Imágenes de páginas
PDF
EPUB

to exclude those whom it will. The Supreme Court of the United States has stated what is believed to be a general principle:

“It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” 2 Diplomatic papers have uniformly upheld the sovereign right of exclusion.3 In England, it has been held that an alien has no legal right enforceable by action to enter British territory.4

International intercourse, however, is so essential to the existence of the society of states that in practice the right of admission is freely accorded, subject to specific exceptions fully announced in advance and recognized as reasonable by international public opinion. The network of commercial treaties by which the states, of the white race at least, are bound together, has practically established the rule of freedom of international intercourse. A government that would seek to-day to take advantage of its right to exclude all aliens would violate the spirit of international law and endanger its membership in the international community.

Yet it is upon this ultimate power that is based the right of the state to exclude undesirable aliens and fix the conditions of admission. The power of exclusion is admitted in the passport system which was at one time universal and still exists to a limited extent. The grounds of exclusion are fixed by the public interests of each state, and governments claim the right to determine for themselves what aliens or classes of aliens are dangerous or undesirable. For political, social

1 Musgrove v. Chun Teeong Toy, L. R. 1891, App. Cas. 272; The Chinese Exclusion Case, Chae Chan Ping v. United States, 130 U. S. 581, 606; Nishimura Ekiu v. United States, 142 U.S. 651, 659; U.S.v. Greenawalt, 213 Fed. 901. See also address of Mr. Mastier before the International Law Association, 19th Report, p. 48.

2 Nishimura Ekiu v. United States, 142 U. S. 659. See also papers of Charles Earl and C. L. Bouvé before the 1911 meeting of the American Society of International Law, Proceedings, 66, 95.

3 See extracts quoted in Wharton's Dig., $ 206. Agreement between U. S. and Venezuela for settlement of Jaurett claim, For, Rel. 1909, 629.

* Musgrove v. Chun Teeong Toy, L. R. 1891, App. Cas. 272, 282. 6 Westlake, I, 216.

and economic reasons various classes of aliens are excluded. They may usually be brought within one or more of the following classes, which comprise those persons who by existing law are excluded from the United States: (1) aliens who are physically or morally defective; (2) aliens contagiously diseased; (3) alien paupers or beggars and aliens generally who are incapable of maintaining themselves, or are likely to become a public charge; (4) aliens deemed morally, socially, or politically unfit, as prostitutes, procurers, criminals, anarchists and polygamists; (5) contract laborers, or aliens induced or solicited to migrate by offer or promise of employment; (6) assisted aliens, or those whose passage is provided by any corporation, society, or foreign government; (7) alien races considered inferior or not capable of assimilation, e. g. Chinese and certain Japanese laborers in the United States and many of the British colonies, the gypsies in many European countries, and Turks in Panama.

The stipulations of commercial treaties, providing for general freedom of intercourse, do not prevent the exclusion of these undesirable classes. International claims because of exclusion are rare. Nevertheless, the United States has on numerous occasions protested against discriminations against certain classes of American citizens excluded because of race, profession or creed, especially where, by treaty, rights of residence and travel were assured to all citizens of the United States. The most prominent of this type of cases was the long continued protest against the exclusion by Russia of American citizens of Jewish faith, which ultimately culminated in the abrogation by the United States of the treaty of 1832 with Russia. While

1 Frisch, op. cit., 91 et seq. The Institute of International Law has declared that the protection of national labor is not alone a sufficient reason for exclusion. (Annuaire, XII, 220.)

Charles Earl in Proceedings of the American Society of Int. Law, 1911, 67-68. See also Moore's Dig. IV, 142 et seq., and 31 Clunet (1904), 977. By a law of August 13, 1903 Haiti excluded all Syrians from that country and fixed a time for those then in the country to leave. For. Rel. 1904, p. 394. But the statute is not enforced against Syrians who became naturalized Americans prior to the law of 1903, and were resident in Haiti before 1903. For the Panama regulations see 11 R. G. D. I. P. (1904), 565–567.

*Cases of such special discrimination, with extracts from the diplomatic correspondence will be found in Moore's Dig. IV, 109 et seq. But the U. S. did not deny the enforcement of an order of exclusion against all the subjects of one state might be considered an unfriendly act and warrant reprisals and perhaps war, states have generally, in the absence of treaty, refrained from contesting the practice of excluding their individual subjects considered undesirable by other states. An arbitrary or unjust exclusion would give rise rather to a political than to a legal pecuniary claim, unless in violation of local law.

Closely connected with the right of exclusion or admission on conditions is the right of asylum on what is in fact national territory. This is the right of a state by virtue of its territorial supremacy to admit to its territory fugitive aliens from other states and to accord them such hospitality as in its discretion it desires to extend. It is not, as is often erroneously assumed, a right of the individual to claim admission, but by international practice it has been conceded to be a right of the state. It is granted usually to political offenders, whose surrender is generally excepted from the stipulations of extradition treaties. The duty which every state by comity owes to other states warrants it in using repressive measures to prevent the received alien from becoming a source of danger to the safety of another state.

EXPULSION

$ 27. State's Power to Expel.

