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VIII. CURRENT NOTES ON INTERNATIONAL

LAW.

Japan and California.

Admiration is due to the impressive and high-minded fashion in which the United States President and his Secretary of State are dealing with the problem of Californian jealousy of Japanese settlers. They have set themselves to attack the problem in a tactful and sensible way, convinced that there ought to be a reasonable solution of every difficulty for large-minded and tolerant people. If they are met in a similar spirit in Japan (and the history of Japan gives us every reason to feel certain that they will), there need be little doubt of a satisfactory settlement. The conflict between State autonomy and Federal obligations is, of course, perennial. It is, however, rather surprising to see it break out over a question of the right of aliens to hold land. For it is usually considered a great indulgence to foreigners to permit them to acquire land at all.

The complaint of Japan is, not so much that her subjects are not permitted to acquire land, but that other foreigners are. In other words, it is the discrimination to which she principally objects, and declares to be contrary to treaty. By the Treaty of 1894, enlarged in 1911, she is accorded most-favoured nation" privileges. These naturally do not extend to political rights. The exclusion of Asiatic aliens from admission to United States citizenship is no infraction of the Treaty. But it would be an infraction if the private rights of aliens were cut down by provisions which would exclude the bulk of the Japanese nation from their exercise. And, by excluding from power to acquire land in California persons who are excluded from citizenship, the Californian legislature excludes Asiatics, and consequently almost all Japanese (Lafcadio Hearn would have furnished an exception).

Are, then, rights of acquiring land within the Treaty? The answer is plain. Its words expressly include land. If (as we assume) the Treaty of 1911 is in the same terms as the French Treaty (see Clunet, Journal, 1913, p. 302), Japanese are entitled "to possess, or hire and occupy the houses and premises which may be necessary for them and to lease land for the purposes of residence, or for use for lawful commercial, industrial, manufacturing or other purposes" (Art. I (4)), and (I (5)) they may "freely acquire and possess every description of movable and immovable property which is capable by the territorial law of being acquired or possessed by the subjects of any other foreign country." These provisions are much more explicit than those of the Treaty of 1894, which had made no express reference to immovables, and had limited the purposes for which houses, &c., might be possessed to purposes of residence and commerce, thus implicitly excluding agriculture.

The very difficult question thus arises, how far is the United States Government bound to see that the Japanese are enabled to buy land against the will of the State authorities? In general, a government which undertakes such obligations merely contracts that it will not itself impose any obstacles in the way of the foreigners. It does not undertake to remove them when imposed by individuals. It does not force private persons to sell. It does not prohibit private persons from exercising pressure on owners not to sell. On the whole, especially in this case, where the existence of local Governments with extensive powers is well known, one may fairly come to the conclusion that it was not intended to give any undertaking to guarantee that the separate States would not use these powers, as a private individual might use his, in a sense adverse to the Treaty. The obvious answer is that such a construction makes the Treaty worthless. But that is not quite accurate. Federal action directed

against foreign land-owning would be much more effective and sweeping than such action as isolated States can take.

It is rumoured that the President has invited the Japanese to exercise measures of retorsion. Herein lies the strength of the Executive as against a refractory State. The President can simply decline to use the forces of the Union to help it. No doubt, public opinion in the States would not tolerate a foreign invasion of any member of the Union. But there are many processes short of this which the President might allow to pass without challenge.

The "Carthage" and "Manouba."

Early in 1912 the Italians, during their war with Turkey, seized the C.G.T. Carthage on the ground that an aëroplane on board was destined for the Turkish forces in Tripoli. The ship's destination was Tunis: and the case shows the utter disorganisation into which the trade of a neutral port may be thrown by the Declaration of London. By that instrument (on whose terms the Italians were acting) warlike matériel may be captured without any need to show that the ship which is carrying them is actually bound for an enemy's port (Art. 30). Here we have the trade of Tunis threatened with complete interruption, in order that Italians might satisfy themselves that it was doing them no harm. It does not matter that aëroplanes are not within the Declaration's definition of warlike matériel: there are plenty of other objects which are. Had it not been for M. Poincaré's vigorous protests, this capture would have been the first of a long series. No one can suppose that the very moderate damages awarded a year subsequently would operate as a deterrent against such a course.

For the five days' detention of the Carthage £6,400 was found to be due (£1,000 of which was for the aviator, and the remainder nearly in equal proportions for the owners

on the one hand, and the cargo-owners and passengers on the other). In the Manouba case 4,000 francs only were awarded. That vessel, ex Marseilles for Tunis, was seized on 19th January, 1912, and taken to Cagliari, in Sardinia, where 29 Turks, alleged to be carrying arms and cash to Tripoli, were taken out of her. They were really members of a Red Crescent mission; and here again the Declaration of London, allowing combatants to be seized on board any ship wherever destined (a provision (Art. 47) which it is amazing that a British Minister should ever have signed), gives occasion for serious interference with the communications of neutral ports. Even after the non-combatant character of these Turks was established, the Italians detained them. Not until 27th January, when the agreement of arbitration was concluded, were they released.

Now £160 is a ludicrous amount of damages in a case like the Manouba. The violation of French hospitality was serious. What future commander will hesitate to take drastic measures with neutral commerce if he is only involving his Government in the possible payment in the far-distant future of £160? The real ground for satisfaction in these unpleasant cases is not the whitewashing judgment rendered on 6th May at the Hague, in which the Italians, like the Russian heroes of the Doggerbank, were exonerated from all culpability. It is the spirit which was evoked in France by the Italian action, and which prevented the recurrence of such autocratic acts of interference.

Criminal Jurisdiction.

Considerable astonishment appears to have been felt in the British Parliament at the fact that a British subject cannot go to a foreign country without being liable to be called to account for what he has done outside it. But it is

clear that no State can be expected to refrain from executing judgment upon a person who has in its view injured it, should he come upon its territory. Some States, like our own, take the view that crime is territorial, and magnanimously refrain from prosecuting foreigners (or, indeed, their own subjects) on account of acts committed abroad. Few, if any, are prepared to inflict penalties for all offences against their own laws wherever committed. take the intermediate course of penalising offences against themselves and their security when they get the opportunity. France is conspicuous in this respect, but Germany and Italy adopt the same principle. Others take cognizance of offences against their subjects as well.

But many

A Mr. Moore was arrested in Belgian Africa on a charge of libel. The libels -so-styled-were published in British South Africa. But the principle just mentioned legitimates the prosecution, if they were supposed to be reflections on the Government, or persons concerned in it, or, at any rate, on Belgian subjects. Even had they not been such, and had been concerned with foreigners solely, the fine point might be taken that Mr. Moore published the statements in Belgian territory, though remaining outside it, just as if he had thrown them across the frontier. A Belgian subject who shot an Englishman from Belgian territory would be fairly within the competence of a British Court to try if he subsequently entered British territory, even on the theory that "crime is territorial." And it has been judicially held that a false pretence made by being posted in Glasgow for delivery in Durham is perpetrated "in England." (R v. Ellis, L. R. [1899], 1 Q. B. 230).

On the whole, there is not much sense in the contention that "crime is territorial." Its advocates allege that if a State imposes penalties on crimes committed outside its