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The General Admission of Aliens under International Law

Published online by Cambridge University Press:  27 February 2017

James A. R. Nafziger
James A. R. Nafziger*
Affiliation:
Willamette University College of Law
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Extract

One often reads or hears that a state has a right to exclude all aliens from its territory unless a treaty obligation requires admission. Frequently, that proposition prefaces discussion of such issues as immigration quotas, expulsion and deportation of aliens, justiciability and procedural due process in litigation involving immigration questions, and the duty of states to protect aliens. Sometimes the proposition is colored by such words as “of course,” “no longer open to serious question,” or “unquestionably”—clues, at least, that some questions and doubts may be in order.

Type
Research Article
Information
American Journal of International Law , Volume 77 , Issue 4 , October 1983 , pp. 804 - 847
Copyright
Copyright © American Society of International Law 1983

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References

1 A common formulation of the proposition first appeared in Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892), quoted in text at note 115 infra. 2

2

“[E]xclusion” means preventing someone from entering the United States who is actually outside of the United States or is treated as being so. “Expulsion” means forcing someone out of the United States who is actually within the United States or is treated as being so. “Deportation” means the moving of someone away from the United States, after his exclusion or expulsion.

Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.4 (1953). Although the issues of alien exclusion, expulsion, and deportation are interrelated and governed by similar principles, the present study will examine only the issue of alien exclusion.

3 Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 604 (1889).

4 Numerous publicists have noted this discrepancy between theory and reality, e.g., Borchard, E., The Diplomatic Protection of Citizens Abroad or the Law of International Claims 46 (1915)Google Scholar; Fenwick, C., International Law 319 (4th ed. 1965)Google Scholar; Hershey, A., The Essentials of International Public Law and Organization 369 n.52 (1939)Google Scholar; Oda, , The Individual in International Law, in M. Sørensen, Manual of Public International Law 469, 481 (1968)Google Scholar; Starke, J., An Introduction to International Law 345 (1972)Google Scholar.

5 Hucker, , Migration and Resettlement under International Law, in The International Law and Policy of Human Welfare 327 ( Macdonald, R., Johnston, D., & Morris, G. eds. 1978)Google Scholar. Also, “[l]es questions d’immigration ne sont pas du tout laissées à la compétence arbitraire d’un Etat seul, car le droit international limite sa compétence en la matière, en vue du bien cornmun de l’humanité.” Verdross, A., Les Regles Internationales Concernant Le Traitement des Strangers 25 (1932)Google Scholar.

6 Goodwin-Gill, G., International Law and the Movement of Persons Between States 20, 94–96, 196–97 (1978)Google Scholar.

7 E.g., 1 Sibert, M., Traite de Droit International Public 575 (1951)Google Scholar.

8 E.g., 1 Cavaré, L., Le Droit International Public Positif 275 (2d ed. 1961)Google Scholar; Lungchu Chen, , Remarks, 67 ASIL Proc. 127, 130–31 (1973)Google Scholar; 5 Verzijl, J., International Law in Historical Perspective 417 (1972)Google Scholar; Wildes, , The United States Immigration Service v. John Lennon: The Cultural Lag, 40 Brooklyn L. Rev. 279, 281 (1973)Google Scholar, reprinted in 1 Immigration & Nationality L. Rev. 407, 409 (1976–77); Hucker, supra note 5, at 327; G. Goodwin-Gill, supra note 6, at 196–97; Restatement of Foreign Relations Law of the United States (Revised) §722, Reporters’ Note 1, at 247 (Tent. Draft No. 3, 1982).

9 See generally L. Cavaré, supra note 8. The distinction between permanent and temporary jurisdiction is material to an appraisal of national laws. For example, a state may allow the entry of large numbers of temporary guest workers without the same level of commitment to permanent hospitality that another state provides by accepting fewer immigrants who, however, have a greater likelihood of being eligible for permanent residence or citizenship. Kindleberger, , Mass Migration, Then and Now, 43 Foreign Aff. 647, 656–57 (1965)Google Scholar. Also, the focus of this article will be on the admission of natural, rather than juristic persons such as corporations. For a discussion of the problems of applying analogies drawn from natural to juristic persons, see Levi, W., Contemporary International Law: A Concise Introduction 176 (1979)Google Scholar.

10 E.g., J. Starke, supra note 4; Oda, supra note 4.

11 Nickel, , Human Rights and the Rights of Aliens, in The Border That Joins 31, 42 ( Brown, P. & Shue, H. eds. 1983)Google Scholar; Labor Mobility: The Global Bracero Problem, 73 ASIL Proc. 119, 130 (1979).

12 Aybay, , The Right to Leave and the Right to Return: The International Aspect of Freedom of Movement, 1 Comp. L. Y.B. 121, 122 (1978)Google Scholar; Brierly, J., the Law of Nations 276 (6th ed. 1963)Google Scholar; De Visscher, C., Théories et Réalites en Droit International Public 228 (3d ed. 1960)Google Scholar; 1 Hyde, C., International Law Chiefly as Interpreted and Applied by the United States 216, 217 (2d ed. 1951)Google Scholar; Hyndnian, , Asylum and Non-Refoulement—Are These Obligations Owed to Refugees Under International Law?, 57 Phil. L.J. 43, 68 (1982)Google Scholar; Johnson, , Refugees, Departees and Illegal Migrants, 9 Sydney L. Rev. 11, 24 (1980)Google Scholar; Kelsen, H., Principles of International Law 372–73 (2d ed. 1966)Google Scholar; W. Levi, supra note 9; Mosler, H., The International Society as a Legal Community 55–56 (1980)Google Scholar; Oda, supra note 4; 1 Oppenheim, L., International Law 675–76 (8th ed. Lauterpacht 1955)Google Scholar; Sinha, S., New Nations and the Law of Nations 97 (1967)Google Scholar; J. Starke, supra note 4; Von Glahn, G., Law among Nations: An Introduction to Public International Law 214 (3d ed. 1976)Google Scholar; Von Overbeck, A., Niederlassungsfreiheit Und Ausweisungsrecht (1907)Google Scholar; Weis, P., Nationality and Statelessness in International Law 45 (1956)Google Scholar; Williams, S. & De Mestral, A., An Introduction to International Law Chiefly as Interpreted and Applied in Canada 105 (1979)Google Scholar; 1 Willoughby, W., the Constitutional Law of the United States 251 (1910)Google Scholar. Three criteria determined the selection of authority in this sampling: apparent influence on jurists, political scientists, and public decision makers; historical balance; and nationality balance. The latter proved to be particularly problematic because of the preponderance of the proposition among British and American writers. Nonetheless, some ten nationalities are represented among the above publicists. An examination of 20th-century digests of international law published by the U.S. Government offers one additional insight: the trend has been from an elaborate discussion of the proposition in 4 Moore, J., A Digest of International Law 67, 151 et seq. (1906)Google Scholar, to a shorter, somewhat ambiguous restatement of the proposition in 3 Hackworth, G., digest of International Law 692–94, 717 (1942)Google Scholar, to an even shorter, somewhat cryptic recital of case law in 8 Whiteman, M., Digest of International Law 573–75, 581 (1967)Google Scholar. Among these digests the trend toward abstraction of the proposition under study parallels a trend, chronologically, among the publicists in the above sampling.

