les Etrangers et Le Service Militaire (1978) 163-68.
[42] Ibid 219-23.
[43] Ibid 219 (author’s transl) ‘does not conform to this concept … and certain states push illegal practice as far as the conscription of nationals of occupied countries.’
[44] ‘Une personne vivant à l’étranger ne rompt pas ses liens juridiques avec sa patrie jusqu’à ce qu’elle perde sa nationalité par une manifestation expresse de sa volonté, ou par une décision de l’Etat don’t elle est la ressortissante. Donc elle continue à être soumise à la compétence personnelle de son pays d’origine qui limite, dans le cas d’imposition du service militaire, la compétence territoriale de l’Etat de résidence. La souveraineté territoriale ne peut aller jusqu’au rejet des «droits que chaque Etat peut réclamer pour ses nationaux en territoire étranger»; elle ne peut imposer le service militaire aux personnes qui ne sont pas ses sujets sans le consentement de leur propre Etat.’ Ibid 264-65 (author’s transl) ‘A person living abroad does not break legal ties to his or her country until nationality is lost, either through a clear expression of individual will, or a decision by the state of which she or he is a national. He or she thus continues to be subject to the personal jurisdiction of the home country that limits, as far as the imposition of military service, the territorial jurisdiction of the state of residence. Territorial sovereignty does not go so far as to negate the “rights that each state may claim for its nationals in foreign territory”; such sovereignty does not allow for the imposition of military service on non-nationals without the consent of their own state.’
[45] Ibid 264 (author’s transl) ‘The spontaneous conscription of resident aliens would seem to be increasingly widespread, a practice of which both great and small powers are guilty. Doctrine disapproves of such practice, and positive, customary and conventional international law forbids it. But continuous behaviour by states that infringes upon the status of aliens in this domain could lead to the neutralisation of current custom.’
[46] For a study on the history of military service in Australia Canada, France, Great Britain, New Zealand and the United States in terms of the general issue of why citizens do or do not consent to actions by the state, see Levi, above n 39.
[47] See art 43(2) of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), (8 June 1977). See Howard S Levie, ‘Prisoners of war in international armed conflicts’ (1977) 59 International Law Studies - US Naval War College 74.
[48] Ibid 76.
[49] L C Green, The Contemporary Law of Armed Conflict (1993) 115-16. Levie distinguishes between deserters and defectors, noting that both become prisoners of war while in the power of the opposing side and that both may be tried for treason, but that defectors are entitled to prisoner-of-war status if captured by their original side. Levie, above n 47, 76-81.
[50] Stephen H Legomsky, ‘Dual Nationality and Military Service: Strategy Number Two’ in David A Martin and Kay Hailbronner (eds), Rights and Duties of Dual Nationals. Evolution and Prospects (2003) 77-126, 119.
[51] To compare the 1899 and 1907 provisions, see Dietrich Schindler and Jirí Toman, (eds), The Laws of Armed Conflicts. A Collection of Conventions, Resolutions, and other Documents (3rd ed, 1988) 83.
[52] ‘Convention (IV) Respecting the Laws and Customs of War on Land, signed at The Hague, 18 October 1907. Annex to the Convention. Regulations Respecting the Laws and Customs of War on Land,’ in Schindler and Toman (eds), ibid 69-98
[53] Schindler and Toman (eds), ibid 63.
[54] Convention on Certain Questions Relating to the Conflict of Nationality Laws, (12 April [1937] LNTSer 109; 1930), 179 LNTS 89, no 4137.
[55] Tomoya Kawakita v. United States[1952] USSC 85; , 343 U.S. 717, 72 S. Ct. 950 (1952).
[56] Ibid Ct. 950, 962 (1952). At another point the Court stated ‘Of course, an American citizen who is also a Japanese national living in Japan has obligations to Japan necessitated by his residence there. There might conceivably be cases where the mere non-performance of the acts complained of would be a breach of Japanese law. He may have employment which requires him to perform certain acts. The compulsion may come from the fact that he is drafted for the job or that his conduct is demanded by the laws of Japan. He may be coerced by his employer or supervisor or by the force of circumstances to do things which he has no desire or heart to do. That was one of petitioner’s defenses in this case. Such acts – if done voluntarily and wilfully – might be treasonable. But if done under the compulsion of the job or the law or some other influence, those acts would not rise to the gravity of that offense. The trial judge recognized the distinction in his charge when he instructed the jury to acquit petitioner if he did not do the acts willingly or voluntarily “but so acted only because performance of the duties of his employment required him to do so or because of other coercion or compulsion”. In short, petitioner was held accountable by the jury only for performing acts of hostility toward this country which he was not required by Japan to perform.’
