Volume I Part 49 (1/2)
(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 members.h.i.+p 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, friends.h.i.+p, 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 masters.h.i.+p 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 friends.h.i.+p 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.]