13 These publicists are sometimes misinterpreted. Edwin M. Borchard, e.g., sometimes cited as authority for the proposition under study, is ambiguous. He is careful to summarize contending positions and to limit the exclusionary position to “[c]ourts in the United States and Great Britain.” E. Borchard, supra note 4, at 45. He then refers to an “ultimate power” to exclude aliens which, however, “would violate the spirit of international law and endanger [a state’s] membership in the international community” (id. at 46). He states that the “grounds of exclusion are fixed by the public interests of each state” with respect to “dangerous or undesirable” aliens (id.) and recognizes that an “arbitrary or unjust exclusion” would give rise to a political, though not a legal, pecuniary claim (id. at 48). While noting the contending principles of interdependence and sovereign exclusivity, and while referring to “the recognized inherent power of a state to exclude foreigners,” Borchard concludes as follows:

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.

Id. at 37 (emphasis added).

14 Konvitz, M., The Alien and the Asiatic in American Law 18 n.53 (1946)Google Scholar.

15 E.g., 1 Fauchille, P., Traité de Droit International Public 894–95 (8th ed. 1926)Google Scholar; Fiore, P., International Law Codified and its Legal Sanction 42 ( Borchard, E. trans. 1918)Google Scholar (1890); M. Sibert, supra note 7, at 571; Irizarry y, Puente, Exclusion and Expulsion of Aliens in Latin America, 36 AJIL 252, 254–56, 270 (1942)Google Scholar: A. Verdross, supra note 5, at 25.

16 Plender, R., International Migration Law 39 (1972)Google Scholar (an excellent commentary on these issues).

17 Hucker, supra note 5, at 338.

18 Kleindienst v. Mandel, 408 U.S. 753, 765 (1972).

19 Hogarth, D., Accidents of an Antiquary’s Life 2 (1910)Google Scholar.

20 The most widely quoted, today at least, is from Leviticus 19:33–34: “And if a stranger sojourn with thee in your land, ye shall not vex him. But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt.. . .” Contemporary doctrine of the Roman Catholic Church has conditioned limitations by states on the influx of immigrants upon “real and genuine reasons of the common good” and never “to the detriment of other people.” Zimmerman, A., Pius XII and International Migration: A Report of the Committee on Social Questions of The Catholic Association for International Peace 3–4 (1959)Google Scholar; accord, Pope, Paul VI, New Norms for the Care of Migrants 9 (1969)Google Scholar.

21 Jones, J., the Law and Legal Theory of the Greeks 49 (1956)Google Scholar; 1 Phillipson, C. , the International Law and Custom of Ancient Greece and Rome 145 (1911)Google Scholar.

22 J. Jones, supra note 21; C. Phillipson, supra note 21, at 32–3, 125, 128.

23 Thucydides, , The Peloponnesian Wars 49, 67 (Washington Square Press ed. 1963)Google Scholar.

24 The Laws of Plato (Dent, J. M. & Son, Ltd. ed. 1960)Google Scholar. For example, in book VIII, Plato wrote as follows:

Any foreigner who pleases may become a resident in the country on certain express conditions. It shall be understood that we offer a home to any alien who desires to take up his abode with us and is able to do so; but he must have a craft, and his residence must not be prolonged more than twenty years from the date of his registration.

Id. at 239. In book XII, Plato prefaced a discussion of rules restricting the admission of aliens by summarizing contending arguments, including the following:

[T]o refuse all admission to the foreigner and permit the native no opportunity of foreign travel is, for one thing, not always possible, and, for another, may earn a State a reputation for barbarism and inhumanity with the rest of the world; its citizens will be thought to be adopting the ill-sounding policy of “exclusion of aliens” and developing a repulsive and intractable character; but reputation, for good or ill, with the outer world ought never to be under-valued.

Id. at 343–44. On Plato’s hostile attitude toward barbarians remaining outside the Greek city-states, see Arnopoulos, , Platonic Ideas on International Affairs, 2 Hellenic Rev. Int’l Rel. 33, 40–41 (1981)Google Scholar.

Compared with Plato, Aristotle had rather little to say about migration or the rights of aliens. In the context of his theory of citizenship, he seems to have viewed aliens not as strangers but as a class of acceptable residents with less status than citizens. Barker, E., the Political Thought of Plato and Aristotle 294–301 (Dover, ed. 1959)Google Scholar. Aristotle seems to have recognized limited treaty rights of aliens. The Politics of Aristotle 93 (Oxford ed. 1958).

25 C. Phillipson, supra note 21, at 213, 256. In Cicero’s words, “[t]o debar foreigners from enjoying the advantages of the city is altogether contrary to the laws of humanity.” Cicero, M., De Officiis, bk. III, ch. xi, at 47 (Loeb Classical Library ed. 1923)Google Scholar.

26 Cranston, M., What are Human Rights? 33, 36 (1973)Google Scholar.

27 See, e.g., Henriques, H., the Law of Aliens and Naturalization 9–10 (1906)Google Scholar.

28 For a useful bibliographical note, with authoritative citations, see R. Plender, note 16 supra, at 40 n. 12.

29 M. Cranston, supra note 26, at 36.

30 2 Grotius, H., De Jure Belli Ac Pacis, bk. II, ch. II, at 186–205 (Carnegie Endowment trans. 1925)Google Scholar.

31 Id. at 202.

32 Mat 201–02.

33 De Victoria, F., De Indis et de Iure Belli Relectiones 151 (E. Nys ed. 1917)Google Scholar.

34 Ibid.

35 According to Wolff, a state could refuse entry to a foreigner where

there is fear lest the morals of the subjects may be corrupted, or lest prejudice may be aroused against religion, or even lest criminals be admitted because of whom injury threatens the State, and other things which are detrimental to public welfare. . . . [Moreover,] since nations are free, the decision in these matters must be left to the nations themselves and that decision must be respected.

Wolff, C., Jus Gentium Scientifica Pertraetatum §§148–149 (Clarendon ed. 1934)Google Scholar.

36 2 Pufendorf, S., De Jure Naturae Gentium, bk. VIII, at 365 (Oxford ed. 1934)Google Scholar (as indicated by brackets, the present author has corrected a faulty, misleading translation from the Latin in this edition; see id., vol. 1, at 248).

37 G. Goodwin-Gill, supra note 6, at 95.

38 De Vattel, E., The Law of Nations (Chitty, J. ed. 1839)Google Scholar. On the interrelationship between the ideas of Grotius and those of Vattel, see Remec, P., The Position of the Individual in International Law According to Grotius and Vattel (1960)CrossRefGoogle Scholar.

39 For a discussion of this distinction, see P. Remec, supra note 38, at 197. For an example of the distinction in Vattel’s discussion of the rights of foreigners, see E. De Vattel, supra note 38, bk. II, §135, at 183–84.

40 Parry, , The Function of Law in the International Community, in M. Sørensen, supra note 4, at 1, 25 Google Scholar.

41 E. De Vattel, supra note 38, bk. II, §94, at 169–70.

42 Id. § 100, at 171–72. Grotius argued for a right of passage in the absence of a genuine threat to the sovereign. H. Grotius, supra note 30, at 198.

43 E. De Vattel, supra note 38, bk. I, §§ 19–20, at 6.

44 Id., bk. II, §§ 131–139, at 182–85.

45 Respectively, id. §§120, 121, 123, and 125, at 178–80.

46

In the primitive state of communion, men had, without distinction, a right to the use of every thing, as far as was necessary to the discharge of their natural obligations. And, as nothing could deprive them of this right, the introduction of domain and property could not take place without leaving to every man the necessary use of things,—that is to say, the use absolutely required for the fulfillment of this natural obligation. . . . This right is a necessary remnant of the primitive state of communion.

Id. §117, at 177.

