5.
16
exclusive jurisdiction of the commander and the
other home authorities".
The learned author is here clearly propounding
the fiction of exterritoriality. At.p. 629 para. 389
dealing with the position of diplomatic envoys, he
writes "Exterritoriality, in this as in every other
casc, is a fiction only, for diplomatic envoys are
in reality not without, but within, the territories
of the receiving States. The term "exterritoriality"
in nevertheless valuable, because it demonstrates
clearly the fact that envoys must, in most respects,
be treated as though they were not within the territory
of the receiving States".
The acceptance of that fiction with all the
implications suggested by Professor Oppenheim would
logically connote the entire absence of jurisdiction
in the present case in the Supreme Court of Hong Kong.
The learned editor of the fourth edition, however,
appends to the paragraph just cited the following
footnote.
"The modern tendency among writers is towards
rejection the fiction of exterritoriality".
Hall, on whose authority also Mr. Macnamara
relics, puts the position thus (8th Edition p. 245 para. 55).
"From what has been said it is clear that there
is not a great preponderance of authority in favour of
the view that a vessel of war in foreign waters is to
be regarded as not subject to the territorial juris-
diction. This being the case the law may probably be
stated as follows:-
A vessel of war or other public vessel of the
State, when in foreign waters, is exempt from the
territorial jurisdiction, but her crew and other
persons on board of her cannot ignore the laws of the
country in which she is lying, as if she constituted