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Dissenting Opinion by M. Moore

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On the present judgment as a whole, the vote, as appears by the judgment itself, stood six to six, and, the Court being equally divided, the President gave, under Article 55 of the Statute, a casting vote, thus causing the judgment as it stands to prevail. I was one of the dissenting six ; but I wish at the outset to state that my dissent was based solely on the connection of the pending case with Article 6 of the Turkish Penal Code, which I will discuss in due course. In the judgment of the Court that there is no rule of international law by virtue of which the penal cognizance of a collision at sea, resulting in loss of life, belongs exclusively to the country of the ship by or by means of which the wrong was done, I concur, thus making for the judgment on that question, as submitted by the compromis, a definitely ascertained majority of seven to five. But, as I have reached my conclusions, both on the general question and on the point on which I dissent, by a somewhat independent course of reasoning, I deem it to be my duty to deliver a separate opinion.

Under the compromis or special agreement signed at Geneva on October 12th, 1926, France and Turkey have submitted to the Permanent Court of International Justice the question of "judicial jurisdiction" (compétence judiciaire') which had arisen between the two Governments as to whether Turkey had, contrary to Article 15 of the Convention of Lausanne of 24 July 1923, respecting her judicial establishment (établissement) and jurisdiction, violated the principles of international law—and, if so, what principles—by instituting against the officer of the watch of the French steamer Lotus on her arrival at Constantinople, as well as against the commander of the Turkish steamer Boz-Kourt, criminal proceedings in pursuance of Turkish legislation in respect of a collision between the two steamers outside Turkish territorial waters, as the result of which the Boz-Kourt was lost and eight Turkish sailors and passengers on that vessel lost their lives. Should the answer be in the

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affirmative, the Court is asked to decide what pecuniary reparation is due to M. Demons, the officer of the watch, "provided, according to the principles of international law, reparation should be made in similar cases".

In presenting the case to the Court, neither of the Parties furnished a copy, authenticated or otherwise, of the decision or decisions of the Turkish tribunals or of the proceedings, including the evidence, on which such decision or decisions were based. The Court is not asked to review the proceedings of the Turkish tribunals or to examine the question whether they were in conformity with Turkish law. It is agreed that the collision took place about six miles from Cape Sigri, or perhaps three miles outside Turkish territorial waters, and the Court is asked to decide whether, by reason of the fact that the place of the collision was outside such waters, Turkey violated Article 15 of the Lausanne Convention and the principles of international law in instituting criminal proceedings in pursuance of Turkish legislation against the officer of the watch of the ship by which the Turkish steamer was sunk and lives of Turkish sailors and passengers were lost..

I will consider, first, the question of the meaning and effect of Article 15 of the Convention of Lausanne.

I.

Article 15 of the Lausanne Convention reads as follows :

"En toutes matières, sous réserve de l’article 16, les questions de compétence judiciaire seront, dans les rapports entre la Turquie et les autres Puissances contractantes, réglées conformément aux principes du droit international."
[Translation.]
"In all matters, under reserve of Article 16, questions of judicial competence shall, in the relations between Turkey and the other contracting Powers, be regulated conformably to the principles of international law."

Article 16 of the Convention, to the reservation of which Article 15 is subjected, relates to personal status, and has no bearing upon the question now before the Court.

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The Preamble of the Lausanne Convention recites that the contracting States desired to regulate conformably to the modem law of nations (droit des gens moderne) the conditions of the establishment of their respective citizens in the territories of the other, as well as certain questions relative to judicial competence (ainsi que certaines questions relatives à la competence judiciaire).

In the Case of the French Government, and in the oral arguments made in behalf of that Government before the Court, it has been contended that a limited interpretation should be given to Article 15 of the Lausanne Convention as regards the jurisdictional rights of Turkey under international law, and this contention has been supported by citations from the negotiations that led up to the conclusion of the Treaty, but the passages cited do not in my opinion have the effect which it is sought to ascribe to them. In so saying I am not to be understood as expressing an opinion on the question whether such evidence is admissible for the purpose of throwing light upon the interpretation of treaties. The language of Article 15 is simple and plain and does not stand in need of interpretation from any source outside the terms of the Treaty itself. When Article 15 speaks of "the principles of international law", it means the principles of international law as they exist between independent and sovereign States. It evidently was intended to recognize the right of Turkey to exercise her judicial jurisdiction as an independent and sovereign State, except so far as the exercise of national jurisdiction is limited by the mutual obligations of States under the law of Nations.

II.

I will next consider the broad question submitted under the compromis as to whether Turkey violated the principles of international law by instituting criminal proceedings in the present case, and it is obvious that, under the interpretation I have given to Article 15 of the Lausanne Convention, this question in effect is, whether an independent State is forbidden by international law to institute criminal proceedings against the officer of a ship of another nationality in respect of a collision on the high seas, by which one of its own ships was sunk and lives of persons on board were lost.
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The French Government maintains the affirmative in the case before the Court. In the original protest presented by the French Charge at Angora on August 11th, 1926, against the criminal prosecution of M. Demons, the ground was taken that, the collision having occurred "outside the territorial waters and jurisdiction of Turkey, the Turkish authorities have no competence to conduct any penal prosecution whatever against the personnel of a French ship exclusively justiciable for what takes place on the high seas (pour faits survenus en haute mer) by the French Courts". The protest, therefore, declares that M. Demons was "wrongfully arrested, and that he should be brought before the competent French court for any proceedings that might eventually be taken against him".

To the broad denial thus made of the right of an independent State, by means of criminal proceedings against persons voluntarily within its territory, to protect its ships and the lives of those on board outside territorial waters, against criminal acts committed and consummated on such ships by the personnel of a ship of another nationàlity, I am unable to give my assent, and in proceeding to discuss the question, I will refer to certain elementary principles.

1. It is an admitted principle of international law that a nation possesses and exercises within its own territory an absolute and exclusive jurisdiction, and that any exception to this right must be traced to the consent of the nation, either express or implied [Schooner Exchange v. McFaddon (1812), 7 Cranch 116, 136). The benefit of this principle equally enures to all independent and sovereign States, and is attended with a corresponding responsibility for what takes place within the national territory.