47 Id. §120, at 178 (emphasis added).

48

For, on the other hand, every nation has a right to refuse admitting a foreigner into her territory, when he cannot enter it without exposing the nation to evident danger, or doing her a manifest injury. What she owes to herself, the care of her own safety, gives her this right; and, in virtue of her natural liberty, it belongs to the nation to judge, whether her circumstances will or will not justify the admission of that foreigner. . . . He cannot, then, settle by a full right, and as he pleases, in the place he has chosen, but must ask permission of the chief of the place; and, if it is refused, it is his duty to submit.

However . . . no nation can, without good reasons, refuse even a perpetual residence to a man driven from his country. But, if particular and substantial reasons prevent her from affording him an asylum, this man has no longer any right to demand it.

Id., bk. I, §§ 230–231, at 107–08 (emphasis added).

By “exiles” Vattel referred to both involuntary departures pursuant to superior order and voluntary departures “to escape some punishment, or to avoid some calamity.” Id. §228, at 107 (emphasis added). Vattel concluded this discussion by indicating the circumstances under which a state may exclude “fugitives or exiles,” as follows:

Thus, a nation, whose lands are scarcely sufficient to supply the wants of the citizens, is not obliged to receive into its territories a company of fugitives or exiles. Thus, it ought even absolutely to reject them, if they are infected with a contagious disease. Thus, also, it has a right to send them elsewhere, if it has just cause to fear that they will corrupt the manners of the citizens, that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged, to follow, in this respect, the suggestions of prudence. But this prudence should be free from unnecessary suspicion and jealousy; it should not be carried so far as to refuse a retreat to the unfortunate, for slight reasons, or on groundless and frivolous fears. The means of tempering it will be, never to lose sight of that charity and commiseration which are due to the unhappy. We must not suppress these feelings even for those who have fallen into misfortune through their own fault. For, we ought to hate the crime, but love the man, since all mankind ought to love each other.

Id. §231, at 107–08.

49

In explaining the effects of domain we have said above . . . that the owner of the territory may forbid the entrance into it, or permit it on such conditions as he thinks proper. We were then treating of his external right,—that right which foreigners are bound to respect. But now that we are considering the matter in another view, and as it relates to his duties and to his internal right, we may venture to assert that he cannot, without particular and important reasons, refuse permission, either to pass through or reside in the country, to foreigners who desire it for lawful purposes. For, their passage or their residence being in this case an innocent advantage, the law of nature does not give him a right to refuse it: and, though other nations and other men in general are obliged to submit to his judgment . . . he does not the less offend against his duty, if he refuses without sufficient reason:—he then acts without any true right; he only abuses his external right.

Id., bk. II, §135, at 183–84.

50 Id. §§135, 136, 137, 138, at 184–85.

51 Id. §130, at 182 (emphasis added); see P. Remec, supra note 38, at 197.

52 E.g., Akehurst, M., A Modern Introduction to International Law 21 (3d ed. 1977)Google Scholar.

53 An exception is the opinion in the landmark alien expulsion case, Fong Yue Ting v. United States, 149 U.S. 698 (1893).

54 See text at notes 98–133 infra.

55 1 Blackstone, W., Commentaries on the Laws of England 259 (1783)Google Scholar (emphasis added).

56 33 Geo. 3, ch. 4 (1793). For a discussion of this measure and its aftermath, see H. Henriques, supra note 27, at 11–13.

57 C. De Visscher, supra note 12, at 228.

58 Lynch v. Clarke, 1 Sand. Ch. 583, 661 (N.Y. 1844).

59 Woolsey, T., Introduction to the Study of International Law 89 (1879)Google Scholar.

60 C. De Visscher, supra note 12, at 228–29.

61 R. Plender, supra note 16, at 48–52. On the laws of New Zealand, see Williams, , New Zealand Immigration Policies and the Law—A Perspective, 4 Otago L. Rev. 185, 190–91 (1978)Google Scholar. A prominent Canadian scholar has made an interesting observation on early developments in his country, as follows: “Canadian immigration thinking has been an exercise in sustaining an uneasy balance among a variety of forces, all tugging in different directions. Some appeared at an early date— for example, Quebec’s early resistance to immigration in contrast to general encouragement from the English-speaking provinces.” Castel, J.-G., International Law Chiefly as Interpreted and Applied in Canada 472 (1976)Google Scholar.

62 E. De Vattel, supra note 38, vol. 1, §§ 19–20, at 6. See also Gordon, , The Immigration Process and National Security, 24 Temp. L.Q. 302, 319 (1950–51)Google Scholar.

63 130 U.S. at 606.

64 In U.S. jurisprudence, Chief Justice Marshall wrote a classic formulation of this concept of territorial jurisdiction, as follows:

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.

Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116, 136 (1812). Historical circumstances on troubled seas help explain the vigor of the above language. Note, however, the following dicta qualifying the territorialist presumption:

The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers.

This consent may, in some instances, be tested by common usage, and by common opinion, growing out of that usage.

Ibid, (emphasis added).

65 On a functional definition of “power,” see Dahl, R., Modern Political Analysis 50, 51 n.8 (1963)Google Scholar (quoting others).

66 ISO U.S. at 606.

67 In the U.S. constitutional context, where decision makers sometimes use the terms “powers,” “rights,” and “authority” interchangeably, the concept of inherent powers is rooted in the transferral of power from the British Crown and in early constitutional history. Also, the concept of inherent powers is often, and confusingly, used interchangeably with the constitutional concept of “implied powers,” which are conferred by judicial inference to give effect to governmental powers expressed in the Constitution. The basis for the constitutional doctrine of implied powers, as expressed in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), is highly . Note, Constitutional Limits on the Power to Exclude Aliens, 82 Colum. L. Rev. 957 (1982); Note, Constitutional Limitations on the Naturalization Power, 80 Yale L.J. 769 (1971).

68 On the functions of centralized power, see Lasswell, H., Politics: Who Gets What, When, How (Meridian ed. 1958)Google Scholar.

69 On the concept of obedience, see, e.g., Simon, H. & Barnard, C., Administrative Behavior 126 (The Free Press 2d ed. 1965)Google Scholar.

70 See Allen, J. , A History of Political Thought in the Sixteenth Century 412– 13(Methuened. 1960)Google Scholar.

71 M. Akehurst, supra note 52, at 22.

72 Great Jurists of the World 497 (Macdonell, & Manson, eds. 1914)Google Scholar (in a discussion of Vattel’s concept of sovereignty).

73 As one writer reminds us:

The notion that the validity of international law raises some peculiar problem arises from the confusion which the doctrine of sovereignty has introduced into international legal theory. Even when we do not believe in the absoluteness of state sovereignty we have allowed ourselves to be persuaded that the fact of their sovereignty makes it necessary to look for some specific quality, not to be found in other kinds of law, in the law to which states are subject.

J. Brierly, supra note 12, at 54. In other words:

The concept of sovereignty was misleading even when it was first announced in the 16th century in support of the divine right of kings. Pursued in the late 20th century, it seems likely to lead to vertical concepts where horizontal thinking is required; to rigid rules that bear no relation to reality….

Lowenfeld, , Sovereignty, Jurisdiction, and Reasonableness: A Reply to A. V. Lowe, 75 AJIL 629, 629 (1981)CrossRefGoogle Scholar.

74 The Corfu Channel Case, 1949 ICJ Rep. 1, 43 (individual opinion by Judge Alvarez).

75 Ibid.

76 Lauterpacht, H., The Function of Law in the International Community 96 (1933)Google Scholar. Similarly, H. L. A. Hart denied the validity of the

a priori argument which attempts to deduce the general character of international law from an absolute sovereignty, which is assumed, without reference to international law, to belong to states.

