VI RECEPTION OF ALIENS AND RIGHT OF ASYLUM

Vattel, II. § 100—Hall, §§ 63-64—Westlake, I. pp. 208-210—Lawrence, §§ 97-98—Phillimore, I. §§ 365-370—Twiss, I. § 238—Halleck, I. pp. 452-454—Taylor, § 186—Walker, § 19—Wharton, II. § 206—Wheaton, § 115, and Dana's Note—Moore, IV. §§ 560-566—Bluntschli, §§ 381-398—Hartmann, §§ 84-85, 89—Heffter, §§ 61-63—Stoerk in Holtzendorff, II. pp. 637-650—Gareis, § 57—Liszt, § 25—Ullmann, §§ 113-115—Bonfils, Nos. 441-446—Despagnet, Nos. 339-343—Rivier, I. pp. 307-309—Nys, II. pp. 232-237—Calvo, II. §§ 701-706, VI. § 119—Martens, II. § 46—Overbeck, "Niederlassungsfreiheit und Ausweisungsrecht" (1906); Henriques, "The Law of Aliens, &c." (1906)—Sibley and Elias, "The Aliens Act, &c." (1906)—Proceedings of the American Society of International Law, 1911, pp. 65-115.

§ 314. Many writers[642] maintain that every member of the Family of Nations is bound by International Law to admit all aliens into its territory for all lawful purposes, although they agree that every State could exclude certain classes of aliens. This opinion is generally held by those who assert that there is a fundamental right of intercourse between States. It will be remembered[643] that no such fundamental right exists, but that intercourse is a characteristic of the position of the States within the Family of Nations and therefore a presupposition of the international personality of every State. A State, therefore, cannot exclude aliens altogether from its territory without violating the spirit of the Law of Nations and endangering its very membership of the Family of Nations. But no State actually does exclude aliens altogether. The question is only whether an international legal duty can be said to exist for every State to admit all unobjectionable aliens to all parts of its territory. And it is this duty which must be denied as far as the customary Law of Nations is concerned. It must be emphasised that, apart from general conventional arrangements, as, for instance, those concerning navigation on international rivers, and apart from special treaties of commerce, friendship, and the like, no State can claim the right for its subjects to enter into and reside on the territory of a foreign State. The reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy competent to exclude aliens from the whole or any part of its territory. And it is only by an inference of this competence that Great Britain,[644] the United States of America, and other States have made special laws according to which paupers and criminals, as well as diseased and other objectionable aliens, are prevented from entering their territory. Every State is and must remain master in its own house, and such mastership is of especial importance with regard to the admittance of aliens. Of course, if a State excluded all subjects of one State only, this would constitute an unfriendly act, against which retorsion would be admissible; but it cannot be denied that a State is competent to do this, although in practice such wholesale exclusion will never happen. Hundreds of treaties of commerce and friendship exist between the members of the Family of Nations according to which they are obliged to receive each other's unobjectionable subjects, and thus practically the matter is settled, although in strict law every State is competent to exclude foreigners from its territory.[645]

§ 315. It is obvious that, if a State need not receive aliens at all, it can, on the other hand, receive them under certain conditions only. Thus, for example, Russia does not admit aliens without passports, and if the alien adheres to the Jewish faith he has to submit to a number of special restrictions. Thus, further, during the time Napoleon III. ruled in France, every alien entering French territory from the sea or from neighbouring land was admitted only after having stated his name, nationality, and the place to which he intended to go. Some States, as Switzerland, make a distinction between such aliens as intend to settle down in the country and such as intend only to travel in the country; no alien is allowed to settle in the country without having asked and received a special authorisation on the part of the Government, whereas the country is unconditionally open to all mere travelling aliens.

