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declaration of intention and by insisting on but one year's residence instead of five, the period required of other aliens. Conversely, the law enacts that no woman citizen shall lose her American citizenship by reason of her marriage to an alien, unless the husband is ineligible to citizenship, in which case she ceases to be an American citizen and cannot be naturalised during the continuance of the marital status. The Act repeals the provision of the law of 1855, which declared that an alien woman married to a citizen of the United States acquired thereby American citizenship, and likewise the provision of the Expatriation Act of 1907 by which an American woman who married a foreigner acquired the nationality of her husband.1

By the new Act, therefore, the United States reverts to the ancient common law principle which prevailed in England before the passage of the Act of 1844,2 and in the United States before the enactment of the law of 1855 referred to above. According to that principle marriage had no effect upon the nationality of a woman; an alien woman who married a citizen remained an alien still, and an American or English woman who married an alien did not lose her citizenship by reason of the marriage. Likewise under the old rule a married woman could not be naturalised so long as her husband was a citizen or subject of a foreign State. But the recent Act of Congress abolishes this rule and allows any alien married woman who is otherwise eligible to naturalisation to become an American citizen by naturalisation regardless of the foreign nationality or wishes of the husband. Thus the identity of the husband and wife, which the Supreme Court in 1916 declared to be " an ancient principle of American jurisprudence," has been replaced by a new rule which permits them to possess different nationalities. The reversion to the ancient rule in respect to the effect of marriage upon the nationality of women puts the legislation of the United States out of harmony with that of the vast majority of other countries and thereby introduces confusion and conflict where uniformity is highly desirable.

First of all, it is certain to increase the number of persons who will be "afflicted" with the status of double nationality and to multiply the controversies which inevitably result therefrom. Thus a woman citizen of the United States who marries an English husband will remain an American citizen, but by British law she will be a British subject.3 Conversely, an English woman who marries an American husband will according to the new Act of Congress

1 The constitutionality of this section of the law of 1907, which automatically operated to expatriate against her will an American woman who married an alien even when she and her husband continued to reside in the United States, was attacked, but was upheld by the Supreme Court in the case of Mackenzie v. Hare, 239 U.S. 299 (1916). Of the policy of merging the identity of the wife with that of the husband, the Court said: The identity of husband and wife is an ancient principle of our jurisprudence. It was neither accidental nor arbitrary and worked in many instances for her protection. There has been, it is true, much relaxation of it, but in its retention as in its origin it is determined by their intimate relation and unity of interests, and this relation and unity may make it of public concern in many instances to merge their identity, and give dominance to the husband. It has purpose, if not necessity, in purely domestic policy; it has greater purpose and, it may be, necessity, in international policy. And this was the dictate of the Act in controversy." 27 and 8 Vict. 154, c. 66.

• British Nationality and Status of Aliens Act, 1914, Sec. 10.

remain a British subject, but under British law she will lose her British nationality. She will, therefore, be heimatlos or Staatlos-a woman without a country. It is true that under the recent law she could be naturalised in the United States after one year's residence, but if she is residing abroad she cannot obtain the necessary passport for entering the United States for the purpose of fulfilling the residence requirement. An actual case of this kind recently occurred. An official in the American Consular service abroad married an English woman, and when the husband sought to return to the United States with his wife she was denied an American passport because she had not acquired American citizenship by her marriage, and she was refused a British passport for the reason that under English law she had ceased to be a British subject. Thus her right to become a citizen of the United States was clearly abridged notwithstanding the affirmation in the Act of 1922 that "the right of any woman to become a naturalised citizen of the United States shall not be denied or abridged because of her sex or because she is a married woman."

The status of an American woman who marries a foreigner who is ineligible to naturalisation under the existing laws of the United States, for example a Japanese, a Chinese or other person of non-Caucasian race,1 is worse than before, for under the new law she is ineligible to citizenship by naturalisation during the continuance of the marital status. Under the Act of 1907 such a woman might "resume" her American citizenship after the termination of the marital status by registering with an American Consul or by returning to and residing in the United States. But that provision of the law is now repealed, from which it would appear that the only way by which she could resume her American citizenship would be through the regular process of naturalisation, which requires five years' residence. The adoption of a new rule so widely at variance with the legislation of other countries and so likely to give rise to questions of double or ambiguous nationality will doubtless prove a source of many legal controversies concerning the descent of property-all the more so because of the large number of marriages between wealthy Americans and foreign spouses. Controversies regarding the status of children born of marriages between Americans and foreigners are also by no means inconceivable, particularly because of the repeal of the provision of the Act of 1907 relating to the resumption of American citizenship by women upon the termination of the marital relation.

