International Law. A Treatise Volume I Part 23

VII

INTERCOURSE

Grotius, II. c. 2, -- 13--Vattel, II. ---- 21-26--Hall, -- 13--Taylor, -- 160--Bluntschli, -- 381 and p. 26--Hartmann, -- 15--Heffter, ---- 26 and 33--Holtzendorff in Holtzendorff, II. pp. 60-64--Gareis, -- 27--Liszt, -- 7--Ullmann, -- 38--Bonfils, Nos. 285-289--Despagnet, No. 183--Merignhac, I. pp. 256-257--Pradier-Fodere, I. No.

184--Rivier, I. pp. 262-264--Nys, II. pp. 221-228--Calvo, III. ---- 1303-1305--Fiore, I. No. 370--Martens, I. -- 79.

[Sidenote: Intercourse a presupposition of International Personality.]

-- 141. Many adherents of the doctrine of fundamental rights include therein also a right of intercourse of every State with all others. This right of intercourse is said to contain a right of diplomatic, commercial, postal, telegraphic intercourse, of intercourse by railway, a right of foreigners to travel and reside on the territory of every State, and the like. But if the real facts of international life are taken into consideration, it becomes at once apparent that such a fundamental right of intercourse does not exist. All the consequences which are said to follow from the right of intercourse are not at all consequences of a right, but nothing else than consequences of the fact that intercourse between the States is a condition without which a Law of Nations would not and could not exist. The civilised States make a community of States because they are knit together through their common interests and the manifold intercourse which serves these interests.

Through intercourse with one another and with the growth of their common interests the Law of Nations has grown up among the civilised States.

Where there is no intercourse there cannot be a community and a law for such community. A State cannot be a member of the Family of Nations and an International Person, if it has no intercourse whatever with at least one or more other States. Varied intercourse with other States is a necessity for every civilised State. The mere fact that a State is a member of the Family of Nations shows that it has various intercourse with other States, for otherwise it would never have become a member of that family. Intercourse is therefore one of the characteristics of the position of the States within the Family of Nations, and it may be maintained that intercourse is a presupposition of the international Personality of every State. But no special right or rights of intercourse between the States exist according to the Law of Nations. It is because such special rights of intercourse do not exist that the States conclude special treaties regarding matters of post, telegraphs, telephones, railways, and commerce. On the other hand, most States keep up protective duties to exclude or hamper foreign trade in the interest of their home commerce, industry, and agriculture. And although as a rule they allow[225] aliens to travel and to reside on their territory, they can expel every foreign subject according to discretion.

[Footnote 225: That an alien has no right to demand to be admitted to British territory was decided in the case of Musgrove _v._ Chun Teeong Toy, L.R. (1891), App. Cas. 272.]

[Sidenote: Consequences of Intercourse as a Presupposition of International Personality.]

-- 142. Intercourse being a presupposition of International Personality, the Law of Nations favours intercourse in every way. The whole inst.i.tution of legation serves the interest of intercourse between the States, as does the consular inst.i.tution. The right of legation,[226]

which every full-Sovereign State undoubtedly holds, is held in the interest of intercourse, as is certainly the right of protection over citizens abroad[227] which every State possesses. The freedom of the Open Sea,[228] which has been universally recognised since the end of the first quarter of the nineteenth century, the right of every State to the pa.s.sage of its merchantmen through the maritime belt[229] of all other States, and, further, freedom of navigation for the merchantmen of all nations on so-called international rivers,[230] are further examples of provisions of the Law of Nations in the interest of international intercourse.

[Footnote 226: See below, -- 360.]

[Footnote 227: See below, -- 319. The right of protection over citizens abroad is frequently said to be a special right of self-preservation, but it is really a right in the interest of intercourse.]

[Footnote 228: See below, -- 259.]

[Footnote 229: See below, -- 188.]

[Footnote 230: See below, -- 178.]

The question is frequently discussed and answered in the affirmative whether a State has the right to require such States as are outside the Family of Nations to open their ports and allow commercial intercourse.

Since the Law of Nations is a law between those States only which are members of the Family of Nations, it has certainly nothing to do with this question, which is therefore one of mere commercial policy and of morality.

