International law, Sixth edition
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International Law MALCOLM N. SHAW
Lockerbie case, CR 92/3, pp. 11–12, UKMIL, 63 BYIL, 1992, p. 722. The trial of the two
accused took place in the Netherlands, but in a facility that was deemed to be a Scottish court, with Scottish judges and lawyers and under Scots law: see e.g. A. Aust, ‘Lockerbie: The Other Case’, 49 ICLQ, 2000, p. 278, and for the verdict, see 94 AJIL, 2000, p. 405. 42 See e.g. Board of Trade v. Owen [1957] AC 602, 634 and DPP v. Stonehouse [1977] 2 All ER 909, 916; 73 ILR, p. 252. In R v. Abu Hamza, The Times, 30 November 2006, the Court of Appeal (Criminal Division) held that it was an offence for a person to incite a foreign national in England and Wales to commit murder abroad. See also the Home Secretary speaking as to the Criminal Justice Bill on 14 April 1993, and noting that the effect of the proposed legislation would be to ensure that where a fraud had a significant connection with the UK, British courts would have jurisdiction, whether or not the final element of the crime occurred within the country, UKMIL, 64 BYIL, 1993, pp. 646–7. See G. Gilbert, ‘Crimes Sans Fronti`eres: Jurisdictional Problems in English Law’, 63 BYIL, 1992, pp. 415, 430 ff. Note also Akehurst, who would restrict the operation of the doctrine so that jurisdiction could only be claimed by the state where the primary effect is felt, ‘Jurisdiction’, p. 154. 43 See e.g. La Forest J in Libman v. The Queen (1985) 21 CCC (3d) 206 and Lord Griffiths in Somchai Liangsiriprasert v. The United States [1991] 1 AC 225; 85 ILR, p. 109. 44 PCIJ, Series A, No. 10, 1927; 4 AD, p. 153. See e.g. Mann, ‘Doctrine of Jurisdiction’, pp. 33–6, 39, 92–3; J. W. Verzijl, The Jurisprudence of the World Court, Leiden, vol. I, 1965, pp. 73–98, and Schachter, ‘International Law’, p. 250. See also Oppenheim’s International Law, p. 478. 656 i n t e r nat i o na l l aw independence of states could not be presumed. 45 However, a state was not able to exercise its power outside its frontiers in the absence of a permissive rule of international law. But, continued the Court, this did not mean that ‘international law prohibits a state from exercising juris- diction in its own territory, in respect of any case which relates to acts which have taken place abroad and in which it cannot rely on some per- missive rule of international law’. In this respect, states had a wide mea- sure of discretion limited only in certain instances by prohibitive rules. 46 Because of this, countries had adopted a number of different rules ex- tending their jurisdiction beyond the territorial limits so that ‘the ter- ritoriality of criminal law, therefore, is not an absolute principle of in- ternational law and by no means coincides with territorial sovereignty’. 47 The Court rejected the French claim that the flag state had exclusive jurisdiction over the ship on the high seas, saying that no rule to that effect had emerged in international law, and stated that the damage to the Turkish vessel was equivalent to affecting Turkish territory so as to enable that country to exercise jurisdiction on the objective territo- rial principle, unrestricted by any rule of international law prohibiting this. 48 The general pronouncements by the Court leading to the dismissal of the French contentions have been criticised by writers for a number of years, particularly with respect to its philosophical approach in treating states as possessing very wide powers of jurisdiction which could only be restricted by proof of a rule of international law prohibiting the action concerned. 49 It is widely accepted today that the emphasis lies the other way around. 50 It should also be noted that the Lotus principle as regards collisions at sea has been overturned by article 11(1) of the High Seas Convention, 1958, which emphasised that only the flag state or the state of which the alleged offender was a national has jurisdiction over sailors regarding incidents occurring on the high seas. The territorial principle covers crimes committed not only upon the land territory of the state but also upon the territorial sea and in certain cases upon the contiguous and 45 PCIJ, Series A, No. 10, 1927, pp. 18–19; 4 AD, p. 155. 46 PCIJ, Series A, No. 10, 1927, p. 19; 4 AD, p. 156. 47 PCIJ, Series A, No. 10, 1927, p. 20. 48 Ibid., p. 24; 4 AD, p. 158. 49 See e.g. G. Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, 92 HR, 1957, pp. 1, 56–7, and H. Lauterpacht, International Download 7.77 Mb. Do'stlaringiz bilan baham: |
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