65

DISSENTING OPINION BY Mr. MOORE.

On the present judgment as a whole, the vote, as appears by the
judgment itself, stood six to six, and, the Court being equally
divided, the President gave, under Article 55 of the Statute, a
casting vote, thus causing the judgment as it stands to prevail.
I was one of the dissenting six ; but I wish at the outset to state
that my dissent was based solely on the connection of the pending
case with Article 6 of the Turkish Penal Code, which I will discuss
in due course. In the judgment of the Court that there is no rule
of international law by virtue of which the penal cognizance of a
collision at sea, resulting in loss of life, belongs exclusively to the
country of the ship by or by means of which the wrong was done,
I concur, thus making for the judgment on that question, as sub-
mitted by the compromis, a definitely ascertained majority of seven
to five. But, as [have reached my conclusions, both on the general
question and on the point on which I dissent, by a somewhat
independent course of reasoning, I deem it to be my duty to deliver
a separate opinion.

Under the compromis or special agreement signed at Geneva on
October 12th, 1926, France and Turkey have submitted to the
Permanent Court of International Justice the question of ‘judicial
jurisdiction” (compétence judiciaire) which had arisen between the
two Governments as to whether Turkey had, contrary to Article 15
of the Convention of Lausanne of July 24th, 1923, respecting her
judicial establishment (éablissement) and jurisdiction, violated the
principles of international law—and, if so, what principles—by
instituting against the officer of the watch of the French steamer
Lotus on her arrival at Constantinople, as well as against the com-
mander of the Turkish steamer Boz-Kourt, criminal proceedings in
pursuance of Turkish legislation in respect of a collision between the
two steamers outside Turkish territorial waters, as the result of
which the Boz-Kourt was lost and eight Turkish sailors and pas-
sengers on that vessel lost their lives. Should the answer be in the
JUDGMENT No. 9.—DISSENTING OPINION BY Mr. MOORE 66

affirmative, the Court is asked to decide what pecuniary reparation
is due to M. Demons, the officer of the watch, “provided, according
to the principles of international law, reparation should be made
in similar cases”.

In presenting the case to the Court, neither of the Parties furnished
a copy, authenticated or otherwise, of the decision or decisions of
the Turkish tribunals or of the proceedings, including the evidence,
on which such decision or decisions were based. The Court is not
asked to review the proceedings of the Turkish tribunals or to examine
the question whether they were in conformity with Turkish law.
It is agreed that the collision took place about six miles from Cape
Sigri, or perhaps three miles outside Turkish territorial waters,
and the Court is asked to decide whether, by reason of the fact that
the place of the collision was outside such waters, Turkey violated
Article 15 of the Lausanne Convention and the principles of inter-
national law in instituting criminal proceedings in pursuance of
Turkish legislation against the officer of the watch of the ship by
which the Turkish steamer was sunk and lives of Turkish sailors
and passengers were lost. .

I will consider, first, the question of the meaning and effect of
Article 15 of the Convention of Lausanne.

Article 15 of the Lausanne Convention reads as follows :

“En toutes matières, sous réserve de l'article 16, les
questions de compétence judiciaire seront, dans les rapports
entre la Turquie et les autres Puissances contractantes,
réglées conformément aux principes du droit international.”

[Translation.]

“In all matters, under reserve of Article 16, questions of
judicial competence shall, in the relations between Turkey
and the other contracting Powers, be regulated conformably
to the principles of international law.”

Article 16 of the Convention, to the reservation of which Article 15
is subjected, relates to personal status, and has no bearing upon
the question now before the Court.
JUDGMENT No. 9.—DISSENTING OPINION BY Mr. MOORE 67

The Preamble of the Lausanne Convention recites that the
contracting States desired to regulate conformably to the modern
law of nations (droit des gens moderne) the conditions of the establish-
ment of their respective citizens in the territories of the other, as
well as certain questions relative to judicial competence (ainsi que
certaines questions relatives à la compétence judiciaire).

In the Case of the French Government, and in the oral arguments
made in behalf of that Government before the Court, it has been
contended that a limited interpretation should be given to Article 15
of the Lausanne Convention as regards the jurisdictional rights of
Turkey under international law, and this contention has been
supported by citations from the negotiations that led up to the
conclusion of the Treaty, but the passages cited do not in my
opinion have the effect which it is sought to ascribe to them. In
so saying Iam not to be understood as expressing an opinion on
the question whether such evidence is admissible for the purpose of
throwing light upon the interpretation of treaties. The language
of Article 15 is simple and plain and does not stand in need of
interpretation from any source outside the terms of the Treaty
itself. When Article 15 speaks of ‘the principles of international
law’’, it means the principles of international law as they exist
between independent and sovereign States. It evidently was
‘intended to recognize the right of Turkey to exercise her judicial
jurisdiction as an independent and sovereign State, except so far
as the exercise of national jurisdiction is limited by the mutual
obligations of States under the law of Nations.

II.

I will next consider the broad question submitted under the
compromis as to whether Turkey violated the principles of inter-
national law by instituting criminal proceedings in the present case,
and it is obvious that, under the interpretation I have given to
Article 15 of the Lausanne Convention, this question in effect is,
whether an independent State.is forbidden by international law
to institute criminal proceedings against the officer of a ship of
another nationality in respect of a collision on the high seas, by
which one of its own ships was sunk and lives of persons on board
were lost.
JUDGMENT No. 9.—-DISSENTING OPINION BY Mr. MOORE 68

The French Government maintains the affirmative in the case
before the Court. In the original protest presented by the French
Chargé at Angora on August Irth, 1926, against the criminal
prosecution of M. Demons, the ground was taken that, the collision
having occurred “outside the territorial waters and jurisdiction of
Turkey, the Turkish authorities have no competence to conduct
any penal prosecution whatever against the personnel of a French
ship exclusively justiciable for what takes place on the high seas
(pour faits survenus en haute mer) by the French Courts”. The
protest, therefore, declares that M. Demons was ‘wrongfully
arrested, and that he should be brought before the competent
French court for any proceedings that might eventually be taken
against him”.

To the broad denial thus made of the right of an independent
State, by means of criminal proceedings against persons voluntarily
within its territory, to protect its ships and the lives of those on
board outside territorial waters, against criminal acts committed
and consummated on such ships by the personnel of a ship of
another nationality, I am unable to give my assent, and in pro-
ceeding to discuss the question, I will refer to certain elementary
principles.

1. It is an admitted principle of international law that a nation ©
possesses and exercises within its own territory an absolute and
exclusive jurisdiction, and that any exception to this right must
be traced to the consent of the nation, either express or implied
(Schooner Exchange v. McFaddon (1812), 7 Cranch 116, 136).
The benefit of this principle equally enures to all independent and.
sovereign States, and is attended with a corresponding respons-
ibility for what takes place within the national territory.

