Part 1 The subjects of international law, Ch.3 Position of the states in international law, Jurisdiction
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- Jurisdiction of states, extra-territorial — Sovereignty — Jurisdiction of states, territoriality principle — Jurisdiction of states, nationality principle — Jurisdiction of states, passive personality principle — High seas — Airspace
Fischer Williams, Chapters, pp 209–31 Beale, HLR, 36 (1923), pp 241–62, and Cambridge Legal Essays (1926), pp 41–56 Wegner, Über den Geltungbereich staatlichen Strafrechts (1930) Mennacker, Das Schutzprinzip, etc (1931); Actes de la Conférence Internationale du droit pénal de 1928 (Rome, 1931) Beckett, BY (1925), pp 44–60, and ibid (1927), pp 108–28 Cybichowski, Hag R (1926), ii, pp 264–382 Rousseau, RG, 37 (1930), pp 420–60 Mercier, RI, 3rd series, 12 (1931), pp 439–90 Monaco, Rivista, 24 (1932), pp 36–52, 161–83 Morelli, ibid, 25 (1933), pp 382–411 Overbeck, Schweizerische Zeitschrift für Strafrecht, 47 (1933), pp 310 et seq Travers, Répertoire, iv, pp 361–447 Harv Research (1935), pp 466–632 (a valuable exposition of the subject) McNair, Opinions (vol 2, 1956), pp 141–54 Jennings, BY, 33 (1957), pp 146–75 F A Mann, Hag R, 111 (1964), i, pp 9–162, and 186 (1984), iii, pp 9–116 Whiteman, Digest, 6, pp 88–183 Akehurst, BY, 46 (1972–73), pp 145–257 Bassiouni and Nanda, International Criminal Law (vol 2, 1973) Bowett, BY, 53 (1982), pp 1–26, and in Macdonald and Johnston (eds), The Structure and Process of International Law (1983), pp 555–80 Restatement (Third), i, pp 230–366, 525–56, 591–641 Neale and Stephens, International Business and National Jurisdiction (1988) Henkin, Hag R, 216 (1989), iv, pp 277–330 See also, with particular reference to the extra-territorial application of anti-trust and other laws, works cited at § 139, n 43.
State jurisdiction concerns essentially the extent of each state’s right to regulate conduct or the consequences of events. In practice jurisdiction is not a single concept. A state’s jurisdiction may take various forms. Thus a state may regulate conduct by legislation; or it may, through its courts, regulate those differences which come before them, whether arising out of the civil or criminal law; or it may regulate conduct by taking executive or administrative action which impinges more directly on the course of events, as by enforcing its laws or the decisions of its courts. The extent of a state’s jurisdiction may differ in each of these contexts.1
Jurisdiction concerns both international law and the internal law of each state. The former determines the permissible limits of a state’s jurisdiction2 in the various forms it may take, while the latter prescribes the extent to which, and References(p. 457) manner in which, the state in fact asserts its jurisdiction.3 Much of the law relating to jurisdiction has developed through the decisions of national courts applying the laws of their own states. Since in many states the courts have to apply their national laws irrespective of their compatibility with international law, and since courts naturally tend to see the problems which arise primarily from the point of view of the interests of their own state, the influence of national judicial decisions has contributed to the uncertainty which surrounds many matters of jurisdiction and has made more difficult the development of a coherent body of jurisdictional principles.
International problems of jurisdiction arise almost exclusively where a state, either directly or through proceedings in its courts, seeks to assert its authority over persons, property or circumstances which (at least arguably) are or occur abroad. In such cases the questions which usually arise concern the actual or constructive location of the persons, property or circumstances in question;4 if their location is abroad, the extent to which the laws of the forum state are to be construed so as to apply extra-territorially;5 and, if they are so construed, whether the exercise of jurisdiction involves any infringement of the rights of other states, or of generally accepted limits to national jurisdiction.
Jurisdiction is not coextensive with state sovereignty, although the relationship between them is close: a state’s ‘title to exercise jurisdiction rests in its sovereignty’.6 That jurisdiction is based on sovereignty does not mean that each state has in international law a sovereign right to exercise jurisdiction in whatever circumstances it chooses. The exercise of jurisdiction may impinge upon the interests of other states. What one state may see as the exercise of its sovereign rights of jurisdiction another state may see as an infringement of its own sovereign rights of territorial or personal authority. In practice, however, it is only in relatively few cases that overlapping claims to jurisdiction cause serious problems, usually where the states concerned attach importance to the assertion of their competing claims, and more often in criminal cases (where the element of public authority is more evident)7 than in civil cases. Usually the coexistence of overlapping jurisdiction is acceptable and convenient; and forbearance by states in the exercise of their jurisdictional powers8 avoids conflict in all but a small (although important) minority of cases.
Although it is usual to consider the exercise of jurisdiction under one or other of more or less widely accepted categories, this is more a matter of convenience than of substance. There is, however, some tendency now to regard these various categories as parts of a single broad principle according to which the right to exercise jurisdiction depends on there being between the subject matter and the References(p. 458) state exercising jurisdiction a sufficiently close connection to justify that state in regulating the matter and perhaps also to override any competing rights of other states.9
As all persons and things within the territory1 of a state fall under its territorial authority,2 each state normally has jurisdiction — legislative, curial and executive — over them. Territoriality is the primary basis for jurisdiction; even if another state has a concurrent basis for jurisdiction, its right to exercise it is limited if to do so would conflict with the rights of the state having territorial jurisdiction. Thus even though a state has personal jurisdiction over its nationals abroad, its ability to enforce that jurisdiction is limited so long as they remain within the territory of another state:3 as the Permanent Court of International Justice said in the Lotus case in 1927, ‘a State … may not exercise its power in any form in the territory of another State’; jurisdiction ‘cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention’.4
Territoriality cannot, however, always be applied in a straightforward manner. Thus while in both civil and criminal cases the presence of the defendant within the state’s territory will usually be sufficient to found jurisdiction, the laws of most, if not all, states have established rules whereby not only the defendant’s physical presence in the state, but also his constructive presence, is sufficient, where circumstances establish a basic level of contact by the defendant with the forum state sufficient to justify the exercise of jurisdiction over him.5 References(p. 459) Such circumstances may include the defendant owning property there (at least if it is the subject matter of the proceedings, or directly related to them),6 conducting business there7 (again, at least if that business has given rise to or is directly related to the proceedings), by having made visits either in person8 or by agents9 or employees (at least if those visits were connected with the matter being litigated) or, in the case of a foreign company as defendant, having within the forum state a wholly-owned subsidiary which has no independent power of decision.10
Similarly, where it is the territoriality of conduct or events which is relevant to jurisdiction (for example, establishing that an offence occurred in the state’s territory), attributing to them a location may also in some circumstances not be straightforward. The problem is traditionally exemplified by the person who, standing on one side of an international frontier, fires a gun which kills a person on the other side.11 To meet this kind of situation, the territorial principle of jurisdiction is often, particularly in relation to the application of criminal laws, given a constructive interpretation which allows of so-called subjective and References(p. 460) objective applications of the basic territorial principle. The subjective application of the principle allows jurisdiction over offences begun within the state but not completed there;12 objective territorial jurisdiction allows jurisdiction over offences having their culmination within the state even if not begun there.13 To the extent that they do not strictly involve the exercise of extra-territorial jurisdiction, both may be said to be applications of the territorial principle. Territoriality also underlies the claim sometimes made that a state has jurisdiction over conduct taking place abroad if it has effects within the state, but such claims are controversial.14
International law, however, gives every state a right to claim exemption from local jurisdiction, chiefly for itself,15 its Head of State,16 its diplomatic envoys,17 References(p. 461) its warships18 and its armed forces19 abroad.20 It may be noted, however, that this does not prevent the local law applying to those benefiting from the exemption, although it does prevent the enforcement of the law against them.21 Furthermore, although aliens are subject to the territorial jurisdiction of the state in whose territory they are,22 that state is not wholly free to subject them in every respect to its laws: thus it may probably not enforce upon them military service in its armed forces,23 or levy taxes on them if they (or the property or transaction in relation to which the tax is to be levied) are only transiently within the state;24 nor can it be assumed that the national state of an alien would have no ground of complaint in international law if the state of residence asserted its territorial jurisdiction over the alien in respect of all his acts whenever and wherever they took place, perhaps abroad and long before he took up residence.25
During the Second World War the presence in the United Kingdom of a number of governments of countries invaded by Germany as well as of allied armed forces gave rise to certain relaxations, for the benefit of such governments and forces, of the principle of territorial authority26 — extending even to governments-in-exile being permitted to establish courts and to issue, though not to enforce, legislative and administrative decrees. Although these relaxations of territorial authority were adopted in order to meet an exceptional situation in time of war, they show that there is intrinsically no such degree of rigidity in the concept of territorial authority as to rule out reasonable adaptations thereof to exceptional circumstances.27
References(p. 462) § 138 Jurisdiction over citizens abroad
International law does not prevent a state from exercising jurisdiction, within its own territory, over its nationals travelling or residing abroad, since they remain under its personal authority.1 Accordingly, it may legislate with regard to their conduct when abroad, levy taxes in respect of their assets or earnings abroad,2 or legislate in respect of their foreign property.3 In all such cases, however, the state’s power to enforce its laws depends upon its national being in, or returning to, its territory or having there property against which they can be enforced.
The extent to which states assert jurisdiction over their nationals abroad varies, particularly as regards the application of criminal law4 to their conduct and consequently the jurisdiction of their courts to try such nationals for their References(p. 463) conduct abroad. In the first place this is a matter for the municipal law of each state, and will often involve the question whether the relevant statute is to be construed so as to apply extra-territorially. In some states, including the United Kingdom,5 very few acts committed by nationals abroad constitute criminal offences under their laws; for such states the application of the criminal law is largely governed by territorial principles, sometimes because (as with the United Kingdom) the essentially oral procedures of criminal trials involving in particular the cross-examination of witnesses impose severe practical difficulties in relation to offences committed abroad. Many other states, however, with different traditions and procedures, assert almost complete jurisdiction over the criminal conduct of their nationals abroad,6 sometimes subject to other conditions being met, such as that the offence is also punishable under the law of the place where it occurred7 or that the victim was also a national.8 But whatever the extent to which a state asserts criminal jurisdiction over its nationals abroad, since the state cannot exercise its sovereign power in a foreign state, it must normally9 await the return of its nationals before it can take effective steps to exercise its jurisdiction over them.
As every state can also exercise jurisdiction over aliens10 within its boundaries, such aliens are often under two concurrent jurisdictions. The practical inconvenience, and sometimes injustice, which can result are left to be regulated by treaty, or by the application by states of considerations of good sense and reasonableness. Thus states regularly conclude treaties to avoid or mitigate the hardship which would be suffered by individuals who might find themselves liable to pay taxation to two different states in respect of the same income or assets. Furthermore, although states are entitled to legislate in respect of the conduct of their nationals abroad, most states do not exercise to the full their right to do so in respect of criminal offences committed by their nationals, and References(p. 464) even where their laws do have extra-territorial effect for their nationals states often refrain from applying them unless some substantial interest of the state is affected by the illegal conduct. A particular problem arises where under the laws of a state its nationals abroad are required to perform (or refrain from performing) acts abroad which, according to the law of the state where those nationals are, it would be an offence for them to perform there (or refrain from performing); a similar result may flow from an order of a court requiring a particular course of conduct from a party to the proceedings. In such cases the state of nationality must not require compliance with its laws at the expense of its duty to respect the territorial sovereignty of the state of residence.11
These issues have arisen notably in the context of the application of United States anti-trust legislation, where defendants have been required to produce to United States authorities or courts documents held abroad: these requirements have sometimes been far-reaching, involving the production of extensive documentation and relating to the defendant’s commercial activities generally.12 References(p. 465) Apart from any relevant laws adopted by the state in which the documents are situated prohibiting their production,13 service of a subpoena on a foreign defendant in a foreign state to produce documents held there concerning business conducted there infringes the sovereignty of that state.14 In practice potential conflicts are often resolved by acknowledging that in order to avoid an impasse the law of the state where the conduct is to take place or the documents are held should be obeyed, and the authorities of the other state accordingly do not insist upon strict compliance with the law, or vary the order or the court, particularly where the conduct required would involve breach of the criminal law in the state where the conduct would take place.15 As a minimum, it would be appropriate for the court to weigh the importance of domestic public policy of References(p. 466) the forum state against the interests of the foreign state where the conduct is to take place and the likely damage to international comity if the court gives precedence to the requirements of the forum state’s laws, and only to accord them that priority where the balance of interest clearly lies in that direction.16
As a general rule states do not seek to exercise civil or criminal jurisdiction over foreign nationals in foreign states.1 Nevertheless the laws of many states do contain provision for doing so in limited categories of cases, both civil2 and criminal. In this context both civil and criminal proceedings have a potential for encroaching upon the territorial sovereignty of the foreign state concerned, since both may involve the exercise of state authority; but this is more evident, and creates more serious problems, in relation to criminal cases3 where the involvement of the public authority of the References(p. 467) prosecuting state is readily perceived as leading to the exercise of such authority by one state within the territory of another. Similar problems arise where a state, in pursuit of its public purposes, attempts to block foreign-owned assets held abroad by domestic corporations, or, more to the point, by foreign subsidiaries of domestic corporations; this situation arose, for example, in 1979 when the United States acted in that manner in relation to Iranian assets.4
The assertion by states of jurisdiction to treat as criminal certain acts committed abroad by foreigners usually relates to acts either against the state itself, such as high treason, forging bank notes, and the like, or against its citizens, such as murder and arson, libel and the like. These states cannot, of course, exercise this jurisdiction as long as the foreigner concerned remains outside their territory.5 But if, after the commission of such an act, he enters their territory and comes thereby under their territorial authority, they have an opportunity of inflicting punishment.6 The question is, therefore, whether states have a right7 to exercise jurisdiction over acts of foreigners committed in foreign countries, and whether under customary international law8 the home state of such an alien has a duty to acquiesce in the latter’s punishment in case he comes into the power of these states. Some answer this question in the negative.9 They assert that at the time References(p. 468) such criminal acts are committed the perpetrators are neither under the territorial nor under the personal authority of the states concerned; and that a state can only require respect for its laws from such aliens as are permanently or transiently within its territory. This view is sound with regard to many cases; and for a state, either generally or in relation to a very wide range of offences, to assert and exercise jurisdiction over offences committed abroad by aliens10 is widely regarded as not consistent with international law. However, it is not a view which, consistently with the practice of states and with common sense, can be rigidly adopted in all cases. In the Lotus case the Permanent Court of International Justice, while recognising the essentially territorial character of criminal law, found that ‘international law as it stands at present’ does not contain ‘a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory … The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty’.11 Even those states, particularly common law states such as the United Kingdom, which traditionally adopt an almost exclusively territorial approach to criminal jurisdiction, assert jurisdiction over a limited number of offences committed abroad by aliens.12 It is accepted that in certain circumstances and within certain limits it is consistent with international law for a state to exercise criminal jurisdiction in respect of the conduct of aliens abroad. Those limits are not clearly established; however, it seems probable that in the absence of any direct and substantial connection between the state exercising jurisdiction and the matter in relation to which jurisdiction is exercised,13 the exercise of jurisdiction would be a violation of international law. It is a matter for determination in each case whether a direct and substantial connection exists which is sufficient to justify a state treating as criminal the conduct of aliens taking place within the area of another state’s sovereign authority.14
There are several situations in which it is accepted that the territorial principle does not apply so as to exclude the exercise of a state’s jurisdiction to conduct abroad. Thus the territorial principle cannot apply to acts done abroad in preparation of and participation in common crimes committed or attempted to be committed in the country claiming jurisdiction (although they may be brought within the scope of that principle by the so-called subjective or objective applications of it).15
References(p. 469) Furthermore, some states appear to treat certain categories of aliens as sufficiently closely connected with the state to justify the application to them of its criminal law, or parts of it, even if they are abroad. Thus some states claim jurisdiction over crimes committed abroad by permanent residents.16 In the United Kingdom certain exchange control offences can be committed abroad by persons who are residents in the United Kingdom;17 and jurisdiction is also claimed over crimes committed in foreign states by seamen employed on British ships.18 In all such cases the exercise of jurisdiction is probably not open to serious objection so long as the basis of jurisdiction establishes a sufficiently close connection between the offender and the state claiming jurisdiction for the particular purpose in question.
The territorial principle also does not apply to certain offences, generally regarded as offences of an international character of serious concern to the international community as a whole, which it is accepted may be punished by whichever state has custody of the offender.19 Piracy20 is a well-established example of jurisdiction exercisable on such a universal basis. Other offences in References(p. 470) respect of which universal jurisdiction is often said to exist include war crimes,21 possibly terrorism22 and the most serious violations of human rights such as torture,23 and, as a result of treaties, grave breaches of the Geneva Conventions of 1949,24 the hijacking25 and sabotage26 of aircraft, and apartheid.27
It is also accepted that (by virtue of what is sometimes referred to as the ‘protective principle’) the limitations of the territorial principle do not apply to serious crimes against a state’s own safety,28 including not only such offences as References(p. 471) threaten the political or military security of the state but also such offences as counterfeiting its currency,29 or those which undermine its control over its population by violating its immigration policies30 or prejudicing public health (especially through the supply of narcotics).31 In all such cases the offence involves serious prejudice to matters within the competence of the state of the forum which justifies the exercise of jurisdiction by that state to protect itself, notwithstanding that the offender has at all times during the commission of the offence been outside its territory. This exception to the territorial principle does not, however, extend to conduct which offends against mere policies of the state. Thus the measures adopted by the United States of America, acting particularly under the Export Administration Act, to counter the Arab trade boycott of Israel, which purport to apply to foreign incorporated subsidiaries of United States companies doing business abroad have been regarded as to that extent ‘quite unjustified and contrary to international law’.32
It is sometimes claimed that a state has jurisdiction over crimes committed abroad by aliens if the victim is a national of the state claiming jurisdiction: this is References(p. 472) often referred to as the ‘passive personality’ basis of jurisdiction. It is not a basis for jurisdiction which has met with wide acceptance,33 although it has been accepted in certain contexts such as war crimes,34 and in treaties dealing with such matters as offences committed on board aircraft35 and offences relating to cultural property.36
The attempt by states to regulate activities which they consider to be of direct concern to themselves has led in some instances to them extending the territorial principle of jurisdiction so as to cover conduct abroad, of aliens as well as of nationals, which has effects within their territories.37 The assertion of jurisdiction References(p. 473) over aliens in respect of their conduct abroad on the basis of its effects within the state has in particular given rise to difficulties in connection with the extra-territorial application of anti-trust laws,38 most notably those of the United States of America (although similar problems have arisen in less acute form in connection with similar laws in other states39 and the rules of competition of the European Economic Community).40 Thus the United States legislation relating References(p. 474) to the shipping industry contained provisions for the imposition of penalties upon offending persons and companies for non-compliance with certain American requirements, which provisions the American courts and authorities have held to be applicable to transactions by foreigners taking place outside the United States of America.41 The assertion of such so-called ‘long-arm’ jurisdiction is not limited to anti-trust matters. It extends also, for example, to the commercial activities of states under the Foreign Sovereign Immunities Act 1976, in which the United States of America asserted jurisdiction over foreign states in respect of acts committed abroad in connection with a commercial activity abroad, but causing a ‘direct effect in the United States’.42 The justification References(p. 475) for such assertions of jurisdiction on the basis of an alleged ‘effects’ principle of jurisdiction has not been generally accepted, and the matter is still one of controversy.43 The exercise of jurisdiction because of the effects of an act within the state may amount to no more than an ‘objective’ application of the territorial principle of jurisdiction,44 but where the effects relied on are not a constituent part of the offence in question but are mere consequences or repercussions of the act done, the legitimate bounds of the territorial principle of jurisdiction are overstepped, particularly if the effects are only incidental and insubstantial:45 in this lies the danger of impropriety in resort to the ‘effects’ principle as a basis for jurisdiction and the doubtful consistency of that principle with international law. Concern expressed by many other states has led certain United States courts to have some regard to the legitimate interests of other states, by requiring not only that the foreign conduct of aliens must have actual or intended effects within the United States, causing sufficient injury there, but also that ‘the interests of, and links to, the US — including the magnitude of the effects on American foreign commerce — are sufficiently strong, vis-à-vis those on other References(p. 476) nations, to justify the assertion of extra-territorial authority’.46 By balancing the competing interests of the states concerned in this way some of the more serious excesses of an effects doctrine may in practice be avoided in particular cases, although objections of principle are still likely to remain.
