CHAP. XI Suits involving property belonging to a foreign state A foreign state, said the court, could not be sued without its consent, and "so far as jurisdiction is concerned, there is no difference between suits against a sovereign directly and suits against its property." 1 A difficult and unsettled question is presented when a foreign state is made indirectly a party defendant in a suit involving property which would normally be governed by the municipal law of the state and fall within the jurisdiction of its courts. Here the foreign state appears rather in its capacity as a private corporation as distinct from its public international personality. In the case of Vavasseur v. Krupp,2 decided in 1878, an injunction had been obtained by Vavasseur to prevent the defendants from delivering to a Japanese vessel of war certain shells bought by the mikado in Germany, which it was alleged had been manufactured in infringement of the plaintiff's patent. On appeal, the higher court set aside the injunction on the ground that, even if there was an infringement of the patent, the mikado could not be sued for it. The court held that it had no jurisdiction "to interfere with the property of a foreign sovereign, more especially with what we call the public property of the state of which he is sovereign as distinguished from that which may be his own property. No distinction was made in this case between a suit brought, as in De Haber v. Queen of Portugal, against a foreign sovereign as such, and a suit arising out of the title to particular property acquired by a foreign sovereign in the ordinary processes of commerce. The special exemption from jurisdiction accorded to government-owned ships engaged in foreign trade will be discussed below; 2 and there has been a tendency on the part of British courts, and to a lesser degree on the part of American, to extend to other commercial property in possession of a foreign government the same protection extended to foreign vessels. It would seem, how 1 Hassard v. United States of Mexico, 61 N. Y., 939 (1899). Moore, Digest, II, 258. It should be observed that, where a state voluntarily appears in court as plaintiff for the purpose of obtaining a remedy, the defendant may file a cross-claim or set-off, or take other proceedings to bring all the facts before the court. Strousberg v. Republic of Costa Rica, 44 Law Times Rep., 199. But such cross-claim must arise out of the same action, and must not relate to another and distinct matter. South African Republic v. Compagnie Franco-Belge, 1 Ch. Div., 190 (1898). In the case of Kingdom of Rumania v. Guaranty Trust Co., 250 Fed. Rep., 341, the court, reversing the decision of the lower court, held that a sovereign, suing to recover a deposit, could not be interpleaded against his will by one whose claim arose independently of the deposit in question. See N. Wolfman, "Sovereigns as Defendants," Am. Journal, IV (1910), 373. L. R. 9 Ch. Div., 351. See below, p. 202. XI ever, that, by the analogies of American municipal law; account CHAP. might well be taken by the courts of the fact that property in the one case is being used in the public service of a foreign state and in the other case is being used by the state in the capacity of a private trader. The American federal courts have in several cases refused exemption from jurisdiction when the property is not already in possession of the foreign state; but the cases relate to libel for salvage services, and they have generally been put in a favored class.1 constructive There is obvious need, as in the case of the exemption from Need of a jurisdiction of quasi-public vessels, of a more uniform rule of rule jurisdiction with respect to property held by the foreign state in both its public and its private capacity. The subject was considered by the Institute of International Law at its meeting in 1891, and a series of articles was adopted under the head, "Competence of Courts in Suits against Foreign States or Sovereigns. Article IX recognizes six kinds of actions in which jurisdiction may be taken against a foreign state: (1) real actions, to obtain possession of property within the territory; (2) actions arising out of the suit of a foreign state as heir or legatee of real or personal property within the territory; (3) actions relating to commercial or industrial property; (4) actions involving counterclaims raised in a suit brought by the foreign state; (5) actions arising out of contracts entered into on the territory; and (6) actions in tort. In view of the increasing tendency toward public ownership of vessels and railways, and the use of subsidiary corporations for purposes of the exploitation of the oil and mineral resources of undeveloped foreign states, it is particularly urgent that a constructive rule of law be adopted by international convention which will protect the interests of private individuals having claims against such property and provide for the necessary exercise of jurisdiction by the local courts. Personal of foreign Brief mention must be made of the personal immunity from local jurisdiction enjoyed by foreign sovereigns when tem- immunity porarily within the territory of a foreign state. The former sovereigns identification of the person of a foreign sovereign with the state of which he was both the legal and the actual head furnished the historical justification for this immunity, which is still granted in 'See Weston, "Actions against the property of sovereigns," Harvard Law Rev., XXXII, 266. Resolutions, 90. CHAP. Asylum an age when such sovereigns as remain exercise in most cases only nominal powers. The presidents of republics, who are technically not sovereigns, enjoy the same immunities. A special inviolability attaches to the person of foreign sovereigns, and attacks upon them are regarded as particularly grave offenses. The immunity of the foreign sovereign extends not only to exemption from criminal prosecution, whatever be the character of his acts, but also to exemption from civil suit in personam arising out of contract or tort. A unique illustration of this principle is to be seen in the case of Mighell v. Sultan of Johore,1 decided in 1893, in which the plaintiff brought action for breach of promise of marriage against the defendant, who had been known to the plaintiff as a private citizen under the assumed name of Albert Baker, and who had in that character made the alleged promise of marriage. Upon being sued, the defendant disclosed his real character as sultan of the independent state of Johore in the Malay Peninsula, whereupon the court dismissed the proceedings for want of jurisdiction. The immunity from criminal prosecution and civil suit extends likewise to ambassadors and public ministers, as well as to special envoys. 