International Law. A Treatise Volume I Part 52

[Sidenote: Rationale for the Principle of Non-extradition of Political Criminals.]

-- 338. The numerous attempts[695] against the lives of heads of States and the frequency of anarchistic crimes have shaken the value of the principle of non-extradition of political criminals in the opinion of the civilised world as ill.u.s.trated by the three practical attempts described above to meet certain difficulties. It is, consequently, no wonder that some writers[696] plead openly and directly for the abolition of this principle, maintaining that it was only the product of abnormal times and circ.u.mstances such as were in existence during the first half of the nineteenth century, and that with their disappearance the principle is likely to do more harm than good. And indeed it cannot be denied that the application of the principle in favour of some criminals, such as anarchistic[697] murderers and bomb-throwers, could only be called an abuse. But the question is whether, apart from such exceptional cases, the principle itself is still to be considered as justified or not.

[Footnote 695: Not less than nineteen of these attempts have been successful since 1850, as the following formidable list shows:--

Charles II., Duke of Parma, murdered on March 26, 1854.

Prince Danilo of Montenegro, " August 14, 1860.

President Abraham Lincoln, U.S.A., " April 14, 1865.

Prince Michael of Servia, " June 10, 1868.

President Balta of Peru, " July, 1872.

President Moreno of Ecuador, " August 6, 1872.

Sultan Abdul a.s.sis of Turkey, " June 4, 1876.

Emperor Alexander II. of Russia, " March 13, 1881.

President Garfield, U.S.A., " July 2, 1881.

President Carnot of France, " June 24, 1894.

Shah Nazr-e-Din of Persia, " May 1, 1896.

Empress Elizabeth of Austria, " September 10, 1898.

King Humbert I. of Italy, " July 30, 1900.

President McKinley, U.S.A., " September 6, 1901.

King Alexander I. of Servia and Queen Draga, " June 10, 1903.

King Carlos I. of Portugal and the Crown Prince, " February 15, 1908.

President Caceres of San Domingo, " November 19, 1911.]

[Footnote 696: See, for instance, Rivier, I. p. 354, and Scott in A.J.

III. (1909), p. 459.]

[Footnote 697: "... the party with whom the accused is identified ...

namely the party of anarchy, is the enemy of all governments. Their efforts are directed primarily against the general body of citizens.

They may, secondarily and incidentally, commit offences against some particular government, but anarchist offences are mainly directed against private citizens." (From the judgment of Cave, J. _In re_ Meunier, L.R. [1894] 2 Q.B. 419.)--See also Diena in R.G. II. (1905), pp. 306-336.]

Without doubt the answer must be in the affirmative. I readily admit that every political crime is by no means an honourable deed, which as such deserves protection. Still, political crimes are committed by the best of patriots, and, what is of more weight, they are in many cases a consequence of oppression on the part of the respective Governments.

They are comparatively infrequent in free countries, where there is individual liberty, where the nation governs itself, and where, therefore, there are plenty of legal ways to bring grievances before the authorities. A free country can never agree to surrender foreigners to their prosecuting home State for deeds done in the interest of the same freedom and liberty which the subjects of such free country enjoy. For individual liberty and self-government of nations are demanded by modern civilisation, and their gradual realisation over the whole globe is conducive to the welfare of the human race.

Political crimes may certainly be committed in the interest of reaction as well as in the interest of progress, and reactionary political criminals may have occasion to ask for asylum as well as progressive political criminals. The principle of non-extradition of political criminals indeed extends its protection over the former too, and this is the very point where the value of the principle reveals itself. For no State has a right to interfere with the internal affairs of another State, and, if a State were to surrender reactionary political criminals but not progressive ones, the prosecuting State of the latter could indeed complain and consider the refusal of extradition an unfriendly act. If, however, non-extradition is made a general principle which finds its application in favour of political criminals of every kind, no State can complain if extradition is refused. Have not reactionary States the same faculty of refusing the extradition of reactionary political criminals as free States have of refusing the extradition of progressive political criminals?