With any assertion of criminal jurisdiction in relation to conduct of aliens47 in a foreign state there is a danger of infringing the sovereign rights of that state to regulate matters taking place in its territory; in extreme cases the assertion of jurisdiction may infringe the principles of non-intervention, and the sovereign equality of states. This applies to jurisdiction asserted on the basis of the ‘effects’ principle as well as to jurisdiction asserted on other bases, although the doubtful international legality of the former makes states particularly sensitive to encroachments upon their sovereign rights on that basis. There comes a point, which cannot be precisely defined in general terms, at which the application of a state’s criminal law to the activities of foreigners in a foreign state involves an infringement of the territorial sovereignty and jurisdiction of the foreign state to which it may properly object. Thus the United Kingdom concluded that, at least in some circumstances, that point was reached with regard to the anti-trust shipping laws of the United States; in the Shipping Contracts and Commercial Documents Act 1964 powers were taken to prohibit compliance with certain foreign requirements to produce commercial documents if it appears that the requirement constitutes ‘an infringement of the jurisdiction which, under international law, belongs to the UK’ (s 2).48 In the face of continuing assertions by References(p. 477) United States courts and regulatory authorities of the right to apply United States anti-trust legislation in relation to extra-territorial activities of foreign nationals, the defensive effects of that Act were extended and strengthened in the Protection of Trading Interests Act 1980,49 which superseded and repealed the earlier Act. Even where a court has undoubted jurisdiction over a foreign defendant, as where he is resident in the state of the forum, its orders to the defendant to pursue a certain course of conduct in a foreign state or to produce documents held there may be open to challenge if they involve an infringement of the foreign state’s jurisdictional sovereignty, including a breach of its criminal laws relating to conduct on its territory.50 Attempts to regulate in this way the conduct of foreigners abroad can create serious difficulties in international law, as was well illustrated by the dispute which arose over measures taken by the United States of America in 1981 and 1982, in response to the imposition of martial law in Poland, to prohibit dealings on a number of specified matters with the Soviet Union: this prohibition applied in particular to supplies of material for the construction of a gas pipeline from Siberia to Europe, and covered material References(p. 478) supplied by United States companies, or their subsidiaries (even if abroad), and material made (even abroad) under licence from United States companies. These measures evoked strong protest from many other countries, as overstepping the limits of jurisdiction permitted by international law.51 In order to avoid, or at least reduce the impact of, such differences states have concluded agreements or other arrangements intended to facilitate cooperation between their authorities, particularly in relation to anti-trust matters.52
The question of the extent of a state’s criminal jurisdiction came before the Permanent Court of International Justice in 1927 in the Lotus case.1 A collision had occurred on the open sea between the French steamship Lotus and the Turkish steamship Boz-Kourt, resulting in the loss of the latter and the death of eight Turkish subjects. When the Lotus arrived at Constantinople, the Turkish Government instituted joint criminal proceedings against the captain of the Turkish vessel and the French officer of the watch on board the Lotus, and they were both sentenced to imprisonment. The French Government protested on the ground that Turkey had no jurisdiction over an act committed on the open sea by a foreigner on board a foreign vessel, whose flag state (it asserted) had exclusive jurisdiction as regards such acts. The dispute was referred by agreement to the Permanent Court of International Justice, which held,2 by the President’s casting vote, that Turkey had ‘not acted in conflict with the principles of International Law’ in instituting the criminal proceedings, because (inter alia) the act committed on board the Lotus produced its effects on board the Boz-Kourt under the Turkish flag, and thus, as it were, on Turkish territory, whereupon Turkey acquired jurisdiction over its foreign perpetrator. The Court also expressed the opinion that there is no rule of international law which prohibits a state from exercising jurisdiction over a foreigner in respect of an offence References(p. 479) committed outside its territory. ‘The territoriality of criminal law … is not an absolute principle of international law and by no means coincides with territorial sovereignty’.3 The judgment of the Court, one of whose possible effects is to subject seamen to foreign criminal law of which they may have no knowledge, met with widespread criticism. A contrary rule was adopted in the Brussels Convention of 10 May 1952, relating to penal jurisdiction in matters of collisions or other accidents of navigation,4 in Article 11 of the 1958 Geneva Convention on the High Seas,5 and in Article 97 of the Convention on the Law of the Sea 1982.6
Although the high seas are not part of the territory of any state, and are thus not within the scope of its territorial jurisdiction, states do have certain rights of jurisdiction over persons and things on the high seas. These are more fully discussed below.1
Somewhat different considerations apply in respect of airspace. Although that part of the airspace which is above the high seas is, like the high seas, not within the territorial jurisdiction of any state, that part which is above a state’s territory falls within its territorial jurisdiction.2 Accordingly, in a long-distance flight an aircraft, with its crew and passengers, may pass through the territorial jurisdiction of several states as well as being for a time outside the territorial jurisdiction of any state.
In respect of events occurring on board the aircraft the jurisdictional position can be complex.3 A state which in principle has territorial jurisdiction will in practice find it difficult to give any effect to its jurisdiction if the aircraft is merely overflying the state and not landing in it; and in the case of acts which take some time to complete, the aircraft may have flown through the airspace of several states during the commission of the act. Passengers and crew will, of course, also References(p. 480) be subject in some degree to the jurisdiction of the states of which they are nationals.
The state in which the aircraft is registered, and the nationality of which the aircraft is for most purposes regarded as having,4 will also have a claim to jurisdiction: there has not, however, developed a clear rule that the law of that state applies on board the aircraft in the same way as the law of the flag state applies on board ships,5 and the extent to which a state’s laws apply to events occurring on board an aircraft registered in its territory has been largely left to states to determine for themselves. Thus not only may several states have concurrent claims to jurisdiction, but it may happen that no state has jurisdiction over a particular incident.6
In an attempt to establish some agreed rules in this area the Tokyo Convention on Offences and certain other Acts Committed on Board Aircraft was concluded in 1963.7 The Convention applies in respect of offences against penal law and acts which jeopardise the safety of the aircraft or of persons or property thereon or which jeopardise good order and discipline aboard; and it applies when the aircraft, being registered in a contracting state,8 is in flight or on the surface of the References(p. 481) high seas or of any other area outside the territory of any state.9 Article 3 of the Convention provides that the state of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board, and obliges each contracting state to take the necessary measures to establish its jurisdiction on that basis. The Convention does not, however, exclude any criminal jurisdiction exercised in accordance with national law. Under Article 4 a contracting state which is not the state of registration10 may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board unless the offence has effect on the territory of that state, or the offence has been committed by or against a national or permanent resident of that state, or the offence is against the security of that state, or the offence consists of a breach of any rules or regulations relating to flight or manoeuvre of aircraft in force in that state, or the exercise of jurisdiction is necessary to ensure the observance of the obligation of that state under a multilateral international agreement. Article 16 provides that for purposes of extradition offences committed on aircraft registered in a contracting state shall be treated as if they had been committed not only in the place in which they have occurred but also in the territory of the state of registration of the aircraft. The Convention also provides for extensive powers of an aircraft commander, including powers to restrain persons reasonably suspected of having committed or being about to commit an offence or act to which the Convention applies, to disembark them and to deliver them to the competent authorities of a contracting state; and also provides for corresponding powers and duties on the part of the state where a person has been disembarked or to whose authorities he has been delivered. The Convention does not apply to aircraft used in military, customs or police services.
The Tokyo Convention contained only a modest provision about the unlawful seizure of aircraft, requiring contracting states to take ‘all appropriate measures’ to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft, and, where a hijacked aircraft lands in a contracting state, to permit its passengers and crew to continue their journey and to return the (p. 482) aircraft and its cargo to the persons lawfully entitled to possession. The continued hijacking of aircraft,11 however, called for more comprehensive provisions, and in 1970 the Hague Convention for the Suppression of Unlawful Seizure of Aircraft was concluded.12 This, in Article 9, repeated the substance of the Tokyo Convention provision, and added others. Under Article 1 of the 1970 Convention it is an offence for any person on board an aircraft in flight, References(p. 483) unlawfully by force or threat thereof or by any other form of intimidation, to seize or exercise control of that aircraft; it is also an offence to attempt to perform any such act or to be an accomplice of a person who performs or attempts to perform any such act. Each contracting state undertakes in Article 2 to make the offence punishable by severe penalties. Under Article 4 each contracting state must also take the necessary measures to establish its jurisdiction over the offence, and any other act of violence against passengers or crew committed by the alleged offender in connection with the offence, when (a) the offence is committed on board an aircraft registered in that state, (b) the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board, (c) the offence is committed on board an aircraft leased without a crew to a lessee who has his principal place of business or, if he has none, his permanent residence in that state, or (d) the alleged offender is present in its territory and it does not extradite him to any of the states referred to in (a), (b) or (c).13 The Convention does not, however, exclude any jurisdiction exercised in accordance with national law. Under Article 7 a contracting state in which an alleged offender is found must either extradite him or submit the case to its competent authorities for the purpose of prosecution, whether or not the offence was committed in its territory. Article 8 deems the offence to be included in existing extradition treaties between contracting states, and obliges contracting states to include it in extradition treaties concluded between them in the future; it further allows contracting states which make extradition conditional on the existence of a treaty the option of considering the Convention as the legal basis for extradition in respect of the offence; finally, the Article provides for the offence to be treated, for extradition purposes, as if it had been committed not only where it in fact occurred but also in the territories of the states required to establish their jurisdiction in the circumstances referred to in (a), (b) and (c) above.
To counter acts of sabotage against aircraft a further Convention, for the Suppression of Unlawful Acts against the Safety of Civil Aviation, was concluded at Montreal in 1971.14 This follows a pattern similar to that of the Hague Convention. Article 1 defines the offences with which the Convention deals,15 broadly speaking acts of sabotage likely to endanger the safety of the aircraft. Under Article 3 each contracting state undertakes to make the listed offences punishable by severe penalties. Article 5 requires each contracting state to take the necessary measures to establish its jurisdiction over the offence when it is References(p. 484) committed in the territory of that state, and also in circumstances broadly the same as those stipulated in Article 4 of the Hague Convention. Similarly, Article 5 does not exclude any criminal jurisdiction exercised in accordance with national law. The Convention, in Articles 7 and 8, also lays down, in respect of extradition, provisions similar to those in the Hague Convention. The 1971 Montreal Convention was supplemented by a Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, concluded at Montreal in 1988.16
Mention may also be made of other multilateral conventions which deal with matters arising from the international operation of aircraft, though principally concerned with questions of private law and of private international law.
The Warsaw Convention for the Unification of Certain Rules regarding International Air Transport 1929 has the object of laying down uniform rules governing the liability of the carrier where damage or injury is sustained during international carriage.1
The Rome Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface 1952 established a system of absolute liability of operators for damage to third parties on the surface, caused by foreign aircraft.2
If a state has exercised its jurisdiction within the limits acknowledged by international law, other states will in appropriate circumstances usually be willing to accept the results flowing from that exercise of jurisdiction.1 Thus, when the courts of a state have before them a case involving a foreign element, they will often apply laws enacted by a foreign state; and judgments of the courts of one state are often recognised and enforced in another. Such matters are primarily regulated in accordance with each state’s References(p. 485) rules of private international law. Where a state or its courts have acted contrary to international law, including the rules relating to the exercise of jurisdiction, other states are in international law entitled (but not compelled) to refuse to give any effect to the illegal act,2 or to claim damages (as France did in the Lotus case).3 In practice most states, in their rules of private international law, ensure that a foreign state’s laws and decisions which exceed the limits of jurisdiction permitted by international law are not recognised or enforced abroad.4 However, rules of private international law often prescribe non-recognition or non-enforcement for reasons other than that an act is contrary to international law; accordingly, the refusal of one state to accept or apply another’s laws or judicial decisions does not necessarily mean that the state considers them to have been made or delivered in violation of international law in general or of rules relating to the extent of jurisdiction in particular.
Increasing travel, transactions and communications between people in two or more states have led many states to adopt laws and conclude bilateral and multilateral treaties regulating various aspects of judicial and legal cooperation between states. Thus there are many treaties providing for the mutual recognition and enforcement of civil and commercial judgments,5 and facilitating the taking of evidence in one state for use in proceedings before the courts of References(p. 486) another.6 Treaties have also been concluded dealing with the extradition of accused persons from one state to stand trial in another,7 other forms of mutual assistance in criminal matters,8 the transfer of criminal proceedings from one References(p. 487) state to another,9 the acceptance of the validity of criminal judgments given in other states,10 and the transfer of prisoners to serve sentences in one state (usually the state of their nationality) after being convicted by the courts of another.11
The development of mutual legal assistance by states has been given considerable impetus by growing international concern at the socially harmful effects of illegal drug use,12 both in their effects on users and in the increase in serious international crime associated with those engaged in drug trafficking. International attempts to suppress the illegal trade in drugs have a considerable history,13 and are most recently reflected in the Single Convention on Narcotic References(p. 488) Drugs 196114 (as amended by a protocol concluded in 1972),15 the Convention on Psychotropic Substances 1971,16 and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.17 The international community’s efforts in this area are coordinated primarily through the Commission on Narcotic Drugs18 (established in 1946 by the Economic and Social Council of the United Nations) and the International Narcotics Control Board (provided for in the 1961 Single Convention). These multilateral efforts have increasingly been supported in recent years by the conclusion of many bilateral agreements,19 involving cooperative action to trace, freeze and confiscate the proceeds of drug trafficking.20 The seriousness of drug trafficking offences has led to their consideration by the International Law Commission as a crime against the peace and security of mankind.21
While effect is as a rule given to private rights acquired under the legislation of foreign states1 — a subject which falls within the domain of private international law2 — the courts of many countries, including British and American courts, decline to give full effect to the public law, as distinguished from private law, of foreign states3 (unless otherwise References(p. 489) required by any relevant treaty).4 In particular they refuse, in respect of assets within their jurisdiction, to enforce directly or indirectly5 on behalf of a foreign state6 its revenue laws7 as well as its penal8 and confiscatory9 legislation. It is in References(p. 490) each case a question of substance rather than of form whether the foreign law in question is of such a character as to bring the rule into operation,10 and whether the proceedings involve the enforcement of such a law.11
Although in such matters courts often base their refusal to enforce foreign public law upon considerations of public policy, in international law a basis for that widespread practice is to be found in the principle of territorial authority, from which it follows that states have no right to perform acts of sovereignty within the territory of other states.12 For a state’s public law to be enforced in another state would in effect involve the performance of acts of sovereignty in foreign states in derogation of their territorial authority.13
While the practice of not enforcing a foreign state’s revenue, penal and confiscatory laws is well established, the distinction between them is not always clear cut. Thus the distinction between penal and confiscatory laws cannot References(p. 491) always be sharply drawn, since for example a confiscation may be the penalty for a criminal offence or may be tantamount to the imposition of a penalty.14 It is also uncertain to what extent enforcement is to be refused to categories of public law other than revenue, penal or confiscatory laws.15 An underlying principle of territorial sovereignty would suggest that all foreign public laws should be refused enforcement; in practice, however, courts have not always acted in that way,16 especially where they discern no compelling reason of public policy requiring them to do so. It can probably only be said that revenue, penal and confiscatory laws are not the only categories of public law the enforcement of which is to be refused, although there is no established practice according to which all, or any particular, other categories of public law are refused enforcement.17 In this context exchange control laws call for particular References(p. 492) mention.18 They are undoubtedly part of the public law of the state. They may in particular cases be properly regarded as in substance confiscatory, or as so closely connected with confiscatory laws that to enforce them would be indirectly to enforce that confiscatory law, and will for that reason not be enforced rather than because of their character as exchange control laws.19 For those states which are parties to the agreement establishing the International Monetary Fund Article VIII(2)(b) provides that ‘Exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of that member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member.’20 Apart from that provision, courts generally refuse to enforce foreign exchange control laws in respect of property or rights situated in the state of the forum.21
References(p. 493) The reluctance of courts to enforce a foreign state’s public law does not involve a complete refusal to acknowledge it.22 The courts of one state do not normally question the legality of the laws of another in their application to persons, property and events within that other’s territory,23 and the territorial sovereignty of a state is not prejudiced by its courts recognising that a foreign state’s public law operates within the foreign state’s territory. Thus if a contract is properly subject to the law of a foreign state (for example because it is the proper law of the contract) and a public law of that state renders the contract invalid, or its performance illegal, the courts of the forum state may also regard the contract as invalid and decline to enforce performance.24 Furthermore, the courts also refuse References(p. 494) to enforce a contract which calls for conduct which would involve the commission of a criminal offence in a foreign state.25 In such cases the courts of the forum state do not themselves enforce the foreign public law, but recognise the consequence of its operation within the territory of the foreign state, and in that sense can be said to apply it. Those courts may, however, sometimes decline even to apply a foreign state’s public law in that limited sense, for reasons amounting in essence to public policy.26
With foreign confiscatory legislation27 in particular the distinction between enforcing that legislation in the state of the forum, and giving effect in that state to consequences flowing from the application of the law within the legislating state, is important. Even though a confiscatory law which purports to have extra-territorial effect28 will in principle be regarded by the courts of the legislating state as having that effect,29 it will not normally be enforced30 by the courts of other states so as to deprive the owner of property situated within the territory of those states, for that would be to allow a foreign state’s sovereign action to operate directly in another state and would raise serious questions of public policy.31 However, the considerations of public policy which normally lead References(p. 495) References(p. 496) courts to deny extra-territorial operation to a foreign state’s confiscatory laws may occasionally be overridden by conflicting considerations of public policy requiring such operation to be allowed.32 Further, the normal rules applied by courts to foreign confiscatory laws may be held inapplicable because, although the law is apparently confiscatory, it is in all the circumstances of the case inappropriate so to regard it, as where property is merely requisitioned or where some, not illusory, provision for payment is made.33
Where the confiscatory laws have already operated on property within the territory of the legislating state so as to deprive the original owner of title, and vest title and possession in the foreign state or its nominee or successor, no considerations of territorial sovereignty or jurisdiction prevent the courts of other countries from acknowledging and giving effect to that title and possession as lawful, and they often do so, particularly having regard to the so-called ‘act of state’ doctrine.34 But even where a confiscatory law has applied in this way to References(p. 497) References(p. 498) property within the territory of the legislating state, courts in other countries sometimes still decline to recognise the law’s consequences because of domestic considerations such as their notions of public policy,35 or for other reasons such as that the confiscation involved a violation of international law.36
1 See also Basdevant and others, Dictionnaire de la terminologie du droit international (1960), pp 354–7, for a useful description of several senses of ‘jurisdiction’, including some of the ‘competence’ aspects.
The meaning of ‘jurisdiction’ has had to be considered in several cases before the European Commission and Court of Human Rights, since Art 1 of the European Convention on Human Rights obliges each state party to secure the rights in question to ‘everyone within its jurisdiction’. That provision has been held to apply in various circumstances where a state has exercised authority or control abroad in a manner relevant to the exercise of the right in question: see § 440, n 30, and § 442, n 5.
To the extent that jurisdiction is a matter of the limits to the exercise of authority, it may be noted that questions of jurisdiction may arise not only in relation to states but also in relation to other entities which exercise authority internationally, such as international organisations and, perhaps less clearly, multinational corporations.
2 In the Lotus case the PCIJ, while stating that international law generally left states ‘a wide measure of discretion’ in the application of their laws and the jurisdiction of their courts, added that that discretion was ‘limited in certain cases by prohibitive rules’ and that it was ‘required of a State … that it should not over-step the limits which international law places upon its jurisdiction’: PCIJ, Series; A, No 10, at p 19.
3 As to so-called ‘organic’ jurisdiction of states and international organisations (ie jurisdiction over their organs as such) see Seyersted, ICLQ, 14 (1965), pp 31–82, 493–527.
4 See § 137, nn 5–10.
5 This is essentially a matter of domestic law and the interpretation of the relevant provisions of statute or common law. See § 20, as to the presumption that statutes do not apply extraterritorially.
6 PCIJ, Series A, No 10, at p 19. See also Lord Macmillan in The Cristina  AC 485, 496–7.
7 An added complication may arise where one state wishes to punish as criminal conduct which another does not regard as involving an offence.
8 See pp 463–4.
9 See Mann, Hag R, 111 (1964), i, pp 43–51, 82ff; Brownlie, Principles of International Law (4th ed, 1990), pp 298, 306–7. The adoption by the ICJ in the Nottebohm Case, ICJ Rep (1955), p 4 of the principle of a ‘genuine link’ has been of some influence in the present context. See also § 139, n 46, for the need to consider the ‘balance of interest’ between states with competing claims to regulate a particular matter.
1 As to the position of ships and aircraft, see §§ 141, 287. A state’s territorial jurisdiction extends, at least for certain purposes, to various adjacent maritime areas even if they are not strictly speaking part of the state’s sovereign territorial area: see generally § 314ff, § 327ff. See also, as to the special position of foreign ships in transit through a state’s territorial waters, or in its ports, §§ 198–203. As to the status of embassy premises as part of the territory of the sending state, see § 494.
As to the territorial quality of islands composed of floating sea-ice, and jurisdiction over events taking place on them, see US v Escamilla (1972) and comment by Auburn, ICLQ, 22 (1973), pp 552–7.
2 See §§ 117–18. The presumption that a state’s territorial sovereignty carries with it the right to regulate matters arising in the state’s territory imposes on a party alleging otherwise the onus of establishing its contention: North Atlantic Coast Fisheries Case (1910), RIAA, 11, pp 167, 180.
3 As to a state’s jurisdiction to try a person brought within its territory by improper means involving a violation of international law (as where a state has abducted a wanted person from the territory of another state without its consent) see § 119.
Although the territorial limitation upon the exercise of a state’s authority affects its ability to enforce its laws, this is to some extent overcome by extensive cooperation between states in the application of their laws. See § 143.
4 PCIJ, Series A, No 10, at pp 18–19.
5 The US Supreme Court first enunciated a ‘minimum contacts’ test for the exercise of jurisdiction in relation to in personam jurisdiction in International Shoe Co v Washington (1945) 326 US 310. In Shaffer v Heitner (1977) 433 US 186 the Court held that all assertions of jurisdiction had to meet that test.
Note also the element of constructive presence within a state’s waters which is permitted as a basis for the right of hot pursuit: see Convention on the High Seas 1958, Art 23.3, and generally § 294.
6 The US Supreme Court has indicated that that would almost invariably be a sufficient basis for quasi in rem jurisdiction: Shaffer v Heitner (1977) 433 US 186. See generally on developments in US law as to the circumstances which give a state jurisdiction over a non-resident defendant, Hay, ICLQ, 35 (1986), pp 32–62; Restatement (Third), i, pp 305–13. As to the position in English law see generally Dicey and Morris, p 288ff.
7 See eg Hellicopteros Nacionales de Columbia v Hall (1984) 104 S Ct 1868, where the US Supreme Court denied jurisdiction in civil proceedings where the alien defendant’s links with the USA were too insubstantial, being effectively limited to regular purchases of helicopters: and see comment by Friedrich, Harv ILJ, 26 (1985), pp 630–36. Cf Marc Rich & Co AG v US (1983) 707 F 2d 663, with comment by Manes, Harv ILJ, 25 (1984), pp 250–57; Asahi Metal Industry Co v Superior Court of California (1987) 107 S Ct 1026, with comment by Ulene, Harv ILJ, 29 (1988), pp 207–14.
8 See eg Derby & Co Ltd v Larsson [1976) 1 All ER 401.
9 See eg the decision of a US Court of Appeals in Republic International Corpn v Amco Engineers Inc (1975) 516 F 2d 161.
10 The conduct of the subsidiary may be attributed to the parent company so as to constitute its acts occurring within the state, and the parent company may be regarded as itself within the state so as to permit penalties being imposed on it in relation to that conduct: ICI Ltd v Commission of the European Communities  ECR 619, 666–7. For comment see Steindorf, CML Rev (1972), pp 502–10; Acevedo, MLR, 36 (1973), pp 317–20; Mann, ICLQ, 22 (1973), pp 35–50. See also Europemballage Corpn and Continental Can Co Inc v Commission of the European Communities  ECR 157,  ECR 215; Wells Fargo & Co v Wells Fargo Express Co, AJ, 72(1978), p 153; and US v First National City Bank (1965), ILR, 38, p 112 (as to a branch office abroad); Volkswagenwerk AG v Schlunk, ILM, 26 (1987), p 1092 (with comment by White, Harv ILJ, 30 (1989), pp 277–86). But the extent of the foreign parent company’s control of its subsidiary within the jurisdiction of the forum state depends on the facts of each case, as does, accordingly, the degree to which that control gives the forum jurisdiction over the foreign parent company. See eg for links held to be insufficient to found jurisdiction, Kramer Motors Inc v British Leyland Inc, AJ, 75 (1981), p 668, decided by a US Court of Appeals. As to the implications of the relationship between head office and branch, and between parent company and subsidiary, on jurisdiction, see generally F A Mann, Hag R, 186 (1984), iii, pp 53–66; Restatement (Third), i, pp 269–82. See also § 138, n 11. On multinational corporations generally see § 380, n 15.
11 See generally on criminal jurisdiction in English law over cross-frontier offences, Hirst, LQR, 97 (1981), pp 80–101. See also § 415, n 7.
12 As to the subjective application of the territorial principle, see Board of Trade v Owen  AC 602; Treacy v DPP  AC 537; Public Prosecutor v DS, ILR, 26 (1958-II), p 209; Re Feld and Newman (1967), ILR, 48, p 88; Adams v Staatsanwaltschaft Des Kantons Basel-Stadt  3 CMLR 480; Re Chapman (1970), ILR, 55, p 101.
It may be noted that in some circumstances involving a transboundary element an offence will, under the forum slate’s laws, have been completed entirely within that state, without the need to take into account the further factor involving action abroad: see eg Italian South Tyrol Terrorism Case (1) (1968), ILR, 71, p 235 (possession of explosives for use abroad), R v Treacy  AC 537 (blackmail of a person abroad), R v El-Hakkaoui  1 WLR 396 (conspiracy to endanger life abroad). Cf Attorney General’s Reference (No 1 of 1982)  1 QB 751 (conspiracy to defraud persons abroad).
13 The leading example of the objective application of the territorial principle is probably the Lotus Case, PCIJ, Series A, No 10 (see § 140), where the Court accepted that ‘the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another state, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there’ (at p 23).
See also eg Mobarik Ali Ahmed v State of Bombay, ILR, 24 (1957), p 156; Attorney-General (No 1) v Tjoeng Khin-Tsjin (1965), ILR, 59, p 325; Re Kote, Mazeli and Noujaim (1966), ILR, 47, p 267; Musisi v Republic (1969), ILR, 48, p 90; Charron v US (1969), ILR, 54, p 230; R v Baxter  1 QB 1; Public Prosecutor v Janos V (1972), ILR, 71, p 229; Public Prosecutor v Loh Ah Hoo (1974), ILR, 56, p 61; US v Fernandez (1974), ILR, 61, p 186; R v Markus  AC 35. For jurisdiction over an attempt to commit a crime in a state, all elements of the attempt taking place abroad but where the crime had it been completed would have been subject to that state’s jurisdiction, see DPP v Stonehouse  AC 55, and comment by Crawford, BY, 49 (1978), pp 279–81. As to a state’s jurisdiction in respect of a conspiracy abroad to commit a crime within the state, see Ford v US (1927), 273 US 593; DPP v Doot  AC 807; Marin v US (1965), ILR, 42, p l43; Rivard v US, AJ, 61 (1967), p 1065; Somchai Liangsiriprasert v Government of the United States of America  3 WLR 606; R v Sansom  2 WLR 366; cf R v Cox  1 All ER 410.
14 See § 139, n 37ff, on the ‘effects’ basis for jurisdiction, which is to be distinguished from the objective territorial basis for jurisdiction in that with the latter, but not the former, the consequences taking place within the ‘objective’ jurisdiction are essentially a constituent part of the offence. This important distinction may be obscured when consequences which are constituents of the offence are referred to as ‘effects’, as indeed happened in the Lotus case.
15 See § 109.
16 For details, see § 451ff.
Examples of this kind are not confined to states, however. Certain officers and agents of the UN, and judges of the ICJ, for instance enjoy privileges not only when abroad but also, in certain circumstances, in the country of their nationality. See, eg, as to the position of a special rapporteur of a UN body, the Advisory Opinion on Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, ICJ Rep (1989), p 177.
18 For details, see §§ 560–4 — an immunity which is extended by the law of some states to cover public ships engaged in trade (see § 565). As regards the very limited ‘extra-territoriality’ of merchantmen which are by distress compelled to enter a foreign port, see §§ 203–4.
19 For details, see §§ 556–8.
20 Partly by custom and partly by treaty obligations, certain non-Christian states were restricted in their territorial jurisdiction with regard to foreign resident subjects of Christian powers. See § 406.
21 Dickinson v Del Solar  1 KB 376.
22 But as to persons on board ships entering ports in distress, see §§ 203–4; and as to aircraft landing in distress see Nkondo v Minister of Police (1980), with comment by Dugard, ICLQ, 30 (1981), pp 902–5.
23 See § 404, n 12.
24 Weil case (1875), Moore, International Arbitrations, p 3424; Imperial Tobacco Co of India v Commissioners of Income Tax (1958), ILR, 27, p 103; Hyde, i, p 665; Albrecht, BY, 29 (1952), pp 145–85; Mann, Hag R, 111 (1964), i, at pp 109–19; Akehurst, BY, 46 (1972–73), at pp 179–80.
25 See § 138, n 11ff, as to the limits upon a state’s rights to require persons subject to its jurisdiction to take action in another state. See also Lord Diplock’s acknowledgement in Treacy v DPP AC 537, 561, that ‘it would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territories’ if the UK were to punish persons in the UK for their acts done abroad which had no harmful consequences in the UK. In civil matters, however, English courts will assume jurisdiction over a non-resident alien defendant if a writ is served on him during a brief visit to the UK, and even though the cause of action arose abroad: see Colt Industries Inc v Sarlie  1 All ER 673.
26 For details see 8th ed of this vol, § 144, and below, § 557, n 4. See also Oppenheimer, AJ, 36 (1942), pp 566–95; Flory, Le Statut international des gouvernements refugiés et le cas de la France libre 1939–1945 (1952); Mattern, Die Exilregierung (1953); Barton, BY, 27 (1950), pp 207–17; McNair and Watts, Legal Effects of War (4th ed, 1966), ch 18. See also § 42, n 4, on governments in exile generally.
1 See Blackmer v The United States of America (1932), 284 US 421; AJ, 26 (1932), pp 611–18; Skiriotes v Florida (1941) 313 US 669; AJ, 35 (1941), p 569; R v Holm, decided in 1947 by the Appellate Division of the Union of South Africa:  ASLR 925; AD, 14 (1947), No 33; Hackworth, ii, §§ 133–8; Re Amand  2 KB 239, and Re Amand (No 2)  1 All ER 236; Kaiser and Attenhofer v Basle, ILR, 17 (1950), No 46; Steele v Bulova Watch Co, ILR, 23 (1956), p 270; X v Public Prosecutor, ILR, 19 (1952), No 48; Public Prosecutor v Y, ILR, 24 (1957), p 264; Re Gutierrez, ibid, p 265; Re Roquain, ILR, 26 (1958-II), p 209; Weiss v Inspector-General of Police, ibid, p 210; Public Prosecutor v Antoni(1960), ILR, 32, p140; Cox v Army Council AC 48; Public Prosecutor v Li Te-hua (1967), ILR, 40, p 87; Pacific Seafarers Inc v Pacific Far East Line Inc, AJ, 63 (1969), p 825; Stegeman v US, AJ, 65 (1971), p 211; Scotch Whisky Association v Barton Distillery Co (1973), ILR, 61, p 227; US v Gotten (1973), ibid, p 216; US v Lansky (1974), ibid, p 231; Case Against Buscetta, Rivista, 64 (1981), p 174. A state’s nationals abroad would appear to be within the state’s jurisdiction for the purpose of its obligations to ensure human rights to all persons ‘within its jurisdiction’: see § 440, n 30, and § 442, n 5.
In somewhat special cases a state may by agreement be able to treat nationals of other states as its own nationals: see § 385, n 1, para 3.
Although in 1949 the ILC included jurisdiction with regard to crimes committed outside national territory in its provisional list of topics for codification, it has not yet begun work on this topic. See § 30, item (4).
2 US v Rexach (1960), ILR, 31, p 273. But see F A Mann, Hag R, 111 (1964), i, at p 116. See generally Palmer, Harv ILJ, 30 (1989), pp 1–64; Martha, The Jurisdiction to Tax in International Law (1989). See also § 139, n 17.
3 Amsterdam v Minister of Finance, ILR, 19 (1952), No 50; Shareholders of the ZAG v A Bank (1965), ILR, 45, p 436. Several of the cases referred to in § 144 involve attempts by states to affect by legislation the property abroad of their nationals; while the state of the situs usually refused to enforce such laws, this is for reasons other than doubts as to the legislating state’s jurisdictional rights in relation to such property.
4 In this context criminal law may be taken to include provisions of the law which impose penalties for conduct contrary to the law, even if the penalty is technically a civil rather than a criminal sanction: see § 139, n 3.
As to the application of a state’s civil law, and the jurisdiction of its courts in civil matters, there has been little state practice relating to the compatibility with international law of the wide variety of kinds of jurisdiction asserted. Nevertheless, it is difficult to accept that a state may, without thereby being in breach of international law, assert and exercise jurisdiction in civil matters on whatever grounds it may choose, however little real connection there may be between the state and the matter in issue. The recognition and enforcement of a civil judgment given by a court in another state is usually subject to conditions which ensure that judgments given on the basis of unacceptably wide claims to jurisdiction are not recognised or enforced (see § 143). For discussion of problems of international law which arise in relation to jurisdiction in civil or private law matters, see Mann, Hag R, 111 (1964), i, at pp 73–81, and Akehurst, BY, 46 (1972–73), at pp 170–77, 182–7. See also Bleckman, CML Rev, 17 (1980), pp 467–85, and Collins, ibid, pp 487–91, as to the personal jurisdiction of the European Community over nationals and companies of member states when in third states.
5 See generally Lew, ICLQ, 27 (1978), pp 168–214; Report of the Law Commission (England and Wales) on Territorial and Extra-territorial Extent of the Criminal Law (1978), and comment by Hirst, Crim Law Rev (1979), pp 355–63; Archbold, Criminal Pleading, Evidence and Practice (43rd ed, 1988), pp 125–44. One of the statutes which applies to conduct abroad is the Official Secrets Act: for an instance of authorisation to give evidence abroad notwithstanding the Act, see Parliamentary Debates (Commons), vol 65, cols 854–5 (written answers, 29 October 1984). As to jurisdiction over ‘British Subjects’ see § 385, n 6.
6 See eg as to Israel’s Penal Law Amendment (Offences Committed Abroad) Law 1978, ShachorLandau, ICLQ, 29 (1980), pp 274‘95; Art 9 of the Italian Penal Code; Art 5 of the Turkish Penal Code (provided that the offence carries a certain minimum level of punishment).
7 See eg as to the law of the Netherlands, X v Public Prosecutor, ILR, 19 (1952), No 48; Public Prosecutor v Y, ILR, 24 (1957), p 264; as to the Republic of China, Public Prosecutor v Li Te-hua (1967), ILR, 40, p 87; and as to Switzerland, Kaiser and Attenhofer v Basle, ILR, 17 (1950), No 46.
8 See eg as to the law of Belgium, Re Roquain, ILR, 26 (1958-II), p 209. Article 1 of the Swedish Penal Code allows Swedish citizens to be punished for crimes committed abroad against Sweden, against another Swede, or in other cases if the King in Council consents to the prosecution: see Public Prosecutor v Antoni (1960), ILR, 32, p 140.
9 Some states allow a person to be tried in absentia, including absence abroad: but that exercise of jurisdiction will not be effective against the accused, nor be enforced against him, until he returns. Similarly a state may enforce its jurisdiction over its nationals who are abroad by taking action affecting their assets within the state or their political or civic status.
10 See § 404.
11 See § 123. In Skiriotes v Florida (1941) 313 US 69, 73 the US Supreme Court held that the US was entitled to regulate the conduct of its nationals abroad ‘when the rights of other nations or their nationals are not infringed’. See also cases cited in n 12 of this section and § 139, n 41. In 1969 the British Government, in making representations to the Commission of the European Communities concerning jurisdiction in anti-trust matters, stated that ‘The nationality principle justifies proceedings against nationals of the State claiming jurisdiction in respect of their activities abroad only provided that this does not involve interference with the legitimate affairs of other States or cause such nationals to act in a manner which is contrary to the laws of the State in which the activities in question are conducted’: BPIL (1967), pp 58, 60.
An order to a national company that it should in turn require its foreign subsidiary company to pursue certain conduct amounts to an attempt by a state to control the conduct of an alien abroad and may be regarded as an infringement of the sovereignty of the foreign state concerned: see Akehurst, BY, 46 (1972–73), p 169, citing a Canadian protest in that sense. See also Parliamentary Debates (Lords), vol 260, cols 825–7 (23 July 1964); and Compagnie Européenne des Petroles SA v Sensor Nederland BV, ILM, 22 (1983), p 66. The position may be different if the parent company chooses to instruct its foreign subsidiary to act in a certain way even if it does so in order to comply with the laws of the state of which the parent company is a national (see BPIL (1962), pp 31–2), or if the business abroad is merely a branch office of the national company (see US v First National City Bank (1965), ILR, 38, p 112). US regulations made in the aftermath of Iran’s seizure of US diplomatic and consular staff as hostages in Teheran had the effect of prohibiting US banks, their branches and subsidiaries (even if overseas) from allowing Iran to withdraw dollar-denominated accounts held by them: see § 139, n 41.
12 The cases have involved not only US nationals but also foreign nationals (usually companies) who by residence or conducting business in the US were subject in personam to US jurisdiction. See eg Re Grand Jury Subpoena Duces Tecum Addressed to Canadian International Paper Co (1947) 72 F Supp 1013; Re Investigation of World Arrangements, ILR, 19 (1952), p 197; Société Internationale pour Participations Industrielles et Commerciales SA v Rogers, ILR, 26 (1958-II), p 123; First National City Bank of New York v Internal Revenue Service (1959), ILR, 28, p 138; Re Grand Jury Investigation of the Shipping Industry (1960) 186 F Supp 298; Ings v Ferguson (1960), ILR, 31, p 219; Montship Lines v Federal Maritime Board (1961), ILR, 32, p 100; Application of Chase Manhattan Bank (1962), ILR, 34, p 43; Re Mitsui Steamship Co Ltd (1962), ILR, 32, p 158; Fontaine and IOS Ltd v Securities and Exchange Commission, ILM, 5 (1966), p 1003; Grand Jury Subpoenas for Bank Records, ILM, 22 (1983), p 742 (resisted by the Landgericht, Kiel, ibid, p 740).
See generally on extra-territorial discovery Wallace, ICLQ, 32 (1983), pp 141–74; F A Mann, Hag R, 186 (1984), iii, pp 49–53; Restatement (Third), i, pp 348–66; Gerber, AJ, 82 (1988), pp 521–55; and much of the literature cited at § 139, n 43, touches on this matter amongst others.
For responses by UK courts to excessive requests for discovery of documents made in the course of proceedings in the USA, see eg Radio Corpn of America v Rauland Corpn  1 QB 618; Rio Tinto Zinc Corpn v Westinghouse Electric Corpn  AC 547; Re Asbestos Insurance Coverage Cases  1 WLR 331.
13 See § 139, nn 48–50.
14 See Federal Trade Commission v Cie de Saint-Gobain-Pont-à-Mousson, ILM, 20 (1981), pp 597, 603–6; Mackinnon v Donaldson, Lufkin and Jenrette Corpn  2 WLR 453.