It is worth observing that an uncritical use of the idea of sovereignty has spread similar confusion in the theory both of municipal and international law, and demands in both a similar corrective. . . . [The question for international law is] what is the maximum area of autonomy which the rules allow to states?

Hart, H., The Concept of Law 218 (1961)Google Scholar. But see the writings of some contemporary political scientists who emphasize sovereignty and the nation-state as the basic structural feature of the present international system, e.g., Aron, , The Anarchical Order of Power, in Conditions of World Order (Hoffmann, S. ed. 1968)Google Scholar; Waltz, K., Man, The State and War (1959)Google Scholar.

77 Customs Regime between Germany and Austria, 1931 PCIJ, ser. A/B, No. 41, at 57 (individual opinion by Judge Anzilotti).

78 Gordon, C. & Rosenfeld, H. , Immigration Law and Procedure 2–16 (1978)Google Scholar.

79 M. Akehurst, supra note 52, at 22.

80 2 O’Connell, D., International Law 696 (1970)Google Scholar.

81 “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter. . . .” UN Charter art. 2(7).

82

If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.

Treaty of Peace-between the Allied and Associated Powers and Germany, June 28, 1919, 1919 Foreign Relations of the United States, the Paris Peace Conference, Vol. 13, at 55, 88, 2 Bevans 43, 53.

83 Tunis-Morocco Nationality Decrees, 1923 PCIJ, ser. B, No. 4, at 24 (Advisory Opinion of Feb. 7).

84 Jenks, C., The Common Law of Mankind 283–85 (1958)Google Scholar. For an early, rather idealistic assertion that immigration is not solely within the domestic jurisdiction of states and that the moral right to immigrate might “in time” become a legal right, see Manisty, , The Right of Immigration, 12 Grotius Soc’y Transactions 1–3 (1927)Google Scholar.

85 But see the following dictum, as a principle of municipal constitutional law, in Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952): “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.” Accord, Carlson v. Landon, 342 U.S. 524, 534–35 (1952).

86

According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.

Nottebohm Case (Second Phase) (Liechtenstein v. Guat.), 1955 ICJ Rep. 4, 23 (Judgment of Apr. 6).

87 International Covenant on Civil and Political Rights, GA Res. 2200 (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), entered into force Mar. 23, 1976. Article 6 of the International Covenant on Economic, Social and Cultural Rights, GA Res. 2200 (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), entered into force Jan. 3, 1976, “recognize[s] the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.” Id. at 50. It is doubtful, however, that this right contemplates that immigration laws will be liberalized to effect its provisions.

88 Constitution of the Intergovernmental Comm. for European Migration, opened for signature Oct. 19, 1953, 6 UST 603, TIAS No. 3197, 207 UNTS 189 (renamed to exclude the word “European”).

89 D. O’Connell, supra note 80, at 696 (with particular reference to the convention drafted by the Conference on Treatment of Foreigners and the Convention between the American Republics regarding the Status of Aliens in their Respective Territories).

90 One writer speaks of “l’influence dangereuse des pratiques restrictives de l’immigration sur les tensions Internationales.” C. De Visscher, supra note 12, at 228; see also pp. 230–31.

91 E.g.,:

If the power to exclude is beyond review and redress, it might be assumed that entry may be authorized on whatever conditions the state may choose to impose, including a general condition that an alien enters at his peril. This in turn might suggest that any action by the state affecting an alien after he is admitted may be regarded as an unreviewable exercise of power. If law and the behavior of men and states conformed to so abstract and extreme a logic, foreignness would imply absence of legal protection, and there would be little possibility of a meaningful international legal order.

Katz, M. & Brewster, K., The Law of International Transactions and Relations 8 (1960)Google Scholar.

92 Walzer, M., Spheres of Justice 32 (1983)Google Scholar.

93 Id. at 51.

94 The federal Government has inherent powers over external affairs. More specifically, the right and power of the United States in the field of international relations “are equal to the right and power of the other members of the international family.” Thus, for example, the federal Government may expel undesirable aliens so long as expulsion is justified by “the law of nations.” 299 U.S. at 318.

95 Harisiades v. Shaughnessy, 342 U.S. at 591.

96 299 U.S. at 318.

97 Ibid, (emphasis added).

98 See text at notes 37–54 supra.

99 M. Konvitz, supra note 14, at 18.

100 United States ex rel. Volpe v. Smith, 289 U.S. 422, 425 (1933).

101

The proper constitutional test for restrictions on entry is the two-level test applied to legislation generally. Where the restriction does not involve a suspect classification or impinge on fundamental rights, a restriction on entry would have to bear a reasonable relationship to a legitimate government interest. Present immigration law contains various exclusion provisions which would need to meet the test of a reasonable relationship to a legitimate state interest. We may consider these as falling under the broad interests of public health and safety, public morals, fiscal integrity, and national security, though these categories overlap to a degree.

Note, Immigrants, Aliens, and the Constitution, 49 Notre Dame Law. 1075, 1082 (1974). Related issues of municipal constitutional law lie beyond the scope of this study.

102 The Chinese Exclusion Case, 130 U.S. 581 (1889); Fong Yue Ting v. United States, 149 U.S. 698 (1893). See Hesse, , The Constitutional Status of the Lawfully Admitted Permanent Resident Alien: The Pre-1917 Cases, 68 Yale L.J. 1587, 1588 (1959)Google Scholar.

103 Nishimura Ekiu v. United States, 142 U.S. 651 (1892).

104 130 U.S. 581, passim (1889). The power of Congress to regulate immigration had been found in the Commerce Clause. The Head Money Cases, 112 U.S. 580 (1884).

105 6 U.S. (2 Cranch) 64, 117–18 (1804), where Chief Justice Marshall wrote that “an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”

106 ISO U.S. at 604.

107 Id. at 594.

108 Id. at 595. In the Lawyer’s Edition of the opinion, the word “seemed” appears as “seems.” 32 L. Ed. 1068, 1072.

109 130 U.S. at 606.

110 Ibid.

111 Id. at 607–08.

112 Id. at 608.

113 26 Stat. 1084 (1891).

114 142 U.S. at 662.

115 Id. at 659.

116 1 Phillimore, R., International Law 320 (3d ed. 1879)Google Scholar.

117 Ibid.

118 8 Id. at 446.

119 See text at notes 44–53.

120 E. De Vattel, supra note 38, bk. I, §230, at 107, quoted with minor rewording in 149 U.S. at 707 (emphasis added).

121 See, e.g., Lem Moon Sing v. United States, 158 U.S. 538, 543 (1895); Fok Yung Yo v. United States, 185 U.S. 296, 302 (1902); United States ex rel. Turner v. Williams, 194 U.S. 279, 294 (1904); Keller v. United States, 213 U.S. 138, 143–44 (1909); Mahler v. Eby, 264 U.S. 32, 40 (1924); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); Harisiades v. Shaughnessy, 342 U.S. at 587–88; Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953); Galvan v. Press, 347 U.S. 522, 531 (1954).

122 United States ex rel. Knauff v. Shaughnessy, 338 U.S. at 542, 544. Graham v. Richardson, 403 U.S. 365, 374 (1971), a case involving access by aliens to state welfare benefits, is one of several Court opinions that have explicitly rejected the materiality of the distinction between a “right” and a “privilege.”

123 408 U.S. 753(1972).

124 See also Plyler v. Doe, 457 U.S. 202, 225 (1982); Landon v. Plasencia, 103 S. Ct. 321, 329 (1982).

125 408 U.S. at 765.