The power to expel aliens rests upon the same foundation and is justified by the same reasons as the power to exclude, namely: the sovereignty of the state, its right of self-preservation, and its public interests. The Supreme Court has said: the right of Haiti to exclude all Syrians, even naturalized Americans (except those above mentioned), in view of the fact that the U. S. excluded Chinese, regardless of their acquired nationality. (Act of July 5, 1884, ch. 220, $ 15; 20 Op. Atty. Gen. 729.) While admitting Haiti's right, the U. S. insisted that there be no discrimination between Americans and other nationals of Syrian origin. Great Britain insisted that those already established in business be not disturbed.

1 Oppenheim, op. cit., 392; Hall, 6th ed., 211. From the state's right of asylum is derived the practice of legations and consulates in granting asylum to political refugees. An abuse of the right has occasionally resulted in its extension to other classes of offenders, which has given rise to diplomatic remonstrance. See article by Barry Gilbert, The practice of asylum in legations and consulates of the United States, 3 A. J. I. L. (1909), 562–595. The practice is discouraged by the United States. “The right to exclude or expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, [is] an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare.” 1 Nor is the right of expulsion limited by treaties which guarantee to the citizens of the contracting parties the right of residence and travel, or of trade, and other rights. Pradier-Fodéré expresses the principle as follows:

“Treaties and declarations by which a government stipulates for its citizens a right of sojourn, of acquiring real property, of carrying on an industry on foreign territory, ought not to be interpreted as involving a renunciation on the part of the other contracting power of its right to expel aliens whose conduct should make it desirable." 2 As will be seen, however, this right is not unqualified. It cannot be exercised indiscriminately or arbitrarily, but is limited and restricted by the obligations imposed upon the state by international law.3

In former times expulsion, collective and individual, was freely exercised. In recent times collective expulsion has been resorted to in case of war only and even then it has become an exceptional measure. Individual expulsion, while still practiced, and claimed by states to be an inherent right of sovereignty, has likewise been limited, by statute and treaty, both as to the justifying causes and the manner of exercise. While the grounds of exclusion are usually prescribed by statute, governments rarely attempt to enumerate the grounds of expulsion. Great Britain (Aliens Act of 1905, 5 Edw. 7, c. 13),4

1 Fong Yue Ting v. U. S., 149 U. S. 698, 711.

? Pradier-Fodéré, P., Traité de droit int. pub., Paris, 1887, III, § 1857. The right of expulsion is sometimes expressly reserved in treaties. Treaty between U. S. and Spain, July 3, 1902, art. 2, Malloy, II, 1702.

* Von Bar in 13 Clunet (1886), 5; Bluntschli, Droit int. codifié, 8$ 383–384; RolinJacquemyns in 20 R. D. I. (1888), 498.

* At common law the Crown has full power to expel a foreigner. The right has been greatly curtailed by statute, and is practically vested entirely in Parliament. The act of 1905 gives the Secretary of State the right to expel aliens who have been (1) convicted in the United Kingdom of serious offenses; (2) who have been certified within twelve months after their arrival to have been in receipt of parochial relief or found wandering without ostensible means of subsistence, or been living under insanitary conditions due to overcrowding; or (3) who have arrived in the United Kingdom since the passing of the Act, and been sentenced in a foreign country for

the United States (Act of February 20, 1907),' and Brazil (Law of January 7, 1907) ? have undertaken by statute to set forth the grounds of expulsion. The terms of the statutes are quite broad. An enumeration of specific grounds is, however, an exception to the rule, as states have not generally been willing thus to hamper their freedom of action. Nevertheless, the growth of international intercourse has tended to limit the exercise of the right of expulsion, and by municipal law and treaty many states have now limited their freedom of action by exempting from the persons liable to expulsion certain classes of aliens, by permitting judicial recourse against administrative orders, or by agreeing to notify the individual or his legation and to state the grounds of expulsion.

It may be useful to examine the statutes of a few states to notice the tendencies of modern legislation. France, by a law of December 3, 1849, regards expulsion as a police measure to which all aliens are subject. This appears to be also the rule in Germany, Italy, Roumania and other countries. In Belgium, Brazil and other states certain categories of aliens are exempt, particularly those who by residence or marriage have identified their interests with the state. Thus, in Belgium, an alien who has established his domicil, and, in Brazil, who has resided in the country for two years; 4 or, in Belgium, the Netherlands and Brazil, a foreigner who has married a native

an extraditable crime not of a political character. See 8 3 of the Act, and Henriques, H.S. Q., Aliens and naturalization, London, 1906, p. 13.

1 Bouvé, op. cit., 149 et seq.

24 R. D. I. privé (1908), 855; For. Rel. 1907, 1, 113–117; 34 Clunet (1907), 1217. See also Martini, A., L'expulsion des étrangers, Paris, 1909, p. 83.

3 Martini, op. cit., 42 et seq.; Pradier-Fodéré, op. cit., III, § 1858.

* In some other countries, a definite period of residence acts as a bar to the right of expulsion, even where the person has entered in violation of the exclusion laws or after arrival came within their categories of undesirability. Thus, the Mexican law of Dec. 22, 1908 fixes a period of three years, and the United States act of Feb. 20, 1907 permits deportation of various classes of undesirables within one and sometimes within three years, except that alien prostitutes may by the amendment of March 26, 1910 (see 182 Fed. Rep. 894, 185 Fed. Rep. 967, and 209 Fed. Rep. 496) be deported at any time.

A collection of the statutes of various countries relating to expulsion will be found in the Appendix of the works of Martini and Bouvé, cited above, and in Fiore's Droit international pénal (Antoine's edition), chap. III.

« AnteriorContinuar »