39
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local subject being a member of the crew. And while he says that in the cases put the offender should be given up to the local authorities, he does not say whether, if surrender were refused, judicial process could be directed to the captain of the foreign vessel to secure the custody of the offender by the local authority. In the memorandum of Sir Alexander Cock- burn, Mr. Justice Archibald concurred. Mr. Stephen wrote a memorandum to the same effect in the trenchant Stephen style. Mr. Rothery treated the dogmatic assertion of Historicus" and his authorities to a merciless dissection to which the conclusions of a Whewell Professor can seldom have been subjected. In addition to the authorities already mentioned, reference should be made to the passages cited in the judgment of the Supreme Court in this case from Hall, 8th Ed., 1924, edited by Professor Pearce Higgins, para. 55. There the author states that a public vessel is exempt from the territorial jurisdiction: but that her crew and persons on board of her cannot ignore the laws of the country in which she is lying as if she were a territorial enclave. Exceptions to their obligation exist in the case of acts beginning and ending on board the ship and taking no effect externally to her in all matters in which the economy of the ship or the relations of persons on board to each other are exclusively concerned. The author appends a note:-
"The case which however would be extremely rare on board a ship of war of a crime committed by a subject of the state within which the vessel is lying against a fellow subject would no doubt be an exception to this. It would be the duty of the captain to surrender the criminal."
The other passage is from "Oppenheim", 5th Ed., 1937, edited by Professor Lauterpacht, vol. 1, para. 450. The author adopts the full exterritorial view:-
"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 there is a customary rule of international law universally recognised that the State owning 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."
When, however, he is dealing with the analogous immunities of diplomatic envoys, para. 389, he says "exterritoriality in this as in every other case is a fiction only, for diplomatic envoys are in reality not without but within the territories of the receiving States". There is a note that "The modern tendency among writers is towards rejecting the fiction of exterritoriality' a note which is not in the second edition, the last prepared by the author, and appears for the first time in the 4th edition edited by Professor McNair.
"
1
[F
Their Lordships have no hesitation in rejecting the doc- trine of exterritoriality expressed in the words of Mr. Oppen- heim which regards the public ship as a floating portion of the flag State". However the doctrine of exterritoriality is expressed it is a fiction, and legal fictions have a tendency to pass beyond their appointed bounds and to harden into dangerous facts. The truth is that the enunciators of the floating island theory have failed to face very obvious possi- bilities that make the doctrine quite impracticable when
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tested by the actualities of life on board ship and ashore. Immunities may well be given in respect of the conduct of members of the crew to one another on board ship. If one member of the crew assault another on board, it would be universally agreed that the local courts would not seek to exercise jurisdiction, and would decline it unless indeed they were invited to exercise it by competent authority of the flag nation. But if a resident in the receiving State visited the public ship and committed theft and returned to shore, is
it conceivable that when he was arrested on shore and shore witnesses were necessary to prove dealings with the stolen goods and identify the offender, the local courts would have no jurisdiction? What is the captain of the public ship to do? Can he claim to have the local national surrendered to him? He would have no claim to the wit- nesses or to compel their testimony in advance or otherwise. He naturally would leave the case to the local courts. But on this hypothesis the crime has been committed on a portion of foreign territory. The local court then has no jurisdiction, and this fiction dismisses the offender untried and untriable. For it is a commonplace that a foreign country cannot give territorial jurisdiction by consent. Similarly in the analogous case of an embassy. Is it possible that the doctrines of international law are so rigid that a local burglar who has broken and entered a foreign embassy and having com- pleted his crime is arrested in his own country cannot be tried in the courts of the country? It is only necessary to test the proposition to assume that the foreign country has assented to the jurisdiction of the local courts.
Even so objective exterritoriality would for the reason given above deprive our courts at any rate of any jurisdiction in such a case. The result of any such doctrine would be not to promote the power and dignity of the foreign sovereign but to lower them by allowing injuries committed in his public ships or embassies to go unpunished.
On this topic, their Lordships agree with the remarks made by Professor Brierly in "The Law of Nations," (1928),
P. 110.
** The term 'exterritoriality is commonly used to describe the status of a person or thing physically present in a State's territory, but wholly or partly withdrawn from that State's jurisdiction by a rule of international law, but for many reasons it is an objectionable term. It introduces a fiction, for the person or thing is in fact within, and not outside, the territory: it implies that jurisdiction and territory always coincide, whereas they do so only generally; and it is misleading because we are tempted to forget that it is only a metaphor and to deduce untrue legal consequences from it as though it were a literal truth. At most it means nothing more than that a person or thing has some immunity from the local jurisdiction; it does not help us to determine the only important question, namely, how far this immunity extends."
The true view is that in accordance with the conventions of international law, the territorial sovereign grants to foreign sovereigns and their envoys and public ships and the naval forces carried by such ships certain immunities. Some are well settled: others are uncertain. When the local court is faced with a case where such immunities come into question
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