therefore, that A and B (who is born in England) are not both nationals of the same member of the League, viz., the British Empire, and that if both A and B were elected as judges of the Permanent Court they would not come within the provisions of the second paragraph of Article 10. The same result would be reached if A had become naturalized in Australia prior to Australia's adoption of the British Nationality and Status of Aliens Act in 1920, or in Canada prior to 1914, the year in which Canada adopted the Imperial Act. But if, on the other hand, A had become naturalized in Australia after 1920, or in Canada after 1914, he would have become a national of the British Empire. Hence, if both A and B (who is born in England) were elected as judges of the Permanent Court, the elder only would take his seat.

We may then lay down as a general rule that naturalized British subjects are in exactly the same position with reference to paragraph two of Article 10 as natural-born British subjects, except that if their certificate of naturalization was issued in a Dominion prior to its adoption of the British Nationality and Status of Aliens Act they will not be nationals of the British Empire (though they may be, as in Canada, nationals of the Dominion in which they were naturalized), and, therefore, may be elected as judges of the Permanent Court of International Justice at the same time as nationals of the British Empire (who are not also nationals of the Dominion in question).

In regard to citizenship of the Irish Free State, it would appear that a person born in a foreign country and not a British subject might nevertheless be a citizen of the Irish Free State, if he was domiciled in the Irish Free State at the time of the coming into force of the Constitution and had been resident there for seven years. Hence A, who is citizen of the Irish Free

State, but who is not a British subject, i.e., not a national of the British Empire, and B (who is born in England) are not both nationals of the same member of the League and, therefore, are outside of the scope of paragraph two of Article 10 of the Statute of the Permanent Court of International Justice. In conclusion, one must note that the Statute of the Permanent Court of International Justice does not contain any provision for an authoritative interpretation of paragraph two of Article 10. If, for example, a Canadian national and a British subject born in England were both to be elected by the Assembly and the Council, there is, under the Statute, no body that could give an authoritative opinion as to whether they could both take their seats. It is suggested that should this or a similar situation arise, it be left to the remaining judges of the Court to answer the question, and that they should not altogether leave out of consideration, in formulating their reply, such points as this study has attempted to put forward.38

38 Since this article was written the British Nationality in the Union and Naturalization and Status of Aliens Act 1926 (Act No.18 of 1926, South Africa) has been passed. This Act adopts the definition of a natural-born British subject contained in the Imperial Acts. It also adopts Part 2 of the Imperial Act of 1914. Hence a certificate of naturalization granted in South Africa after July 1, 1926, has now the same effect as a certificate of naturalization granted in the United Kingdom.

EDITORIAL COMMENT

THE NATIONALITY CONVENTION ADOPTED BY THE LEAGUE OF NATIONS COMMITTEE OF EXPERTS FOR THE PROGRESSIVE CODIFICATION OF INTERNATIONAL LAW

Declared Mr. Hughes, in the course of a presidential address on the development of international law delivered before the American Society of International Law on April 23, 1925: "One thing stands out clearly--that we should have a friendly hospitality for every suggestion intended to be helpful." Such an intention must be imputed to Messrs. Rundstein, Schücking, and de Magalhaes, the experts who have submitted the fruits of their careful labors, embracing a preliminary draft of a convention on nationality, to the Committee of Experts of the League of Nations for the Progressive Codification of International Law, and which have, during the present year, been submitted to the Council and Members of the League and to other governments including that of the United States. The Committee of Experts, through its distinguished chairman, Dr. Hammarskjöld, has sought the replies of interested governments. A concrete proposal is thus submitted for discussion by those most deeply interested in the problem.

The authors of the convention would doubtless be the last to claim the achievement of a great work. Their modesty, their conservatism, their full appreciation of national prejudices, their zeal to point out what they believe to offer feasible bases of general agreement, and their obvious desire to promote international justice, must inspire respect in every quarter. They have sought to find a safe path through a field of sloughs and pitfalls. Their distinctive service consists in arousing governments to consider what can be or ought to be the solution of common difficulties. Congratulations are, therefore, due them, despite the issue to be taken with some of their conclusions, for their labor is bearing the best fruit of scientific endeavor.