2. It is an equally admitted principle that, as municipal courts,
the creatures of municipal law, derive their jurisdiction from that
law, offences committed in the territorial jurisdiction of a nation
may be tried and punished there according to the definitions and
penalties of its municipal law, which, except so far as it may be
shown to be contrary to international law, is accepted by interna-
tional law as the law properly governing the case. (Report of
Mr. Bayard, Secretary of State, to the President, case of Antonio
Pelletier, January zoth, 1887, Foreign Relations of the Umited
States, 1887, p. 606, and the numerous authorities there cited ;
JUDGMENT No. 9.—DISSENTING OPINION BY Mr. MOORE 69

Wildenhus’ Case, 120, U.S. 1.) This principle is not contrary,
but is correlative, to the principle laid down in numerous decisions
of municipal courts, that international law is to be considered as
forming part of the law of the land, that it is as such to be judicially
administered in all cases to which it is applicable, and that municipal
enactments ought not to be so construed as to violate international
law, if any other construction is possible (Chief Justice Marshall,
Murray v. Schooner Charming Betsey (1804), 2 Cranch, 64, 118;
Sir William Scott, Le Louis (1817), 2 Dodson, 210, 239).

3. The principle of absolute and exclusive jurisdiction within the
national territory applies to foreigners as well as to citizens or
inhabitants of the country, and the foreigner can claim no exemption
from the exercise of such jurisdiction, except so far as he may be
able to show either: (r) that he is, by reason of some special
immunity, not subject to the operation of the local law, or (2)
that the local law is not in conformity with internationallaw. No
presumption of immunity arises from the fact that the person
accused is a foreigner.

4. Inconformity with the principle of the equality of independent
States, all nations have an equal right to the uninterrupted use of
the unappropriated parts of the ocean for their navigation, and no
State is authorized to interfere with the navigation of other States
on the high seas in the time of peace except in the case of piracy
by law of nations or in extraordinary cases of self-defence (Le
Louis (1817), 2 Dodson, 210, 243-244).

5. It is universally admitted that a ship on the high seas is,
for jurisdictional purposes, to be considered as a part of the territory
of the country to which it belongs ; and there is nothing in the law
or in the reason of the thing to show that, in the case of injury to
life and property on board a ship on the high seas, the operation of
this principle differs from its operation on land.

The operation of the principle of absolute and exclusive juris-
diction on land does not preclude the punishment by a State of an
‘act committed within its territory by a person at the time cor-
poreally present in another State. It may be said that there does
not exist to-day a law-governed state in the jurisprudence of which
JUDGMENT No. 9.—DISSENTING OPINION BY Mr. MOORE 70

such a right of punishment is not recognized. France, by her own
Code, asserts in general and indefinite terms the right to punish
foreigners who, outside France, commit offences against the ‘‘safety”’
of the French State. This claim might readily be found to go
in practice far beyond the jurisdictional limits of the claim of a
country to punish crimes perpetrated or consummated on board its
ships on the high seas by persons not corporeally on board such
ships. Moreover, it is evident that, if the latter claim is not admit-
ted, the principle of territoriality, when applied to ships on the
high seas, must enure solely to the benefit of the ship by or by
means of which the crime is committed, and that, if the Court
should sanction this view, it not only would give to the principle of
territoriality a one-sided application, but would impose upon its
operation at sea a limitation to which it is not subject on land.

There is nothing to show that nations have ever taken such a
view. On the contrary, in the case of what is known as piracy by
law of nations, there has been conceded a universal jurisdiction,
under which the person charged with the offence may be tried and
punished by any nation into whose jurisdiction he may come.
I say “piracy by law of nations”, because the municipal laws of
many States denominate and punish as “piracy’’ numerous acts
which do not constitute piracy by law of nations, and which there-
fore are not of universal.cognizance, so as to be punishable by all
nations.

Piracy by law of nations, in its jurisdictional aspects, is sui
generis. Though statutes may provide for its punishment, it is an
offence against the law of nations ; and as the scene of the pirate’s
. operations is the high seas, which it is not the right or duty of any
nation to police, he is denied the protection of the flag which he may
carry, and is treated as an outlaw, as the enemy of all mankind—
hostis human generis—whom any nation may in the interest of
all capture and punish. Wheaton defines piracy by law of nations
as murder or robbery committed on the high seas by persons acting
in defiance of all law, and acknowledging obedience to no flag
whatsoever (Wheaton’s Elements, Dana’s ed., 193 ef seg.). Dana,
193, Note 83, commenting on this definition, remarks that, while
the attempted definitions of piracy are unsatisfactory, some being
JUDGMENT No. 9.—DISSENTING OPINION BY Mr. MOORE 71

too wide and some too narrow, the offence cannot be made to
embrace “‘all acts of plunder and violence .... simply because done
on the high seas’’, since as every crime may be committed at sea,
piracy “might thus be extended to the whole criminal code’’. Hall
says that all acts of piracy by law of nations have one thing in
common, namely, that “they are done under conditions which’
render it impossible or unfair to hold any State responsible for their
commission” ; that a pirate “either belongs to no State or organized
political society, or by the nature of his act he has shown his in-
tention and his power to reject the authority of that to which he is
properly subject” ; that, as the “distinctive mark” of piracy is
“independence or rejection of State or other equivalent authority”’,
it is not confined to ‘‘depredations or acts of violence done animo
furandi’, but that a satisfactory definition “‘must expressly exclude
all acts by which the authority of the State or other political society
is not openly or by implication repudiated’. (Hall, International
' Law, 8th ed. (1924), paragraph 81, pp. 310-311.)

It is important to bear in mind the foregoing opinions of eminent
authorities as to the essential nature of piracy by law of nations,
especially for the reason that nations have shown the strongest
repugnance to extending the scope of the offence, because it carried
with it not only the principle of universal jurisdiction but also the
right of visit and search on the high seas in time of peace. For the
purpose of protecting ships on the high seas, we must therefore look
to a reasonable and equal interpretation and application of the
principle of the territoriality of ships.

' As affecting this principle, the case of John Anderson has been
cited and discussed in the present proceedings. It appears that
Anderson, an ordinary seaman on the American bark C. O. Whit-
more, in 1870, killed the first officer while the vessel was at sea on
a voyage from New York to Calcutta. On the arrival of the bark at
Calcutta, the American Consul-General sought to have the culprit
detained, with a view to his return to the United States for trial,
but the local authorities claimed jurisdiction of the crime on the
ground that Anderson was in fact a British subject. When advised
JUDGMENT No. 9.——DISSENTING OPINION BY Mr. MOORE 72

of these facts, the Secretary of State of the United States, in order
that the case might not, as he said, be admitted ‘‘as a precedent’’,
instructed the Legation of the United States at London to call
attention to what he declared to be the “universally recognized”’
principle that, as merchant vessels on the high seas were under the
jurisdiction of the nation to which they belonged, their national
tribunals had “exclusive jurisdiction” of common crimes on board
such vessels on the high seas, and to represent that the ‘‘nationality
of the accused” could ‘‘have no more to do with the question of
jurisdiction” than if the crime had been committed ‘‘within the
geographical territorial limits” of the nation whose laws were
violated. In the drafting of these statements, or perhaps rather
in the signing of them, the fact evidently was overlooked that all
nations to some extent punish their own citizens for crimes com-
mitted within the geographical limits of other States, and that
the United States itself admits and exercises this right ; and it is
not strange that the British Government, initsreply, called attention
to this fact. It turned out, however, that the colonial authorities
at Calcutta, in holding that the High, Court of that place had juris-
diction of the case imisinterpretedfthe Imperial Statute under which
they essayed to act, with the result that the British Government,
on the strength of an opinion of the Law Officers of the Crown that
the trial was a nullity, expressed regret that the extradition of the
offender should have been improperly refused and stated that there
was no design ‘‘to question the jurisdiction of the United States
in this or any similar case”. (Foreign Relations of the United States,
1879, pp. 435, 436 ; 1880, p. 481; quoted in Moore, Digest of Inter-
national Law, I, 932-935. See also Foreign Relations, 1887, pp. 754,
770,779.) It is evident that this case merely shows that a diversity
of nationality, as between the offender and the place of the offence,
may give rise to a concurrent jurisdiction. This is fully recognized
in international law, and does not materially affect the question
before the Court.