15 See Interamerican Refining Corpn v Texaco Macaraibo Inc (1970), ILR, 56, p 30, holding that conduct by the defendant which might otherwise be a violation of anti-trust legislation will not be so considered where it is the direct result of orders by a foreign government to the defendant on a matter within that government’s jurisdiction. In US v Watchmakers of Switzerland Information Centre (1963) Trade Cases 77, 414, the Court acknowledged that it could not order the defendants to refrain in Switzerland from activities ‘required by Swiss law’, but found that in the particular circumstances those activities were not ‘required’ by Swiss law although they were in practice allowed and tolerated by the Swiss Government; see also Mannington Mills Inc v Congoleum Corpn (1979), ILR, 66, p 487. The risk of criminal proceedings in the other state may be disregarded if it is no more than fanciful: see Securities and Exchange Commission v Certain Unknown Purchasers of Stock, ILM, 23 (1984), pp 511, 515. If execution of a court order would give rise merely to a civil action in contract or tort against the person to whom the order is addressed, it is less likely that the court will waive compliance with the order: see US v First National City Bank, AJ, 63 (1969), p 148. A distinction may be drawn between the validity of a requirement to comply with an order to produce documents held abroad, and proceedings for contempt for failure to comply, violation of the law of the state where the documents are located being more relevant as a defence in the latter situation: Civil Aeronautics Board v Deutsche Lufthansa AG, AJ, 73 (1979), p 511. Since a number of American cases involved questions of compliance with Swiss law, particularly relating to banking secrecy, the USA and Switzerland sought to resolve certain differences between them by concluding a Treaty on Mutual Assistance in Criminal Matters 1973 (see § 143, n 8), but the treaty did not apply to ‘investigations or proceedings … for the purpose of enforcing cartel or anti-trust laws’: Art 2.1(a)(4). See generally the same n, on similar mutual assistance agreements with other states. As to what became known as the Santa Fe case, see the decisions of courts in Switzerland and England (ILM, 22 (1983), p 785; 23 (1984), p 511, and 24 (1985), p 745), and AJ, 79 (1985), pp 722–8).
See also s 178(6) of the Financial Services Act 1986, enacted in the UK, under which it is not a reasonable excuse for refusing to provide requested information that a foreign law prohibited its disclosure, if consent to disclosure, or exemption from the law, could have been obtained: and see Lowe and Warbrick, ICLQ, 36 (1987), pp 403–4.
For a valuable note on the limitations of the US federal judicial power to compel acts violating foreign law, see Col Law Rev, 63 (1963), No 8, pp 1441–95. See generally on the exercise of jurisdiction involving conflicting requirements of conduct and the availability of the ‘foreign sovereign compulsion’ defence, Whiteman, Digest, 6, pp 154–9; AS Proceedings (1978), pp 97–117; Mann, ICLQ, 31 (1982), pp 199–202 (commenting on the decision of a US Court of Appeals in US v Vetco Inc and Deloitte Haskins & Sells (1981) 644 F 2d 1324); Restatement (Third), i, pp 341–66. See also § 139, n 46, as to the need to balance the competing interests of the forum state and the state where documents are held or where conduct is to take place.
16 See § 139, n 46.
1 See Hall, § 62; Westlake, i, pp 261–63; Lawrence, § 104; Moore, ii, §§ 200 and 201; Phillimore, i, § 334; Beckett, BY, 6 (1925), pp 44–60, and 8 (1927), pp 108–28; Harv Research (1935), pp 484–508; Preuss, Grotius Society, 30 (1944), pp 184–208. The question was studied by the League Codification Committee in 1926, upon a report by Brierly and Charles de Visscher, when the Committee came to the conclusion that, in view of the diversity of practice among states, ‘international regulation of these questions by way of a general convention, although desirable, would encounter grave political and other obstacles’: see AJ, 20 (1926), Special Suppl, pp 252–9, and comment by Woolsey, AJ, 20 (1926), pp 757–9. Although in 1949 the International Law Commission included jurisdiction with regard to crimes committed outside national territory in its provisional list of topics for codification, it has not yet begun work on this subject. See § 30, item (4). See also Donnedieu de Vabres, Les Principes modernes du droit pénal international (1928); Brewster, Anti-Trust and Business Abroad (1958); Sørensen (ed), Manual of Public International Law (1968), pp 355–74; Maier, AJ, 76 (1982), pp 280–320; Robinson, cited in ibid, pp 839–46; Demaret, Revue trimestrielle de droit Européen, 21 (1985), pp 1–39; Stern, AFDI, 32 (1986), pp 7–52; and works cited at n 43.
In certain cases the relationship between two countries may be such as to exclude their being ‘foreign’ to each other for this purpose: see eg Rose v McNamara, AJ, 62 (1968), p 191, as to the USA and Okinawa. The same consideration arises as between most states members of the Commonwealth of Nations, which are not ‘foreign’ states to one another and nationals of which share a common status as ‘British subjects’ or ‘Commonwealth citizens’ and are not aliens in each other’s countries: see § 79, n 12. However, for the UK s 3 of the British Nationality Act 1948 limits the criminal liability of British subjects in respect of conduct outside the UK (except for offences under the Merchant Shipping Acts) to those who are citizens of the UK and Colonies.
2 Thus in the UK there is provision for the service of process in civil proceedings on defendants abroad. See in this context dicta by Roskill LJ and Lord Simon in Derby & Co Ltd v Larsson  1 All ER 401, at 409, 413–14. But note particularly the presumption applied by many states as to the territorial limits to the application of statutes: see § 20.
As to the grant of an injunction prohibiting a party to proceedings before the English courts from prosecuting proceedings abroad, see South Carolina Assurance Co v Assurantie Maatschappij ‘De Zeven Provincien’ NY  AC 24. See also Castanho v Brown and Root (UK) Ltd  AC 557; Metall und Robstaff AG v ACLI Metals (London) Ltd 1 Lloyd’s Rep 598; Laker Airways Ltd v Sabena, ILM, 23 (1984), p 519; British Airways Board v Laker Airways  AC 58; Laker Airways Ltd v Pan American World Airways, AJ, 79 (1985), p 1069; Midland Bank Plc v Laker Airways Ltd  1 QB 689.
3 While it is convenient to refer to ‘criminal’ jurisdiction over foreigners abroad, the present section concerns situations which, even if not criminal in a technical sense, involve the enforcement of the general public law of the state claiming to exercise jurisdiction; it includes, therefore, jurisdiction to enforce laws of a primarily economic or social content, such as those relating to monopolies and trade practices, where the observance of the law is ensured by coercive action taken by state authorities.
As to the applicability of the US Constitution to criminal proceedings outside the USA, see US v Tiede and Ruske, ILM, 19 (1980), pp 179, 194ff; Williamson v Alldridge (1970), ILR, 56, p 229; Williams v Blount, ibid, p 234. See also Seery v US, ILR, 22 (1955), p 398, as to the application of US constitutional guarantees in respect of a US citizen’s property in Austria.
4 ILM, 18 (1979), p 1549; Edwards, AJ, 75 (1981), pp 870–902. See generally § 129, n 13, para 5. In Libyan Arab Foreign Bank v Bankers Trust Co  3 WLR 314, an English court declined to accept as effective a US order purporting to block Iranian assets held with a London branch of a US bank; the US Government subsequently issued the US bank a licence to pay the sums in question to the Libyan bank (AJ, 82 (1988), at p 136). For comment see Joyce, Harv ILJ, 29 (1988), pp 451–74. See also Libyan Arab Foreign Bank v Manufacturers Hanover Trust Co (No 2)  1 Lloyd’s Rep 608.
As to orders of an English court freezing the assets abroad of a defendant subject to the court’s in personam jurisdiction, and the need in such cases to take account of the jurisdictional interests of the state where the assets are situated, see Babanaft International Co SA v Bassatne  2 WLR 252; Derby & Co v Weldon (No 1)  2 WLR 276; Republic of Haiti v Duvalier  2 WLR 261; Derby & Co v Weldon (Nos 3 and 4)  2 WLR 412; Rosseel NV v Oriental Commercial Shipping (UK) Ltd  1 WLR 1387.
5 See the statements by the PCIJ in the Lotus case, quoted at p 458; and on the case generally, see § 140.
6 This is reflected, for example, in Art 13 of the European Convention on Offences Relating To Cultural Property 1985 (ILM, 25 (1986), p 44) which obliges each party to establish its competence to prosecute offences against cultural property inter alia committed outside its territory either by a person having his or her habitual residence on its territory, or directed against cultural property originally found within its territory, but in both cases only if the suspected person is on its territory (the other four grounds of jurisdiction reflect the territorial or nationality bases of jurisdiction, including passive personality).
7 That is, a right in international law: even if a state has such a right, a particular statute may as a matter of the state’s internal law not permit of extra-territorial application against foreign nationals. In many states there is a presumption that its laws are not intended to have any such effect: see ₧ 20.
8 The state of which the alien is a national may be under an obligation by treaty to acquiesce in the exercise of jurisdiction; see eg the various treaties referred to in the following pages.
9 This was the view expressed by the author. It was approved by Lord Finlay in his dissenting judgment in the Lotus case before the PCIJ in 1927, PCIJ, Series A, No 10: see § 140. There are now very few writers who deny absolutely the right of a state to punish aliens for crimes committed abroad.
10 For a list of such states, see Akehurst, BY, 46 (1972–73), at p 164. As to s 40 of the Austrian Criminal Code, which allows Austrian courts to exercise jurisdiction over common crimes committed abroad by aliens if their home state or the state where the offence was committed does not prosecute them, see Universal Jurisdiction (Austria) Case, ILR, 28 (1958), p 341, and Hungarian Deserters (Austria) Case (1959), ibid, p 343.
11 PCIJ, Series A, No 10, at pp 19–20.
12 See nn 17, 18; see also § 20, as to the presumption against the extra-territorial application of statutes. See also paras 17–33 of the Report of the Joint UK-Irish Law Enforcement Commission 1974 (Cmnd 5627).
13 In cases of universal jurisdiction (n 19ff) the state’s interest is as a member of the international community.
14 Different considerations apply where the conduct takes place in areas outside the territory of another state, eg on the high seas: see § 287ff.
16 Akehurst, BY, 46 (1972–73), at p 156, cites Denmark, Iceland, Liberia, Norway and Sweden in this context; and see Harv Research (1935), pp 533–4, 536–42. In some of these instances residence may be regarded as giving rise to a degree of allegiance sufficient for the purposes of a particular law to justify its application to resident aliens even in respect of their conduct abroad: see eg Amsterdam v Minister of Finance, ILR, 19 (1952), No 50, at pp 239–40. See also Re P(GE) (An Infant), cited in n 17; and Art 4 of the Tokyo Convention on Offences and certain other Acts Committed on Board Aircraft 1963 (§ 141, n 7). The Foreign Corrupt Practices Act 1977 enacted by the USA (ILM, 17 (1978), p 214) to restrain bribery of foreign officials applies not only to US nationals but also to residents of the USA and companies having their principal place of business there: see Juster, Harv ILJ, 20 (1979), pp 716–20.
17 Exchange Control Act 1947, s 1(1). For jurisdiction of English courte in wardship proceedings based on an alien child’s allegiance to the Crown resulting from prior (but now terminated) residence in the UK, see Re P(GE) (An Infant)  Ch 568.
Taxes, and criminal offences associated with taxation, are often based on residence. State practice would seem to accept that it is not contrary to international law for a state to tax property present in that state (other than transiently), and income arising in that state, even though the owner may be abroad or an alien; and for an alien resident in a state to be subject generally to that state’s tax law, even in respect of his property abroad and income arising abroad. See also § 138, n 2.
18 Merchant Shipping Act 1894, s 687. See also Joyce v DPP  AC 347 — a case in which the accused was not an alien pure and simple but a person owing allegiance to the Crown — for an important qualification of the rule that English courts have no jurisdiction over aliens for crimes committed abroad. See H Lauterpacht, CLJ, 9 (1947), pp 342–48; Glanville Williams, CLJ, 10 (1948), pp 54–76. See also Theophile v Solicitor-General  AC 186, as to an act of bankruptcy committed abroad by an alien domiciled abroad; and Air India v Wiggins  1 All ER 192, as to an offence committed abroad on a foreign aircraft on its way to a destination in the UK. A number of the acts which are offences in the UK if committed abroad by a UK citizen (see § 138, n 5) are also offences in the UK if committed abroad by an alien.
19 For a list of offences which are sometimes suggested as being subject to universal jurisdiction, see Harv Research (1935), pp 476–480, 569–72; see also pp 573–92 as to certain other non-international offences which may, subject to stringent conditions, be subject to universal jurisdiction, particularly if committed in areas where no state has authority. See also Restatement (Third), i, pp 254–8. See also § 148 as to the work of the ILC on those internationally serious offences treated as crimes against the peace and security of mankind.
20 See § 299.
21 See vol II of this work (7th ed), §§ 251–7; Wright, AJ, 39 (1945) pp 257, 282–4; Cowles, Calif Law Rev, 33 (1945), pp 177–218; Brandt, BY, 26 (1949), pp 414–27; Baxter, BY, 28 (1951), pp 282–93, and in International Criminal Law (ed Bassiouni, vol 2, 1973), pp 65–86; Röling, Hag R, 100 (1960), ii, pp 357–63; Carnegie, BY, 39 (1963), pp 402–25. Judicial decisions involving the commission abroad by aliens of war crimes against foreign nationals include Re Tesch and Others (Zyklon B Case), AD, 13 (1946), No 109; Re Klein and Others (Hadamar Sanatorium Case), ibid, No 110; Re Ohlendorf and Others (Einsatzgruppen Trial), AD, 15 (1948), No 217. See also § 119, n 15, as to Attorney-General of Israel v Eichmann, involving the trial of the accused in Israel on charges of war crimes, all the offences having been committed before the State of Israel existed, outside what later became Israel, and against people who could not at the time have been Israeli nationals. See also Demjanjuk v Petrovsky (1985), ILR, 79, pp 535, 544–6.
See also § 435, as to crimes against humanity.
22 See generally § 122, n 42ff; and Cassese, ICLQ, 38 (1989), pp 589–608. Even if terrorism is not yet generally regarded as an offence subject to universal jurisdiction, it is an offence in respect of which states have been increasingly willing to assert, or acquiesce in the assertion by other states of, jurisdiction to try aliens for conduct abroad. See eg the Criminal Jurisdiction Act 1975 (Northern Ireland); Extra-territorial Criminal Law Jurisdiction Act 1976 (Republic of Ireland); and statutes in various states giving effect to treaties countering terrorist acts against aircraft (§ 141, n 7ff).
23 See Filartiga v Pena-Arala (1980–84), ILR, 77, p 169. These proceedings were brought in the USA under the Aliens Tort Claims Act, which allows proceedings by aliens for a tort ‘committed in violation of the law of nations’: see § 19, n 93.
24 UNTS, 75, pp 31, 85, 135 and 287. See also Art 85 of Protocol I to the Geneva Conventions 1977 (ILM, 16 (1977), p 1391). The Genocide Convention 1948 (UNTS, 78, p 277) does not, however, provide for universal jurisdiction in respect of acts of genocide, although the matter is not free from doubt: see Fawcett, BY, 38 (1962), pp 181, 205–8; Carnegie, BY, 39 (1963), pp 402, 408–9.
25 See § 141, n 12.
26 See § 141, n 14.
27 Articles III and IV of the Convention on the Suppression and Punishment of the Crime of Apartheid 1973 (GA Res 3068 (XXVIII) (1973)): see § 439.
28 In 1883 the Institute of International Law (see Annuaire, vii, p 156), among a body of fifteen articles concerning the conflict of the criminal laws of different states, adopted a resolution (of value de lege ferenda only) which contained the following (Art 8):
‘Every State has a right to punish acts committed by foreigners outside its territory and violating its penal laws when those acts contain an attack upon its social existence, or endanger its security, and when they are not provided against by the Criminal Law of the territory where they take place.’
Similarly, in Harv Research, op cit in bibliography preceding § 136, which contains an admirable exposition of the subject, such jurisdiction is limited to cases in which ‘the crime was not committed in exercise of a liberty guaranteed the alien by the law of the place where it was committed’ (p 543). But, it will be noted, few states make it a punishable offence to commit high treason against foreign states (although see Re van den Plas, ILR, 22 (1955), p 205). It would be unreasonable to deny to a foreign state the right to punish high treason provided, of course, that the act in question constitutes high treason according to generally recognised legal notions. See also the Israeli law of 1971 which permits the trial in Israel of aliens committing crimes abroad against the security of the state, and under which a Turkish national was convicted in 1973: see The Times, 9 August 1973.
For a more modern exposition of the ‘protective’ principle of jurisdiction, see Bowett, Self-Defence in International Law (1958), pp 61–5.
As to treason committed abroad see Joyce v DPP  AC 347; Chandler v US (1948) 171 F 2d 921; Kawakita v US (1952) 343 US 717; Re van den Plas, above; Whiteman, Digest, 6, pp 110–16.
29 The Convention on Suppression of Counterfeiting Currency of 1 May 1929, provides that states which recognise the principle of the prosecution of offences committed abroad shall punish foreigners who are guilty of that offence in the same way as if the offence had been committed in their country: LNTS, 112, p 371; Hudson, Legislation, iv, p 2692. See also the Counterfeit Currency (Convention) Act 1935, amending in certain respects the Forgery Act 1913, the Coinage Offences Act 1861, and the Extradition Act 1870. See on that Convention Dupriez, RI, 3rd series, 10 (1929), pp 511–30; Garner, AJ, 24 (1930), pp 135–39; Pella and Donnedieu de Vabres, Revue pénitentiaire et de droit pénal (1930), pp 312–25, 328–44; Fitzmaurice, AJ, 26 (1932), pp 533–51; Mettgenberg, ZöV, 3 (1932), pp 76–94. See also Pella, RG, 24 (1927), pp 673–768; Hackworth, ii, § 159; Whiteman, Digest, 6, pp 268–70.
See also Public Prosecutor v L, ILR, 18 (1951), No 48; Georghios Petrides v Republic (1964), ILR, 48, p 69; Re Paris, ILR, 24 (1957), p 48. Note also the reference in R v Thompson  ECR, at p 2275 to ‘the need to protect the right to mint coinage which is traditionally regarded as involving fundamental interests of the State’.
30 See Naim Molvan v Attorney-General for Palestine  AC 351, 370–71; Rocha et al v US (1960), ILR, 32, p 112; US v Pizzarusso, AJ, 62 (1968), p 975; cf US v Baker, ILR, 22 (1955), p 203. See also Whiteman, Digest, 6, pp 95–8.
31 Universal Jurisdiction over Drug Offences Case (1976), ILR, 74, p 166; United States v Gonzalez, AJ, 80 (1986), pp 653, 655. See also § 143, n 13ff. As to the extra-territorial application of labour law, see Morgenstern and Knapp, ICLQ, 27 (1978), pp 769–93.
32 Parliamentary Debates (Commons), vol 37, col 548 (written answers, 25 February 1983). See also the Notes from the British Embassy Washington in 1981, UKMIL, BY, 53 (1982), pp 442–6, and the statement by the Attorney-General at UKMIL, BY, 56 (1985), pp 418–19. See generally on this and other boycotts, § 129, n 14. And see also n 51, as to US action in relation to the Siberian gas pipeline, in furtherance of US foreign policy objectives. The US anti-boycott regulations are just one example of action under the Export Administration Act 1985 (replacing an earlier Act of 1979) which, in so far as they have purported to have extra-territorial application to non-US nationals, have occasioned protest. See eg as to the rejection by the UK of the attempted application in this way of certain US controls on the re-export of goods from the UK, the statement by the Attorney-General at UKMIL, BY, 57 (1986), pp 569–70; and UKMIL, BY, 56 (1985), pp 480–81. See also UKMIL, BY, 59 (1988), p 509, and RG, 93 (1989), p 98, as to representations made by the UK and EEC against the application of US legislation on sanctions against South Africa to US subsidiaries of British and other European companies doing business with South Africa.
