International Law Situations,

WITH SOLUTIONS AND NOTES.

SITUATION I.

While a United States war vessel is at anchor within the area of the coaling station leased from Cuba at Guantanamo a fugitive from Cuban justice comes on board. The properly authorized Cuban officers demand that the fugitive be immediately surrendered to them.

How should the request of the Cuban officers be treated?

SOLUTION.

An alleged fugitive from Cuban justice coming on board of a war vessel of the United States within the area of the coaling station leased from Cuba at Guantanamo should under ordinary circumstances be turned over by the commander of the United States war vessel to the commandant of the station.

The subsequent treatment of the alleged fugitive, by the commandant should be governed by the terms of the lease (article 4) and by such general or special instructions as may have been issued by the United States Government.

NOTES ON SITUATION I.

General. This Situation I is proposed in order to illustrate the complicated relationships introduced by the recent practice of transfer of jurisdiction, or the transfer of the right to exercise state authority, without the transfer of sovereignty.

Jurisdiction in general. The jurisdiction over territory may be based on sovereignty, lease, or other ground.

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The jurisdiction based on sovereignty is in general exclusive, though exceptions are sanctioned by international law and international practice. The jurisdiction based upon lease is naturally dependent upon the conditions of lease. The leases vary.

Chinese lease to Germany.—The lease of the Kiaochow region by China to Germany March 6, 1898, provides that

His Majesty the Emperor of China is willing that German troops should take possession of the above-mentioned territory at any time the Emperor of Germany chooses. China retains her sovereignty over this territory, and should she at any time wish to enact laws or carry out plans within the leased area she shall be at liberty to enter into negotiations with Germany with reference thereto: Provided always, That such laws or plans shall not be prejudicial to the German interests. Germany may engage in works for the public benefit, such as waterworks, within the territory covered by the lease without reference to China. Should China wish to march troops or to establish garrisons therein, she can only do so after negotiating with and obtaining the express permission of Germany.

III. During the continuation of the lease China shall have no voice in the government or administration of the leased territory. It will be governed and administered during the whole term of ninety-nine years solely by Germany, so that the possibility of friction between the two powers may be reduced to the smallest magnitude. The lease covers the following districts: * * * Chinese ships of war and merchant ships and the ships of war and merchant ships of countries having treaties and in a state of amity with China shall receive equal treatment with German ships of war and merchant ships in Kiaochow Bay during the continuance of the lease. Germany is at liberty to enact any regulation she desires for the government of the territory and harbor, provided such regulations apply impartially to the ships of all nations, Germany and China included.

IV. Germany shall be at liberty to erect whatever light-houses, beacons, and other aids to navigation she chooses within the territory leased and along the islands, and coasts approaching the entrance to the harbor. Vessels of China and vessels of other countries entering the harbor shall be liable to special duties for the repair and maintenance of all light-houses, beacons, and other aids to navigation which Germany may erect and establish. Chinese vessels shall be exempt from other special duties. (U. S. Foreign Relations, 1900, 384.)

Chinese lease to Russia.-In the treaty leasing Port Arthur to Russia March, 27, 1898, there were the following articles:

ART. I. It being necessary for the due protection of her navy in the waters of north China that Russia should possess a station she can defend, the Emperor of China agrees to lease to Russia Fort Arthur and Talienwan, together with the adjacent seas, but on the understanding that such lease shall not prejudice China's sovereignty over this territory.

ART. IV. The control of all military forces in the territory leased by Russia and of all the naval forces in the adjacent seas, as well as of the civil officials in it, shall be vested in one high Kussian official, who shall, however, be designated by some title other than governor-general (tsungtu) or governor (hsunfu). All Chinese military forces shall without exception be withdrawn from the territory, but it shall remain optional with the ordinary Chinese inhabitants to remain or to go, and no coercion shall be used toward them in this matter. Should they remain, any Chinese charged with a criminal offense shall be handed over to the nearest Chinese official to be dealt with according to Article VIII of the Russo-Chinese treaty of 1860.