2. It is an equally admitted principle that, as municipal courts, the creatures of municipal law, derive their jurisdiction from that law, offences committed in the territorial jurisdiction of a nation may be tried and punished there according to the definitions and penalties of its municipal law, which, except so far as it may be shown to be contrary to international law, is accepted by international law as the law properly governing the case. (Report of Mr. Bayard, Secretary of State, to the President, case of Antonio Pelletier, January 20th, 1887, Foreign Relations of the United States, 1887, p. 606, and the numerous authorities there cited ;

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Wildenhus’ Case, 120, U.S. 1.) This principle is not contrary, but is correlative, to the principle laid down in numerous decisions of municipal courts, that international law is to be considered as forming part of the law of the land, that it is as such to be judicially administered in all cases to which it is applicable, and that municipal enactments ought not to be so construed as to violate international law, if any other construction is possible (Chief Justice Marshall, Murray v. Schooner Charming Betsey (1804), 2 Cranch, 64, 118 ; Sir William Scott, Le Louis (1817), 2 Dodson, 210, 239).

3. The principle of absolute and exclusive jurisdiction within the national territory applies to foreigners as well as to citizens or inhabitants of the country, and the foreigner can claim no exemption from the exercise of such jurisdiction, except so far as he may be able to show either : (1) that he is, by reason of some special immunity, not subject to the operation of the local law, or (2) that the local law is not in conformity with international law. No presumption of immunity arises from the fact that the person accused is a foreigner.

4. In conformity with the principle of the equality of independent States, all nations have an equal right to the uninterrupted use of the unappropriated parts of the ocean for their navigation, and no State is authorized to interfere with the navigation of other States on the high seas in the time of peace except in the case of piracy by law of nations or in extraordinary cases of self-defence (Le Louis (1817), 2 Dodson, 210, 243-244).

5. It is universally admitted that a ship on the high seas is, for jurisdictional purposes, to be considered as a part of the territory of the country to which it belongs ; and there is nothing in the law or in the reason of the thing to show that, in the case of injury to life and property on board a ship on the high seas, the operation of this principle differs from its operation on land.

The operation of the principle of absolute and exclusive jurisdiction on land does not preclude the punishment by a State of an act committed within its territory by a person at the time corporeally present in another State. It may be said that there does not exist to-day a law-governed state in the jurisprudence of which

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such a right of punishment is not recognized. France, by her own Code, asserts in general and indefinite terms the right to punish foreigners who, outside France, commit offences against the "safety" of the French State. This claim might readily be found to go in practice far beyond the jurisdictional limits of the claim of a country to punish crimes perpetrated or consummated on board its ships on the high seas by persons not corporeally on board such ships. Moreover, it is evident that, if the latter claim is not admitted, the principle of territoriality, when applied to ships on the high seas, must enure solely to the benefit of the ship by or by means of which the crime is committed, and that, if the Court should sanction this view, it not only would give to the principle of territoriality a one-sided application, but would impose upon its operation at sea a limitation to which it is not subject on land.

There is nothing to show that nations have ever taken such a view. On the contrary, in the case of what is known as piracy by law of nations, there has been conceded a universal jurisdiction, under which the person charged with the offence may be tried and punished by any nation into whose jurisdiction he may come. I say "piracy by law of nations", because the municipal laws of many States denominate and punish as "piracy" numerous acts which do not constitute piracy by law of nations, and which therefore are not of universal cognizance, so as to be punishable by all nations.

Piracy by law of nations, in its jurisdictional aspects, is sui generis. Though statutes may provide for its punishment, it is an offence against the law of nations ; and as the scene of the pirate’s operations is the high seas, which it is not the right or duty of any nation to police, he is denied the protection of the flag which he may carry, and is treated as an outlaw, as the enemy of all mankind— hostis humani generis —whom any nation may in the interest of all capture and punish. Wheaton defines piracy by law of nations as murder or robbery committed on the high seas by persons acting in defiance of all law, and acknowledging obedience to no flag whatsoever (Wheaton’s Elements, Dana’s ed., 193 et seq.). Dana, 193, Note 83, commenting on this definition, remarks that, while the attempted definitions of piracy are unsatisfactory, some being

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too wide and some too narrow, the offence cannot be made to embrace "all acts of plunder and violence... simply because done on the high seas", since as every crime may be committed at sea, piracy "might thus be extended to the whole criminal code". Hall says that all acts of piracy by law of nations have one thing in common, namely, that "they are done under conditions which render it impossible or unfair to hold any State responsible for their commission" ; that a pirate "either belongs to no State or organized political society, or by the nature of his act he has shown his intention and his power to reject the authority of that to which he is properly subject" ; that, as the "distinctive mark" of piracy is "independence or rejection of State or other equivalent authority", it is not confined to "depredations or acts of violence done animo furandi", but that a satisfactory definition "must expressly exclude all acts by which the authority of the State or other political society is not openly or by implication repudiated". (Hall, International Law, 8th ed. (1924), paragraph 81, pp. 310-311.)

It is important to bear in mind the foregoing opinions of eminent authorities as to the essential nature of piracy by law of nations, especially for the reason that nations have shown the strongest repugnance to extending the scope of the offence, because it carried with it not only the principle of universal jurisdiction but also the right of visit and search on the high seas in time of peace. For the purpose of protecting ships on the high seas, we must therefore look to a reasonable and equal interpretation and application of the principle of the territoriality of ships.

As affecting this principle, the case of John Anderson has been cited and discussed in the present proceedings. It appears that Anderson, an ordinary seaman on the American bark C.O. Whitmore, in 1870, killed the first officer while the vessel was at sea on a voyage from New York to Calcutta. On the arrival of the bark at Calcutta, the American Consul-General sought to have the culprit detained, with a view to his return to the United States for trial, but the local authorities claimed jurisdiction of the crime on the ground that Anderson was in fact a British subject. When advised

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of these facts, the Secretary of State of the United States, in order that the case might not, as he said, be admitted "as a precedent", instructed the Legation of the United States at London to call attention to what he declared to be the "universally recognized" principle that, as merchant vessels on the high seas were under the jurisdiction of the nation to which they belonged, their national tribunals had "exclusive jurisdiction" of common crimes on board such vessels on the high seas, and to represent that the "nationality of the accused" could "have no more to do with the question of jurisdiction" than if the crime had been committed "within the geographical territorial limits" of the nation whose laws were violated. In the drafting of these statements, or perhaps rather in the signing of them, the fact evidently was overlooked that all nations to some extent punish their own citizens for crimes committed within the geographical limits of other States, and that the United States itself admits and exercises this right ; and it is not strange that the. British Government, in its reply, called attention to this fact. It turned out, however, that the colonial authorities at Calcutta, in holding that the High Court of that place had jurisdiction of the case, misinterpreted the Imperial Statute under which they essayed to act, with the result that the British Government, on the strength of an opinion of the Law Officers of the Crown that the trial was a nullity, expressed regret that the extradition of the offender should have been improperly refused and stated that there was no design "to question the jurisdiction of the United States in this or any similar case". (Foreign Relations of the United States, 1879, pp. 435, 436 ; 1880, p. 481 ; quoted in Moore, Digest of International Law, I, 932-935. See also Foreign Relations, 1887, pp. 754, 770, 779.) It is evident that this case merely shows that a diversity of nationality, as between the offender and the place of the offence, may give rise to a concurrent jurisdiction. This is fully recognized in international law, and does not materially affect the question before the Court,