33 Note the criticism by Judge Moore in the Lotus Case, PCIJ, Series A, No 10. In that case the Turkish law in question reflected the ‘passive personality’ principle and France claimed that this was not permitted by international law; the Court did not find it necessary to consider the point (pp 22–3). For a list of 28 states which have adopted the principle see Harv Research (1935), p 578: many of them still retain it. In some states the ‘passive personality’ principle is applied as an additional condition to be met if a national is to be prosecuted for an offence committed abroad: see § 138, n 8. In some respects a provision like that in Art 14 of the French Civil Code (giving French courts jurisdiction over aliens abroad in cases where the plaintiff is a French national; see eg Société Air-Algérie v Laribière (1966), ILR, 47, p 127) reflects a ‘passive personality’ principle in civil matters, the plaintiff being the person claiming to have suffered damage of some kind. By the Comprehensive Crime Control Act of 1984 the USA took jurisdiction in respect of serious crimes committed ‘outside the jurisdiction of any nation’ (eg on the high seas); and see n 34 of this section, as to US jurisdiction in respect of terrorist offences against US nationals or interests.
The cause célèbre in the context of the ‘passive personality’ principle of jurisdiction arose in 1886 when Cutting, a citizen of the USA, was arrested in Mexico for an alleged libel against a subject of Mexico, which was published in a newspaper in Texas. Mexico maintained that it had a right to punish Cutting because, according to its criminal law, offences committed by foreigners abroad against Mexican subjects were punishable in Mexico. The USA, however, intervened, and demanded Cutting’s release. Mexico refused to comply with this demand. Nevertheless Cutting was finally released, as the plaintiff withdrew his action for libel. Since Mexico likewise refused to comply with the demand of the USA to alter its criminal law for the purpose of avoiding a similar incident in the future, the incident cannot be said to have settled the subject. See Westlake, i, p 252; Calvo, vi, §§ 171–73; Moore, ii, § 201, and his Report on Extra-territorial Crime and the Cutting Case (1887); Rolin and Gamboa, RI, 20 (1888), pp 559–77, and 22 (1890), pp 234–50; Hyde, i, § 243. The case is fully discussed and the American claim is disputed by Mendelssohn Bartholdy, Das räumliche Herrschaftsgebiet des Strafgesetzes (1908), pp 135–43. For the judgment of the Mexican Court see Scott, Cases, pp 387–93; and see Judge Moore’s comment in his judgment in the Lotus Case, PCIJ, Series A, No 10, at pp 93.
34 See Re Gerbsch, AD, 16 (1949), No 143; Re Rohrig, Brunner and Heinze, ILR, 17 (1950), No 125. The passive personality principle was also relied upon in Attorney-General for Israel v Eichmann (1961–62), ILR, 36, p 5, but with the difference that, the victims having been killed before Israel existed as a state, it was the fact that they were Jews which was invoked: see generally on the case, § 119, n 15, para 3. The passive personality principle is a more limited basis for jurisdiction over war crimes than the universality principle (n 19ff); see also the observations in Demjanjuk v Petrovsky (1985), ILR, 79, pp 535, 545.
As regards terrorist offences, note also the Diplomatic Security and Anti-Terrorism Act 1986, enabling US courts to try persons (including aliens) who abroad kill a US national, with the intention of coercing, intimidating or retaliating against a government or civilian population. See also § 141, n 13.
35 See Art 4(b) of the Tokyo Convention on Offences and certain other Acts Committed on Board Aircraft 1963, § 141, n 7.
36 See Art 13.1(e) of the European Convention on Offences Relating to Cultural Property 1985: ILM, 25 (1986), p 44.
37 Even some earlier writers who denied the lawfulness of extra-territorial criminal jurisdiction over foreigners generally nevertheless conceded it when, though the perpetrator was corporeally abroad, his criminal act took effect within the territory of the state: see Judge Moore’s dissenting judgment in the Lotus case, PCIJ, Series A, No 10 (see § 140). See also Bruns, ZöV, 1 (1929), pp 50–56; Drost, ZI, 43 (1931), pp 111–40; Cook, West Vir LQJ, 40 (1934), pp 303–29. Harv Research (1935), pp 493–4, 497 records a number of states which claimed criminal jurisdiction over acts abroad which had their effects within the state; in some cases much the same result is achieved indirectly by deeming an offence to have been committed not only where it did in fact take place but also where it took effect (eg s 1(5) of the Perjury Act 1911, and Art 7 of the Swiss Penal Code). Many of these legal provisions relate to those effects of conduct which form a constituent part of the offence (and in respect of which jurisdiction may be asserted on the basis of the objective application of the territorial principle: see § 137, n 13) rather than those which are merely consequences of conduct completed abroad. This distinction has not always been fully appreciated in some — particularly earlier — statements which might be thought to constitute authority for the ‘effects’ doctrine but which do not on examination bear such an interpretation. See, as to certain such observations in the Lotus Case, PCIJ, Series A, No 10, Jennings, Hag R, 121 (1967), ii, p 520. The same is probably true of the remarks of Lord Diplock in Treacy v DPP  AC 537, 562, referring to acts done abroad ‘which have had harmful consequences on victims in England’.
In upholding the constitutionality of a law which provided for the jurisdiction of Irish courts over certain acts performed in Northern Ireland, the Irish Supreme Court (relying on the Lotus case) concluded that in international law a state has the right to make acts or omissions done abroad criminal offences provided that they bear upon the peace, order and good government of the state: Re Article 26 of the Constitution and re the Criminal Law (Jurisdiction) Bill 1975 (1976), ILR, 71, p 102.
38 Anti-trust law generally has a mixed civil and criminal character. Most of the controversy has revolved around those of its provisions which, at the instigation of state authorities rather than of private persons, seek to impose a certain course of conduct on pain of fines or other penalties, and may thus be assimilated to criminal law even if not strictly a matter of criminal law under the lex fori.
Similar problems to those which arise in anti-trust matters also arise where a state imposes on foreign companies requirements that they conduct themselves abroad in a manner dictated by that state’s laws implementing its policy of boycotting goods going to or coming from another state: see generally § 129, n 14.
39 See Mann, Hag R, 111 (1964), i, at pp 103–4, for comment on Danish and Federal German restrictive practices laws which operate on the basis of effects within the state. For comment on certain extra-territorial aspects of the UK’s Restrictive Practices Acts, see Lever in Comparative Aspects of Anti-Trust Law in the United States, the United Kingdom and the European Economic Community (1963), ICLQ Suppl Publication No 6, pp 95–116. For an Australian decision holding that Australian legislation prohibiting combinations in restraint of trade did not apply to agreements made between foreigners outside Australia notwithstanding certain consequences felt within Australia, see Meyer Heine Pty Ltd v China Navigation Co Ltd (1966), ILR, 52, p 291.
For adoption of an ‘effects’ principle in certain other fields, see Art 4 of the Tokyo Convention on Offences and certain other Acts Committed on Board Aircraft 1963 (§ 141, n 7), allowing a state to interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board if the offence has effect on the territory of that state; and see § 313, as to ‘pirate broadcasting’, involving unauthorised radio broadcasts from ships on the high seas, and received in the territory of the state taking action against the broadcaster.
40 Article 85(1) of the EEC Treaty prohibits agreements, decisions and concerted practices which inter alia ‘have as their object or effect the prevention, restriction or distortion of competition within the common market’. In ICI Ltd v Commission of the European Communities  ECR 619 the Commission (pp 627–30, 633–5) and the Advocate-General (pp 692–703) maintained that jurisdiction on the basis of effects was consistent with international law, but the Court did not find it necessary to decide the point. For the views of the UK Government see the aide mémoire submitted to the Commission, BPIL (1967), pp 58–60. See also Béguelin Import Co v SACL Import Export  ECR 949. In Walrave v Union Cycliste Internationale  ECR 1405 the Court held a Community rule applicable to legal relationships if ‘the place where they take effect’ can be located within Community territory (at p 1420). See generally Deringer, ICLQ, 12 (1963), pp 582–90; Ellis in Droit communautaire et droit international (1965), Cahiers de Bruges, No 14, pp 361–80; and F A Mann, ibid, pp 381–7; Rahl (ed), Common Market and American Anti-Trust (1970). In Ahlstrom Osakeyhtio v Commission of the European Communities (Joined Cases 89, 104, 114, 116, 117, 125–9/1985: known as the ‘Woodpulp Case’)  ECR 5193, the Court held the Commission to have jurisdiction to impose fines in respect of a pricing agreement concluded outside the EEC by a group of non-EEC companies, but implemented by them (whether directly or through agents, subsidiaries, or branches) within the EEC, and regarded jurisdiction over such conduct as falling within the territorial principle as universally recognised in international law. For comment see Lange and Sandage, CML Rev, 26 (1989), pp 137–65; F A Mann, ICLQ, 38 (1989), pp 375–7; Christoforou and Rockwell, Harv ILJ, 30 (1989), pp 195–206.
41 See eg Re Grand Jury Investigation of the Shipping Industry (1960), ILR, 31, p 209; Montship Lines v Federal Maritime Board (1961) 295 F 2d 147; US v Anchor Line (1964), ILR, 35, p 103; Armement Deppe SA v US (1968) 399 F 2d 794; and generally Restatement (Third), i, pp 239, 243, 250–51, 289–90 and 294–5.
See also, as to matters other than shipping (and primarily the Sherman Anti-trust Act), US v Aluminium Company of America (1945) 148 F 2d 416; US v Timken Roller Bearing Co (1949) 83 F Suppl 284; US v General Electric Co (1949) 82 F Suppl 753, (1953) 115 F Suppl 835; Holophane Co Inc v US, ILR, 23 (1956), p 130; Vanity Fair Mills Inc v T Eaton Co, ibid, p 134; Ramirez & Feraud Chili Co v Las Palmas Food Co Inc, ibid, p 276; US v Watchmakers of Switzerland Information Centre (1963) Trade Cases 77, 414.
On the extra-territorial regulation of foreign issuers of securities in the domestic US market, see Stevenson, AJ, 63 (1969), pp 278–84; and Schoenbaum v Firstbrook (1968), ILR, 60, p 28 (with comment by Bator, AS Proceedings (1970), at pp 141, 143–4) relating to the operation of the Securities and Exchange Commission of the US pursuant to the Securities Exchange Act; Leasco Data Processing Equipment Corpn v Maxwell (1972), ILR, 60, p 51; Schemmer v Property Resources Ltd  1 Ch 273 (refusing enforcement of an order by the US Securities and Exchange Commission for possession of assets outside the USA); Grunenthal GmbH v Hotz, AJ, 75 (1981), p 960; MCG Inc v Great Western Energy Corpn, AJ, 84 (1990), p 755; Lowenfeld, Hag R, 163 (1979), ii, p 311, 344–72; Haseltine, ICLQ, 36 (1987), pp 307–28; Restatement (Third), i, pp 295–303. For a Canadian protest against the operation of the Securities Exchange Act, see Can YBIL, 5 (1967), pp 317–18. See also Kook v Crang (1960), ILR, 31, p 206; and the remarks of Judge Jessup in the Barcelona Traction Case, ICJ Rep (1970), at p 167. For arrangements concluded by the USA with Japan, Switzerland, the UK and Canada to secure cooperation in the administration and enforcement of securities control legislation, see ILM, 22 (1983), p 1; 25 (1986), pp 1429, 1431; and 27 (1988), p 410.
42 US courts appear to have interpreted this requirement as necessitating some substantive effect within the USA: see Delaume, AJ, 74 (1980), pp 640, 646–9; Martin v Republic of South Africa, AJ, 82 (1988), p 583; Zedan v Kingdom of Saudi Arabia, AJ, 82 (1988), p 828; Consolidated Gold Fields Plc v Minorca SA, AJ, 83 (1989), p 923 (on which see Mann, ICLQ, 39 (1990), pp 410–12). See generally § 110, n 9, paras 2 and 3.
43 See generally on the extra-territorial application of anti-trust laws: Haight, Yale LJ, 63 (1954), pp 639–54; Whitney, ibid, pp 655–62; Oliver, AJ, 51 (1957), pp 380–85; Jennings, BY, 33 (1957), pp 146–75; Neale, The Anti-Trust Laws of the USA (1960), ch X; Verzijl, Neth ILR, 8 (1961), pp 3–30; Schlochauer, Die Extraterritoriale Wirkung von Hobeitsakten nach dem öffentlichen Recht und nach Internationalem Recht (1962); van Hecke, Hag R, 106 (1962), ii, pp 253–356; Barnard in Comparative Aspects of Anti-Trust Law in the United States, the United Kingdom and the European Community (1963), ICLQ Suppl Publication No 6, pp 95–116; F A Mann, Hag R, 111 (1964), i, pp 95–108, and 132 (1971), i, pp 162–5; ILA, Report of 51st Conference (1964), pp 304–592; ILA, Report of 52nd Conference (1966), pp 26–142; ILA, Report of 53rd Conference (1968), pp 337–404; ILA, Report of 54th Conference (1970), pp 151–246; ILA, Report of 55th Conference (1972), pp 107–75; Raymond, AJ, 61 (1967), pp 558–70; Whiteman, Digest, 6, pp 118–60; Feltham in International and Comparative Law in the Commonwealth (ed Wilson, 1968); Goldman, Hag R, 128 (1969), iii, pp 631–727; Rahl (ed), Common Market and American Anti-trust (1970); Falk, The Status of Law in International Society (1970), pp 265–325; Akehurst, BY, 46 (1972–73), pp 190–21; Lowenfeld, Hag R, 163 (1979), ii, pp 311, 373–411; Meal and Trachtman, Harv ILJ, 20 (1979), pp 583, 601–27; Jacobs, The International Lawyer, 13 (1979), pp 645–65; Gill, ibid, pp 607–17; Griffin (ed), Perspectives on the Extra-Territorial Application of US Anti-Trust and other Laws (1979); Meng, ZöV, 41 (1981), pp 469–512; Huntley, ICLQ, 30 (1981), pp 213–33; Sornarajah, ICLQ, 31 (1982), pp 127–49; Castel, Hag R, 179 (1983), i, pp 9–144; Lowe, Extra-Territorial Jurisdiction (1983), and in International Economic Law and Developing States (ed Fox, 1988), pp 47–61 ; Gerber, AJ, 77 (1983), pp 521–55 (as to the extra-territorial application of German anti-trust laws); Olmstead (ed), Extra-Territorial Application of Laws and Responses Thereto (1984); Meesen, AJ, 78 (1984), pp 783–810; Kuyper, ICLQ, 33 (1984), pp 1013–21; Focsaneanu, AFDI, 27 (1981), pp 628–52; Restatement (Third), i, pp 282–95; Barlow, Aviation Anti-Trust (1988); Rigaux, Hag R, 213 (1989), i, pp 292–334. As to the views of the British Government see eg UKMIL, BY, 52 (1981), pp 459–60, and BY, 53 (1982), pp 455–7; and statements referred to at nn 48, 49.
44 See § 137, n 13.
45 The UK has generally been opposed to the ‘effects’ principle (see eg the aide mémoire submitted to the Commission of the European Communities in 1969: BPIL (1967), pp 58–60) notwithstanding the occasional suggestion to the contrary, at least if the effects are substantial (eg the statement by the Attorney-General during debates on the Shipping Contracts and Commercial Documents Bill: Parliamentary Debates (Commons), vol 698, col 1280 (15 July 1964). See also UKMIL, BY, 55 (1984), p 539.
46 Timberlane Lumber Co v Bank of America (1976–77), ILR, 66, p 270 (on which see Roelofs, Harv ILJ, 18 (1977), pp 701–3). See also the later stage in the same litigation, AJ, 79 (1985), p 735; Mannington Mills Inc v Congoleum Corpn (1979), ILR, 66, p 487 (and comment by Rauner, Harv ILJ, 20 (1979), pp 667–75); Dominicus American Bohio v Gulf and Western Industries Inc (1979), ILR, 66, p 378; Laker Airways Ltd v Pan American World Airways, ILM, 23 (1984), pp 748, 751 (on which see comment by Wassermann, Harv ILJ, 26 (1985), pp 201–8); US v Bank of Nova Scotia (1984) 740 F 2d 817 (and see Zabel, Harv ILJ, 26 (1985), pp 574–7); Graco Inc v Kremlin Inc and SKM, ILM, 23(1984), p 757; Remington Products Inc v North American Philips Corpn, AJ, 80 (1986), p 664. But an interest balancing approach may be rejected where the interests to be balanced are principally political: Laker Airways Ltd v Sabena, AJ, 78 (1984), p 666. See generally Restatement (Third), i, pp 248–51.
47 As to the position in this respect of nationals of the state exercising jurisdiction the position is similar: see § 138.
48 For comment on the Act, see Mann, ICLQ, 13 (1964), pp 1460–5. See also BPIL (1964), pp 146–55. For parliamentary discussion at an earlier stage of the dispute with the USA, see UK Contemporary Practice (1962-I), pp 15–18.
The application of US laws, and in particular the making of orders for the production of documents held outside the US, under s 21 of the US Shipping Act of 1916 (as amended), led to a serious difference of opinion between the US and a number of other states besides the UK. Discussion within the framework of the OECD resulted in a settlement of the matter, on the basis that the 14 states concerned were willing to assist the US to obtain certain of the documents and information it sought and that the US was willing not to proceed with the enforcement of the orders still outstanding: see BPIL (1964), pp 155–7. For protests made by several foreign states to the USA, see ILA, Report of the 51st Conference (1964), pp 403–6, 577–84. Many of the cases referred to at n 41 involve orders for the production of documents held abroad. For the requirement of the UK Government that the Anglo-Iranian Oil Co should not accede to any request by the US authorities for the production of documents outside the US and not relating to business in the US, see Re Investigation of World Arrangements, ILR, 19 (1952), pp 197, 198, and ILA, Report of the 51st Conference (1964), pp 569–73.
As to judicial cooperation over the requests for the production of documentary evidence see § 143, n 6.
49 For a summary of the reasons giving rise to the need for this legislation, see Parliamentary Debates (Commons), vol 973, cols 1533–46 (15 November 1979); see also UKMIL, BY, 50 (1979), pp 357–65, and 51 (1980), pp 444–9. For comment on the Act see Mannick, Harv ILJ, 20 (1981), pp 727–35; Huntley, ICLQ, 30 (1981), pp 213–33; Lowe, AJ, 75 (1981), pp 257–82; Lowenfeld, ibid, pp 629–38.For US expression of concern at the Act, see ILM, 21 (1982), p 840, and for the UK response see ibid, p 847.
For the exercise in 1983 of the powers conferred by the Act in relation to US inquiries into alleged practices concerning international air transport see UKMIL, BY, 54 (1983), pp 484–7. For a list of occasions when orders or directions have been made under the Act, see UKMIL, BY, 58 (1987), pp 589–90.
50 See § 138, n 15. The line of decisions there cited has occasioned the protective legislation passed by several states, such as the Shipping Contracts and Commercial Documents Act 1964 enacted in the UK (later replaced by the Protection of Trading Interests Act 1980: see above, in text) and the Business Records Protection Act 1950 enacted in Canada in response to the Canadian International Paper Case (1947) 72 F Suppl 1013. See also the later Canadian statute, the Foreign Extra-territorial Measures Act 1984 (ILM, 24 (1985), p 794); the Swedish law of 13 May 1966; the Norwegian law of 16 June 1967; the Finnish law of 4 January 1968; legislation enacted in Australia as the Foreign Proceedings (Prohibition of Certain Evidence) Act 1976, Foreign Anti-trust Judgments (Restriction of Enforcement) Act 1979 (ILM, 18 (1979), p 869, and on which see Nakamura, Harv ILJ, 20 (1979), pp 663–7), and Foreign Proceedings (Excess of Jurisdiction) Act 1984, repealing and replacing the earlier Acts (ILM, 23 (1984), p 1038, with comment by Eure, Harv ILJ, 26 (1985), pp 578–84); the French law of 1980, on which see Herzog, AJ, 75 (1981), pp 382–6, and Graco Inc v Kremlin Inc and SKM, ILM, 23 (1984), p 757; and EEC Regulation 2641/84 adopted by the Council of Ministers of the European Communities in 1984 (ILM, 23 (1984), p 1419).
