Chapter XI: Jurisdiction (2)

(4) A state may interfere to _protect its subjects_ in a foreign
state, thus extending its authority in their behalf. This has been
frequently done to protect Western sojourners in Eastern states,
_e.g._ the demands of Germany, in 1898, for concessions from China on
account of injuries to missionaries. These demands, accompanied by a
naval demonstration, resulted in the cession of Kaio-Chau.

(_b_) The =jurisdiction= of a =state over aliens within its territory= is very extensive.

(1) The absolute right of _exclusion_ of all foreigners would hardly
be maintained by any civilized state, though it could be deduced from
the doctrine of sovereignty. Whether justly or not, Japan and China
have been compelled by force to cede certain rights to states
demanding admission for their citizens.

(2) The right of _expulsion_ is, however, generally maintained. This
right should, however, be exercised most carefully, as the fact of
admission carries with it some obligation on the part of the admitting
state.

(3) The right to _conditional admission_ is generally allowed, as
seen in laws in regard to immigration.

(4) The foreign state may impose such restrictions upon _settlement_
as it sees fit.

(5) A foreign state may _levy_ such _taxes_ upon the person and
goods of aliens as are in accord with state law.

(6) Aliens are subject to the local _sanitary and police
jurisdiction_.

(7) The foreign state has _penal jurisdiction_ over aliens for
crimes committed within territorial limits, and many states maintain,
also, for such crimes as plotting against the state, counterfeiting
state money, or crimes directly imperiling the state's well-being even
when committed outside of state limits.

(8) The state may require aliens to render service such as is
necessary to _maintain public order_, even military service, to ward
off immediate and sudden danger, _e.g._ as an attack by savages, a
mob, etc., but

(9) A state cannot compel aliens to enter its _military service_ for
the securing of _political ends_, or for the general ends of war.

(10) In nearly all states _freedom of commerce_ is now conceded, the
state giving to native and foreigner similar privileges. China still
restricts trade to certain free ports.

(11) The _holding and bequeathing of property_ of whatever sort is
subject to local law.

(12) _Freedom of speech and of worship_ are also subject to local
law.

All these laws are subject to the exemptions in favor of sovereigns, diplomatic agents, etc.

(_c_) Ordinarily the identity of an alien is established by a =passport=. This may also secure for him a measure of care in a foreign state. Below is the form of passport.

Good only for two years from date.

UNITED STATES OF AMERICA

+Department of State+

_To all to whom these presents shall come, Greeting_:

I, the undersigned, Secretary of State of the United States of
America, hereby request all whom
+DESCRIPTION+ it may concern to permit

Age.... Years.....................
Stature... Feet... Inches..., Eng. .............. ...............,
Forehead.......................... a Citizen of the United States,
Eyes.............................. ........................ safely
Nose.............................. and freely to pass, and in case
Mouth............................. of need to give ... all lawful
Chin.............................. Aid and Protection.
Hair..............................
Complexion........................ Given under my hand and the
Face.............................. Seal of the Department of State,
at the City of Washington, the
(+SEAL+) ... day of ....... in the year
19..., and of the Independence of
(Signature of the Bearer) the United States the one hundred
.................................. and.................

No..... ................

§ 61. Exemptions from Jurisdiction--General

As a general principle, the sovereignty of a state within its boundaries is complete and exclusive. For various reasons there has grown up the custom of granting immunity from local jurisdiction to certain persons generally representing the public authority of a friendly state. This immunity may extend to those persons and things under their control.

This immunity has been called exterritoriality. The persons and things thus exempt from local jurisdiction are regarded as carrying with them the territorial status of their native state, or as being for purposes of jurisdiction within their own state territory, and beyond that of the state in which they are geographically. Wherever they may go they carry with them the territory and jurisdiction of their home state. Doubtless this doctrine of exterritoriality in the extreme form may be carried too far, as many late writers contend, and some have desired another term, as immunity from jurisdiction, as more exact and correct.[177] Such a term would have the merit of directing attention to the nature of the relation which the persons concerned sustained to the state. Hall sums up the case by saying, "If exterritoriality is taken, not merely as a rough way of describing the effect of certain immunities, but as a principle of law, it becomes, or at any rate is ready to become, an independent source of legal rule, displacing the principle of the exclusiveness of territorial sovereignty within the range of its possible operation in all cases in which practice is unsettled or contested."[178] Exterritoriality should be viewed as based on the immunities conceded to public persons, rather than as the source of these immunities.

