Chapter III: Individuals (2)

§ 313. Double as well as absent nationality of individuals has from time to time created many difficulties for the States concerned. As regards the remedy for such difficulties, it is comparatively easy to meet those created by absent nationality. If the number of stateless individuals increases much within a certain State, the latter can require them to apply for naturalisation or to leave the country; it can even naturalise them by Municipal Law against their will, as no other State will, or has a right to, interfere, and as, further, the very fact of the existence of individuals destitute of nationality is a blemish in Municipal as well as in International Law. Much more difficult is it, however, to find, within the limits of the present rules of the Law of Nations, means of redress against conflicts arising from double nationality. Very grave disputes indeed have occasionally occurred between States on account of individuals who were claimed as subjects by both sides. Thus, in 1812, a time when England still kept to her old rule that no natural-born English subject could lose his nationality, the United States went to war with England because the latter impressed Englishmen naturalised in America from on board American merchantmen, claiming the right to do so, as according to her law these men were still English citizens. Thus, further, Prussia frequently had during the sixties of the last century disputes with the United States on account of Prussian individuals who, without having rendered military service at home, had emigrated to America to become there naturalised and had afterwards returned to Prussia.[639] Again, during the time of the revolutionary movements in Ireland in the last century before the Naturalisation Act of 1870 was passed, disputes arose between Great Britain and the United States on account of such Irishmen as took part in these revolutionary movements after having become naturalised in the United States.[640] It would seem that the only way in which all the difficulties arising from double and absent nationality could really be done away with is for all the Powers to agree upon an international convention, according to which they undertake the obligation to enact by their Municipal Law such corresponding rules regarding acquisition and loss of nationality as make the very occurrence of double and absent nationality impossible.[641]

[Footnote 639: The case of Martin Koszta ought here to be mentioned, details of which are reported by Wharton, II. § 175; Moore, III. §§ 490-491, and Martens, "Causes Célèbre," V. pp. 583-599. Koszta was a Hungarian subject who took part in the revolutionary movement of 1848, escaped to the United States, and in July, 1852, made a declaration under oath, before a proper tribunal, of his intention to become naturalised there. After remaining nearly two years in the United States, but before he was really naturalised, he visited Turkey, and obtained a _tezkereh_, a kind of letter of safe-conduct, from the American Chargé d'Affaires at Constantinople. Later on, while at Smyrna, he was seized by Austrian officials and taken on board an Austrian man-of-war with the intention of bringing him to Austria, to be there punished for his part in the revolution of 1848. The American Consul demanded his release, but Austria maintained that she had a right to arrest Koszta according to treaties between her and Turkey. Thereupon the American man-of-war _Saint Louis_ threatened to attack the Austrian man-of-war in case she would not give up her prisoner, and an arrangement was made that Koszta should be delivered into the custody of the French Consul at Smyrna until the matter was settled between the United States and Austrian Governments. Finally, Austria consented to Koszta's being brought back to America. Although Koszta was not yet naturalised, the United States claimed a right of protection over him, since he had taken his domicile on her territory with the intention to become there naturalised in due time, and had thereby in a sense acquired the national character of an American.]

[Footnote 640: The United States have, through the so-called "Bancroft Treaties," attempted to overcome conflicts arising from double nationality. The first of these treaties was concluded in 1868 with the North German Confederation, the precursor of the present German Empire, and signed on behalf of the United States by her Minister in Berlin, George Bancroft. (See Wharton, II. §§ 149 and 179, and Moore, III. §§ 391-400.) In the same and the following years treaties of the same kind were concluded with many other States, the last with Portugal in 1908. A treaty of another kind, but with the same object, was concluded between the United States and Great Britain on May 13, 1870. (See Martens, N.R.G. XX. p. 524, and Moore, III. § 397.) All these treaties stipulate that naturalisation in one of the contracting States shall be recognised by the other, whether the naturalised individual has or has not previously been released from his original citizenship, provided he has resided for five years in such country. And they further stipulate that such naturalised individuals, in case they return after naturalisation into their former home State and take their residence there for some years, either _ipso facto_ become again subjects of their former home State and cease to be naturalised abroad (as the Bancroft Treaties), or can be reinstated in their former citizenship, and cease thereby to be naturalised abroad (as the treaty with Great Britain).]

