How far Foreigners can be treated according to Discretion. treat foreigners on its territory with a certain consideration, a foreigner, provided he owns a nationality at all, cannot be outlawed in foreign countries, but I must be afforded such protection of his person and property as is enjoyed by a citizen. The home State of the foreigner has by its right of protection a claim upon such State as allows him to enter its territory that such protection should be afforded. In consequence thereof every State is by the Law of Nations compelled to grant to foreigners equality before the law with its citizens as far as safety of person and property is concerned.1 A foreigner 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 foreigners, and no Government can cloak itself with the judgment of corrupt judges. pro $321. Apart from protection of person and perty, every State can treat foreigners according to discretion, those points excepted concerning which discretion is restricted through international treaties between the States concerned. Thus, a State can exclude foreigners 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 2 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 1 But not otherwise. 2 See an Act for the Registration of Aliens, &c., 1836 (6 & 7 William IV. c. 11). that there is a tendency within all the States which from the § 322. Since a State holds territorial only, but not Departure personal supremacy over a foreigner within its Foreign boundaries, it can never under never under any circumstances Country. 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 a foreigner 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 2 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 a foreigner deceased on its territory.3 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 of 1894, such duties can likewise be levied in case of a foreigner dying on its territory. 1 That foreigners cannot now any longer belong to the Bar or to the London Stock Exchange, is an outcome not of British Municipal Law, but of regulations of the Inns of Court and the Stock Exchange. 2 So-called gabella emigrationis. 3 See details in Wheaton, § 82. The droit d'aubaine was likewise named jus albinagii. 4 57 & 58 Vict. c. 30. Estate duty is levied in Great Britain in Com petence to expel Foreign ers. Hall, VIII EXPULSION OF FOREIGNERS 63-Westlake, I. p. 210-Phillimore, I. § 364-Halleck, I. pp. 460-461-Taylor, § 186-Walker, § 19-Wharton, II. § 206Bluntschli, §§ 383-384-Stoerk in Holtzendorff, II. pp. 646-656Ullmann, 102-Bonfils, No. 442-Despagnet, Nos. 347-348Pradier-Fodéré, III. Nos. 1857-1859-Rivier, I. pp. 311-314Calvo, VI. §§ 119-125-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)-Lang. hard, "Das Recht der politischen Fremdenausweisung" (1891)Rolin-Jacquemyns in R.I., XX. (1888), pp. 499 and 615. § 323. Just as a State is competent to refuse admittance to a foreigner, so it is in conformity with its territorial supremacy competent to expel at any moment a foreigner 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 foreigners. Thus, the British Government has no power to expel even the most dangerous foreigner without an Act of Parliament making provision for such expulsion. And in Switzerland, article 70 of the Constitution empowers the Government to expel such foreigners only as endanger the internal and external safety of the land. But many States are in no way prevented the case also of such foreigner Nations is concerned, it is doubtful whether Great Britain is competent to claim estate duties in such cases. by their Municipal Law from expelling foreigners according to discretion, and examples of arbitrary expulsion of foreigners, 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 a foreigner 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 foreigners 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 foreigner does not constitute an illegal, although a very unfriendly, act. And there is no doubt that every expulsion of a foreigner without just cause is, in spite of its international legality, an unfriendly act, which can rightfully be met with retorsion. Causes of As of Foreign ers. § 324. On account of the fact that retorsion Just might be justified, the question is of importance what Expulsion just causes of expulsion of foreigners there are. 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. 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 a foreigner will hardly admit not having had a just cause. Some States, as Belgium2 since 1885, possess Municipal Laws determining just causes for the expulsion of foreigners, and such States' discretion concerning expulsion is, of course, more or less restricted. But But many States do not possess such laws, and are, therefore, totally 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 foreigners, and in article 28 thereof enumerated nine just causes for expulsion in time of peace. I doubt whether the States will ever come to an agreement about just causes of expulsion. The fact cannot be denied that a foreigner 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 foreigners, especially for political reasons, will become less frequent. Expulsion will, however, never disappear totally, because it may well be justified. Thus, for example, 1 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. 2 See details in Rivier, I. p. 312. 3 See Annuaire, XII. p. 223. Many of these causes, as conviction for crimes, for instance, are certainly just causes, but others are doubtful. |