Although the Constitution of the United States declares in the Fourteenth Amendment that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States, Congress has enacted legislation affecting the diplomatic protection of citizens abroad which makes a material distinction between persons born in the United States and those who have been naturalized in this country. This distinction has caused considerable discussion as to the political status of naturalized American citizens against whom the presumption of cessation of citizenship has arisen by virtue of the provisions of Section 2, Act of March 2, 1907, and recently has been interestingly illustrated before international claims commissions.

The invention of wireless telegraphy and recent improvements in the aeroplane and dirigible balloons have greatly extended the possibilities of international aerial communication and navigation, and have thus rendered necessary a discussion of the law of the so-called aerial domain in works on international law.

During its session at Ghent in 1906, the Institute of International Law adopted the following principles: “The air is free. In time of peace and in time of war, states have over it only the rights necessary for their self-preservation.” These principles, which were based upon the views of Fauchille and accepted by a vote of 14 against 9, have been justly criticized. They are not in agreement with recent articles and monographs on this subject, and do not answer the practical necessities either of aerial navigation or wireless telegraphy, especially in time of war.

There is one point which has been stressed by nearly every one who has discussed the inclusion of nationality in the codification of international law, including the rapporteurs of the League of Nations Committee of Experts and of the Nationality Committee at the First Codification Conference, that is, that this subject is especially difficult because of the fact that it is to a great extent “ political.” Most, if not all, branches of international law are in a sense pohtical, but, when it is said that nationality is peculiarly a political subject, it is meant, no doubt, that the law of nationality is primarily a domestic matter as regards each state, to be determined by each state for itself, according to its needs, social, political, military, economic, etc. Thus no state is willing to surrender its sovereign prerogative in the matter of determining the way in which its nationality may be acquired. But this does not mean that international law has nothing to do with nationality.

Medellín v. Texas is the first case in which the Supreme Court has denied a treaty-based claim solely on the ground that the treaty relied upon was non-self-executing. In Foster v. Neilson, the only other case in which the Court had denied relief on this ground, the Court offered its view that the treaty was non-self-executing as an alternative ground for denying relief. The Court soon thereafter disavowed its conclusion that the treaty involved in Foster was non-selfexecuting, and, in the intervening years, it repeatedly declined invitations to deny relief on this or related grounds. Many observers (including me) thought that the Court would again skirt a ruling on non-self-execution in Medellín because the president had issued a memorandum ordering compliance with the judgment of the International Court of Justice (ICJ) in Avena. After all, the Court in American Insurance Ass’n v. Garamendi had recently struck down a California law on the ground that it conflicted with a “policy” reflected in certain sole executive agreements. The president in Medellín seemed to be standing on stronger ground, as he was insisting that state law give way to an obligation imposed by a treaty that had received the consent of the Senate and was accordingly the supreme law of the land. But the Court defied this expectation, with potentially regrettable results for the law of treaties.

The purpose of this paper is to examine certain aspects of the nature and content of the duty, arising in the law of international claims, tot exhaust local remedies. The general rule of exhaustion of local remedies, as set forth in familiar terms in the award of the Commission of Arbitration in the Ambatielos case is as follows: