Criminal Jurisdiction over in Foreign 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 contraband, breach of blockade, and maritime services to the enemy. § 147. Many States claim jurisdiction and threaten punishments for certain acts committed by a foreigner Foreigners in foreign countries. States which claim jurisdiction States. of this kind threaten punishment for certain acts either against the State itself, such as high treason, forging 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 enforcing 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 a foreigner has a duty to acquiesce in the latter's punishment in case he comes into the power of these States. The question must be answered in the negative. For at the time such criminal acts are committed the perpetrators are 1 See below, §§ 265-266. pp. 251-253; Lawrence, § 125; 2 See Hall, § 62; Westlake, I. Taylor, § 191; Philimore, I. § 334. 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 foreigners 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. In the only case which is reported—namely, in the case of Cutting-matters were settled 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. United States, however, intervened and demanded Cutting's release, which was finally granted.2 1 1 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 The violating its penal laws when Nature of bility. CHAPTER III RESPONSIBILITY OF STATES I ON STATE RESPONSIBILITY IN GENERAL Grotius, II. c. 21, § 2-Pufendorf, VIII. c. 6, § 12-Vattel, II. §§ 63-78- § 148. It is often maintained that a State, as a Responsi sovereign 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 no International Court 1 See above, § 113. 1 of Justice which could establish such responsibility and pronounce a fine or other punishment against a State 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 as it can abolish or create new Municipal Law. A State, therefore, cannot renounce its international duties unilaterally at discretion, but is and remains legally bound by them. And although there is not and never will be a central authority above the single States to enforce the fulfilment of these duties, there is the legalised self-help of the single 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. and Responsi § 149. Now if we examine the various international Original duties out of which responsibility of a State may rise, vicarious we find that there is a necessity for two different State kinds of State responsibility to be distinguished. bility. They may be named "original" in contradistinction to" vicarious" responsibility. I name as "original" the responsibility borne by a State for its own-that is, its Government's actions, and for such actions of the lower organs or private individuals as are performed at the Government's command or with its authorisation. But States have to bear another responsibility besides that just mentioned. States are, according to the 1 See Annex to Protocol I. of 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 engage For Law of Nations, in a sense ments of a treaty, or modify the 2 See below, § 151. Essential between and responsible for certain acts other than their ownnamely, certain unauthorised injurious acts of their organs, of their subjects, and even of such foreigners as are for the time living within their territory. This responsibility of States for acts other than their own I name "vicarious" responsibility. Since the Law of Nations is a law between States only, and since States are the sole exclusive subjects of International Law, individuals are mere objects of International Law, and the latter is unable to confer directly rights and duties upon individuals. And for this reason the Law of Nations must make every State in a sense responsible for certain internationally injurious acts committed by its officials, subjects, and such foreigners as are temporarily resident on its territory. $150. It is, however, obvious that original and Difference vicarious State responsibility are essentially different. Original Whereas the one is responsibility of a State for a Vicarious neglect of its own duty, the other is not. A neglect Responsi- of international legal duties of a State constitutes an bility. international delinquency. The responsibility which a State bears for such delinquency is especially grave, and requires, apart from other especial consequences, a formal expiatory act, such as an apology at least, by the delinquent State to repair the wrong done. On the other hand, the vicarious responsibility which a State bears requires chiefly compulsion to make those officials or other individuals who have committed internationally injurious acts repair as far as possible the wrong done, and punishment, if necessary, of the wrong-doers. In case a State complies with these requirements, no blame falls upon it on account of such injurious acts. But of course, in case 1 See below, § 290. |