It may not be deemed unreasonable to examine the convention as a proposal addressed to the United States, and to consider the several provisions in the light of American theories and commitments and constitutional pronouncements.

The one overshadowing problem with respect to nationality which today vexes and baffles governments such as our own arises from the fact that in a variety of situations more than one state regards as its own national the same

"The report comprises a statement presented by M. Rundstein and approved by M. de Magalhaes (including a preliminary draft of a convention), a supplementary note by M. Rundstein, observations by M. Schücking and a reply by M. Rundstein, and, finally, the text of the preliminary draft of a convention as amended by M. Rundstein in consequence of the discussions which took place in the Committee of Experts." All printed in Special Supplement to this JOURNAL for July, 1926, pp. 21–61.

individual at the same time. This dual claim finds its origin in conflicting assertions as to nationality by right of birth, one state relying upon the fact of birth within its territory under the jus soli, and another relying upon the fact of the father's nationality, invoking the jus sanguinis. What prolongs and aggravates the controversy is the reluctance of some states to heed the fact that when a child has attained his majority the opposing claims are not of equal merit, or to accept the principle that the superior of these should thereafter be recognized as the basis of a single, unopposed nationality. The controversy is also accentuated by the unwillingness of certain states to acknowledge that it lies within the power of the adult national, even though permanently residing abroad, to divest himself of the nationality of his sovereign without its consent and simultaneously to assume the single nationality of another state in which he resides. Thus, in practice, it is the tenacity with which states seek to retain the connection of nationality as between themselves and adult persons in the face of superior equities in favor of opposing states, which is accountable for the existing confusion. By reason of the lack of any general endeavor to agree to terminate claims which, however sound in origin, have become inequitable when applied to the individual who has attained his majority, controversies continue to fester and justice remains perverted. Yet upon such an endeavor would seem to depend the solution of the problem. 2

Other devices offer less hope of practical achievement. It is not to be anticipated, for example, that states will generally agree, at least in the near future, to limit the basis of claims by right of birth, as by abandoning reliance upon either the jus sanguinis or the jus soli, and to confine such claims to those founded upon one theory rather than the other. Both the habits of states reflected in constitutional and legislative pronouncements, and the absence of numerous and serious difficulties in the handling of actual cases, justify the opinion that the attempt to restrict states in claiming persons as their nationals by right of birth, at least during the period of minority, is neither wise nor feasible. "

"For the present, it is believed that the most feasible measure will be the adoption of a multilateral convention providing for the termination of the status of dual nationality at the time when the persons concerned attain the age of majority, or, perhaps, one year thereafter." R. W. Flournoy, Jr., Proceedings, American Society of International Law, Nineteenth Annual Meeting, 1925, p. 77.

In view of the provisions of the Fourteenth Amendment to the Constitution of the United States that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," and in view also of the assertions made by the Act of Congress of February 2, 1855, with respect to children born outside of the United States whose fathers were at the time of their birth citizens thereof, our own country is hardly in a position to impute arbitrariness to states which invoke either or both theories, or to advocate the adoption of a plan which deprives a state of the right to do so.

Diplomatic controversies arising from conflicting claims respecting the nationality of a child during his minority are relatively infrequent. In such cases the United States respects

When a child attains its majority, the claims with respect to his nationality asserted by opposing states can rarely, in American opinion, possess equal merit. It is highly desirable that thereafter he be deemed to possess a single nationality, entitled to general respect, and that it be acknowledged that the doctrine of dual nationality has ceased to be applicable to him. A common sense of that desirability is bound ultimately to influence the trend of the development of the law. States may even find it possible to register their appreciation of it through appropriate agreements. If, however, they are unable at the moment to find an acceptable formula, it is unlikely that they will proceed in the opposite direction and give general approval to the theory that the doctrine of dual nationality is fairly applicable to adult persons. It is highly improbable that the United States would accept any arrangement which purported to do so.

