Foreigners' Rights
BY J. L. BRIERLY, Chielute Professor of International Law at Oxford.
THE recent arrest and the pending trial of British engineers in the U.S.S.R. have drawn attention to the general question of the legal position of persons living or owning property or engaging in transactions in the territory of a State other than their own. That position cannot be simply defined, for the problem, even when it is not complicated by any question of extra- territoriality, may arise in an almost infinite variety of circumstances. Moreover, it relates to a branch of inter- national law which, although it rarely attracts much popular interest, as it has in the present case, has come, with the ever-accelerating growth of international contacts of every sort, to occupy a large, in fact probably the major, part of the attention of diplomatists and international lawyers. A library of treatises and articles and hundreds of arbitral awards exist on the subject. THE recent arrest and the pending trial of British engineers in the U.S.S.R. have drawn attention to the general question of the legal position of persons living or owning property or engaging in transactions in the territory of a State other than their own. That position cannot be simply defined, for the problem, even when it is not complicated by any question of extra- territoriality, may arise in an almost infinite variety of circumstances. Moreover, it relates to a branch of inter- national law which, although it rarely attracts much popular interest, as it has in the present case, has come, with the ever-accelerating growth of international contacts of every sort, to occupy a large, in fact probably the major, part of the attention of diplomatists and international lawyers. A library of treatises and articles and hundreds of arbitral awards exist on the subject.
Two extreme views may be mentioned, only to be dismissed. On the one hand it has been said that a man is not obliged to leave his own country, and if he chooses to do so he must take the institutions of a foreign State as he finds them. He may dislike them, just as he may dislike the climate. In either case the remedy is in his own hands ; he can stay at home. On the other hand, in a speech delivered on April 26th, 1927, the late President Coolidge committed himself to the view that " the person and property of a citizen are a part of the general domain of the nation, even when abroad," a view which has been not inaptly described as the " export of the 14th Amendment of the American Constitution." Either of these views would afford a simple answer to the problem, but unfortunately neither of them bears much relation to the facts out of which the problem arises, and neither of them states the law correctly. The former ignores the fact that modern civilization makes it not merely undesir- able but actually impossible to confine the interests and activities of individuals by political frontiers. Inter- course between the members of different States is as in- evitable as intercourse between fellow-citizens, and some measure of security by law for the persons who take part in it, and for the transactions into which they enter, is as necessary in the one case as in the other.. The latter ignores the fact that the world is divided for governmental purposes into independent States, that these States possess varying types of culture, development and ideas of law and public policy, and that it is neither practicable nor reasonable that a foreigner should expect the institu- tions of the State in which he is a guest to adapt them- selves to his own national preferences. Obviously a compromise between these two extremes is necessary, and this in fact is what international law has attempted to provide.
A common system of law between the nations is possible, and it has as a historical fact been developed, because, notwithstanding important differences, there is justly assumed to exist among the nations which have accepted the civilization of Western Europe a common stock of ideas, a residuum of cultural and moral similarity, in virtue of which they form a community governed by law ; and one of these common ideas, which has become crystallized into a principle of law, is the rule that a State is bound to accord a certain minimum measure of decent treatment to the foreigner whom it receives within its borders. A State which fails to observe this minimum standard commits an international wrong, and thereby creates a right of redress, not indeed, according to the orthodox theory, for the injured foreigner himself, but for the State' to which he belongs, which it may enforce by any of the various means of pressure in the armoury of diplomacy. So far—that is to say, on the existence of this international standard of decent treat. ment for foreigners—there is no difficulty in stating the law. It is when we attempt to define the contents of this standard or to apply it to actual situations of fact that the difficulties begin.
Broadly speaking, those difficulties are of two kinds. There is, in the first place, the difficulty, not peculiar to international law, but permanently present in any legal system, of defining a standard of behaviour. A final and automatically applicable definition is as im- possible here as would be a definition of " reasonable in the English law of torts or of " dangerous " driving in the Road Traffic Act. In the second place there is a difficulty, which is peculiar to international law, because it arises out of the lack of homogeneity in civilization among the States which compose the international community. Certain States, notably those of Latin America, have learnt from experience to regard them- selves as more likely to be defendants than plaintiffs in a claim of redress for injury to a foreigner, and they have consistently upheld a restrictive interpretation of the obligations of the international standard. This difference, which is one of doctrine rather than mere definition, has hitherto made it impossible to arrive at an agreed settle- ment of the law by codification.
None the less it is possible to state in general terms some of the consequences of the existence of an inter- national standard. It does not require any State to guarantee the safety of the person or property of a foreigner on its territory. What it does require is that a State should maintain institutions which will normally be effective to prevent injury to a foreigner, or, if injury is committed, to redress it. If the injury is committed by an official of the State itself, the • question may become more complicated, for the law distinguishes between the acts of superior and inferior officials, and between their official and non-official acts. In the special case of the British engineers in Russia, which is one of an accusation of, and trial for, an act criminal under Russian law, the relevant considerations would in general terms be the following. No international wrong is committed unless either the substance of the criminal law or the manner of its administration by the officials concerned—police, judges, &c.—falls below the standard of civilized justice. , The law itself might conceivably fall below this standard if it were to stig- matize as crimes acts which the civilized world is agreed in regarding as innocent ; but in this class of case the question has more often arisen in respect of the adminis- tration than of the substance of the law. Here an international wrong would be committed by such defects in the administration of justice as unduly harsh treatment during arrest, punishment without trial, excessive delay in bringing to trial, refusal of proper opportunity for defence, disproportionate punishment, partiality or corruption of the Court. Clearly most of these defects are matters of degree ; • the question- in every case would be whether the elementary require- ments of justice, as justice is understood in civilized countries, have or have not been observed. That, however, is the limit of a State's international obliga- tion. Mere irregularities of procedure, an honestly mistaken decision, and a fortiori the use of practices. which English .lawyers greatly dislike but which are not reprobated by a consensus of civilized opinion, e.g., the use of the inquisitorial method, or the absence of a jury, would not in themselvel engage the inter- national responsibility of a State.
It is a necessary corollary of the existence of an international standard for the treatment of foreigners that, if a State's treatment of its own citizens falls below civilized standards, foreigners on its territory find themselves entitled to preferential treatment. That result can be avoided only if we are prepared to accept the gloss which Latin-American States have consistently tried to attach to their acceptance of the international standard, namely, that when a State under its own laws recognizes and applies the legal equality of citizen and foreigner, it has discharged its international obligation. The contention is under- standable, but it makes a State's own law and institu- tions the measure of the international standard, which is clearly equivalent to the negation of the existence of any such standard. The majority of States have never accepted and are not likely to accept this view.
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