falls below the common standard.

Not infrequently it

In the

exceeds the bounds of a reasonable legal limitation.

absence of supernational authority each state must determine whether its citizens have received the full measure of protection. The great powers have abused this responsibility on many occasions, coercing the weaker states of the work into conceding to resident aliens a more privileged position than any fair application of international law would require.

Differences in civilization also create incapacities in certain states in relation to the exclusion of aliens. Entire exclusion of the subjects of a particular state has never been attempted between states of the white race in the modern society of nations.

Although the admission of

Japan to what has been generally presumed to be a normal status in the international community has complicated the question, it would seem that as a general rule each state of full international capacity may demand admission for its nationals into another state on the same terms as are accorded to the nationals of other states of full capacity.45 It has never been doubted, however, that sufficient dissimilarities in civilization may constitute a legal ground for exclusion. This principle received recognition in the resolutions of the Institute of International Law in 1892.

46

45 Cf. Westlake, Int. Law, Vol. I, p. 216.

46

A.I.D.I. (1892), Vol. XII, pp. 191, 220.

Its significance in relation to equality is suggested in a note on the question of Chinese immigration into the United States in the Revue Générale de Droit International Public:

On the one hand, the rule of the equality of states
prevents a government from distinguishing between the
aliens whom it intends to keep out of its territory:
it may not exclude the subjects of one nation and at
the same time admit those of another; however, juridical
equality among states assumes the existence of a

ity of right, it can be in question only among peoples
equally civilized.47

The practice of granting asylum in legations and consulates and on public vessels, 48wherever it has survived, consti

tutes a limitation upon the capacity of the states in which it prevails, and can be justified only on grounds similar to those which explain extraterritorial jurisdiction, inequalities arising out of the protection of citizens abroad, and the exclusion of aliens.

V

LIMITATIONS INCIDENT TO PROTECTION

Certain of the most familiar of international incapacities arise out of the relation of protection.49 This relation

48 See Gilbert, in A.J.I.L. (1909), Vol. III, pp. 562595; Michaud, Le droit d'asile en Europe et en Angleterre; Moore, in P.S.Q. (1892), Vol. VII, pp. 1-37, 197-231, 397-418; Robin, in F.G.D.T.P. (1908), Vol. XV, pp. 461-508; Tobar y Borgoño, L'asile interne devant le droit international; V. S. Foreign Relations (1898), p. 171.

49 See Engelhardt, in R.G.I.L.C. (1892), Vol. XXIV, pp. 345-383, (1893), Vol. XXV, pp. 230-238, 466-480; Heilborn, Das völkerrechtliche Protektorat; Oppenheim, Int. Law, secs. 9294, Vol. I, p. 137; Piécelièvre, Droit int. pab., sec. 283, Vol. I, p. 255; Pillet, in R.G.D.T.P. (1895), Vol. II, pp. 583-608.

has been established in an extraordinary variety of cases between more powerful or more highly civilized states on the one hand and small, weak, backward, incipient, or decaying states on the other. It may exist in all degrees, shading off imperceptibly from the relationship which imposes only slight limitations on the protected state to the so-called protectorate which has no international capacity at all. It may constitute a stage in the process which leads ultimately to annexation, or, less frequently, in the development which leads to unrestricted international capacity. More infrequently still, it may become a permanent relationship. Whatever its degree or its significance it is generally agreed that it imposes a limitation upon the legal capacity of the protected state.

More often than otherwise protection has been preliminary to annexation. Before annexation has been consummated, however, it has frequently happened that for a long period the society of nations has been presented with a protected state of limited capacity. The Treaty of Vienna constituted the city of Cracow a free, neutral, and independent town under the protection of Austria, Prussia, and Russia.5 50 This arrangement continued until 1846, when Cracow was absorbed by Austria. Another part of the settlement of 1815

51

50 Art. 6.

51 Convention between Austria, Prussia, and Russia, in B.F.S.P., Vol. 35, p. 1088. See the Austrian Declaration, and British and French protests, in Hertslet, Vol. II, pp. 1065, 1068, 1073.