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
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.
"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."
"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.
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.
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 ;
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
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
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
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
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
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,
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
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
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-
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
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.)
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
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.
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,
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
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,
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 :
"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 :
"(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
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
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.)
(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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