Read Ebook: International Law by Tucker George Fox Wilson George Grafton

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is, that he becomes entitled to all the privileges of a subject of the state of his new allegiance, except that when he is within his first state he becomes liable for the performance of any obligation which he may have incurred prior to his naturalization.

A state may determine what conditions must be fulfilled in order to constitute a valid severance of allegiance. Laws are diverse upon this subject. Many states have maintained, and some still maintain, that allegiance is inalienable. England formally maintained this principle till 1870, and her attempts to enforce the principle brought on the War of 1812 with the United States.

In certain countries, as in the United States and Switzerland, minor children are held to follow the allegiance of their father in case of naturalization. The French law claims that the minor child's nationality is that of his birthplace. The subject has been determined in some instances by treaty stipulation, yet must be considered, like many questions of naturalization, as unsettled.

Many states distinguish in law and more in practice between that naturalization which carries with it protection of the state and allegiance of the subject and that naturalization which carries full political privileges .

The position in the Koszta case, where the claim to the protection of the United States was made when the inchoate citizen was in trouble, and the claim of the inchoate citizens to renounce their allegiance when the state was in difficulties, show some of the problems to which the diverse laws and practices in regard to naturalization have given rise.

The municipal laws of some of the local states of the United States admit to all political privileges of the local state those who have taken the first steps toward naturalization. It is generally conceded that such as have exercised the privileges of full citizens can properly be held to the obligations of full citizens, as was declared in the above proclamation.

The inconsistencies in regard to jurisdiction over those naturalized or incompletely naturalized are gradually yielding to treaty provisions which distinctly determine the position of such persons.

? 60. Jurisdiction over Aliens

Citizens of one state, when sojourning in a foreign state, have a dual relationship by which they may claim certain privileges, both from their native state and from the foreign state.

All these laws are subject to the exemptions in favor of sovereigns, diplomatic agents, etc.

Good only for two years from date.

UNITED STATES OF AMERICA

+Department of State+

I, the undersigned, Secretary of State of the United States of America, hereby request all whom +DESCRIPTION+ it may concern to permit

Age.... Years..................... Stature... Feet... Inches..., Eng. .............. ..............., Forehead.......................... a Citizen of the United States, Eyes.............................. ........................ safely Nose.............................. and freely to pass, and in case Mouth............................. of need to give ... all lawful Chin.............................. Aid and Protection. Hair.............................. Complexion........................ Given under my hand and the Face.............................. Seal of the Department of State, at the City of Washington, the ... day of ....... in the year 19..., and of the Independence of the United States the one hundred .................................. and.................

No..... ................

? 61. Exemptions from Jurisdiction--General

As a general principle, the sovereignty of a state within its boundaries is complete and exclusive. For various reasons there has grown up the custom of granting immunity from local jurisdiction to certain persons generally representing the public authority of a friendly state. This immunity may extend to those persons and things under their control.

This immunity has been called exterritoriality. The persons and things thus exempt from local jurisdiction are regarded as carrying with them the territorial status of their native state, or as being for purposes of jurisdiction within their own state territory, and beyond that of the state in which they are geographically. Wherever they may go they carry with them the territory and jurisdiction of their home state. Doubtless this doctrine of exterritoriality in the extreme form may be carried too far, as many late writers contend, and some have desired another term, as immunity from jurisdiction, as more exact and correct. Such a term would have the merit of directing attention to the nature of the relation which the persons concerned sustained to the state. Hall sums up the case by saying, "If exterritoriality is taken, not merely as a rough way of describing the effect of certain immunities, but as a principle of law, it becomes, or at any rate is ready to become, an independent source of legal rule, displacing the principle of the exclusiveness of territorial sovereignty within the range of its possible operation in all cases in which practice is unsettled or contested." Exterritoriality should be viewed as based on the immunities conceded to public persons, rather than as the source of these immunities.

? 62. Exemption of Sovereigns

? 63. Exemptions of State Officers

The military attach? of an embassy is regarded as a member of the official household of the diplomatic agent.

In general the exemption from local jurisdiction which a vessel of war enjoys in a foreign state extends: to acts beginning and ending on board the vessel; to all boats, etc., of the vessel of war in charge of the crew of the vessel and upon its service; to freedom from customs and all such regulations as are not necessary for the safety of the port ; to all persons on board the vessel whether members of the crew or others. This exemption should not be taken as warranting a general exercise of the right of asylum on board vessels of war. Asylum can be granted as an act of hospitality to a political refugee, who cannot use the vessel as a base for political intrigue. Asylum to common criminals cannot be granted without offense to the foreign state. Such criminals are usually surrendered on request of the local authorities.

