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over its subjects abroad, it may and does happen that aliens are actually for some matters under no State's jurisdiction.

tion on the

Open Sea.

§ 146. As the open sea is not under the sway of Jurisdicany State, no State can exercise its jurisdiction there. But it is a rule of the Law of Nations that vessels, and the things and persons thereon, remain during the time they are on the open sea under the jurisdiction of the State under whose flag they sail.1 It is another rule of the Law of Nations that piracy 2 on the open sea can be punished by any State, whether or not the pirate sails under the flag of a State. Further, a general practice seems to admit the claim of every maritime State to exercise jurisdiction over cases of collision at sea, whether the vessels concerned are or are not sailing under its flag. Again, in the interest of the safety of the open sea, every State has the right to order its men-of-war to ask any suspicious merchantman they meet on the open sea to show the flag, to arrest foreign merchantmen sailing under its flag without an authorisation for its use, and to pursue into the open sea, and to arrest there, such foreign merchantmen as have committed a violation of its law whilst in its ports or maritime belt. Lastly, in time of war belligerent States have the right to order their men-of-war to visit, search, and eventually capture on the open sea all neutral vessels for carrying contraband, breach of blockade, or unneutral services to the enemy.

Jurisdic

§ 147. Many States claim jurisdiction and threaten Criminal punishment for certain acts committed by a foreigner tion over in foreign countries.5 States which claim jurisdiction Foreignof this kind threaten punishment for certain acts either Foreign against the State itself, such as high treason, forging

1 See below, § 260. 2 See below, § 278. * See below, § 265. 'See below, § 266.

5 See Hall, § 62; Westlake, i. pp. 261-263; Lawrence, § 104; Taylor, § 191; Moore, ii. §§ 200 and 201; Phillimore, i. § 334.

ers in

States.

bank-notes, and the like, or against its citizens, such as murder or arson, libel and slander, and the like. These States cannot, of course, exercise this jurisdiction as long as the foreigner concerned remains outside their territory. But if, after the committal of such act, he enters their territory and comes thereby under their territorial supremacy, they have an opportunity of inflicting punishment. The question is, therefore, whether States have a right to jurisdiction over acts of foreigners committed in foreign countries, and whether the home State of such an alien has a duty to acquiesce in the latter's punishment in case he comes into the power of these States. The question, which is controversial, ought to be answered in the negative.1 For at the time such criminal acts are committed the perpetrators are neither under the territorial nor under the personal supremacy of the States concerned. And a State can only require respect for its laws from such aliens as are permanently or transiently within its territory. No right for a State to extend its jurisdiction over acts of foreigners committed in foreign countries can be said to have grown up according to the Law of Nations, and the right of protection over citizens abroad held by every State would justify it in an intervention in case one of its citizens abroad should be required to stand his trial before the courts of another State for criminal acts which he did not commit during the time he was under the territorial supremacy of such State.2

1 But Continental publicists answer the question in the affirmative. See Mortitz, Internationale Rechtshilfe in Strafsachen (1888), p. 82, and Praag, No. 45.

2 The Institute of International Law has studied the question at several meetings, and in 1883, at its meeting at Munich (see Annuaire, vii. p. 156), among a body of fifteen articles concerning the conflict of the Criminal Laws of different States,

adopted the following (Article 8):-
'Every State has a right to punish
acts committed by foreigners outside
its territory and violating its penal
laws when those acts contain an
attack upon its social existence, or
endanger its security, and when they
are not provided against by the
Criminal Law of the territory where
they take place.' But it must be
emphasised that this resolution has
value de lege ferenda only.

1

In the only case 1 which is reported-namely, in the case of Cutting—an intervention took place according to this view. In 1886 one A. K. Cutting, a subject of the United States, was arrested in Mexico for an alleged libel against one Emigdio Medina, a subject of Mexico, which was published in the newspaper of El Paso in Texas. Mexico maintained that she had a right to punish Cutting, because according to her Criminal Law offences committed by foreigners abroad against Mexican subjects are punishable in Mexico. The United States, however, intervened,2 and demanded Cutting's release. Mexico refused to comply with this demand, but nevertheless Cutting was finally released, as the plaintiff withdrew his action for libel. Since Mexico likewise refused to comply with the demand of the United States to alter her Criminal Law for the purpose of avoiding in the future a similar incident, diplomatic practice has not at all settled the subject.

-see

The case of Cirilo PoubleMoore, ii. § 200, pp. 227-228-concerning which the United States at first was inclined to intervene, proved to be a case of a crime committed within Spanish jurisdiction. The case of John Andersonsee Moore, i. § 174, pp. 932-933-is likewise not relevant, as he claimed to be a British subject.

