International Law. A Treatise Volume I Part 49

(1906)--Proceedings of the American Society of International Law, 1911, pp. 65-115.

[Sidenote: No Obligation to admit Aliens.]

-- 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 cla.s.ses of aliens. This opinion is generally held by those who a.s.sert 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 un.o.bjectionable 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 const.i.tute 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 un.o.bjectionable subjects, and thus practically the matter is settled, although in strict law every State is competent to exclude foreigners from its territory.[645]

[Footnote 642: See, for instance, Bluntschli, -- 381, and Liszt, -- 25.]

[Footnote 643: See above, -- 141.]

[Footnote 644: See the Aliens Act, 1905 (5 Edw. VII. c. 13). See also Henriques, "The Law of Aliens, &c." (1906), and Sibley and Elias, "The Aliens Act, &c." (1906).]

[Footnote 645: The Inst.i.tute of International Law has studied the matter, and adopted, at its meeting at Geneva in 1892 (see Annuaire, XII. p. 219), a body of forty-one articles concerning the admission and expulsion of aliens; articles 6-13 deal with the admittance of aliens.]

[Sidenote: Reception of Aliens under conditions.]

-- 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 pa.s.sports, 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.

[Sidenote: So-called Right of Asylum.]

-- 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 a l'etranger" (1907)--Wheeler in A.J. III. (1909), pp.

869-884--Proceedings of the American Society of International Law, 1911, pp. 32-65, 150-225.

[Sidenote: Aliens subjected to territorial Supremacy.]

-- 317. With his entrance into a State, an alien, unless he belongs to the cla.s.s 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.

[Footnote 646: See, however, above, -- 127, concerning the att.i.tude of Great Britain with regard to aliens in British colonies.]

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 ill.u.s.trative 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.

[Footnote 647: L.R. [1907] App. C., 326. See Baty in _The Law Magazine and Review_, x.x.xIII. (1908), pp. 214-218, who disapproves of the conviction of De Jager.]

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.

[Sidenote: Aliens in Eastern Countries.]

-- 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 Munic.i.p.al 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 j.a.pan has since 1899 ceased to belong to the Eastern States in which aliens are exempt from local jurisdiction.

[Footnote 648: See below, -- 440.]

[Footnote 649: See Twiss, I. -- 163, who enumerates many of these treaties; see also Phillimore, I. ---- 336-339; Hall, "Foreign Powers and Jurisdiction," ---- 59-91; and Scott, "The Law affecting Foreigners in Egypt as the Result of the Capitulations" (1907).]

[Footnote 650: 53 & 54 Vict. c. 37. See Piggott, "Exterritoriality. The Law relating to Consular Jurisdiction, &c.," new edition (1907).]

[Sidenote: Aliens under the Protection of their Home State.]

-- 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 inc.u.mbent 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 Munic.i.p.al 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.

[Footnote 651: This right has, I believe, grown up in furtherance of intercourse between the members of the Family of Nations (see above, -- 142); Hall (-- 87) and others deduce this indubitable right from the "fundamental" right of self-preservation.]

[Footnote 652: See Moore, VI. ---- 979-997, and Wheeler in A.J. III.

(1909), pp. 869-884.]

[Footnote 653: Concerning the responsibility of a State for internationally injurious acts of its own, its organs and other officials, and its subjects, see above, ---- 151-167, and Anzilloti in R.G. XIII. (1906), pp. 5 and 285. The right of protection over citizens abroad is discussed in detail by Hall, -- 87, Westlake, I. pp. 313-320, and Gaston de Leval, op. cit. Concerning the right of protection of a State over its citizens with regard to public debts of foreign States, see above, ---- 135 (6) and 155.]

[Sidenote: Protection to be afforded to Aliens' Persons and Property.]

-- 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.

[Sidenote: How far Aliens can be treated according to Discretion.]

-- 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.

[Footnote 654: See an Act for the Registration of Aliens, &c., 1836 (6 & 7 William IV. c. 11).]

[Footnote 655: That aliens cannot now any longer belong to the London Stock Exchange, is an outcome not of British Munic.i.p.al Law, but of regulations of the Stock Exchange.]

[Sidenote: Departure from the Foreign Country.]

-- 322. Since a State holds territorial only, but not personal supremacy over an alien within its boundaries, it can never under any circ.u.mstances 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.

[Footnote 656: So-called _gabella emigrationis_.]

[Footnote 657: See details in Wheaton, -- 82. The _droit d'aubaine_ was likewise named _jus albinagii_.]

[Footnote 658: 57 & 58 Vict. c. 30. Estate duty is levied in Great Britain in the case also of such alien dying abroad as leaves movable property in the United Kingdom without having ever been resident there.

As far as the Law of Nations is concerned, it is doubtful whether Great Britain is competent to claim estate duties in such cases.]

VIII

EXPULSION OF ALIENS

Hall, -- 63--Westlake, I. p. 210--Phillimore, I. -- 364--Halleck, I.