8 The exterritorial privileges conceded by a state to foreign legations for the due performance of their official functions have been made the excuse at times for converting the legation into an asylum for fugitive criminals and political refugees. In the seventeenth and eighteenth centuries an exaggerated conception of the rights belonging to foreign legations led to abuses against which Vattel felt it necessary to protest. Is the ambassador, he asked, to be allowed to avail himself of the immunity of his house so as to make of it "an asylum into which he will admit enemies of the sovereign and of the state, criminals of every sort, and thus protect them from the punishment which they deserve?" 5 Such conduct would, he continued, be contrary to the purpose for which 1 1 L. R. (1894), 1 Q. B. Div., 149. Scott, Cases, 280; Evans, 205. It should be observed that the older practice of according to a foreign sovereign jurisdiction over the members of his suite, as illustrated in the cause célèbre of Queen Christina of Sweden, who, when residing in Paris in 1656 after her deposition, condemned to death and executed one of her servants, is no longer permitted. See below, pp. 361 ff. It is necessary to distinguish between the incidental use of foreign legations as an asylum for fugitives and the general exemption of foreign legations from the territorial jurisdiction of the state in respect to matters connected with the functions of the legations. The latter subject is treated separately below, p. 364. Droit des Gens (Eng. trans.), Bk. IV, § 118. ΧΙ the ambassador was admitted into the state. But while the earlier CHAP. practice of giving asylum to ordinary criminals has now been abandoned, it is still the rule that the local police authorities may not enter the residence of the ambassador or minister, but must request of him the delivery of the fugitive. In 1836 a United States federal court considered it in violation of international law that a constable should enter the house of the secretary of the British legation and remove a fugitive slave.1 political The practice of giving asylum to political refugees has like- Case of wise been generally abandoned. Even when at its height, it was refugees still qualified by the condition that the foreign embassy must not become in that way a source of danger to the state. Vattel comments approvingly upon the decision of the Council of Castile in the case of the Duke of Ripperda, who, being accused of official misconduct, had taken refuge in the house of the British ambassador. It was decided that he might be taken from the embassy even by force, "since otherwise privileges whose object was to maintain a freer intercourse between sovereigns would on the contrary turn to the ruin and destruction of their authority." 2 Within recent years the few exceptional cases in which asylum has been granted have been confined to legations in Central and South American states, in parts of the Orient, and occasionally in the states of southeastern Europe. In 1875 Secretary Fish, in a letter to the Secretary of the Haitian legation at Washington, referred to the right to grant asylum to fugitives as "one of the still open questions of public law"; and he was frank enough to say that "the instability of the Governments in countries where the practice has been tolerated may in a great degree be imputed to such toleration." In the personal instructions issued by the United States Department of State to its diplomatic agents in 1885, attention was called to the fact that "exterritorial asylum has become so firmly established, that it is often invoked by unsuccessful insurgents," and notice was given that "this government does not sanction the usage, and enjoins upon its representatives in such countries the avoidance of all pretexts for its exercise." An exception was, however, admitted to the extent of permitting temporary shelter to be given to persons whose lives might be threatened by mob violence as distinct from persons evading the 3 1 United States v. Jeffers, 4 Cranch Circ. Ct. Rep., 704. Scott, Cases, 323. Op. cit., Bk. IV, § 118. See also Martens, Causes Célèbres, I, 178. 2 a U. S. For. Rel., 1875, pp. 343 4 Quoted by Snow, Cases, 143 n. Snow, Cases, 142. CHAP. Exemption of aliens from local jurisdiction in non Christian states pursuit of the legitimate agents of justice. The same notification is repeated verbally in the revised instructions issued in 1897.1 In 1908 a more definite step was taken when the United States delivered to the Haitian Government a group of refugees who had sought asylum in the legation and consulate, and at the same time announced the policy of refusing such asylum in the future." Similar declarations were made by Great Britain and France in respect to their consulates.3 During the Middle Ages it was common for commercial towns to concede to foreign merchants the privilege of residing in separate parts of the town and being governed by their own domestic laws. This privilege died out in Europe with the growth of the principle of territorial sovereignty; but it continued to be recognized in Turkey, where, because of the religious character of the Mohammedan law, there were special reasons for permitting foreign residents to remain subject to the law of their own country.* A system of "extraterritorial jurisdiction," based partly upon custom and partly upon treaties of unilateral obligation, known as "capitulations," was thus developed, in accordance with which cases relating to foreign citizens were tried before diplomatic or consular courts operating in accordance with the laws of the several states. During the nineteenth century the system was extended to other non-Christian states whose customs and legal systems differed radically from those of Europe. Japan succeeded in releasing itself in 1899 from the limitations imposed upon its sovereignty by the exemption of aliens from its local jurisdiction. Upon the outbreak of the World War Turkey announced the abrogation of the capitulations, which, it asserted, restricted its sovereignty. This unilateral action was contested by the United States; but the matter remained in suspense during the war. At the close of the war the capitulations were temporarily renewed; but by the Treaty of Lausanne of 1923 the contracting parties accepted their "complete abolition." Morocco, Persia, Siam, China, and a few smaller states are still subject to treaty obliga 1Instructions to Diplomatic Officers of the United States, § 51. Alvarez, Droit International Américain, 193-4. 4 For the historical background, see Brown, Foreigners in Turkey: Their Juridical Status, Chap. I. Ibid., Chap. II; The Capitulations," Foreign Affairs, June 15, 1923. |