126 Id. at 770 (Douglas, J., dissenting) and 781 (Marshall, J., dissenting), respectively. See also Harisiades v. Shaughnessy, 342 U.S. at 598 (Douglas, J., dissenting); and Galvan v. Press, 347 U.S. at 534 (Douglas, J., dissenting).

127 In The Chinese Exclusion Case the Court formulated a mechanistic role for the judiciary, as follows:

When once it is established that Congress possesses the power to pass an act, our province ends with its construction, and its application to cases as they are persented for determination. . . . We do not mean to intimate that the moral aspects of legislative acts may not be proper subjects of consideration. Undoubtedly they may be, at proper times and places, before the public, in the halls of Congress, and in all the modes by which the public mind can be influenced. Public opinion thus enlightened, brought to bear upon legislation, will do more than all other causes to prevent abuses; but the province of the courts is to pass upon the validity of laws, not to make them, and when their validity is established, to declare their meaning and apply their provisions. All else lies beyond their domain.

U.S. at 603.

128 Kleindienst v. Mandel, 408 U.S. at 765–66.

129 1891 A.C. 272.

130 Id. at 282–83. There was reliance on Musgrove 17 years later. 2 Burge’s Commentaries on Colonial and Foreign Laws 140 (Renton, & Phillimore, eds. 1908)Google Scholar.

131 G. Goodwin-Gill, supra note 6, at 23.

132 R. v. Governor of Pentonville Prison, ex parte Azam, [1973] 2 All E.R. 741, 747 (emphasis added); see also Schmidt v. Secretary of State for Home Affairs, [1969] 1 All E.R. 904, 907, where Lord Denning wrote as follows: “I have always held the view that in common law no alien has any right to enter this country except by leave of the Crown: and the Crown can refuse leave without giving any reason.”

133

In neither case was there prolonged discussion about the principle of free movement. Thus, Sir W. Phillimore, Q.C. and J. W. McCarthy, for Chun Teeong Toy, conceded that “every state may by international law exclude aliens”, [1891] A.C. 272, 276. In Nishimura Ehu v. U.S., Mr. Lyman I. Mowry, for the appellant, merely referred to international law to support his assertion that the powers conferred by the Act were of such an extraordinary nature that it was the evident intention of Congress that a record of the proceedings should be kept: 142 U.S. 651, 658.

R. Plender, supra note 16, at 51 n.80.

134 Another, somewhat different version of this section will appear as International Law Bearing on the Entry of Aliens Regardless of Refugee Status, XIII Thesaurus Acroasium (1983).

135 North Sea Continental Shelf Cases (W. Ger./Den.; W. Ger./Neth.), 1969 ICJ Rep. 3, 231 (Judgment of Feb. 20) (Lachs, J., dissenting). This article relies on Professor Anthony D’Amato’s concept of opinio juris, which requires authoritative articulation of a rule, in advance of or concurrent with a state practice. D’Amato, A., The Concept of Custom in International Law 74 et seq. (1971)Google Scholar.

136 E.g., J Brierly, C Be Visscher, C Hyde, H. Kelsen, W. Levi, Oda, L. Oppenheim, S. Sinha, and G. Von Glahn, supra note 12.

137 E.g., C Fenwick, supra note 4; Jeancourt-Galignani, A., L’Immigration en Droit International 97 (1908)Google Scholar.

138 E. Borchard, supra note 4, at 48; Bouvé, C., A Treatise on the Laws Governing the Exclusion and Expulsion of Aliens in the United States 14, 15 (1912)Google Scholar; Evans, L., Leading Cases on International Law 135 (2d ed. 1922)Google Scholar; Stowell, E., International Law: A Restatement of Principles 193 (1931)Google Scholar; Hall, W., A Treatise on International Law 223 (4th ed. 1895)Google Scholar; D. O’Connell, supra note 80, at 695–96; W. Willoughby, supra note 12, at 251.

139 Pradier-Fodéré, Remarks, 12 Inst. Droit Int’l Annuaire 192 (1892–94); M. Sibert, supra note 7, at 575. A related statement is that “there is no general right for a foreign national to enter a country.” Jagerskiold, , The Freedom of Movement, in The International Bill of Rights 166, 174 (Henkin, L. ed. 1981)Google Scholar.

140 E. Borchard, supra note 4, at 46; P. Fauchille, supra note 15, at 894–95; Fiore, , Remarks, 12 Inst. Droit Int’l Annuaire 193 (1892–94)Google Scholar; 1 Kent, J., Commentaries on American Law §35 n.(a) ( Holmes, O. W. Jr., ed. 1884)Google Scholar; Irizarry y Puente, supra note 15, at 254–56, 270. “Any government [may exclude aliens] when entry would be likely to endanger the public health, welfare and safety or threaten national security.” Staff Report of the [U.S.] Select Commission on Immigration and Refugee Policy, U.S. Immigration Policy and the National Interest, Supplement to the Final Report and Recommendations of the Commission 762 (1981) (emphasis added). Cf. this statement with more ambiguous “undesirability” criterion. Id. at 723.

As the Swiss jurist, Johann K. Bluntschli, wrote in a classic formulation of this viewpoint:

Aucun état n’a le droit d’interdire d’une facon absolue aux étrangers l’entrée de son territoire, et de fermer le pays au commerce général.

. . . .

Chaque état a le droit d’interdire l’entrée de son territoire à certains étrangers pour motifs politiques ou judiciaires.

1. L’exclusion de certains étrangers doit être motivée par l’ordre, la sûreté ou le bien publics, sinon elle serait en contradiction avec le principe de la liberté des relations internationales. . . .

. . . .

Lorsqu’ un gouvernement interdit sans motif l’entrée du territoire á un étranger dûment légitimé, ou Pexpulse sans cause et avec des formes blessantes, l’état dont cet étranger est citoyen a le droit de réclamer contre cette violation du droit international, et de demander au besoin satisfaction.

Bluntschli, J., Le Droit International Codifié 228–29 (5th Guillaumin ed. 1895)Google Scholar (emphasis added).

141 The practice of certain newly independent states supports the proposition only when exclusion is nondiscriminatory and “necessary” to implement a state’s “national or public interest.” Asian-African Legal Consultative Committee, Report of the Fourth Session 56, 59–60, discussed in S. Sinha, supra note 12, at 97.

142 G. Goodwin-Gill, supra note 6, at 196.

143 L. Cavaré, supra note 9, at 275; D. O’Connell, supra note 80, at 695–96; Hucker, supra note 5, at 327; M. Sibert, supra note 7, at 571; E. Stowell, supra note 138, at 193; A. Verdross, supra note 5, at 25.

144 Heffter, A., Das Europäische Völkerrecht der Gegenwart auf den Bisherigen Grundlagen §33 (5th ed. 1867)Google Scholar; T. Woolsey, supra note 59, at 88–89.

145 P. Fiore, supra note 15, at 42.

146 R. Plender, supra note 16, at 38 & n.15.

147 12 Inst. Droit Int’l Annuaire 218 et seq. (1892–94). For minutes of the proceedings convened to draft the regulations, see id. at 184–218 [hereinafter referred to as Procès-verbal des séances]. For an English translation of the regulations, see Resolutions of the Institute of International Law 104 et seq. (J. Scott ed. 1916). For a summary of the background and earlier draft of the regulations, see id. at 88–90.

148 R. Plender, supra note 16, at 53.

149 Preamble, Resolutions, supra note 147, at 104.

150 Ibid.

151 Id. at 105–06. Cf. Staff Report on Immigration, supra note 140.

152 Procès-verbal des séances, supra note 147, at 192.

153 E. Borchard, supra note 4, at 46; Oda, supra note 4, at 481.

154 Fields, , Closing Immigration throughout the World, 26 AJIL 671 (1932)CrossRefGoogle Scholar. On current nativism in Western Europe, see Yerkey, , W. Europe immigrants live in no man’s land, Christian Sci. Monitor, March 30, 1982, at 1,Google Scholar col. 4.