1 See Westlake, i. p. 252; Taylor,

§ 192; Calvo, vi. §§ 171-173; Moore, ii. § 201; and Report on Extraterritorial Crime and the Cutting Case (1887); Rolin and Gamboa in R.I., xx. (1888), pp. 559-577, and xxii. (1890), pp. 234-250. The case is fully discussed and the American claim is disputed by Mendelssohn Bartholdy, Das räumliche Herrschaftsgebiet des Strafgesetzes (1908), pp. 135-143.

VOL. 1.

Nature

of State

bility.

CHAPTER III

RESPONSIBILITY OF STATES

I

ON STATE RESPONSIBILITY IN GENERAL

Grotius, ii. c. 17, § 20, and c. 21, § 2-Pufendorf, viii. c. 6, § 12-Vattel, ii. §§ 63-78-Hall, § 65-Halleck, i. pp. 471-476-Wharton, i. § 21Moore, vi. §§ 979-1039- Wheaton, § 32-Hershey, Nos. 150-157– Bluntschli, § 380a-Heffter, §§ 101-104-Holtzendorff in Holtzendorff, ii. pp. 70-74-Liszt, § 24-Ullmann, § 39-Bonfils, Nos. 324-332-Despagnet, No. 466-Piedelièvre, i. pp. 317-322-Pradier-Fodéré, i. Nos. 196-210-Rivier, ii. pp. 40-44-Calvo, iii. §§ 1261-1298-Fiore, i. Nos. 659-679, and Code, Nos. 596-615-Martens, i. § 118-Clunet, Offenses et Actes hostiles commis par des Particuliers contre un État étranger (1887)-Triepel, Völkerrecht und Landesrecht (1899), pp. 324-381Anzilotti, Teoria generale della Responsabilità dello Stato nel Diritto internazionale (1902) - Wiese, Le Droit international appliqué aux Guerres civiles (1898), pp. 43-65-Rougier, Les Guerres civiles et le Droit des Gens (1903), pp. 448-474-Baty, International Law (1908), pp. 91-242-Borchard, $$ 73-130-Costa, El Extranjero en la Guerra civil (1913)-Marinoni, La Responsabilità degli Stati per gli Atti dei loro Rappresentanti (1914)-Schoen, Die völkerrechtliche Haftung der Staaten aus unerlaubten Handlungen (1917)—Anzilotti in R. G., xiii. (1906), pp. 5-29, and 285-309-Foster in A.J., i. (1907), pp. 4-10-Bar in R.I., 2nd Ser. i. (1899), pp. 464-481-Arias in A.J., vii. (1913), pp. 724-765Goebel in A.J., viii. (1914), pp. 802-852-Peaslee in A.J., x. (1916), pp. 328-336-Harriman in the Proceedings of the American Society of International Law, ix. (1916), pp. 69-77.

§ 148. It is often maintained that a State, as a soveResponsi- reign person, can have no legal responsibility whatever. This is only correct with reference to certain acts of a State towards its subjects. Since a State can abolish parts of its Municipal Law and can make new Municipal Law, it can always avoid legal, although not moral,

responsibility by a change of Municipal Law. Different from this internal autocracy is the external responsibility of a State to fulfil its international legal duties. Responsibility for such duties is, as will be remembered,1 a quality of every State as an International Person, without which the Family of Nations could not peaceably exist. Although there is at present no International Court of Justice which could summon a State and establish its responsibility for neglect of its international duties, State responsibility concerning international duties is nevertheless a legal responsibility. For a State cannot abolish or create new International Law in the same way that it can abolish or create new Municipal Law. A State, therefore, cannot renounce its international duties unilaterally 2 at discretion, but is and remains legally bound by them. And although there is not and never will be a central authority above the several States to enforce the fulfilment of these duties, there is the legalised self-help of the several States against one another. For every neglect of an international legal duty constitutes an international delinquency, and the violated State can through reprisals or even war compel the delinquent State to comply with its international duties. It is only theorists who deny the possibility of a legal responsibility of States; the practice of the States themselves recognises it distinctly, although there may in a special case be controversy as to whether a responsibility is to be borne. And State responsibility is now in a general way recognised for the time of war by Article 3 of the Hague Convention of 1907, concerning the Laws and Customs of War on Land, which stipulates: A belligerent party

1 See above, § 113.

'See Annex to Protocol I. of the Conference of London, 1871, where the Signatory Powers proclaim that it is an essential principle of the Law of Nations that no Power can

liberate itself from the engagements of a treaty, or modify the stipulations thereof, unless with the consent of the contracting Powers by means of an amicable arrangement."

See below, § 151.

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