ART. VI. The two nations agree that Port Arthur shall be a naval port for the sole use of Russian and Chinese men-of-war, and be considered as an unopened port so far as the naval and mercantile vessels of other nations are concerned. As regards Talienwan, one portion of the harbor shall be reserved exclusively for Russian and Chinese men-of-war, just like Port Arthur, but the remainder shall be a commercial port, freely open to the merchant vessels of all countries.

Chinese lease to Great Britain. The provisions of the convention for the lease of Wei-hai-wei to Great Britain, July 1, 1898, are somewhat different.

The territory leased shall comprise the island of Liu Kung and all the islands in the bay of Wei-hai-wei and a belt of land ten English miles wide along the entire coast line of the bay of Weihai-wei. Within the above-mentioned territory leased Great Britain shall have sole jurisdiction.

It is also agreed that within the walled city of Wei-hai-wei Chinese officials shall continue to exercise jurisdiction, except so far as may be inconsistent with naval and military requirements for the defense of the territory leased.

Chinese lease to France.-A convention for the lease of Kuang Chau Wan by China to France was made on May 27, 1898, and ratified January 5, 1900.

ARTICLE I.

The Chinese Government, in consideration of its friendship for France, has given by a lease for 99 years Kuang Chau Wan to the French Government to establish there a naval station with coaling depot, but it is understood that this shall not offset the sovereign rights of China over the territory ceded.

ARTICLE III.

The territory shall be governed and administered during the 99 years of the lease by France alone, so that all possible misunderstanding between the two countries may be obviated.

The inhabitants shall continue to enjoy their property; they may continue to inhabit the leased territory and pursue their labors and occupations, under the protection of France, so long as they respect its laws and regulations. France shall pay an equitIable price to the native property owners for the land which it may wish to acquire.

ARTICLE V.

Steamers of China as well as the ships of the powers having diplomatic and commercial relations with her shall be treated within the leased territory in the same manner as in the opened part of China.

France may issue all the regulations she may wish for the administration of the territory and of the ports and particularly levy light-house and tonnage dues destined to cover the expense of erecting and keeping up lights, beacons, and signals, but such regulations and dues shall be impartially used for ships of all nationalities.

ARTICLE VI.

If cases of extradition should occur, they shall be dealt with according to the provisions of existing conventions between France and China, particularly those regulating the neighboring relations between China and Tongking.

Hongkong convention. The convention with Great Britain for the extension of the Hongkong territory signed June 9, 1898, provided as to jurisdiction that "If cases of extradition of criminals occur, they shall be dealt with in accordance with the existing treaties between Great Britain and China and the Hongkong regulations."

General character of leases.—Such provisions show differences in the terms and conditions of leases, the general

LEASES AS SERVITUDES.

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idea being that the jurisdiction in whole or in part may pass to the lessee, while the lessor retains the sovereignty. By the terms of some of these conventions leasing territories, the rights ordinarily attributed to sovereignty are passed to the lessee, as the right to construct fortifications, establish naval stations, levy taxes, etc. Such rights, however, must be specific, as otherwise the right to exercise state authority resides exclusively in the state possessing sovereignty over a given area. Chief Justice Marshall, in the Schooner Exchange v. M'Faddon, in 1812, stated the matter clearly.

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its own sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restrictions.

All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate

source.

This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory. (7 Cranch, U. S. Supreme Court Reports, 116.)

Creation of a Servitude. The effect of these conventions leasing territory of one state to another state for coaling stations, etc., is to create a restriction upon the exercise of territorial jurisdiction by the lessor state in favor of a lessee state. This permits within the territory of the lessor state the exercise of powers ordinarily exclusively in the state having sovereignty and thus creates a positive servitude which implies that "a state is under obligation to permit within its territory another state to exercise certain powers." (Wilson and Tucker, International Law, 146.)

Hall says of servitudes in general,

It is usual in works on international law to enumerate a list of servitudes to which the territory of a state may be subjected. Among them are the reception of foreign garrisons in fortresses,