The old rule by which an American woman automatically lost her citizenship by marriage to an alien did undoubtedly result in hardships. Upon the outbreak of the World War many American women who had married aliens found themselves in the category of enemies of their own country and their property liable to sequestration. It was the women of the United States who initiated the movement for a modification of the law, and having acquired the right of suffrage it was not difficult for them to bring the necessary pressure to bear upon both political parties to obtain a pronouncement in their national platforms of 1920 in favour of the repeal of the law under which American women lost their citizenship upon marrying aliens. The passage of the new law of 1922 was a fulfilment of the Republican promise. The law safeguards

1 See the recent case of Ozawa v. The United States decided by the Supreme Court on November 13, 1922, where it was held that persons of the Japanese race are ineligible to naturalisation under the existing laws of the United States.


their citizenship but, as I have endeavoured to show, it is bound to cause much confusion, multiply controversies concerning the nationality of women, raise difficult questions in respect to the descent of property and lead to individual hardships unforeseen by its sponsors. JAMES W. GARNER.


THE Permanent Court of International Justice, in addition to its primary function of deciding those disputes between States which are submitted to it by agreement between the parties, or in virtue of some treaty provision or of acceptance by the parties of obligatory jurisdiction by the Court, has under Article 14 of the Covenant of the League of Nations the power to give "an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly " of the League.

The year 1922 did not bring any litigious business to the Court, but its regular session was occupied in advising upon three questions referred to it by the Council. All three related to the interpretation of Part XIII. of the Treaty of Versailles, which establishes the International Labour Organisation, and not to any problem which was immediately before the Council. The action taken by the Council accordingly throws an interesting light upon the relations between the Council and the Court. One question, relating to the nomination of workpeople's delegates to the International Labour Conferences, was submitted at the request of the Labour Organisation. The other two were referred on the proposal of France. The Labour Organisation has no direct access to the Court and the Court's Statute does not allow it to give advisory opinions at the request of individual States. The three cases would, therefore, appear to show that the Council will use its access to the Court for the purpose of enabling the Labour Organisation to obtain guidance from the Court, and also that in proper cases the Council will adopt as its own, and put to the Court, questions as to the interpretation of treaty provisions affecting the League which are raised by a member; but they furnish no ground for supposing that the Council would act as intermediary for obtaining the Court's advice upon questions raised by a State which did not directly concern the League.

The Court's answers would appear not to be formally binding interpretations of the treaty, such as would have been obtained by recourse to the Court under Article 423. They are rather advisory opinions given for the guidance of the competent organs of the League.

At the commencement of its session, the Court announced that it would hear any State or international organisation which notified its desire to address the Court upon any of the questions before it. This action was taken under the Rules of Court applicable to Advisory Opinions and does not imply any

1 The Court publishes a Collection of Advisory Opinions (Series B of the publications of the Court, published at Leyden by A. W. Sijthoff).

A verbatim report of part of the proceedings before the Court in the cases here discussed and the texts of the opinions have been published in the Official Bulletin of the International Labour Office (see Vol. VI. Nos. 3, 4, 7, 8, 9, 10 and 11).

derogation from the rule that only States or members of the League of Nations can be parties in cases before the Court.1

Article 389, Paragraph 3, of the Treaty of Versailles.

For an account of the difficulties which the application of this paragraph has occasioned, reference must be made to M. Albert Thomas' speech to the Court.2 The Governing Body and Conference of the International Labour Organisation are unique among official international gatherings in being composed, not merely of delegates who speak in the name of their Governments, but also of non-Government delegates who are nominated by their Governments to represent the interests of employers and workpeople respectively, and who possess absolute freedom in their utterances and votes. Article 389, paragraph 3, requires the Governments to nominate to the International Labour Conference: "non-Government delegates and advisers chosen in agreement with the

industrial organisations, if such organisations exist, which are most representative of employers or workpeople, as the case may be, in their respective countries."

