§ 443. Armed forces are organs of the State which maintains them, because such forces are created for the purpose of maintaining the independence, authority, and safety of the State. And in this respect it matters not whether armed forces are at home or abroad, for they are organs of their home State even when on foreign territory, provided only they are there in the service of their State and not for their own purposes. For if a body of armed soldiers enters foreign territory without orders from, or without being otherwise in the service of, its State, but on its own account, be it for pleasure or for the purpose of committing acts of violence, it is no longer an organ of its State.

§ 444. Besides war, there are several occasions for armed forces to be on foreign territory in the service of their home State. Thus, a State may have a right to keep troops in a foreign fortress or to send troops through foreign territory. Thus, further, a State which has been victorious in war with another may, after the conclusion of peace, occupy a part of the territory of its former opponent as a guarantee for the execution of the Treaty of Peace. After the Franco-German war, for example, the Germans in 1871 occupied a part of the territory of France until the final instalments of the indemnity for the war costs of five milliards of francs were paid. It may also be a case of necessity for the armed forces of a State to enter foreign territory and commit acts of violence there, such as the British did in the case of the Caroline.[785]

§ 445. Whenever armed forces are on foreign territory in the service of their home State, they are considered exterritorial and remain, therefore, under the jurisdiction of the latter. A crime committed on foreign territory by a member of the force cannot be punished by the local civil or military authorities, but only by the commanding officer of the forces or by other authorities of its home State.[786] This is, however, valid only in case the crime is committed either within the place where the force is stationed, or anywhere else where the criminal was on duty. If, for example, soldiers belonging to a foreign garrison of a fortress leave the rayon of the latter, not on duty but for recreation and pleasure, and then and there commit a crime, the local authorities are competent to punish them.

§ 446. An excellent example of the position of armed forces abroad is furnished by the case of McLeod,[787] which occurred in 1841. Alexander McLeod, who was a member of the British force sent by the Canadian Government in 1837 into the territory of the United States for the purpose of capturing the Caroline, a boat equipped for crossing into Canadian territory and taking help to the Canadian insurgents, came in 1841 on business to the State of New York, and was arrested and indicted for the killing of one Amos Durfee, a citizen of the United States, on the occasion of the capture of the Caroline. The English Ambassador at Washington demanded the release of McLeod, on the ground that he was at the time of the alleged crime a member of a British armed force sent into the territory of the United States by the Canadian Government acting in a case of necessity. McLeod was not released, but had to take his trial; he was, however, acquitted on proof of an alibi. It is of importance to quote a passage in the reply of Mr. Webster, the Secretary of Foreign Affairs of the United States, to a note of the British Ambassador concerning this affair. The passage runs thus:—"The Government of the United States entertains no doubt that, after the avowal of the transaction as a public transaction, authorised and undertaken by the British authorities, individuals concerned in it ought not ... to be holden personally responsible in the ordinary tribunals for their participation in it."

§ 446a. Another interesting example is the Casa Blanca incident. On September 25, 1908, six soldiers—three of them Germans—belonging to the French Foreign Legion which formed part of the French troops at Morocco, deserted at Casa Blanca and asked for and obtained the protection of the local German consul, who intended to take them on board a German vessel lying in the harbour of Casa Blanca. On their way to the ship, however, they were forcibly taken by the French out of the custody of the secretary of the German Consulate and a native soldier in the service of the consulate who were conducting them. Considering all Germans in Morocco without exception exterritorial and under the exclusive jurisdiction of her consul, Germany complained of this act of force and demanded that those of the deserters concerned who were German subjects should be given up to her by France, acknowledging the fact that the consul had no right to extend his protection to other than German subjects. France refused to concede this demand, maintaining that the individuals concerned had even after their desertion remained under the exclusive jurisdiction of their corps, which formed part of a French force occupying foreign territory. As the parties could not settle the conflict diplomatically, they agreed, on November 24, 1908, to bring it before the Hague Court of Arbitration, which gave its award[788] on May 22, 1909, on the whole in favour of France. The Court considered: that there was a conflict of jurisdiction with regard to the German deserters because they were as German subjects under the exclusive jurisdiction of the German Consulate, but as deserters from the French Foreign Legion under the exclusive jurisdiction of the French Army of Occupation; that under the circumstances of the case the jurisdiction of the Army of Occupation should have the preference; that nevertheless the German consul was not to be blamed for his action on account of the fact that in a country granting exterritorial jurisdiction to foreigners the question of the respective competency of the consular jurisdiction and of the jurisdiction of an Army of Occupation was very complicated and had never been settled in an express, distinct, and universally recognised manner; that, since the German deserters were found at the port under the actual protection of the German Consulate and this protection was not manifestly illegal, the actual situation should, as far as possible, have been respected by the French military authority; that therefore the French military authorities ought to have confined themselves to preventing the embarkation and escape of the deserters, and, before proceeding to their arrest and imprisonment, to have offered to leave them in sequestration of the German Consulate until the question of the competent jurisdiction had been decided. The Court did not, however, decree the restitution on the part of France of the three German deserters to Germany.[789]

II MEN-OF-WAR IN FOREIGN WATERS

Hall, §§ 54-55—Halleck, I. pp. 215-230—Lawrence, §§ 107-109—Phillimore, II. §§ 344-350—Westlake, pp. 256-259—Taylor, § 261—Moore, II. §§ 252-256—Twiss, I. § 165—Wheaton, § 100—Bluntschli, § 321—Stoerk in Holtzendorff, II. pp. 434 and 446—Perels, §§ 11, 14, 15—Heilborn, "System," pp. 248-279—Rivier, I. pp. 333-335—Bonfils, Nos. 614-623—Mérignhac, II. pp. 554-564—Calvo, III. §§ 1550-1559—Fiore, I. Nos. 547-550—Testa, p. 86—Jordan, R.I. 2nd Ser. X. (1908), p. 343.

§ 447. Men-of-war are State organs just as armed forces are, a man-of-war being in fact a part of the armed forces of a State. And respecting their character as State organs, it matters nought whether men-of-war are at home or in foreign territorial waters or on the High Seas. But it must be emphasised that men-of-war are State organs only as long as they are manned and under the command of a responsible officer, and, further, as long as they are in the service of a State. A shipwrecked man-of-war abandoned by her crew is no longer a State organ, nor does a man-of-war in revolt against her State and sailing for her own purposes retain her character as an organ of a State. On the other hand, public vessels in the service of the police and the Custom House of a State; further, private vessels chartered by a State for the transport of troops and war materials; and, lastly, vessels carrying a head of a State and his suite exclusively, are also considered State organs, and are, consequently, in every point treated as though they were men-of-war.

§ 448. The character of a man-of-war or of any other vessel treated as a man-of-war is, in the first instance, proved by their outward appearance, such vessels flying the war flag and the pennant of their State.[790] If, nevertheless, the character of the vessel seems doubtful, her commission, duly signed by the authorities of the State which she appears to represent, supplies a complete proof of her character as a man-of-war. And it is by no means necessary to prove that the vessel is really the property of the State, the commission being sufficient evidence of her character. Vessels chartered by a State for the transport of troops or for the purpose of carrying its head are indeed not the property of such State, although they bear, by virtue of their commission, the same character as men-of-war.[791]

§ 449. Whereas armed forces in time of peace have no occasion to be abroad, cases of a special right from a convention and cases of necessity excepted, men-of-war of all maritime States possessing a navy are constantly crossing the High Seas in all parts of the world for all kinds of purposes. Occasions for men-of-war to sail through foreign territorial waters and to enter foreign ports necessarily arise therefrom. And a special convention between the flag-State and the littoral State is not necessary to enable a man-of-war to enter and sail through foreign territorial waters and to enter a foreign port. All territorial waters and ports of the civilised States are, as a rule, quite as much open to men-of-war as to merchantmen of all nations, provided they are not excluded by special international stipulations or special Municipal Laws of the littoral States. On the other hand, it must be emphasised that, provided special international stipulations or special treaties between the flag-State and the littoral State do not prescribe the contrary in regard to one port or another and in regard to certain territorial waters, a State is in strict law always competent to exclude men-of-war from all or certain of its ports, and from those territorial waters which do not serve as highways for international traffic.[792] And a State is, further, always competent to impose what conditions it thinks necessary upon men-of-war which it allows to enter its ports, provided these conditions do not deny to men-of-war their universally recognised privileges.

§ 450. The position of men-of-war in foreign waters is characterised by the fact that they are called "floating" portions of the flag-State. For at the present time a customary rule of International Law is universally recognised that the owner State of the waters into which foreign men-of-war enter must treat them in every point as though they were floating portions of their flag-State.[793] Consequently, a man-of-war, with all persons and goods on board, remains under the jurisdiction of her flag-State even during her stay in foreign waters. No official of the littoral State is allowed to board the vessel without special permission of the commander. Crimes committed on board by persons in the service of the vessel are under the exclusive jurisdiction of the commander and the other home authorities. Individuals who are subjects of the littoral State and are only temporarily on board may, although they need not, be taken to the home country of the vessel, to be there punished if they commit a crime on board. Even individuals who do not belong to the crew, and who after having committed a crime on the territory of the littoral State have taken refuge on board, cannot be forcibly taken off the vessel; if the commander refuses their surrender, it can be obtained only by means of diplomacy from the home State.

On the other hand, men-of-war cannot do what they like in foreign waters. They are expected voluntarily to comply with the laws of the littoral States with regard to order in the ports, the places for casting anchor, sanitation and quarantine, customs, and the like. A man-of-war which refuses to do so can be expelled, and, if on such or other occasions she commits acts of violence against the officials of the littoral State or against other vessels, steps may be taken against her to prevent further acts of violence. But it must be emphasised that even by committing acts of violence a man-of-war does not fall under the jurisdiction of the littoral State. Only such measures are allowed against her as are necessary to prevent her from further acts of violence.[794]

§ 451. Of some importance is the unsettled question respecting the position of the commander and the crew of a man-of-war in foreign ports when they are on land.

The majority of publicists distinguish between a stay on land in the service of the man-of-war and a stay for other purposes.[795] The commander and members of the crew on land officially in the service of their vessel, to buy provisions or to make other arrangements respecting the vessel, remain under the exclusive jurisdiction of their home State, even for crimes they commit on the spot. Although they may, if the case makes it necessary, be arrested to prevent further violence, they must at once be surrendered to the vessel. On the other hand, if they are on land not officially, but for purposes of pleasure and recreation, they are under the territorial supremacy of the littoral State like any other foreigners, and they may be punished for crimes committed ashore.

There are, however, a number of publicists[796] who do not make this distinction, and who maintain that commanders or members of the crew whilst ashore are in every case under the local jurisdiction.

III AGENTS WITHOUT DIPLOMATIC OR CONSULAR CHARACTER

Hall, §§ 103-104*—Moore, IV. § 623—Bluntschli, §§ 241-243—Ullmann, §§ 66-67—Heffter, § 222—Rivier, I. § 44—Calvo, III. §§ 1337-1339—Fiore, II. Nos. 1188-1191—Martens, II. § 5—Adler, "Die Spionage" (1906), pp. 63-92.

§ 452. Besides diplomatic envoys and consuls, States may and do send various kinds of agents abroad—namely, public political agents, secret political agents, spies, commissaries, bearers of despatches. Their position is not the same, but varies according to the class they belong to, and they must therefore be severally treated.

§ 453. Public political agents are agents sent by one Power to another for political negotiations of different kinds. They may be sent for a permanency or for a limited time only. As they are not invested with diplomatic character, they do not receive a Letter of Credence, but a letter of recommendation or commission only. They may be sent by one full-Sovereign State to another, but also by and to insurgents recognised as a belligerent Power, and by and to States under suzerainty. Public (or secret) political agents without diplomatic character are, in fact, the only means for personal political negotiations with such insurgents and States under suzerainty.

