The Casa Blanca Incident.
§ 446a. Another interesting example is the Casa Blanca incident. On September 25, 1908, six soldiers—three of them Germans—belonging to the French Foreign Legion which formed part of the French troops at Morocco, deserted at Casa Blanca and asked for and obtained the protection of the local German consul, who intended to take them on board a German vessel lying in the harbour of Casa Blanca. On their way to the ship, however, they were forcibly taken by the French out of the custody of the secretary of the German Consulate and a native soldier in the service of the consulate who were conducting them. Considering all Germans in Morocco without exception exterritorial and under the exclusive jurisdiction of her consul, Germany complained of this act of force and demanded that those of the deserters concerned who were German subjects should be given up to her by France, acknowledging the fact that the consul had no right to extend his protection to other than German subjects. France refused to concede this demand, maintaining that the individuals concerned had even after their desertion remained under the exclusive jurisdiction of their corps, which formed part of a French force occupying foreign territory. As the parties could not settle the conflict diplomatically, they agreed, on November 24, 1908, to bring it before the Hague Court of Arbitration, which gave its award[788] on May 22, 1909, on the whole in favour of France. The Court considered: that there was a conflict of jurisdiction with regard to the German deserters because they were as German subjects under the exclusive jurisdiction of the German Consulate, but as deserters from the French Foreign Legion under the exclusive jurisdiction of the French Army of Occupation; that under the circumstances of the case the jurisdiction of the Army of Occupation should have the preference; that nevertheless the German consul was not to be blamed for his action on account of the fact that in a country granting exterritorial jurisdiction to foreigners the question of the respective competency of the consular jurisdiction and of the jurisdiction of an Army of Occupation was very complicated and had never been settled in an express, distinct, and universally recognised manner; that, since the German deserters were found at the port under the actual protection of the German Consulate and this protection was not manifestly illegal, the actual situation should, as far as possible, have been respected by the French military authority; that therefore the French military authorities ought to have confined themselves to preventing the embarkation and escape of the deserters, and, before proceeding to their arrest and imprisonment, to have offered to leave them in sequestration of the German Consulate until the question of the competent jurisdiction had been decided. The Court did not, however, decree the restitution on the part of France of the three German deserters to Germany.[789]
[788] See Martens, N.R.G. 3rd Ser. II. (1910), p. 19. An English translation of the Award is printed in A.J. III. (1909), p. 755.
[789] The ambiguity of the award has justly been severely criticised. If, as the Court correctly asserts, the jurisdiction of an Army of Occupation must prevail over the jurisdiction of a consul over his nationals in a country granting exterritorial jurisdiction, a decision of the conflict on mere legal grounds would have to be entirely in favour of France, for it is difficult to see how a wrongfully acquired and illegally asserted protection can create any obligation on the part of those who are exclusively competent to exercise jurisdiction. But it is a well-known fact that Courts of Arbitration frequently endeavour to give an award which satisfies both parties and the ambiguity of the award in the Casa Blanca incident is manifestly due to this fact. The award is not of such a kind as one would expect from a Court of Justice, although it may be an excellent specimen of an arbitral decision. See A.J. III. (1909), pp. 698-701.
II MEN-OF-WAR IN FOREIGN WATERS
Hall, §§ 54-55—Halleck, I. pp. 215-230—Lawrence, §§ 107-109—Phillimore, II. §§ 344-350—Westlake, pp. 256-259—Taylor, § 261—Moore, II. §§ 252-256—Twiss, I. § 165—Wheaton, § 100—Bluntschli, § 321—Stoerk in Holtzendorff, II. pp. 434 and 446—Perels, §§ 11, 14, 15—Heilborn, "System," pp. 248-279—Rivier, I. pp. 333-335—Bonfils, Nos. 614-623—Mérignhac, II. pp. 554-564—Calvo, III. §§ 1550-1559—Fiore, I. Nos. 547-550—Testa, p. 86—Jordan, R.I. 2nd Ser. X. (1908), p. 343.
Men-of-war State Organs.
§ 447. Men-of-war are State organs just as armed forces are, a man-of-war being in fact a part of the armed forces of a State. And respecting their character as State organs, it matters nought whether men-of-war are at home or in foreign territorial waters or on the High Seas. But it must be emphasised that men-of-war are State organs only as long as they are manned and under the command of a responsible officer, and, further, as long as they are in the service of a State. A shipwrecked man-of-war abandoned by her crew is no longer a State organ, nor does a man-of-war in revolt against her State and sailing for her own purposes retain her character as an organ of a State. On the other hand, public vessels in the service of the police and the Custom House of a State; further, private vessels chartered by a State for the transport of troops and war materials; and, lastly, vessels carrying a head of a State and his suite exclusively, are also considered State organs, and are, consequently, in every point treated as though they were men-of-war.
Proof of Character as Men-of-war.
§ 448. The character of a man-of-war or of any other vessel treated as a man-of-war is, in the first instance, proved by their outward appearance, such vessels flying the war flag and the pennant of their State.[790] If, nevertheless, the character of the vessel seems doubtful, her commission, duly signed by the authorities of the State which she appears to represent, supplies a complete proof of her character as a man-of-war. And it is by no means necessary to prove that the vessel is really the property of the State, the commission being sufficient evidence of her character. Vessels chartered by a State for the transport of troops or for the purpose of carrying its head are indeed not the property of such State, although they bear, by virtue of their commission, the same character as men-of-war.[791]