The more excessive assertions of US jurisdiction have been countered by judicial as well as legislative action in other states. In US v Imperial Chemical Industries (1952) F Suppl 215 an American court ordered ICI to take certain action in the UK affecting some patents which ICI had assigned to British Nylon Spinners, but the latter sought and obtained from a British court an injunction restraining ICI from carrying out the order of the American court: British Nylon Spinners Ltd v Imperial Chemical Industries Ltd  1 Ch 19. See also Rio Tinto Zinc Corpn v Westinghouse Electric Corpn  AC 547, on which see ‘X’, ICLQ, 27 (1978), pp 496–50; Crawford, BY, 49 (1978), pp 282–5; Kraft, Harv ILJ, 21 (1980), pp 515–23 (on related litigation in the USA); X AG v A Bank  2 All ER 464. See also to similar effect to that of the Westinghouse case, Gulf Oil Corpn v Gulf Canada Ltd, decided by the Supreme Court of Canada: (1980) 31 NR 451; Re Grand Jury Subpoenas for Bank Records, ILM, 22 (1983), p 740, decided by the Landgericht, Kiel.
51 For the US measures see ILM, 21 (1982), pp 855, 864, 1098, 1115. For the diplomatic representations by the European Community, see ibid, pp 891–904. See also UKMIL, BY, 53 (1982), pp 452–3, 453–5; RG, 87 (1983), pp 397–402; De Souza, Yale JIL, 10 (1984), pp 92–117; Lowe, ICLQ, 33 (1984), pp 515–30. See also Dresser Industries Inc v Baldridge, AJ, 77 (1983), p 626; Compagnie Européenne des Petroles SA v Sensor Nederland BV, ILM, 22 (1983), p 66. On the extra-territorial reach of US export controls generally, but including the Siberian gas pipeline affair, see Lowe and Warbrick, ICLQ, 36 (1987), pp 398–402; Griffin and Calabrese, Journal of World Trade Law, 22 (1988), No 3, pp 5–26. See generally n 32.
52 See eg USA-Australia Agreement Relating to Cooperation on Anti-trust Matters 1982 (ILM, 21 (1982), p 702; Leich, AJ, 76 (1982), pp 866–7); Sutherland, ICLQ, 33 (1984), pp 230–32; the USA-Canada Memorandum of Understanding 1984 (ILM, 23 (1984), p 275; AJ, 78 (1984), pp 659–61), and an earlier arrangement made in 1968 (Whiteman, Digest, 6, pp 159–60).
1 PCIJ, Series A, No 10, and (the arguments) Series C, No 13 (ii); Salvioli, Rivista, 19 (1927), pp 521–49; Brierly, LQR, 44 (1928), pp 154–63; Berge, Mich Law Rev, 26 (1928), pp 361–82; Noel Henry, RI (Paris), 2 (1928), pp 65–134; Donnedieu de Vabres, ibid, pp 135–65; Lapradelle, Causes célèbres du droit des gens, l’affaire du Lotus (1928); Verzijl, RI, 3rd series, 9 (1928), pp 1–32 (reprinted in Jurisprudence of the World Court (vol 1, 1965), pp 73–98); Ruzé, RI, 3rd series, 9 (1928), pp 124–156; Mercier and Donnedieu do Vabres and others, Annuaire, 43(1) (1950), pp 295–365; Hanbury, Grotius Society, 37 (1952), pp 171–85. See also the literature cited in vol II of this work (7th ed), p 81, n 2.
2 There was a majority of seven to five judges in favour of the precise ground of the judgment as stated above in the text.
3 At p 20.
4 See § 291, n 3. In January 1929 the League of Nations Advisory and Technical Committee for Communications and Transport considered a communication from the International Association of Mercantile Marine Officers expressing their concern about the decision of the PCIJ, as tending to expose masters to double prosecutions. The matter was subsequently considered by the Joint Maritime Commission of the International Labour Organisation and the International Maritime Committee. See Official Bulletin of the International Labour Office, 13, pp 67, 143, and 14, pp 43, 56; International Maritime Committee, Reports of the Antwerp Conference (1930) and the Oslo Conference (1933). See also Jessup, AJ, 29 (1935), pp 495–9.
5 See § 291, n 3.
6 See § 291.
2 See § 218ff.
3 For general consideration of the position before the Tokyo Convention on Offences and certain other Acts Committed on Board Aircraft 1963, see F de Visscher, Hag R, 48 (1934), pp 285–385; Harv Research (1935), pp 508–19; Fenston and De Saussure, McGill LJ, 1 (1952), pp 66–89; Honig, Legal Status of Aircraft (1956); Knauth, ILA, Report of the 48th Conference (1958), pp 277–305; Meyer, ibid, pp 306–19; Mankiewicz, AFDI, 4 (1958), pp 112–43; Cheng, Current Legal Problems, 12 (1959), pp 177–207; Wilberforce, Journal of the Royal Aeronautical Society, 67 (1963), pp 175–83; Fitzgerald, Can YBIL, 1 (1963), pp 230–57.
4 See § 221.
5 See McNair, Law of the Air (3rd ed, 1964), pp 259–71. See also Air Line Stewards and Stewardesses Association International v Northwest Airlines Inc (1959), ILR, 28, p 115, and Air Line Stewards and Stewardesses Association International v Trans World Airlines Inc, ibid, p 125.
6 R v Martin  2 QB 272; US v Cordova (1950) 89 F Suppl 298; Chumney v Nixon, AJ, 74 (1980), p 9935; cf R v Naylor  2 QB 527. See also Decision No R(S) 8/59) (1958), ILR, 27, p 115, holding an aircraft not to be part of the territory of the state of registration. See also Air India v Wiggins  1 All ER 192, as to an offence committed on board a foreign aircraft en route to a destination in the UK; and UKMIL, BY, 53 (1982), p 453.
See generally as to the position in the UK, McNair, Law of the Air (3rd ed, 1964), ch 9; Shawcross and Beaumont, Air Law (4th ed, 1977), ch 11. Akehurst, BY, 46 (1972–73), at p 162, cites examples of wide claims to jurisdiction made by several states in relation to crimes committed on board aircraft, including ‘passive personality’ (see § 139, nn 33–6) and jurisdiction based on the state being the next landing place after the commission of the offence.
As to jurisdiction over persons on board an aircraft landing in distress, see Dugard, ICLQ, 30 (1981), pp 902–5, commenting on Nkondo v Minister of Police, 1980(2) SA 894. As to the local state‘s jurisdiction over persons or goods on an aircraft in transit through its territory see Kamolpraimpna (1971), ILR, 72, p 671; Orsini (1975), ILR, 73, p 661; and Males (1973), ILR, p 698. See also Annex 9 to the Chicago Convention on International Civil Aviation 1944 (on which see generally § 220).
7 UNTS 704, p 219; TS No 126 (1969). See generally Fitzgerald, Can YBIL, 1 (1963), pp 230–51, and 2 (1964), pp 191–204; Hirano, Japanese Annual of International Law, 8 (1964), pp 44–59; Boyle and Pulsifier, Journal of Air Law and Commerce, 30 (1964), pp 305–54; Johnson, Rights in Airspace (1965), pp 74–9; Mendelsohn, Vir Law Rev, 53 (1967), p 509ff; Denaro, Journal of Air Law and Commerce, 35 (1969), pp 171–203; Richard, La Convention de Tokyo (1971); Shubber, Jurisdiction over Crimes on Board Aircraft (1973).
The Convention was given effect in the UK by the Tokyo Convention Act 1967 (on which see Samuel, BY, 42 (1967), pp 271–7); see also the Aviation Security Act 1982. On the US legislation giving effect to the Convention, see Lissitzyn, AJ, 67 (1973), pp 306–13.
8 The Tokyo Convention, and the later Hague and Montreal Conventions (discussed below, in the text), make special provision for those cases where states establish joint air transport operating organisations or international operating agencies which operate aircraft subject to joint or international registration: the states are to designate for each aircraft the state which is to exercise jurisdiction and have the attributes of registration for purposes of the Convention in question.
9 Under Art 2 the Convention does not require any action in respect of political offences or offences against laws based on racial or religious discrimination, except when the safety of the aircraft or of persons or property on board so requires; furthermore, Art 2 is without prejudice to Art 4 (concerning the circumstances permitting the exercise of criminal jurisdiction by a state other than the state of registration of the aircraft).
For the purposes of the Convention an aircraft is considered to be in flight from the moment when power is applied for the purpose of take-off until the moment when the landing run ends: Art 1.3.
10 Article 4 does not expressly define the ‘State which is not the State of registration’. It could refer either to the state in whose airspace, or on whose territory, the aircraft is in flight at the time of the commission of the offence, or to any state (other than the state of registration) which is connected with the offence by one of the factors listed in the Article. The latter interpretation may draw support from the drafting history of the provision, since earlier drafts prepared by the ICAO Legal Committee in 1958, 1959 and 1962 included an expression which would have limited the Article to the state in whose airspace the offence was committed, but that expression was eventually deleted; it may be considered that the former interpretation is supported by the wording of the provision (which contains certain pointers to the territorial state) and the purpose of the Convention (which is to create uniform rules of jurisdiction and the elimination of conflicts of jurisdiction).
11 For a list of cases of hijacking of aircraft from 1948 until the end of 1972, see Shubber, Jurisdiction over Crimes on Board Aircraft (1973), App II, pp 344–53.
For discussion within the UN of certain hijacking incidents, see UNYB (1969), pp 792–5; ibid (1970), pp 262–4, 803–5; ibid (1972), pp 223–4; GA Res 2551 (XXIV) (1969), 2645 (XXV) (1970), and SC Res 286 (1970). See also the resolutions of the ICAO Council and Assembly in 1970: AJ, 65 (1971), pp 452, 453, and see Mankiewicz, ILA, Report of the 54th Conference (1970), pp 385–404. As to the hijacking incidents leading to military action at Entebbe and Mogadishu airports in 1976 and 1977, see § 131, n 11, and § 130, n 11.
Several cases arising out of the hijacking of aircraft have come before national courts, many involving claims under insurance policies for injury or loss suffered as a result: see eg Husserl v Swiss Air Transport Co Ltd, AJ, 67 (1973), p 549; Herman v Trans World Airways Inc, ibid, p 550; Pan American World Airways Inc v Aetna Casualty and Surety Co, ILM, 12 (1973), p 1445; US v Busic, AJ, 73 (1979), p 685; Public Prosecutor v Janos V (1972), ILR, 71, p 229; Public Prosecutor v SHI (1974), ILR, p 162. See also the proceedings before the ICJ in Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan), ICJ Rep (1972), p 46, and UNYB (1971), p 144.
A hijacker of an aircraft may nevertheless be entitled to refugee status in the state to which he diverted the aircraft: Antonin L v Federal Republic of Germany (1979), ILR, 80, p 674.
12 UNTS, 860, p 105; TS No 39 (1972). On the Hague Convention, and on hijacking of aircraft generally, see Shubber, BY, 43 (1968–69), pp 193–205, and ICLQ, 22 (1973), pp 687–726; Evans, AJ, 63 (1969), pp 695–710, and AJ, 67 (1973), pp 641–71; Fitzgerald, Can YBIL, 7 (1969), pp 269–97; Mankiewicz, AFDI, 15 (1969), pp 462–89; Guillaume, AFDI, 16 (1970), pp 35–61; Johnson in ILA, Report of the 54th Conference (1970), pp 730–5; Mankiewicz, ibid, pp 336–65; Nys, ibid, pp 366–84; McWhinney, Annuaire, 54 (1971), pp 520–696, and (ed) Aerial Piracy and International Law (1971), and Hag R, 138 (1973), i, pp 263–369; Cheng, Journal of the Royal Aeronautical Society, 76 (1972), pp 529–35; Green, Alberta Law Rev, 10 (1972), pp 72–88; Glaser, RG, 76 (1972), pp 12–35; Faller, Gewaltsame Flugzeugentführungen aus Völkerrechtlicher Sicht (1972); Agrawala, Aircraft Hijacking and International Law (1973); Sundberg in International Criminal Law (eds Bassiouni and Nanda, vol 2, 1973), pp 478–90; Poulantzas, Anglo-Am Law Rev, 2 (1973), pp 4–46; Joyner, Aerial Hijacking as an International Crime (1974); Abeyratne, ICLQ, 33 (1984), pp 596–613. See also, more generally as to terrorism, § 122, n 42ff.
The Convention was given effect in the UK by the Hijacking Act 1971, later repealed and replaced by the Aviation Security Act 1982. For anti-hijacking legislation enacted in Brazil and Mexico, see AJ, 64 (1970), p 492; in the GDR and the USSR, ILM, 12 (1973), pp 1158, 1160; and in the USA, ILM, 13 (1974), p 1515. Under the Diplomatic Security and Anti-Terrorism Act 1986 US courts have jurisdiction over anyone found in the USA who abroad kills a US national, with the intention of coercing, intimidating or retaliating against a government or civilian population. See also n 13.
For a bilateral agreement on hijacking of aircraft see the exchange of letters between the USA and Cuba, ILM, 13 (1974), p 370. For certain proposals, including amendment of the Chicago Convention on Civil Aviation 1944, to make more effective the legal provisions against hijacking, see ILM, 13 (1974), pp 377–91. See also § 122, n 48, as to the Bonn Declaration on Hijacking 1978.
Note also the interception by US military aircraft of an Egyptian aircraft in international airspace carrying members of the Palestine Liberation Organisation believed to have been engaged in terrorist activities against US interests and nationals, particularly the Achille Lauro incident (see § 305): see RG, 90 (1986), pp 425–7, and Borkowski, Harv ILJ, 27 (1986), pp 761–71.
13 In 1989 Fawaz Yunis was convicted in the USA under the Aircraft Sabotage Act which implemented the Hague Convention, in respect of the hijacking and subsequent destruction of a Jordanian aircraft at Beirut airport in 1985, some US nationals being among the hostages. See generally Lowenfeld, AJ, 84 (1990), pp 444–93; Abramovsky, Yale JIL, 15 (1990), pp 121–61; Schuertz, Harv ILJ, 29 (1988), pp 499–531, and with particular reference to the circumstances of Yunis’ seizure on the high seas, ibid, pp 500–2, 523–4, and RG, 92 (1988), p 125; United States v Younis, AJ, 83 (1989), p 94; RG, 93 (1989), p 670; Wegner, Law and Policy in International Business, 22 (1991), pp 409–40.
14 TS No 10 (1974); ILM, 10 (1971), p 1151. See Mankiewicz, AFDI, 17 (1971), pp 855–75; Thomas and Kirby, ICLQ, 22 (1973), pp 163–72. The Convention was given effect in the UK by the Protection of Aircraft Act 1973, later repealed and replaced by the Aviation Security Act 1982.
15 Article 1 must be read with Art 4, which qualifies the extent to which the Convention applies to certain of the offences defined in Art 1.
16 ILM, 27 (1988), p 627. See § 122, n 57.
1 UNTS, 137, p 11; TS No 11 (1933); Cmd 4284; BFSP, 134 (1931), p 406. The Warsaw Convention was amended by the Hague Protocol 1955, TS No 62 (1967), and supplemented by the Guadalajara Convention 1961, TS No 23 (1964); UNTS, 500, p 31, which extends the application of the Warsaw Convention to an actual carrier who was not a party to the contract of carriage. On the four Protocols adopted at Montreal in 1975, see Mankiewitz, AFDI, 21 (1975), pp 784–91. See Goedhuis, La Convention de Varsovie (1933); also, National Air Legislation and the Warsaw Convention (1937); Sack, Air Law Review, 4 (1933), pp 345–88; Skubiszewski, Rev Belge (1967), pp 69–83; Bin Cheng, Zeitschrift für Luft- und Weltraumrecht (1989), pp 319–44, and (1990), pp 3–39; in the UK, see Carriage by Air Act 1932 (22 & 23 Geo 5 c 36), as repealed and replaced by the Carriage by Air Act 1961, as amended by the Carriage by Air and Road Act 1979.
See also Grein v Imperial Airways Ltd  1 KB 50; McNair, Law of the Air(3rd ed, 1964), pp 198ff.
2 AJ, 52 (1958), p 593. This replaced a convention of 1933. See Wilberforce, ICLQ, 2 (1953), pp 90–97; also Rinck, Journal of Air Law and Commerce, 28 (1961–62), pp 405–17; Brown, ibid, pp 418–43. This convention at the time of writing had only 22 parties, none of them of major importance in civil aviation.
1 See in particular § 112, as to the reluctance of courts to question foreign ‘acts of State’.
2 See § 113.
3 See § 140.
4 On the relationship between private international law and rules of international law relating to jurisdiction, see Mann, Hag R, 111 (1964), i, at pp 17–22, 54–62.
5 See eg the Convention between the Nordic States regarding the Recognition and Enforcement of Judgments 1932 (LNTS, 139, p 165); the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 1971; the Brussels Convention on Jurisdiction and the Enforcement of Civil and Commercial Judgments 1968 between member states of the EEC (ILM, 8 (1969), p 229), the Convention of 1978 providing for the accession of those states which became members of the EEC in 1973 (TS No 10 (1988); ILM, 18 (1979), p 8, on which see Kaye, Civil Jurisdiction and Enforcement of Foreign Judgments (1987)), the Conventions of 1982 and 1989 providing for the accession of Greece (ETS No 46 (1983)), and Spain and Portugal (ETS No 21 (1991); ILM, 29 (1990), p 1413, with explanatory Report on the 1989 accession Convention at p 1470), and the Lugano Convention of 1988 extending the principles of the Brussels Convention to member states of EFTA as well as EEC states (ILM, 28 (1989), p 620, with explanatory Report at ILM, 29 (1990), p 1481; and see Minor, CML Rev, 27 (1990), pp 507–19); the Inter-American Convention on Extra-territorial Validity of Foreign Judgments and Arbitral Awards 1979 (ILM, 18 (1979), p 1224), and the Inter-American Convention on Jurisdiction in the International Sphere for the Extra-territorial Validity of Judgments (ILM, 24 (1985), p 468). Many such bilateral conventions have been concluded: those concluded by the UK follow a generally similar pattern, eg those concluded with the Netherlands in 1967 (TS No 97 (1969)) and Israel in 1970 (TS No 2 (1970)). Apart from such multilateral and bilateral treaties the laws of most states provide for the recognition, within limits laid down by the national law, of civil and commercial judgments given in other states.
See generally on enforcement of foreign judgments von Mehren, Hag R, 167 (1980), ii, pp 9–112; Dicey and Morris, pp 418–533; Restatement (Third), i, pp 591–628; Collier, Conflict of Laws (1987), pp 93–133. On recognition and enforcement of foreign arbitral awards, see Luzzatto, Hag R, 157 (1977), iv, pp 9, 66–86; Bowett, Hag R, 180 (1983), ii, pp 216–21; Brotons, Hag R, 184 (1984), i, pp 169–354; Dicey and Morris, pp 534–93; Restatement (Third), i, pp 629–41; Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
See § 139, nn 41, 52, as to cooperative agreements on enforcement in relation to securities control and anti-trust matters. See also § 119, n 11, as to the exercise of authority by one state within the territory of another, with the latter’s consent.
6 Courts in different states also assist each other in such matters as the taking of evidence. As to ‘letters of request’ (‘letters rogatory’) in English law, see Dicey and Morris, pp 201, 204–9; the Evidence (Proceedings in Other Jurisdictions) Act 1975; Rio Tinto Zinc Corpn v Westinghouse Electric Corpn  AC 547. As to the grant of powers in English law for UK authorities to carry out certain inquiries into companies in the UK at the request of foreign regulatory authorities, see the Companies Act 1989, ss 82–91. Among several similar bilateral conventions concluded by the UK on mutual assistance regarding legal proceedings in civil and commercial matters, see those with the Netherlands in 1932 (TS No 24 (1933)) and Israel in 1966 (TS No 2 (1968)).
