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As a general rule, it may be said that the right to protest against legal proceedings abroad and even against errors of foreign courts can only be based upon an allegation of a denial of justice. Mr. Marcy expressed this principle as follows:
"If a native-born citizen of the United States goes into a foreign country and subjects himself to a prosecution for an offense against the laws of that country, this Government can not interfere with the proceedings, nor can it claim any right to revise or correct the errors of such proceedings, unless there has been a willful denial of justice, or the tribunals have been corruptly used as instruments for perpetuating wrong or out
The willingness of foreign governments to permit this practically unrestricted jurisdiction to be exercised by local courts over their citizens abroad is predicated upon the existence of certain conditions:
1. The existence of regular courts and of laws assuring to the alien the administration of civilized justice, on terms of equality with nationals.
2. The independence of the courts, and an assurance of their impartiality and good faith.
3. The justiciability of the case before the law courts.
4. The competency of the courts and their inclination to pass upon the case without unnecessary delay.
5. Respect of the local government for the decisions of its own courts.
To the general rule that the criminal jurisdiction of a state is limited to offenses committed within its territory, or if committed abroad, to offenses of its own citizens, certain states by municipal law have made important exceptions by undertaking to punish aliens for crimes committed abroad. The pretension to this jurisdiction lacks both a territorial basis in the locality of the crime and a personal basis in the nationality of the accused. It is disapproved by the United States and Great Britain, and in 1886 the attempt of Mexico to en
1 As will be seen hereafter (infra, $ 127 et seq. doubt and uncertainty arise only in the application of the rule.
2 Mr. Marcy, Secretary of State, to Baron de Kalb, July 20, 1855, Moore's Dig. IV, 11.
* Leval, G. de, La protection diplomatique, Bruxelles, 1907, pp. 93-98.
force it in the Cutting case became the subject of a sharp diplomatic controversy. The claim to such jurisdiction, which in some form is found in the penal codes of most civil law countries, is founded upon the relation between the offense and the welfare of the state or its nationals, so that self-defense is by these countries invoked in its support. Most of them undertake to prosecute aliens who, while abroad, have committed crimes against the safety of the state or have counterfeited its seal or currency. Only a few go so far as to punish crimes committed abroad against subjects of the state,» which assertion of extraterritorial jurisdiction is too extensive to command general acquiescence.
Extradition treaties exemplify the mutual coöperation of states to prevent offenders from escaping the penalty of crime by departure from the territorial jurisdiction.
§ 43. Limitations upon Territorial Jurisdiction-Extraterritoriality.
There is also an exception, in the case of certain oriental countries, to the rule that aliens are under the complete territorial jurisdiction of the state of residence. Owing to the deficient civilization of these countries and fundamental differences in law and social habits, the countries of European civilization have stipulated for a certain exemption for their citizens from the operation of local law. This con
1 Cutting was finally released (though Mexico contested the right of the United States to interpose in his behalf), because the Mexican plaintiff withdrew his action for libel, committed in the United States.
On the Cutting case, see Mr. Moore's able “Report on extraterritorial crime," Washington, 1887, which contains an exhaustive discussion of the whole subject. See also Moore's Dig. II, 88 200-202; Rolin in 20 R. D. I. (1888), 559; Hall, 207; Westlake, I, 261–263; Oppenheim, I, 203–205.
2 E. g., France, Germany, Austria, Belgium, Netherlands, Switzerland, Hungary, Italy, Luxemburg, Greece, Norway, Sweden, Russia, Spain and Brazil; but not Denmark, Portugal or Great Britain. Moore's Dig. II, 258; Hall, 207–208. The Institute of International Law approves this legislation, but adds to the condition that the "acts contain an attack upon (the state's) social existence or endanger its security," the further condition “when they are not provided against by the criminal law of the territory where they take place.” 7 Annuaire, 156–157.
