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national. Minor disabilities of various kinds have in different places survived, as, for example, the prohibitions to hold real property, or to convey an indefeasible title by will, which still exist in various states of the United States; certain restrictions as to the admission of undesirable classes due to social and economic reasons; and various procedural discriminations intended as a protection to the national, as the security for costs (cautio judicatum solvi) required of the alien plaintiff. These disabilities differ in detail from country to country. They will be considered presently in the discussion of the position of the alien in international law.
§ 18. Relation of Law of Aliens to Different Branches of Law.
The law of aliens enters the domain both of public and private international law. The latter records the rights recognized and denied by positive municipal law; the former controls and criticizes the municipal grant or refusal of these rights. The responsibility of the state toward individuals, both nationals and aliens, is in first instance a matter of municipal law. To establish the extent of this responsibility, or the state's failure in a given case to fulfill its international duty, the legal position of the alien in municipal law must first be determined.
§ 19. Position of Alien in Municipal Law.
The alien in law occupies a position between two extremes—the one a barbaric exclusion of all aliens, the other, a complete equality of nationals and aliens. The first extreme, complete exclusion, is no longer compatible with the existence of the state as a member of the society of nations. Continental writers base the custom of international intercourse on the so-called right of each state to enter into commercial intercourse with the other states of the international community. Anglo-American writers, on the other hand, find no such right to exist apart from treaty. A few continental publicists admit that the duty
Beale, Jos. H., The jurisdiction of courts over foreigners in 26 Harvard Law Rev. (Jan., 1913), 193, 196.
2 Westlake, I (2nd ed.), 217; Oppenheim, I (2nd ed.), 199; Woolsey, Introduction (1872), $ 25.
of the state to enter into commercial relations is not absolute, and agree that a state may impose prohibitive customs tariffs or prevent export by a burdensome tax, e. g., the prohibitive tax on occasion assessed on the export of Brazilian coffee. As a practical matter, it is within the sovereign power of a state to isolate itself (as was done within the last century by China, Japan, Paraguay and Argentine), though this isolation may be inconsistent with membership in the family of nations. Practically all of the civilized states have now within definite limits granted a right of residence and travel to unobjectionable foreigners and accorded them a wide range of incidental rights. The universality of the right of sojourn granted to foreigners affords some justification for the continental theory that there is a right of international intercourse which these treaties merely confirm, define and regulate. On the other hand, the recognized inherent power of a state to exclude foreigners, which, however, is now exercised only against certain classes of undesirable aliens, lends direct support of the Anglo-American view that apart from treaty and concession there is no right of international intercourse-notwithstanding the fact that without such intercourse international existence would be impossible.? At the present day the right of admission and sojourn on the part of unobjectionable aliens is almost universally recognized. Qualifications of the right, which are to be found in the possibilities of exclusion, expulsion and the fixing of conditions of sojourn by the state, must in practice be based upon reasonable grounds.
The legal position of aliens is fixed by municipal law, but international law and the obligations of the state toward the other states of the international community, have imposed certain restrictions upon the freedom of the legislator and territorial sovereign. Another effective agency of control-aside from extraterritoriality-has been the fact that the measure of a nation's right to require a certain standard of treatment for its subjects abroad constitutes its own standard for the treatment of aliens. The present inquiry, therefore, is directed toward
"Despagnet, F., Cours de droit int. public, 4th ed., 236, and authorities there cited
Charles Earl in Proceedings of the Amer. Society of Int. Law, 1911, p. 82. * Despagnet, F., op. cit., 8 334; Rolin, A., Principes du droit int. privé, I, Introducestablishing the minimum of rights which the state must accord the alien and the maximum power of control over him-a minimum below which it cannot descend and a practical maximum which it cannot transcend without violating the international standard of right of the alien and duty of the state, and incurring responsibility to his national government.
§ 20. Sources of the Law of Aliens.
Before undertaking this examination it will first be desirable to ascertain the sources of the law of aliens. Treaties are the first sourceusually called in Europe treaties of establishment or commercial treaties, and in the United States treaties of commerce and navigation. The questions dealt with in these treaties, which form part of the municipal law of states, differ with the degree of culture and civilization of the contracting parties. The higher a state in culture, the more special the topics mentioned in the treaties, for the general principles governing the treatment of aliens, e. g., protection of life, liberty and property, are recognized by all civilized states. These principles are either embodied in the constitutions or are considered so fundamental that no express declaration or guaranty is required. In matters of private law the treaties contain but few provisions. The rule is generally recognized that the alien and the national are practically assimilated. In treaties between states of a different standard of culture, or fundamentally different in morals or religion, there is usually a detailed expression of every right of the alien, very little being taken for granted. Thus the treaties with the Balkan states are more detailed in their specification of treatment than those among the larger European states.
