Some Problems of Dual Nationality

St. John's Law Review Volume 28 Number 1 Volume 28, December 1953, Number 1 Article 5 May 2013 Some Problems of Dual Nationality St. John's Law Review Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation St. John's Law Review (1953) "Some Problems of Dual Nationality," St. John's Law Review: Vol. 28 : No. 1 , Article 5. Available at: https://scholarship.law.stjohns.edu/lawreview/vol28/iss1/5 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . 1953] NOTES served appeared on the day calendar for trial, and several adjournments had been had at defendant's request. In denying defendant's application, Special Term characterized his actions as dilatory tactics and a waiver of the right of arbitration.10 4 Conclusion The impartial prohibitions of a time limitation often preclude redress for a just claim through arbitration. When the legislature enacts a statute of limitations, thereby sacrificing individual justice to the needs of the majority, it must carefully weigh its decision in order that the time set is reasonable. Since contractual limitations have a similar effect upon bona fide claims, the courts should see to it that reasonable necessity and not caprice justifies their enforcement. In view of the confusion confronting the bench and the bar with respect to these contractual limitations, it would appear that an amendment to Section 1448 of the Civil Practice Act should be made. This amendment would state in substance that no agreement or contract shall be valid which limits the period within which notice of claim must be given, or a claim filed, to a period of less than 90 days. It is submitted that such a period is just and reasonable in every situation that might arise, yet would prevent such a limitation from being a mere cloak for denial of a remedy. SOME PROBLEMS OF DUAL NATIONALITY Introduction Citizenship is regulated by municipal, rather than international law.1 Each nation forms its own rules as to the manner in which its citizenship may be acquired and in which it may be terminated. In determining a person's nationality at birth, some nations adhere to the doctrine of jus soli, i.e., citizenship is determined by birth within the country. In others the status depends upon Jus sanguinis, i.e., nationality is inherited from the parents regardless of place of birth. 104 Accord, Burton v. Klaw, 129 N. Y. L. J. 329, col. 6 (Sup. Ct. Jan. 29, 1953); Matter of De Costa, 123 N. Y. L. J. 123, col. 5 (Sup. Ct. Jan. 11, 1950). ' See Perkins v. Elg, 307 U. S. 325, 329 (1939) ; Tomasicchio v. Acheson, 98 F. Supp. 166, 169 (D. D. C. 1951); see Note, 25 MINN. L. REv. 348 (1941). ST. JOHN'S LAW REVIEW [ VOIL. 28 A third group, which includes the United States, confers citizenship under both theories.2 The most common method of acquiring a particular nationality after birth is, of course, through the procedure of naturalization. Ordinarily, one who takes advantage of such a procedure renounces all former allegiances. However, not all nations recognize such renunciation.3 As a consequence of this lack of uniformity among the various nationality laws, there exists the possibility of a person's being simultaneously claimed as a citizen by more than one sovereign. Such a person is 4said to possess dual nationality, a status long recognized by the law. For the sake of convenience in treatment, dual nationals may be classified into two general groups: first, those who acquire such status at birth, and secondly, those who acquire it subsequently thereto. In the first category, with regard to United States citizens, would be found a child born in this country of alien parents. Under our law, he would be a citizen of this country and would ordinarily inherit, as well, the nationality of his parents' native land. Similarly, the allegiance of one born abroad of American parents would be claimed not only by the United States, but also, if it operated under jus soli, by the country of his birth. On the other hand, one born in this country of United States citizens, who later became naturalized in a foreign country, would have acquired only a single nationality at birth, but another upon his parents' naturalization, and thus would come within the second classification. As a final example, a citizen of a foreign nation which does not recognize the right of expatriation will, upon naturalization in this country, possess both nationalities. These illustrations are of course not intended as exhaustive, but merely demonstrate some of the more common sources of dual allegiance. The concept of dual citizenship presupposes that a person may possess, at the same time, certain rights of nationality in more than one country and, conversely, be burdened with responsibilities to both. 5 Inevitably such a situation has led to friction and difficulty. It is the purpose of this article to discuss some of the more important problems resulting from such a seemingly anomalous status and the attempts made to resolve them both by the courts and by Congress. 2 See Tomasiccbio v. Acheson, supra note 1 at 168; see Note, 25 MINN. L. REV. 348 (1941). s See Gualco v. Acheson, 106 F. Supp. 760, 761 (N. D. Cal. 1952); see Orfield, The Legal Effects of Dual Nationality, 17 Gao. WASH. L. Ray. 427 (1949). 4See Kawakita v. United States, 343 U. S. 717, 723 (1952); Savorgnan v. United States, 338 U. S. 491, 500 (1950). 5 See Kawakita v. United States, supra note 4 at 723; see Orfield, supra note 3. 1953 ] NOTES Expatriation-In General Expatriation contemplates a complete severance between the individual and the nation of which he is a citizen. The early commonlaw position was that such a severance could be accomplished only with the consent of the sovereign. 6 To some extent this view persisted in the United States 7 until the year 1868 when Congress declared expatriation to be a ". . . natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness ... ," and that any promulgation which restricted this right in any manner would be ". . . inconsistent with the fundamental principles of this government." s Although this pronouncement had for its primary purpose the protection of those immigrating to this country from abroad, 9 it had the effect as well of recognizing the right of American citizens to voluntarily renounce their allegiance. The question of ascertaining just what was necessary to evidence the intent of expatriation was left to the Department of State. In 1907, however, Congress passed the Nationality Act of that year 10 in which it listed certain acts the performance of which resulted in loss of nationality.'" The Act was amended in 1940 and a mo (...truncated)