CO129-261 - Public Offices & Others - 1893 — Page 113

1. Representa-

2

SPAIN.

That it would therefore seem first necessary to determine what was the municipal law upon the point.

But that, assuming that the municipal law would entirely negative the right of any foreign authority to execute arrests in British waters, even upon the persons o their own nationals on board of merchaut-vessels of their own nationality, it was still advisable from the point of view of diplomatic controversy to consider how far inter-

such national law and practice might afford arguments in support of any usage.

That on this point Sir Thomas Sanderson was to refer us to a passage in Mr. Hall's "International Law" which appeared concisely to summarize the extent and character of modern doctrine on this question, and which would be found in the third (1890) edition of that learned author's work at p. 198 et seq.

That Mr. Hall, after pointing out that French practice, and also to a certain extent French municipal law, recognized the immunity of merchant-vessels lying in the ports of a foreign State from the local jurisdiction more absolutely and widely than does the law and practice probably of any other State, added that outside France little disposition had been shown to put forward as representing actual law the views which there obtain, and further stated that it was unquestionable that these views "are at present destitute of international authority since they are not supported by the long continuance and generality of usage, which in the absence of consent are needed to give legal value to a practice derogating from so fundamental a principle as is that of sovereignty."

That it appeared to your Lordship, as then advised, that the release of Fernel by the Spanish authorities, in consequence of the representations of the Governor of Hong Kong, sufficiently justified the assumption that any claim to arrest him as of right while on a Spanish merchant-vessel in British territorial waters might, if it were ever intended seriously to be raised, now be regarded as abandoned and withdrawn by the Spanish Government, and that under those circumstances any formal representation of the case to that Government might be unnecessary if not impolitic.

That your Lordship would, however, before making any further communication to the Colonial Office, be glad to be informed-

(1.) Whether we concurred in this view, or whether we considered it necessary or desirable that any, and if so, what, representation should be addressed to the Spanish Government in connection with the arrest, release, and subsequent extradition of Fernel under the circumstances to which our attention had been called.

(2.) Whether, in our opinion, the action of the Governor of Hong Kong in the matter might be approved.

(3.) Whether we agreed generally with the views indicated in Sir Thomas Sanderson's letter as to the bearing of municipal and international law respectively upon the main question under discussion, or, if not, in what respects, and to what extent we differed from them.

(4.) Whether we adopted in its integrity the opinion given with respect to the case of T. W. Hoit by the late Attorney-General on the 7th November, 1891, or whether we only concurred in that opinion subject to the limitation added by the late Solicitor- General, which would confine its application to cases in which it was sought to execute an extradition warrant "upon a foreign vessel in British waters, when such vessel belongs to the Power claiming extradition and the fugitive is either a British subject, or a subject of such Power."

That Sir Thomas Sanderson was to add that your Lordship would be glad at the same time to be favoured with such other observations upon the subject generally as we might think it desirable to offer.

In obedience to your Lordship's commands we have taken the matter into consideration, and have the honour to

Report-

1. That we concur in the view that under the circumstancês no formal representa-

tion to Spanish tion to the Spanish Government is necessary.

Government

unnecessary.

2. Approve

action of Governor of Hong Kong.

3. Agree with

2. That in our opinion the action of the Governor at Hong Kong may be approved. 3. That we agree generally with the views indicated in Sir Thomas H. Sanderson's letter of the 18th March, 1893.

4. That we adopt in its integrity the opinion given with respect to the case of Foreign Office T. W. Hoit by the late Attorney-General on the 7th November, 1891.

views as to

bearing of

municipal and

Whatever conclusions may ultimately be arrived at as to the concession to foreign

SPAIN.

3

international

law on question,

Governments of jurisdiction over their own nationals in private ships of their own nationality lying in British ports, we do not think that any rule or principle of inter- national law requires Her Majesty's Government to permit the exercise of such Adopt Curisdiction by force within British waters.

(A.) Colonial Office (B) Law Officers' Report (0)

Ditto

List of Papers.

:::

:::

We have, &c., (Signed)

:::

C. RUSSELL. JOHN RIGBY.

February 21, 1893.

June

26, 1891.

November 7, 1891.

opinion of Attorney- General in ea80 of T. W. Hoic. Jurisdiction of foreign Govern-

ments over nationals on private ships

in British ports cannot be enforced.