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An expulsion founded upon a special discrimination against an alien, on account of his nationality, race or creed may be and has often been considered an unfriendly act to his national government, and has given rise to diplomatic claims.
$32. In Time of War.
The outbreak of war makes alien enemies of the respective subjects of the belligerents. International law authorizes the state to expel from its territory all or any of the subjects of its enemy. No other reason than the existence of the war need be given.: Municipal statutes in Great Britain and the United States have confirmed this right of expulsion in time of war, and give the President or Parliament the power to declare the conditions under which shall be exercised. While formerly such expulsions en masse were common, they have been but rarely resorted to in recent times. Thus, in the Crimean War in 1854, Russia permitted French and British subjects to continue peaceably to reside; Italy similarly extended this privilege to Austrian subjects in the Italian War of Liberation of 1859 and to Turkish subjects in the Turko-Italian war of 1912; China and Japan extended it respectively in the Chino-Japanese War of 1894, as did the United States and Spain respectively in the Spanish-American War of 1898, and Japan again in the Russo-Japanese War of 1904. In the present European War, alien enemies have in general been permitted to remain, under various measures of surveillance.
On the other hand, France considered it necessary to expel German subjects during the Franco-Prussian War of 1870, Turkey, to expel
Netherlands, Feb. 13, 1903, Ralston, 702. See also Jaurett (U. S.) v. Venezuela, Sen. Doc. 413, 60th Cong. 1st sess., 20 et seq., 559 et seq. (settled by agreement of Feb. 13, 1909, For. Rel., 1909, 629).
See Mr. Uhl, Act'g Sec'y of State, to Mr. Terrell, Dec. 7, 1893, For. Rel., 1893, p. 707. See also the diplomatic correspondence quoted in Moore's Dig. IV, 109.
2 Hall, op. cit., 6th ed., 383–388. The right of expulsion en masse is supported by Diena (Principi, 468), Nys (III, 105) and Catellani Condizioni e effetti giuridica dello stato di guerra. Venice, 1906, p. 61). Fiore considers the measure as opposed to modern principles of international law. Dir. int. cod. (4th ed.), § 1142.
* De Rijon (Mexico) v. U. S., July 4, 1868, Moore's Arb. 3348.
* See Revised Statutes of the United States, 88 4067–4070. See also Moore's Dig. IV, 138; Brown v. U. S., 8 Cranch, 110, 127.
Greek subjects in the War of 1897 and Italian subjects in the war of 1912, the Boers, to expel British subjects from the Transvaal in 1900, and the Russians, to expel the Japanese from certain provinces in 1904. In the present European War, it seems that Russia has ordered the expulsion of all Turks, and Germans and Austrians have been expelled from French Morocco. A limited time is usually granted for the departure of enemy individuals in the territory and of enemy merchant vessels in the ports of a belligerent. The permission to remain or the order of expulsion, with the accompanying conditions, are usually published in the form of a proclamation.
With the progress of civilization, there is an increasing tendency to confine the effects of an armed conflict within as narrow limits as possible and to mitigate the rigorous maintenance of the principle that subjects of an enemy state may be treated as enemies, in favor of the unarmed civilian alien, whose person and property are respected, with certain variously stated exceptions, as before the war. This rule is now largely confirmed by treaties by which merchants and traders are allowed a limited period to wind up their affairs and depart, and those engaged in innocent occupations are permitted to remain.3
§ 33. Extradition.
Extradition is closely connected with expulsion. Independently of treaty stipulations, there is no duty incumbent upon a state within whose territory the fugitive may be found to deliver him to a state in whose territory the alleged crime has been committed. In the interests of modern civilization, however, states have voluntarily limited their right of asylum by agreeing by treaty to deliver up such individuals as have offended the criminal law of another state. The
1 See discussion in Martini, op. cit., 87 et seq., and G. Tambaro in 1 Jahrbuch des Völkerrechts, 740–741.
2 Higgins, A. Pearce, The Hague peace conferences, 1909, pp. 294-307. In the absence of treaty or proclamaton, a belligerent has a technical right to seize enemy ships in his ports on the outbreak of war. See Russell T. Mount's account of recent practice in 15 Columbia L. Rev. (1915), 318-323.
. See, e. 9., the typical provisions of Art. XXI of the treaty between the United States and Italy, Feb. 26, 1871, Malloy, Treaties, etc., 1910, I, 975, quoted infra, subject is also largely regulated by municipal extradition laws. The categories of crimes for which extradition will lie are expressly laid down in the treaties. 1
POLITICAL RIGHTS AND DUTIES
$ 34. These not usually ascribed to Aliens.
The rights and disabilities of aliens are usually discussed from the point of view of their political or their civil character. Political rights are such as involve a share in the control and an active participation in the life and operation of the state. As has already been seen, they are usually denied to aliens. In the United States, exceptions have been made, based on residence, and this tendency appears to be growing. Domiciled aliens in a number of the South American states are granted limited political rights, and an extension of this policy would be only a measure of self-defense, inasmuch as the failure to grant domiciled aliens political rights has given foreign countries some ostensible, if not actual, title to diplomatic interposition, for the alien's inability to exercise political rights deprives him of an important remedy against maladministration.