In considering the case before the Court, it should be observed that the question of the proper jurisdiction of the offence of murder, or manslaughter, where the injury is inflicted in one place or country, and the victim dies in another place or country, has been much

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discussed, and that different views of it have been taken at different times, even in the same country. In England it was once held that where a blow was struck in one county and death ensued in another county, the criminal could not be tried in either. This impotent result was due to the method of procedure, under which the grand jury could know only what took place in its own county ; and in order to remedy the defect the Statute of 2 and 3 Edw. VI, c. 24, A.D. 1549, was passed, to enable the criminal to be tried in either county. Whether, in the case of different countries, where the blow is struck in one and the death occurs in the other, both or either can try the person accused of murder or manslaughter, as the case may be, has been decided differently in different jurisdictions, the decision depending upon the view taken by the court of the relation of the death to the infliction of the injury. But it appears to be now universally admitted that, where a crime is committed in the territorial jurisdiction of one State as the direct result of the act of a person at the time corporeally present in another State, international law, by reason of the principle of constructive presence of the offender at the place where his act took effect, does not forbid the prosecution of the offender by the former State, should he come within its territorial jurisdiction.

This question, as applied to ships of different nationality on the open sea, was much discussed in 1877 by the judges in the case of The Queen v. Keyn, L.R. 2 Exch. Div. 63, commonly called the case of the Franconia ; but, before discussing this case and other judicial decisions bearing on the question at issue, I will make one observation on the position and effect of the decisions of municipal or national courts in international jurisprudence. The Statute of the Court (Article 38), after providing that the Court shall apply (1) international conventions, whether general or special, establishing rules expressly recognized by the States in controversy, (2) international custom, as evidence of a general practice accepted as law, and (3) the general principles of law recognized by civilized nations, further provides that the Court shall apply (4) "judicial decisions and the teachings of the most highly qualified publicists of the

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various nations", as a "subsidiary means for the determination of rules of law". These directions merely conform to the well-settled rule that international tribunals, whether permanent or temporary, sitting in judgment between independent States, are not to treat the judgments of the courts of one State on questions of international law as binding on other States, but, while giving to such judgments the weight due to judicial expressions of the view taken in the particular country, are to follow them as authority only so far as they may be found to be in harmony with international law, the law common to all countries.

In the case of the Franconia, the captain of a German steamer bearing that name was convicted in an English criminal court of manslaughter for negligently sinking the British ship Strathclyde in the open sea, but within the three-mile belt, with the consequent death by drowning of a number of persons on board the latter ship. The case was then carried before the Court for Crown Cases Reserved. In this Court various questions were discussed, but only two need here be mentioned. One, which may be called the main question, was whether the offence, committed within the three-mile belt, could be punished under British Law as it then stood ; and to this question the Court, consisting of thirteen judges, gave, by a bare majority of seven to six, a negative answer. By this conclusion, it must be admitted that the long established principle, with which the great names of Holt, Hardwicke and Mansfield were associated, that international law, in its full extent, was part of the law of England [Triquet v. Bath (1764), 3 Burrows, 1478; Emperor of Austria v. Day and Kossuth (1861), 2 Giffard, 628), suffered a temporary eclipse, while the rules of municipal law governing criminal jurisdiction received an evidently technical application. The sense of surprise, and indeed of apprehension, with which the judgment was received by the bar and the public, was expressed by Lord Cairns, then holding the high office of Lord Chancellor, who, in presenting in the House of Lords the bill by the enactment of which, under the title of the "Territorial Waters Jurisdiction Act, 1878", the law as previously understood was reestablished, declared that, while the question "at first sight" appeared to be and no doubt was a question of law,

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"he rather thought that it was a question of that which had been described as. the first law of nature—the law of self-preservation" ; and, while remarking that, but for the case of the Franconia, it would "hardly have been necessary to detain their lordships by offering any observations", said that it would have been "fortunate for the vindication of the law" if the fact had been brought to the attention of the Court that by a warrant published in 1848, under the Customs Regulations Act of that year, the limits of the Port of Dover were declared to extend three miles out to sea, thus covering the waters in which the Strathclyde was sunk. Lord Selborne, a former Lord Chancellor, supporting the view of Lord Cairns, stated that, until he read the judgment in question, "he had not supposed that there was any doubt among lawyers" as to the existence of the right of sovereignty over territorial waters (Hansard, Pari. Debates, Vol. 237, 3rd series, pp. 1601-1616). Indeed, on a careful study of the case, it is difficult to avoid the conclusion that the vote of the majority was in no small measure determined by a powerful, but composite and somewhat torrential opinion of eighty pages delivered by Sir Alexander Cockburn, then Chief Justice of the King’s Bench, the disturbing effects of which it was necessary to remove in order that the majestic stream of the common law, united with international law, might resume its even and accustomed flow. This was done by the Act of Parliament above mentioned which declared that the "rightful jurisdiction" of Her Majesty not only extended but had "always extended" over her coastal waters, and made British criminal law applicable to all offences committed on the open sea within a marine league of the coast measured from low-water mark.

The negative answer of the majority to the right of jurisdiction over territorial waters led to the discussion, subsidiarily, of the question whether, even though British law as such did not operate on foreign ships within the three-mile belt, the British Courts might not uphold the conviction on the ground that the offence was to be considered as having been committed on a British ship and therefore within British jurisdiction. An examination of the opinions of the judges on this point, so far as they definitely expressed any, will show that a mere count of hands would be altogether misleading, and that, taking together

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their reasons and their conclusions, if certain principles of law, now definitely established in England, had then been applied, the conclusions would have been different.

