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Allegiance, Diplomatic Protection and Criminal Jurisdiction Over Aliens

Published online by Cambridge University Press:  16 January 2009

H. Lauterpacht
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Extract

The cause célèbre of King v. William Joyce, subsequently reported as Joyce v. Director of Public Prosecutions, was concerned to a large extent with matters of interest for international law, and it is mainly from this point of view that it is proposed to discuss it in the present article. Obviously the case is also of considerable importance both for criminal law, in so far as it is concerned with the crime of treason, and for constitutional law inasmuch as it bears directly on the question of the nature and the obligations of allegiance. However, it is probable that the case books which will claim it most insistently will be those of international law. For the decision in Rex v. Joyce is not only an authority on certain aspects of allegiance owed by aliens and of the right of a State to assume jurisdiction over acts committed by aliens abroad. It sheds light on such questions as the nature of diplomatic protection of citizens, the right of a State to protect diplomatically persons who are not its citizens, the obligation of allegiance of so-called protected persons, and some others. Not all these questions were judicially answered, but they loomed large in argument and imparted to the proceedings the complexion of a case concerned predominantly with international law. In view of this it may be pertinent to preface this article by drawing attention to a point which appears to be a mere matter of terminology but which, it is believed, raises an issue of wider significance.

Type
Research Article
Information
The Cambridge Law Journal , Volume 9 , Issue 3 , November 1947 , pp. 330 - 348
Copyright
Copyright © Cambridge Law Journal and Contributors 1947

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References

1 [1945] W. N. 220Google Scholar; 173 L. T. 377 (Court of Appeal); [1946] A. C. 347 (House of Lords)Google Scholar.

2 The article is the substance of a lecture delivered in the Law School of the University of Cambridge in the Lent Term. 1946. I have expanded the lecture by the addition of footnotes and otherwise, but I have retained some passages as delivered on that occasion.

3 [1946] A. C. at p. 372Google Scholar.

4 (1880) 5 L. R. P. D. 197, at p. 214Google Scholar.

5 See, e.g., Viveash v. Becker (1814), 3 M. & S. 284Google Scholar; De Wutz v. Hendricks (1824) S. C, 9 Moore, 586Google Scholar, where Best C.J. held ‘that it was contrary to the law of nations (which in all cases of international law is adopted into the municipal code of every civilized country)’ to raise money in England in support of a rebellion in a foreign country; The Emperor of Austria v. Day and Kossuth (1861) 2 Giff. 628Google Scholar; and many others.

6 For the various meanings of ‘comity of nations’ see Oppenheim, International Law, vol. I (6th ed. by Lauterpacht). § 19c.

7 Unless, of course, what is meant, by way of a somewhat confusing circumlocution, is that the rule applied is one of law though originating in ‘comity.’ See, for instance, Russian Socialist Federated Soviet Republic v. Cibrario (an American case): Annual Digest, 1923–1924, Case No. 17; 235 N.Y. 255; 139 N. E. 259, where the Court said: ‘Comity may be defined as the reciprocal courtesy which one member of the family of nations owes to the others. It presupposes friendship … Rules of comity are a portion of the law that they [courts] enforce.’

8 See Cheshire, , Private International Law (2nd ed. 1938), pp. 6, 581Google Scholar; Wolff, , Private International Law (1945) pp. 14, 15Google Scholar.

9 See also Phillimore, , Commentaries upon International Law (3rd ed., 1879), vol. I, p. 522Google Scholar, where he points out that extradition of criminals is a matter of comity, not of right.

10 Lloyd's List Law Reports, 62 (1938), p. 7Google Scholar.

11 At p. 9.

12 The Tolten [1946] p. 135Google Scholar, at p. 151 (per Scott L.J.). And see Foster v. Driscoll [1929] 1 K.B. 470Google Scholar, where Lawrence L.J. based the decision on ‘obligations’ of ‘international comity’ the disregard of which ‘would furnish a just cause for complaint by the United States Government.’

13 At pp. 375, 376.

14 See p. 338, n. 25.

15 Foster's, Crown Casts (1762 ed.), p. 185Google Scholar.

16 [1917] I K.B. 98Google Scholar.

17 [1907] A. C. 326Google Scholar. A striking illustration of the same principle will be found in the American case Carlisle v. United States (1872) 16 Wall. 147Google Scholar.

18 Ubi supra.

19 [1921] 2 A. C. 262Google Scholar.