§ 316. The fact that every State exercises territorial supremacy over all persons on its territory, whether they are its subjects or aliens, excludes the prosecution of aliens thereon by foreign States. Thus, a foreign State is, provisionally at least, an asylum for every individual who, being prosecuted at home, crosses its frontier. In the absence of extradition treaties stipulating the contrary, no State is by International Law obliged to refuse admittance into its territory to such a fugitive or, in case he has been admitted, to expel him or deliver him up to the prosecuting State. On the contrary, States have always upheld their competence to grant asylum if they choose to do so. Now the so-called right of asylum is certainly not a right of the alien to demand that the State into whose territory he has entered with the intention of escaping prosecution from some other State should grant protection and asylum. For such State need not grant them. The so-called right of asylum is nothing but the competence mentioned above of every State, and inferred from its territorial supremacy, to allow a prosecuted alien to enter and to remain on its territory under its protection, and to grant thereby an asylum to him. Such fugitive alien enjoys the hospitality of the State which grants him asylum; but it might be necessary to place him under surveillance, or even to intern him at some place in the interest of the State which is prosecuting him. For it is the duty of every State to prevent individuals living on its territory from endangering the safety of another State. And if a State grants asylum to a prosecuted alien, this duty becomes of special importance.

VII POSITION OF ALIENS AFTER RECEPTION

Vattel, I. § 213, II. §§ 101-115—Hall, §§ 63 and 87—Westlake, I. pp. 211-212, 313-316—Lawrence, §§ 97-98—Phillimore, I. §§ 332-339—Twiss, I. § 163—Taylor, §§ 173, 187, 201-203—Walker, § 19—Wharton, II. §§ 201-205—Wheaton, § 77-82—Moore, IV. §§ 534-549—Bluntschli, §§ 385-393—Hartmann, §§ 84-85—Heffter, § 62—Stoerk in Holtzendorff, II. pp. 637-650—Gareis, § 57—Liszt, § 25—Ullmann, §§ 113-115—Bonfils, Nos. 447-454—Despagnet, Nos. 339-343—Rivier, I. pp. 309-311—Calvo, II. §§ 701-706—Martens, II. § 46—Gaston de Leval, "De la protection des nationaux à l'étranger" (1907)—Wheeler in A.J. III. (1909), pp. 869-884—Proceedings of the American Society of International Law, 1911, pp. 32-65, 150-225.

§ 317. With his entrance into a State, an alien, unless he belongs to the class of those who enjoy so-called exterritoriality, falls at once under such State's territorial supremacy, although he remains at the same time under the personal supremacy of his home State. Such alien is therefore under the jurisdiction of the State in which he stays, and is responsible to such State for all acts he commits on its territory. He is further subjected to all administrative arrangements of such State which concern the very locality where the alien is. If in consequence of a public calamity, such as the outbreak of a fire or an infectious disease, certain administrative restrictions are enforced, they can be enforced against all aliens as well as against citizens. But apart from jurisdiction and mere local administrative arrangements, both of which concern all aliens alike, a distinction must be made between such aliens as are merely travelling and stay, therefore, only temporarily on the territory, and such as take their residence there either permanently or for some length of time. A State has wider power over aliens of the latter kind; it can make them pay rates and taxes, and can even compel them in case of need, under the same conditions as citizens, to serve in the local police and the local fire brigade for the purpose of maintaining public order and safety. On the other hand, an alien does not fall under the personal supremacy of the local State; therefore he cannot be made to serve[646] in its army or navy, and cannot, like a citizen, be treated according to discretion.

It must be emphasised that an alien is responsible to the local State for all illegal acts which he commits while the territory concerned is during war temporarily occupied by the enemy. An illustrative case is that of De Jager v. the Attorney-General for Natal.[647] De Jager was a burgher of the South African Republic, but a settled resident at Natal when the South African War broke out. In October 1899 the British forces evacuated that part of Natal in which Waschbank, where he lived, is situated, and the Boer forces were in occupation for some six months. He joined them, and served in different capacities until March 1900, when he went to the Transvaal, and took no further part in the war.

He was tried in March 1901, and convicted of high treason, and sentenced to five years' imprisonment and a fine of £5000, or, failing payment thereof, to a further three years.