See also the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970 (TS No 20 (1977)), laying down procedures for taking evidence abroad. But note Art 12 allowing a state to refuse enforcement of letters rogatory where its sovereignty would thereby be prejudiced; see also, for the UK, s 4 of the Protection of Trading Interests Act 1980, precluding a UK Court from giving effect, under the Evidence (Proceedings in other Jurisdictions) Act 1975, to a request issued by an overseas court if the request infringes the jurisdiction of the UK or is otherwise prejudicial to the sovereignty of the UK. The US Supreme Court has held that the procedures prescribed by the Convention are not exclusive or mandatory, and the procedures of the forum state relating to discovery of documentary evidence abroad may still be used, the choice of resorting to the Convention’s procedures being based on what is reasonable in the light of the facts, the sovereign interests involved, and the likelihood that resort to any other procedure might prove ineffective, this examination of the interests involved being called for by considerations of international comity: Société Nationale Industrielle Aerospatiale v US District Court for the Southern District of Iowa (1987), ILM, 26 (1987), p 1021. The same court later held that service on a foreign company’s subsidiary within the forum state was valid service on the foreign company without the need to effect service on it under the Hague Convention: Volkswagenwerk AG v Schlunk, ILM, 26 (1987), p 1092, on which see Leiner, Journal of World Trade Law, 23 (1989), No 1, pp 37–46; White, Harv ILJ, 30 (1989), pp 277–86.
See also Restatement (Third), i, pp 525–56; the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters 1956 (UNTS, 658, p 163); Inter-American Convention on Taking of Evidence Abroad in Civil and Commercial Matters 1975, with Additional Protocol 1984; Inter-American Convention on Letters Rogatory 1975, with Additional Protocol 1979 (on which see AJ, 81 (1987), pp 197–9); the European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters 1978 (European TS No 100).
Treaties dealing with particular matters often include provisions for mutual assistance. See eg Art 28 of the Double Taxation Convention between the UK and Austria, 1969 (TS No 9 (1971)), and Art 26 of the similar convention between the UK and USA in 1975 (ILM, 17 (1978), pp 836, 862); on the application of a similar provision in Art XVI of the USA-Switzerland Double Taxation Convention 1951, see X v Federal Tax Administration, ILM, 10 (1971), pp 1029, 1031–2; and the Council of Europe Convention on Mutual Administrative Assistance in Tax Matters 1988 (ILM, 27 (1988), p 1160; on which see Fletcher, Harv ILJ, 30 (1989), pp 514–23). See also as to violations of customs laws, the Pan-American Convention on the Repression of Smuggling 1935 (Hudson, Legislation, vii, p 100); the Convention on Mutual Assistance between Customs Administrations 1967 between member states of the EEC (Cmnd 6331); and, generally, the activities of the Customs Cooperation Council established by a convention signed in 1950 (UNTS, 157, p 131). As to matters of road traffic, see the European Convention on the Punishment of Road Traffic Offences 1964 (European TS No 52).
See generally Whiteman, Digest, 6, §§ 10–14; Smit (ed), International Cooperation in Litigation: Europe (1965); Nagel, Nationale und internationale Rechtshilfe im Zivilprozess; das Europäische Modell (1971); Jodlowski, Hag R, 158 (1977), v, pp 271–392. And see generally as to mutual international assistance in combating criminality, the writers referred to in § 122.
7 See §§ 415–24.
8 See eg European Agreement on Mutual Assistance in Criminal Matters 1959 (European TS No 30) and its Additional Protocol 1978 (ibid, No 99); and see the decision of the French Constitutional Council in 1980 in connection with this Convention, and comment by Vallée, RG, 85 (1981), pp 202–20. Bilateral agreements and arrangements include the USA-Switzerland Treaty on Mutual Assistance in Criminal Matters 1973 (ILM, 12 (1973), p 916; Johnson, Harv ILJ, 15 (1974), pp 349–64; Frei and Terechsel, Harv ILJ, 31 (1990), pp 77–97), supplemented by an Understanding in 1975 (ILM, 15 (1976), p 283) and Memoranda of Understandings concluded in 1982 and 1987 (ILM, 22 (1983), p 1, and 27 (1988), p 480); USA-Netherlands Treaty on Mutual Legal Assistance 1981 (ILM, 21 (1982), p 48; USA-Canada Treaty on Mutual Legal Assistance in Criminal Matters 1985 (ILM, 24 (1985), p 1092); USA-UK Treaty concerning the Cayman Islands relating to Mutual Legal Assistance in Criminal Matters 1986 (TS No 82 (1990); ILM, 26 (1987), p 536; AJ, 82 (1988), pp 112–18); USA-Mexico Treaty on Mutual Legal Cooperation 1987 (ILM, 27 (1988), p 443). In 1990 the UN General Assembly adopted a Model Treaty on Mutual Assistance in Criminal Matters: GA Res 45/117. As to the Commonwealth initiative on mutual assistance in criminal matters, agreed in Harare in 1986, see McClean, ICLQ, 37 (1988), pp 177–90; the Commonwealth scheme was amended in 1990 (Commonwealth Law Bulletin, 16 (1990), pp 1043–50; McLean, ibid, pp 1408–18). Some bilateral agreements allow for the seizure of proceeds of crimes committed in the one state where those proceeds are found in the other: see n 20.
As to international cooperation and assistance in criminal matters see generally Cameron, ICLQ, 38 (1989), pp 954–65; and the proceedings of a conference on the matter, Harv ILJ, 31 (1990), pp 1–127. As to Interpol see Ruzie, AFDI, 2 (1956), pp 673–9; UN Juridical YB (1982), pp 179–80; Pezard, AFDI, 29 (1983), pp 564–75; Valleix, RG, 88 (1984), pp 621–52.
9 Eg the European Convention on the Transfer of Criminal Proceedings 1972 (ILM, 11 (1972), p 709). In 1990 the UN General Assembly adopted a Model Treaty on the transfer of proceedings in Criminal Matters: GA Res 45/118.
10 See, eg European Convention on the International Validity of Criminal Judgments 1970 (European TS No 70).
11 Eg USA-Mexico Treaty on the Execution of Penal Sentences 1976 (ILM, 15 (1976), p 1343); European Convention on the Transfer of Sentenced Persons 1983 (ILM, 22 (1983), p 530); USA-France Convention on the Transfer of Sentenced Persons 1983 (ibid, p 542). The Commonwealth arrangements agreed in 1986 and amended in 1990 (see n 8) covered also the transfer of convicted offenders.
12 See § 139, n 31.
13 See generally with regard to the regulation and control of the use and consumption of and trade in opium and other narcotic drugs: International Opium Convention, 23 January 1912 (LNTS, 8, p 187); Agreement concerning the Suppression of the Manufacture of, Internal Trade in, and Use of Opium, 11 February 1925 (LNTS, 51, p 337; TS No 13 (1928)); International Opium Convention, 19 February 1925 (LNTS, 81, p 317; TS No 27 (1928)); Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, 13 July 1931 (LNTS, 139, p 301; TS No 31 (1933)); BFSP, 134 (1931), p 361); Agreement concerning the Suppression of Opium Smoking, 27 November 1931 (LNTS, 177, p 373); Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, 26 June 1936 (LNTS, 198, p 300); Protocol of 11 December 1946, amending various previous treaties (UNTS, 12, p 179; TS No 35 (1947)); Protocol bringing under international control certain additional drugs, 11 December 1946 (UNTS, 44, p 277); Protocol for Limiting and Regulating the Cultivation of the Poppy Plant and the Production, Trade in and Use of Opium, 23 June 1953 (UNTS, 456, p 3). For writings before 1945, see 8th ed of this vol, p 984, n.
14 UNTS, 520, p 521; TS No 34 (1965).
15 ILM, 11 (1972), p 804; UNTS, 976, p 3; TS No 23 (1979). See Vignes, AFDI, 18 (1972), pp 629–48.
16 ILM, 10 (1971), p 261; UNTS, 1019, p 175. See Vignes, AFDI, 17 (1971), pp 641–56.
17 ILM, 28 (1989), p 493. See Roucherau, AFDI, 34 (1988), pp 601–17.
18 A Sub-Commission on Illicit Drug Traffic and Related Matters in the Near and Middle East was established by ECOSOC in 1973.
19 See eg the UK-USA Agreement of 13 November 1981 concerning cooperation in the suppression of the unlawful importation of drugs into the USA, allowing, on certain conditions, boarding of British vessels on the high seas and, if drugs were found, seizure of the vessel and trial of the crew in the USA: TS No 8 (1982), on which see Siddle, ICLQ, 31 (1982), pp 726–47, and eg United States v Bierman, AJ, 83 (1989), p 99; UK-USA Agreement concerning the Obtaining of Evidence from the Cayman Islands with regard to Narcotics Activities 1984 (TS No 70 (1984); ILM, 24 (1985), p 1110); UK-USA Narcotics Cooperation Agreement 1987, with respect to the British Virgin Islands (TS No 46 (1987)).
20 Action of this kind was made possible for the UK by the Drug Trafficking Offences Act 1986. The first agreement to be considered by the UK pursuant to the Act was the Agreement concerning the Seizure and Forfeiture of the Proceeds of Drug Trafficking 1988 with the USA (TS No 32 (1989)). By mid-1990 a further 13 such agreements had been concluded, with Bahamas, Canada, Australia, Bermuda, Anguilla, Switzerland, Spain, Nigeria, Sweden, Gibraltar, Malaysia, Mexico and the Republic of Ireland; of these, three (with Sweden, Nigeria and the Republic of Ireland) cover all serious crime and not just drug-related crimes. See also the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime 1990: ILM, 30 (1991), p 148.
21 ILC Report (42nd Session, 1990), paras 77–88.
1 See § 62, n 32.
2 See § 1, n 10.
3 See generally Fedozzi, Hag R, 27 (1929), ii, pp 145–240; Schwarz, Die Anerkennung ausländischer Staatsakte (1935); F A Mann, Grotius Society, 40 (1954), pp 25–47, and Hag R, 132 (1971), i, pp 115, 166–96; McNair and Watts, Legal Effects of War (4th ed, 1966), pp 428–38; Annuaire (1975), pp 157–278, 374–410, 550–53; Carter, BY, 55 (1984), pp 111–31; ILA, Report of 63rd Conference (1988), pp 719–63 (with summaries of the position in various states); Dicey and Morris, pp 100–9; Collier, Conflict of Laws (1987), pp 329–45; Carter, CLJ, 48 (1989), pp 417–35. See also § 112.
The distinction between ‘public’ and ‘private’ law, although very widely adopted in the present context and of undoubted value, is on analysis less easy to define than at first sight might appear. See F A Mann, Grotius Society, 40 (1954), at pp 32–4, who suggested ‘prerogative rights’ and ‘claims iure imperii’ as terms conveying the meaning of ‘public law’.
4 The existence of an agreement between the USA and the USSR was one of the significant elements in US v Pink, as to which see n 32. See also n 20, as to Art VIII(2)(b) of the IMF Agreement; and §§ 415–24 as to extradition treaties. For the operation of a Franco-Belgian treaty of 1931 providing for reciprocal assistance in recovering taxes, see Re D (1966), ILR, 47, p 57. For a bilateral Franco-Czechoslovak agreement providing for the mutual recognition of exchange control legislation, see Statni Banka v Englander (1966), ILR, 47, p 157.
5 A foreign state’s public law would be directly enforced if eg the state were to be allowed to assert a claim in the courts of another state for sums due under tax legislation (see Government of India v Taylor  AC 491). The same substantive result — recovery of taxes by or for the foreign state — cannot be achieved indirectly, as by the state first obtaining in its own courts a judgment for the sums due to it and then suing in a foreign court ostensibly on the basis of the judgment debt (US v Harden (1963), ILR, 43, p 114; Commissioner of Taxes (Federation of Rhodesia and Nyasaland) v McFarland (1965) (1) SA 470(W), with comment by Spiro, ICLQ, 14 (1965), pp 987–92); or by a company being allowed to sue for sums to be used solely to meet a revenue debt (Buchanan and Macharg v McVey, ILR, 22 (1955), p 46); or by a defendant being allowed to rely upon a foreign state’s garnishee upon a debt owed to the plaintiff, where the garnishee was in respect of unpaid taxes (Rossano v Manufacturers Life Insurance Co  2 QB 352; but cf Korthinos v Niarchos, ILR, 17 (1950), No 9, allowing an employer to invoke as a defence that a deduction from wages due to an employee was in respect of taxes due to a foreign state to whose laws both employer and employee were subject, and Kahler v Midland Bank  AC 24 (and n 21) allowing a defence by the bank that action required of it in the forum state would involve a breach of a foreign state’s exchange control laws). No question of indirectly enforcing a foreign state’s revenue law arises where a contract between two private parties is to be enforced even though that law may have provided the occasion for the contract: see Ilgovski v Shprinski, AD, 10 (1941–42), No 6. Note the distinction between enforcing a foreign revenue law and rendering a foreign court judicial assistance (by taking evidence) in proceedings before it to enforce such a law, allowing the latter even though the former would be excluded: Lange v Minister of Justice (1959), ILR, 28, pp 88, 90; Re State of Norway’s Application  1 WLR 458.
6 Thus the foreign state itself will not be allowed to enforce abroad its public law, nor will an agency or instrumentality acting for the state. So too, a foreign company, which while still retaining a corporate existence has in effect been confiscated by a foreign state and acts under the state’s control, may not be allowed to assert title to the company’s assets in the state of the forum: see Frankfurter v Exner  1 Ch 629; Zwack v Kraus Brothers & Co Inc, ILR, 23 (1956), p 10; Buchanan and Macharg v McVey, ILR, 22 (1955), p 46 (liquidator appointed to recover revenue debts); Nationalisation of Czechoslovak Savings Bank Case, ILR, 24 (1957), p 40.
7 See Re Visser: the Queen of Holland v Drukker  Ch 877; Government of India v Taylor  AC 491 (with comment by M Mann, ICLQ, 3 (1954), pp 465–78, and 4 (1955), pp 564–7), and other cases cited at n 5; Re Gibbons (1960), ILR, 30, p 24; Metal Industries (Salvage) Ltd v Owners of ST Halle (1961), ILR, 33, p 21; Brockaw v Seatrain UK Ltd  2 All ER 98; Province of British Columbia v Gilbertson, AJ, 74 (1980), p 190. See also other authorities cited by F A Mann, Grotius Society, 40 (1954), at p 28, n 8. See also Albrecht, BY, 30 (1953), pp 454–74; Stoel, ICLQ, 16 (1967), pp 663–79; Smart, ICLQ, 35 (1986), pp 704–10; Restatement (Third), i, pp 611–16. Note Lange v Minister of Justice (1959), ILR, 28, pp 88, 90, and Re State of Norway’s Application  1 WLR 458, allowing judicial assistance in relation to revenue offences before a foreign court.
Section 1(2)(b) of the Foreign Judgments (Reciprocal Enforcement) Act 1933 excludes from the scope of the Act foreign judgments for sums payable in respect of taxes or fines or other penalties, and such judgments are accordingly excluded from the scope of treaties concluded by the UK for the enforcement of foreign judgments.
As to extradition for fiscal offences, see R v Chief Metropolitan Stipendiary Magistrate  1 WLR 1204, and § 419, n 11. See nn 18–21, as to foreign exchange control laws; and nn 22–6, as to the recognition or application (as opposed to the enforcement) of foreign public laws.
8 It has long been established that a state does not enforce the penal laws of another state: see Folliott v Ogden (1789) 1 H B1, 123, 135; The Antelope (1825) 10 Wheat 66, 123 (US Supreme Court, per Marshall CJ); Huntingdon v Attrill  AC 150. For a modern example see USA v Inkley  3 WLR 304. The triple damages payable under US anti-trust legislation to persons claiming to have suffered damage as a result of conduct in breach of that legislation is regarded by the UK Government as penal in character, and their enforcement in the UK is prohibited. See the Protection of Trade Interests Act 1980, s 5, and Parliamentary Debates (Commons), vol 973, col 1536 (15 November 1979).
But see Cooley v Weinberger (1974), ILR, 66, p 151; and nn 22–6, as to the recognition or application of foreign public laws (as opposed to their enforcement). See § 143, n 11, as to treaties providing for prison sentences imposed in one state to be completed in another.
9 See n 27ff.
11 Thus in appropriate cases a claim will be rejected even though the party presenting it is not the foreign state, and even though the claim might in form be founded in contract or tort, or might have some other private law basis. See eg Huntingdon v Attrill  AC 150; Banco de Viscaya v Don Alfonso de Bourbon y Austria  1 KB 140; Ilgovski v Shprinski, AD, 10 (1941–42), No 6; Frankfurter v Exner  1 Ch 629; Buchanan and Macharg v McVey, ILR, 22 (1955), p 46; Zwack v Kraus Brothers & Co Inc, ILR, 23 (1956), p 10; Rossano v Manufacturers Life Insurance Co  2 QB 352.
12 See § 118.
13 There is thus a similarity between the non-enforcement of a foreign state’s public law and other matters where the exercise of jurisdiction by one state may be seen by another state as an infringement of its territorial sovereignty: see § 138, n 11, as to orders to act in another state in a manner contrary to its laws, and § 139, as to attempts to regulate conduct in another state.
It is probably too extreme a view that a state’s public law is inherently limited to that state’s territory, so that the question of its enforcement abroad cannot arise since the reach of the law is necessarily too restricted. Such a view would be inconsistent with the practice of sometimes providing by agreement for the enforcement abroad of a state’s public law (see n 4) and with the occasional enforcement of a foreign state’s public law even in the absence of an agreement (see n 16). Furthermore, a state has jurisdiction in respect of its nationals abroad (§ 138) and, at least for purposes of its own law, may legislate for them and their property even if the foreign state of their residence might decline to enforce such legislation: see Amsterdam v Minister of Finance, ILR, 19 (1952), No 50; Republic of Iraq v First National City Bank (1965), ILR, 42, p 29, at p 31. Most states apply their tax laws to certain activities, usually on the part of their nationals, which take place abroad.
14 See Banco di Viscaya v Don Alfonso de Bourbon y Austria  1 KB 140 in which the action was dismissed on the ground that judgment in favour of the plaintiffs would, in effect, amount to the execution of a foreign penal law: Frankfurter v Exner  1 Ch 629; Attorney-General of New Zealand v Ortiz  3 All ER (affirmed, on other grounds, by the House of Lords,  AC 1).
15 This uncertainty may in part be responsible for the tendency of some courts to assimilate, at a cost of some artificiality, other kinds of public law to one or other of the well-established categories whose enforcement is clearly to be refused. See eg Metal Industries (Salvage) Ltd v Owners of ST Halle (1961), ILR, 33, p 21 (assimilating social security legislation to a revenue law), and Société Clermont-Bonté v Groeninghe Ververij (1967), ILR, 48, p 84 (assimilating patent laws to penal and administrative laws).
16 Thus a foreign state’s public law was enforced in eg Emperor of Austria v Day and Kossuth (1861) 3 De GF & J 217 (perhaps an anomalous case, on which see Mann, Grotius Society, 40 (1954), at pp 37–9); Kahler v Midland Bank  AC 24 (on which see n 21); Kingdom of Belgium v EMJCH, ILR, 20 (1953), p 26; Kingdom of Belgium v Albrecht and Willem Wannijn, ibid, p 28; Jabbour v Custodian of Absentee’s Property  1 All ER 145; Ammon v Royal Dutch Company, ILR, 21 (1954), p 25 (holding a public law enforceable if it is primarily aimed at the protection of private interests: a similar consideration is evident from the decision (as opposed to dicta) in Huntingdon v Attrill  AC 150).
As to public policy as a ground for refusing to apply a foreign law, see Carter, BY, 55 (1984), pp 111, 122–31; and Empresa Exportadora de Azucar v Industria Azucarera Nacional SA (The Playa Larga)  2 Lloyd’s Rep 171 (and comment by Carter, BY, 54 (1983), pp 297–301).
17 The issue arose in proceedings brought by the UK in Australia and New Zealand to enforce the duty of confidentiality owed by an employee to his former employer, although in the particular case the employer was the Crown and the ex-employee a former member of the intelligence service. The High Court of Australia refused to enforce the duty of confidence on the ground that to do so in this case would conflict with the rule requiring the non-enforcement of foreign public laws, which applied generally to claims enforcing the interests of a foreign sovereign which arose from the existence of certain powers peculiar to government. HM Attorney-General for the UK v Heinemann Publishers Pty Ltd  78 ALR 449; the New Zealand Court of Appeal reached a different conclusion in HM Attorney-General v Wellington Newspapers Ltd  1 NZLR 129. For comment see F A Mann, LQR, 104 (1988), pp 497–501; Collier, CLJ, 48 (1989), pp 33–6.