A subsequent paragraph (7) gives the Conference the power to refuse, by a twothirds vote of the delegates present:

"to admit any Delegate or adviser [i. e. non-Government delegate or adviser] whom it deems not to have been nominated in accordance with this Article."

The recourse to the Court was occasioned by the action of the Netherlands Government in nominating to the 1921 session of the Conference workpeople's delegates and advisers chosen in agreement with three organisations which together represent a majority of the organised labour of the country, and after consultation with but without the agreement of the largest Trade Union. The nominations were impugned on the ground that paragraph 3 should be read as obliging a Government to nominate in agreement with the organisation which is singly the most representative, the use of the plural" organisations ” in the text being explained by the fact that the two cases of workpeople's and employers' delegates are covered by it, and that the dissenting Union was the most representative single workpeople's organisation in the Netherlands. The Conference admitted the Netherlands delegate and advisers on the understanding that the Court should be asked to interpret Article 389. Subsequently, the Governing Body of the Labour Office and the Council formulated the question for the Court as the question whether the Netherlands delegate had been properly appointed, but this formulation was adopted merely as a method of raising the general problem of interpretation upon a concrete set of facts.

After considering memoranda from various quarters and hearing oral statements on behalf of the British and Netherlands Governments, the International Federation of Trade Unions, the International Federation of Christian Trade Unions, and the International Labour Office, the Court unanimously advised, on July 31, 1922, that the Netherlands delegate was properly appointed, and interpreted Article 389 so far as was necessary for this decision. As was to

1 Article 73 of the Rules of Court: Article 34 of the Court's Statute.
2 International Labour Office, Official Bulletin, Vol. VI. No. 3, p. 72.

be expected, the Court did not attempt to discuss various possible applications of the Article and test their concordance with its provisions. The opinion given appears to have established the following points.


Paragraph 3 of the Article constitutes an obligation by which the members of the Labour Organisation are bound towards one another and subjects them to a limitation in regard to the choice of the non-Government delegates and advisers. The limitation is that the persons nominated shall have been chosen in agreement with the organisations most representative of employers or workpeople. This does not mean the single most representative organisation in either case. On the contrary, the aim of each Government must be an agreement with all the most representative organisations." What these organisations are, is a question to be decided by each Government in the light of the circumstances existing in the particular country at the time when the choice falls to be made. Membership is an important factor but not the only factor. The Government's decision may be reviewed under paragraph 7 and admission be refused to its nominees on any grounds, either of fact or law, which satisfy the Labour Conference that the nominations have not been made in accordance with Article 389. Failure to secure agreement with all the organisations which should be consulted does not make a nomination impossible. The attainment of complete agreement is an ideal difficult to realise and which cannot be considered as the normal case contemplated by paragraph 3. What is required of the Governments is that they should do their best to effect an agreement which in the circumstances may be regarded as the best for the purpose of ensuring the representation of the workers of the country."

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Competence of International Labour Organisation.

Two questions as to the competence of the Labour Organisation were submitted: (a) whether this competence "extends to international regulation of the conditions of labour of persons employed in agriculture"; (b) whether it includes "examination of proposals for the organisation and development of methods of agricultural production and of other questions of a like character."

The Court, on August 12, 1922, answered the first question in the affirmative, M. Weiss (French) and M. Negulesco (Roumanian) dissenting, but without stating the reasons for their dissent; it answered the second question unanimously in the negative. On both questions the Court considered a variety of memoranda; on the first it heard oral statements on behalf of the French, British, Portuguese and Hungarian Governments, the International Agricultural Commission, the International Labour Office and the International Federation of Trade Unions; on the second question the Court heard the French Government and the International Labour Organisation.

The case for exclusion of agricultural labour from the competence of the Organisation,1 may be said to have been based mainly upon two arguments: the alleged practical inapplicability to agriculture of some of the principles of Part XIII. of the Treaty, from which it was inferred that that Part could not be held to apply to agriculture in the absence of an express mention, and the employment in the French text of various Articles (especially Article 393 and Article 427) of the word "industrie " or " industriel," which, as ordinarily used,

1 The Governments which made submissions to the Court were divided as follows: against the competence, France and Hungary; for, Britain, Italy and Sweden.

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