[57] Ibid. See generally Lester B Orfield, ‘The Legal Effects of Dual Nationality’ (1949) 17 The George Washington Law Review 427.
[58] Legomsky, above n 50, 120.
[59] Ibid 120-22.
[60] Ibid 122.
[61] T Alexander Aleinikoff and Douglas Klusmeyer, Citizenship Policies for an Age of Migration (2002) 35.
[62] Ibid.
[63] George Cogordan, La Nationalité au Point de vue des Rapports Internationaux (1879) 246-47. Cogordan approves of the provision.
[64] John Torpey, The Invention of the Passport - Surveillance, Citizenship and the State (2000) 105.
[65] Ibid. He says ‘the law facilitated the rapid resumption of citizenship by expatriates’.
[66] Tim Golden, ‘Unapologetic American who spied for Cuba gets 25 years’ jail’, The Sydney Morning Herald (18 October 2002) 12.
[67] Tyler Marshall, ‘HK subversion bill sparks alarm on human rights’, The Sydney Morning Herald (15-16 February 2003) 21.
[68] Robert Jennings and Arthur Watts, Oppenheim’s International Law (1992) 887 fn 3. Carter points out that ‘in the United States, a willed allegiance is required only of immigrants seeking to become citizens. … Even if one concedes that a national community is in fact desirable, our history teaches us to be suspicious of the loyalty oath, and our recent constitutional jurisprudence, for better or worse, teaches that an oath cannot be imposed.’ Stephen L Carter, The Dissent of the Governed. A Meditation on Law, Religion, and Loyalty (1998) 13.
[69] Mazal Mualem and Jalal Bana, ‘Yishai revokes citizenship of Israeli Arab’, Ha’aretz <http://www.haaretz.com> . See also Ross Dunn, ‘Citizenship Israel’s new weapon in war against suicide bombers’, The Sydney Morning Herald (2002) 10; Mazal Mualem, ‘I’m not Israeli, says Arab stripped of citizenship’, Ha’aretz, (12 September 2002) 2.
[70] Mualem and Bana, above n 69.
[71] In most states these ideas have changed markedly over time, in relation to concepts of fundamental human rights, and their international context. Carter points out that the American Revolution announced by the Declaration of Independence was ‘an act of disallegiance, the breaking of the tie of presumptive obligation that we describe as loyalty’. Carter, above n 68, 4. He postulates that the Declaration’s famous idea that governments must be based on the consent of the governed belies the real justification behind the American colonists’ breaking the tie of allegiance to George III, namely the lack of capacity for dissent. He emphasises that what ‘should perhaps be treated as the heart of the Declaration [are the words]: “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people”‘. Carter, ibid 5.
[73] Author’s transl Hakki Keskin. ‘Staatsbürgerschaft im Exil’, Ulrich Büschelmann (ed), Doppelte Staatsbürgerschaft - ein europäischer Normalfall? (1989) 43-54, 52.
[74] For historical examples, see generally Ludwig Bendix, Fahnenflucht und Verletzung der Wehrpflicht durch Auswanderung in Georg Jellinek and Gerhard Anschütz (eds), Staats- und völkerrechtliche Abhandlungen (1906); Ernst Otto Hörnig, ‘Die mehrfache Staatsangehörigkeit in Rechtsprechung, Verwaltung und Gesetzgebung. Eine rechtsvergleichende Studie’, dissertation presented at the Eberhard-Karls-Universität zu Tübingen (1939); Hudson and Flournoy Jr, ‘Nationality – Responsibility of states – Territorial waters, drafts of conventions prepared in anticipation of the first conference on the codification of international law, The Hague 1930’; Georg Schulze, ‘Die Bedeutung des Militärdienstes für Verlust und Erwerbung der Staatsangehörigkeit’ dissertation presented at the Königlichen Bayerischen Julius-Maximilians-Universität (1910).
[75] Acquisition of Polish Nationality, Advisory Opinion No 7 [1923] PCIJ (ser B), No 7, 6-26, in Manley O Hudson (ed), World Court Reports (1969) 244.
[76] Ibid.
[77] Trakyanin Sesi Online, ‘Greece: Greek Nationality Law, discriminating on the basis of race’ (2004) <http://www.trakyaninsesi.com/english/pages/10.htm> . Human Rights Watch claims that ‘between 1955-1998, approximately 60,000 Greek citizens, the majority ethnic Turks, lost their citizenship as a result of the article’. Human Rights Watch, ‘Positive Steps by the Greek State’ (2004) <http://www.hrw.org/reports/1999/greece/Greec991-05.htm> .
[78] Richard E Flathman, ‘Political Obligation’ in Michael Walzer (ed), Studies in Political Theory (1972) 293.