155 E.g., Australia (Australian News, Oct. 29, 1981); Belgium (Council of Europe Information Bull., No. 10, Nov. 1981, at 31, 35, 47).

156 G. Goodwin-Gill, supra note 6, at 160–61, 197; J. Starke, supra note 4, at 345.

157 R. Plender, supra note 16, at 71–88, 94–126; G. Goodwin-Gill, supra note 6, at 136–37. On laws affirming a state’s duty to readmit its own nationals, see Hucker, supra note 5, at 329; P. Weis, supra note 12, at 50.

158 For a list of national immigration laws, see R. Plender, supra note 16, at 298–323. For an extensive sampling of these laws, see Individual Rights and the State in Foreign Affairs ( Lauterpacht, E. & Collier, J. eds. 1977)Google Scholar, as follows: Austria, at 38–39; Belgium, at 61–63; Cameroon, at 83; Canada, at 105–06; Chile, at 147–49; COMECON, at 438–42; Denmark, at 199–200; Egypt, at 223–26; the Federal Republic of Germany, at 253; France, at 282–84; Israel, at 321–29; Italy, at 375; Mexico, at 399–400; Poland, at 438–39; Sri Lanka, at 471–72; Switzerland, at 510–11; Thailand, at 568–71; Uganda, at 590–91; the United Kingdom, at 616–17; the United States, at 657–60. Accord, with regard to the “new nations of Asia and Africa in the 1960’s,” S. Sinha, supra note 12, at 97–98. Generally, African states have relatively generous immigration laws, especially toward refugees. Anderson, America in Africa, 1981, 60 Foreign Aff. 658, 679 (1982). Occasional mass expulsions are an exception.

159 For example, the influential immigration laws of the United States, Canada, and the United Kingdom all included discriminatory provisions in the past. Whereas those of the United Kingdom protect the concept of patriality to distinguish some British citizens from others, those of the United States and Canada seek to replicate existing demographic patterns, to ensure assimilability of aliens, and to encourage the highly skilled to enter, typically from the more highly developed industrial countries. G. Goodwin-Gill, supra note 6, at 92–93.

160

[T]he United States, since 1921, has followed the second and third courses by imposing both qualitative and quantitative restrictions on aliens seeking to enter the United States as immigrants. This period was preceded by some forty-five years of qualitative restrictions and this period, in turn, by more than one hundred years of immigration unrestricted by federal legislation.

Auerbach, F., Immigration Laws of the United States 4 ( Harper, E. ed. 1975)Google Scholar. See generally id. at 4–48; Abbott, E., Historical Aspects of the Immigration Problem (1926)Google Scholar; Abbott, E., Immigration—Select Documents and Case Records (1924)Google Scholar; Divine, R., American Immigration Policy, 1924–1952 (1957)Google Scholar; Garis, R., Immigration Restriction (1927)Google Scholar; Hutchinson, E., Legislative History of American Immigration Policy 1798–1965 (1981)Google Scholar; Taft, D. & Robbins, R., International Migrations (1955)Google Scholar; Higham, , American Immigration Policy in Historical Perspective, 21 L. & Contemp. Probs. 213 (1956)CrossRefGoogle Scholar.

161

I have referred somewhat at large to the usages and legislation of the colonies, to show that so far from limiting, or abridging in any mode, the common law rule of claiming allegiance and conferring rights as subjects; the whole scope and tendency of their legislation and their acts, were to obtain for their infant communities, all the population, and all the citizens that could be brought within their territory. They invited in all nations to multiply the people, which laboriously employed are the true riches of any country.

Lynch v. Clarke, 1 Sand. Ch. 583, 650 (N.Y. 1844).

162 Proper, E., Colonial Immigration Laws 88 (1900)Google Scholar.

163 Id. at 90–91.

164

[Mr. Madison] wished to maintain the character of liberality which had been professed in all the Constitutions & publications of America. He wished to invite foreigners of merit & republican principles among us. America was indebted to emigration for her settlement & Prosperity. That part of America which had encouraged them most had advanced most rapidly in population, agriculture & the arts. There was a possible danger he admitted that men with foreign predilections might obtain appointments but it was by no means probable that it would happen in any dangerous degree.

Madison, J. , Journal of the Federal Convention 507 ( Scott, E. ed. 1840)Google Scholar.

165 1 Stat. 570 et. seq. (1798). The Alien Act authorized the President to deport any alien whom he deemed to be dangerous to the nation. After its expiration in 1800, there was no restrictive federal legislation until 1875. On immigration history in the period immediately after the Alien Act of 1798, see Immigration Following the Peace of 1815, 10 Niles’ Weekly Reg., June 27, 1816, at 412, reprinted in Abbott, E. Google Scholar, Historical Aspects, supra note 160.

166 See Note, supra note 101, at 1076.

167 1 Sand. Ch. 583. See text at note 58.

168

The first act of Congress restricting immigration, passed in 1875, excluded prostitutes and convicts. Later statutes excluded idiots, lunatics, and those likely to become public charges. In 1882, Congress passed the first act excluding Chinese immigration, and since that time has been active in legislating restrictions on immigration. It has barred immigration on grounds of political opinions; and, under the quota system, first adopted in 1921, fostered an explicitly racial and eugenic scheme of immigration aimed at encouraging immigration from northern and western Europe rather than southern and eastern Europe and Asia, while at the same time placing a fixed limit on yearly immigration. Racial quotas were not dropped until 1965 by an act which replaced exclusion on racial grounds with a preference system.

Note, supra note 101, at 1076; see also Adams, , A Dubious Host, Wilson, Q., New Year’s 1983, at 100 Google Scholar.

169 8 U.S.C. §§1101–1503 (1976).

170 8 U.S.C. §1182(a)(14) (1976) provides that an employer must hire U.S. nationals unless none are “able, willing, qualified . . . and available.” On the difficulties and inequities of overcoming this presumption, see Singhal, , Labor Certification Under Revised Regulations, 51 S. Cal. L. Rev. 823 (1978)Google Scholar; Note, Alien Labor Certification, 60 Minn. L. Rev. 1034 (1976).

171 Wasserman, J., Immigration Law and Practice (3d ed. 1979)Google Scholar; accord, Gim, , Immigration Law Deficiencies and the Need for Reform, in Asian Immigrants and their Status in the United States 1 (Chiu, H. ed. 1979)Google Scholar: “Our immigration laws are unfair, anachronistic, even primitive in their severity.”

172 For a summary, see Individual Rights, supra note 158, at 616.

173 “Lacking a larger design, Canadian immigration history can be read as a series of pragmatic reactions to relatively short-term interests and pressures, influenced by the emergence of the concept of Canada’s ‘absorptive capacity’ for immigrants at any given time.” J.-G. Castel, supra note 61, at 472; see also collection of Canadian judicial opinions, in Canada and the Law of Nations 269–83 ( MacKenzie, M. & Laing, L., eds. 1938)Google Scholar; Hucker, , Immigration, Natural Justice and the Bill of Rights, 13 Osgoode Hall L J. 649, 650–55 (1975)Google Scholar.

174 See Johnson, supra note 12, at 26 et seq.; and note 155 supra.

175 See Williams, supra note 61, at 188 et seq.

l76 Turack, , Freedom of Movement in the Caribbean Community, 11 Den. J. Int’l L. & Pol. 37, 49 (1982)Google Scholar.

