.

to undergo a trial before Court-Martial or a Civil Tribunal, there is no reason of expediency to deviate from the ordinary proceedings of extradition. For this reason, when there exists no treaty of extradition of Military Deserters, a Government, appealed to for the rendition of the descrters of a Vessel of War, can insist on a declaration, to be given in writing, by the chief officer in command, that the individual reclaimed has committed no other offence than that of simple desertion, punishable by ordinary disciplinary punishment. If the Military Deserter is charged with any offence not mentioned by the existing Extradition-treaty affecting the parties, the State which surrenders him has the right to make the rendition of the deserter depend upon the conditio sine quâ non, of his not being prosecuted for the sake of that offence. *

4°. The costs of arrest and detention during the time limited are charged against the account of the Consul who claimed the delivery.

5°. If the deserter has committed any offences against the laws of the country, he is not delivered to the vessel until he has gone through the judicial proceedings attached to the case, nor until the judgment of the competent tribunal has had its effect in the matter.

6°. Deserters belonging to the nationality of the State in whose territory they take refuge, cannot be arrested nor be forced to join the foreign vessel from which they deserted, although they are always liable for damages, caused to the vessel through their desertion; which damages can be claimed before the competent tribunal of the State (§ 49).

*ORTOLAN. Diplomatie de la mer. Vol. I, pp. 309–313.

F. PERELS. Auslieferung desertirter Schiffsmannschaften. (Marine Verordnungsblatt, 1883).

. IX

the Sovereign

diction.

§45. The exemptions from the jurisdiction Modifications of of a State which, in certain cases, exist with re- Right of Jurisgard to foreigners within its territory, or with regard to its own subjects in places outside its territory, to which, as a rule, in ordinary circumstances, the jurisdiction of the native State would extend, can be considered under four different aspects. For the better distinction of the circumstances under which the exemption of territorial jurisdiction is either conceded or made necessary, or assumed, those different aspects may be characterized by the following terms,

viz.:

1st. Exterritoriality. 2nd. Self-jurisdiction.

3rd. Abandoned Jurisdiction.

4th. Concurrent Jurisdiction.

§ 46. Under the term Exterritoriality or Ex- Exterritoriality. tra-territoriality (jus exterritoriale) is comprehended the immunity from local jurisdiction, conceded by a Sovereign State, whether by virtue of special treaties or in consequence of generally adopted usage; granting, expressly or tacitly, to foreigners within its jurisdiction, the right to retain, wholly or to a certain extent, their own national laws, with or without their own jurisdiction, that is, by complete or incomplete Exterritoriality (§ 38).

Apart from special agreement by treaty, the established usage and comity of Nations have acknowledged complete Exterritoriality in the following cases.

1o. The Sovereign of a State, when he is, by his own free will, temporarily sojourning in the territory of another State, is exempt from all jurisdiction of that State.

2o. Ambassadors or other Public Ministers, whilst residing within the territory of the State to which they are delegated, are not amenable to local, civil or criminal jurisdiction.

3°. Foreign armies and vessels of war or the Public Vessels of a friendly State, when passing through the territorial jurisdiction or sailing or anchored in territorial waters (Comp. § 27).

Self-Jurisdiction. § 47. The Right of Self-jurisdiction, in conformity with the laws of the respective State, exists in the following cases.

1o. In the case of Vessels on the open sea, where no territorial jurisdiction exists, each Vessel is subject to the laws and jurisdiction of its own State.