20 For a general appreciation of its importance see Dunn, , The Protection of Nationals (1932) pp. 27–71Google Scholar. See also Jessup, in Columbia Law Review, 46 (1946), pp. 903–909CrossRefGoogle Scholar.

21 Hines v. Davidowitz (1941) 312 U. S. 52Google Scholar. The Court said: ‘One of the most important and delicate of all international relationships, recognized immemorially as a responsibility of government, has to do with the protection of the just rights of a country's own nationals when those nationals are in another country. Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another's subjects inflicted, or permitted, by a government.’

22 So far as international law is concerned there is probably nothing to prevent a State from issuing a passport (or similar instrument of identity) to a person who is described there as not being its national—except that in such cases the passport will not provide a basis for diplomatic protection. The case of passport issued to so-called protected persons is discussed below, p. 339. The United States claimed for a time the right to issue passports and to afford diplomatic protection to aliens who declared their intention to become citizens of the United States. The latter claim was repeatedly challenged by other States, and the relevant statute, enacted in 1907, was repealed in 1920 (see Hackworth, Digest of International Law, vol. III (1942), § 266)Google Scholar. On one occasion the United States in voked for a person in this category treaty benefits conferred upon citizens of the United States: see United States (Edward A. Hilson) v. Germany, decided in 1925 by the American-German Mixed Claims Commission (Annual Digest of Public International Law Cases, 1925–1926, Case No. 198, p. 205)Google Scholar. This was a case of a seaman, a British subject, who had filed a declaration of intention to become an American citizen. The Commission rejected his olaim.

23 See, for a detailed account, Borchard, , Diplomatic Protection of Citizens Abroad (1915) pp. 517–519Google Scholar.

24 For references to these cases seo Borchard, op. cit., p. 522.

25 The passport, though fraudulently obtained, was a valid document, until its validity expired or until it was revoked by the authorities. The position in this respect was the same as in the case of a certificate of naturalization obtained by fraudulent representations. So long as the certificate has not been revoked by the Secretary of State it is conclusive as to the status of the person naturalized. The effects of a fraudulent naturalization may go even beyond that. There is an interesting Opinion of the Law Officers of the Crown of 6 July, 1906, to the effect that a person who had obtained American naturalization by fraud and whose naturalization was subsequently cancelled could not nevertheless recover his British nationality which he had lost as a result of the original naturalization.

It may be convenient to refer in this connection to Lord Porter's dissenting judgment in the Joyce Case. The learned Law Lord held that there was no evidence before the jury on the strength of which they could—or, indeed, were invited to—hold that the accused in fact retained the passport for the duration of its validity. He was of the opinion that that question was one for the jury to decide. For if the passport had been discarded, there would have been an end to the relation of protection and, with it, of the obligations of allegiance (at pp. 374—381). It is submitted that if the accused had actually destroyed the passport, that circumstance would not have materially affected the legal position. The passport, conceived as a document with words written and printed on it, is but a piece of evidence. It may be replaced by a duplicate. What matters is the relationship established by the document. That relationship would not cease as the result of the physical loss or destruction of the paper which evidences it. If Joyce, after having deliberately destroyed the passport, after having served Germany for a period, and after having gained experience of the methods and of the true purposes of her rulers, decided, at grave peril to his life and liberty, to sever his connection with what he had come to consider the regime of evil, he would have been in the same position as if he had never discarded the passport. If imprisoned in Germany, he would have been entitled to British diplomatic protection. If he had succeeded in escaping and in reaching neutral territory, he would have come there under the protection of Britifh diplomatic and consular representatives. It is probable that nothing short of a formal and public act of renunciation of protection—a renunciation effected by a revelation of his true nationality —would have been sufficient to put an end to the mutuality of protection and allegiance. Of this there was no indication. On the contrary, it was not denied that until the collapse of Germany Joyce kept up the pretence of being a British subject. In an interesting Opinion given on 13 November, 1861, the Law Officers advised Earl Russell that although certain British subjects lost the right to British protection as the reBult of enlisting in the army of the Pope, on leaving the service as the result of discharge or desertion they could claim British protection outside the Papal territory: F. 0.83/2296. See also the Opinion of 25 February, 1862, admitting the right of protection enjoyed by a person who renounced his allegiance to the Crown ‘though prospectively, and not in an irrevocable manner’— apparently as the result of a declaration of intention to become naturalized in the United States: F. 0. 83/2213. And see the Opinion of 11 March, 1865, for the acknowledgment of the principle that ‘the sons of British born subjects are bound by the obligations of allegiance, and, therefore, entitled to the protection of Her Majesty’: F. 0. 83/2296.

