§ 320. Under the influence of the right of protection over its subjects abroad which every State holds, and the corresponding duty of every State to treat aliens on its territory with a certain consideration, an alien, provided he owns a nationality at all, cannot be outlawed in foreign countries, but must be afforded protection of his person and property. The home State of the alien has by its right of protection a claim upon such State as allows him to enter its territory that such protection shall be afforded, and it is no excuse that such State does not provide any protection whatever for its own subjects. In consequence thereof every State is by the Law of Nations compelled, at least, to grant to aliens equality before the law with its citizens as far as safety of person and property is concerned. An alien 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 aliens, and no Government can cloak itself with the judgment of corrupt judges.

§ 321. Apart from protection of person and property, every State can treat aliens according to discretion, those points excepted concerning which discretion is restricted through international treaties between the States concerned. Thus, a State can exclude aliens 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[654] 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 that there is a tendency within all the States which are members of the Family of Nations to treat admitted aliens more and more on the same footing as citizens, political rights and duties, of course, excepted. Thus, for instance, with the only exception that an alien cannot be sole or part owner of a British ship, aliens having taken up their domicile in this country are for all practical purposes treated by the law[655] of the land on the same footing as British subjects.

§ 322. Since a State holds territorial only, but not personal supremacy over an alien within its boundaries, it can never under any circumstances 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 an alien 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[656] 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 an alien deceased on its territory.[657] 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[658] of 1894, such duties can likewise be levied in case of an alien dying on its territory.

VIII EXPULSION OF ALIENS

Hall, § 63—Westlake, I. p. 210—Phillimore, I. § 364—Halleck, I. pp. 460-461—Taylor, § 186—Walker, § 19—Wharton, II. § 206—Moore, IV. §§ 550-559—Bluntschli, §§ 383-384—Stoerk in Holtzendorff, II. pp. 646-656—Ullmann, § 115—Bonfils, No. 442—Despagnet, Nos. 336-337—Pradier-Fodéré, III. Nos. 1857-1859—Rivier, I. pp. 311-314—Nys, II. pp. 229-237—Calvo, VI. §§ 119-125—Fiore, Code, Nos. 252-259—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)—Langhard, "Das Recht der politischen Fremdenausweisung" (1891)—Overbeck, "Niederlassungsfreiheit und Ausweisungsrecht" (1906)—Rolin-Jaequemyns in R.I. XX. (1888), pp. 499 and 615—Proceedings of the American Society of International Law, 1911, pp. 119-149.

§ 323. Just as a State is competent to refuse admittance to an alien, so it is, in conformity with its territorial supremacy, competent to expel at any moment an alien 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 aliens. Thus, the British Government has no power to expel even the most dangerous alien without the recommendation of a Court, or without an Act of Parliament making provision for such expulsion. And in Switzerland, article 70 of the Constitution empowers the Government to expel such aliens only as endanger the internal and external safety of the land. But many States are in no way prevented by their Municipal Law from expelling aliens according to discretion, and examples of arbitrary expulsion of aliens, 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 an alien 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 aliens 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 alien does not constitute an illegal, although a very unfriendly, act. And there is no doubt that every expulsion of an alien without just cause is, in spite of its international legality, an unfriendly act, which can rightfully be met with retorsion.

§ 324. On account of the fact that retorsion might be justified, the question is of importance what just causes of expulsion of aliens there are. As 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.[659] 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 an alien will hardly admit not having had a just cause. Some States, as Belgium[660] since 1885, possess Municipal Laws determining just causes for the expulsion of aliens, and such States' discretion concerning expulsion is, of course, more or less restricted. But many States do not possess such laws, and are, therefore, entirely 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 aliens, and in article 28 thereof enumerated nine just causes for expulsion in time of peace.[661] I doubt whether the States will ever come to an agreement about just causes of expulsion. The fact cannot be denied that an alien 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 aliens, especially for political reasons, will become less frequent. Expulsion will, however, never totally disappear, because it may well be justified. Thus, for example, Prussia after the annexation of the formerly Free Town of Frankfort-on-the-Main, was certainly justified in expelling those individuals who, for the purpose of avoiding military service in the Prussian Army, had by naturalisation become Swiss citizens without giving up their residence at Frankfort.

§ 325. Expulsion is, in theory at least, not a punishment, but an administrative measure consisting in an order of the Government directing a foreigner to leave the country. Expulsion must therefore be effected with as much forbearance and indulgence as the circumstances and conditions of the case allow and demand, especially when compulsion is meted out to a domiciled alien. And the home State of the expelled, by its right of protection over its citizens abroad, may well insist upon such forbearance and indulgence. But this is valid as regards the first expulsion only. Should the expelled refuse to leave the territory voluntarily or, after having left, return without authorisation, he may be arrested, punished, and forcibly brought to the frontier.