177 E.g.:

There appears little likelihood of the emergence of a system of world order which would curtail in any fundamental way the exclusive competence of states to decide who will be admitted or allowed to remain in their territory. On the basis of past trends, any surrender of authority is likely to be gradual and primarily confined to regional groupings, of which the E.E.C. is the obvious example, in which the members share compatible political systems, a reasonable equivalence in economic development, and a largely homogeneous ethnic and racial composition.

Hucker, supra note 5, at 340.

178 46 Stat. 2753, TS No. 815, 132 LNTS 301, signed Feb. 20, 1928.

179 Treaty Establishing the European Economic Community, Art. 48(2), done Mar. 25, 1957, 298 UNTS 3. Article 3(c) provides that the Community shall include within its activities “the abolition, as between Member States, of obstacles to freedom of movement for persons.”

180 Turack, , Freedom of Transnational Movement: The Helsinki Accord and Beyond, 11 Vand. J. Transnat’l L. 585, 603–04 (1978)Google Scholar.

181 Re Application No. 434/58 (X v. Gov’t of Swed.), 28 ILR 242 (Eur. Comm’n on Human Rights 1959). The Commission’s dictum on the obligations of members is illuminating:

Under general international law a State has the right, in virtue of its sovereignty, to control the entry and exit of foreigners into and out of its territory. It is true that a right or freedom to enter the territory of States, Members of the Council of Europe, is not, as such, included among the rights and freedoms guaranteed in Section I of the Convention. However, a State which signs and ratifies the European Convention on Human Rights and Fundamental Freedoms must be understood as agreeing to restrict the free exercise of. . . its right to control the entry and exit of foreigners, to the extent and within the limits of the obligations which it has accepted under that Convention.

Id. at 250–51.

182 Conference on Security and Cooperation in Europe: Final Act, reprinted in 14 ILM 1292 (1975) [hereinafter cited as Accords]. For bibliographies of literature pertaining to the Accords, see U.S. Dep’t of State Newsletter, Oct. 1980, at 60; Granier, , Human Rights and the Helsinki Conference on Security and Cooperation in Europe: An Annotated Bibliography of United States Government Documents, 13 Vand. J. Transnat’l L. 529 (1980)Google Scholar. Although arguably not legally binding in themselves, the Accords provide a comprehensive, morally compelling expression of norms that, by influencing state behavior, may constitute lex ferenda.

183 See Nafziger, , The Right of Migration under the Helsinki Accords, 1980 S. Ill. L.J. 395.Google Scholar

184 Accords, supra note 182, at 1314.

185 Stateless persons are protected primarily by two international agreements. See Convention relating to the Status of Stateless Persons, Final Act of the United Nations Conference on the Status of Stateless Persons, done Sept. 28, 1954, 360 UNTS 117; Convention on the Reduction of Statelessness, done Aug. 30, 1961, UN Doc. A/CONF.9/15 (1961). A summary of the law of refugees follows in the text.

186 Report of the United Nations High Commissioner for Refugees, 34 UN GAOR Supp. (No. 12) at 4, UN Doc. A/34/12 (1979). On the international law of refugees, see Grahl-Madsen, A., Territorial Asylum (1980)Google Scholar; Grahl-Madsen, A., The Status of Refugees in International Law (2 vols. 1966, 1972)Google Scholar. Article 14 of the Universal Declaration of Human Rights provides, as follows, for an individual right to seek asylum, but does not provide specifically for a duty upon a state to grant it: “(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.”

187 Preamble, UNGA Res. 2312 (XXII), 22 UN GAOR Supp. (No. 16) at 81, UN Doc. A/6716 (1967), reprinted in 62 AJIL 822 (1968).

188 Art. 33, Convention relating to the Status of Refugees, done July 28, 1951, 189 UNTS 137 (does not require states to grant entry, but guarantees numerous basic rights to lawfully admitted political refugees displaced before 1951). See also OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, done Sept. 10, 1969, reprinted in 8 ILM 1288 (1969).

189 Protocol relating to the Status of Refugees, done Jan. 31, 1967, 19 UST 6223, TIAS No. 6577, 606 UNTS 267 (supplements 1951 Convention for persons displaced after 1951).

190 Art. 22, para. 8, American Convention on Human Rights, entered into force July 18, 1978, Organization of American States, Handbook of Existing Rules Pertaining to Human Rights 27, OEA/Ser.L/V/11.50, doc. 6 (1980).

191 Report of the UN High Commissioner, supra note 186, at 13.

192 Ibid.

193 E.g., Vaaro v. R., [1933] 1 D.L.R. 359, 362 (Canada); Salebhoy v. The Controller of Immigration, 36 ILR 348 (Burma Chief Ct. 1963); Expulsion of Foreign National Case, 32 ILR 255 (Admin. Ct. App. North Rhine-Westphalia 1961); Residence of Alien Trader Case, 21 ILR 209 (Admin. Ct. App. Münster 1954) (the court indicated, however, that “a State is not allowed to shut itself off from general international intercourse,” id. at 210); Lin Jung-A’ai v. Japan, 26 ILR 479 (Japan S. Ct. 1957); and McLean v. Setoyama, reported in 23 Japan. Ann. Int’l L. 176, 180 (1980) (Japan S. Ct. 1978).

194 E.g., Marcon, 1952 Recueil des arrêts du Conseil d’état 525 (France) (administrative discretion in the admission of aliens must be based on the interests of public security); Chandra v. Minister of Immigration, [1978] 2 N.Z.L.R. 559, 568. The Latin American practice seems generally to have required such grounds for exclusion as a threat to the political stability, defense, public order, or social tranquility of the state, although discretion to make those determinations is vested in the state. Irizarry y Puente, supra note 15, at 254–56.

195 [1978] 2 N.Z.L.R. at 568.

196 J. Moore, supra note 12, at 153–60. Nishimura Ekiu v. United States, 142 U.S. at 659, quoted in text at note 115 supra, stands out as an exception among pronouncements cited in Moore’s Digest

197 On the “reason to know,” see A. D’Amato, supra note 135, at 86–87. Elsewhere, Professor D’Amato specifically questions whether the long-standing receptivity of states to tourists has been “articulated to be a matter of international law,” but he does not discuss whether state practice of admitting aliens on a more permanent basis, the subject of this study, satisfies the requirements of opinio juris. Id. at 77–78.

198 Article 13 of the Universal Declaration of Human Rights, UNGA Res. 217 (III) (A), UN Doc. A/810, at71 (1948), provides as follows: “1. Everyone has the right to freedom of movement and residence within the borders of each State. 2. Everyone has the right to leave any country, including his own, and to return to his country.” Articles 15, 23, and 25 of the Declaration establish basic rights to change one’s nationality, to work freely under favorable conditions, and to secure an adequate standard of living. Application of these provisions does not specifically require more liberal national immigration laws. The provisions serve, nevertheless, as a reminder that the global community is increasingly animated by a unifying concept of universal equal opportunity and by a growing awareness of the social waste and economic disequilibrium inherent in nation-state centrism. See also Higgins, , The Right in International Law of an Individual to Enter, Stay in and Leave a Country, 49 Int’l Aff. 341, 344–50 (1973)Google Scholar.

199 UN Charter arts. 55 and 56; see also text at notes 87–88 supra.

200 1923 PCIJ, ser. B, No. 4, at 24.

201 1932 PCIJ, ser. A/B, No. 44, at 4 (Advisory Opinion of Feb. 4).

202 Id. at 41.

203 1955 ICJ Rep. at 46.

