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Published online by Cambridge University Press: 25 April 2017
Several families now living in the Emergency Refugee Shelter which the United States Government has established at Fort Ontario, in the state of New York, are expecting the birth of children in the near future. Will these children acquire American citizenship jure soli? Does the non-immigrant status of the parents derogate from the privilege of the children? And most important among the numerous questions involved, Does the so-called “refugee free port” constitute the requisite type of American territory?
1 54 Stat. 1138.
2 Cf. Francis V. Lowden, Jr., “The Nationality Act of 1940,” Virginia Law Review, Vol. 27 (1941), p. 531.
3 United States v. Wong Kim Ark (1898), 169 U. S. 649; cf. In re Look Tin Sing (C. C. Cal. 1884), 21 Fed. 905, 906. “That children born in the United States to domiciled aliens should be citizens seemed clear, and in United States v. Wong Kim Ark the Supreme Court held that such children were citizens even though their parents were incapable of naturalization and were forbidden to change their allegiance by the law of their own country. And it seems safe to say that the same rule would be applied to children born to aliens temporarily within the country, no matter how short their stay.” “ Citizenship by Birth,” Harvard Law Review, Vol. 41 (1928), p. 643, at p. 644, and notes 7-9. The refugees at Fort Ontario hail from fourteen different countries. The New York Times, August 5, 1944, p. 13. Most of the sixty-one families of German origin can probably be considered expatriated by the Reich. Robert M. W. Kempner, “ The Enemy Alien Problem in the Present War,” this Journal, Vol. 34 (1940), p. 443; and “Who is Expatriated by Hitler: An Evidence Problem in Administrative Law,” University of Penna. Law Review, Vol. 90 (1942), p. 824; Kauffmann, Alfred, “Denationalization and Expropriation: The German Law depriving Jewish Emigrants of Nationality, and Property, and Effects,” Law Journal (London), Vol. 92 (1942), p. 93.Google Scholar Also Ernst Fraenkel, The Dual State (New York, 1941), p. 87; Franz Neumann, Behemoth, New York, 1942, pp. 113-114. But this does not hold true for nationals of several of the countries now being liberated from Axis occupation. Finally there are some stateless individuals whose status either antedates the present conflict and its more immediate preliminaries, or is “genuine” due to the accident of birth, or both. This question of the parents’ allegiance will be of importance in cases where dual nationality might ensue and where the children must make a choice upon attaining their majority.
4 Cf. In re Lam Mow (1927), 19 F. (2d) 951, affirmed in Lam Mow v. Nagle (1928), 24 F. (2d) 316. Under the Nationality Act of 1940, births aboard American vessels on the high seas appear to have been left to judicial boundary-making. The decisions in the Lam Mow cases denied citizenship for such an occurrence, but the British doctrine, both by common law and by statute, reaches exactly the opposite result. Marshall v. Murgatroyd (1870), L. R. 6 Q. B. 31, Nationality and Status of Aliens Act, 1914, 4 & 5 Geo. V, c. 17, par. 1 (i) (c). Births during a non-stop air journey over the United States would probably be treated like births aboard (foreign and United States) merchant vessels in territorial waters of the United States. Cf. 3 Hackworth, Digest, pp. 10-12; “The Nationality Act of 1940,” Harvard Law Review, Vol. 54 (1941), notes 10-12; Philip C. Jessup, “Revising our Nationality Laws,” this Journal, Vol. 28 (1934), p. 104, at p. 108; Charles Cheney Hyde, “The Nationality Act of 1940,” same, Vol. 35 (1941), p. 314, at p. 315.
5 The rules governing the nature and extent of humanitarian intervention are firmly rooted in classical international law. Cf., e.g., Grotius, De J. B. ac P., 2, XX, 38; also 1, III, 9; 2, XX, 5. Wolff, J.G.M.S.P., II, 258; V, 652; VI, 646. Vattel, Le Dr. d. G., 2, IV, 53-56. The unilateral character of the American undertaking for the protection of these refugees derives from the exercise of sovereignty: “A state is under no duty, in the absence of treaty obligations, to admit aliens to its territory. If it does admit them, it may do so on such terms and conditions as may be deemed by it to be consonant with its national interests. Likewise a state may deport from its territory aliens whose presence therein may be regarded by it as undesirable. These are incidents of sovereignty.” 3 Hackworth, Digest, p. 717. Nevertheless the project is fully consonant with the policies and proclaimed war aims of the United Nations as a whole. Space does not permit a discussion of the position of “refugee shelters “ in the Mediterranean area and the Middle East.
6 Department of State Bulletin, Vol. 10 (1944), p. 532.
7 Same, Vol. 10 (1944), p. 95. The War Refugee Board was set up by the President on January 22, 1944, composed of the Secretaries of State, Treasury, and War, and designed “to take action for the immediate rescue from the Nazis of as many as possible of the persecuted minorities of Europe—racial, religious, or political—all civilian victims of enemy savagery“; Executive Order 9417; 9 Federal Register 935.
8 Same, Vol. 10 (1944), p. 533. The War Relocation Authority was created originally within the Office for Emergency Management by Executive Order 9102, of March 18, 1942.
9 Same, Vol. 10 (1944), pp. 553, 554.
10 The New York Times, August 5, 1944, p. 13.
11 E.g., there is no basis for comparison to births in the army of a foreign sovereign, and even the latter conception has usually been applied only to invading forces. Gf. “Citizenship by Birth,” as cited, note 3.
12 The Chicago Sun, May 14, 1944, p. 18.
13 Aufbau (Reconstruction), Oct. 13, 1944, p. 3.
14 United States Tariff Commission, Free Zones in Ports of the United States, Washington, 1918, p. 9. Italics supplied.
15 See the Law Providing for a Commission to Select a Site for the Free Port in Lisbon, Portugal, of June 13,1913, which specified in Section 14 “That the undertaking, for all legal purposes, must be considered Portuguese and subject only to the jurisdiction of the Portuguese courts… .” Reprinted in translation in same, p. 86.
16 “The Nationality Act of 1940,” Harvard Law Review, Vol. 54 (1941), as cited.
17 Nishimura Ekin v. United States, 1892, 142 U. S. 651, 661; United States v. Ju Toy, 1905,198 U. S. 253, 263; Kaplan v. Tod, 1935, 267 U. 8. 228, 230. But these decisions, and the consequences to which they could give rise, have not gone unchallenged. Indeed it has been suggested that citizenship should not be refused to a child born to parents who have entered the country illegally. “Citizenship by Birth,” p. 645.
18 3 Hackworth, Digest, pp. 9-10. The aliens here do not possess diplomatic character and our arguments purport to show that they were not otherwise exempted from the operation of the laws in general.
19 Same, p. 10, quoting MS. Department of State, file 130 Laszas, Ona.
20 Note, however, the exterritoriality established for the hospital suite of Crown Princess Juliana by a Canadian Government proclamation of January 2, 1943, in order to insure Netherlands nationality for the expected child. The New York Times, January 3, 1943, p. 44. This precaution was taken because the Crown Princess was not a ruling sovereign.
21 Some refugees at Fort Ontario are understood to have children or near blood-relatives who are serving in the armed forces of the United States or who are civilians (born American citizens or) naturalized according to the regular procedure.