Position and from those territorial waters which do not serve as highways for international traffic.1 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. § 450. The position of men-of-war 2 in foreign waters of Men-of- is characterised by the fact that they are called 'floatForeign ing' portions of the flag-State. For at the war in Waters. present time there is a customary rule of International Law, universally recognised, that the State owning 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.3 Consequently, a man-of-war, with all persons and goods on board, remains under the juris 1 The matter is controversial. See above, § 188, and Westlake, i. p. 196, in contradistinction to Hall, § 42. 2 As to merchantmen, see above, § 189. 3 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 Exchange (7 Cranch 116), the Supreme Court of the United States recognised that it had no jurisdiction over this French man-of-war. In The Constitution, 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 (4 P.D. 39). And in the case of The Parlement Belge, ((1880) 5 P.D. 197, 214), the Court of Appeal and the House of Lords held that foreign public vessels cannot be sued in English courts for damages for collision. The same was held in 1906 in The Jassy, a Roumanian ship (10 Asp. p. 278). See also The Charkieh, (1873) L.R. 4 A. and E. 59. In The Gagara ([1919] P. 95) it was held that a ship claimed as the property of a de facto government, only temporarily recognised, must be treated in the same way. Different is the case of a private vessel which has been requisitioned or chartered by the Government. While a ship is in the service of the Government concerned she is indeed exempt from arrest for claims for salvage, collision, etc. But claimants are not thereby deprived of their rights of action, although they are precluded for the time being from exercising some of the rights ordinarily incident thereto. See The Broadmayne, [1916] P. 64; The Messicano, (1916) 32 T.L.R. 519; and The Crimdon, (1918) 35 T.L.R. 81. But the practice of the American courts seems to be different; see Nielsen in A.J., xiii. (1919), pp. 12-21, and the case of The Attalita there quoted. It must be specially mentioned that, in accordance with Article 281 of the Treaty of Peace with Germany, if the German Government engages in international trade, it is not to have in respect thereof any rights, privileges or immunities of sovereignty; similar provisions occur in other treaties of peace. diction 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 jurisIdiction 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 punished there, 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 diplomatic means from the home State.1 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 manof-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-ofwar 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.2 1 On the question of asylum of foreign men-of-war generally, see Moore, Asylum in Legations and Consulates and Vessels (1892), a reprint from the Political Science Quarterly, vol. vii. * Attention ought to be drawn to the 'Règlement sur le Régime légal des Navires et de leurs Equipages dans les Ports étrangers,' adopted by the Institute of International Law, in 1898, at its meeting at the Hague, of which Articles 8-24 deal with men-of-war in foreign waters; Annuaire, xvii. (1898), pp. 275-280. 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 a foreign port 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.1 The commander and members of the crew ashore in an official capacity 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 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 on official business, 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 ashore. There are, however, a number of publicists 2 who do not make this distinction, and maintain that commanders, or members of the crew, whilst ashore, are in every case under the local jurisdiction. 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-Routier, L'Espionage et la Trahison en Temps de Paix et en Temps de Guerre (1915). § 452. Besides diplomatic envoys and consuls, States 1 So also Moore, ii. § 256. See, for instance, Hall, § 55; Phillimore, i. § 346; Testa, p. 109. See also Article 18 of the 'Règlement' referred to on p. 615, n. 2. lacking may, and do, send various kinds of agents abroad- Agents namely, public political agents, secret political agents, Diplo spies, commissaries, and bearers of despatches. The matic or position of these agents varies according to the class Characto which they belong. Consular ter. Political Agents. § 453. Public political agents are agents sent by one Public Power to another for political negotiations of different kinds. They may be sent for an unlimited time, or for a limited time only. As they are not invested with diplomatic character, they do not receive a letter of credence, but only a letter of recommendation or commission. They may be sent not only 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. Political agents without diplomatic character afford, in fact, the only means for personal political negotiations with such insurgents and with States under suzerainty. As regards the position and privileges of public political agents, it is obvious that they enjoy neither the position nor the privileges of diplomatic envoys. But, on the other hand, they have a public character, being admitted as public political agents of a foreign State, and must, therefore, certainly be granted a special protection. No distinct rules, however, concerning the 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.2 Political § 454. Secret political agents may be sent for the Secret same purposes as public political agents. But two Agents. kinds of secrecy must be distinguished. An agent may be secretly sent to another Power with a letter of recom 1 Heffter, § 222, is, as far as I know, the only publicist who maintains that agents not invested with diplomatic character must nevertheless be granted the privileges of diplomatic envoys. 2 Ullmann, § 66, and Rivier, i. § 44, maintain that they must be granted the privilege of inviolability to the same extent as diplomatic envoys. Spies. mendation, and admitted by that Power. Such an agent is secret in so far as third Powers do not know, or are not supposed to know, of his existence. As he is admitted by the receiving State, although secretly, his position is essentially the same as that of a public political agent. On the other hand, an agent may be secretly sent abroad for political purposes without a letter of recommendation, and therefore without being formally admitted by the Government of the State in which he is fulfilling his task. Such an agent has no recognised position whatever according to International Law. He is not an agent of a State for its relations with other States, and he is therefore in the same position as any other foreign individual living within the boundaries of a State. He may be expelled at any moment if he becomes troublesome, and he may be criminally punished if he commits a political or ordinary crime. Such secret agents are often abroad for the purpose of watching the movements of political refugees or partisans, or of socialists, anarchists, nihilists, and the like. As long as such agents do not turn into socalled agents provocateurs, the local authorities will not interfere. § 455. Spies are secret agents of a State sent abroad1 for the purpose of obtaining clandestinely information in regard to military or political secrets. Although all States constantly or occasionally send spies abroad, and although it is not considered wrong morally, politically, or legally to do so, such agents have, of course, no recognised position whatever according to International Law, since they are not agents of States for their international relations. Every State punishes them severely when they are caught committing an act which is a crime by the law of the land, or expels them if they cannot be 1 Concerning spies in time of war, and Adler, Die Spionage (1906), see below, vol. ii. §§ 159 and 210, pp. 7-62. |