Opinion Number. 308

Subject

BRITISH SUBJECT WHETHER CROWN MAY TRANSFER ALLEGIANCE WITH CESSION OF TERRITORY : CONSEQUENCE OF FAILURE BY NATIVE OF HELIGOLAND TO OPT FOR BRITISH NATIONALITY

Key Legislation

ANGLO-GERMAN AGREEMENT ACT 1890 (IMP.)

Date
Client
The Secretary, Department of External Affairs

The Secretary, Department of External Affairs forwards the following memorandum for advice:

  1. An application for naturalization has been received from A.B. of Rutherglen. He was born in Heligoland in 1846, and has been resident in Australia since 1872.
  2. By the provisions of agreement under the Act by which Heligoland was ceded to the German Emperor, all persons-natives of the territory-were given the right of declaring for British nationality by means of a declaration, before 1 st January 1892.
  3. Mr B. states that in 1892 he was in Victoria, and never knew of a declaration being required. He did not therefore declare either for British or German nationality.
  4. Advice is sought as to whether Mr B. is already a British subject or not.

The question is one of the interpretation of the agreement of cession, the provisions of which are set out in the Schedule to the Anglo-German Agreement Act 1890 (53 & 54 Vic. c. 32).

In a treaty of cession, the contracting states have power to transfer the allegiance of all persons connected with the ceded territory, whether present or absent. Two different principles have been recognised as determining what persons are prima facie affected by the transfer of allegiance in such cases-namely, domicile, and birth. See Westlake, International Law, Part I, pp. 70-2.

In the case of the cession of Heligoland by Great Britain to Germany, the agreement speaks, without qualification, of 'all persons

natives

of the territory thus ceded'; and must I think be taken to have adopted the criterion of birth, irrespective of domicile.

I therefore think that Mr B. though apparently domiciled in Australia at the date of cession, was, by reason of his birth in Heligoland, one of those persons whose allegiance was prima facie transferred to the German Empire, and that, not having opted for British nationality by means of a declaration made and sent in within the time limited, he is not a British subject.

[Vol. 6, p. 378]