In considering the case before the Court, it should be observed that
the question of the proper jurisdiction of the offence of murder, or
manslaughter, where the injury is inflicted in one place or country,
and the victim dies in another place or country, has been much
JUDGMENT No. 9.—~DISSENTING OPINION BY Mr. MOORE 73

discussed, and that different views of it have been taken at different
times, even in the same country. In England it was once held that
where a blow was struck in one county and death ensued in another
county, the criminal could not be tried in either. This impotent
result was due to the method of procédure, under which the grand
jury could know only what took place in its own county ; and in
order to remedy the defect the Statute of 2 and 3 Edw. VI, c. 24,
A.D. 1549, was passed, to enable the criminal to be tried in either
county. Whether, in the case of different countries, where the
blow is struck in one and the death occurs in the other, both or
- either can try the person accused of murder or manslaughter, as
the case may be, has been decided differently in different jurisdic-
tions, the decision depending upon the view taken by the court
of the relation of the death to the infliction of the injury. But
it appears to be now universally admitted that, where a crime is
committed in the territorial jurisdiction of one State as the direct
result of the act of a person at the time corporeally present in
another State, international law, by reason of the principle of
constructive presence of the offender at the place where his act took
effect, does not forbid the prosecution of the offender by the former
State, should he come within its territorial jurisdiction.

This question, as applied to ships of different nationality on the
open sea, was much discussed in 1877 by the judges in the case of The
Queen v. Keyn, L.R. 2 Exch. Div. 63, commonly called the case
of the Francona ; but, before discussing this case and other judicial
decisions bearing on the question at issue, I will make one observa-
tion on the position and effect of the decisions of municipal or
national courts in international jurisprudence. The Statute of the
Court (Article 38), after providing that the Court shall apply (1)
international conventions, whether general or special, establishing
rules expressly recognized by the States in controversy, (2) inter-
national custom, as evidence of a general practice accepted as law,
and (3) the general principles of law recognized by civilized nations,
further provides that the Court shall apply (4) “judicial decisions
and the teachings of the most highly qualified publicists of the
JUDGMENT No. 9.—-DISSENTING OPINION BY Mr. MOORE 74.

various nations”, as a ‘‘subsidiary means for the determination of
rules of law’. These directions merely conform to the well-settled
rule that international tribunals, whether permanent or temporary,
sitting in judgment between independent States, are not to treat the
judgments of the courts of one State on questions of international
law as binding on other States, but, while giving to such judgments
the weight due to judicial expressions of the view taken in the
particular country, are to follow them as authority only so far
as they may be found to be in harmony with international law,
the law common to all countries.

In the case of the Franconia, the captain of a German steamer
bearing that name was convicted in an English criminal court of
manslaughter for negligently sinking the British ship Strathclyde
in the open sea, but within the three-mile belt, with the consequent
death by drowning of a number of persons on board the latter ship.
The case was then carried before the Court for Crown Cases Reserved.
In this Court various questions were discussed, but only two need
here be mentioned. One, which may be called the main question,
was whether the offence, committed within the three-mile belt,
could be punished under British Law as it then stood ; and to this
question the Court, consisting of thirteen judges, gave, by a bare
majority of seven to six, a negative answer. By this conclusion,
it must be admitted that the long established principle, with which
the great names of Holt, Hardwicke and Mansfield were associated,
that international law, in its full extent, was part of the law of
England (Tviquet v. Bath (1764), 3 Burrows, 1478; Emperor of
Austria v. Day and Kossuth (1861), 2 Giffard, 628), suffered a
temporary eclipse, while the rules of municipal law governing
criminal jurisdiction received an evidently technical application.
The sense of surprise, and indeed of apprehension, with which
the judgment was received by the bar and the public, was
expressed by Lord Cairns, then holding the high office of Lord
Chancellor, who, in presenting in the House of Lords the bill
by the enactment of which, under the title of the ‘Territorial
Waters Jurisdiction Act, 1878”, the law as previously under-
stood was reestablished, declared that, while the question “at
first sight’? appeared to be and no doubt was a question of law,
JUDGMENT No. 9.—-DISSENTING OPINION BY Mr, MOORE 75

. “he rather thought that it was a question of that which had been
described as the first law of nature—the law of self-preservation” ;
and, while remarking that, but for the case of the Franconia, it
would “hardly have been necessary to detain their lordships by
offering any observations”, said that it would have been “fortunate
for the vindication of the law’’ if the fact had been brought to the
attention of the Court that by a warrant published in 1848, under
the Customs Regulations Act of that year, the limits of the Port
of Dover were declared to extend three miles out to sea, thus
covering the waters in which the Strathclyde was sunk.: Lord
Selborne, a former Lord Chancellor, supporting the view of Lord
Cairns, stated that, until he read the judgment in question, ‘he had
not supposed that there was any doubt among lawyers” as to the
existence of the right of sovereignty over territorial waters (Han-
sard, Parl. Debates, Vol. 237, 3rd series, pp. 1601-1616). Indeed,
on a careful study of the case, it is difficult to avoid the conclusion
that the vote of the majority was in no small measure determined
by a powerful, but composite and somewhat torrential opinion of
eighty pages delivered by Sir Alexander Cockburn, then Chief
Justice of the King’s Bench, the disturbing effects of which it
was necessary to remove in order that the majestic stream of the
common law, united with international law, might resume its
even and accustomed flow. This was done by the Act of Parlia-
ment above mentioned which declared that the “rightful jurisdic-
tion” of Her Majesty not only extended but had “‘always extended”
over her coastal waters, and made British criminal law applicable
to all offences committed on the open sea within a marine league
of the coast measured from low-water mark. |

The negative answer of the majority to the right of jurisdiction ©
over territorial waters led to the discussion, subsidiarily,. of
the question whether, even though British law as such did not
operate on foreign ships within the three-mile belt, the British
Courts might not uphold the conviction on the ground that the
offence was to be considered as having been committed on a
British ship and therefore within British jurisdiction. An examin-
ation of the opinions of the judges on this point, so far as
they definitely expressed any, will show that a mere count of
hands would be altogether misleading, and that, taking together

Io
4

JUDGMENT No. 9.—DISSENTING OPINION BY Mr. MOORE 76

their reasons and their conclusions, if certain principles of law, now
definitely establishedin England, had then been applied, the con-
clusions would have been different.