§ 62. Exemption of Sovereigns

Sovereigns sojourning in their official capacity in foreign countries are exempt from local jurisdiction. This principle is based, not merely upon courtesy, but also upon convenience and necessity. The sovereign represents the state, and therefore cannot be subjected to the jurisdiction of another state without waiving the sovereignty, and in so far depriving the state of one of its essential qualities. Nor can the visiting sovereign exercise any authority which would infringe the sovereign powers of the state in which he is. The visiting sovereign can only claim immunity for such action as is in accord with the necessities of his convenient sojourn. He, his retinue, and effects, are exempt from civil and criminal jurisdiction. He is free from taxes, duties, police and administrative regulations. In the case of Vavasseur _v._ Krupp, 1878, it was decided that infringement of the patent law did not constitute a ground for suit against a sovereign. In this case Vavasseur brought action against Krupp for infringement of patent on shells in custody of the agents of the Mikado of Japan. The action resulted in an injunction preventing removal of the shells to the Mikado's ships, but on application of the Mikado to remove the shells as his property, the court held that, even if the property in question infringed a patent, the Mikado could not be sued and his property could not be held.[179] The principle that the sovereign is free from suit has frequently been decided by the courts of various countries. A sovereign sojourning in a foreign state cannot, however, set up his courts and execute judgment; such functions belong to his territorial courts. Criminals in his retinue must be sent home for trial. While the sovereign's _hôtel_ or place of residence while abroad is exempt from local jurisdiction, the sovereign is not justified in allowing the _hôtel_ to become an asylum for others than members of his retinue. On demand he must give up such refugees. In case the sovereign does not observe this principle or commits acts liable to endanger the peace of the foreign state, the authorities may invite him to depart, or if necessary expel him by force.

The sovereign may, in his private capacity, hold property and become party to a suit like any citizen.[180] A sovereign may travel _incognito_, and is then entitled only to the recognition accorded to the rank which he assumes. He can, however, assert his sovereign capacity and obtain its immunities at any time should he deem it proper.

§ 63. Exemptions of State Officers

(_a_) =Diplomatic agents=, or those commissioned to transact the political affairs of the state abroad, are conceded a wide immunity from local jurisdiction. As representing the political will of their state, diplomatic agents have immunities similar to those conceded to the sovereign, though by virtue of the fact that the sending of diplomatic agents has long been a common practice, their immunities are quite well defined. These immunities will be considered more in detail under the subject of International Intercourse, but in general a diplomatic agent is exempt from, (1) criminal jurisdiction, (2) civil jurisdiction, (3) local police and administrative regulations, (4) taxes and duties, (5) jury and witness duty, (6) regulations in regard to religious and social action, (7) all exercise of authority by the local state within his official residence or _hôtel_, (8) and from the exercise of similar authority over his household, official and unofficial.

(_b_) The exemptions granted to =consuls= vary in different states and under different circumstances. In general they are entitled to such exemptions as will enable them to perform their functions effectively.[181]

(_c_) Any foreign =army= within the territorial limits of a given state, by permission of the sovereign of said state, is free from the sovereign's jurisdiction. Chief Justice Marshall, in 1812, gave as his opinion: "In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith.... The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments, which the government of his army may require."[182] Permission, either general or special, must be obtained in order that an army may enter a foreign state in time of peace. The army must cause the least possible inconvenience to the state during its sojourn.

The military attaché of an embassy is regarded as a member of the official household of the diplomatic agent.

(_d_) =Navy.= As a vessel of war can without inconvenience to a foreign state pass through or remain within its maritime jurisdiction, it is customary to accord to the vessel and crew immunity from local jurisdiction and freedom of passage unless withheld for special reason. "Their immunity from local jurisdiction has come to be more absolute than that of the official residence of ambassadors, and probably for the reason that they have the efficient means of resistance which an ambassador has not."[183]

In general the exemption from local jurisdiction which a vessel of war enjoys in a foreign state extends: (1) to acts beginning and ending on board the vessel;[184] (2) to all boats, etc., of the vessel of war in charge of the crew of the vessel and upon its service; (3) to freedom from customs and all such regulations as are not necessary for the safety of the port (it was held in case of the United States frigate _Constitution_, in 1879, that she was not liable to salvage charges;[185] the vessel is therefore liable to quarantine, anchorage, etc., rules which imply no derogation of sovereignty); (4) to all persons on board the vessel whether members of the crew or others. This exemption should not be taken as warranting a general exercise of the right of asylum on board vessels of war. Asylum can be granted as an act of hospitality to a political refugee, who cannot use the vessel as a base for political intrigue. Asylum to common criminals cannot be granted without offense to the foreign state. Such criminals are usually surrendered on request of the local authorities.

