International Law. A Treatise Volume I Part 62

[Sidenote: Armed Forces State Organs.]

-- 443. Armed forces are organs of the State which maintains them, because such forces are created for the purpose of maintaining the independence, authority, and safety of the State. And in this respect it matters not whether armed forces are at home or abroad, for they are organs of their home State even when on foreign territory, provided only they are there in the service of their State and not for their own purposes. For if a body of armed soldiers enters foreign territory without orders from, or without being otherwise in the service of, its State, but on its own account, be it for pleasure or for the purpose of committing acts of violence, it is no longer an organ of its State.

[Sidenote: Occasions for Armed Forces abroad.]

-- 444. Besides war, there are several occasions for armed forces to be on foreign territory in the service of their home State. Thus, a State may have a right to keep troops in a foreign fortress or to send troops through foreign territory. Thus, further, a State which has been victorious in war with another may, after the conclusion of peace, occupy a part of the territory of its former opponent as a guarantee for the execution of the Treaty of Peace. After the Franco-German war, for example, the Germans in 1871 occupied a part of the territory of France until the final instalments of the indemnity for the war costs of five milliards of francs were paid. It may also be a case of necessity for the armed forces of a State to enter foreign territory and commit acts of violence there, such as the British did in the case of the _Caroline_.[785]

[Footnote 785: See above, -- 133, and below, -- 446.]

[Sidenote: Position of Armed Forces abroad.]

-- 445. Whenever armed forces are on foreign territory in the service of their home State, they are considered exterritorial and remain, therefore, under the jurisdiction of the latter. A crime committed on foreign territory by a member of the force cannot be punished by the local civil or military authorities, but only by the commanding officer of the forces or by other authorities of its home State.[786] This is, however, valid only in case the crime is committed either within the place where the force is stationed, or anywhere else where the criminal was on duty. If, for example, soldiers belonging to a foreign garrison of a fortress leave the _rayon_ of the latter, not on duty but for recreation and pleasure, and then and there commit a crime, the local authorities are competent to punish them.

[Footnote 786: This is nowadays the opinion of the vast majority of writers on International Law. There are, however, still a few dissenting authorities, such as Bar ("Lehrbuch des internationalen Privat- und Strafrecht" (1892), p. 351), and Rivier (I. p. 333).]

[Sidenote: Case of McLeod.]

-- 446. An excellent example of the position of armed forces abroad is furnished by the case of McLeod,[787] which occurred in 1841. Alexander McLeod, who was a member of the British force sent by the Canadian Government in 1837 into the territory of the United States for the purpose of capturing the _Caroline_, a boat equipped for crossing into Canadian territory and taking help to the Canadian insurgents, came in 1841 on business to the State of New York, and was arrested and indicted for the killing of one Amos Durfee, a citizen of the United States, on the occasion of the capture of the _Caroline_. The English Amba.s.sador at Washington demanded the release of McLeod, on the ground that he was at the time of the alleged crime a member of a British armed force sent into the territory of the United States by the Canadian Government acting in a case of necessity. McLeod was not released, but had to take his trial; he was, however, acquitted on proof of an alibi. It is of importance to quote a pa.s.sage in the reply of Mr. Webster, the Secretary of Foreign Affairs of the United States, to a note of the British Amba.s.sador concerning this affair. The pa.s.sage runs thus:--"The Government of the United States entertains no doubt that, after the avowal of the transaction as a public transaction, authorised and undertaken by the British authorities, individuals concerned in it ought not ... to be holden personally responsible in the ordinary tribunals for their partic.i.p.ation in it."

[Footnote 787: See Wharton, I. -- 21, and Moore, II. -- 179.]

[Sidenote: The Casa Blanca Incident.]

