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(1) In the Lotus Case 129 Turkey tried and convicted State Bayard stated in an instruction dated November 1,
a French national on the basis of a Turkish criminal 1887, to the United States Charge d'Affaires in Mexico:
statute which provided that Turkey might try and punish [Tlhe assumption of the Mexican tribunal, under the law of Mexico,
any individual who injured a Turkish citizen. This particu- to punish a citizen of the United States for an offense wholly committed
lar case involved a collision between a French vessel, the and consummated in his.orm country against its laws was an invasion of
Lotus, and a Turkish ship, the Boz-Kourt, five to six the independence of this Government. . . .
.. .It is not now, and has not been contended, by this Government
miles off the coast of Turkey. Upon the docking of the . ..that if Mr. Cutting had actually circulated in Mexico a libel printed in
Lotus in Turkey, a Lt. Demons, officer of the watch on Texas, in such a manner as to constitute a publication of the libel in
the Lotus on the day of the crash, was arrested and con- Mexico within the terms of Mexican law, he could not have been tried
victed of manslaughter on the basis, partially, of the and punished for this offense in Mexico. . . .
As to the question of international law, 1 am unable to discover any
above-mentioned Turkish statute. As a result of strong principle upon which the assumption of jurisdiction made in Article 186
French protests, Turkey agreed to submit the question of of the Mexican penal code can be justified. . . .
the legality of Lt. Demons' conviction to the Permanent It has constantly been laid down in the United States as a rule of ac-
Court of International Justice. The Court, in upholding tion, that citizens of the United States cannot be held answerable in
the conviction, decided the case on other grounds, one of foreign countries for offenses which were wholly committed and con-
which was the fact that, as the Turkish citizens killed in the summated either in their own country or in other countries not subject
to the jurisdiction of the punishing state. When a citizen of the United
collision were abroad a Turkish vessel, Turkey had ter- States commits in his own country a violation of its laws, it is his right to
ritorial jurisdiction. The majority of the Court did not, be tried under and in accordance with those laws, and in accordance with
however, hold the Turkish statute in question to be in- the fundamental guaranties of the Federal Constitution in respect to
valid. 130 In his dissenting opinion in the Lotuscase, Judge criminal trials in every part of the United States.
To say that he may be tried in another country for his offense, simply
Moore stated that basing jurisdiction on the nationality of because its object happens to be a citizen of that country, would be to
the victim meant that: assert that foreigners coming to the United States bring hither the penal
.. . . the citizen of one country, when he visits another country, takes laws of the country from which they come, and thus subject citizens of
with him for his "protection" the law of his own country and subjects the United States in their own country to an indefinte criminal respon-
those with whom he comes into contact to the operation of that law. . .. sibility. .. . 133
It is evident that this claim is at variance not only with the principle of
exclusive jurisdiction of a State over its own territory, but also with the c. Universal Jurisdiction. The last basis of jurisdiction
equally well-settled principle that a person visiting a foreign country, far to merit discussion is the "universality" theory. As in the
from radiating for his protection the jurisdiction of his own country, falls case of "passive personality," this jurisdictional concept
under the dominion of the local law. .. . 131 enjoys limited acceptance. The only crime to which its ap-
(2) The Cutting incident of 1886-88 arose out of the plicability appears to be wisely recognized is that of piracy.
Mexican prosecution of an American citizen who had In this regard, Hackworth writes:
allegedly libeled a Mexican by means of a statement It has long been remgnked and well settled that persons and vessels
published in a Texas newspaper. Judge Moore, then a engaged in piratical operations on the high seas are entitled to the pro-
State Department Officer, had prepared the Report on Ex- tection of no nation and may be punished by any nation that may ap
prehend or capture them. This stem rule of international law refers to
traterritorial Crime and the Cutting Case, 132 on which
piracy in its intemational law sense and not to a variety of lesser
subsequent United States protests were based. The Mex- maritime offenses so designated by municipal law. 134
ican Government relied on Article 186 of the Mexican The 1958 Geneva Convention on the High Seas 135 con-
Penal Code, which provided, in part, that "[plenal tainsspecific articles pertaining to piracy and the universal
offenses committed in a foreign country . . . by a foreigner
against Mexicans, may be punished . . . [in Mexico] ac- right of states to apprehend and punish those guilty of this
crime.
cording to its laws," if the accused was present in Mexico,
Art. 14.AU States shall co-operate to the fullest possible extent in the
if he had not been "definitively tried in the country where repression of piracy on the high seas or in any other place outside the ju-
the offense was committed," and if the offense was a risdiction of any state.
"penal offense" by the laws of both states. Secretary of Art. 19. On the high seas, or in any other place outside the jurisdic-
tion of any State, every State may seize a pirate ship or aircraft, or a ship
taken by piracy and under the control of pirates, and arrest the persons
129. Case of the S.S. "Lotus," [I9271 P.C.I.J., ser. A, No. 9
(hereinafter cited as "Lotus" Case). and seize the property on board. The courts of the State which carried
130. The Geneva Convention on the High Seas, 13 U.S.T. 2312 out the seizure may decide upon the penalties to be imposed, and may
(1958) (hereinafter cited as High Seas Convention) provides in Article also determine the action to be taken with regard to the ships, aircraft or
property, subject to the rights of third parties acting in good faith.
11 that penal or disciplinary action arising out of collision or other inci-
dent of navigation may be instituted only before judicial or administra- Art. 21. A seizure on account of piracy may only be carried out by
tive authorities either of the state of which the individual proceeded warships or military aircraft, or other ships or aircraft on government
against is a national, or the flag state of the vessel on which he sewed. sentice authorized to that effect.
Ships may be arrested or detained, even as a measure to aid investiga- (1) The characteristic of piracy as a crime of univer-
tion, only by authorities of the flag state. Only the state which issued a
master's certificate or other license may revoke the certificate. 133. Id. at 751.
131. "Lotus" Case, supra, note 129 at 92. '34. 2 G. Hackworth, Dkest of International Law 681 (1941).
132. [I8871 U.S. For. Rel. 757. 135. Geneva Convention on the High Seas, supra, note 130.