A commander cannot pursue deserters on shore or exercise external authority.

Hall sums up the general principle as follows, "The immunities of a vessel of war belong to her as a complete instrument, made up of vessel and crew, and intended to be used by the state for specific purposes; the elements of which she is composed are not capable of separate use for those purposes; they consequently are not exempted from the local jurisdiction."[186]

In case of abuse of exemptions the state in whose waters the foreign ship of war is, can request it to depart; and if its request is not complied with, can use force, though the customary method is to resort to diplomatic channels.

§ 64. Special Exemptions

(_a_) In certain =Oriental states=, the subjects of Western states are by treaty exempt from local jurisdiction. The extent of the exemption in each case depends upon the treaty provisions. The basis of this exemption is found in the "incompatibility of habits of thought on all legal and moral questions,"[187] and the consequent impossibility of obtaining what to the Western states seemed just treatment on the part of Oriental officials. Consular courts were established to meet the needs of foreigners within the jurisdiction of these Eastern states.[188] The consuls in these states were invested with special judicial powers, though not considered by the laws of the United States judicial officers. Each state determines the competence of its consular courts in foreign states.

The following rules are general, though not absolute, propositions in regard to the treatment of cases involving natives of Eastern countries and foreigners.

(1) _Penal Matters._ If a native commits a crime against a
foreigner, he is generally tried in the local court.

If a foreigner commits a crime against a native, he is generally
tried in the consular court of his state.

If a foreigner commits a crime against a foreigner of another
nationality, he is generally tried in the consular court of the
injured foreigner.

If both parties to the crime are of the same nationality, the
offenders are tried in the court of their own state.

If the crime is a grave one, such as murder, sentence cannot be
passed without the sanction of the home government, and in some cases
the offender is sent home for trial.

(2) _Civil Matters._ In cases involving a foreigner and a native,
the trial is generally by agents of the two countries.

In cases involving subjects of the same state, their consular court
has jurisdiction.

In cases involving foreigners of different nationalities the
consular court of the defendant has jurisdiction.

In cases involving large interests, there is an appeal from the
consular to the higher courts of the state.

In the East registration of the head of the family at the consulate
is necessary to obtain consular protection. Local statutes provide for
the execution of treaty stipulations as to consular jurisdiction.[189]

(_b_) =In Egypt mixed courts= were instituted in 1875. This system, arranged by convention, has received the assent of nearly all the European states and of the United States.[190]

The majority of the judges in these courts are foreigners, and the courts have competence over cases against the Egyptian government, over civil and commercial matters between foreigners and natives, and between foreigners of different nationalities. Jurisdiction for other matters remains in the consuls. These courts have been the subject of much discussion and great difference of opinion.

§ 65. Extradition

Extradition is the act by which one state delivers a person accused of crime committed beyond its borders to another state for trial and punishment.

Many of the Continental states maintain that extradition is a duty binding upon all civilized states, on the ground that the prevention of crime which would result from certainty of punishment is an object to be sought by all for the general good. Grotius, Vattel, Kent, Fiore, and many other authorities maintain this position. Bluntschli, Foelix, Klüber, G. F. de Martens, Pufendorf, Phillimore, Wheaton and the majority of authorities make the basis of extradition the conventional agreement of treaties.[191] The large number of extradition treaties of the last half of the nineteenth century has made the practice general. Occasionally a state has, in the absence of treaties, voluntarily surrendered fugitives from justice as an act of courtesy. The extradition of Tweed by Spain in 1876 was an act of this kind.[192] Such cases are not common, however,[193] and it is safe to derive the principles from the general practice as seen in treaties.

(_a_) =Persons liable to extradition= vary according to treaties. It is the general practice to surrender on demand of the state in which the crime is committed only those who are subjects of the state making the demand. This is the general rule of the Continental states. As Great Britain and the United States maintain the principle of territorial penal jurisdiction, it is customary for these states to uphold the idea of extradition even of their own subjects.[194] The practice is not uniform in the relations of these states to other states, as is shown in their treaties. The South American and Continental European states hold that their own citizens are not liable to extradition.

A large number of the modern writers are in favor of the extradition of subjects in the same manner as aliens, and it is evident that the drift of international practice, as shown by the treaties of the last quarter-century, is toward the refusal to grant protection to a subject who has sought refuge in his native state after committing a crime abroad.

