United States and Great Britain, however, entered into an agreement in regard to the protection and taking of the seals by their subjects. Other nations were also to be asked to become parties to the agreement.1 It may be regarded as finally established that fishing in the open sea is free to all, though of course states may by conventions establish regulations which shall be binding upon their subjects. § 55. Vessels At the present time every vessel must be under the jurisdiction of some state. (a) Classes. classes. Vessels are divided into two general (1) Public vessels, which include ships of war, government vessels engaged in public service, and vessels employed in the service of the state and in command of government officers. (2) Private vessels, owned by individuals and under regulations varying in different states. (b) The nationality of a public vessel is determined by its flag. In an extreme case the word of the commander is held to be sufficient proof. In case of a private vessel the flag is a common evidence, but in case of doubt the vessel must show to proper authorities its papers which certify its nationality. (c) The general exercise of jurisdiction over vessels is as follows: (1) Upon the high seas and within its own waters the jurisdiction of a state over its public and private vessels is exclusive for all cases. 1 Proceedings Fur Seal Arbitration, 1893; also 27 U. S. Sts. at Large, 947. (2) Over public vessels in foreign waters, the jurisdiction of the state to which a public vessel belongs is exclusive for all matters of internal economy. The vessels are subject to port regulations in matters of anchorage, public safety, etc. As Dana says in his note to Wheaton, "It may be considered as established law, now, that the public vessels of a foreign state coming within the jurisdiction of a friendly state, are exempt from all forms of process in private suits." In general practice the waters of all states are open to the vessels of war of all other states with which they are at peace. This is a matter of courtesy and not of right, and is in fact sometimes denied, as by the provision of the Treaty of Berlin, 1878, "The port of Antivari and all the waters of Montenegro shall remain closed to the ships of war of all nations."2 Various regulations may require, without offence, notice of arrival, probable duration of stay, rank of commander, etc. The boats, rafts, etc., attached to a vessel of war are regarded as a part of the ship while engaged in the public service. While there is some difference of opinion as to the immunities of the persons belonging to a ship of war in a foreign harbor, a generally admitted rule seems to be that while the persons of a ship of war are engaged in any public service that is not prohibited by the local authorities, such persons are exempt from local jurisdiction. The ship's crew would not be arrested and detained by local authorities for minor breaches of local 1 Note 63, § 105. 2 IV. Hertslet, 2783. regulations, though they might be sent on board their vessel with statement of reasons for such action. If the action of the crew constitutes a violation of the law of the country to which they belong, the commander of the ship may punish them, and report his action to the local authorities. In case of crimes of serious nature the commander may turn the offenders over to the local authorities, but must assure them a fair trial. The commander of a vessel is, of course, always responsible to his home government, and his action may become the subject of diplomatic negotiations. The question of right of asylum on board a ship of war has been much discussed. First, Most civilized states now afford asylum on board their ships of war to those who, in the less civilized regions, flee from slavery. Second, In cases of revolution ships of war, sometimes afford refuge to members of the defeated party, though the ship of war may not be used as a safe point from which further hostilities may be undertaken. Third, A commander may afford asylum to political refugees under circumstances which he thinks advisable. Fourth, In cases where asylum is granted to offenders whether political, or (in case of treaty right) criminal, if the request of the local authorities for the release of the criminal is refused by the commander of the ship, there is no recourse except to the diplomatic channels through extradition. The immunities granted to vessels of war are also generally conceded to other vessels strictly upon public service, e.g. carrying an ambassador to his post. The largest possible exemption is given to a vessel con 1 Art. 28, Gen. Act Brussels Conference, July 2, 1890. veying the sovereign of a state. Vessels transporting military forces in command of regularly commissioned government officers are usually granted immunities accorded to men-of-war. (3) Over private vessels in foreign waters the amount of jurisdiction claimed by different states varies. The principle which is meeting with growing favor, as shown by practice and by treaty stipulation, is stated by Chief Justice Waite in 1886 as follows, "Disorders which disturb only the peace of the ship, or those on board, are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction." 1 The position of France is, briefly, to assume no jurisdiction over foreign merchantmen within her ports save in cases where the act affects some person other than those belonging to the ship, where the local authorities are expressly called upon to interfere, or, when the order of the port is disturbed.2 The British Territorial Waters Jurisdiction Act of Aug. 28, 1878, gives jurisdiction to the authorities over all acts committed within the marine league, even though the ships are not anchored but merely passing through territorial waters. This is an extreme position, and not supported by the best authorities, even in Great Britain. The position of France, as stated above, is open to little objection either in practice or theory, and is more and 1 Wildenhus's Case, 120 U. S. 1, 18. * Bonfils, "De la compétence des tribunaux français," § 326. 8 Statutes, 41 and 42, Vict., p. 579. more becoming a form of treaty agreement, and may be considered generally approved. Where these principles are adopted the jurisdiction of breaches of order within the ship may be referred to the home consul at the port, who has jurisdiction, and if necessary may call upon the local officers to assist him in enforcing his authority. (4) In recent years special exemption from jurisdiction has been accorded to certain semipublic vessels engaged particularly in the postal and scientific service. Vessels in the postal service have by treaties been accorded special freedom from customs and port regulations; and by the Convention between Great Britain and France, Aug. 30, 1890 (Art. 9), it is agreed that in time of war such vessels shall be free from molestation till one of the states shall give formal notice that communication is at an end. § 56. Jurisdiction over Persons Nationality Under the discussion of jurisdiction of the state over persons comes the question of nationality. Nationality involves the reciprocal relations of allegiance and protection on the part of the person and state. It corresponds to citizenship in the broad sense of that terin. In general a state may exercise jurisdiction over its own subjects or citizens as it will, and the relations of a state to its citizens are matters of municipal law only. A state exercises jurisdiction over all persons within its limits except certain officers of other states by exterritoriality entitled to exemption from local jurisdiction. In some of the Eastern states citizens of Western states are by treaty exempt from certain local laws. |