The second source of law governing aliens is municipal legislation, which may be divided into two categories: first, general legislation, which affects national and alien alike, or such legislation from the force of which the alien is not expressly excluded, and secondly, special statutes concerning aliens, which are found in a great many countries and particularly in the countries of Latin America. These statutes have no application to the nationals of the state. Among these special statutes are the laws governing exclusion, expulsion and extradition,
1 Frisch, op. cit., 92 et seq.
which usually prescribe limits to and define the exercise of the right which the state by general international law possesses.
MINIMUM OF RIGHTS DUE TO ALIENS
$ 21. Method of Establishing Minimum.
The establishment of the limit of rights which the state must grant the alien is the result of the operation of custom and treaty, and is supported by the right of protection of the alien's national state. This limit has been fixed along certain broad lines by treaties and international practice. It has secured to the alien a certain minimum of rights necessary to the enjoyment of life, liberty and property, and has so controlled the arbitrary action of the state. Thus, for example, it prevents the territorial courts from declining to take jurisdiction of litigation between aliens, or the confiscation of the property of an alien who by war has become an alien enemy, or the forbidding of the alien's right of succession to property. Nor can a state deprive the alien of the right to appeal to the diplomatic protection of his own government if the state violates this minimum of rights.
International law is concerned not with the specific provisions of the municipal legislation of states in the matter of aliens, but with the establishment of a somewhat indefinite standard of treatment which the state cannot violate without incurring international responsibility. The state's liberty of action, therefore, is limited by the right of other states to be assured that a certain minimum in this respect will not be overstepped. A stipulation in treaties or municipal statutes to the effect that the state is not responsible to aliens to any greater extent than to nationals has never prevented international claims where the minimum has been considered as violated, nor can the state's international obligations be avoided or reduced by provisions of municipal law, or by the fact that it violates the rights of its own citizens. 4
1 Mr. Brown's view as to the relation between international and municipal law in the rules governing aliens, and the prominence given to treaties as a limitation upon territorial jurisdiction is opposed to modern tendencies and theories of municipal law. See chap. V of Brown, Philip M., Foreigners in Turkey, Princeton, 1914.
2 Pillet, A., Principes de droit int. privé, Paris, 1903, p. 194. * Pillet, 169 et seq.
* See Morse, Citizenship, $ 79, presenting a forceful account (from McCarthy) of Palmerston's views. Boeck in 20 R. G. D. I. P. (1913), 366, 371.
The obligation of "special protection”, often guaranteed in treaties, merely places aliens upon an equality with citizens, and is not an insurance against all injury. In a well-reasoned opinion on a claim arising out of injuries sustained by a Mexican citizen during the Civil War in the United States, Commissioner Wadsworth of the 1868 commission stated that "special protection" has been given when a government has done all in its power to put down a rebellion and enforce the law. Hall aptly remarks ? that a government cannot be required to provide itself with the most efficient means possible for the purpose of protecting aliens, nor is it bound to alter its form of administration to give the “highest possible” protection to the interests of foreign states. The guarantee of “equal protection” sometimes found in treaties does not confer the same substantive rights as are granted to nationals, but only assures full remedial processes for the protection of such rights as are granted to the alien.
$ 22. Recognition of Legal Personality.
Any attempt to define this minimum is fraught with some danger, inasmuch as it varies from state to state. In modern practice, it may be said that the first obligation of the state is the recognition of the alien's legal personality and with it, the national allegiance which binds him to his own country. In the duties which the state may impose on the alien it is limited by the obligations resulting from this bond of nationality. The state cannot compel the alien to renounce his nationality or the rights flowing from it. On the other hand, it has been noted that in the matter of status and capacity, the state (among the countries of Europe) applies his national law as his personal statute. The modern tendency is to bring about an approximation of the alien to the national in the enjoyment of civil rights. The term “civil rights", while somewhat vague in meaning, may in its broadest interpretation be regarded as including all rights not political, and embraces practically all the rights now accorded to aliens by the legislation of the more civilized states.
1 Prats (Mex.) v. U. S., July 4, 1868, Moore's Arb. 2888, 2889. See also Baldwin (U. S.) v. Mexico, Apr. 11, 1839, ibid. 2859–2866.
2 Hall, 4th ed., 230.