VIII

JURISDICTION

Hall, ---- 62, 75-80--Westlake, I. pp. 236-271--Lawrence, ---- 93-109--Phillimore, I. ---- 317-356--Twiss, I. ---- 157-171--Halleck, I. pp. 186-245--Taylor, ---- 169-171--Wheaton, ---- 77-151--Moore, II.

---- 175-249--Bluntschli, ---- 388-393--Heffter, ---- 34-39--Bonfils, Nos. 263-266--Rivier, I. -- 28--Nys, II. pp. 257-263--Fiore, I.

Nos. 475-588.

[Sidenote: Jurisdiction important for the position of the States within the Family of Nations.]

-- 143. Jurisdiction is for several reasons a matter of importance as regards the position of the States within the Family of Nations. States possessing independence and territorial as well as personal supremacy can naturally extend or restrict their jurisdiction as far as they like.

However, as members of the Family of Nations and International Persons, the States must exercise self-restraint in the exercise of this natural power in the interest of one another. Since intercourse of all kinds takes place between the States and their subjects, the matter ought to be thoroughly regulated by the Law of Nations. But such regulation has as yet only partially grown up. The consequence of both the regulation and non-regulation of jurisdiction is that concurrent jurisdiction of several States can often at the same time be exercised over the same persons and matters. And it can also happen that matters fall under no jurisdiction because the several States which could extend their jurisdiction over these matters refuse to do so, leaving them to each other's jurisdiction.

[Sidenote: Restrictions upon Territorial Jurisdiction.]

-- 144. As all persons and things within the territory of a State fall under its territorial supremacy, every State has jurisdiction over them.

The Law of Nations, however, gives a right to every State to claim so-called exterritoriality and therefore exemption from local jurisdiction chiefly for its head,[231] its diplomatic envoys,[232] its men-of-war,[233] and its armed forces[234] abroad. And partly by custom and partly by treaty obligations, Eastern non-Christian States, j.a.pan now excepted, are restricted[235] in their territorial jurisdiction with regard to foreign resident subjects of Christian Powers.

[Footnote 231: Details below, ---- 348-353, and 356.--The exemption of a State itself from the jurisdiction of another is not based upon a claim to exterritoriality, but upon the claim to equality; see above, -- 115.]

[Footnote 232: Details below, ---- 385-405.]

[Footnote 233: Details below, ---- 450-451.]

[Footnote 234: Details below, -- 445.]

[Footnote 235: Details below, ---- 318 and 440.]

[Sidenote: Jurisdiction over Citizens abroad.]

-- 145. The Law of Nations does not prevent a State from exercising jurisdiction over its subjects travelling or residing abroad, since they remain under its personal supremacy. As every State can also exercise jurisdiction over aliens[236] within its boundaries, such aliens are often under two concurrent jurisdictions. And, since a State is not obliged to exercise jurisdiction for all matters over aliens on its territory, and since the home State is not obliged to exercise jurisdiction over its subjects abroad, it may and does happen that aliens are actually for some matters under no State's jurisdiction.

[Footnote 236: See below, -- 317.]

[Sidenote: Jurisdiction on the Open Sea.]

-- 146. As the Open Sea is not under the sway of any State, no State can exercise its jurisdiction there. But it is a rule of the Law of Nations that the vessels and the things and persons thereon remain during the time they are on the Open Sea under the jurisdiction of the State under whose flag they sail.[237] It is another rule of the Law of Nations that piracy[238] on the Open Sea can be punished by any State, whether or no the pirate sails under the flag of a State. Further,[239] a general practice seems to admit the claim of every maritime State to exercise jurisdiction over cases of collision at sea, whether the vessels concerned are or are not sailing under its flag. Again, in the interest of the safety of the Open Sea, every State has the right to order its men-of-war to ask any suspicious merchantman they meet on the Open Sea to show the flag, to arrest foreign merchantmen sailing under its flag without an authorisation for its use, and to pursue into the Open Sea and to arrest there such foreign merchantmen as have committed a violation of its law whilst in its ports or maritime belt.[240] Lastly, in time of war belligerent States have the right to order their men-of-war to visit, search, and eventually capture on the Open Sea all neutral vessels for carrying contraband, breach of blockade, or unneutral services to the enemy.