On the point subsidiarily discussed, Sir Robert Phillimore took the view that, as the collision was caused by defendant’s "negligence", the act by which death was caused "was not his act, nor was it a consequence immediate or direct of his act", and that, as he "never left the deck of his own ship", or sent "any missile from it to the other ship, neither in will nor in deed" could he be "considered to have been on board the British vessel". Had the offence been wilfully committed on the British ship, the language and reasoning of the learned judge lead to the conclusion that he would have voted to sustain the conviction. Lindley, J., while citing the case of United States v. Davis, 2 Sumner, 482, in which, in a case of manslaughter, Mr. Justice Story, of the Supreme Court of the United States, held that the offence was committed on board the ship on which the fatal act took effect, said he was "not satisfied on this point" but preferred to rest his judgment on the "broader ground" of jurisdiction over territorial waters and the liability to punishment under English law of "all persons, whether English or foreign, who recklessly navigate those waters and thereby cause others to lose their lives".

Denman, J., citing as "good sense and sound law", Coombes’s case,. 1 Lea Cr. C. 388, holding that a person standing on shore and shooting another in the sea who died on board a ship was within the jurisdiction of the Admiralty, declared that he saw no distinction in principle between a fatal act committed deliberately and one committed recklessly ; that the defendant in so directing his ship "as to cause her bow to penetrate the Strathclyde" and make a hole through which the water rushed in, committed a "negligent act done within British jurisdiction" ; and that he felt bound to make the point clear, because it was "of vast importance to the security of British seamen and of persons of all nations sailing on British ships, and therefore entitled to the protection of our laws, throughout the world". Lord Coleridge, Chief Justice of the Common

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Pleas, declared himself to be "though with some doubt", of the same opinion. On the strength of Reg. v. Armstrong, 13 Cox Cr. C. 184, the case would, he said, be clear, if the offence had been murder ; but he thought that "the same rule should apply in manslaughter which applies in murder", and that, on this point, "the conviction was right and should be affirmed". Grove, J., having arrived at the conclusion that as the offence, "although committed by a foreigner in a foreign ship", was "committed dehors the vessel upon a British subject in the Queen’s peace, within the three-mile belt", the English Court had jurisdiction, said it was unnecessary for him to give an opinion on the question whether the offence was "committed on board of a British ship". Amphlett, J., who also sustained the conviction on the ground of jurisdiction over the three-mile belt, said that he could "find no authority" for holding that a State could "punish a foreigner who at the time of the commission of the offence was not within the territory and consequently not owing it any allegiance", and that he therefore had, "with some doubt", come to the conclusion that "a foreigner who committed the offence while he was de facto outside the English territory", could not "be made amenable to British law". Brett, J. A., thought that, as between the two ships, the offence "was not committed on board of either", and that "there was no jurisdiction therefore given in respect of a complete offence committed locally within the British ship". Bramwell, J., took the purely aqueous view that as the death, resulting from a wrongful act on a Prussian ship, "was in the water", it could not be said to have taken place on a British ship. Kelly, C. B., declaring that "not one single instance" could be found "in the history of the world from the beginning of time" of the exercise by a nation of "criminal jurisdiction over the ships of other nations... passing through the high seas (without casting anchor or stopping) between one foreign port and another", held that the right to arrest and try the defendant in England could, in his opinion, "no more exist than the right to seize and try in England any foreigner for an act done in his own country... which act may happen to constitute a criminal offence by the law of England". On the other hand, Sir Alexander Cockburn, in whose judgment Pollock, B., and Field, J., concurred, broadly taking the ground, as Bramwell, J., had done, that, unless the defendant, when the offence was committed, "was on British territory or on board of a British ship, he could not be properly brought to
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trial under English law, in the absence of express legislation", held that the conviction could not be sustained. He also questioned the right of the British Government, under international law, to enact such legislation in respect of the open sea even within the three-mile belt. Nevertheless, he declared that, "if the defendant had purposely run into the Strathclyde", he should, on the principle laid down in Coombes’ case, "have been prepared to hold that the killing of the deceased was his act where the death took place, and consequently that... the offence... had been committed on board a British ship". Whether this applied to "the running down of another ship through negligence" was, he said, "a very different thing, and may, indeed, admit of serious doubt". But he found a greater difficulty in the fact that the defendant, at the time of the occurrence, was corporeally, not on an English ship, but on a foreign ship, and that a person who in one jurisdiction begins a continuous act which extends into another jurisdiction "cannot himself be at the time in both". Protection and "allegiance" being, as he said, "correlative", he thought that a foreigner could be made amenable to British jurisdiction only for acts done when he was corporeally "within the area over which the authority of British law extends". He therefore condemned and rejected, as "remarkable for much loose reasoning and idle talk about the law of nature", the decision in the leading American case of Adams v. The People, 1 Comstock (N. Y.) 173, in which a citizen of the State of Ohio who, through the instrumentality of an innocent agent, obtained money by false pretences in the State of New York, was held to have committed the offence in the latter State, and, being found there, was arrested, tried and punished. Mr. Justice Lush "agreed entirely" in the conclusions and "in the main with the reasons" of the Lord Chief Justice, but disassociated himself from the expressions of doubt as to the right of Parliament, without violating international law, to legislate as it might think fit for territorial waters. But none of the learned judges questioned, on the contrary they strongly emphasized, the full and equal applicability of the principle of national jurisdiction to all ships on the high seas, in determining the place where an offence is committed.
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The principle laid down in Adams v. The People is now definitely recognized and established in English law. The first step in this direction was taken in 1884 in the case of a person who, by means of false pretences, contained in letters written and sent by him from Southampton in England to certain persons carrying on business in Germany, had by that means induced persons carrying on business in Germany to part with certain goods, some of which were delivered to the prisoner’s order at places in Germany and some at places in England. It was contended on the part of the prisoner (1) that the crime was committed in England by posting the letters there and (2) that, as the preamble of the extradition treaty between Great Britain and Germany referred to "fugitives from justice", the prisoner could not be said to be a fugitive from Germany, as he had committed the crime in England and had not been in Germany. The Court, however, held unanimously, although with some doubt on the part of one of the judges on the second point, that the crime was committed in Germany and that the prisoner was a fugitive from justice within the definition of that term given in Section 26 of the Extradition Act of 1870 and in the treaty [Reg. v. Nillins, 1884, 53, L. J. 157). This decision, perhaps by reason of its local novelty, was the subject of some adverse criticism (Clarke, on Extradition, 3rd edition, p. 225), but it was reaffirmed and followed only four years ago in another case in which the prisoner was charged with obtaining goods by false pretences in Switzerland, the pretences having been made in Switzerland by a partner at the procuration of the prisoner in England. The prisoner was not physically in Switzerland at the time when the pretences were made, nor had he been there since. He was arrested in England. The case decided by Lord Hewart, Lord Chief Justice, and Justices Avory and Sankey. The Lord Chief Justice, after expressing the opinion that the words of the treaty and the statute were
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"equally satisfied whether the man had physically been present in that other country or not, if he committed the crime there", said : "I do not differ in the smallest degree from the decision in Reg. v. Nillins." Mr. Justice Avory said : "I think we are bound by Reg. v. Nillins, but in any case I am prepared to follow it, notwithstanding the criticism to which it has been subjected." Mr. Justice Sankey took the same view, saying : "I think we are bound by that decision, and moreover, in my view it is correct."