2o. In the case of unappropriated soil, or in the case of territories not belonging to any community, whose jurisdiction is recognized by the Law of Nations, as constituting a government invested with legal power and jurisdiction. Such is, for instance, the case with semi-civilized or uncivilized countries, and with territories granted or sold by chiefs of semi-civilized or uncivilized countries to private individuals or to trading or colonizing companies; for under whatever form of organization they may be formed into commercial establishments, they do not constitute an integral part of any recognized independent State, which is so far possessed of an organized civilization, that its territorial jurisdiction over civilized Western nations could be admitted. In such countries now, and in those where there is no regular national government, there is no recognizeable local jurisdiction, and likewise in those places where the once recognized local jurisdic

* WHEATON. Edit. Dana, §§ 95-102. W. E. HALL. Intern. Law, p. 135-166. CALVO. Droit. Intern. Edit. 1870. Vol. I, p. 647

tion is suspended, in consequence of anarchy caused by internal disturbance or external warfare. In such countries, consequently, each nationality exercises exclusively its own jurisdiction, whether on land or on board its vessels, and this on the admitted international principle, that every Sovereign is bound to retain jurisdiction and control over its subjects and citizens, beyond its territorial jurisdiction, in so far as such control can be exercised without derogating from the Sovereignty Rights of any other recognized State or without delivering its own subjects to the lawlessness or anarchy of uncivilized or incompetent jurisdiction. *

diction.

§ 48. Abandoned Jurisdiction is always tem-Abandoned Jurisporary and confined within certain limits. It includes abandonment of protection from the State, as when the State has expressedly or tacitly renounced its right of jurisdiction and responsibility over some of its subjects, in cases such as the following:

1o. In the case of those subjects who, by the acknowledged law of war, fall into the hands of a belligerent Power, for causes of violation of neutrality, against the declared will of their own Government; in which case the neutral State is free from all responsibility, when the acts are not committed by its own agents.

* PHILLIMORE. Comm. on Intern. Law. Vol. I. Edit. 1879. §§ 339-348, &c. ORTOLAN. Règles Intern. Vol. I. Liv. 2. Ch. 13. CALVO. Droit. Int. Edit. 1870. Vol. I. Liv. VI, p. 384. The British Foreign Jurisdiction Act 1878, in its fifth section, referring to countries where there is no regular Government, enacts that "In any country or place out of Her Majesty's dominions. in or to which any of Her Majesty's subjects are for the time being resident or resorting, and which is not subject to any government from whom Her Majesty might obtain power and jurisdiction by treaty, or any of the other means mentioned in the Foreign Jurisdiction Act, 1843, Her Majesty shall, by virtue of this Act, have power and jurisdiction over Her Majesty's subjects for the time being resident in or resorting to that country or place, and the same shall be deemed power and jurisdiction had by Her Majesty therein within the Foreign Jurisdiction Act, 1843," PHILLIMORE, Com, on Intern, Law. Vol, I, p. 473,

Concurrent Jurisdiction.

2o. In the case of private vessels with their crews, which are caught committing piracy or other acts against the Law of Nations.

3°. In the case of private vessels and their crews, legally arrested in territorial waters for acts committed in violation of the territorial law of a foreign State to which the territorial waters belong. 4°. In the case of those subjects who engage in the service of a foreign State.

5o. In the case of passengers on board a foreign public vessel in any waters.

6°. In the case of persons engaged in service on board foreign private vessels on the high seas and in foreign territorial waters. *

Neither jurisdiction nor protection is abandoned in case of those subjects, who at any time, in peace or war, may have been pressed into service, against their will, under the flag of any foreign State. †

§ 49. The following are cases of Concurrent Jurisdiction:

1°. Consular Jurisdiction, with regard to the police supervision over private vessels of the respective Consul's nationality, in territorial

waters.

2o. Cases of exceptions from the adopted rule of exemption or immunity from local jurisdiction, as for instance, when persons, entitled to immunity, voluntarily make themselves parties to the lawsuit. Such is the case when contentious jurisdiction is conferred, on the Tribunal concerned, as, for instance when a Public Minister of a Foreign State voluntary submits to appear in the Court of Justice of the State to which he is accredited as the representative of his own

* W. E. HALL. Intern. Law. Edit. 1880. § 75.

HAUTEFENILLE. Des droits et des devoirs des nations neutres en temps de guerre maritime. Vol. III. p. 291.