3 E. g., Greece, Mexico and Russia and under various conditions and limitations, Austria, Hungary, Italy, Brazil, Sweden and Norway. This was the question involved in the Cutting case.
dition is called extraterritoriality. By treaty or custom these countries have surrendered a considerable portion of their jurisdiction over aliens to the states of European civilization, who exercise jurisdiction over their own nationals by courts and authorities established and regulated by their own municipal legislation.? Jurisdiction is usually exercised by the consuls or diplomatic officers of the foreign states and, except in Turkey, it is customarily confined to persons of their own nationality. While the system in practically all of the extraterritorial countries rests upon treaty, in the Ottoman empire it is based upon custom and certain treaties called Capitulations. This explains the fact that consuls of treaty powers in Turkey may exercise jurisdiction and grant protection to nationals of other treaty powers or even of non-treaty powers, which in other extraterritorial countries they cannot do. The countries still under extraterritoriality, from which class Japan has only recently emerged, are China, Morocco, Muscat, Persia, the Barbary states, Siam, Egypt, Turkey, Bulgaria, and a
1 The statutes of the United States began with the act of August 11, 1848, 9 Stat. L. 276. The statutes are now consolidated in $8 4083-4130, Revised Statutes. See Moore's Dig. II, 613 et seq.; U.S. Consular Regulations (1896), 88 612-653; Instructions to Diplomatic Officers of the U. S. (1897), 88 200–240, p. 79 et seq. In Great Britain, foreign jurisdiction is now governed by the Foreign Jurisdiction Act of 1890, 53 & 54 Vict. c. 37. See Piggott, F., Exterritoriality, Hong Kong, 1907; Hall, Foreign powers and jurisdiction, $ 59 et seq. The treaty provisions of the U. S. are found in Moore, Extradition, Boston, 1891, I, 100, note 5; the British treaty provisions in the Appendix to Piggott, op. cit., 273 et seq.
2 Pelissié du Rausas, G., Le régime des capitulations dans l'Empire ottoman, 2d ed., Paris, 1910-11, 2 v.; Arminjon, P., Étrangers et protégés dans l'Empire ottoman, Paris, 1903; Rey, F., De la protection diplomatique et consulaire dans les échelles du Levant et de Barberie, Paris, 1899; Uber die Exterritorialität der Ausländer in der Türkei mit Rücksicht auf die Gerichtsbarkeit in Civil und Strafprozessen, by F. Meyer. 1 Jahrbuch für Rechtswissenschaft, 1895, pp. 95–190; Turkish capitulations and the status of British and other foreign subjects residing in Turkey, 21 Law Quar. Rev. (1905), 408-425; Hinckley, Frank E., American consular jurisdiction in the Orient, Washington, 1906; Brown, Philip M., Foreigners in Turkey; their juridical status, Princeton, 1914. Consular jurisdiction in the Levant and the status of foreigners in the Ottoman law courts, by Travers Twiss, 8th Annual Conference (1880) of the Asso. for the reform and codification of the law of nations, 27–51. Les étrangers devant les tribunaux consulaires et nationaux en Turquie, by E. R. Salem, 18 Clunet (1891), 393-425; 795–809; Moore's Dig. II, 662 et seq.
: Moore's Dig. II, 596 et seq.; Maria Luz (Peru) v. Japan, Emperor of Russia, arbitrator, Moore's Arb. 5034–5036; For. Rel., 1873, I, 524-553.
few minor semi-barbarous states. The criminal jurisdiction of consuls is usually limited to their own nationals; natives guilty of crimes or injuries against foreigners, must as a rule be prosecuted in the local courts. The extent of the exemption from local law depends almost entirely upon treaty, and may differ from country to country and with respect to the nationals of different states. The system of protectorates with its incidental wide foreign jurisdiction and the system of mixed courts, e. g., in Morocco, Tunis, Tripoli, Shanghai and other places, is a phase of extraterritorial jurisdiction.
§ 44. Equality of Alien and National not always Internationally Suffi
cient. The statement is frequently made, and is undoubtedly true, that an alien establishing himself abroad must normally accept for his protection the institutions, whether of government or of justice, which the inhabitants of the state find suitable to themselves. Foreigners, therefore, are subject to the local courts and authorities, and not to separate jurisdictions, and their own governments will not normally interfere for their protection so long as they enjoy equal treatment with natives.