[Footnote 237: See below, -- 260.]

[Footnote 238: See below, -- 278.]

[Footnote 239: See below, -- 265.]

[Footnote 240: See below, ---- 265-266.]

[Sidenote: Criminal Jurisdiction over Foreigners in Foreign States.]

-- 147. Many States claim jurisdiction and threaten punishment for certain acts committed by a foreigner in foreign countries.[241] States which claim jurisdiction of this kind threaten punishment for certain acts either against the State itself, such as high treason, forging bank-notes, and the like, or against its citizens, such as murder or arson, libel and slander, and the like. These States cannot, of course, exercise this jurisdiction as long as the foreigner concerned remains outside their territory. But if, after the committal of such act, he enters their territory and comes thereby under their territorial supremacy, they have an opportunity of inflicting punishment. The question is, therefore, whether States have a right to jurisdiction over acts of foreigners committed in foreign countries, and whether the home State of such an alien has a duty to acquiesce in the latter's punishment in case he comes into the power of these States. The question must be answered in the negative. For at the time such criminal acts are committed the perpetrators are neither under the territorial nor under the personal supremacy of the States concerned. And a State can only require respect for its laws from such aliens as are permanently or transiently within its territory. No right for a State to extend its jurisdiction over acts of foreigners committed in foreign countries can be said to have grown up according to the Law of Nations, and the right of protection over citizens abroad held by every State would justify it in an intervention in case one of its citizens abroad should be required to stand his trial before the Courts of another State for criminal acts which he did not commit during the time he was under the territorial supremacy of such State.[242] In the only[243] case which is reported--namely, in the case of Cutting--an intervention took place according to this view. In 1886, one A. K. Cutting, a subject of the United States, was arrested in Mexico for an alleged libel against one Emigdio Medina, a subject of Mexico, which was published in the newspaper of El Paso in Texas. Mexico maintained that she had a right to punish Cutting, because according to her Criminal Law offences committed by foreigners abroad against Mexican subjects are punishable in Mexico.

The United States, however, intervened,[244] and demanded Cutting's release. Mexico refused to comply with this demand, but nevertheless Cutting was finally released, as the plaintiff withdrew his action for libel. Since Mexico likewise refused to comply with the demand of the United States to alter her Criminal Law for the purpose of avoiding in the future a similar incident, diplomatic practice has not at all settled the subject.

[Footnote 241: See Hall, -- 62; Westlake, I. pp. 251-253; Lawrence, -- 104; Taylor, -- 191; Moore, II. ---- 200 and 201; Phillimore, I. -- 334.]

[Footnote 242: The Inst.i.tute of International Law has studied the question at several meetings and in 1883, at its meeting at Munich (see Annuaire, VII. p. 156), among a body of fifteen articles concerning the conflict of the Criminal Laws of different States, adopted the following (article 8):--"Every State has a right to punish acts committed by foreigners outside its territory and violating its penal laws when those acts contain an attack upon its social existence or endanger its security and when they are not provided against by the Criminal Law of the territory where they take place." But it must be emphasised that this resolution has value _de lege ferenda_ only.]

[Footnote 243: The case of Cirilo Pouble--see Moore, II. -- 200, pp.

227-228--concerning which the United States at first were inclined to intervene, proved to be a case of a crime committed within Spanish jurisdiction. The case of John Anderson--see Moore, I. -- 174, p. 933--is likewise not relevant, as he claimed to be a British subject.]

[Footnote 244: See Westlake, I. p. 252; Taylor, -- 192; Calvo, VI. ---- 171-173; Moore, II. -- 201, and "Report on Extraterritorial Crime and the Cutting Case" (1887); Rolin in R.I. XX. (1888), pp. 559-577. The case is fully discussed and the American claim is disputed by Mendelssohn Bartholdy, "Das raumliche Herrschaftsgebiet des Strafgesetzes" (1908), pp. 135-143.]

CHAPTER III