On the point subsidiarily discussed, Sir Robert Phillimore took
the view that, as the collision was caused by defendant’s “‘negli-
gence’, the act by which death was caused “was not his act, nor
was it a conséquence immediate or direct of his act”, and that, as .
he “‘never left the deck of his own ship”, or sent “‘any missile from
it to the other ship, neither in will nor in deed” could he be
“considered to have been on board the British vessel’. Had the
offence been wilfully committed on the British ship, the language
and reasoning of the learned judge lead to the conclusion that he
would have voted to sustain the conviction. Lindley, J., while
citing the case of Umited States v. Davis, 2 Sumner, 482, in which,
in a case of manslaughter, Mr. Justice Story, of the Supreme Court
of the United States, held that the offence was committed on board
the ship on which the fatal act took effect, said he was ‘‘not satisfied
on this point’ but preferred to rest his judgment on the “broader
ground” of jurisdiction over territorial waters and the liability
to punishment under English law of “‘all persons, whether English
or foreign, who recklessly navigate those waters and thereby cause
others to lose their lives”.

Denman, J., citing as “‘good sense and sound law’, Coombes’s
case, 1 Lea Cr. C. 388, holding that a person standing on shore and
shooting another in the sea who died on board a ship was within
the jurisdiction of the Admiralty, declared that he saw no distinc-
tion in principle between a fatal act committed deliberately and
one committed recklessly ; that the defendant in so directing his
ship ‘‘as to cause her bow to penetrate the Strathclyde” and make
a hole through which the water rushed in, committed a “negligent
act done within British jurisdiction” ; and that he felt bound to
make the point clear, because it was ‘of vast importance to the
security of British seamen and of persons of all nations sailing on
British ships, and therefore entitled to the protection of our laws,
throughout the world”. Lord Coleridge, Chief Justice of the Common
JUDGMENT No. Q.—-DISSENTING OPINION BY Mr. MOORE 77

Pleas, declared himself to be “though with some doubt”, of the
same opinion. On the strength of Reg. v. Armstrong, 13 Cox Cr.
C. 184, the case would, he said, be clear, if the offence had been
murder; but he thought that “the same rule should apply in
manslaughter which applies in murder’, and that, on this point,
“the conviction was right and should be affirmed”. Grove, J.,
having arrived at the conclusion that as the offence, “although
committed by a foreigner in a foreign ship’, was “committed
dehors the vessel upon a British subject in the Queen’s peace, within
the three-mile belt”, the English Court had jurisdiction, said it was
unnecessary for him to give an opinion on the question whether the
offence was ‘‘committed on board of a British ship”. Amphlett,
J., who also sustained the conviction on the ground of jurisdiction
over the three-mile belt, said that he could ‘‘find no authority”
for holding that a State could ‘‘punish a foreigner who at the time
of the commission of the offence was not within the territory and
consequently not owing it any allegiance’, and that he therefore
had, ‘‘with some doubt”, come to the conclusion that ‘a foreigner
who committed the offence while he was de facto outside the English
territory’, could not ‘be made amenable to British law’. Brett,
J. A., thought that, as between the two ships, the offence ‘was not
committed on board of either’, and that ‘‘there was no jurisdiction
therefore given in respect of a complete offence committed locally
within the British ship”. Bramwell, J., took the purely aqueous
view that as the death, resulting from a wrongful act on a Prussian
ship, ‘‘was in the water’, it could not be said to have taken place
on a British ship. Kelly, C. B., declaring that ‘‘not one single
instance” could be found “‘in the history of the world from the begin-
ning of time” of the exercise by a nation of “criminal jurisdiction
over the ships of other nations. ... passing through the high seas
(without casting anchor or stopping) between one foreign port and
another”, held that the right to arrest and try the defendant in
England could, in his opinion, “no more exist than the right to seize
and try in England any foreigner for an act done in his own country
.... Which act may happen to constitute a criminal offence by the
law of England”. On the other hand, Sir Alexander Cockburn,
in whose judgment Pollock, B., and Field, J., concurred, broadly
taking the ground, as Bramwell, J., had done, that, unless the defend-
ant, when the offence was committed, ‘“‘was on British territory
or on board of a British ship, he could not be properly brought to
JUDGMENT No. 9.—DISSENTING OPINION BY Mr. MOORE 78

trial under English law, in the absence of express legislation’’, held
that the conviction could not be sustained. He also questioned.the
right of the British Government, under international law, to enact
such legislation in respect of the open sea even within the three-
mile belt. Nevertheless, he declared that, ‘‘if the defendant had
purposely run into the Strathclyde’, he should, on the principle
laid down in Coombes’ case, ‘Shave been prepared to hold that the
killing of the deceased was his act where the death took place, and
consequently that.... the offence.... had been committed on
board a British ship”. Whether this applied to ‘‘the running down
of another ship through negligence” was, he said, ‘a very different
thing, and may, indeed, admit of serious doubt’. But he found
a greater difficulty in the fact that the defendant, at the time of the
occurrence, was corporeally, not on an English ship, but on a foreign
ship, and that a person who in one jurisdiction begins a continuous
act which extends into another jurisdiction “cannot himself be at
the time in both”. Protection and “allegiance” being, as he said,
“correlative”, he thought that a foreigner could be made amenable
to British jurisdiction only for acts done when he was corporeally
“within the area over which the authority of British law extends”’.
He therefore condemned and rejected, as ‘remarkable for much
loose reasoning and idle talk about the law of nature”, the decision
in the leading American case of Adams v. The People, 1 Comstock
(N. Y.) 173, in which a citizen of the State of Ohio who, through
the instrumentality of an innocent agent, obtained money by false
pretences in the State of New York, was held to have committed
the offence in the latter State, and, being found there, was arrested,
tried and punished. Mr. Justice Lush “agreed entirely” in the
conclusions and “in the main with the reasons’ of the Lord Chief
Justice, but disassociated himself from the expressions of doubt
as to the right of Parliament, without violating international law,
to legislate as it might think fit for territorial waters. But none of
the learned judges questioned, on the contrary they strongly
emphasized, the full and equal applicability of the principle of
national jurisdiction to all ships on the high seas, in determining
the place where an offence is committed.
JUDGMENT No. 9.—-DISSENTING OPINION BY Mr. MOORE 79

The principle laid down in Adams v. The People is now definitely
recognized and established in English law. The first step in this
direction was taken in 1884 in the case of a person who, by means
of false pretences, contained in letters written and sent by him from
Southampton in England to certain persons carrying on business
in Germany, had by that means induced personscarrying on business
in Germany to part with certain goods, some of which were delivered
to the prisoner’s order at places in Germany and some at places
in England. It was contended on the part of the prisoner (1) that
the crime was committed in England by posting the letters there
and (2) that, as the preamble of the extradition treaty between
Great Britain and Germany referred to “fugitives from justice”,
the prisoner could not be said to be a fugitive from Germany, as
he had committed the crime in England and had not been in
Germany.. The Court, however, held unanimously, although with
some doubt on the part of one of the judges on the second point,
that the crime was committed in Germany and that the prisoner was
a fugitive from justice within the definition of that term given in
Section 26 of the Extradition Act of 1870 and in the treaty (Reg. v.
Nillins, 1884, 53, L. J. 157). This decision, perhaps by reason of its
local novelty, was the subject of some adverse criticism (Clarke, on
Extradition, 3rd edition, p. 225), but it was reaffirmed and followed
only four years ago in another case in, which the prisoner was
charged with obtaining goods by false pretences in Switzerland, the
pretences having been made in Switzerland by a partner at the
procuration of the prisoner in England. The prisoner was not
physically in Switzerland at the time when the pretences were made,
nor had he been there since. He was arrested in England. The

‘case decided by Lord Hewart, Lord Chief Justice, and Justices
Avory and Sankey. The Lord Chief Justice, after expressing
the opinion that the words of the treaty and the statute were
JUDGMENT No. 9.—DISSENTING OPINION BY Mr. MOORE 86

“equally satisfied whether the man had physically been present
- in that other country or not, if he committed the crime there”, said :
“T do not differ in the smallest degree from the decision in Reg.
v. Nillins.” Mr. Justice Avory said : “I think we are bound by Reg.
v. Nillins, but in any case I am prepared to follow it, notwithstand-
ing the criticism to which it has been subjected.’ Mr. Justice
Sankey took the same view, saying : “T think we are bound by that
decision, and moreover, in my view it is correct.”