Quaere, does the principle of R. v. Lynch [1903] 1 K. B. 444Google Scholar, apply to the termination of the allegiance, during war, of a protected person who is not a British subject ?

26 For a discussion of the subject see Jones, Mervyn in British Year Book of International Law, 22 (1945), 122–129Google Scholar.

27 R. v. Ketter [1940] 1 K. B. 787Google Scholar. For a case on the status of an Egyptian who was a British protected person by virtue of the British protectorate over Egypt see R. v. Campbell [1921] 2 K. B. 473Google Scholar. Interesting information on the diplomatic protection of British protected persons will be found in the Opinions of the Law Officers of June 8, 1893, and of February 17, 1905.

28 National Bank of Egypt v. German Government (decision of the Anglo-German Mixed Arbitral Tribunal of May 31, 1924; Annual Digest of Public International Law Caaes 1923–1924, Case No. 9), and National Bank of Egypt v. Austro-Hungarian Bank (decision of the Anglo-Austrian Mixed Arbitral Tribunal of July 13, 1923; ibid., Case No. 10).

29 In this particular case the Tribunal held that the right of France to grant to the subjects of the Sultan of Muscat the right to fly the French flag had been restricted by a previous treaty. The award of the Tribunal is discussed by Westlake, in Law Quarterly Review, 23 (1907), pp. 83–87Google Scholar.

30 There may well be other exceptions to the rule of nationality of claims as generally propounded. See, for instance, the Dissenting Opinion of Judge Eysinga, Van in the Panevezys-Saldutiskis Railway Case, decided by the Permanent Court of International Justice on 28 02, 1939 (Series A/B, No. 76, at p. 16)Google Scholar. There is probably no room for the rule of nationality of claims in the case of a treaty regulating the condition of stateless persons. Any signatory of the treaty is entitled to raise the case of an infraction of the treaty—though it is arguable that this does not amount to an espousal of a claim of a private person.

31 [1926] A. C. 518Google Scholar.

32 South African Law Reports [1924] Appell. Div. 101Google Scholar. In this case the indictment recited that the accused as an inhabitant of the mandated territory of South-West Africa ‘owed allegiance to His Majesty King George the Fifth in his Government of the Union of South Africa as the Mandatory thereof under the Mandate conferred in pursuance of the Treaty of Peace with Germany, signed at Versailles on the 28th day of June, 1919, upon His Britannic Majesty for and on behalf of the aforesaid Government of the Union of South Africa.’ In Rex v. Earl of Crewe [1910] 2 K. B. 576Google Scholar, counsel expressed doubt whether the Chief Segkoma owed allegiance to the King, but the suggestion was not pressed.

33 [1946] A. C. at p. 371Google Scholar.

34 As would be the case, for instance, if Great Britain were to undertake the diplomatic protection of Dutch subjects in a country in which, because of a state of war or for other reasons, Holland has no diplomatic or consular representative.

35 (1876) 2 Ex. D. 63Google Scholar.

36 See, in particular, the observation of Cocktrarn C.J., 2 Ex. Div. at pp. 192–184.

37 [1896] 2 Q. B. 425, 430Google Scholar.

38 Vol. I, § 147.

39 See pp. 345–347.

40 Series A, No. 10, of the Publications of the Court.

41 For a survey of the relevant legislation see Harvard Research in International Law, Jurisdiction in Respect of Crime (1935) Comment on Article 7Google Scholar.

42 See, in particular, United States v. Bowman, 260 U.S. 94, 98.

43 Annuaire de l'lnstitut de Droit International, (1931) (2) p. 128Google Scholar.

44 [1946] A. C. at p. 372Google Scholar.

45 In Macmillan's, Lord judgment in The Cristina [1938] A. C. at pp. 496–498Google Scholar, there will be found an interesting exposition of the view that English doctrines in matters related to international law ought to take into account the various developments in the international sphere.

46 [1946] A. C. at p. 369Google Scholar.

47 Instit. 2, 318.

48 In Coombe's Case (1 Leach 338) it was held that a person standing on the shore and shooting and killing another person, who died on board a ship, was within the jurisdiction of the Admiralty. In Reg. v. Keyn (L. R. 2 Exch. Div. 63) some of the judges—in particular Denman J. and Lord Coleridge—relied on that principle.