§ 326. In many Continental States destitute aliens, foreign vagabonds, suspicious aliens without papers of legitimation, alien criminals who have served their punishment, and the like, are without any formalities arrested by the police and reconducted to the frontier. There is no doubt that the competence for such reconduction, which is often called droit de renvoi, is an inference from the territorial supremacy of every State, for there is no reason whatever why a State should not get rid of such undesirable aliens as speedily as possible. But although such reconduction is materially not much different from expulsion, it nevertheless differs much from this in form, since expulsion is an order to leave the country, whereas reconduction is forcible conveying away of foreigners.[662] The home State of such reconducted aliens has the duty to receive them, since, as will be remembered,[663] a State cannot refuse to receive such of its subjects as are expelled from abroad. Difficulties arise, however, sometimes concerning the reconduction of such alien individuals as have lost their nationality through long-continued absence[664] from home without having acquired another nationality abroad. Such cases are a further example of the fact that the very existence of stateless individuals is a blemish in Municipal as well as International Law.[665]

IX EXTRADITION

Hall, §§ 13 and 63—Westlake, I. pp. 241-251—Lawrence, §§ 110-111—Phillimore, I. §§ 365-389D—Twiss, I. § 236—Halleck, I. pp. 257-268—Taylor, §§ 205-211—Walker, § 19—Wharton, II. §§ 268-282—Wheaton, §§ 115-121—Moore, IV. §§ 579-622—Bluntschli, §§ 394-401—Hartmann, § 89—Heffter, § 63—Lammasch in Holtzendorff, III. pp. 454-566—Liszt, § 33—Ullmann, §§ 127-131—Bonfils, Nos. 455-481—Despagnet, Nos. 276-286—Pradier-Fodéré, III. Nos. 1863-1893—Mérignhac, II. pp. 732-777—Rivier, I. pp. 348-357—Nys, II. pp. 244-253—Calvo, II. §§ 949-1071—Fiore, Code, Nos. 584-586—Martens, II. §§ 91-98—Spear, "The Law of Extradition" (1879)—Lammasch, "Auslieferungspflicht und Asylrecht" (1887)—Martitz, "Internationale Rechtshilfe in Strafsachen," 2 vols. (1888 and 1897)—Bernard, "Traité théorique et pratique de l'extradition," 2 vols. (2nd ed. 1890)—Moore, "Treatise on Extradition" (1891)—Hawley, "The Law of International Extradition" (1893)—Clark, "The Law of Extradition" (3rd ed. 1903)—Biron and Chalmers, "The Law and Practice of Extradition" (1903)—Piggott, "Extradition" (1910)—Lammasch in R.G. III. (1896), pp. 5-14—Diena in R.G. XII. (1905), pp. 516-544—See the French, German, and Italian literature concerning extradition quoted by Fauchille in Bonfils, No. 455.

§ 327. Extradition is the delivery of a prosecuted individual to the State on whose territory he has committed a crime by the State on whose territory the criminal is for the time staying. Although Grotius[666] holds that every State has the duty either to punish or to surrender to the prosecuting State such individuals within its boundaries as have committed a crime abroad, and although there is as regards the majority of such cases an important interest of civilised mankind that this should be done, this rule of Grotius has never been adopted by the States and has, therefore, never become a rule of the Law of Nations. On the contrary, States have always upheld their competence to grant asylum to foreign individuals as an inference from their territorial supremacy, those cases, of course, excepted which fall under stipulations of special extradition treaties, if any. There is, therefore, no universal rule of customary International Law in existence which commands[667] extradition.