-- 446_a_. Another interesting example is the Casa Blanca incident. On September 25, 1908, six soldiers--three of them Germans--belonging to the French Foreign Legion which formed part of the French troops at Morocco, deserted at Casa Blanca and asked for and obtained the protection of the local German consul, who intended to take them on board a German vessel lying in the harbour of Casa Blanca. On their way to the ship, however, they were forcibly taken by the French out of the custody of the secretary of the German Consulate and a native soldier in the service of the consulate who were conducting them. Considering all Germans in Morocco without exception exterritorial and under the exclusive jurisdiction of her consul, Germany complained of this act of force and demanded that those of the deserters concerned who were German subjects should be given up to her by France, acknowledging the fact that the consul had no right to extend his protection to other than German subjects. France refused to concede this demand, maintaining that the individuals concerned had even after their desertion remained under the exclusive jurisdiction of their corps, which formed part of a French force occupying foreign territory. As the parties could not settle the conflict diplomatically, they agreed, on November 24, 1908, to bring it before the Hague Court of Arbitration, which gave its award[788] on May 22, 1909, on the whole in favour of France. The Court considered: that there was a conflict of jurisdiction with regard to the German deserters because they were as German subjects under the exclusive jurisdiction of the German Consulate, but as deserters from the French Foreign Legion under the exclusive jurisdiction of the French Army of Occupation; that under the circ.u.mstances of the case the jurisdiction of the Army of Occupation should have the preference; that nevertheless the German consul was not to be blamed for his action on account of the fact that in a country granting exterritorial jurisdiction to foreigners the question of the respective competency of the consular jurisdiction and of the jurisdiction of an Army of Occupation was very complicated and had never been settled in an express, distinct, and universally recognised manner; that, since the German deserters were found at the port under the actual protection of the German Consulate and this protection was not manifestly illegal, the actual situation should, as far as possible, have been respected by the French military authority; that therefore the French military authorities ought to have confined themselves to preventing the embarkation and escape of the deserters, and, before proceeding to their arrest and imprisonment, to have offered to leave them in sequestration of the German Consulate until the question of the competent jurisdiction had been decided. The Court did not, however, decree the rest.i.tution on the part of France of the three German deserters to Germany.[789]

[Footnote 788: See Martens, N.R.G. 3rd Ser. II. (1910), p. 19. An English translation of the Award is printed in A.J. III. (1909), p.

755.]

[Footnote 789: The ambiguity of the award has justly been severely criticised. If, as the Court correctly a.s.serts, the jurisdiction of an Army of Occupation must prevail over the jurisdiction of a consul over his nationals in a country granting exterritorial jurisdiction, a decision of the conflict on mere legal grounds would have to be entirely in favour of France, for it is difficult to see how a wrongfully acquired and illegally a.s.serted protection can create any obligation on the part of those who are exclusively competent to exercise jurisdiction. But it is a well-known fact that Courts of Arbitration frequently endeavour to give an award which satisfies both parties and the ambiguity of the award in the Casa Blanca incident is manifestly due to this fact. The award is not of such a kind as one would expect from a Court of Justice, although it may be an excellent specimen of an arbitral decision. See A.J. III. (1909), pp. 698-701.]

II

MEN-OF-WAR IN FOREIGN WATERS

Hall, ---- 54-55--Halleck, I. pp. 215-230--Lawrence, ---- 107-109--Phillimore, II. ---- 344-350--Westlake, pp.

256-259--Taylor, -- 261--Moore, II. ---- 252-256--Twiss, I. -- 165--Wheaton, -- 100--Bluntschli, -- 321--Stoerk in Holtzendorff, II. pp. 434 and 446--Perels, ---- 11, 14, 15--Heilborn, "System,"

pp. 248-279--Rivier, I. pp. 333-335--Bonfils, Nos.

614-623--Merignhac, II. pp. 554-564--Calvo, III. ---- 1550-1559--Fiore, I. Nos. 547-550--Testa, p. 86--Jordan, R.I. 2nd Ser. X. (1908), p. 343.

[Sidenote: Men-of-war State Organs.]

-- 447. Men-of-war are State organs just as armed forces are, a man-of-war being in fact a part of the armed forces of a State. And respecting their character as State organs, it matters nought whether men-of-war are at home or in foreign territorial waters or on the High Seas. But it must be emphasised that men-of-war are State organs only as long as they are manned and under the command of a responsible officer, and, further, as long as they are in the service of a State. A shipwrecked man-of-war abandoned by her crew is no longer a State organ, nor does a man-of-war in revolt against her State and sailing for her own purposes retain her character as an organ of a State. On the other hand, public vessels in the service of the police and the Custom House of a State; further, private vessels chartered by a State for the transport of troops and war materials; and, lastly, vessels carrying a head of a State and his suite exclusively, are also considered State organs, and are, consequently, in every point treated as though they were men-of-war.

[Sidenote: Proof of Character as Men-of-war.]