There is some difference of opinion as to what is included among political rights; for example, Liszt ? considers the right of association, freedom of the press, and even the right of residence, as political rights. The tendency, however, is to narrow the term to include merely the right to vote and hold office and the rights (or obligations) incident to citizenship, such as military service, jury service, and the competency to fill certain public offices, for example, in some of the European states, to act as judges, notaries public, advocates, and in similar offices.
In certain countries, particularly some of those on the American continent, aliens are excluded only from the most important public offices. The acceptance by an alien of a public office in these states without the consent of his national state often involves the loss of
Oppenheim, op. cit. I, 403 et seq.; Bonfils-Fauchille, Manuel de droit int. pub., 6th ed., Paris, 1912, p. 282 et seq.
: Liszt, Völkerrecht, Berlin, 1912 (9th ed.), 193.
citizenship or some of its incidental rights, e. g., diplomatic protection. 1
$ 35. Military Service.
The denial of political rights involves an exemption from political duties. Being without the privileges, the alien is correspondingly exempt from the responsibilities attaching to membership in the political community. Thus, a long series of treaties now in force exempts the alien from compulsory military service and from forced loans or military requisitions, and in some cases this exemption extends to service in the national guard or militia. The treaties of the United States with some countries exempt only consular officers from compulsory military service.
Two treaties, typical of those concluded by the United States may be quoted. The treaty of July 27, 1853, with the Argentine Republic (art. 10) reads as follows:
“The citizens of the United States residing in the Argentine Confederation, and the citizens of the Argentine Confederation residing in the United States, shall be exempted from all compulsory military service whatsoever, whether by sea or by land, and from all forced loans, requisitions or military exactions." ;
The treaty with Italy (art. 3) reads:
"They [citizens) shall . . . be exempt from compulsory military seryice, either on land or sea, in the regular forces, or in the national guard, or in the militia." 4
Whether, in the absence of treaty, domiciled aliens enjoy such an exemption is somewhat doubtful. The Norwegian military law of 1857 required military service from aliens who had acquired a "fast domicilium." A British subject, having demanded the protection of Great Britain against this law was directed to go to the courts,
Infra, 380. 2 Hall, op. cit., 205; Despagnet, op. cit., $ 343. Treaties of the U. S. providing for such exemptions are cited by H. T. Kingsbury in Proc. Amer. Soc. of Int. Law, 1911, 218-222.
3 Malloy, Treaties, etc., 1910, 1, 23. See also arts. 8 and 9 of the treaty of August 1, 1911 between Great Britain and Bolivia, Treaty series 1912, No. 223.
* Malloy, Treaties, etc., 1910, I, 970.
for in the absence of treaty Great Britain could ask for exemption only on principles of equity, on the ground that Norwegians were not subject to military service in England. The legality of the action of France in blockading the La Plata in 1838 and of France and England in blockading Buenos Ayres in 1846 because the Argentine Republic had compelled subjects of these countries domiciled over three years in Argentine to do military service, is questionable. The United States and Great Britain have conceded extensive rights to foreign governments in enlisting their resident citizens or subjects for all purposes of local defense or police duty. Thus Secretary of State Seward said:
"This government is not disposed to draw in question the right of a nation in a case of extreme necessity to enroll in the military forces all persons within its territories, whether citizens or domiciled foreigners." ;
Secretary of State Fish in 1869 assumed the position that "this Government, though waiving the exercise of the right to require military service from all residents, has never surrendered that right and can not object if other governments insist upon it.” +
The law officers of the Crown rendered an opinion in 1894 to the effect that, by the general rule, an exemption from compulsory military service did not exist, but that treaties had largely established it."
These admissions, however, cannot be construed as authorizing compulsory service in the regular army of a nation (i. e., what might be called political service), but only enrollment for police purposes and
1 Mr. Crowe to Mr. Foreman, Report of the Royal Commissioners on naturalization and allegiance, 1869, Appendix, p. 71.
• Fiore, Nouveau droit int. pub., $ 647. * Mr. Seward, Sec'y of State, to Mr. White, July 10, 1868, Moore's Dig. IV, 57. * Mr. Fish, Sec'y of State, to Mr. Redmond, Apr. 3, 1869, Moore's Dig. IV, 57. • Mr. Bayard to Mr. Gresham, Sec'y of State, July 19, 1894, For. Rel., 1894, p. 253.
The admission by Great Britain, during the Civil War, that those British subjects who had declared their intention of becoming American citizens and had exercised the elective franchise, were properly subject to military duty, if they remained resident, cannot be construed as a consent to the military service of British subjects, but rather as an acknowledgment that by exercising political rights and becoming at least inchoate American citizens, they had subjected themselves to the political obligation of military service.