Had the principle laid down in Adams v. The People and since

established in England by Reg. v. Nillins and R. v. Godfrey been
established there prior to 1877, it is to be inferred that there would
have been in the case of The Queen v. Keyn a substantial majority in
favour of the jurisdiction in the case of death resulting from a
wilful collision and probably also in that of death resulting from a col-
lision caused by criminal negligence. In connection with the doubts
expressed by some of the judges in The Queen v. Keynas to whether
a ship could properly be regarded as an instrumentality for the
‘commission of an offence, it will be observed that the Territorial
Waters Jurisdiction Act, in defining an “offence” by a “person”,
expressly includes an act ‘‘committed on board or by means of a
foreign ship”, and defines an ‘‘offence’’ as meaning “an act, neglect
or default of such a description as would, if committed within the
body of a county in England, be punishable on indictment according
to the law of England for the time being in force”.

That this principle embraces, not only acts done directly by
means of the ship itself, but also acts done by means of boats
belonging to the ship, was definitely held by the British Govern-
ment in the well-known case of the British Columbian schooner
Avaunah, seized by the Russian authorities in 1888 outside
territorial waters for the unlicensed taking of seals within such
waters. The schooner was seized, probably six or more miles
from the nearest land, by a steamer belonging to the Alaska Com-
mercial Company, an American Corporation, but flying the Russian
flag and having on board the superintendent of the Commander
Islands, and was taken, with her officers and crew, to Petropau-
JUDGMENT No. 9.—-DISSENTING OPINION BY Mr. MOORE 81

lovski, where she was condemned on the ground that, even if she
was not herself within Russian territorial waters, she was taking
seals there by means of her boats, which were found fishing in such
waters. Lord Salisbury, then Secretary for Foreign Affairs, after
consulting the Law Officers of the Crown, instructed the British
Ambassador at St. Petersburg that Her Majesty’s Government were
“of the opinion that, even if the Avaunah at the time of the seizure
was herself outside the three-mile limit, the fact that she was by
means of her boats carrying on fishing within Russian waters
without the prescribed license warranted her seizure and confisca-
tion according to the provisions of the municipal law regulating
the use of those waters’, and that they did not, as at present
advised, “propose to address any further representation to the
Russian Government in regard to this case”. (State Papers, vol.
82, pp. 1043-1059). This precedent was followed in subsequent
cases of a similar kind. (Parl. Paper, Russia, No. 3, 1893.)

Recurring to the jurisdictional limitation sought to be based on
the distinction between murder and manslaughter, I will cite a
leading and pertinent decision which, although given nearly sixty
years ago, has not been internationally contested. I refer to the
case of Commonwealth v. Macloon et al., 101 Mass., 1, decided by the
Supreme Judicial Court of Massachusetts in 1869. In this case
the defendants, one a citizen of the State of Maine and the other
a British subject, were convicted in the Superior Court of Suffolk
County, Massachusetts, of the manslaughter of a man who died
in that county, in consequence of injuries inflicted on him by the
defendants in a British merchant ship on the high seas. The
defendants were tried and convicted under a Massachusetts Statute
which provided that “if a mortal wound is given, or other violence
or injury inflicted, or poison administered on the high seas, or on
land either within or without the limits of this State, by means
whereof death ensues in any county thereof, such offence may be
prosecuted and punished in the county where the death happens’’.
(Gen. Stats., c. 171, par. 19.). The decision of the Supreme Judicial
Court was delivered by Gray, J., later a Justice of the Supreme
Court of the United States, who, speaking for the Court, stated
that the principal question in the case was “that of jurisdiction,
which touches the sovereign power of the Commonwealth to bring
JUDGMENT No. 9.—-DISSENTING OPINION BY Mr. MOORE 82

to justice the murderers of those who die within its borders”. It
was not, he said, pretended that a foreigner could be punished in
Massachusetts for an act done by him elsewhere ; but the Court
held that, where a mortal blow was given outside and death ensued
within the State, the offender committed a crime there. He further
said : “Criminal homicide consists in the unlawful taking by one
human being of the life of another in such a manner that he dies
within a year and a day from the time of the giving of the mortal
wound. If committed with malice, express or implied by law, it is
murder ; if without malice, it is manslaughter.... The unlawful
intent with which the wound is made or the poison administered
attends and qualifies the act until its final result. No repentance
or change of purpose, after inflicting the injury or setting in motion
the force by means of which it is inflicted, will excuse the criminal.
If his unlawful act is the efficient cause of the mortal injury, his
personal presence at the time of its beginning, its continuance, or
its result is not essential.”

In reality, the view that national jurisdiction, in the case of a
foreigner not corporeally present, depends on the will of the criminal
to commit his act within the particular jurisdiction is opposed to
authority and is obsolete and obviously fallacious, in the case of
manslaughter as well as in other cases. In the case of criminal
homicide, the element of will affects the question of the degree of
the offence and the penalty to be imposed rather than the question
of the place where the offence is to be considered as having been
committed. Manslaughter, as has been well said, may come
within a hair’s breadth of murder ; it may be a nice and difficult
question to decide, depending upon the presence or absence of
“malice prepense”, on considerations of recklessness, or of negli-
gence, gross or slight, all of which affect the quality of the act,
but not the place of its consummation. It is a notorious fact that,
at common law, a defendant indicted for a certain offence may be
convicted of a cognate offence of a less aggravated nature, if the
words of the indictment are wide enough to cover the latter, so that,
on an indictment for murder, a defendant may be convicted of
manslaughter. (Halsbury’s Laws of England (1909), Vol. 9, p. 971,
citing Mackalley’s case (1611), g Coke’s Reports, 65 a., 67 b.)
JUDGMENT No. 9.—-DISSENTING OPINION BY Mr. MOORE 83

And yet, on the theory that jurisdiction depends upon the will of
the criminal as to the place at which his act is to take effect, rather
than upon the direct result of his criminal activity, a person who,
firing across a boundary, killed his victim would, though validly
indicted for murder in the place where the shot took effect, be
entitled to his discharge on jurisdictional grounds if the jury should
find that the killing was negligent. Such a theory would lead to
other astonishing consequences. For instance, a person who placed
an infernal machine in the pocket or in the automobile of a person
whom he intended to injure would be exempt from punishment in
the place where the injury occurred if his victim should, before
the explosion took place, unexpectedly cross an international
boundary. The fact may be mentioned that the master of the
Ayaunah alleged, in exculpation of the ship, that the small boats
unintentionally drifted into Russian territorial waters in a fog. It
may be that the British Government did not believe him, but, had
his assertion been credited, it is most improbable that that Govern-
ment would have advanced the contention that the schooner was
exempt from seizure because her boats were fishing in Russian
waters negligently.