-- 448. The character of a man-of-war or of any other vessel treated as a man-of-war is, in the first instance, proved by their outward appearance, such vessels flying the war flag and the pennant of their State.[790] If, nevertheless, the character of the vessel seems doubtful, her commission, duly signed by the authorities of the State which she appears to represent, supplies a complete proof of her character as a man-of-war. And it is by no means necessary to prove that the vessel is really the property of the State, the commission being sufficient evidence of her character. Vessels chartered by a State for the transport of troops or for the purpose of carrying its head are indeed not the property of such State, although they bear, by virtue of their commission, the same character as men-of-war.[791]

[Footnote 790: Attention ought to be drawn here to Convention VII.

(concerning the conversion of merchant-ships into war-ships) of the second Hague Peace Conference of 1907. Although this convention concerns the time of war only, it is indirectly of importance for the time of peace. Its stipulations are the following:--No merchant-ship converted into a war-ship can have the rights and duties appertaining to that status unless it is placed under the direct authority, immediate control, and responsibility of the Power whose flag it flies (art. 1).

Merchant-ships converted into war-ships must bear the external marks which distinguish the war-ships of their nationality (art. 2). The commander must be in the service of the State and duly commissioned by the proper authorities. His name must figure on the list of the officers of the military fleet (art. 3). The crew must be subject to the rules of military discipline (art. 4). Every merchant-ship converted into a war-ship is bound to observe, in its operations, the laws and customs of war (art. 5). A belligerent who converts a merchant-ship into a war-ship must, as soon as possible, announce such conversion in the list of the ships of its military fleet (art. 6).]

[Footnote 791: Privateers used to enjoy the same character and exemptions as men-of-war.]

[Sidenote: Occasions for Men-of-war abroad.]

-- 449. Whereas armed forces in time of peace have no occasion to be abroad, cases of a special right from a convention and cases of necessity excepted, men-of-war of all maritime States possessing a navy are constantly crossing the High Seas in all parts of the world for all kinds of purposes. Occasions for men-of-war to sail through foreign territorial waters and to enter foreign ports necessarily arise therefrom. And a special convention between the flag-State and the littoral State is not necessary to enable a man-of-war to enter and sail through foreign territorial waters and to enter a foreign port. All territorial waters and ports of the civilised States are, as a rule, quite as much open to men-of-war as to merchantmen of all nations, provided they are not excluded by special international stipulations or special Munic.i.p.al Laws of the littoral States. On the other hand, it must be emphasised that, provided special international stipulations or special treaties between the flag-State and the littoral State do not prescribe the contrary in regard to one port or another and in regard to certain territorial waters, a State is in strict law always competent to exclude men-of-war from all or certain of its ports, and from those territorial waters which do not serve as highways for international traffic.[792] And a State is, further, always competent to impose what conditions it thinks necessary upon men-of-war which it allows to enter its ports, provided these conditions do not deny to men-of-war their universally recognised privileges.

[Footnote 792: The matter is controversial. See above, -- 188, and Westlake, I. p. 192, in contradistinction to Hall, -- 42.]

[Sidenote: Position of Men-of-war in foreign waters.]

-- 450. The position of men-of-war in foreign waters is characterised by the fact that they are called "floating" portions of the flag-State. For at the present time a customary rule of International Law is universally recognised that the owner State of the waters into which foreign men-of-war enter must treat them in every point as though they were floating portions of their flag-State.[793] Consequently, a man-of-war, with all persons and goods on board, remains under the jurisdiction of her flag-State even during her stay in foreign waters. No official of the littoral State is allowed to board the vessel without special permission of the commander. Crimes committed on board by persons in the service of the vessel are under the exclusive jurisdiction of the commander and the other home authorities. Individuals who are subjects of the littoral State and are only temporarily on board may, although they need not, be taken to the home country of the vessel, to be there punished if they commit a crime on board. Even individuals who do not belong to the crew, and who after having committed a crime on the territory of the littoral State have taken refuge on board, cannot be forcibly taken off the vessel; if the commander refuses their surrender, it can be obtained only by means of diplomacy from the home State.

[Footnote 793: This rule became universally recognised during the nineteenth century only. On the change of doctrines formerly held in this country and the United States of America, see Hall, -- 54, and Lawrence, -- 107. English and American Courts now recognise the exterritoriality of foreign public vessels. Thus, in the case of the _Exchange_ (7 Cranch, 116), the Supreme Court of the United States recognised the fact that the latter had no jurisdiction over this French man-of-war. In the case of the _Const.i.tution_, an American man-of-war, the High Court of Admiralty in 1879 held that foreign public ships cannot be sued in English Courts for salvage (L.R. 4 P.D. 39). And in the case of the _Parlement Belge_ (L.R. 5 P.D. 197) the Court of Appeal, affirmed by the House of Lords in 1878, held that foreign public vessels cannot be sued in English Courts for damages for collision. Again the same was held in 1906 in the case of the _Ja.s.sy_, a Roumanian ship, 10 Aspinall, Mar. Cas. p. 278. See also the _Charkieh_ (1873), L.R. 4 Adm.

and Eccl. 59.]