§ 318. The rule that aliens fall under the territorial supremacy of the State they are in finds an exception in Turkey and, further, in such other Eastern States, like China, as are, in consequence of their deficient civilisation, only for some parts members of the Family of Nations. Aliens who are subjects of Christian States and enter into the territory of such Eastern States, remain wholly under the jurisdiction[648] of their home State. This exceptional condition of things is based, as regards Turkey, on custom and treaties which are called Capitulations, as regards other Eastern States on treaties only.[649] Jurisdiction over aliens in these countries is exercised by the consuls of their home States, which have enacted special Municipal Laws for that purpose. Thus, Great Britain has enacted so-called Foreign Jurisdiction Acts at several times, which are now all consolidated in the Foreign Jurisdiction Act of 1890.[650] It must be specially mentioned that Japan has since 1899 ceased to belong to the Eastern States in which aliens are exempt from local jurisdiction.

§ 319. Although aliens fall at once under the territorial supremacy of the State they enter, they remain nevertheless under the protection of their home State. By a universally recognised customary rule of the Law of Nations every State holds a right of protection[651] over its citizens abroad, to which corresponds the duty of every State to treat foreigners on its territory with a certain consideration which will be discussed below, §§ 320-322. The question here is only when and how this right of protection can be exercised.[652] Now there is certainly, as far as the Law of Nations is concerned, no duty incumbent upon a State to exercise its protection over its citizens abroad. The matter is absolutely in the discretion of every State, and no citizen abroad has by International Law, although he may have it by Municipal Law, a right to demand protection from his home State. Often for political reasons States have in certain cases refused the exercise of their right of protection over citizens abroad. Be that as it may, every State can exercise this right when one of its subjects is wronged abroad in his person or property, either by the State itself on whose territory such person or property is for the time, or by such State's officials or citizens without such State's interfering for the purpose of making good the wrong done.[653] And this right can be realised in several ways. Thus, a State whose subjects are wronged abroad can diplomatically insist upon the wrongdoers being punished according to the law of the land and upon damages, if necessary, being paid to its subjects concerned. It can, secondly, exercise retorsion and reprisals for the purpose of making the other State comply with its demands. It can, further, exercise intervention, and it can even go to war when necessary. And there are other means besides those mentioned. It is, however, quite impossible to lay down hard-and-fast rules as regards the question in which way and how far in every case the right of protection ought to be exercised. Everything depends upon the merits of the individual case and must be left to the discretion of the State concerned. The latter will have to take into consideration whether the wronged alien was only travelling through or had settled down in the country, whether his behaviour had been provocative or not, how far the foreign Government identified itself with the acts of officials or subjects, and the like.

§ 320. Under the influence of the right of protection over its subjects abroad which every State holds, and the corresponding duty of every State to treat aliens on its territory with a certain consideration, an alien, provided he owns a nationality at all, cannot be outlawed in foreign countries, but must be afforded protection of his person and property. The home State of the alien has by its right of protection a claim upon such State as allows him to enter its territory that such protection shall be afforded, and it is no excuse that such State does not provide any protection whatever for its own subjects. In consequence thereof every State is by the Law of Nations compelled, at least, to grant to aliens equality before the law with its citizens as far as safety of person and property is concerned. An alien must in especial not be wronged in person or property by the officials and Courts of a State. Thus, the police must not arrest him without just cause, custom-house officials must treat him civilly, Courts of Justice must treat him justly and in accordance with the law. Corrupt administration of the law against natives is no excuse for the same against aliens, and no Government can cloak itself with the judgment of corrupt judges.

§ 321. Apart from protection of person and property, every State can treat aliens according to discretion, those points excepted concerning which discretion is restricted through international treaties between the States concerned. Thus, a State can exclude aliens from certain professions and trades; it can, as Great Britain did formerly and Russia does even to-day, exclude them from holding real property; it can, as again Great Britain[654] did in former times, compel them to have their names registered for the purpose of keeping them under control, and the like. It must, however, be stated that there is a tendency within all the States which are members of the Family of Nations to treat admitted aliens more and more on the same footing as citizens, political rights and duties, of course, excepted. Thus, for instance, with the only exception that an alien cannot be sole or part owner of a British ship, aliens having taken up their domicile in this country are for all practical purposes treated by the law[655] of the land on the same footing as British subjects.

