Lapas attēli

of obligations sometimes enunciated by theorists but seldom made effective or maintained by practical diplomatists.

In the first class are the complete or partial exemptions from territorial jurisdiction of certain foreign agencies of government, such as executive heads, diplomatic officers, armed forces, public vessels, consuls and sometimes of other foreign subjects, to which may be added the exemptions from complete control of certain portions of territory, such as international rivers and canals, ports and territorial waters of the ocean, and recently acquired territory.

In the second class are exceptions from the usual rule that courts apply the law of the land. Such exemptions occur in cases involving foreign persons, foreign judgments, foreign contracts, etc. Here exists the most marked difference between the AngloAmerican and Continental theories. Writers of the latter school usually consider it a duty of the state to assume jurisdiction of cases and apply foreign law according to rules of private international law.? Common law writers, on the other hand, generally consider the matter entirely one of comity and policy. They deny that a state is under an international duty to apply foreign law according to any rules other than those its own jurisprudence may direct. Consequently they sometimes object to the term “private international law” but consider the rules governing conflict of laws” as a branch of the common law. Which theory is best adapted to promote the welfare of men and nations we shall not attempt to decide, but it is certain that no system for the application of law has been universally consented to at present. Although American courts have occasionally applied rules on the subject because they deemed them established by international law, their general tendency has been to regard precedents of the common law alone. We will therefore exclude the rules of private international law from consideration. At present international law imposes no duty upon states to apply foreign law in certain cases.

2See H. Bonfils, Manuel de Droit International Public. 3rd. ed., Paris, 1901, p. 3; F. DeMartens, Traité de Droit International, 3 vols., Paris, 1883, 2; 391-400: See also Annuaire de l'institut de Droit International, 1902, 1904, 1906, 1908 and compare attitude of representatives of Continental and Common Law countries in discussions of private international law.

3See T. E. Holland, Elements of Jurisprudence, Iith ed., N. Y., 1910, pp. 410-419: J. Westlake, A Treatise on Private International Law, 3rd ed., London, 1890, pp. 1-7: Joseph Story, Commentaries on The Conflict of Laws, 8th ed., Boston, 1883, pp. 8-9, 24; F. Wharton, A Treatise on the Conflict of Laws, 3rd ed., 2 vols., N. Y., 1905, pp. 2-4: A. V. Dicey, A Digest of the Law of England with reference to the Conflict of Law, 2nd ed., London, 1908, pp. 3-16: F. Pollock, First Book of Jurisprudence, and ed., London, 1904, p. 99: T. J. Lawrence, Principles of International Law, 4th ed., N. Y., 1910, pp. 5-6: A. S. Hershey, The Essentials of International Public Law, N. Y., 1912, pp. 4-5, Bibliography,

In the third class are duties connected with the control of private persons and commerce. It is sometimes asserted that states are bound to acquiesce in the immigration of foreigners and the emigration of inhabitants; the naturalization of aliens and the expatriation of citizens; and the importation and exportation of goods. If the state were really under an international obligation to acquiesce in these matters, if it had no legal right to say who should enter or leave its territory, who should form its citizenship and what commercial policy should be pursued, the regime of territorial state sovereignty would be at an end. The United States has certainly not acted upon this theory in its entirety. It has passed laws prohibiting immigration not only of various classes but of whole races, and laws expelling aliens after they have arrived. In its diplomatic correspondence, instead of maintaining acquiescence in emigration as a duty under international law, it has considered it a duty of states to prohibit the emigration of certain classes. Even less has unlimited admission to citizenship been permitted by law. Large classes and whole races are permanently excluded from this privilege. Laws permitting naturalization have been framed with reference to national policy, not international duty. By admitting the right to restrict emigration, the right to prevent the loss of its citizens by

See Hilton vs. Guyot, 159 U. S. 113 (1894), in which Justice Gray, speaking for the court, decided that international law, public and private, is part of the law of the United States and requires adherence to the principle of reciprocity in applying foreign judgments. He therefore refused to apply a French judgment, as French courts did not apply foreign judgments, but in Ritchie vs. McMullen, 159 U. S. 235, at the same time, he applied an English judgment on the same principle. Justices Fuller, Harlan, Brewer, and Jackson dissented in Hilton vs Guyot on the ground that the common law was decisive, and it applied the principle of res judicata to foreign as well as domestic judgments.

5 See Bonfils, op. cit., sec. 412-414; Hershey, op. cit. p. 257, and note, also bibliography, p. 273.

See Moore's Digest, 2;427.

expatriation is admitted. Whether the citizens who have emigrated and reside abroad may expatriate themselves, acquire citizenship in another country and claim the privileges of the new citizenship on returning is a different question. The United States has maintained that the recognition of the right of expatriation is a duty of international law, but all nations have not given assent to this doctrine. The opinion which considers a state bound to acquiesce in the freedom of commerce has certainly received no countenance from American practice. The United States has completely prohibited exportation, by embargo acts. It has prohibited trade with specified countries by nonintercourse acts and has habitually placed serious limitations upon importation by protective tariffs. No duty of acquiescence in these fields is required by international law, and the subject need no longer detain us.

Limiting consideration to the first class, we may discuss the national measures enforcing the duty to acquiesce in limitations upon the complete exercise of authority within the territory, under three heads: (1) privileges of foreign agencies of government and persons, (2) liabilities attached to newly acquired territory, (3) exemptions of certain portions of territory from complete control, or servitudes.