49 R. v. Nillins (1884) 53 L. J. M. C. 157Google Scholar; R. v. Godfrey [1923] 1 K. B. 24Google Scholar. See also R. v. Oliphant [1905] 2 K. B. 67Google Scholar, and other cases cited in Russell on Crimes, Vol. I (8th ed.), p. 55. There is also a number of Scottish and Irish cases. As to the latter see County Council of Fermanaugh v. Farrendon [1923] 2 Ir. Rep. 180Google Scholar (with references to English cases). And see Beckett, in British Year Book of International Law, 6 (1925), pp. 44–60Google Scholar.

50 Moore, , Report on Extraterritorial Crime and the Cutting Case (1887) p. 23Google Scholar; U.S. For. Rel., 1887, p. 771.

51 People v. Adams (1846) 3 Den. (N.Y.) 198Google Scholar; 1848, 1 Comst. (N.Y.) 173—a leading case—where the accused had made false representations in Ohio through an innocent agent in New York whereby money was obtained fraudulently in New York; Simpson v. State (1893)92 Ga. 41Google Scholar, where the accused stood on the South Carolina bank of the Savannah River and shot at a person in a boat on a part of the river within the boundaries of Georgia. (The Court said: ‘The well-established theory of the law is that, where one puts in force an agency for the commission of crime, he, in legal contemplation accompanies the same to the point where it becomes effectual’); Ford v. United States (1927) 273 U. S. 593 —aliens prosecuted in the United States for conspiring abroad with persons inside the United States to violate the United States prohibition and tariff lawsGoogle Scholar; Strassheim v. Dailey, 221 U. S. 280, 285 (‘Acts done outside a jurisdiction, but intended to produce or producing deterimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power’: per Mr. Justice Holmes); and many others.

52 Decisions of the German Supreme Court in Criminal Matters, vol. 20, p. 146.

53 Publications of the Court, Series A, No. 10, p. 23.

54 The nature of radio communication was considered in In re Regulation and Control of Radio Communication in Canada [1932] A. C. 304Google Scholar. See also. Horwitz v. United States (1923) 63 F. (2d.) 716Google Scholar, in which, apparently, the defendant had operated a wireless station in a place in Mexico from which they broadcast to listeners in the United States solicitations to participate in a lottery. And see McCain, in Air Law Review, 11 (1940) pp. 144–153Google Scholar. Some aspects of this question are discussed lucidly by ProfessorPreuss, in Transaction of the Grotius Society, 30 (1944) pp. 184–208Google Scholar.

55 It was probably by reference to that latter ground of jurisdiction that the alternative count of the indictment, based on the Treachery Act, 1940, was drafted. On the instruction of MrTucker, Justice in the Central Criminal Court, that count was not proceeded with pending the hearing of the case under the Treason Act, 1351Google Scholar. See p. 144 of the official transcript of the proceedings. The Treachery Act, 1940, applies to activities calculated, by their effect in the United Kingdom, to assist the military, naval, or air forceB of the enemy, to impede British forces, or to cause loss of life. The offence, where-ever begun, must, according to the Act, be committed in the United Kingdom. The indictment under the Treachery Act would have proceeded on the lines of the argument that the act of broadcasting from Germany was consummated and, therefore, committed in the United Kingdom. It must remain a matter of speculation whether, if the result of the indictment under the Treason Act had been different, the Crown would have proceeded with the indictment under the Treachery Act.

56 See F. 0. 83/2216 for an Opinion of the Law Officers of the Crown of 31 January, 1863, approving of the view that the claimants were ‘morally estopped from denying their citizenship, for the purpose of evading liabilities, to which they would be legally subject, if the profession of citizenship, on the faith of which they have enjoyed political franchises, had been true.’

57 On the other hand, there is room for the view that ultimately the authority of the law depends on the support given to it by public opinion and that criticism must therefore be studiously and painstakingly informed—especially in face of a practically unanimout decision of the Judges in all three instances. It will be noted that the Dissenting Judgment of Lord Porter expressed agreement with the major principle on which the decision of the House of Lords was based.

58 It may be emphasized once more that in R. v. Joyce the Court was not confronted with the case of an alien tout court.

59 A test suggested in the Harvard Research Draft, op. cit., P. 643.

60 See the writer's article in American Journal of International Law, 22 (1928) pp. 105–130Google Scholar.

61 It would be in accordance with an enlightened principle of justice—a prinoiple which has not as yet become part of the law of nations—if, in the abeenoe of effective extradition, the courts of a State were to assume jurisdiction over common crimes, by whomsoever and wherever committed, of a heinous character. Territoriality of juris-diction is a rule of convenience in the sphere of the law of evidence. It is not a requirement of justioe or even a neoessary postulate of the sovereignty of the State.