Now, many writers agree upon this point, but maintain that such arguments meet the so-called purely political crimes only, and not the relative or complex political crimes, and they contend, therefore, that the principle of non-extradition ought to be restricted to the former crimes only. But to this I cannot a.s.sent. No revolt happens without such complex crimes taking place, and the individuals who commit them may indeed deserve the same protection as other political criminals. And, further, although I can under no circ.u.mstances approve of murder, can never sympathise with a murderer, and can never pardon his crime, it may well be the case that the murdered official or head of a State has by inhuman cruelty and oppression himself whetted the knife which cut short his span of life. On the other hand, the mere fact that a crime was committed for a political purpose may well be without any importance in comparison with its detestability and heinousness. Attempts on heads of States, such, for example, as the murders of Presidents Lincoln and Carnot or of Alexander II. of Russia and Humbert of Italy, are as a rule, and all anarchistic crimes are without any exception, crimes of that kind. Criminals who commit such crimes ought under no circ.u.mstances to find protection and asylum, but ought to be surrendered for the purpose of receiving their just and appropriate punishment.

[Sidenote: How to avoid Misapplication of the Principle of Non-extradition of Political Criminals.]

-- 339. The question, however, is how to sift the chaff from the wheat, how to distinguish between such political criminals as deserve an asylum and such as do not. The difficulties are great and partly insuperable as long as we do not succeed in finding a satisfactory conception of the term "political crime." But such difficulties are only partly, not wholly, insuperable. The step taken by the Swiss extradition law of 1892 is so far in advance as to meet a great many of the difficulties. There is no doubt that the adoption of the Swiss rule by all the other civilised States would improve matters more than the universal adoption of the so-called Belgian _attentat_ clause. The fact that according to Swiss law each case of complex political crime is unravelled and obtains the verdict of an independent Court according to the very circ.u.mstances, conditions, and requirements under which it occurred, is of the greatest value. It enables every case to be met in such a way as it deserves, without compromising the Government, and without sacrificing the principle of non-extradition of political criminals as a valuable rule.

I cannot support the charge made by some writers[698] that the Swiss law is inadequate because it does not give criteria for the guidance of the Court in deciding whether or no extradition for complex crimes should be granted. In my opinion, the very absence of such criteria proves the superiority of the Swiss clause to the Belgian _attentat_ clause. On the one hand, the latter is quite insufficient, for it restricts its stipulations to murder of heads of States and members of their families only. But I see no reason why individuals guilty of any murder--as provided by the Russian proposal--or who have committed other crimes, such as arson, theft, and the like, should not be surrendered in case the political motive or purpose of the crime is of no importance in comparison with the crime itself. On the other hand, the Belgian clause goes too far, since exceptional cases of murder of heads of States from political motives or for political purposes might occur which do not deserve extradition. The Swiss clause, however, with its absence of fixed distinctions between such complex crimes as are extraditable, and such as are not, permits the consideration of the circ.u.mstances, conditions, and requirements under which a complex crime was committed.

It is true that the responsibility of the Court of Justice which has to decide whether such a complex crime is extraditable is great. But it is to be taken for granted that such Court will give its decision with impartiality, fairness, and justice. And it need not be feared that such Court will grant asylum to a murderer, incendiary, and the like, unless convinced that the deed was really political.

[Footnote 698: See, for instance, Mart.i.tz, op. cit. II. pp. 533-539.]

[Sidenote: Reactionary Extradition Treaties.]

-- 340. Be that as it may, the present condition of matters is a danger to the very principle of non-extradition of political criminals. Under the influence of the excitement caused by numerous criminal attempts in the last quarter of the nineteenth century, a few treaties have already been concluded which make a wide breach in this principle. It is Russia which is leading the reaction. This Power in 1885 concluded treaties with Prussia and Bavaria which stipulate the extradition of all individuals who have made an attack on the life, the body, or the honour[699] of a monarch, or of a member of his family, or who have committed any kind of murder or attempt to murder. And the extradition treaty between Russia and Spain of 1888 goes even further and abandons the principle of non-extradition of political criminals altogether.

Fortunately, the endeavour of Russia to abolish this principle altogether has not succeeded. In her extradition treaty with Great Britain of 1886 she had to adopt it without any restriction, and in her extradition treaties with Portugal of 1887, with Luxemburg of 1892, and with the United States and Holland of 1893, she had to adopt it with a restrictive clause similar to the Belgian _attentat_ clause.

[Footnote 699: Thus, even for _lese majeste_ extradition must be granted.]