A commander cannot pursue deserters on shore or exercise external authority.

Hall sums up the general principle as follows, "The immunities of a vessel of war belong to her as a complete instrument, made up of vessel and crew, and intended to be used by the state for specific purposes; the elements of which she is composed are not capable of separate use for those purposes; they consequently are not exempted from the local jurisdiction."

In case of abuse of exemptions the state in whose waters the foreign ship of war is, can request it to depart; and if its request is not complied with, can use force, though the customary method is to resort to diplomatic channels.

? 64. Special Exemptions

The following rules are general, though not absolute, propositions in regard to the treatment of cases involving natives of Eastern countries and foreigners.

If a foreigner commits a crime against a native, he is generally tried in the consular court of his state.

If a foreigner commits a crime against a foreigner of another nationality, he is generally tried in the consular court of the injured foreigner.

If both parties to the crime are of the same nationality, the offenders are tried in the court of their own state.

If the crime is a grave one, such as murder, sentence cannot be passed without the sanction of the home government, and in some cases the offender is sent home for trial.

In cases involving subjects of the same state, their consular court has jurisdiction.

In cases involving foreigners of different nationalities the consular court of the defendant has jurisdiction.

In cases involving large interests, there is an appeal from the consular to the higher courts of the state.

In the East registration of the head of the family at the consulate is necessary to obtain consular protection. Local statutes provide for the execution of treaty stipulations as to consular jurisdiction.

The majority of the judges in these courts are foreigners, and the courts have competence over cases against the Egyptian government, over civil and commercial matters between foreigners and natives, and between foreigners of different nationalities. Jurisdiction for other matters remains in the consuls. These courts have been the subject of much discussion and great difference of opinion.

? 65. Extradition

Extradition is the act by which one state delivers a person accused of crime committed beyond its borders to another state for trial and punishment.

Many of the Continental states maintain that extradition is a duty binding upon all civilized states, on the ground that the prevention of crime which would result from certainty of punishment is an object to be sought by all for the general good. Grotius, Vattel, Kent, Fiore, and many other authorities maintain this position. Bluntschli, Foelix, Kl?ber, G. F. de Martens, Pufendorf, Phillimore, Wheaton and the majority of authorities make the basis of extradition the conventional agreement of treaties. The large number of extradition treaties of the last half of the nineteenth century has made the practice general. Occasionally a state has, in the absence of treaties, voluntarily surrendered fugitives from justice as an act of courtesy. The extradition of Tweed by Spain in 1876 was an act of this kind. Such cases are not common, however, and it is safe to derive the principles from the general practice as seen in treaties.

A large number of the modern writers are in favor of the extradition of subjects in the same manner as aliens, and it is evident that the drift of international practice, as shown by the treaties of the last quarter-century, is toward the refusal to grant protection to a subject who has sought refuge in his native state after committing a crime abroad.

In case the accused whose extradition is demanded is a citizen of a third state, the practice is not uniform, though the best authorities seem to favor the granting of the extradition only after communication with and assent of the third state, on the ground that the state to which the subject has fled is responsible to the third state for its treatment of him. This practice has been followed in many European treaties.

Ordinarily, not all criminals are liable to extradition, though treaty stipulations may cover cases usually excepted. Those accused of political crimes have, since the early part of the nineteenth century, been more and more generally exempt from extradition. During the last quarter of the nineteenth century few treaties have been made which do not make political criminals specifically non-extraditable. Political crimes accompanied by attacks upon the person of the sovereign or of those holding political office or position are not, however, in the above category, but are usually extraditable.

The person demanded may be placed under provisional arrest pending the full proceedings of extradition.

Reasonable evidence of the identity of the person and of the facts of the crime must be furnished by the state making the demand.

In case a person is demanded by two states, his native state and a third state in which he has committed a crime, it is customary to grant the request of the state in which he has committed the crime.

When a person is demanded on the ground of separate crimes committed in both states as above, if the crimes are equally grave, the request of his native state is granted. Sometimes, however, when the third state offers to surrender the fugitive to his native state after he has paid the penalty of his crime, the request of the third state is granted.

When the crime committed in one state is more grave than that committed in another, the request of the state maintaining the graver charge is granted.

When states other than the native state request the extradition of a fugitive, the state receiving the demand may take into consideration the gravity of the offense and the probability that a given state will, after securing justice, make it possible for other states to prosecute their claims. In cases of equal gravity priority of demand usually determines the course of action.

If the person demanded is accused of a crime in the state of refuge, the demand for his extradition may be refused pending his trial in the state of refuge.

? 66. Servitudes

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