Aliens

under the Protection of their Home State.

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 1890.1 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.
§ 319. Although aliens fall at once under the terri-
torial 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 2
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. 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 a right to demand protection from his
home State, although he may have such a right by Muni-
cipal Law. Often for political reasons States have in
certain cases refused to exercise 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
being, or by the officials or the citizens of such State,

1 53 & 54 Vict.
c. 37. See
Piggott, Exterritoriality. The Law
relating to Consular Jurisdiction, etc.
(1907); see also the Foreign Jurisdic.
tion Act, 1913 (3 & 4 Geo. v. c. 16).

2 This right has, I believe, grown
up in furtherance of intercourse be-
tween the members of the Family
of Nations (see above, § 142); Hall

(§ 87) and others deduce this indubitable right from the 'fundsmental' right of self-preservation. Borchard, § 135, accepts my view as correct.

See Moore, vi. §§ 979-997, and Wheeler in A.J., iii. (1909), pp. 869884.

if it does not interfere for the purpose of making good And this right can be exercised

the wrong done.

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 injured subjects. 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 each 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 its officials or subjects, and the like.

tion to be

Persons

perty of

§ 320. In consequence of the right of protection over Protecits subjects abroad which every State enjoys, and the afforded corresponding duty of every State to treat aliens on its to the territory with a certain consideration, an alien, pro- and Provided he owns some nationality, cannot be lawed in foreign countries, but must be afforded protection for 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

1 Concerning the responsibility of a State for its own internationally injurious acts and those of its organs and other officials and its subjects, see above, §§ 151-167, and Anzilotti in R. G., xiii. (1906), pp. 5 and 285. The right of protection over citizens

out- Aliens.

abroad is discussed in detail by
Hall, § 87, Westlake, i. pp. 327-337,
and Gaston de Leval, op. cit. Con-
cerning the right of protection of a
State over its citizens with regard to
public debts of foreign States, see
above, §§ 135 (6) and 155.

How far Aliens can be treated

according

to Discretion.

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 to grant to aliens at least equality before the law with its citizens, as far as safety of person and property is concerned. An alien must in particular 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.

§ 321. Apart from protection of person and property, every State can treat aliens according to discretion, except in so far as its discretion is restricted through international treaties. Thus, a State can exclude aliens from certain professions and trades; it can exclude them from holding real property; it can, as Great Britain did in former times 1 and again during the World War and since, compel them to have their names registered for the purpose of keeping them under control,2 and the like. Before the World War there was 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 exception that an alien could not be sole or part owner of a

1 See an Act for the Registration of Aliens, 1836 (6 & 7 William IV. c 11).

The Aliens Restriction Act, 1914 (4 & 5 Geo. v. c. 12) provides (§ 1 (1)) that His Majesty may, at any time when a state of war exists between His Majesty and any foreign Power, or when it appears that an occasion of imminent national danger

or great emergency has arisen, make an Order in Council (f) requiring aliens to comply with such provisions as to registration, change of abode, travelling or otherwise, as may be made by the Order. See also the Aliens Restriction (Amendment) Act, 1919 (9 & 10 Geo. v. c. 92), § 1, and the Aliens Order, 1920.

British ship, aliens who had taken up their domicile in this country were for all practical purposes treated by the law of the land on the same footing as British subjects. But this is no longer the case. For example, the Aliens Restriction (Amendment) Act, 1919,1 provides, among other disabilities, that no alien is to hold a pilotage certificate for any pilotage district in the United Kingdom,2 or act as master, chief officer, or chief engineer of a British merchant ship registered in the United Kingdom, or as skipper or second hand of a British fishing boat,2 or receive an appointment to the Civil Service. Further restrictions are imposed by this Act on former enemy aliens.

from the

§ 322. Since a State holds only territorial and not Departure personal supremacy over an alien within its boundaries, Foreign it can never, under any circumstances, prevent him from Country. leaving its territory, provided he has fulfilled his local obligations, such 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,3 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 of a State, which was formerly frequently exercised, to confiscate the whole estate of an alien deceased on its territory. 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 5 of 1894, such duties can. likewise be levied in case of an alien dying on its territory.

Competence to expel Aliens.

VIII

EXPULSION OF ALIENS

Hall, § 63-Westlake, i. p. 217-Phillimore, i. § 364-Halleck, i. pp. 493-494 -Taylor, § 186-Walker, § 19-Wharton, ii. § 206-Moore, iv. $$ 550559-Hershey, No. 247-Bluntschli, §§ 383-384-Stoerk in Holtzendorf, ii. pp. 644-650-Ullmann, § 115-Bonfils, No. 442-Despagnet, Nos. 336-337-Pradier-Fodéré, iii. Nos. 1857-1859-Rivier, i. pp. 311-314– Nys, ii. pp. 284-289-Calvo, vi. §§ 119-125-Fiore, Code, Nos. 257-264Martens, 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)—Martini, L'Expulsion des Étrangers (1909)-Borchard, §§ 27-32 -Rolin-Jaequemyns in R.I., xx. (1888), pp. 499 and 615-Proceedingı of the American Society of International Law (1911), pp. 119-150.

§ 323. Just as a State is competent to refuse admittance to an alien, so, in conformity with its territorial supremacy, it is competent to expel at any moment an alien who has been admitted into its territory. And it matters not whether that individual is only on a temporary visit, or has settled down for professional or business purposes on its 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 had, until December 1919, 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, except during war or on an occasion of imminent national danger or great emergency.1 And in Switzerland, Article

case also of such aliens dying abroad
as leave 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. On the question of estate
duties in general, see Meynen, Die
Erbschaftssteuer im internationalen

Rechte (1912).

1 Aliens Restriction Act, 1914 But the Aliens Restriction (Amendment) Act, 1919, authorises the making of an Order in Council for the deportation of any aliens during the ensuing year and contains special provisions regarding the deportation of former enemy aliens.