The case of the Costa Rica Packet, so strongly urged in support
of the claim of exclusive jurisdiction of the country to which an
offending ship belongs, will upon examination be found to be
valueless as an authority for that contention. The Costa Rica Packet,
a British whaler, belonging to Sydney, New South Wales, sighted
on January 24th, 1888, when perhaps 30 miles from the nearest
land, what at first appeared to be a log, but was afterwards found
to be a small water-logged derelict prauw (native Malayan boat)
of about a ton’s burden. Two boats were put off, which, finding
goods aboard the prauw, towed it alongside the ship, and there were
then transferred from the prauw to the deck of the Costa Rica
Packet 10 cases of gin, 3 cases of brandy, and a can of kerosene oil.
The prauw was then cast loose, being of no value. The gin and
brandy were damaged by sea water ; but the ship’s crew, by indulg-
ing in the admixture, soon became drunk and got to fighting, and
the spirits were by order of the captain thrown overboard, except
a small quantity which the crew secreted. During the next four

II
JUDGMENT No. 0.=-DISSENTING OPINION BY Mr. MOORE 84

years the ship from time to time visited Dutch East Indian ports ;
but in November, 1807, at Ternate, where the ship had put in for
provisions, the captain was arrested and sent to Macassar, 1000
miles away, on a charge of theft, in having seized the prauw and
maliciously appropriated the goods in it. The warrant charged
that the alleged criminal act was committed not more than three
miles from land, but the evidence showed that it was at least
fifteen or twenty. The captain was held in prison at Macassar until
November 28th, 1891, when he was released through the inter-
cession of the governor of the Straits Settlements. The British
Government preferred a diplomatic claim for damages, and, after
a prolonged discussion, the two Governments signed on May 16th,.
1895, a convention of arbitration by which they agreed to invite
the government of a third Power to select the arbitrator. The
selection eventually fell to the Russian Government, which named:
as arbitrator M. F. de Martens, counsellor to the Russian Foreign
Office. In his award, dated February 13th (25th), 1897, M. de
Martens, after reciting that the prauw, when taken possession of,
not only was “‘floating derelict at sea’ but was “incontrovertibly
outside the territorial waters of the Dutch Indies”; that “the
appropriation of the cargo of the aforesaid prauw.... having
taken place on the high seas, was only justiciable by the English
tribunals, and in nowise by the Dutch tribunals” ; that “even the
identity of the above-mentioned derelict” with the prauw claimed
by a Dutch subject was “nowise proved’, and that all the evidence
went to prove “the absence of any real cause for arresting’ the
captain of the Costa Rica Packet, allowed damages for his arrest
and detention, and for the consequent losses of the ship’s owners,
officers and crew. In his recitals the arbitrator also stated that
“the right of sovereignty of the State over territorial waters is deter-
mined by the range of cannon measured from low-water mark”,
and that “‘on the high seas even merchant vessels constitute detached
portions of the territory of the State whose flag they bear, and,
consequently, are only justiciable by their respective national
authorities for acts committed on the high seas’. As to the first
recital, it may be observed that the arbitrator’s statement regard-
ing the extent of territorial waters, if it meant the range of cannon
in 1897, was not in conformity with international law as then or
as now existing. The second recital may be accepted as affirm.
ing the general principle of the quasi-territorial jurisdiction of
JUDGMENT No. O.—DISSENTING OPINION BY Mr. MOORE. 85

nations over their ships at sea; but it is also to be taken in
connection with the arbitrator's other recital that the prauw,
when found, was “derelict”. The word ‘derelict’, in maritime
law, means ‘a boat or vessel found entirely deserted or abandoned
on the sea, without hope or intention of recovery or return by
the master or crew, whether resulting from wreck, accident,
necessity, or voluntary abandonment”. (Black’s Law Dictionary,
and ed., 1910, s. v. “Derelict”. See, to the same effect, Bouvier’s
Law Dictionary and the cases there cited, and the Oxford
Dictionary.)

Without regard to any question as to the proper disposition of
goods found derelict at sea, and the right of the owner to claim them
on payment of salvage (The King v. Property Derelict (1825),
1 Haggard’s Adm. 383), it might not be unreasonable to maintain
that, on the facts as the arbitrator declared them to be, the principle
of territoriality and national jurisdiction could no more be invoked
for the protection of the derelict prauw than it could have been
for the floating log which the prauw was at first supposed to be ;
but, in order to determine the weight to be given to what the arbi-
trator said as to the operation of the principle of territoriality
at sea, it is not necessary to decide that question. The prauw either
was to be treated as a subject for the application of the principle of
national jurisdiction, or it was not to be so treated. If the arbitra-
tor considered the principle to be applicable, he violated it in holding
that the persons, no matter from what quarter they came, who
boarded the prauw, took possession of her and transferred her cargo
to the ship, did not in so doing place themselves under the dominion
of Dutch laws, and his ruling on this point cannot be accepted as
law. If, on the other hand, he did not consider the principle of
territoriality to be applicable to the prauw, there was no room for
jurisdictional competition, and his decision has no bearing on the
question now before the Court.
JUDGMENT No. 9.—DISSENTING OPINION BY Mr. MOORE 86

I will next consider three cases discussed in the documents
before the Court and mentioned in its judgment. The first is that
of the collision between the ships Amge-Schiafino and Gironde,
in 1904, tried by the French courts in Algiers. The collision took
place 7 miles off the Algerian coast, and the Gironde was sunk
with loss of life. The Correctional Court at Bone, by which the two
captains, one of whom was of Italian origin, were jointly tried for
involuntary homicide, overruled an exception to the jurisdiction
of the Court based on the ground that the collision occurred outside
territorial waters ; and this decision was affirmed on appeal by the
Cour d'Alger. In the Turkish Mémoire, the case is cited as relating
to ships of different nationality, one French, the other foreign;
but in a letter from the procureur général near the Cour d'Alger of
May 6th, 1927, addressed to the Agent of the French Government,
it is stated that both ships were French. The case therefore need
not be further considered in this place. (See Turkish Mémoire,
Pp. 15-17, 22-23, citing Clunet, Journal du Droit international privé,
vol. 36 (1909), p. 735 ; French Contre-Mémoire, pp. 13, 15, 42.)