§ 322. Since a State holds territorial only, but not personal supremacy over an alien within its boundaries, it can never under any circumstances prevent him from leaving its territory, provided he has fulfilled his local obligations, as payment of rates and taxes, of fines, of private debts, and the like. And an alien leaving a State can take all his property away with him, and a tax for leaving the country or tax upon the property he takes away with him[656] cannot be levied. And it must be specially mentioned that since the beginning of the nineteenth century the so-called droit d'aubaine belongs to the past; this is the name of the right, which was formerly frequently exercised, of a State to confiscate the whole estate of an alien deceased on its territory.[657] But if a State levies estate duties in the case of a citizen dying on its territory, as Great Britain does according to the Finance Act[658] of 1894, such duties can likewise be levied in case of an alien dying on its territory.

VIII EXPULSION OF ALIENS

Hall, § 63—Westlake, I. p. 210—Phillimore, I. § 364—Halleck, I. pp. 460-461—Taylor, § 186—Walker, § 19—Wharton, II. § 206—Moore, IV. §§ 550-559—Bluntschli, §§ 383-384—Stoerk in Holtzendorff, II. pp. 646-656—Ullmann, § 115—Bonfils, No. 442—Despagnet, Nos. 336-337—Pradier-Fodéré, III. Nos. 1857-1859—Rivier, I. pp. 311-314—Nys, II. pp. 229-237—Calvo, VI. §§ 119-125—Fiore, Code, Nos. 252-259—Martens, I. § 79—Bleteau, "De l'asile et de l'expulsion" (1886)—Berc, "De l'expulsion des étrangers" (1888)—Féraud-Giraud, "Droit d'expulsion des étrangers" (1889)—Langhard, "Das Recht der politischen Fremdenausweisung" (1891)—Overbeck, "Niederlassungsfreiheit und Ausweisungsrecht" (1906)—Rolin-Jaequemyns in R.I. XX. (1888), pp. 499 and 615—Proceedings of the American Society of International Law, 1911, pp. 119-149.

§ 323. Just as a State is competent to refuse admittance to an alien, so it is, in conformity with its territorial supremacy, competent to expel at any moment an alien who has been admitted into its territory. And it matters not whether the respective individual is only on a temporary visit or has settled down for professional or business purposes on that territory, having taken his domicile thereon. Such States, of course, as have a high appreciation of individual liberty and abhor arbitrary powers of Government will not readily expel aliens. Thus, the British Government has no power to expel even the most dangerous alien without the recommendation of a Court, or without an Act of Parliament making provision for such expulsion. And in Switzerland, article 70 of the Constitution empowers the Government to expel such aliens only as endanger the internal and external safety of the land. But many States are in no way prevented by their Municipal Law from expelling aliens according to discretion, and examples of arbitrary expulsion of aliens, who had made themselves objectionable to the respective Governments, are numerous in the past and the present.

On the other hand, it cannot be denied that, especially in the case of expulsion of an alien who has been residing within the expelling State for some length of time and has established a business there, the home State of the expelled individual is by its right of protection over citizens abroad justified in making diplomatic representations to the expelling State and asking for the reasons for the expulsion. But as in strict law a State can expel even domiciled aliens without so much as giving the reasons, the refusal of the expelling State to supply the reasons for expulsion to the home State of the expelled alien does not constitute an illegal, although a very unfriendly, act. And there is no doubt that every expulsion of an alien without just cause is, in spite of its international legality, an unfriendly act, which can rightfully be met with retorsion.