§ 328. Since, however, modern civilisation categorically demands extradition of criminals as a rule, numerous treaties have been concluded between the several States stipulating the cases in which extradition shall take place. According to these treaties, individuals prosecuted for the more important crimes, political crimes excepted, are actually always surrendered to the prosecuting State, if not punished locally. But this solution of the problem of extradition is a product of the nineteenth century only. Before the eighteenth century extradition of ordinary criminals hardly ever occurred, although many States used then frequently to surrender to each other political fugitives, heretics, and even emigrants, either in consequence of special treaties stipulating the surrender of such individuals, or voluntarily without such treaties. Matters began to undergo a change in the eighteenth century, for then treaties between neighbouring States frequently stipulated extradition of ordinary criminals besides that of political fugitives, conspirators, military deserters, and the like. Vattel (II. § 76) is able to assert in 1758 that murderers, incendiaries, and thieves are regularly surrendered by neighbouring States to each other. But general treaties of extradition between all the members of the Family of Nations did not exist in the eighteenth century, and there was hardly a necessity for such general treaties, since traffic was not so developed as nowadays and fugitive criminals seldom succeeded in reaching a foreign territory beyond that of a neighbouring State. When, however, in the nineteenth century, with the appearance of railways and Transatlantic steamships, transit began to develop immensely, criminals used the opportunity to flee to distant foreign countries. It was then and thereby that the conviction was forced upon the States of civilised humanity that it was in their common interest to surrender ordinary criminals regularly to each other. General treaties of extradition became, therefore, a necessity, and the several States succeeded in concluding such treaties with each other. There is no civilised State in existence nowadays which has not concluded such treaties with the majority of the other civilised States. And the consequence is that, although no universal rule of International Law commands it, extradition of criminals between States is an established fact based on treaties. The present condition of affairs is, however, very unsatisfactory, since there are many hundreds of treaties in existence which do not at all agree in their details. What is required nowadays, and what will certainly be realised in the near future, is a universal treaty of extradition, one single treaty to which all the civilised States become parties.[668]

§ 329. Some States, however, were unwilling to depend entirely upon the discretion of their Governments as regards the conclusion of extradition treaties and the procedure in extradition cases. They have therefore enacted special Municipal Laws which enumerate those crimes for which extradition shall be granted and asked in return, and which at the same time regulate the procedure in extradition cases. These Municipal Laws[669] furnish the basis for the conclusion of extradition treaties. The first in the field with such an extradition law was Belgium in 1833, which remained, however, for far more than a generation quite isolated. It was not until 1870 that England followed the example given by Belgium. English public opinion was for many years against extradition treaties at all, considering them as a great danger to individual liberty and to the competence of every State to grant asylum to political refugees. This country possessed, therefore, before 1870 a few extradition treaties only, which moreover were in many points inadequate. But in 1870 the British Government succeeded in getting Parliament to pass the Extradition Act.[670] This Act, which was amended by another in 1873[671] and a third in 1895,[672] has furnished the basis for extradition treaties of Great Britain with forty other States.[673] Belgium enacted a new extradition law in 1874. Holland enacted such a law in 1875, Luxemburg in the same year, Argentina in 1885, the Congo Free State in 1886, Peru in 1888, Switzerland in 1892.

Such States as possess no extradition laws and whose written Constitution does not mention the matter, leave it to their Governments to conclude extradition treaties according to their discretion. And in these countries the Governments are competent to extradite an individual even if no extradition treaty exists.

§ 330. Since extradition is the delivery of an incriminated individual to the State on whose territory he has committed a crime by the State on whose territory he is for the time staying, the object of extradition can be any individual, whether he is a subject of the prosecuting State, or of the State which is required to extradite him, or of a third State. Many States, however, as France and most other States of the European continent, have adopted the principle never to extradite one of their subjects to a foreign State, but themselves to punish subjects of their own for grave crimes committed abroad. Other States, as Great Britain and the United States, have not adopted this principle, and do extradite such of their subjects as have committed a grave crime abroad. Thus Great Britain surrendered in 1879 to Austria, where he was convicted and hanged,[674] one Tourville, a British subject, who, after having murdered his wife in the Tyrol, had fled home to England. And it must be emphasised that the object of extradition is an individual who has committed a crime abroad, whether or not he was during the commission of the criminal act physically present on the territory of the State where the crime was committed. Thus, in 1884, Great Britain surrendered one Nillins to Germany, who, by sending from Southampton forged bills of exchange to a merchant in Germany as payment for goods ordered, was considered to have committed forgery and to have obtained goods by false pretences in Germany.[675]

A conflict between International and Municipal Law arises if a certain individual must be extradited according to an extradition treaty, but cannot be extradited according to the Municipal Law of the State from which extradition is demanded. Thus in the case of Salvatore Paladini,[676] whose extradition was demanded by the United States of America from the Italian Government in 1888 for having passed counterfeit money, Italian Municipal Law, which prohibits the extradition of an Italian citizen, came into conflict with article 1 of the Extradition Treaty of 1868 between Italy and the United States which stipulates extradition of criminals without exempting nationals. For this reason Italy refused to extradite Paladini. It is noteworthy that the United States, although they do not any longer press for extradition of Italian subjects who, after having committed a crime in the United States have returned to Italy, nevertheless consider themselves bound by the above-mentioned treaty of 1868 to extradite to Italy such American subjects as have committed a crime in Italy. Therefore, when in 1910 the Italian Government demanded from the United States extradition of one Porter Charlton,[677] an American citizen, for having committed a murder in Italy, extradition was granted.