[Footnote 641: The Institute of International Law has studied the matter, and formulated at its meeting in Venice in 1896 six rules, which, if adopted on the part of the different States, would do away with many of the difficulties. (See Annuaire, XV. p. 270.)]

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.

[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 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]

[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 Institute 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 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.

[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 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.

[Sidenote: Aliens subjected to territorial Supremacy.]

§ 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.

[Footnote 646: See, however, above, § 127, concerning the attitude 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 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.

[Footnote 647: L.R. [1907] App. C., 326. See Baty in _The Law Magazine and Review_, XXXIII. (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 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.

[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 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.

[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 Municipal 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 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.

[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.
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.

[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 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.

[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 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.

[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 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.

[Sidenote: Reconduction in Contradistinction to Expulsion.]

§ 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]

[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 destitute 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-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.

[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 nobody 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 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]

[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: Municipal 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 Municipal 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 Municipal 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 pass 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 Martitz, "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 Constitution 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.]

[Footnote 675: See Clarke, op. cit. pp. 177 and 262, who, however, disapproves of this surrender.]

A conflict between International and Municipal Law arises if a certain individual must be extradited according to an extradition treaty, but cannot be extradited according to the Municipal Law of the State from which extradition is demanded. Thus in the case of Salvatore Paladini,[676] whose extradition was demanded by the United States of America from the Italian Government in 1888 for having passed counterfeit money, Italian Municipal Law, which prohibits the extradition of an Italian citizen, came into conflict with article 1 of the Extradition Treaty of 1868 between Italy and the United States which stipulates extradition of criminals without exempting nationals. For this reason Italy refused to extradite Paladini. It is noteworthy that the United States, although they do not any longer press for extradition of Italian subjects who, after having committed a crime in the United States have returned to Italy, nevertheless consider themselves bound by the above-mentioned treaty of 1868 to extradite to Italy such American subjects as have committed a crime in Italy. Therefore, when in 1910 the Italian Government demanded from the United States extradition of one Porter Charlton,[677] an American citizen, for having committed a murder in Italy, extradition was granted.

[Footnote 676: See Moore, IV. § 594, pp. 290-297.]

[Footnote 677: See A.J. V. (1911), pp. 182-191.]

[Sidenote: Extraditable Crimes.]

§ 331. Unless a State is restricted by an extradition law, it can grant extradition for any crime it thinks fit. And unless a State is bound by an extradition treaty, it can refuse extradition for any crime. Such States as possess extradition laws frame their extradition treaties conformably therewith and specify in those treaties all those crimes for which they are willing to grant extradition. And no person is to be extradited whose deed is not a crime according to the Criminal Law of the State which is asked to extradite, as well as of the State which demands extradition. As regards Great Britain, the following are extraditable crimes according to the Extradition Act of 1870:--Murder and manslaughter; counterfeiting and uttering counterfeit money; forgery and uttering what is forged; embezzlement and larceny; obtaining goods or money by false pretences; crimes by bankrupts against bankruptcy laws; fraud by a bailee, banker, agent, factor, trustee, or by a director, or member, or public officer of any company; rape; abduction; child stealing; burglary and housebreaking; arson; robbery with violence; threats with intent to extort; piracy by the Law of Nations; sinking or destroying a vessel at sea; assaults on board ship on the High Seas with intent to destroy life or to do grievous bodily harm; revolt or conspiracy against the authority of the master on board a ship on the High Seas. The Extradition Acts of 1873 and 1906 added the following crimes to the list:--Kidnapping, false imprisonment, perjury, subornation of perjury, and bribery.

