The entry, establishment and removal of aliens in national and international law

This thesis is concerned with the problems which are raised by the movement of persons across frontiers. Its aim is to show that states' powers, which are so often described as absolute or sovereign, are in fact directly controlled by and subject to the rules of general international law. In the Introduction attention is drawn to the dangers involved in the loose usage of the word "discretion". The concept of "discretionary powers" is one which recurs throughout the following pages, and it is therefore essential to note that it is employed to signify powers which, although wide, are nevertheless confined and structured by rules. In Chapter I the first of two preliminary topics is dealt with. Nationality, as the basis of the first distinction which is drawn against the alien, is of fundamental importance. The problems which arise from nationality, however, are also used to demonstrate the meaning of discretionary state competence (Ch. I, s.2). This is followed by a brief consideration of the approach to nationality matters of selected municipal systems (Ch. I, s.3), and it is noted that states will frequently provide for an additional class of "non-citizen nationals" who may benefit from the right of entry. Finally, the right to enter a state is mentioned and its sources considered (Ch. I, s.4), but a detailed examination is left until Part III. Chapter II deals with the issues involved in the use of passports and other travel documents. A brief history of passports is given (Ch. II, s.1), and the role of the passport in municipal law is examined (Ch. II, s.2). It is seen that the passport still remains essentially an instrument of municipal law and that, in so far as it is related to the "right to travel", general international law has little of importance to say. However, recent treaties have provided for a facilitation of inter-state travel by either abolishing the passport requirement altogether, or introducing and substituting a less formal document such as a national identity card. Additionally, multilateral treaties have made provision for the issue of travel documents to refugees and stateless persons (Ch. II, s.3). It is observed that the passport is of importance in one particular matter, namely, as a guarantee of the returnability of the holder to the issuing state (Ch. II, s.4), and it is proposed that, whatever its effect as proof of nationality or as indicating the right to exercise diplomatic protection, it is this one guarantee which is required by a rule of customary international law. [Please see the .pdf for the complete abstract.]