International law, Sixth edition
particularly which acts are included within its net
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International Law MALCOLM N. SHAW
particularly which acts are included within its net. 94 The principle is justifiable on the basis of protection of a state’s vital interests, since the alien might not be committing an offence under the law of the country where he is residing and extradition might be refused if it encompassed political offences. However, it is clear that it is a principle that can easily be abused, although usually centred upon immigration and various economic offences, since far from protecting important state functions it could easily be manipulated to subvert foreign governments. Nevertheless, it exists partly in view of the insufficiency of most municipal laws as far as offences against the security and integrity of foreign states are concerned. 95 This doctrine seems to have been applied in the British case of Joyce v. Director of Public Prosecutions, 96 involving the infamous pro-Nazi propa- gandist ‘Lord Haw-Haw’. Joyce was born in America, but in 1933 fraud- ulently acquired a British passport by declaring that he had been born in Ireland. In 1939, he left Britain and started working for German radio. The following year, he claimed to have acquired German nationality. The case turned on whether the British court had jurisdiction to try him after the war, on a charge of treason. The House of Lords decided that juris- diction did exist in this case. Joyce had held himself out to be a British subject and had availed himself of the protection (albeit fraudulently) of a British passport. Accordingly he could be deemed to owe allegiance to the Crown, and be liable for a breach of that duty. The fact that the treason occurred outside the territory of the UK was of no consequence since states were not obliged to ignore the crime of treason committed against them outside their territory. Joyce was convicted and suffered the penalty for his actions. 97 94 See e.g. In re Urios 1 AD, p. 107 and article 694(1) of the French Code of Criminal Procedure. 95 See e.g. Rocha v. US 288 F.2d 545 (1961); 32 ILR, p. 112; US v. Pizzarusso 388 F. 2d 8 (1968), and US v. Rodriguez 182 F.Supp. 479 (1960). See also the Italian South Tyrol Terrorism case, 71 ILR, p. 242. 96 [1946] AC 347; 15 AD, p. 91. 97 See, with regard to US practice, Rocha v. US 288 F.2d 545 (1961); US v. Pizzarusso 388 F.2d 8 (1968) and US v. Layton 509 F.Supp. 212 (1981). See also Third US Restatement of Foreign Relations Law, vol. I, pp. 237 ff. and the Omnibus Diplomatic Security and Anti-Terrorism Act 1986. The US has also asserted jurisdiction on the basis of the protective principle over aliens on the high seas: see the Maritime Drug Law Enforcement Act 1986 and US v. Gonzalez 776 F.2d 931 (1985) and see also S. Murphy, ‘Extraterritorial Application of US Laws to Crimes on Foreign Vessels’, 97 AJIL, 2003, p. 183. 668 i n t e r nat i o na l l aw The protective principle is often used in treaties providing for multiple jurisdictional grounds with regard to specific offences. 98 The universality principle 99 Under this principle, each and every state has jurisdiction to try particular offences. The basis for this is that the crimes involved are regarded as Download 7.77 Mb. Do'stlaringiz bilan baham: |
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