XI

tions providing for consular courts.1 In Egypt a special system CHAP. of mixed tribunals, or international courts, was established in 1876, in accordance with which the Egyptian Government appointed a body of judges partly native and partly foreign, the latter being nominated by the respective foreign governments and forming a majority of the court. With the establishment of Egyptian independence in 1922 the abolition of the mixed tribunals was contemplated on condition of the substitution of a British judicial adviser.3

1

At the close of the Washington Conference of 1921-22 a resolution was adopted by the participating powers looking to the promotion of legislative and judicial reforms in China which would warrant the powers in relinquishing their rights of exterritoriality. See Am. Journal, XVI (1922), Supp., 76.

By recent treaties Siam is gradually regaining its freedom. See E. R. James, Jurisdiction over Foreigners in Siam," Am. Journal, XVI (1922), 585. By Art. 142 of the Treaty of Versailles, Germany renounced the régime of capitulations in Morocco, as did Austria by Art. 97 of the Treaty of St. Germain.

'For details, see Scott, The Law Affecting Foreigners in Egypt, rev. ed. See above, p. 97, n. 2.

a. Jurisdic

tion outside territorial limits

b. The national character of merchant vessels

CHAPTER XII

JURISDICTION OVER PUBLIC AND PRIVATE VESSELS

International law recognizes in certain cases the right of a state to extend its jurisdiction beyond its territorial limits. Since the relationship between the state and its citizens is a personal one, the allegiance of the citizen is due to the state in whatever part of the world the citizen may happen to be. The state gives him protection and may exact of him obedience to its laws in so far as it judges them to be applicable. It is true that a state cannot hold its citizen to the observance of its laws while he is within the jurisdiction of another state; but it may, as has been seen, if it so chooses, call him to account when he returns again within its jurisdiction. On the other hand, if the citizen is in unoccupied territory not subject to the jurisdiction of any power, or if he is on board a vessel flying the flag of the state on the high seas, the state may place him in the same legal position as if he were on the soil of the state itself, and may apply its domestic laws, both civil and criminal, to whatever acts he performs or whatever circumstances attend them. It is in respect to jurisdiction over merchant vessels that the extension of the territorial jurisdiction of the state finds its most significant application.

International law has no rules regulating the conditions under which vessels are entitled to fly the flag of a particular state and are accordingly invested with a degree of the national character possessed by citizens of the state. Each individual state fixes its own conditions of registration, and there is no uniformity in respect to them. Some states, such as Great Britain, Germany before 1914, and the United States before 1917, refuse to permit the registration of vessels not owned in whole by citizens of the state.2 Other states admit to registration vessels owned only in part by citizens of the state, or even vessels owned by foreigners. All that international law has prescribed is that some one state, and that a maritime state, must authorize the vessel to use its flag, provide

'See below, p. 213.

For the attitude of the United States, see Moore, Digest, II, §§ 321, 322.

XII

it with the proper "ship's papers," and thereupon exercise in CHAP. respect to the vessel the degree of jurisdiction permitted by the law. In the absence of these conditions no state will either claim any rights or jurisdiction over the owners of the vessel or the persons on board or hold another state to account for failure to exercise jurisdiction. Constructive proposals have been made from time to time for the adoption of more uniform regulations concerning the use of the national flag. In 1896 the Institute of International Law adopted at its annual meeting a series of ten rules bearing the title "Rules Relative to the Use of the National Flag by Merchant Vessels"; 1 but no action in the matter has yet been taken by governments.

1

basis of tion over

vessels

A theory put forth in the eighteenth century in explanation of Theoretical the jurisdiction exercised by a state over vessels flying its flag won jurisdicsufficient acceptance to lay claim for a time to be regarded as a merchant principle of international law. Vessels were held to be floating portions of the territory of the state; they were extensions or prolongations of the home state; so that what took place upon them was regarded as taking, place upon the soil of the state. This fiction of the "exterritoriality" of vessels, while it finds expression in numerous decisions of British and American courts,2 has been rejected by most modern writers on the ground that, while it is a convenient explanation of the greater part of the relations which the vessel and persons on board bear to the state of the vessel's flag, it is inconsistent with other relations affecting the vessel both on the high seas and in foreign ports. A better basis of jurisdiction might be found in the fact that the jurisdiction of the flag state has been acquiesced in by other states simply as a matter of mutual convenience, Since it is necessary that some

1 Resolutions, 135.

3

The theory was forcibly expressed in 1842 in a letter written by Webster as secretary of state to the British foreign minister in answer to the assertion by Great Britain of a right of impressment through the visit and search of American vessels. "Every merchant vessel on the seas," said Webster, "is rightfully considered as part of the territory of the country to which it belongs. Moore, Digest, II, § 320. Webster's letter is quoted at length in United States v. Rodgers, 150 U. S., 249 (1893), Scott, Cases, 222, where the court specifically reaffirms the theory.