As regards the position and privileges of such agents, it is obvious that they enjoy neither the position nor the privileges of diplomatic envoys.[797] But, on the other hand, they have a public character, being admitted as public political agents of a foreign State. They must, therefore, certainly be granted a special protection, but no distinct rules concerning special privileges to be granted to such agents seem to have grown up in practice. Inviolability of their persons and official papers ought to be granted to them.[798]

§ 454. Secret political agents may be sent for the same purposes as public political agents. But two kinds of secret political agents must be distinguished. An agent may be secretly sent to another Power with a letter of recommendation and admitted by that Power. Such agent is a secret one in so far as third Powers do not know, or are not supposed to know, of his existence. As he is, although secretly, admitted by the receiving State, his position is essentially the same as that of a public political agent. On the other hand, an agent may be secretly sent abroad for political purposes without a letter of recommendation, and therefore without being formally admitted by the Government of the State in which he is fulfilling his task. Such agent has no recognised position whatever according to International Law. He is not an agent of a State for its relations with other States, and he is therefore in the same position as any other foreign individual living within the boundaries of a State. He may be expelled at any moment if he becomes troublesome, and he may be criminally punished if he commits a political or ordinary crime. Such secret agents are often abroad for the purpose of watching the movements of political refugees or partisans, or of Socialists, Anarchists, Nihilists, and the like. As long as such agents do not turn into so-called agents provocateurs, the local authorities will not interfere.

§ 455. Spies are secret agents of a State sent abroad[799] for the purpose of obtaining clandestinely information in regard to military or political secrets. Although all States constantly or occasionally send spies abroad, and although it is neither morally nor politically and legally considered wrong to send spies, such agents have, of course, no recognised position whatever according to International Law, since they are not agents of States for their international relations. Every State punishes them severely when they are caught committing an act which is a crime by the law of the land, or expels them if they cannot be punished. And a spy cannot legally excuse himself by pleading that he only executed the orders of his Government. The latter, on the other hand, will never interfere, since it cannot officially confess to having commissioned a spy.

§ 456. Commissaries are agents sent with a letter of recommendation or commission by one State to another for negotiations, not of a political but of a technical or administrative character only. Such commissaries are, for instance, sent and received for the purpose of arrangements between the two States as regards railways, post, telegraphs, navigation, delineation of boundary lines, and so on. A distinct practice of guaranteeing certain privileges to such commissaries has not grown up, but inviolability of their persons and official papers ought to be granted to them, as they are officially sent and received for official purposes. Thus Germany, in 1887, in the case of the French officer of police Schnaebélé, who was invited by local German functionaries to cross the German frontier for official purposes and then arrested, recognised the rule that a safe-conduct is tacitly granted to foreign officials when they enter officially the territory of a State with the consent of the local authorities, although Schnaebélé was not a commissary sent by his Government to the German Government.

§ 457. Individuals commissioned to carry official despatches from a State to its head or to diplomatic envoys abroad are agents of such State. Despatch-bearers who belong to the retinue of diplomatic envoys as their couriers must enjoy, as stated above (§ 405), exemption from civil and criminal jurisdiction and a special protection in the State to which the envoy is accredited, and a right of innocent passage through third States. But bearers of official despatches who are not in the retinue of the diplomatic envoys employing them must nevertheless be granted inviolability for their person and official papers, provided they possess special passports stating their official character as despatch-bearers. And the same is valid respecting bearers of despatches between the head of a State who is temporarily abroad and his Government at home.

IV INTERNATIONAL COMMISSIONS

Rivier, I. pp. 564-566—Ullmann, § 68—Gareis, §§ 51-52—Liszt, § 16—Moore, IV. § 623.

§ 458. A distinction must be made between temporary and permanent international commissions. The former consist of commissaries delegated by two or more States to arrange all kinds of non-political matters, such as railways, post, telegraphs, navigation, boundary lines, and the like. Such temporary commissions dissolve as soon as their purpose is realised.[800] Besides temporary commissions, there are, however, permanent commissions in existence. They have been instituted by the Powers[801] in the interest of free navigation on two international rivers and the Suez Canal; further, in the interest of international sanitation; thirdly, in the interest of the foreign creditors of several States unable to pay the interest on their stocks; and, lastly, concerning bounties on sugar.