204 Case Concerning the Barcelona Traction, Light & Power Co., Ltd. (New Application) (Belg. v. Spain), 1970 ICJ Rep. 4, 32 (Judgment of Feb. 5).

205 UN Doc. E/CONF.60/WG/L.55/Add.3 (1974), reprinted in 71 Dep’t State Bull. 440 (1974). Although the World Population Plan of Action is not legally binding in the classical sense of an international agreement, it has much the same juridical weight as, for example, the Helsinki Accords. The plan was adopted without a vote by the conference, and on Dec. 17, 1974, the General Assembly adopted Res. 3344 (XXIX), by a vote of 131–1, on the World Population Plan of Action.

206 Independent Commission on International Development Issues, North-South, A Programme for Survival 108–13 ( Brandt, W. ed. 1980)Google Scholar.

207 Hoffmann, S., Duties Beyond Borders 224–25 (1981)Google Scholar.

208 Id. at 225.

209 M. Cranston, supra note 26, at 36.

210 Aybay, supra note 12, at 125.

211 Note, e.g., the following:

Moreover the right to leave a country cannot be fully exercised unless there is a right of entry into another country. If there is an obligation upon a state to let everyone leave it, there must be a corresponding obligation on other states to let people enter it without discrimination. Barriers imposed by states on entry, such as quota systems or racial and religious requirements, must be lifted.

Hussein, A. Hassouna, Remarks, 67 ASIL Proc. 135, 136 (1973)Google Scholar. Accord, M. Sibert, supra note 7, at 575; David, Yeres, U.S. Dep’t of Justice, Remarks, ASIL Annual Meeting (Apr. 26, 1979)Google Scholar; Gregory, J., Human Migration and the Future 50 (1928)Google Scholar. But see M. Walzer, supra note 92, at 40, 42 et seq. Professor Walzer finds immigration and emigration to be “morally asymmetrical.”

212 G. Goodwin-Gill, supra note 6, at 197; Helsinki Accords, supra note 182, at 1314.

213 67 ASIL Proc., supra note 211, passim. See also Higgins, supra note 198; J. Inglés, Study of Discrimination in respect of the Right of Everyone to Leave Any Country, Including His Own, and to Return to His Own Country, UN Doc. E/CN.4/Sub.2/220/Rev. 1 (1963); Lung-chu Chen, supra note 8, at 127.

214 M. Cranston, supra note 26, at 31.

215 See Virally, , Review Essay: Good Faith in Public International Law, 77 AJIL 130 (1983)Google Scholar (on the principle of good faith); M. Walzer, supra note 92, at 33 (on the principle of mutual aid); T. Woolsey, supra note 59, at 23–24 (on the other principles). A distinguished U.S. scholar, Livermore, long ago observed in a different but not inapposite context, as follows:

The people of an independent nation may, if they please, surround their territory with an impassable wall, and totally exclude all intercourse with other nations. But if a desire to promote their own interest induces them to cultivate an intercourse with other people, they must necessarily adopt such principles, as a sense of common utility and of justice will inspire. . . .

Livermore, S., Dissertations on the Questions Which Arise from the Contrariety of the Positive Laws of Different States and Nations 27–28 (1828)Google Scholar.

216 Freedom of migration, generally speaking, “continues to be important for promoting mutual understanding and cooperation among peoples. To that extent, this right serves as an instrument of peace and reduces world tension.” Jagerskiold, supra note 139, at 166 (but see n.139). Social scientific research has given greater resonance to the value of freer migration by contradicting popular fears of a country’s low absorptive capacity, of the moral danger posed by an influx of immigrants, of a serious displacement of indigenous labor, and so on. See, e.g., Reubens, , Immigration Problems, Limited-Visa Programs, and Other Options, in The Border That Joins, supra note 11, at 187, 194–203 Google Scholar; Segal, The Half-Open Door, Wilson, Q., New Year’s 1983, at 116, 127 Google Scholar; Bustamante, , Undocumented Migration from Mexico: Research Report, 11 Int’l Migration Rev. 149 (1977)CrossRefGoogle Scholar; Cornelius, W., Building the Cactus Curtain: Mexican Immigration and U.S. Responses, from Wilson to Carter (1981)Google Scholar; Cornelius, W., Mexican Migration to the United States: Causes, Consequences, and U.S. Responses (Center for International Studies, Massachusetts Institute of Technology, Monograph Series of the Migration and Development Study Group, 1978)Google Scholar; Cornelius, W., Illegal Migration to the U.S.: Recent Research Findings, Policy Implications and Research Priorities (1977)Google Scholar; Davidson, C., Characteristics of Deportable Aliens Located in the Center of the United States (unpub. paper presented at the Annual Meeting of the Population Association of America, Washington, D.C., March 1981)Google Scholar; North, D. & Houstoun, M., The Characteristics and Role of Illegal Aliens in the U.S. Labor Market: an Exploratory Study (1976)Google Scholar. On a few of the salient migration issues in need of social scientific research, see Gould, W. & Barkun, M., International Law and the Social Sciences 279–80 (1970)Google Scholar.

217 C. De Visscher, supra note 12, at 231; Bellot, , Remarks, in Problems of Peace and War, 12 Grotius Soc’y Transactions 5 (1927)Google Scholar.

218 Nafziger, , A Policy Framework for Regulating the Flow of Undocumented Aliens into the United States, 56 Or. L. Rev. 63, 79 (1977)Google Scholar.

219

[R]esponsible nations might deliberately strive for a relatively quick assimilation of the underprivileged as against the high cost of maintaining present restrictions. What seems radical in terms of past policies may come to seem more like common sense in a world situation fewer alternatives. A policy of gradualism extending intermigration privileges between select nations would be one type of beginning. If some nations were to begin opening their boundaries, it would probably put others at a political disadvantage so that they could not stand still. A new geopolitics could begin on that basis, one with sufficient latitude for political realism.

Nett, , The Civil Right We Are Not Ready For: The Right of Free Movement of People on the Face of the Earth, 84 Ethics 212, 227 (1971)Google Scholar.

220 Nafziger, supra note 218, at 86–87.

221 See Mcdougal, M. & Reisman, W., International Law IN Contemporary Perspective 925 (1981)Google Scholar.

222 Supra note 138. See also Boffolo Case (Italy v. Venez.), 10 R. Int’l Arb. Awards 528 (1903), which addressed an issue of expulsion by Venezuela of an Italian national.

223 Hall, W., A Treatise on International Law 211 (6th ed. 1909)Google Scholar.

224 C. Hyde, supra note 12, at 218.

225 “Considering the universal restrictions placed on immigration in this century, and the almost total exclusion of aliens by some countries, it is surprising to discover that there, is a widespread consensus of opinion, particularly on the Continent, favouring a general duty in international law to receive aliens.” D. O’Connell, supra note 80, at 695.

226 Thomas, , Undocumented Aliens: Some International Aspects, 73 ASIL Proc. 131, 136 (1979)Google Scholar.

227 See, e.g., notes 48, 49, 111, 120, and 140 supra.

228 [1970] 2 Y.B. Int’l L. Comm’n 178, UN Doc. A/CN.4/SER.A/1970/Add.1

229 Ironically, developing countries least able to absorb immigrants often bear the greatest burdens of admitting aliens. Carlin, , Significant Refugee Crises Since World War II and the Response of the International Community, 1982 Mich. Y.B. Int’l Legal Stud. 3, 12–21 Google Scholar; Anderson, supra note 158, at 679.

230 See Schechter, , The Views of “Charterists” and “Skeptics” on Human Rights in the World Legal Order, 9 Hofstra L. Rev. 357, 388–89 (1981)Google Scholar.