§ 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]
[662] Rivier, I. p. 308, correctly distinguishes between reconduction and expulsion, but Phillimore, I. § 364, seems to confound them.
[664] See above, § [302, No. 3].
[665] It ought to be mentioned that many States have, either by special treaties or in their treaties of commerce, friendship, and the like, stipulated proper treatment of each other's destitute subjects on each other's territory.
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.
Extradition no legal duty.
§ 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.
[666] II. c. 21, § 4.