As regards the privileges to be granted to the members of either temporary or permanent international commissions, no distinct practice has grown up. If the treaty according to which a commission concerned does not stipulate anything as regards such privileges, none need be granted, but the persons of the commissioners must be specially protected. However that may be, there is no doubt that members of international commissions cannot, unless this be specially stipulated, claim the privileges of diplomatic envoys. Thus, when in 1796 Messrs. Gore and Pinkney,[802] the American Commissioners in London under article 7 of the Jay Treaty, claimed these privileges, Great Britain refused to concede them.

§ 459. Four international commissions have been instituted in the interest of navigation—namely, two for the river Danube, one for the Congo river, and one for the Suez Canal.

1. With regard to navigation on the Danube, the European Danube Commission was instituted by article 16 of the Peace Treaty of Paris in 1856. This commission, whose members are appointed by the signatory Powers of the Treaty of Paris, was reconstituted by the Berlin Conference in 1878 and again by the Conference of London in 1883. The commission is totally independent of the territorial Governments, its rights are clearly defined, and its members, offices, and archives enjoy the privilege of inviolability. The competence of the European Danube Commission comprehends the Danube from Ibraila downwards to its mouth.[803]

2. The above-mentioned London Conference of 1883 has sanctioned regulations[804] in regard to the navigation and river-police of the Danube from the Iron Gates down to Ibraila, and has, by article 96 of these regulations, instituted the Mixed Commission of the Danube to enforce the observance of the regulations. The members of this Commission are delegates from Austria-Hungary, Bulgaria, Roumania, Servia, and the European Danube Commission—one member from each.[805]

3. The Powers represented at the Berlin Congo Conference of 1884 have sanctioned certain regulations in regard to navigation on the Congo river, and have, by articles 17-21 of the General Act of the Conference, instituted an International Commission of the Congo to enforce the observance of these regulations. This Commission, in which every signatory Power may be represented by one member, is totally independent of the territorial Governments, and its members, offices, and archives enjoy the privilege of inviolability.[806]

4. By article 8 of the Treaty of Constantinople of 1888 in regard to the neutralisation of the Suez Canal, a Commission was instituted for the supervision of the execution of that treaty. The Commission consists of all the consuls of the signatory Powers in Egypt.[807]

§ 460. Three international commissions in the interest of sanitation are in existence. For the purpose of supervising the sanitary arrangements in connection with the navigation on the lower part of the Danube, the International Council of Sanitation was instituted at Bucharest in 1881.[808] The Conseil supérieur de santé at Constantinople has the task of supervising the arrangements concerning cholera and plague. The Conseil sanitaire maritime et quarantenaire at Alexandria has similar tasks and is subject to the control of the Conseil supérieur de santé at Constantinople.[809] As regards the International Health Office at Paris, see below, § 590, No. 6.

§ 461. Three international commissions in the interest of foreign creditors are in existence—namely, in Turkey since 1878, in Egypt since 1880, and in Greece since 1897.[810]

§ 462. According to article 7 of the Brussels Convention concerning bounties on sugar, a permanent commission was instituted in 1902 at Brussels.[811]

V INTERNATIONAL OFFICES

Rivier, I. pp. 564-566—Nys, II. pp. 264-270—Ullmann, § 58—Liszt, § 17—Gareis, § 52—Descamps, "Les offices internationaux et leur avenir" (1894).

§ 463. During the second half of the nineteenth century a great number of general treaties were entered into by a greater or lesser number of States for the purpose of settling in common certain non-political matters. These general treaties create so-called unions among the parties, and the business of these unions is in most cases transacted by international offices created specially for that purpose. The functionaries of these offices, however, ordinarily enjoy no privilege whatever. The number of these offices is constantly increasing. Only the more important ones are here enumerated, with the exclusion of the International Bureau of Arbitration,[812] which, although an international office, has no relation to those here discussed.