In case the accused whose extradition is demanded is a citizen of a third state, the practice is not uniform, though the best authorities seem to favor the granting of the extradition only after communication with and assent of the third state, on the ground that the state to which the subject has fled is responsible to the third state for its treatment of him. This practice has been followed in many European treaties.

Ordinarily, not all criminals are liable to extradition, though treaty stipulations may cover cases usually excepted. Those accused of political crimes have, since the early part of the nineteenth century, been more and more generally exempt from extradition. During the last quarter of the nineteenth century few treaties have been made which do not make political criminals specifically non-extraditable. Political crimes accompanied by attacks upon the person of the sovereign or of those holding political office or position are not, however, in the above category, but are usually extraditable.

(_b_) Even when an accused person is extradited there are =limitations= as to the jurisdiction of the state to which he goes. The trial must be for the offense or offenses enumerated in the treaty. For example, a treaty between two states enumerates among extraditable crimes murder, and does not enumerate larceny. A fugitive from one of the countries is accused of both murder and larceny. The country surrendering the criminal would not permit the trial of the criminal for any other crime than murder, until the criminal should have had opportunity to return to the state from which he was surrendered. For many years Great Britain claimed that a person surrendered in accordance with an extradition treaty should be tried only for the specific offense for which he was surrendered. The United States desired to include other offenses provided the person had been once surrendered. This position of Great Britain was accepted by the treaty of July 12, 1889.[195]

(_c_) =The conditions necessary= for a claim for extradition are: (1) that the crime shall have been committed within the territorial or maritime jurisdiction of the state making the demand, (2) that there be sufficient evidence of guilt to establish a case, and (3) that the application be from the proper authority and in the proper form.[196]

(_d_) The =procedure= in cases of extradition is based on definite principles. As it is an act of sovereignty, it must be performed by agents of the sovereign person, who for this purpose, although generally engaged in other functions, are executive officers.[197] The general rule is that the demand for extradition shall be made through the ordinary diplomatic channels. In colonies and under special circumstances an officer of first rank may be the medium of the demand.

The person demanded may be placed under provisional arrest pending the full proceedings of extradition.[198]

Reasonable evidence of the identity of the person and of the facts of the crime must be furnished by the state making the demand.

In case a person is demanded by two states, his native state and a third state in which he has committed a crime, it is customary to grant the request of the state in which he has committed the crime.

When a person is demanded on the ground of separate crimes committed in both states as above, if the crimes are equally grave, the request of his native state is granted. Sometimes, however, when the third state offers to surrender the fugitive to his native state after he has paid the penalty of his crime, the request of the third state is granted.

When the crime committed in one state is more grave than that committed in another, the request of the state maintaining the graver charge is granted.

When states other than the native state request the extradition of a fugitive, the state receiving the demand may take into consideration the gravity of the offense and the probability that a given state will, after securing justice, make it possible for other states to prosecute their claims. In cases of equal gravity priority of demand usually determines the course of action.[199]

If the person demanded is accused of a crime in the state of refuge, the demand for his extradition may be refused pending his trial in the state of refuge.

Many other questions arise which complicate the actual procedure in cases of extradition, but these belong mainly to the realm of _private international law_.

§ 66. Servitudes

Servitudes in international law constitute a restriction upon the exercise of the territorial jurisdiction of a state in favor of one or more states.

(_a_) =International servitudes= are:--

(1) _positive_, implying that a state is under obligation to permit
within its territory another state to exercise certain powers, as by
the Treaty of Berlin, 1878, Art. XXIX. "The administration of the
maritime and sanitary police, both at Antivari and along the coast of
Montenegro, shall be carried out by Austria-Hungary by means of light
coastguard vessels;"[200]

(2) _negative_, implying that a state is to refrain from certain
acts, otherwise customary, as "Montenegro shall neither have ships of
war nor flag of war."[201]

Among the _positive servitudes_ are: those obligations of a state to allow within its own jurisdiction the exercise of political or administrative authority by another state, as in the execution of judicial or police regulations; those obligations to allow the exercise of military authority, as in military occupation of a portion of the territory or the passage of troops. Among the _negative servitudes_ are: those obligations of a state to refrain from exercising within its own jurisdiction certain political or administrative authority which might be exercised, if the servitude did not exist, as in the exemption of the citizens or corporate persons of certain states from certain acts of jurisdiction or taxation; those obligations to refrain from military acts, such as the limitation of the army or navy to a certain number, or the obligation not to fortify a certain place.

(_b_) There are also servitudes which may be called =general=, because binding alike upon every state in favor of all others, such as the innocent use of territorial seas.[202]