Had the principle laid down in Adams v. The People and since established in England by Reg. v. Nillins and R. v. Godfrey been established there prior to 1877, it is to be inferred that there would have been in the case of The Queen v. Keyn a substantial majority in favour of the jurisdiction in the case of death resulting from a wilful collision and probably also in that of death resulting from a collision caused by criminal negligence. In connection with the doubts expressed by some of the judges in The Queen v. Keyn as to whether a ship could properly be regarded as an instrumentality for the commission of an offence, it will be observed that the Territorial Waters Jurisdiction Act, in defining an "offence" by a "person", expressly includes an act "committed on board or by means of a foreign ship", and defines an "offence" as meaning "an act, neglect or default of such a description as would, if committed within the body of a county in England, be punishable on indictment according to the law of England for the time being in force".

That this principle embraces, not only acts done directly by means of the ship itself, but also acts done by means of boats belonging to the ship, was definitely held by the British Government in the well-known case of the British Columbian schooner Araunah, seized by the Russian authorities in 1888 outside territorial waters for the unlicensed taking of seals within such waters. The schooner was seized, probably six or more miles from the nearest land, by a steamer belonging to the Alaska Commercial Company, an American Corporation, but flying the Russian flag and having on board the superintendent of the Commander Islands, and was taken, with her officers and crew, to Petropau-

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lovski, where she was condemned on the ground that, even if she was not herself within Russian territorial waters, she was taking seals there by means of her boats, which were found fishing in such waters. Lord Salisbury, then Secretary for Foreign Affairs, after consulting the Law Officers of the Crown, instructed the British Ambassador at St. Petersburg that Her Majesty’s Government were "of the opinion that, even if the Araunah at the time of the seizure was herself outside the three-mile limit, the fact that she was by means of her boats carrying on fishing within Russian waters without the prescribed license warranted her seizure and confiscation according to the provisions of the municipal law regulating the use of those waters", and that they did not, as at present advised, "propose to address any further representation to the Russian Government in regard to this case". [State Papers, vol. 82, pp. 1043-1059). This precedent was followed in subsequent cases of a similar kind. [Parl. Paper, Russia, No. 3, 1893.)

Recurring to the jurisdictional limitation sought to be based on the distinction between murder and manslaughter, I will cite a leading and pertinent decision which, although given nearly sixty years ago, has not been internationally contested. I refer to the case of Commonwealth v. Macloon et al., 101 Mass., 1, decided by the Supreme Judicial Court of Massachusetts in 1869. In this case the defendants, one a citizen of the State of Maine and the other a British subject, were convicted in the Superior Court of Suffolk County, Massachusetts, of the manslaughter of a man who died in that county, in consequence of injuries inflicted on him by the defendants in a British merchant ship on the high seas. The defendants were tried and convicted under a Massachusetts Statute which provided that "if a mortal wound is given, or other violence or injury inflicted, or poison administered on the high seas, or on land either within or without the limits of this State, by means whereof death ensues in any county thereof, such offence may be prosecuted and punished in the county where the death happens". (Gen. Stats., c. 171, par. 19.) The decision of the Supreme Judicial Court was delivered by Gray, J., later a Justice of the Supreme Court of the United States, who, speaking for the Court, stated that the principal question in the case was "that of jurisdiction, which touches the sovereign power of the Commonwealth to bring

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to justice the murderers of those who die within its borders". It was not, he said, pretended that a foreigner could be punished in Massachusetts for an act done by him elsewhere ; but the Court held that, where a mortal blow was given outside and death ensued within the State, the offender committed a crime there. He further said : "Criminal homicide consists in the unlawful taking by one human being of the life of another in such a manner that he dies within a year and a day from the time of the giving of the mortal wound. If committed with malice, express or implied by law, it is murder ; if without malice, it is manslaughter... The unlawful intent with which the wound is made or the poison administered attends and qualifies the act until its final result. No repentance or change of purpose, after inflicting the injury or setting in motion the force by means of which it is inflicted, will excuse the criminal. If his unlawful act is the efficient cause of the mortal injury, his personal presence at the time of its beginning, its continuance, or its result is not essential."

In reality, the view that national jurisdiction, in the case of a foreigner not corporeally present, depends on the will of the criminal to commit his act within the particular jurisdiction is opposed to authority and is obsolete and obviously fallacious, in the case of manslaughter as well as in other cases. In the case of criminal homicide, the element of will affects the question of the degree of the offence and the penalty to be imposed rather than the question of the place where the offence is to be considered as having been committed. Manslaughter, as has been well said, may come within a hair’s breadth of murder ; it may be a nice and difficult question to decide, depending upon the presence or absence of "malice prepense", on considerations of recklessness, or of negligence, gross or slight, all of which affect the quality of the act, but not the place of its consummation. It is a notorious fact that, at common law, a defendant indicted for a certain offence may be convicted of a cognate offence of a less aggravated nature, if the words of the indictment are wide enough to cover the latter, so that, on an indictment for murder, a defendant may be convicted of manslaughter. (Halsbury’s Laws of England (1909), Vol. 9, p. 971, citing Mackalley’s case (1611), 9 Coke’s Reports, 65 a., 67 b.)

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And yet, on the theory that jurisdiction depends upon the will of the criminal as to the place at which his act is to take effect, rather than upon the direct result of his criminal activity, a person who, firing across a boundary, killed his victim would, though validly indicted for murder in the place where the shot took effect, be entitled to his discharge on jurisdictional grounds if the jury should find that the killing was negligent. Such a theory would lead to other astonishing consequences. For instance, a person who placed an infernal machine in the pocket or in the automobile of a person whom he intended to injure would be exempt from punishment in the place where the injury occurred if his victim should, before the explosion took place, unexpectedly cross an international boundary. The fact may be mentioned that the master of the Araunah alleged, in exculpation of the ship, that the small boats unintentionally drifted into Russian territorial waters in a fog. It may be that the British Government did not believe him, but, had his assertion been credited, it is most improbable that that Government would have advanced the contention that the schooner was exempt from seizure because her boats were fishing in Russian waters negligently.