As in the case of the duty of abstention this duty is one directed immediately to the sovereign power of the state. If the sovereign refuses to acquiesce in the immunity of ambassadors, and orders his courts to assume jurisdiction over them, the courts must obey. If by an act of state he refuses to recognize the right of inhabitants of acquired territory to their vested rights under the former sovereign, the courts must obey.S Or if he refuses to permit vessels in distress to enter his ports, and commerce to pass upon his boundary rivers, his international canals and his territorial waters, the obligation can not be enforced by municipal law. In all of these cases, however, in the absence of express

?The "inherent right of expatriation” was enunciated by congress in 1864, Rev. Stat., 1999-2000.

8 See West Rand Central Gold Mining Co., vs. Rex., L. R. 2 K. B. 391 (1905), which held that "an act of state" Warred recovery from the British government of a claim due from the Transvaal government before acquisition. Discussion of this case by J. Westlake, “Is Int. Law Part of the Law of England ?", Law Quar. Rev., 22;14.

9The fortifications of the Panama Canal amounts to an announcement that the United States will not acquiesce in its freedom to commerce under all circumstances.

statute the courts may enforce the duty by adhering to the rule that international law is to be applied in appropriate cases, and that statutes are to be interpreted so far as possible in accord with that law. And where the rules of international law are expressly declared by treaty, statute or executive order, the


of municipal law to enforce is clear.


(1) Foreign public vessels are granted the right of asylum coupled with immunity from local jurisdiction in several treaties, 10 and in a large number of treaties the United States has agreed to accord the most favored nation treatment to the diplomatic representatives of the contracting power, 11 and special privileges have frequently been thus accorded to foreign consuls. These privileges do not in general extend beyond the immunity of the consular archives from seizure, the inviolability of the consulate, and the privilege of adjusting disputes between sailors on national vessels and performing functions connected with commerce. Most treaties specify that the consul shall be subject to local jurisdiction in the same manner as citizens and to most favored nation treatment.12 By a few treaties consuls are exempt from giving testimony,13 and in non-Christian countries, where extraterritorial privileges are granted consuls usually enjoy diplomatic immunities by treaty; such privileges, however, are not reciprocal.14

The consular regulations and diplomatic instructions outline

10 See Treaties, France, 1778-1798, art. 17, Malloy p. 474; 1800-1809, art. 24, p. 504; Great Britain, 1794-1807, art 25, p. 604; Prussia, 17851796, art. 19, p. 1483; 1799-1810, revived 1828, art. 19, p. 1493; Sweden, 1783-1799, revived 1816, 1827, art. 19, p. 1732; Netherlands, 1782-1795, art. 5, p. 1245.

11 Such treaties have been concluded with twenty-one countries, mostly in South and Central America. The Spanish treaty of 1902, also, contained this stipulation (art. 12, Malloy, p. 1704).

12 In 104 treaties with 51 countries provision for consular officers is made. 20 special consular conventions with 15 countries have been concluded. Consular conventions with practically all countries are now in force. Russia, however, since the termination of the treaty of 1832, by joint resolution of congress in 1911, is an exception to this rule.

13For example see treaty with France, 1853, art. 2, Malloy, p. 529. 14 See Moore's Digest, 5, 37-40. Supra, pp. 39-40.


the privileges of such officers. These executive orders are not of importance in enforcing the country's duty of acquiescing in the immunities of foreign resident officers, but they illustrate the view of the law taken by the United States.

In several treaties private citizens of the contracting parties are granted immunity from military service.16

(2) Courts have enforced the duty to acquiesce in the immunities granted by treaty and statute as well as others recognized by international law. They have held that jurisdiction may not be assumed of suits against foreign sovereigns, and former officers of foreign governments,18 for political acts, even when they are within the territory. The same exemption has been held to apply to public vessels19 and other personal property of a foreign state or sovereign.20 Public armed troops and soldiers have also generally been held exempt when acting under orders of their sovereign, but in the celebrated case of People vs. McLeod,22 in which a court of the state of New York refused to recognize such immunities, a reverse attitude was taken. In this case the authorities at Washington favored the release of McLeod in accordance with international duty, but were unable to release him from state authority. The case illustrates the obstacle which the divi


15Consular Regulations, 1896, sec. 71-75, 82. Diplomatic instructions, 1897, sec. 18, 46-49.

10 Such treaties have been concluded with sixteen countries. Those with Argentina, 1853, art. 10, Malloy, p. 23; Congo, 1891, art. 3, p. 329; Costa Rico, 1851, art. 9, p. 344; Honduras, 1864, art. 9, p. 955; Italy, 1871, art. 3, p. 970; Japan, 1894, art. 1, p. 1029; Paraguay, 1859, art. II, p. 1367; Servia, 1881, art. 4, p. 1615; Spain, 1902, art. 5, p. 1703, are now in force.

17 See Dieta by Chief Justice Marshall, in Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812). British case, Mighell vs. Sultan of Johore, L. R., 1894, Q. B. D., 1; 149.

18Underhill vs. Hernandez, 168 U. S. 250.

19U. S. Peters, 3 Dall. 121 ; Schooner Exchange vs. McFaddon, 7 Cranch 116, 137 (1812); Tucker vs. Alexandroff, 183 U. S. 424 (1902). See British case, The Parlement Belge, L. R., 5 P. D. 197, 217 (1900), Bentwich, p. 123; Scott, 220.

20 Hassard vs. U. S. of Mexico, 61 N. Y. S. 939 (1899). British case. Vavasseur vs. Krupp, L. R. 9, Ch. D. 351 (1878); Moore's Digest, 2, 558-593.

21Tucker vs. Alexandroff, 183 U. S. 424 (1902); Dicta Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812).

22 People vs. McLeod, 25 Wend, 253; 26 Wend, 663; See Moore's Digest, 2; 24-25. McLeod was tried and finally acquitted on an alibi.

« iepriekšējāTurpināt »