Political criminals are, as a rule, not extradited,[678] and according to many extradition treaties military deserters and such persons as have committed offences against religion are likewise excluded from extradition.

[Footnote 678: See below, §§ 333-340.]

[Sidenote: Effectuation and Condition of Extradition.]

§ 332. Extradition is granted only if asked for, and after the formalities have taken place which are stipulated in the treaties of extradition and the extradition laws, if any. It is effected through handing over the criminal by the police of the extraditing State to the police of the prosecuting State. But it must be emphasised that, according to most extradition treaties, it is a condition that the extradited individual shall be tried and punished for those crimes exclusively for which his extradition has been asked and granted, or for those at least which the extradition treaty concerned enumerates.[679] If, nevertheless, an extradited individual is tried and punished for another crime, the extraditing State has a right of intervention.[680]

[Footnote 679: See Mettgenberg in the "Zeitschrift für internationales Recht," XVIII. (1908), pp. 425-430.]

[Footnote 680: It ought to be mentioned that the Institute of International Law in 1880, at its meeting in Oxford (see Annuaire, V. p. 117), adopted a body of twenty-six rules concerning extradition.]

An important question is whether, in case a criminal, who has succeeded in escaping into the territory of another State, is erroneously handed over, without the formalities of extradition having been complied with, by the police of the local State to the police of the prosecuting State, such local State can demand that the prosecuting State shall send the criminal back and ask for his formal extradition. This question was decided in the negative in February 1911 by the Court of Arbitration at the Hague in the case of France _v._ Great Britain concerning Savarkar. This British-Indian subject, who was prosecuted for high treason and abatement of murder, and was being transported in the P. and O. boat _Morea_ to India for the purpose of standing his trial there, escaped to the shore on October 25, 1910, while the vessel was in the harbour of Marseilles. He was, however, seized by a French policeman, who, erroneously and without further formalities, reconducted him to the _Morea_ with the assistance of individuals from the vessel who had raised a hue-and-cry. Since Savarkar was _prima facie_ a political criminal, France demanded that England should give him up and should request his extradition in a formal way, but England refused to comply with this demand, and the parties, therefore, agreed to have the conflict decided by the Court of Arbitration at the Hague. The award, while admitting that an irregularity had been committed by the reconduction of Savarkar to the British vessel, decided, correctly, I believe, in favour of Great Britain, asserting that there was no rule of International Law imposing, in circumstances such as those which have been set out above, any obligation on the Power which has in its custody a prisoner, to restore him on account of a mistake committed by the foreign agent who delivered him up to that Power.[681] It should be mentioned that the French Government had been previously informed of the fact that Savarkar would be a prisoner on board the _Morea_ while she was calling at Marseilles, and had agreed to this.

[Footnote 681: See Hamelin, "L'Affaire Savarkar" (Extrait du "Recueil général de Jurisprudence, de Doctrine et de Législation coloniales," 1911), who defends the French view. The award of the Court of Arbitration has been severely criticised by Baty in the _Law Magazine and Review_, XXXVI. (1911), pp. 326-330; Kohler in Z.V. V. (1911), pp. 202-211; Strupp, "Zwei praktische Fälle aus dem Völkerrecht" (1911), pp. 12-26; Robin in R.G. XVIII. (1911), pp. 303-352; Hamel in R.I. 2nd Ser. XIII. (1911), pp. 370-403.]