The case of the Costa Rica Packet, so strongly urged in support of the claim of exclusive jurisdiction of the country to which an offending ship belongs, will upon examination be found to be valueless as an authority for that contention. The Costa Rica Packet, a British whaler, belonging to Sydney, New South Wales, sighted on January 24th, 1888, when perhaps 30 miles from the nearest land, what at first appeared to be a log, but was afterwards found to be a small water-logged derelict prauw (native Malayan boat) of about a ton’s burden. Two boats were put off, which, finding goods aboard the prauw, towed it alongside the ship, and there were then transferred from the prauw to the deck of the Costa Rica Packet 10 cases of gin, 3 cases of brandy, and a can of kerosene oil. The prauw was then cast loose, being of no value. The gin and brandy were damaged by sea water ; but the ship’s crew, by indulging in the admixture, soon became drunk and got to fighting, and the spirits were by order of the captain thrown overboard, except a small quantity which the crew secreted. During the next four

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years the ship from time to time visited Dutch East Indian ports ; but in November, 1891, at Ternate, where the ship had put in for provisions, the captain was arrested and sent to Macassar, 1000 miles away, on a charge of theft, in having seized the prauw and maliciously appropriated the goods in it. The warrant charged that the alleged criminal act was committed not more than three miles from land, but the evidence showed that it was at least fifteen or twenty. The captain was held in prison at Macassar until November 28th, 1891, when he was released through the intercession of the governor of the Straits Settlements. The British Government preferred a diplomatic claim for damages, and, after a prolonged discussion, the two Governments signed on May 16th, 1895, a convention of arbitration by which they agreed to invite the government of a third Power to select the arbitrator. The selection eventually fell to the Russian Government, which named as arbitrator M. F. de Martens, counsellor to the Russian Foreign Office. In his award, dated February 13th (25th), 1897, M. de Martens, after reciting that the prauw, when taken possession of, not only was "floating derelict at sea" but was "incontrovertibly outside the territorial waters of the Dutch Indies" ; that "the appropriation of the cargo of the aforesaid prauw... having taken place on the high seas, was only justiciable by the English tribunals, and in nowise by the Dutch tribunals" ; that "even the identity of the above-mentioned derelict" with the prauw claimed by a Dutch subject was "nowise proved", and that all the evidence went to prove "the absence of any real cause for arresting" the captain of the Costa Rica Packet, allowed damages for his arrest and detention, and for the consequent losses of the ship’s owners, officers and crew. In his recitals the arbitrator also stated that "the right of sovereignty of the State over territorial waters is determined by the range of cannon measured from low-water mark", and that "on the high seas even merchant vessels constitute detached portions of the territory of the State whose flag they bear, and, consequently, are only justiciable by their respective national authorities for acts committed on the high seas". As to the first recital, it may be observed that the arbitrator’s statement regarding the extent of territorial waters, if it meant the range of cannon in 1897, was not in conformity with international law as then or as now existing. The second recital may be accepted as affirming the general principle of the quasi-territorial jurisdiction of
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nations over their ships at sea ; but it is also to be taken in connection with the arbitrator’s other recital that the prauw, when found, was "derelict". The word "derelict", in maritime law, means "a boat or vessel found entirely deserted or abandoned on the sea, without hope or intention of recovery or return by the master or crew, whether resulting from wreck, accident, necessity, or voluntary abandonment". (Black’s Law Dictionary, 2nd ed., 1910, s. v. "Derelict". See, to the same effect, Bouvier’s Law Dictionary and the cases there cited, and the Oxford Dictionary.)

Without regard to any question as to the proper disposition of goods found derelict at sea, and the right of the owner to claim them on payment of salvage (The King v. Property Derelict (1825), 1 Haggard’s Adm. 383), it might not be unreasonable to maintain that, on the facts as the arbitrator declared them to be, the principle of territoriality and national jurisdiction could no more be invoked for the protection of the derelict prauw than it could have been for the floating log which the prauw was at first supposed to be ; but, in order to determine the weight to be given to what the arbitrator said as to the operation of the principle of territoriality at sea, it is not necessary to decide that question. The prauw either was to be treated as a subject for the application of the principle of national jurisdiction, or it was not to be so treated. If the arbitrator considered the principle to be applicable, he violated it in holding that the persons, no matter from what quarter they came, who boarded the prauw, took possession of her and transferred her cargo to the ship, did not in so doing place themselves under the dominion of Dutch laws, and his ruling on this point cannot be accepted as law. If, on the other hand, he did not consider the principle of territoriality to be applicable to the prauw, there was no room for jurisdictional competition, and his decision has no bearing on the question now before the Court.

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I will next consider three cases discussed in the documents before the Court and mentioned in its judgment. The first is that of the collision between the ships Ange-Schiaffino and Gironde, in 1904, tried by the French courts in Algiers. The collision took place 7 miles off the Algerian coast, and the Gironde was sunk with loss of life. The Correctional Court at Bone, by which the two captains, one of whom was of Italian origin, were jointly tried for involuntary homicide, overruled an exception to the jurisdiction of the Court based on the ground that the collision occurred outside territorial waters ; and this decision was affirmed on appeal by the Cour d’Alger. In the Turkish Mémoire, the case is cited as relating to ships of different nationality, one French, the other foreign; but in a letter from the procureur général near the Cour d’Alger of May 6th, 1927, addressed to the Agent of the French Government, it is stated that both: ships were French. The case therefore need not be further considered in this place. (See Turkish Mémoire, pp. 15-17, 22-23, citing Clunet, Journal du Droit international privé, vol. 36 (1909), p. 735 ; French Contre-Mémoire, pp. 13, 15, 42.)

