International Law. A Treatise Volume I Part 50

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-Fodere, 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 etrangers" (1888)--Feraud-Giraud, "Droit d'expulsion des etrangers" (1889)--Langhard, "Das Recht der politischen Fremdenausweisung" (1891)--Overbeck, "Niederla.s.sungsfreiheit 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.

[Sidenote: Competence to expel Aliens.]

-- 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 Const.i.tution 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 Munic.i.p.al 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 const.i.tute 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.

[Sidenote: Just Causes of Expulsion of Aliens.]

-- 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 Munic.i.p.al 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 Inst.i.tute 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 const.i.tutionalism 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.

[Footnote 659: Thus in 1870, during the Franco-German war, the French expelled all Germans from France, and the former South African Republic expelled in 1899, during the Boer war, almost all British subjects. See below, vol. II. -- 100.]

[Footnote 660: See details in Rivier, I. p. 312.]

[Footnote 661: See Annuaire, XII. p. 223. Many of these causes, as conviction for crimes, for instance, are certainly just causes, but others are doubtful.]

[Sidenote: Expulsion how effected.]

-- 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 circ.u.mstances 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.

[Sidenote: Reconduction in Contradistinction to Expulsion.]

-- 326. In many Continental States dest.i.tute 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 Munic.i.p.al as well as International Law.[665]

[Footnote 662: Rivier, I. p. 308, correctly distinguishes between reconduction and expulsion, but Phillimore, I. -- 364, seems to confound them.]

[Footnote 663: See above, -- 294.]

[Footnote 664: See above, -- 302, No. 3.]

[Footnote 665: It ought to be mentioned that many States have, either by special treaties or in their treaties of commerce, friendship, and the like, stipulated proper treatment of each other's dest.i.tute subjects on each other's territory.]

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-Fodere, III. Nos. 1863-1893--Merignhac, 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)--Mart.i.tz, "Internationale Rechtshilfe in Strafsachen," 2 vols. (1888 and 1897)--Bernard, "Traite theorique 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.

[Sidenote: Extradition no legal duty.]

-- 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.

[Footnote 666: II. c. 21, -- 4.]

[Footnote 667: Clarke, op. cit. pp. 1-15, tries to prove that a duty to extradite criminals does exist, but the result of all his labour is that he finds that the refusal of extradition is "a serious violation of the moral obligations which exist between civilised States" (see p. 14). But n.o.body has ever denied this as far as the ordinary criminal is concerned. The question is only whether an international _legal_ duty exists to surrender a criminal. And this _legal_ duty States have always denied.]

[Sidenote: Extradition Treaties how arisen.]

-- 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 a.s.sert 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]

[Footnote 668: The Second Pan-American Conference of 1902 produced a treaty of extradition which was signed by twelve States, namely, the United States of America, Colombia, Costa Rica, Chili, San Domingo, Ecuador, Salvador, Guatemala, Haiti, Honduras, Mexico, and Nicaragua, but this treaty has not been ratified; see the text in "Annuaire de la Vie Internationale" (1908-9), p. 461.]

[Sidenote: Munic.i.p.al Extradition Laws.]

-- 329. Some States, however, were unwilling to depend entirely upon the discretion of their Governments as regards the conclusion of extradition treaties and the procedure in extradition cases. They have therefore enacted special Munic.i.p.al Laws which enumerate those crimes for which extradition shall be granted and asked in return, and which at the same time regulate the procedure in extradition cases. These Munic.i.p.al Laws[669] furnish the basis for the conclusion of extradition treaties.

The first in the field with such an extradition law was Belgium in 1833, which remained, however, for far more than a generation quite isolated.

It was not until 1870 that England followed the example given by Belgium. English public opinion was for many years against extradition treaties at all, considering them as a great danger to individual liberty and to the competence of every State to grant asylum to political refugees. This country possessed, therefore, before 1870 a few extradition treaties only, which moreover were in many points inadequate. But in 1870 the British Government succeeded in getting Parliament to pa.s.s the Extradition Act.[670] This Act, which was amended by another in 1873[671] and a third in 1895,[672] has furnished the basis for extradition treaties of Great Britain with forty other States.[673] Belgium enacted a new extradition law in 1874. Holland enacted such a law in 1875, Luxemburg in the same year, Argentina in 1885, the Congo Free State in 1886, Peru in 1888, Switzerland in 1892.

[Footnote 669: See Mart.i.tz, "Internationale Rechtshilfe," I. pp.

747-818, where the history of all these laws is sketched and their text is printed.]

[Footnote 670: 33 & 34 Vict. c. 52.]

[Footnote 671: 36 & 37 Vict. c. 60.]

[Footnote 672: 58 & 59 Vict. c. 33. On the history of extradition in Great Britain before the Extradition Act, 1870, see Clarke, op. cit. pp.

126-166.]

[Footnote 673: The full text of these treaties is printed by Clarke, as well as Biron and Chalmers. Not to be confounded with extradition of criminals to foreign States is extradition within the British Empire from one part of the British dominions to another. This matter is regulated by the Fugitive Offenders Act, 1881 (44 & 45 Vict. c. 169).]

Such States as possess no extradition laws and whose written Const.i.tution does not mention the matter, leave it to their Governments to conclude extradition treaties according to their discretion. And in these countries the Governments are competent to extradite an individual even if no extradition treaty exists.

[Sidenote: Object of Extradition.]

-- 330. Since extradition is the delivery of an incriminated individual to the State on whose territory he has committed a crime by the State on whose territory he is for the time staying, the object of extradition can be any individual, whether he is a subject of the prosecuting State, or of the State which is required to extradite him, or of a third State.

Many States, however, as France and most other States of the European continent, have adopted the principle never to extradite one of their subjects to a foreign State, but themselves to punish subjects of their own for grave crimes committed abroad. Other States, as Great Britain and the United States, have not adopted this principle, and do extradite such of their subjects as have committed a grave crime abroad. Thus Great Britain surrendered in 1879 to Austria, where he was convicted and hanged,[674] one Tourville, a British subject, who, after having murdered his wife in the Tyrol, had fled home to England. And it must be emphasised that the object of extradition is an individual who has committed a crime abroad, whether or not he was during the commission of the criminal act physically present on the territory of the State where the crime was committed. Thus, in 1884, Great Britain surrendered one Nillins to Germany, who, by sending from Southampton forged bills of exchange to a merchant in Germany as payment for goods ordered, was considered to have committed forgery and to have obtained goods by false pretences in Germany.[675]

[Footnote 674: This case is all the more remarkable, as (see 24 & 25 Vict. c. 100, -- 9) the criminal law of England extends over murder and manslaughter committed abroad by English subjects, and as, according to article 3 of the extradition treaty of 1873 between England and Austria-Hungary, the contracting parties are in no case under obligation to extradite their own subjects.]