« PreviousContinue »
state making the demand, (2) that there be sufficient evidence of guilt to establish a case, and (3) that the application be from the proper authority and in the proper form. 1
(d) The procedure in cases of extradition is based on definite principles. As it is an act of sovereignty, it must be performed by agents of the sovereign person, who for this purpose, although generally engaged in other functions, are executive officers. The general rule is that the demand for extradition shall be made through the ordinary diplomatic channels. In colonies and under special circumstances an officer of first rank may be the medium of the demand.
The person demanded may be placed under provisional arrest pending the full proceedings of extradition.3
Reasonable evidence of the identity of the person and of the facts of the crime must be furnished by the state making the demand.
demand. In case a person is demanded by two states, his native state and a third state in which he has committed a crime, it is customary to grant the request of the state in which he has committed the crime.
When a person is demanded on the ground of separate crimes committed in both states as above, if the crimes are equally grave, the request of his native state is granted. Sometimes, however, when the third state
1 Treaties of U. S., 437 and 1289–1293 ; 26 U. S. Sts. at Large, 1510; U. S. Rev. Sts., $$ 5270-5280 ; 1 Gould and Tucker, 979–989; 2 Whart., $$ 274–280.
2 In case of Chesapeake, 1863, the consul acted as agent. Wheat., D., § 428, note 207; 3 Pradier-Fodéré, 1876.
8 3 Pradier-Fodéré, 1877.
offers to surrender the fugitive to his native state after he has paid the penalty of his crime, the request of the third state is granted.
When the crime committed in one state is more grave than that committed in another, the request of the state maintaining the graver charge is granted.
When states other than the native state request the extradition of a fugitive, the state receiving the demand may take into consideration the gravity of the offense and the probability that a given state will, after securing justice, make it possible for other states to prosecute their claims. In cases of equal gravity priority of demand usually determines the course of action. 1
If the person demanded is accused of a crime in the state of refuge, the demand for his extradition may be refused pending his trial in the state of refuge.
Many other questions arise which complicate the actual procedure in cases of extradition, but these belong mainly to the realm of private international law.
$ 66. Servitudes Servitudes in international law constitute a restriction upon the exercise of the territorial jurisdiction of a state in favor of one or more states. (a) International servitudes are:
(1) positive, implying that a state is under obligation to permit within its territory another state to exercise certain powers, as by the Treaty of
Berlin, 1878, Art. XXIX. “ The administration 1 « Annuaire de l'Institut de droit international,” 1881–1882, p. 128.
of the maritime and sanitary police, both at Antivari and along the coast of Montenegro, shall be carried out by Austria-Hungary by means of light coastguard vessels ; "I
(2) negative, implying that a state is to refrain from certain acts, otherwise customary, as “ Montenegro shall neither have ships of war nor flag
of war.” 2 Among the positive servitudes are: those obligations of a state to allow within its own jurisdiction the exercise of political or administrative authority by another state, as in the execution of judicial or police regulations ; those obligations to allow the exercise of military authority, as in military occupation of a portion of the territory or the passage of troops. Among the negative servitudes are : those obligations of a state to refrain from exercising within its own jurisdiction certain political or administrative authority which might be exercised, if the servitude did not exist, as in the exemption of the citizens or corporate persons of certain states from certain acts of jurisdiction or taxation; those obligations to refrain from military acts, such as the limitation of the army or navy to a certain number, or the obligation not to fortify a certain place.
(6) There are also servitudes which may be called general, because binding alike upon every state in favor of all others, such as the innocent use of territorial seas.3 1 IV. Hertslet, 2783.
2 Ibid. 8 For the general question, see 2 Pradier-Fodéré, 834, 845.
67. PROPERTY IN GENERAL.
$ 67. Property in General The term “property” has been used in varying senses by writers upon international law. By virtue of the fact that a state has jurisdiction over all its public property there has sometimes been confusion between the two terms, but jurisdiction may, and does, extend to persons and things of which proprietorship cannot be affirmed by the state.
In the sense commonly used in international law the property of a state is held to be all the lands and water within its limits. Within this territory the state has rights to the exclusion of other states, and upon the land area may exercise the right of eminent domain.
The idea of property in this international sense is distinct from that of private ownership, which is merely relative and depends upon the regulations of the state; indeed, private property may be seized for the debts of the state.
A state may hold absolute possession of such objects as are capable of appropriation, as lands, buildings, and other material resources for public purposes. In some cases the state owns the railroads, telegraphs, mines, etc. In time of war such property receives treatment somewhat different from that of private property, and in time of peace it may receive special recognition, e.g. houses of ambassadors.
$ 68. State Property in International Law
Hall outlines this subject as follows: “A state may cown property as a private individual within the juris
diction of another state; it may possess the immediate as well as the ultimate property in movables, land, and buildings within its own territory; and it may hold property in its state capacity in places not belonging to its own territory, whether within or outside the jurisdiction of other states."1 Property of the first class falls under the local law of the state in which it is. Property of the second class may come within the scope of international law in time of war. Property of the third class may come with the scope of international - law both in time of peace and of war.
1 § 43, p. 167.