Good only for two years from date.

UNITED STATES OF AMERICA

DEPARTMENT OF STATE

To all to whom these presents shall come, Greeting:

I, the undersigned, Secretary of State of the United States of America,

63. Exemptions from Jurisdiction - General

As a general principle, the sovereignty of a state within its boundaries is complete and exclusive. For various reasons there has grown up the custom of granting immunity from local jurisdiction to certain persons generally representing the public authority of a friendly state. This immunity may extend to those persons and things under their control.

This immunity has been called extraterritoriality. The persons and things thus exempt from local jurisdiction are regarded as carrying with them the territorial status of their native state, or as being for purposes of jurisdiction within

ity.

their own state territory, and beyond that of the state in which they are geographically. Wherever they may go they carry Extraterritorial with them the territory and jurisdiction of their home state. Doubtless this doctrine of extraterritoriality in the extreme form may be carried too far, as many late writers contend, and some have desired another term, as immunity from jurisdiction, as more exact and correct.1 Such a term would have the merit of directing attention to the nature of the relation which the persons concerned sustain to the state. Hall sums up the case by saying, "If exterritoriality is taken, not merely as a rough way of describing the effect of certain immunities, but as a principle of law, it becomes, or at any rate is ready to become, an independent source of legal rule, displacing the principle of the exclusiveness of territorial sovereignty within the range of its possible operation in all cases in which practice is unsettled or contested."2 Extraterritoriality should be viewed as based on the immunities conceded to public persons, rather than as the source of these immunities.

64. Exemption of Sovereigns

Sovereigns sojourning in their official capacity in foreign countries are exempt from local jurisdiction. This principle is based, not merely upon courtesy, but also upon convenience and necessity. The sovereign represents the state, and therefore cannot be subjected to the jurisdiction of another state without waiving the sovereignty, and in so far depriving the state of one of its essential attributes. Nor can the visiting sovereign exercise any authority which would infringe the sovereign powers of the state in which he is. The visiting sovereign can only claim immunity for such action as is in accord with the necessities of his convenient sojourn. He, his retinue, and effects, are exempt from civil and criminal jurisdiction. He

1 Bonfils, No. 337.

2 Hall, p. 177.

is free from taxes, duties, police and administrative regulations. In the case of Vavasseur v. Krupp, 1878, it was decided that infringement of the patent law did not constitute a ground for suit against a sovereign. In this case, Vavasseur brought action against Krupp for infringement of patent on shells in custody of the agents of the Mikado of Japan. The action resulted in an injunction preventing removal of the shells to the Mikado's ships, but on application of the Mikado to remove the shells as his property, the court held that, even if the property in question infringed a patent, the Mikado could not be sued and his property could not be held.1 The principle that the sovereign is free from suit has frequently been decided by the courts of various countries. A sovereign sojourning in a foreign state cannot, however, set up his courts and execute judgment; such functions belong to his territorial courts. Criminals in his retinue must be sent home for trial. While the sovereign's hôtel or place of residence while abroad is exempt from local jurisdiction, the sovereign is not justified in allowing the hôtel to become an asylum for others than members of his retinue. On demand he must give up such refugees. In case the sovereign does not observe this principle or commits acts liable to endanger the peace of the foreign state, the authorities may invite him to depart, or if necessary expel him by force, in which case the measures taken should cause the least possible inconvenience to the sovereign.

The sovereign may, in his private capacity, hold property and become party to a suit like any citizen.2 A sovereign may travel incognito, and is then entitled only to the recognition accorded to the rank which he assumes. He can, however, assert his sovereign capacity and obtain its immunities at any time should he deem it proper.

1 L. R. 9 Ch. Div. 351.

64

2 Strousberg v. Costa Rica, (1881) L. T. 199; Bynkershoek, De Foro Legatorum," Ch. XVI.

65. Exemptions of State Officers

(a) Diplomatic agents, or those commissioned to transact the political affairs of the state abroad, are conceded a wide immunity from local jurisdiction. As repreWide immunity allowed diplo- senting the political will of their state, diplomatic agents. matic agents have immunities similar to those conceded to the sovereign, though by virtue of the fact that the sending of diplomatic agents has long been a common practice, their immunities are quite well defined. These immunities will be considered more in detail under the subject of International Intercourse, but in general a diplomatic agent is exempt from (1) criminal jurisdiction, (2) civil jurisdiction, (3) local police and administrative regulations, (4) taxes and duties, (5) jury and witness duty, (6) regulations in regard to religious and social action, (7) all exercise of authority by the local state within his official residence or hôtel, (8) and is exempt from the exercise of similar authority over his household, official and unofficial.1

(b) The exemptions granted to consuls vary in different states and under different circumstances. In general consuls are entitled to such exemptions as will enable them to perform their functions

Exemptions granted to consuls.

effectively.2

A foreign army

by permission, free from

(c) Any foreign army within the territorial limits of a given state, by permission of the sovereign of said state, is free from the sovereign's jurisdiction. Chief Justice Marentering a state shall, in 1812, gave as his opinion: "In such case, without any express declaration waiving jurisjurisdiction. diction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith... The grant of a free passage, therefore, implies

1 See Sec. 78 for full discussion.

2 See Sec. 82 (f) for full discussion.

a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments, which the government of his army may require." Permission, either general or special, must be obtained in order that an army may enter a foreign state in time of peace. The army must cause the least possible inconvenience to the state during its sojourn.

The military attaché of an embassy is regarded as a member of the official household of the diplomatic agent.

(d) As a vessel of war can without inconvenience to a foreign state pass through or remain within its maritime jurisdiction, it is customary to accord to the vessel and crew immunity from local jurisdiction and freedom of passage unless withheld for special reason. "Their immunity from local jurisdic

A vessel of war in a foreign

state free from local jurisdiction.

tion has come to be more absolute than that of the official residence of ambassadors, and probably for the reason that they have the efficient means of resistance which an ambassador has not." 2

3

In general the exemption from local jurisdiction which a vessel of war enjoys in a foreign state extends: (1) to acts beginning and ending on board the vessel; (2) to all boats, etc., of the vessel of war in charge of the crew of the vessel and upon its service; (3) to freedom from customs and all such regulations as are not necessary for the safety of the port. It was held in case of the United States frigate Constitution, in 1879, that she was not liable to salvage charges. A vessel of war is liable to quarantine, anchorage, and to other rules which imply no derogation of sovereignty; (4) to all persons on board the vessel whether members of the crew or others. This exemption should not be taken as warranting a general exercise of the

1 Exchange v. M'Faddon, 7 Cr., 116, 139. 244 International Law," Naval War Col., 3 Hall, p. 204.

4

2d ed. p. 23.

(1879) L. R. 4 P. D. 39.