X

PRINCIPLE OF NON-EXTRADITION OF POLITICAL CRIMINALS

Westlake, I. pp. 247-248--Lawrence, § 111--Taylor, § 212--Wharton,
II. § 272--Moore, IV. § 604--Bluntschli, § 396--Hartmann, §
89--Lammasch in Holtzendorff, III. pp. 485-510--Liszt, §
33--Ullmann, § 129--Rivier, I. pp. 351-357--Nys, II. pp.
253-256--Calvo, II. §§ 1034-1036--Martens, II. § 96--Bonfils, Nos.
466-467--Pradier-Fodéré, III. Nos. 1871-1873--Mérignhac, II. pp.
754-771--Soldan, "L'extradition des criminels politiques"
(1882)--Martitz, "Internationale Rechtshilfe in Strafsachen," vol.
II. (1897), pp. 134-707--Lammasch, "Auslieferungspflicht und
Asylrecht" (1887), pp. 203-355--Grivaz, "Nature et effets du
principe de l'asyle politique" (1895)--Piggott, "Extradition"
(1910), pp. 42-60--Scott in A.J. III. (1909), pp. 459-461.

[Sidenote: How Non-extradition of Political Criminals became the Rule.]

§ 333. Before the French Revolution[682] the term "political crime" was unknown in either the theory or the practice of the Law of Nations. And the principle of non-extradition of political criminals was likewise non-existent. On the contrary, whereas extradition of ordinary criminals was, before the eighteenth century at least, hardly ever stipulated, treaties very often stipulated the extradition of individuals who had committed such deeds as are nowadays termed "political crimes," and such individuals were frequently extradited even when no treaty stipulated it.[683] And writers in the sixteenth and seventeenth centuries did not at all object to such practice on the part of the States; on the contrary, they frequently approved of it.[684] It is indirectly due to the French Revolution that matters gradually underwent a change, since this event was the starting-point for the revolt in the nineteenth century against despotism and absolutism throughout the western part of the European continent. It was then that the term "political crime" arose, and article 120 of the French Constitution of 1793 granted asylum to foreigners exiled from their home country "for the cause of liberty." On the other hand, the French emigrants, who had fled from France to escape the Reign of Terror, found an asylum in foreign States. However, the modern principle of non-extradition of political criminals even then did not conquer the world. Until 1830 political criminals frequently were extradited. But public opinion in free countries began gradually to revolt against such extradition, and Great Britain was its first opponent. The fact that several political fugitives were surrendered by the Governor of Gibraltar to Spain created a storm of indignation in Parliament in 1815, where Sir James Mackintosh proclaimed the principle that no nation ought to refuse asylum to political fugitives. And in 1816 Lord Castlereagh declared that there could be no greater abuse of the law than by allowing it to be the instrument of inflicting punishment on foreigners who had committed political crimes only. The second in the field was Switzerland, the asylum for many political fugitives from neighbouring countries, when, after the final defeat of Napoleon, the reactionary Continental monarchs refused the introduction of constitutional reforms which were demanded by their peoples. And although, in 1823, Switzerland was forced by threats of the reactionary leading Powers of the Holy Alliance to restrict somewhat the asylum afforded by her to individuals who had taken part in the unsuccessful political revolts in Naples and Piedmont, the principle of non-extradition went on fighting its way. The question as to that asylum was discussed with much passion in the press of Europe. And although the principle of non-extradition was far from becoming universally recognised, that discussion indirectly fostered its growth. A practical proof thereof is that in 1830 even Austria and Prussia, two of the reactionary Powers of that time, refused Russia's demand for extradition of fugitives who had taken part in the Polish Revolution of that year. And another proof thereof is that at about the same time, in 1829, a celebrated dissertation[685] by a Dutch jurist made its appearance, in which the principle of non-extradition of political criminals was for the first time defended with juristic arguments and on a juristic basis.

[Footnote 682: I follow in this section for the most part the summary of the facts given by Martitz, op. cit. II. pp. 134-184.]

[Footnote 683: Martitz, op. cit. II. p. 177, gives a list of important extraditions of political criminals which took place between 1648 and 1789.]

[Footnote 684: So Grotius, II. c. 21, § 5, No. 5.]

[Footnote 685: H. Provó Kluit, "De deditione profugorum."]