The history and inadmissible character of the theory is well set forth in Hall, International Law, § 75. In the recent decision of Cunard Steamship Co. v. Mellon, 262 U. S., 100 (1923), the court dismissed the suggestion that a merchant ship is a part of the territory of the country whose flag it flies as being "a figure of speech,-a metaphor."? The jurisdiction arises, said the court, "out of the nationality of the ship as established by her domicile, registry, and use of the flag, and partakes more of the characteristics of personal than of territorial sovereignty.

CHAP. XII

Exceptions to the general principle

one state should exercise jurisdiction over the vessel, let the state which chooses to assume a degree of responsibility for the vessel by permitting it to fly its flag be the state whose law must be held to control acts done on board the vessel. Thus, by regarding the jurisdiction of the flag state as qualified rather than absolute, it is easier to reconcile with it the jurisdiction possessed by other states over the vessel when it is temporarily in their ports, as well as the belligerent right of visit and search on the high seas when the flag of the vessel is neutral in time of war.

The jurisdiction of a state over its merchant vessels on the high seas is subject to a number of exceptions. In the first place, the customary laws of war give to a belligerent the right of visit and search of all vessels in the enforcement of the rules of contraband and blockade.1 In this connection it should be noted that the United States vigorously contested during the Napoleonic wars the attempt on the part of Great Britain to enforce on board American vessels the British municipal law of allegiance. In his war message of June 1, 1812, President Madison asserted that on the high seas no laws should operate except "the law of nations [i.e. the traditional law of contraband and blockade] and the laws of the country to which the vessels belong." a In the second place, in the exercise of the right of self-protection against piracy, states have the right, put into effect by their public ships, to approach all merchant vessels, whatever their ostensible nationality, with the object of verifying their flag and, in case the circumstances are suspicious, to visit and search the vessel to obtain more conclusive evidence of its character. In the third place, international conventions have been entered into providing for a limited right of visit and search for the suppression of the slave trade. Lastly, a state has the right in self defense to seize a vessel flying the flag

5

For the scope of this belligerent right and the problems arising in connection with it, see below, p. 511.

'The British Government did not assert that its men-of-war might search a neutral vessel for the express purpose of finding seamen of British nationality, but it did claim-and the distinction was without practical difference-that, if in the exercise of the belligerent right of visit and search for contraband, British seamen were found on board they might be impressed into the British navy. On the other hand, the United States, by successive secretaries of state, insisted during the long period of the controversy, from 1792 to 1842, that such searches were open to the gravest objections, and that, in the language of Jefferson, "the simplest rule will be that the vessel being American shall be evidence that the seamen on board are such."' Moore, Digest, II, § 317. 'See Moore, Principles of American Diplomacy, 275.

'See below, p. 204.

See below, p. 206.

XII

of another state under circumstances indicating that the vessel CHAP. either is fraudulently registered or is being used by insurgents and rebels as a means of attack upon the state. Had the action of Spain in the case of the Virginius1 extended no further than the mere capture of the vessel and the imprisonment of its crew, there would have been no international ground of offense against the state of the vessel's flag.

tion over

foreign

When merchant vessels leave the high seas and enter foreign c. Jurisdicports, the jurisdiction of their national state comes into conflict merchant with the jurisdiction of the foreign state. This conflict has been vessels in adjusted, by custom and convention, so as to permit the exercise ports of a limited jurisdiction by the flag state, without encroaching upon the ultimate right of the territorial state. "It is a part of the v law of civilized nations," said the court in Wildenhus's Case," "that when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless by treaty or otherwise the two countries have come to some different understanding or agreement." In an opinion rendered by the French Council of State in 1806 it was held, in the cases of the Sally and the Newton, 3 that in conformity with international usage the rights of the national power, ie., of the flag state, "should be respected as relating to the internal discipline of the vessel, with which local authority may not interfere when its aid is not sought or when the tranquillity of the port is not endangered."

3

relating to

This rule, of uncertain force in customary law, has now been Matters generally adopted by treaty. No very definite line, however, has internal been drawn between matters relating to the internal discipline of the vessel and matters disturbing the peace of the port. Supreme Court of Mexico held in 1875 that the murder of a Frenchman by another Frenchman on board a French vessel in a Mexican port did not necessarily disturb the peace of the port." On the other hand, the French Court of Cassation rendered a contrary decision in 1859. The attitude of the American courts

1 See above, p. 144.

See below, p. 194.

Stowell and Munro, Cases, I, 246. Snow, Cases, 121. Cited by the court in Wildenhus's Case.

In illustration of such treaty provisions, see Article XI, treaty of March 9, 1880, between the United States and Belgium, Malloy, Treaties, I, 94, the application of which was at issue in the case of Wildenhus, below mentioned. Case of L'Anémone, Snow, Cases, 124.

Case of the Tempest, Snow, Cases, 122.