International Law Part 13

(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 ident.i.ty of an alien is established by a =pa.s.sport=. This may also secure for him a measure of care in a foreign state. Below is the form of pa.s.sport.

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 pa.s.s, 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 Vava.s.seur _v._ Krupp, 1878, it was decided that infringement of the patent law did not const.i.tute a ground for suit against a sovereign. In this case Vava.s.seur brought action against Krupp for infringement of patent on sh.e.l.ls in custody of the agents of the Mikado of j.a.pan. The action resulted in an injunction preventing removal of the sh.e.l.ls to the Mikado's ships, but on application of the Mikado to remove the sh.e.l.ls 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 _hotel_ or place of residence while abroad is exempt from local jurisdiction, the sovereign is not justified in allowing the _hotel_ 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 ent.i.tled only to the recognition accorded to the rank which he a.s.sumes. He can, however, a.s.sert 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 _hotel_, (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 circ.u.mstances. In general they are ent.i.tled 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 pa.s.sage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith.... The grant of a free pa.s.sage, therefore, implies a waiver of all jurisdiction over the troops during their pa.s.sage, 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 attache of an emba.s.sy 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 pa.s.s through or remain within its maritime jurisdiction, it is customary to accord to the vessel and crew immunity from local jurisdiction and freedom of pa.s.sage unless withheld for special reason.

"Their immunity from local jurisdiction has come to be more absolute than that of the official residence of amba.s.sadors, and probably for the reason that they have the efficient means of resistance which an amba.s.sador 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 _Const.i.tution_, 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 sh.o.r.e 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 pa.s.sed 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.