§ 324. On account of the fact that retorsion might be justified, the question is of importance what just causes of expulsion of aliens there are. As International Law gives no detailed rules regarding expulsion, everything is left to the discretion of the single States and depends upon the merits of the individual case. Theory and practice correctly make a distinction between expulsion in time of war and in time of peace. A belligerent may consider it convenient to expel all enemy subjects residing or temporarily staying within his territory. And, although such a measure may be very hard and cruel, the opinion is general that such expulsion is justifiable.[659] As regards expulsion in time of peace, on the other hand, the opinions of writers as well as of States naturally differ much. Such State as expels an alien will hardly admit not having had a just cause. Some States, as Belgium[660] since 1885, possess Municipal Laws determining just causes for the expulsion of aliens, and such States' discretion concerning expulsion is, of course, more or less restricted. But many States do not possess such laws, and are, therefore, entirely at liberty to consider a cause as justifying expulsion or not. The Institute of International Law at its meeting at Geneva in 1892 adopted a body of forty-one articles concerning the admittance and expulsion of aliens, and in article 28 thereof enumerated nine just causes for expulsion in time of peace.[661] I doubt whether the States will ever come to an agreement about just causes of expulsion. The fact cannot be denied that an alien is more or less a guest in the foreign land, and the question under what conditions such guest makes himself objectionable to his host cannot once for all be answered by the establishment of a body of rules. So much is certain, that with the gradual disappearance of despotic views in the different States, and with the advance of true constitutionalism guaranteeing individual liberty and freedom of opinion and speech, expulsion of aliens, especially for political reasons, will become less frequent. Expulsion will, however, never totally disappear, because it may well be justified. Thus, for example, Prussia after the annexation of the formerly Free Town of Frankfort-on-the-Main, was certainly justified in expelling those individuals who, for the purpose of avoiding military service in the Prussian Army, had by naturalisation become Swiss citizens without giving up their residence at Frankfort.

§ 325. Expulsion is, in theory at least, not a punishment, but an administrative measure consisting in an order of the Government directing a foreigner to leave the country. Expulsion must therefore be effected with as much forbearance and indulgence as the circumstances and conditions of the case allow and demand, especially when compulsion is meted out to a domiciled alien. And the home State of the expelled, by its right of protection over its citizens abroad, may well insist upon such forbearance and indulgence. But this is valid as regards the first expulsion only. Should the expelled refuse to leave the territory voluntarily or, after having left, return without authorisation, he may be arrested, punished, and forcibly brought to the frontier.

§ 326. In many Continental States destitute aliens, foreign vagabonds, suspicious aliens without papers of legitimation, alien criminals who have served their punishment, and the like, are without any formalities arrested by the police and reconducted to the frontier. There is no doubt that the competence for such reconduction, which is often called droit de renvoi, is an inference from the territorial supremacy of every State, for there is no reason whatever why a State should not get rid of such undesirable aliens as speedily as possible. But although such reconduction is materially not much different from expulsion, it nevertheless differs much from this in form, since expulsion is an order to leave the country, whereas reconduction is forcible conveying away of foreigners.[662] The home State of such reconducted aliens has the duty to receive them, since, as will be remembered,[663] a State cannot refuse to receive such of its subjects as are expelled from abroad. Difficulties arise, however, sometimes concerning the reconduction of such alien individuals as have lost their nationality through long-continued absence[664] from home without having acquired another nationality abroad. Such cases are a further example of the fact that the very existence of stateless individuals is a blemish in Municipal as well as International Law.[665]