The draft convention from the League Committee of Experts declares in Article I

The high contracting parties undertake not to afford diplomatic protection to and not to intervene on behalf of their nationals if the latter are simultaneously considered as its nationals from the moment of their birth by the law of the state on which the claim would be made.

No distinction is here made between adult and minor persons who invoke the interposition of their governments. Moreover, the obligation seems to be imposed upon a prospective claimant state to respect, as a deterrent of its own interposition, the assertion by another state that the individual concerned is its national, even though he was born within the territory of the former state and there continued to reside after attaining his majority and up to the very time when he invoked its aid. As it stands, the article gives sinister heed to the doctrine of dual nationality. It opposes a barrier against interposition which leaves no room for the ascertaining and termination of the least equitable of the conflicting claims to the nationality of the individual concerned.

Again, Article V declares that

A person possessing two nationalities may be regarded as its national by each of the states whose nationality he has. In relation to third states, his nationality is to be determined by the law in force at his place of domicile if he is domiciled in one of his two countries.

If he is not domiciled in either of his two countries, his nationality is determined in accordance with the law in force in that one of these two states in which he was last domiciled.

the equities of the state claiming the child as its own by right of birth under the jus sanguinis or the jus soli so long as he continues to reside within its territory. Moreover, it is inclined to the opinion that during the period of minority changes of residence or domicile effected by the parents should not serve to deprive the child of the inchoate right to take appropriate steps, upon attaining his majority, to clothe himself with the single nationality of his choice.

In the first paragraph respect is again bred for the continued application of the doctrine of dual nationality to adult persons, and is thus in sharp conflict with the theory which it is believed that the United States and other states should uphold. The second sentence of the same paragraph is designed to cover a situation which is not often productive of diplomatic controversy. It may be doubted whether conventional arrangement to provide for it is necessary or desirable. The second paragraph (as well as the sentence next preceding it) is unfortunate in failing to provide that the domicile in the third state should be that possessed by the individual at the time of his attaining his majority or shortly thereafter.

Article IV of the draft convention declares that

A child born outside the state of which its parents are nationals has the nationality of the state where it was born if the state of origin does not give the parent's nationality to such child.

This article would serve to deprive a state of the right, under certain conditions, to invoke the jus soli as a legitimate basis of a claim to an individual as a national by right of birth. Apart from constitutional difficulties which would preclude a country such as the United States from accepting such an arrangement, the article would not, for reasons given above, seem to embody a proposal calculated to win general approval. The effort is likely to be futile which essays to bind states generally to give up claims to children by right of birth based on either the jus soli or the jus sanguinis.

The distinguished authors of the convention would not assert that the articles quoted reflect an attempt to go to the root of the difficulties inherent in the main problem noted above, or that they point to a feasible mode of removing them." An expert of the Department of State has, however, sought to do that very thing. His conclusions deserve attention. Mr. Richard W. Flournoy, Jr., proposes that the dual claim to the nationality of an individual be terminated when he becomes an adult, by according him the single nationality of the state within whose territory he is then domiciled." As a rule for inclusion in a model statute or an international convention he suggests the following:

'An objection of the same general character, although of a possibly less practical significance, might be raised with respect to Article III, which provides that "A child of parents who are unknown or whose nationality cannot be ascertained acquires the nationality of the state in which it was born or found when it cannot claim another nationality in right of birth, proof of such other nationality being admissible under the law in force at the place where it was found or born." These provisions appear to limit the free application of the jus soli. 'M. Rundstein's report manifests a frank disclaimer of such a design.

"See "Suggestions concerning an International Code on the Law of Nationality," Yale Law Journal, June, 1926, Vol. XXXV, 939; also address by the same writer before the American Society of International Law, April, 1925, Proceedings, Nineteenth Annual Meeting, 69. The writer acknowledges his indebtedness to Mr. Flournoy for numerous valuable suggestions set forth in these papers, of which free use is here made.