The second case is that of the ships Ortigia and Oncle-Joseph, one Italian and the other French, which collided on the high seas off the Italian coast in 1880. The Oncle-Joseph was sunk, with much loss of life. The survivers from the Oncle-Joseph, including the captain, were taken on the Ortigia to Leghorn, where the two captains were jointly prosecuted for want of skill and failure to observe the rules of navigation. The Court at Leghorn, finding that the collision was due to the fault of the captain of the French ship, condemned him to four months’ imprisonment, two months’ suspension of rank, and payment of damages. This decision was affirmed on appeal by the Court of Florence in 1882. Subsequently, however, the French Court of Aix declined to enforce the judgment in France on the ground that, the offence having been committed on the high seas, the captain of the Oncle-Joseph was not justiciable by the tribunal at Leghorn, and that, besides, the article of the Italian Code on which the prosecution was based was exclusively applicable to Italian ships and sailors. It does not appear that the case gave rise to diplomatic correspondence. (See Turkish Mémoire, pp. 16-17, citing Clunet, 1885, p. 287 ; French Mémoire, citing Clunet,

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1885, p. 286, and Sirey, 1887, 2, 217 ; French Contre-Mémoire, pp. 16, 21, 38.)

In the third case, a tender, in tow of the German steamer Ekbatana, on the night of December 14th-15th, 1912, ran into the Belgian lightship West-Hinder, moored on the high seas about 19 miles from the Belgian coast. The West-Hinder was sunk, and her crew of ten men perished. The Correctional Court at Bruges entertained a criminal prosecution of the captain of the German ship, on the charge of having negligently caused the death of the crew of the West-Hinder. The case does not appear to have given rise to any diplomatic representations. The Agent of the French Government, however, lays emphasis upon the fact that the Belgian court in its judgment refers to the lightship as having been installed by the Belgian State in the interest of the safety of navigation, with due notice abroad, and as having been entitled, both as an extension of Belgian territory and as a ship engaged in the public service of the State, to special protection and immunities. For this reason the Agent of the French Government maintains that the case was not altogether comparable with that of a Belgian commercial vessel from the point of view of the competence of the Belgian Government to deal with facts affecting it. (See Turkish Mémoire, pp. 18-21, citing Clunet, 1912, p. 1328 ; French Contre-Mémoire, pp. 17-21, with additional citations.) But, while it is undoubtedly true that public ships enjoy, not only at sea but also in foreign ports, jurisdictional immunities to which a merchant vessel is not entitled, it is necessary to point out that those immunities are not considered as conferring on such ships, or on the countries to which they belong, jurisdiction over the vessels, public or private, of other nations on the high seas.

In the discussion of questions similar to that now before the Court, considerations of convenience have been invoked on the one side and on the other. This was so in the case of The Queen v. Keyn, where those who were against sustaining the conviction strongly urged the inconveniences that might ensue from holding the entire body of English penal law to be applicable to foreign ships in territorial waters ; and the force of the argument was recognized in the clause of the Territorial Waters Jurisdiction Act, requiring in the case of a foreign prisoner a certificate by a Principal

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Secretary of State that in his opinion the trial of the prisoner is expedient. Immense quantities of shipping, bound from one foreign port to another, daily pass, on their regular course, through the territorial waters of third States ; and yet international law permits such third States to enforce their municipal law upon such shipping. On the other hand, in the case of many countries with long coast lines, a vast tonnage in the coastwise trade daily passes, in regular course, in and out of the three-mile belt ; and is it to be said that, save in the extreme and exceptional case of piracy by law of nations, international law forbids the country, to which this coastwise shipping belongs, to take cognizance of criminal acts done in or upon it by or from foreign ships, When it is temporarily outside territorial waters, should the offenders afterwards voluntarily come within such waters ? A collision may result from chance, from negligence, or from a wilful act. By the rules of navigation a ship is required to avoid a collision if it can do so, even though the other ship is faultily navigated ; and a navigating officer who, from anger or other cause, violated this rule, would, I assume, be chargeable with something more than negligence. The importance of such considerations is not lessened by the increase in the number and size of the ships and the vast increase in the number of persons daily transported at sea. Nor is the advantage of a trial near the scene of a disaster, with witnesses on both sides available, over a proceeding in a distant place, perhaps with the witnesses on only one side present, to be overlooked. More than a hundred years ago a great judge, of unsurpassed experience in Admiralty cases, commented upon the "great discordance of evidence" frequently existing in such cases as to the person at fault, and upon the fact that the testimony of the witnesses was "apt to be discoloured by their feelings and the interest which they take in the success of the cause". (Sir William Scott, case of the Woodrop Sims (1815), 2 Dodson, 83.)

It is well settled that a State is bound to use due diligence to prevent the commission within its dominions of criminal acts against another nation or its people (United States v. Arjona,

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(1887), 120 U. S. 479), and if the principle of territorial jurisdiction, as it exists in respect of ships on the high seas, has a special and one-sided operation in favour of the nation to which the offending ship belongs, one might expect to find a corresponding special liability. But this is not the case. In the negotiation of the Treaty concluded between the United States and Great Britain on February 29th, 1892, for the arbitration of the fur-seal question, the United States proposed to empower the arbitrators to award compensation not only to British subjects whose vessels should be found to have been unwarrantably seized, but also to the United States, for any injuries resulting to the United States, or its lessees of the seal islands, by reason of the killing of seals in Behring Sea, outside territorial waters, "by persons acting under the protection of the British flag", if such killing should "be found to have been an infraction of the rights of the United States". (Blue Book, "United States, No. 3 (1892)", 72.) To this proposal the British Government objected on the ground that it appeared "to imply an admission on their part of a doctrine respecting the liability of governments for the acts of their nationals or other persons sailing under their flag on the high seas, which is not warranted by international law, and to which they cannot subscribe". The claim was not pressed, the discussion of it ending with the insertion in the treaty of a stipulation to the effect that, the Parties having been unable to agree on the point, either Party might submit to the tribunal "any question of fact involved in said claims, and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation".

III.

I now come to Article 6 of the Turkish Penal Code. The judgment of the Court expresses no opinion on the question whether the provisions of that article are in conformity with the rules of inter-
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national law. This abstention appears to be based (1) upon the fact that the article is not mentioned in the compromis, and (2) on the view that an error in the choice of the legal provision applicable to the case was essentially a matter of internal law which could affect international law only so far as a conventional rule of the possibility of a denial of justice should enter into account.

The compromis asks the Court to find whether Turkey violated international law "by instituting... joint criminal proceedings in pursuance of Turkish legislation" (en vertu de la legislation turque) against the watch officer of the Lotus. No doubt this may be so interpreted as to mean that the Court is asked solely to say whether Turkey was precluded from taking any criminal proceedings whatever against the officer. But the compromis speaks of proceedings under Turkish legislation, and, although the Court has not been furnished with a copy of the actual proceedings, Article 6 is, as an integral part of them, before the Court in the documents submitted by the Parties, and forms the subject of much of their arguments. This being so, I am unable to concur in the view that the question of the international validity of the article is not before the Court under the terms of the compromis.

