Volume I Part 49 (2/2)

-- 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 s.h.i.+p, 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.

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