The second case is that of the ships Ortigia and Oncle-Joseph,
one Italian and the other French, which collided on the high seas
off the Italian coast in 1880. The Oncle-Joseph was sunk, with much
loss of life. The survivers from the Oncle-Joseph, including the
captain, were taken on the Ortigia to Leghorn, where the two cap-
tains were jointly prosecuted for want of skill and failure to observe
the rules of navigation. The Court at Leghorn, finding that the
collision was due to the fault of the captain of the French ship,
condemned him to four months’ imprisonment, two months’ suspen-
sion of rank, and payment of damages. This decision was affirmed
on appeal by the Court of Florence in 1882. Subsequently, however,
the French Court of Aix declined to enforce the judgment in France
on the ground that, the offence having been committed on the high
seas, the captain of the Oncle-Joseph was not justiciable by the
tribunal at Leghorn, and that, besides, the article of the Italian
Code on which the prosecution was based was exclusively applic-
able to Italian ships and sailors. It does not appear that the case
gave rise to diplomatic correspondence. (See Turkish Mémoire,
pp. 16-17, citing Clunet, 1885, p. 287 ; French Mémoire, citing Clunet,
JUDGMENT No. 9.-—DISSENTING OPINION BY Mr. MOORE 87

1885, p. 286, and Sirey, 1887, 2, 217; French Contre-Mémoire,
pp. 16, 21, 38.) |

In the third case, a tender, in tow of the German steamer Ekbatana, .
on the night of December 14th-15th, 1912, ran into the Belgian light-
ship West-Hinder, moored on the high seas about 19 miles from the
Belgian coast. The West-Hinder was sunk, and her crew of ten
men perished. The Correctional Court at Bruges entertained a
criminal prosecution of the captain of the German ship, on the charge
of having negligently caused the death of the crew of the West-
Hinder. The case does not appear to have given rise to any diploma-
tic representations. The Agent of the French Government, how-
ever, lays emphasis upon the fact that the Belgian court in its judg-
ment refers to the lightship as having been installed by the Belgian
State in the interest of the safety of navigation, with due notice
abroad, and as having been entitled, both as an extension of Belgian
territory and as a ship engaged in the public service of the State,
to special protection and immunities. For this reason the Agent of
the French Government maintains that the case was not altogether
comparable with that of a Belgian commercial vessel from the
point of view of the competence of the Belgian Government to deal
with facts affecting it. (See Turkish Mémoire, pp. 18-21, citing Clunet,
1012, p. 1328; French Contre-Mémoire, pp. 17-21, with additional
citations.) But, while it is undoubtedly true that public ships
enjoy, not only at sea but also in foreign ports, jurisdictional
immunities to which a merchant vessel is not entitled, it is necessary
to point out that those immunities are not considered as conferring
on such ships, or on the countries to which they belong, jurisdiction
over the vessels, public or private, of other nations on the high seas.

In the discussion of questions similar to that now before the Court,
considerations of convenience have been invoked on the one side
and on the other. This was so in the case of The Queen v. Keyn,
where those who were against sustaining the conviction strongly
urged the inconveniences that might ensue from holding the entire
body of English penal law to be applicable to foreign ships in
territorial waters; and the force of the argument was recognized
in the clause of the Territorial Waters Jurisdiction Act, requiring
in the case of a foreign prisoner a certificate by a Principal
JUDGMENT No. 9.—DISSENTING OPINION BY Mr. MOORE 88

Secretary of State that in his opinion the trial of the prisoner is
expedient. Immense quantities of shipping, bound from one
foreign port to another, daily pass, on their regular course, through
the territorial waters of third States; and yet international law
permits such third States to enforce their municipal law upon
‘such shipping. On the other hand, in the case of many countries
with long coast lines, a vast tonnage in the coastwise trade daily
passes, in regular course, in and out of the three-mile belt ; and is it
to be said that, save in the extreme and exceptional case of piracy
‘by law of nations, international law forbids the country, to which
this coastwise shipping belongs, to take cognizance of criminal acts
-done in or upon it by or from foreign ships, when it is temporarily
outside territorial. waters, should the offenders afterwards
‘voluntarily come within such waters? A. collision may result
from chance, from negligence, or from a wilful act. By the rules
-of navigation a ship is required to avoid a collision if it can do so,
-even though the other ship is faultily navigated ; and a navigating
officer who, from anger or other cause, violated this rule, would,
I assume, be chargeable with something more than negligence.
‘The importance of such considerations is not lessened by the increase
in the number and size of the ships and the vast increase in the
number of persons daily transported at sea. Nor is the advantage
of a trial near the scene of a disaster, with witnesses on both sides
available, over a proceeding in a distant place, perhaps with the
witnesses on only one side present, to be overlooked. More than
a hundred years ago a great judge, of unsurpassed experience in
Admiralty cases, commented upon the “great discordance of
evidence” frequently existing in such cases as to the person at
fault, and upon the fact that the testimony of the witnesses was
“apt to be discoloured by their feelings and the interest which
they take in the success of the cause”. (Sir William Scott, case of
the Woodrop Sims (1815), 2 Dodson, 83.)

It is well settled that a State is bound to use due diligence to
prevent the commission within its dominions of criminal acts
against another nation or its people (United States v. Arjona
JUDGMENT. No. 9.—DISSENTING OPINION BY Mr. MOORE 89

(1887), 120 U.S. 479), and if the principle of territorial jurisdiction,
as it exists in respect of ships on the high seas, has a special and
one-sided operation in favour of the nation to which the offending
ship belongs, one might expect to find a corresponding special
liability. But this is not the case. In the negotiation of the
Treaty concluded between the United States and Great Britain
on February 20th, 1892, for the arbitration of the fur-seal question,
the United States proposed to empower the arbitrators to award
compensation not only to British subjects whose vessels should
be found to have been unwarrantably seized, but also to the
United States, for any injuries resulting to the United States,
or its lessees of the seal islands, by reason of the killing
of seals in Behring Sea, outside territorial waters, “by persons acting
under the protection of.the British flag”, if such killing should
“be found to have been an infraction of the rights of the United
States”. (Blue Book, “United States, No. 3 (1892)’’, 72.) To this
proposal the British Government objected on the ground that
it appeared “to imply an admission on their part of a doctrine
respecting the liability of governments for the acts of their nationals
or other persons sailing under their flag on the high seas, which is
not warranted by international law, and to which they cannot
subscribe”. The claim was not pressed, the discussion of it ending
with the insertion in the treaty of a stipulation to the effect that,
the Parties having been unable to agree on the point, either Party
might submit to the tribunal “any question of fact involved in
said claims, and ask for a finding thereon, the question of the liability
of either Government upon the facts found to be the subject of
further negotiation’”’.

ITI.

Inow come to Article 6 of the Turkish Penal Code. The judgment
of the Court expresses no opinion on the question whether the
provisions of that article are in conformity with the rules of inter-
JUDGMENT. No. 9.—DISSENTING OPINION BY Mr. MOORE go

national law. This abstention appears to be based (1) upon the
fact that the article is not mentioned in the compromis, and (2)
on the view that an error in the choice of the legal provision
applicable to the case was essentially a matter of internal law —
which could affect international law only so far as a conventional
rule or the possibility of a denial of justice should enter into
account.

The compromis asks the Court to find whether Turkey violated
international law “by instituting.... joint criminal proceedings
in pursuance of Turkish legislation” (en vertu de la législation
turque) against the watch officer of the Lotus. No doubt this
may be so interpreted as to mean that the Court is asked solely
to say whether Turkey was precluded from taking any criminal
proceedings. whatever against the officer. But the compromis
speaks of proceedings under Turkish legislation, and, although
the Court has not been furnished with a copy of the actual proceed-
ings, Article 6 is, as an integral part of them, before the Court in the
documents submitted by the Parties, and forms the subject of
much of their arguments. This being so, I am unable to concur
in the view that the question of the international validity of the
article is not before the Court under the terms of the compromis.