§ 331. Unless a State is restricted by an extradition law, it can grant extradition for any crime it thinks fit. And unless a State is bound by an extradition treaty, it can refuse extradition for any crime. Such States as possess extradition laws frame their extradition treaties conformably therewith and specify in those treaties all those crimes for which they are willing to grant extradition. And no person is to be extradited whose deed is not a crime according to the Criminal Law of the State which is asked to extradite, as well as of the State which demands extradition. As regards Great Britain, the following are extraditable crimes according to the Extradition Act of 1870:—Murder and manslaughter; counterfeiting and uttering counterfeit money; forgery and uttering what is forged; embezzlement and larceny; obtaining goods or money by false pretences; crimes by bankrupts against bankruptcy laws; fraud by a bailee, banker, agent, factor, trustee, or by a director, or member, or public officer of any company; rape; abduction; child stealing; burglary and housebreaking; arson; robbery with violence; threats with intent to extort; piracy by the Law of Nations; sinking or destroying a vessel at sea; assaults on board ship on the High Seas with intent to destroy life or to do grievous bodily harm; revolt or conspiracy against the authority of the master on board a ship on the High Seas. The Extradition Acts of 1873 and 1906 added the following crimes to the list:—Kidnapping, false imprisonment, perjury, subornation of perjury, and bribery.

Political criminals are, as a rule, not extradited,[678] and according to many extradition treaties military deserters and such persons as have committed offences against religion are likewise excluded from extradition.

§ 332. Extradition is granted only if asked for, and after the formalities have taken place which are stipulated in the treaties of extradition and the extradition laws, if any. It is effected through handing over the criminal by the police of the extraditing State to the police of the prosecuting State. But it must be emphasised that, according to most extradition treaties, it is a condition that the extradited individual shall be tried and punished for those crimes exclusively for which his extradition has been asked and granted, or for those at least which the extradition treaty concerned enumerates.[679] If, nevertheless, an extradited individual is tried and punished for another crime, the extraditing State has a right of intervention.[680]

An important question is whether, in case a criminal, who has succeeded in escaping into the territory of another State, is erroneously handed over, without the formalities of extradition having been complied with, by the police of the local State to the police of the prosecuting State, such local State can demand that the prosecuting State shall send the criminal back and ask for his formal extradition. This question was decided in the negative in February 1911 by the Court of Arbitration at the Hague in the case of France v. Great Britain concerning Savarkar. This British-Indian subject, who was prosecuted for high treason and abatement of murder, and was being transported in the P. and O. boat Morea to India for the purpose of standing his trial there, escaped to the shore on October 25, 1910, while the vessel was in the harbour of Marseilles. He was, however, seized by a French policeman, who, erroneously and without further formalities, reconducted him to the Morea with the assistance of individuals from the vessel who had raised a hue-and-cry. Since Savarkar was prima facie a political criminal, France demanded that England should give him up and should request his extradition in a formal way, but England refused to comply with this demand, and the parties, therefore, agreed to have the conflict decided by the Court of Arbitration at the Hague. The award, while admitting that an irregularity had been committed by the reconduction of Savarkar to the British vessel, decided, correctly, I believe, in favour of Great Britain, asserting that there was no rule of International Law imposing, in circumstances such as those which have been set out above, any obligation on the Power which has in its custody a prisoner, to restore him on account of a mistake committed by the foreign agent who delivered him up to that Power.[681] It should be mentioned that the French Government had been previously informed of the fact that Savarkar would be a prisoner on board the Morea while she was calling at Marseilles, and had agreed to this.

X PRINCIPLE OF NON-EXTRADITION OF POLITICAL CRIMINALS

Westlake, I. pp. 247-248—Lawrence, § 111—Taylor, § 212—Wharton, II. § 272—Moore, IV. § 604—Bluntschli, § 396—Hartmann, § 89—Lammasch in Holtzendorff, III. pp. 485-510—Liszt, § 33—Ullmann, § 129—Rivier, I. pp. 351-357—Nys, II. pp. 253-256—Calvo, II. §§ 1034-1036—Martens, II. § 96—Bonfils, Nos. 466-467—Pradier-Fodéré, III. Nos. 1871-1873—Mérignhac, II. pp. 754-771—Soldan, "L'extradition des criminels politiques" (1882)—Martitz, "Internationale Rechtshilfe in Strafsachen," vol. II. (1897), pp. 134-707—Lammasch, "Auslieferungspflicht und Asylrecht" (1887), pp. 203-355—Grivaz, "Nature et effets du principe de l'asyle politique" (1895)—Piggott, "Extradition" (1910), pp. 42-60—Scott in A.J. III. (1909), pp. 459-461.