IX EXTRADITION

Hall, §§ 13 and 63—Westlake, I. pp. 241-251—Lawrence, §§ 110-111—Phillimore, I. §§ 365-389D—Twiss, I. § 236—Halleck, I. pp. 257-268—Taylor, §§ 205-211—Walker, § 19—Wharton, II. §§ 268-282—Wheaton, §§ 115-121—Moore, IV. §§ 579-622—Bluntschli, §§ 394-401—Hartmann, § 89—Heffter, § 63—Lammasch in Holtzendorff, III. pp. 454-566—Liszt, § 33—Ullmann, §§ 127-131—Bonfils, Nos. 455-481—Despagnet, Nos. 276-286—Pradier-Fodéré, III. Nos. 1863-1893—Mérignhac, II. pp. 732-777—Rivier, I. pp. 348-357—Nys, II. pp. 244-253—Calvo, II. §§ 949-1071—Fiore, Code, Nos. 584-586—Martens, II. §§ 91-98—Spear, "The Law of Extradition" (1879)—Lammasch, "Auslieferungspflicht und Asylrecht" (1887)—Martitz, "Internationale Rechtshilfe in Strafsachen," 2 vols. (1888 and 1897)—Bernard, "Traité théorique et pratique de l'extradition," 2 vols. (2nd ed. 1890)—Moore, "Treatise on Extradition" (1891)—Hawley, "The Law of International Extradition" (1893)—Clark, "The Law of Extradition" (3rd ed. 1903)—Biron and Chalmers, "The Law and Practice of Extradition" (1903)—Piggott, "Extradition" (1910)—Lammasch in R.G. III. (1896), pp. 5-14—Diena in R.G. XII. (1905), pp. 516-544—See the French, German, and Italian literature concerning extradition quoted by Fauchille in Bonfils, No. 455.

§ 327. Extradition is the delivery of a prosecuted individual to the State on whose territory he has committed a crime by the State on whose territory the criminal is for the time staying. Although Grotius[666] holds that every State has the duty either to punish or to surrender to the prosecuting State such individuals within its boundaries as have committed a crime abroad, and although there is as regards the majority of such cases an important interest of civilised mankind that this should be done, this rule of Grotius has never been adopted by the States and has, therefore, never become a rule of the Law of Nations. On the contrary, States have always upheld their competence to grant asylum to foreign individuals as an inference from their territorial supremacy, those cases, of course, excepted which fall under stipulations of special extradition treaties, if any. There is, therefore, no universal rule of customary International Law in existence which commands[667] extradition.

§ 328. Since, however, modern civilisation categorically demands extradition of criminals as a rule, numerous treaties have been concluded between the several States stipulating the cases in which extradition shall take place. According to these treaties, individuals prosecuted for the more important crimes, political crimes excepted, are actually always surrendered to the prosecuting State, if not punished locally. But this solution of the problem of extradition is a product of the nineteenth century only. Before the eighteenth century extradition of ordinary criminals hardly ever occurred, although many States used then frequently to surrender to each other political fugitives, heretics, and even emigrants, either in consequence of special treaties stipulating the surrender of such individuals, or voluntarily without such treaties. Matters began to undergo a change in the eighteenth century, for then treaties between neighbouring States frequently stipulated extradition of ordinary criminals besides that of political fugitives, conspirators, military deserters, and the like. Vattel (II. § 76) is able to assert in 1758 that murderers, incendiaries, and thieves are regularly surrendered by neighbouring States to each other. But general treaties of extradition between all the members of the Family of Nations did not exist in the eighteenth century, and there was hardly a necessity for such general treaties, since traffic was not so developed as nowadays and fugitive criminals seldom succeeded in reaching a foreign territory beyond that of a neighbouring State. When, however, in the nineteenth century, with the appearance of railways and Transatlantic steamships, transit began to develop immensely, criminals used the opportunity to flee to distant foreign countries. It was then and thereby that the conviction was forced upon the States of civilised humanity that it was in their common interest to surrender ordinary criminals regularly to each other. General treaties of extradition became, therefore, a necessity, and the several States succeeded in concluding such treaties with each other. There is no civilised State in existence nowadays which has not concluded such treaties with the majority of the other civilised States. And the consequence is that, although no universal rule of International Law commands it, extradition of criminals between States is an established fact based on treaties. The present condition of affairs is, however, very unsatisfactory, since there are many hundreds of treaties in existence which do not at all agree in their details. What is required nowadays, and what will certainly be realised in the near future, is a universal treaty of extradition, one single treaty to which all the civilised States become parties.[668]