Article 6 reads as follows : |

{ Translation]

“Any foreigner who, apart from the cases contemplated
by Article 4, commits an offence abroad to the prejudice of
Turkey or of a Turkish subject, for which offence Turkish law
prescribes a penalty involving loss of freedom for a minimum
period of not less than one year, shall be punished in accordance
with the Turkish Penal Code provided that he is arrested in
Turkey. The penalty shall however be reduced by one third
and instead of the death penalty twenty years of penal
servitude shall be awarded.

“Nevertheless, in such cases, the prosecution will only be
instituted at the request of the Minister of Justice or on the
complaint of the injured Party.

“If the offence committed injures another foreigner, the
guilty person shall be punished at the request of the Minister
of Justice, in accordance with the provisions set out in the
first paragraph of this article, provided however that :

N
JUDGMENT No. 9.—DISSENTING OPINION BY MI. MOORE. OI

- “(x) the article in question is one for which Turkish law
prescribes a penalty involving loss of freedom for a minimum
period of three years ;

‘“(2) there is no extradition treaty, or that extradition has
not been accepted either by the government of the locality
where the guilty person has committed the offence or by the
government of his own country.” |

The Court, not being empowered by the compromis to inquire into
the regularity of the proceedings under Turkish law, or into the
question of the applicability of the terms of Article 6 to the facts
in the case, must take the article and its jurisdictional claim
simply as they stand. ‘The substance of the jurisdictional claim
is that Turkey has a right to try and punish foreigners for acts
committed in foreign countries not only against Turkey herself,
but also against Turks, should such foreigners afterwards be found
in Turkish territory. In saying that Turkey makes this claim,
I intend nothing invidious. The same claim is made by a number
of other countries, and it is from the codes of these countries that
Article 6 was taken. But, without regard to the source from which
the claim was derived, I cannot escape the conclusion that it is
contrary to well-settled principles of international law.

Without entering at this time into an elaborate exposition of the
reasons on which this conclusion is based, I will quote from Hall,
an eminent authority on international law, the following passage :

“The municipal law of the larger number of European countries
enables the tribunals of the State to take cognizance of crimes
committed by foreigners in foreign jurisdiction. Sometimes their
competence is limited to cases in which the crime has been directed
against the safety or high prerogatives of the State inflicting the
punishment, but it is sometimes extended over a greater or less
number of crimes directed against individuals... Whether laws
of this nature are good internationally ; whether, in other words,
they can be enforced adversely to a State which may choose to
object to their exercise, appears, to say the least, to be eminently
doubtful. It isindeed difficult to see on what they can be supported.
It would seem that their theoretical justification, as against an
objecting country, if any is alleged at all, must be that the exclusive

12
JUDGMENT No. 9.—DISSENTING OPINION BY Mr. MOORE 92

territorial jurisdiction of a State gives complete control over all
foreigners, not protected by special immunities, while they remain
on its soil. But to assert that this right of jurisdiction covers
acts done before the arrival of the foreign subjects in the country
is in reality to set up a claim to concurrent jurisdiction with other
States as to acts done within them, and so to destroy the very
principle of exclusive territorial jurisdiction to which the alleged
right must appeal for support.” (Hall, International Law, 8th
edition (1924), paragraph 62, pp. 261, 263, citing Westlake (Peace,
261-263), Appendices (I, paragraph 147), Fauchille, paragraphs
264, 267.)

It will be observed that Hall founds his disapproval of the claim
mainly on its assertion by one nation of a right of concurrent juris-
diction over the territory of other nations. This claim is defended
by its advocates, and has accordingly been defended before the
Court, on what is called the “protective” principle ; and the coun-
tries by which the claim has been espoused are said to have adopted
the “‘system of protection’.

What, we may ask, is this system ? In substance, it means that
the citizen of one country, when he visits another country, takes
with him for his “protection” the law of his own country and
subjects those with whom he comes into contact to the operation
of that law. In this way an inhabitant of a great commercial
city, in which foreigners congregate, may in the course of an hour
unconsciously fall under the operation of a number of foreign
criminal codes. This is by no means a fanciful supposition ; it is
merely an illustration of what is daily occurring, if the “protective”
principle is admissible. It is evident that this claim is at variance
not only with the principle of the exclusive jurisdiction of a State
over its own territory, but also with the equally well-settled principle
that a person visiting a foreign country, far from radiating for his
protection the jurisdiction of his own country, falls under the
dominion of the local law and, except so far as his government
may diplomatically intervene in case of a denial of justice, must
look to that law for his protection.

No one disputes the right of a State to subject its citizens abroad
to the operations of its own penal laws, if it sees fit to do so. This
concerns simply the citizen and his own government, and no other
JUDGMENT. No. O.—DISSENTING OPINION BY Mr. MOORE 93

government can properly interfere. But the case is fundamentally
different where a country claims either that its penal laws apply to
other countries and to what takes place wholly within such coun-
tries or, if it does not claim this, that it may punish foreigners for
alleged violations, even in their own country, of laws to which
they were not subject.

In the discussions of the present case, prominence has been given
to the case of the editor Cutting, a citizen of the United States,
whose release was demanded when he was prosecuted in Mexico,
under a statute precisely similar in terms to Article 6 of the Turkish
Penal Code, for a libel published in the United States to the detri-
ment of a Mexican. It has been intimated that this case was
“political”, but an examination of the public record (Foreign Rela-
tions of the Umited States, 1887, p. 751 ; idem, 1888, I], pp. 1114,
1180) shows that it was discussed by both Governments on purely
"legal grounds, although in the decision an appeal, by which the
prisoner was discharged from custody, his release was justified on
grounds of public interest. In its representations to the Mexican
Government, the Government of the United States, while main-
taining that foreigners could not be ‘‘protected in the United States
by their national laws’, and that the Mexican courts might not,
without violating international law, ‘‘try a citizen of the United
States for an offence committed and consummated in his own
country, merely because the person offended happened to be a
Mexican’’, pointed out that it nowhere appeared that the alleged
libel “‘was ever circulated in Mexico so as to constitute the crime
of defamation under the Mexican law’, or “that any copies were
actually found....in Mexico”. The United States thus carefully
limited its protest to-offences ‘‘committed and consummated” within
its territory ; and, in conformity with this view, it was agreed inthe
extradition treaty between the two countries of February 22nd,
1889, that except in the case of “‘embezzlement or criminal malver-
sation of public funds committed within the jurisdiction of either
Party by public officers or depositaries”, neither Party would
“assume jurisdiction in the punishment of crimes committed
exclusively within the territory of the other”. (Moore, Digest
of International Law, IT, pp. 233, 242.)
JUDGMENT No. 9.—-DISSENTING OPINION BY Mr. MOORE 94

For the reasons which I have stated, I am of opinion that the
criminal proceedings in the case now before the Court, so far as
they rested on Article 6 of the Turkish Penal Code, were in conflict
with the following principles of international law :

(x) that the jurisdiction of a State over the national territory
is exclusive ;

(2) that foreigners visiting a country are subject to the local
law, and must look to the courts of that country for their judicial
protection ;

(3) that a State cannot rightfully assume to punish foreigners
for alleged infractions of laws to which they were not, at the time
of the alleged offence, in any wise subject.

(Signed) J. B. Moore.