Article 6 reads as follows :

[Translation.]
"Any foreigner who, apart from the cases contemplated by Article 4, commits an offence abroad to the prejudice of Turkey or of a Turkish subject, for which offence Turkish law prescribes a penalty involving loss of freedom for a minimum period of not less than one year, shall be punished in accordance with the Turkish Penal Code provided that he is arrested in Turkey. The penalty shall however be reduced by one third and instead of the death penalty twenty years of penal servitude shall be awarded.

"Nevertheless, in such cases, the prosecution will only be instituted at the request of the Minister of Justice or on the complaint of the injured Party.

"If the offence committed injures another foreigner, the guilty person shall be punished at the request of the Minister of Justice, in accordance with the provisions set out in the first paragraph of this article, provided however that :

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"(1) the article in question is one for which Turkish law prescribes a penalty involving loss of freedom for a minimum period of three years ;

"(2) there is no extradition treaty, or that extradition has not been accepted either by the government of the locality where the guilty person has committed the offence or by the government of his own country."

The Court, not being empowered by the compromis to inquire into the regularity of the proceedings under Turkish law, or into the question of the applicability of the terms of Article 6 to the facts in the case, must take the article and its jurisdictional claim simply as they stand. The substance of the jurisdictional claim is that Turkey has a right to try and punish foreigners for acts committed in foreign countries not only against Turkey herself, but also against Turks, should such foreigners afterwards be found in Turkish territory. In saying that Turkey makes this claim, I intend nothing invidious. The same claim is made by a number of other countries, and it is from the codes of these countries that Article 6 was taken. But, without regard to the source from which the claim was derived, I cannot escape the conclusion that it is contrary to well-settled principles of international law.

Without entering at this time into an elaborate exposition of the reasons on which this conclusion is based, I will quote from Hall, an eminent authority on international law, the following passage :

"The municipal law of the larger number of European countries enables the tribunals of the State to take cognizance of crimes committed by foreigners in foreign jurisdiction. Sometimes their competence is limited to cases in which the crime has been directed against the safety or high prerogatives of the State inflicting the punishment, but it is sometimes extended over a greater or less number of crimes directed against individuals... Whether laws of this nature are good internationally ; whether, in other words, they can be enforced adversely to a State which may choose to object to their exercise, appears, to say the least, to be eminently doubtful. It is indeed difficult to see on what they can be supported. It would seem that their theoretical justification, as against an objecting country, if any is alleged at all, must be that the exclusive

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territorial jurisdiction of a State gives complete control over all foreigners, not protected by special immunities, while they remain on its soil. But to assert that this right of jurisdiction covers acts done before the arrival of the foreign subjects in the country is in reality to set up a claim to concurrent jurisdiction with other States as to acts done within them, and so to destroy the very principle of exclusive territorial jurisdiction to which the alleged right must appeal for support." (Hall, International Law, 8th edition (1924), paragraph 62, pp. 261, 263, citing Westlake (Peace, 261-263), Appendices (I, paragraph 147), Fauchille, paragraphs 264, 267.)

It will be observed that Hall founds his disapproval of the claim mainly on its assertion by one nation of a right of concurrent jurisdiction over the territory of other nations. This claim is defended by its advocates, and has accordingly been defended before the Court, on what is called the "protective" principle ; and the countries by which the claim has been espoused are said to have adopted the "system of protection".

What, we may ask, is this system ? In substance, it means that the citizen of one country, when he visits another country, takes with him for his "protection" the law of his own country and subjects those with whom he comes into contact to the operation of that law. In this way an inhabitant of a great commercial city, in which foreigners congregate, may in the course of an hour unconsciously fall under the operation of a number of foreign criminal codes. This is by no means a fanciful supposition ; it is merely an illustration of what is daily occurring, if the "protective" principle is admissible. It is evident that this claim is at variance not only with the principle of the exclusive jurisdiction of a State over its own territory, but also with the equally well-settled principle that a person visiting a foreign country, far from radiating for his protection the jurisdiction of his own country, falls under the dominion of the local law and, except so far as his government may diplomatically intervene in case of a denial of justice, must look to that law for his protection.

No one disputes the right of a State to subject its citizens abroad to the operations of its own penal laws, if it sees fit to do so. This concerns simply the citizen and his own government, and no other

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government can properly interfere. But the case is fundamentally different where a country claims either that its penal laws apply to other countries and to what takes place wholly within such countries or, if it does not claim this, that it may punish foreigners for alleged violations, even in their own country, of laws to which they were not subject.

In the discussions of the present case, prominence has been given to the case of the editor Cutting, a citizen of the United States, whose release was demanded when he was prosecuted in Mexico, under a statute precisely similar in terms to Article 6 of the Turkish Penal Code, for a libel published in the United States to the detriment of a Mexican. It has been intimated that this case was "political", but an examination of the public record (Foreign Relations of the United States, 1887, p. 751 ; idem, 1888, II, pp. 1114, 1180) shows that it was discussed by both Governments on purely legal grounds, although in the decision an appeal, by which the prisoner was discharged from custody, his release was justified on grounds of public interest. In its representations to the Mexican Government, the Government of the United States, while maintaining that foreigners could not be "protected in the United States by their national laws", and that the Mexican courts might not, without violating international law, "try a citizen of the United States for an offence committed and consummated in his own country, merely because the person offended happened to be a Mexican", pointed out that it nowhere appeared that the alleged libel "was ever circulated in Mexico so as to constitute the crime of defamation under the Mexican law", or "that any copies were actually found... in Mexico". The United States thus carefully limited its protest to offences "committed and consummated" within its territory ; and, in conformity with this view, it was agreed in the extradition treaty between the two countries of February 22nd, 1889, that except in the case of "embezzlement or criminal malversation of public funds committed within the jurisdiction of either Party by public officers or depositaries", neither Party would "assume jurisdiction in the punishment of crimes committed exclusively within the territory of the other". (Moore, Digest of International Law, II, pp. 233, 242.)

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For the reasons which I have stated, I am of opinion that the criminal proceedings in the case now before the Court, so far as they rested on Article 6 of the Turkish Penal Code, were in conflict with the following principles of international law :

(1) that the jurisdiction of a State over the national territory is exclusive ;

(2) that foreigners visiting a country are subject to the local law, and must look to the courts of that country for their judicial protection ;

(3) that a State cannot rightfully assume to punish foreigners for alleged infractions of laws to which they were not, at the time of the alleged offence, in any wise subject.

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