FUGITIVE CRIMINALS IN LEASED AREA.

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The exercise of jurisdiction in leased areas varies according to the provisions of the lease.

Fugitive criminals in leased area. The agreement of July 2, 1903, leased certain areas in Guantanamo and in Bahia Honda in Cuba to the United States for naval or coaling stations. Article IV of this lease provided that Fugitives from justice charged with crimes or misdemeanors amenable to Cuban law, taking refuge within said areas, shall be delivered up by the United States authorities on demand by duly authorized Cuban authorities."

Under this article of the lease a fugitive from Cuban justice taking refuge within the leased area should be delivered to the duly authorized Cuban authorities. The agreement upon the areas made February 16-23, 1903, distinctly specifies that the lease covers the described areas of land and water. Therefore under ordinary circumstances a fugitive from Cuban justice entering the leased areas would be surrendered.

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By Article I of the agreement of February 16-23, 1903, the following described areas of land and water are leased to the United States by Cuba. The terms of the agreement specify that the lease covers certain adjacent waters within definite limits and carries also "the right to use and occupy the waters adjacent to said areas of land and water." The United States obtained complete jurisdiction over certain waters and qualified rights in adjacent waters.

Within the area outside either of the above-mentioned waters the ordinary course in regard to fugitives from justice would be followed. The waters adjacent to the waters over which the United States is granted complete jurisdiction are subject to the use of the United States "generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose." The ordinary course in regard to the fugitives from justice would therefore be followed there.

The terms of this lease proclaim, as in the cases of the Chinese leases, that it is jurisdiction and not sovereignty that is passed by the lease. The conditions of the lease of

Cuban territory to the United States do not fix a limit of a period of time, as in the Chinese leases, but the United States agrees to pay a fixed sum per year so long as it shall occupy and use the leased area. Further, the United States undertakes as part equivalent for this lease "to maintain the independence of Cuba and to protect the people thereof.” Thus the United States assumes an additional obligation over and above the obligations usually assumed in the Far East.

The status of the leased areas therefore needs definition.

The question next raised would naturally be whether a war vessel of the United States under international law and under the terms of the treaties with Cuba should surrender a fugitive from Cuban justice.

Jurisdiction over vessels in leased area. The jurisdiction over a given vessel will depend upon the character of the vessel and upon its relation to the sovereign and to the other parties concerned. If it is a private merchant vessel of a third state not party to the lease, its relations may be unlike those of a similar vessel of the parties to the lease. The relations of public vessels would be unlike those of private vessels.

The regulations for the government of the Navy of the United States, 1905, article 308, state that "The right of asylum for political or other refugees has no foundation in international law. In countries, however, where frequent insurrections occur, and constant instability of government exists, usage sanctions the granting of asylum; but even in the waters of such countries officers should refuse all aplications for asylum except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob. Officers must not directly or indirectly invite refugees to accept asylum." According to this regulation asylum should not be granted to a refugee under other than exceptional circumstances.

Within both land and water areas leased to the United States fugitives from Cuban justice would under Article.

VESSELS IN LEASED AREA.

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IV "be delivered up by the United States authorities on demand by duly authorized Cuban authorities."

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Granting that the fugitive escapes to a war vessel of the United States while the vessel is within the area which is under the complete jurisdiction of the United States, would the provisions of the treaty apply to the war vessel and should the commander deliver "the up fugitive under the terms of the treaty? Of course, Cuba could make a law by which a political offense might be a crime or misdemeanor. Should the commander when within the leased area deliver up a political refugee whom he might retain under other circumstances?

By Article VI of the Constitution of the United States, "This Constitution and the Laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made, under the authority of the United States, shall be the supreme Law of the Land."

An agreement of the nature of this lease would become in effect law and would bind all officials within the area. Further, the agreement was made with the specific purpose of prescribing a method by which fugitives from Cuban justice escaping into the area within the military control of the United States should be recovered by the proper Cuban authorities.

To set up a claim that a war vessel of the United States would be exempt from an agreement made with special reference to the establishment of a naval base and the control of its area would be inconsistent with a reasonable interpretation of the terms of the agreement.

Reciprocal obligations.-There is also a reciprocal agreement which, in addition to prescribing that fugitives from Cuban justice "shall be delivered up by the United States authorities," provides that—

On the other hand, the Republic of Cuba agrees that fugitives from justice charged with crimes or misdemeanors amenable to United States law, committed within said areas, taking refuge in Cuban territory, shall, on demand, be delivered up to duly author. ized United States authorities.

Competence of commandant of naval station. There may sometimes be doubt as to the identity of the criminal,

the proper method of procedure, the extent of the authority of the Cuban official, the nature of the crime, or other matters with which the commander of a war vessel could hardly be expected to be familiar.

The commandant of the naval station would naturally be familiar with such matters because acting under an agreement relating thereto. It would seem safest and in the end a proceeding little open to question to turn a fugitive from Cuban justice escaping to a war vessel within the leased area at Guantanamo over to the commandant of the naval station.

The commandant would be bound to turn the fugitive from justice over to the duly authorized Cuban authorities. Of course, the commandant would be under obligation to satisfy himself of the identity of the criminal, of the proper authorization of the officials demanding that the fugitive be surrendered, and of such other factsas would secure the fulfillment of Article IV of the lease of 1903.

As the attitude of the United States is in general unfavorable to the harboring of fugitives from justice on board war vessels, as the practical inconveniences of having such a person on board a war vessel are considerable, and as Article IV of the lease provides for the giving up of fugitives within the leased areas "on demand by the proper Cuban authorities," it would seem proper to regard a war vessel of the United States as subject to the terms of the lease and as being of the nature of a floating naval station for the time being within the leased area. and under provisions of the lease.

Conclusion. An alleged fugitive from Cuban justice coming on board a war vessel of the United States within the naval coaling station at Guantanamo leased from Cuba should under ordinary circumstances be turned over by the commander of the United States war vessel to the commandant of the naval station.

The subsequent treatment of the alleged fugitive by the commandant should be governed by Article IV of the lease and by such general or special instructions as may have been issued by the United States Government.

SITUATION II.

A United States auxiliary collier commanded by an officer appointed by the Secretary of the Navy is in a harbor of State X. The collier collides with and injures a foreign vessel. The owner of the foreign vessel brings suit against the commander of the collier for damages under the civil law, claiming that the status of the collier is uncertain, and that the commander would in any case be liable as would the commander of a ship of StateX, the commanders of whose vessels, public and private, are liable in the civil courts of that state under similar circumstances.

What position should the senior officer of the United States take?

SOLUTION.

The senior officer, acting in accordance with principle, precedent, and regulations, should appoint a board of inquiry and maintain that the suit should not be brought against the master of the auxiliary collier, but that the claims should be referred to the United States Government through diplomatic channels.

NOTES ON SITUATION II.

General.-In this situation the owner of the injured foreign vessel claims that the status of a United States auxiliary collier is uncertain. He also claims that even if the collier was recognized as a public vessel it would be liable to the same treatment as domestic public vessels under similar circumstances and that the collier could therefore be made the defendant in rem or its commander the defendant in personam in a suit for damages resulting from a collision.

Claims against public vessels and property in foreign ports have been made in various forms. These claims