On the other hand, men-of-war cannot do what they like in foreign waters. They are expected voluntarily to comply with the laws of the littoral States with regard to order in the ports, the places for casting anchor, sanitation and quarantine, customs, and the like. A man-of-war which refuses to do so can be expelled, and, if on such or other occasions she commits acts of violence against the officials of the littoral State or against other vessels, steps may be taken against her to prevent further acts of violence. But it must be emphasised that even by committing acts of violence a man-of-war does not fall under the jurisdiction of the littoral State. Only such measures are allowed against her as are necessary to prevent her from further acts of violence.[794]

[Footnote 794: Attention ought to be drawn to the "_Reglement sur le regime legal des navires et de leurs equipages dans les ports etrangers_," adopted by the Inst.i.tute of International Law, in 1898, at its meeting at the Hague of which articles 8-24 deal with men-of-war in foreign waters; see Annuaire, XVII. (1898), pp. 275-280.]

[Sidenote: Position of Crew when on Land abroad.]

-- 451. Of some importance is the unsettled question respecting the position of the commander and the crew of a man-of-war in foreign ports when they are on land.

The majority of publicists distinguish between a stay on land in the service of the man-of-war and a stay for other purposes.[795] The commander and members of the crew on land officially in the service of their vessel, to buy provisions or to make other arrangements respecting the vessel, remain under the exclusive jurisdiction of their home State, even for crimes they commit on the spot. Although they may, if the case makes it necessary, be arrested to prevent further violence, they must at once be surrendered to the vessel. On the other hand, if they are on land not officially, but for purposes of pleasure and recreation, they are under the territorial supremacy of the littoral State like any other foreigners, and they may be punished for crimes committed ash.o.r.e.

[Footnote 795: So also Moore, II. -- 256.]

There are, however, a number of publicists[796] who do not make this distinction, and who maintain that commanders or members of the crew whilst ash.o.r.e are in every case under the local jurisdiction.

[Footnote 796: See, for instance, Hall, -- 55; Phillimore, I. -- 346; Testa, p. 109. See also art. 18 of the "_Reglement sur les regime legal des navires et de leurs equipages dans les ports etrangers_," adopted by the Inst.i.tute of International Law, in 1898, at its meeting at the Hague (Annuaire, XVII. (1898), p. 278).]

III

AGENTS WITHOUT DIPLOMATIC OR CONSULAR CHARACTER

Hall, ---- 103-104*--Moore, IV. -- 623--Bluntschli, ---- 241-243--Ullmann, ---- 66-67--Heffter, -- 222--Rivier, I. -- 44--Calvo, III. ---- 1337-1339--Fiore, II. Nos. 1188-1191--Martens, II. -- 5--Adler, "Die Spionage" (1906), pp. 63-92.

[Sidenote: Agents lacking diplomatic or consular character.]

-- 452. Besides diplomatic envoys and consuls, States may and do send various kinds of agents abroad--namely, public political agents, secret political agents, spies, commissaries, bearers of despatches. Their position is not the same, but varies according to the cla.s.s they belong to, and they must therefore be severally treated.

[Sidenote: Public Political Agents.]

-- 453. Public political agents are agents sent by one Power to another for political negotiations of different kinds. They may be sent for a permanency or for a limited time only. As they are not invested with diplomatic character, they do not receive a Letter of Credence, but a letter of recommendation or commission only. They may be sent by one full-Sovereign State to another, but also by and to insurgents recognised as a belligerent Power, and by and to States under suzerainty. Public (or secret) political agents without diplomatic character are, in fact, the only means for personal political negotiations with such insurgents and States under suzerainty.

As regards the position and privileges of such agents, it is obvious that they enjoy neither the position nor the privileges of diplomatic envoys.[797] But, on the other hand, they have a public character, being admitted as public political agents of a foreign State. They must, therefore, certainly be granted a special protection, but no distinct rules concerning special privileges to be granted to such agents seem to have grown up in practice. Inviolability of their persons and official papers ought to be granted to them.[798]