PART III

ORGANS OF THE STATES FOR THEIR INTERNATIONAL RELATIONS

CHAPTER I

HEADS OF STATES, AND FOREIGN OFFICES

I

POSITION OF HEADS OF STATES ACCORDING TO INTERNATIONAL LAW

Hall, -- 97--Phillimore, II. ---- 101 and 102--Bluntschli, ---- 115-125--Holtzendorff in Holtzendorff, II. pp. 77-81--Ullmann, -- 40--Rivier, I. -- 32--Nys, II. pp. 325-329--Fiore, II. No.

1097--Bonfils, No. 632--Merignhac, II. pp. 294-305--Bynkershoek, "De foro legatorum" (1721), c. III. -- 13.

[Sidenote: Necessity of a Head for every State.]

-- 341. As a State is an abstraction from the fact that a mult.i.tude of individuals live in a country under a Sovereign Government, every State must have a head as its highest organ, which represents it within and without its borders in the totality of its relations. Such head is the monarch in a monarchy and a president or a body of individuals, as the Bundesrath of Switzerland, in a republic. The Law of Nations prescribes no rules as regards the kind of head a State may have. Every State is, naturally, independent regarding this point, possessing the faculty of adopting any Const.i.tution it likes and of changing such Const.i.tution according to its discretion. Some kind or other of a head of the State is, however, necessary according to International Law, as without a head there is no State in existence, but anarchy.

[Sidenote: Recognition of Heads of States.]

-- 342. In case of the accession of a new head of a State, other States are as a rule notified. The latter usually recognise the new head through some formal act, such as a congratulation. But neither such notification nor recognition is strictly necessary according to International Law, as an individual becomes head of a State, not through the recognition of other States, but through Munic.i.p.al Law. Such notification and recognition are, however, of legal importance. For through notification a State declares that the individual concerned is its highest organ, and has by Munic.i.p.al Law the power to represent the State in the totality of its international relations. And through recognition the other States declare that they are ready to negotiate with such individual as the highest organ of his State. But recognition of a new head by other States is in every respect a matter of discretion. Neither has a State the right to demand from other States recognition of its new head, nor has any State a right to refuse such recognition. Thus Russia, Austria, and Prussia refused until 1848 recognition to Isabella, Queen of Spain, who had come to the throne as an infant in 1833. But, practically, in the long run recognition cannot be withheld, for without it international intercourse is impossible, and States with self-respect will exercise retorsion if recognition is refused to the heads they have chosen. Thus, when, after the unification of Italy in 1861, Mecklenburg and Bavaria refused the recognition of Victor Emanuel as King of Italy, Count Cavour revoked the _exequatur_ of the consuls of these States in Italy.

But it must be emphasised that recognition of a new head of a State by no means implies the recognition of such head as the legitimate head of the State in question. Recognition is in fact nothing else than the declaration of other States that they are ready to deal with a certain individual as the highest organ of the particular State, and the question remains totally undecided whether such individual is or is not to be considered the legitimate head of that State.

[Sidenote: Competence of Heads of States.]

-- 343. The head of a State, as its chief organ and representative in the totality of its international relations, acts for his State in the latter's international intercourse, with the consequence that all his legally relevant international acts are considered acts of his State.

His competence to perform such acts is termed _jus repraesentationis omnimodae_. It comprises in substance chiefly: reception and mission of diplomatic agents and consuls, conclusion of international treaties, declaration of war, and conclusion of peace. But it is a question of the special case, how far this competence is independent of Munic.i.p.al Law.

For heads of States exercise this competence for their States and as the latter's representatives, and not in their own right. If a head of a State should, for instance, ratify a treaty without the necessary approval of his Parliament, he would go beyond his powers, and therefore such treaty would not be binding upon his State.[700]

[Footnote 700: See below, -- 497.]

On the other hand, this competence is certainly independent of the question whether a head of a State is the legitimate head or a usurper.

The mere fact that an individual is for the time being the head of a State makes him competent to act as such head, and his State is legally bound by his acts. It may, however, be difficult to decide whether a certain individual is or is not the head of a State, for after a revolution some time always elapses before matters are settled.

[Sidenote: Heads of States Objects of the Law of Nations.]

-- 344. Heads of States are never subjects[701] of the Law of Nations.