1 Moore's Dig. II, 88 259–291, pp. 593–755; Sen. Misc. Doc. 89, 47th Cong. 1st sess., memorandum from Secretary of State; Heyking, A., L'exterritorialité, Berlin, 1889; Hinckley, F., American consular jurisdiction in the Orient, Washington, 1906; Martens, F. F., Das Consularwesen u. die Consularjurisdiction im Orient, Berlin, 1874; Lippmann, Die Konsularjurisdiktion in Orient (historical), Leipzig, 1898; Torres Campos, M., Bases de una legislación sobre extraterritorialidad, Madrid, 1896; Ravant-Bignon, R., Du droit de police des consuls dans les pays hors chrétienté, Paris, 1905; Rioche, Y., Les juridictions consulaires anglaises dans les pays d'Orient, etc., Paris, 1904. See also for Egypt, Scott, J. H., The law affecting foreigners in Egypt, Edinburgh, 1907; Lamba, H., De l'evolution de la condition juridique des Européens en Egypte, Paris, 1896; for China, Koo, V. K. W., The status of aliens in China, New York, 1912. The government of the foreigners in China, by A. M. Latter, 19 Law Quar. Rev. (1903) 316–325. Condition des étrangers en Chine by Tou Fa Scié, 2 R. D. I. privé, 1906, 110–120; for Morocco, Saurin, D., De la condition juridique des étrangers au Maroc au point de vue civil, 34 Clunet (1907), 5–19; 284-294; for Persia, La condition juridique des étrangers en Perse, by James Greenfield, 34 Clunet (1907), 257-272; 973-985; Des rapports d'affaires des Européens avec la Perse, 35 Clunet (1908), 1064–1069; for Siam, De la condition juridique des étrangers et de l'organisation judiciaire au Siam, by A. Dauge, 27 Clunet (1900), 461-477; 704-716; De la condition juridique des étrangers au Siam by G. Padoux, 35 Clunet (1908), 693-713; 1037–1054.
Westlake, Chapters on international law, 103; Pradier-Fodéré, III, § 1365. 7 Op. This principle has become of special importance in the Latin-American countries, where exceptions from it have been imposed, on occasion, by the exploiting countries of the Western European type. The weaker countries of Latin America, knowing the advantages under which diplomatic protection has placed aliens, have in their municipal laws, constitutions and treaties emphasized the legal equality which exists as between national and alien. Relying upon this presumably liberal doctrine of complete equality, the Latin-American states insist upon the application of the general principle that the alien is bound by the local law, and that the propriety of their conduct toward resident foreigners is to be tested by their municipal laws.
The Pan-American Conferences of 1889 and 1901 passed formal resolutions, which subsequently found their way into constitutions and statutes, to the effect that foreigners have the same civil rights as the citizens of the nation and that the Latin-American states have not, nor do they recognize in favor of foreigners, any other obligations and responsibilities than those which by their laws they have toward their own citizens. The delegate of the United States to the first Pan-American Congress, Mr. Trescott, declined to subscribe to this resolution on the ground that it gave the alien "no right in protection of his interests other than such as the Government may have provided in the way of judicial trial or executive appeal to its own citizens and this principle once admitted, of course there follows the absolute exclusion of diplomatic reclamation." 3
The United States has vigorously opposed the attempt of the LatinAmerican countries to pass upon the scope of their international duty. As was said by Secretary of State Bayard, in 1887:
"If a government could set up its own municipal laws as the final test of its international rights and obligations, then the rules of inter
Atty. Gen. 229, 235 (Cushing). Any discrimination against the alien, e.g., a graver punishment than that inflicted upon nationals, prejudicial irregularity in judicial proceedings, violation of treaties or international law, constitutes a denial of justice and opens the right to diplomatic interposition.
1 The attempts by local legislation to avoid diplomatic interposition will be discussed hereafter, infra, 8 390 et seq.
2 Alvarez in 3 A. J. I. L. (1909), 329, 333.