receive them under certain conditions only. Thus, for example, Russia does not admit foreigners without passports, and if the foreigner 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 foreigner entering French territory from the sea or from neighbouring land was admitted only after having stated his name, nationality, and the place he intended to go to. Some States, as Switzerland, make a distinction between such foreigners as intend to settle down in the country and such as intend to travel only in the country; no foreigner 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 foreigners.

Right of

§ 316. The fact that every State exercises terri- So-called torial supremacy over all persons on its territory, Asylum. whether they are its subjects or foreigners, excludes the prosecution of foreigners 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 foreigner 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 foreigner to enter and to remain on its territory under its protection, and to grant thereby an asylum to him. Such fugitive foreigner 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 foreigner, this duty becomes of special importance.

to Terri

VII

POSITION OF FOREIGNERS AFTER RECEPTION

Vattel, I. § 213, II. §§ 101-115-Hall, $$ 63 and 87-Westlake, I. pp. 211-212, 313-316-Lawrence, §§ 117-118-Phillimore, I. §§ 332-339-Twiss, I. § 163—Taylor, §§ 173, 187, 201–203— Walker, 19—Wharton, II. §§ 201-205-Wheaton, §§ 77-82Bluntschli, §§ 385-393-Hartmann, §§ 84-85-Heffter, § 62Stoerk in Holtzendorff, II. pp. 637-650-Gareis, § 57-Liszt, § 25 -Ullmann, § 102-Bonfils, Nos. 447-454-Despagnet, Nos. 340362-Rivier, I. pp. 309-311-Calvo, II. §§ 701-706—Martens, II. $ 46.

Foreigners § 317. With his entrance into a State, a foreigner, subjected unless he belongs to the class of those who enjoy torial Su so-called exterritoriality, falls at once under such premacy. State's territorial supremacy, although he remains at

the same time under the personal supremacy of his home State. Such foreigner 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 foreigner 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 foreigners as well as against citizens. But apart from jurisdiction and mere local administrative arrangements, both of which concern all foreigners alike, a distinction must be made between such foreigners as are merely travelling and stay, therefore, only temporarily on the territory, and such as take their residence there either for good or for some length of time. A State has wider power over foreigners 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, a foreigner does not fall under the personal supremacy of the local State; therefore he cannot be made to serve in its army or navy, and cannot, like a citizen, be treated according to discretion.

in Eastern

§318. The rule that foreigners fall under the Foreigners territorial supremacy of the State they are in, finds Countries. 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. Foreigners who are subjects of Christian States and enter into the territory of such Eastern States, remain wholly under the jurisdiction of their home State. This exceptional

condition of things is based, as regards Turkey, on custom and treaties which are called Capitulations,

1 See below, § 440.

Foreigners under the

of their

Home

State.

as regards other Eastern States on treaties only.1 Jurisdiction over foreigners 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 1890.2 It must be specially mentioned that Japan has since 1899 ceased to belong to the Eastern States in which foreigners are exempt from local jurisdiction.

$319. Although foreigners fall at once under Protection 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 3 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 foreigner 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

1 See Twiss, I. § 163, who enumerates many of these treaties; see also Phillimore, I. §§ 336-339, and Hall, Foreign Powers and Jurisdiction, $$ 59-91.

2 53 & 54 Vict. c. 37.

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

This right has, I believe, preservation.

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. 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 foreigner was only travelling through or had settled down in the country, whether his behaviour has been provocative or not, how far the foreign Government identified itself with the acts of officials or subjects, and the like.

§320. Under the influence of the right of pro- Protection tection over its subjects abroad which every State holds, and the corresponding duty of every State to Foreign

afforded to

ers' Per

Concerning the responsibility see above, §§ 151-167. The right sons and of a State for internationally of protection over citizens abroad Property. injurious acts of its own, its organs is in detail discussed by Hall, § 87, and other officials, and its subjects, and Westlake, I. pp. 313-320.