See also: (i) as to export restrictions, King of Italy v Medici (1918) 34 TLR 623; Nigerian Objets d’Art Export Case (1972), ILR, 73, p 226; Attorney-General of New Zealand v Ortiz  3 All ER 432 (affirmed on other grounds by the House of Lords  AC 1), on which see also Nott, ICLQ, 33 (1984), pp 203–7; (ii) as to social security legislation, Caisse Générale Locale de Secours Contre la Maladie de la Commune Urbaine de Julich v SA des Ateliers de Godarville, AD, 5 (1929–30), No 63; Metal Industries (Salvage) Ltd v Owners of ST Halle (1961), ILR, 33, p 21; SA Principe di Paterno Moncada v INPS (1966), ILR, 71, p 219; and discussion by F A Mann, Hag R, 132 (1971), i, at pp 173–5; (iii) as to trading with the enemy, Hopf Products Ltd v Paul Hopf and Skandinaviska Banken Aktiebolag, AD, 12 (1943–45), No 16; Assignment of Confiscated Debt (Germany) Case (1957), ILR, 24, p 31; Confiscation of Assets of German-Controlled Company in the Netherlands Case (1960), ILR, 32, p 12; cf Lepage v Sao Paulo Coffee Estates Co (1917) 33 TLR 457; Jabbour v Custodian of Absentee’s Property  1 All ER 145 (and comment by Thomas, ICLQ, 3 (1954), pp 495–9); (iv) as to patent law, Société Clermont-Bonté v Groeninghe Ververij (1967), ILR, 48, p 84; Officina Meccanica Gorlese v Burgsmüller (1971), ILR, 70, p 428; (v) as to anti-trust laws, see generally § 139, n 43, and Whiteman, Digest, 6, § 8; (vi) as to currency laws, Emperor of Austria v Day and Kossuth (1861) 3 De GF & J 217 (and comment by Mann, Grotius Society, 40 (1954), at pp 37–9); see also § 139, n 29, as to the protection of a foreign state’s currency against counterfeiting, and, as to various aspects of recognition of foreign currency, F A Mann, The Legal Aspect of Money (4th ed, 1982), pp 463–82 and BY, 26 (1949), pp 278–81; (vii) as to a moratorium law, National Bank of Greece and Athens SA v Metliss  AC 509; (viii) as to bankruptcy orders, Felixstowe Dock and Railway Co v United States Lines Inc  2 All ER 77; Dicey and Morris, pp 1115–26; (ix) as to labour law, Morgenstern and Knapp, ICLQ, 27 (1978), pp 769, 787–8.
18 See generally on various questions which arise in this connection, F A Mann, The Legal Aspect of Money (4th ed, 1982), pp 379–452, 553–84; Nussbaum, Money in the Law (1950), pp 446–91, especially pp 471–7; Restatement (Third), ii, pp 324–31; and as to currency matters, see (vi) in the preceding note.
19 See eg Frankfurter v Exner  1 Ch 629; Indonesian Corporation PT Escomptobank v NV Assurantie Maatschappij de Nederlanden van 1845 (1964), ILR, 40, p 7. Although genuine exchange control laws, like other currency laws, may cause undoubted loss to those affected by them, they are not solely on that account usually regarded as confiscatory: see Re Claim by Helbert Wagg & Co Ltd  Ch 323, 351–4. In Menendez v Saks and Co a US Court of Appeals regarded ‘currency controls as but a species of revenue law’, and refused on that basis to give effect to foreign currency regulations: AJ, 68 (1974), pp 325, 327.
20 UNTS, 2, p 39. The extent to which Art VIII(2)(b) requires effect to be given to a foreign state’s exchange control laws has been considered in a number of cases: see eg a group of nine cases, with Notes, reported in ILR, 22 (1955), pp 713–31; X v Zagreb Bank, ILR, 26 (1958-II), p 232; Southwestern Shipping Corpn v National City Bank of New York (1959), ILR, 28, p 539; Frantzmann v Ponijen (1959), ILR, 30, p 423; De Boer v Ducro (1961), ILR, 47, p 46; Banco de Brasil SA v Israel Commodity Co (1963), ILR, 32, p 371; Theye y Ajuria v Pan American Life Insurance Co (1964), ILR, 38, p 456; Constant v Lanata (1969), ILR, 52, p 10; Sharif v Azad  1 QB 605; Wilson, Smithett & Cope Ltd v Terruzi  2 All ER 649; Banco Frances e Brasileiro SA v John Doe No 1, ILM, 14 (1975), p 1440 (and comment by Williams, AJ, 70 (1976), pp 101–11); United City Merchants (Investments) Ltd v Royal Bank of Canada  AC 168 (on which see F A Mann, LQR, 98 (1982), pp 526–30); Mansouri v Singh  2 All ER 619. Article VIII(2) has been held applicable in proceedings before an international tribunal between parties to the IMF Agreement: Dallal v Islamic Republic of Iran (1983), ILR, 75, p 126.
See generally Nussbaum,Money in the Law (1950), pp 540–46, and Yale LJ, 59 (1950), pp 421–30; Gold, The Fund Agreement in the Courts (1962), and ICLQ, 33 (1984), pp 777–810; Mann, The Legal Aspect of Money (4th ed, 1982).
21 See eg Kleinwort Sons & Co v Ungarische Baumwolle Industrie AG  2 KB 678; X v Zagreb Bank, ILR, 26 (1958-II), p 232; Lembaga Alat-Alat Pembajaran Luan Negeri and Republic of Indonesia v Brummer et al (1959), ILR, 30, p 25; Stichting Leids Kerkhovenfonds v Bank Indonesia (1960), ILR, 33, p 28; Bulgarian State v Takvorian (No 3) (1961), ILR, 47, p 40; Banco de Brasil SA v Israel Commodity Co (1963), ILR, 32, p 371; Indonesian Corpn PT Escomptobank v NV Assurantie Maatschappij de Nederlanden van 1845 (1964), ILR, 40, p 7; Constant v Lanata (1966), ILR, 52, p 10; Basso v Janda (1967), ILR, 48, p 229; Wilson, Smithett & Cope Ltd v Terruzi  2 All ER 649; Menendez v Saks & Co (1973), ILR, 66, p 126; R v Governor of Pentonville Prison, ex parte Khubchandani (1980) 71 Cr App R 241; and see also many of the insurance cases cited below.
It seems, however, that in Kahler v Midland Bank  AC 24 the House of Lords attributed extra-territorial effect to foreign exchange regulations. For a criticism of this decision see F A Mann, MLR, 13 (1950), p 206, and The Legal Aspect of Money (4th ed, 1982), pp 424–8.
Much of the litigation concerning foreign exchange control laws has concerned the payment of sums due under insurance policies, where the state where the policy was originally taken out has subsequently enacted legislation restricting payment on maturity to certain currencies (usually the state’s own currency) or to payment in certain places only or at a specified rate of exchange. Attempts by policy holders to secure payment in accordance with the original terms of the contract have usually turned on findings as to where the contract was originally concluded, where the parties were resident, where the place of performance was, and what law was the proper law of the contract. See eg Rossano v Manufacturers Life Assurance Co  2 QB 352; Confederation Life Association v Ugalde (1964), ILR, 38, p 138; Theye y Ajuria v Pan American Life Insurance Co (1964), ILR, 38, p 456; Pan American Life Insurance Co v Blanco (1966), ILR, 42, p 149; Confederation Life Association v Vega y Arminan, AJ, 62 (1968), p 986; Johansen v Confederation Life Association, AJ, 66 (1972), p 398.
22 For a discussion (and criticism) of the view sometimes advanced in France, Switzerland and the Federal Republic of Germany, to the effect that a state’s public law cannot be applied or otherwise taken into account before the courts of other states, see Mann, Hag R, 132 (1971), i, pp 182–96.
23 See § 112, as to the ‘act of state’ doctrine.
24 See eg R v International Trustee for the Protection of Bondholders Aktiengesellschaft  AC 500; Kahler v Midland Bank  AC 24; Buchanan and Macharg v McVey, ILR, 22 (1956), pp 46, 47–8, 50; Re Claim by Helbert Wagg & Co Ltd  Ch 323 (see comment by M Mann, ICLQ, 5 (1956), pp 295–301; F A Mann, MLR, 19 (1956), pp 301–4); Confederation Life Association v Ugalde (1964), ILR, 38, p 138. But cf Deklo v Levi, ILR, 26 (1958-II), p 56;X v Zagreb Bank, ibid, p 232. See also Lemenda Trading Co Ltd v African Middle East Petroleum Co Ltd  QB 448 as to the unenforceability of a contract which is contrary to the public policy of both the UK and the state of performance.
In Empresa Exportadora de Azucar v Industria Azucarera Nacional SA (The Playa Larga)  2 Lloyd’s Rep 171, the Court of Appeal acknowledged a foreign law, apparently penal, as a circumstance leading to the frustration of a contract. The court noted that it should be slow to refuse to give effect to foreign legislation in a sphere in which the foreign state had jurisdiction, although if it would seriously offend against the public policy of the forum it might have to be ignored. See also Re State of Norway’s Application  1 WLR 458 in which the House of Lords allowed evidence to be taken in England to be used by a foreign state for the enforcement by it of its revenue laws within its own territory; see also Lange v Minister of Justice (1959), ILR, 28, pp 88, 90.
25 See eg Foster v Driscoll  1 KB 470; Ralli Bros v Compania Naviera Sota y Aznar  2 KB 287; De Beéche v South American Stores Ltd  AC 148; Regazzoni v KC Sethia (1944) Ltd  AC 301. Cf Bureaux Brasseur v Cebelac, ILR, 23 (1956), p 26. See also § 138, n 11, as to requirements by one state that a person should act in another in a manner contrary to the latter’s laws.
26 See eg cases cited at § 113, n 6.
27 Amongst the extensive literature on the effects of foreign confiscatory (and penal) legislation see, in addition to works cited at § 113, n 6, Wortley, Hag R, 67 (1939), i, pp 345–425, and Hag R, 94 (1958), ii, pp 192–252; Schindler, Ann Suisse, 3 (1946), pp 65–94; Seidl-Hohenveldern, MLR, 13 (1950), pp 69–75, Mich Law Rev, 49 (1951), pp 851–68, Internationales Konfiskations- und Enteignungsrecht (1952), Clunet, 83 (1956), pp 380–441, and AJ, 56 (1962), pp 507–10; van Hecke, ILQ, 4 (1951), pp 345–57; Adriaanse, Confiscation in Private International Law (1956); Verzijl, ZöV, 19 (1958), pp 531–50; Munch, Hag R, 98 (1959), iii, pp 415–502; Stoel, ICLQ, 16 (1967), pp 663–79; F A Mann, BY, 48 (1976–77), pp 46–57; Restatement (Third), i, pp 383–9; Staker, BY, 58 (1987), pp 151–252 (especially 234–51).
See also § 112, on the ‘act of state’ doctrine, and § 113, on legislation contrary to international law, which cover certain aspects of confiscatory legislation. On the effects of Indonesian nationalisation measures of 1958 against Dutch property, see Domke, AJ, 54 (1960), pp 305–23; Baade, ibid, pp 801–35; Wortley, AJ, 55 (1961), pp 680–83; Neth IL Rev, 5 (1958), pp 227–47; McNair, ibid, 6 (1959), pp 218–59; Rolin, ibid, pp 260–75; Verdross, ibid, pp 278–89.
28 A confiscatory law may not purport to affect property outside the legislating state, in which case the question of enforcing it in respect of property abroad does not arise. See The Jupiter (No 3)  P 122, 144–5; Re Russian Bank for Foreign Trade  Ch 745, 767; and n 34. See also § 20, n 3, as to the presumption against the extra-territorial operation of the legislation. As to the retroactive effect of recognition of a government on its prior confiscatory laws, see above, § 47, n 11.
29 See Re Law on the Nationalisation of French Banks (1982), ILR, 75, p 700. The question will turn on the construction of the law as having such extra-territorial effect, and any relevant limits on the powers of the legislature.
30 The substance of the action, rather than its form, determines whether it involves, directly or indirectly, the enforcement of a foreign confiscatory law: see eg Banco de Viscaya v Don Alfonso de Bourbon y Austria  1 KB 140, and n 10.
31 Thus even after the recognition of the Soviet Government by the USA the courts in that country refused to give extra-territorial effect to Russian confiscatory decrees as being contrary to public policy and fundamental legal notions as understood in the various states of the Union: see Vladikavkazsky Railway Co v New York Trust Co (1934) 363 NY 369; AD, 7 (1933–34), No 27; US v Bank of New York and Trust Co (1935) 77 F (2d) 866; (1936) 296 US 463; AD, 7 (1933–34), No 29; Moscow Fire Insurance Co v Bank of New York and Trust Co (1939) 280 NY 286; AD, 9 (1938–40), No 53.
There have been numerous other judicial decisions to the same effect, given by courts in many states. See eg Plesch v Banque Nationale de la République d’Haiti (1948) 77 NYS (2d) 41, AD, 15 (1948), No 7; Bank voor Handel en Scheepvaart NV v Slatford  1 QB 248; Re Metallwerke Z & G, ILR, 20 (1953), p 38; Danuvia Feinmechanische und Werkzeugfabrik Nationalunternehmen v Seiberth, ILR, 21 (1954), p 38; Zilka v Darwish, ILR, 21 (1954), p 35; Molnar v Wilsons A/B, ibid, p 30; Estonian State Shipping Company v Jacobson, ibid, p 33; Expropriation of Eastern Zone Company (Germany) Case, ILR, 22 (1955), p 14; Bauer Marchal et Cie v Pioton, ibid, p 13; Vereinigte Carborundum- und Elektritwerke v Federal Department for Intellectual Property, ILR, 23 (1956), p 24; Zwack v Kraus Brothers & Co Inc, ibid, p 10; Amato Narodni Podnik v Julius Keilwerth Musikinstrumentenfabrik, ILR, 24 (1957), p 435; Ex-King Farouk of Egypt v Christian Dior Sarl, ibid, p 228; Jenaer Glaswerk Schott & Gen v Waldmüller (Carl Zeiss Foundation Case), ibid, p 42; Nationalisation of Czechoslovak Savings Bank Case, ibid, p 40; Expropriation of Sudenten-German Cooperative Society Case, ibid, p 35; Assignment of Confiscated Debt (Germany) Case, ibid, p 31; Societa Ornati v Archimedes Rechenmaschinenfabrik Reinhold Pothig (1959), ILR, 28, p 39; Nationalisation of Czechoslovak Enterprise (Austrian Assets) Case (1959), ibid, p 14; Bank Indonesia v Senembah Maatschappij and Twentsche Bank (1959), ILR, 30, p 28; Expropriation of Czechoslovak Cooperative Society (Germany) Case (1960), ILR, 32, p 19; Confiscation of Assets of German-Controlled Company in the Netherlands Case (1960), ILR, 32, p 12; Confiscation of Shares of German-Controlled Company in the Netherlands Case (1961), ibid, p 26; Compania Ron Bacardi SA v Bank of Nova Scotia (1961), ibid, p 8; Effect of Nationalisation of Foreign Company on Rights of Shareholders (Austria) Case (1961), ILR, 40, p 16; Republic of Iraq v First National City Bank (1965), ILR, 42, p 29; Foundation Carl Zeiss Stiftung v Fondation Carl Zeiss Heidenheim (1966), ILR, 47, p 129; Tabacalera Severiano Jorge SA v Standard Cigar Co (1968), ILR, 43, p 18; Cie Française de Credit et de Banque v Atard (1969), ILR, 52, p 8; Rousseau (1969), ILR, 69, p 7; Carl Zeiss Stiftung v VEB Carl Zeiss Jena (1968–70), ILR, 61, p 35; Bibliographisches Institut AG (Mannheim) v VEB Bibliographisches Institut (Leipzig) (1971), ILR, 72, p 26; Hungarian Aircraft Co Case (1971), ILR, 72, p 82; Maltina Corpn v Cawy Bottling Co (1972), ILR, 66, p 92; Sociedad Minera el Teniente SA v Norddeutsche Affinerie AG (1973), ILR, 73, p 230; Carl Zeiss Heidenheim v VEB Carl Zeiss Jena (1975), ILR, 73, p 580; Czechoslovak National Corpn Bata v Bata-Best BV (1975), ILR, 74, p 102; Zeevi and Sons Ltd v Grindlays Bank (Uganda) Ltd (1975), ILR, 66, p 168; Rupali Bank v Provident National Bank (1975), ILR, 66, p 192; United Bank Ltd v Cosmic International Inc (1976), ILR, 66, p 246; Société Méditerranéenne de Combustibles v Sonatrach (1979), ILR, 80, p 428; Vishipco Line v Chase Manhattan Bank (1981), ILR, 66, p 461; Libra Bank Ltd v Banco Nacional de Costa Rica, AJ, 78 (1984), p 443; Allied Bank v Banco Credito Agricola de Cartago, ILM, 24 (1985), p 762 (and as to this case and the previously cited case see Ebenroth and Teitz, Banking on the Act of State (1985)); Bandes v Harlow & Jones Inc, AJ, 82 (1988), p 820, affirming (1983), ILR, 79, p 571; Trinh v Citibank NA, AJ, 83 (1989), pp 573, 577. In a series of cases decided between 1958 and 1960 involving the firm Koh-I-Noor-L & C Hardtmuth, courts in France, Austria, Norway, Italy and Belgium reached the same conclusion, denying extra-territorial effect to a Czech law confiscating the firm’s property: see ILR, 26, pp 40, 50; ILR, 30, p 33; ILR, 40, p 17; and ILR, 47, p 31.
As several of these cases demonstrate, extra-territorial effect will be denied to a foreign state’s confiscatory laws in relation to that state’s nationals as well as to those who are not its nationals. While possession of the legislating state’s nationality gives that state personal jurisdiction over its nationals (§ 138), it does not justify the infringement of the territorial state’s supremacy which would be involved in giving effect there to its confiscatory laws, although this consideration does not prevent the operation abroad of a law depriving a national of his personal titles (Russian Nobleman Nationality Case (1971), ILR, 72, p 435). In the course of the negotiations preceding the Allied-Swedish Agreement of 18 July 1946, concerning German assets in Sweden, it was contended on behalf of the Allied Powers that as they were exercising sovereignty in Germany and as it was a rule of international practice to give effect to foreign decrees regulating the property of nationals if such decrees were consistent with the public policy of the foreign state, Sweden was bound to give effect to Allied decrees concerning the seizure of German property in Sweden. This argument was not accepted by Sweden. See Bulletin of State Department, 17 (1947), p 155. See also Mann, BY, 23 (1946), pp 354–58, on a similar agreement with Switzerland of 25 May 1946.
32 In a series of cases — of which the leading case is US v Pink (1912) 315 US 203 (see also Tillman v US (1963), ILR, 34, p 16) — the courts in the USA gave effect to the confiscatory decrees of Soviet Russia for the exceptional reason that they referred to property covered by certain arrangements (the so-called ‘Litvinov Assignment’) made in connection with the recognition of the Soviet Government by the USA in 1933 and that that recognition, partaking of the nature of a high act of foreign policy, overruled considerations of public policy, as understood by the individual states of the Union, prohibiting the application of foreign confiscatory decrees. For a criticism of that decision, which stretches the consequences of recognition in a manner somewhat alien to its purpose as generally understood, see Borchard, AJ, 36 (1942), p 275, and Jessup, ibid, p 282. See also Banco Nacional de Cuba v Chemical Bank New York Trust Co (1981), ILR, 66, p 450. See also Shareholders of the ZAG v A Bank (1961), ILR, 45, p 436, for a waiver by a state in a treaty of claims of its nationals against the other party, and acceptance of the effect of that waiver on their property in the territory of that other party.
In 1968 the UK and USSR concluded a Claims Agreement (TS No 12 (1968)) in which gold reserves deposited in London by the central banks of the three Baltic States, which were nationalised in 1940, were paid to the USSR in circumstances which raised questions not only about the recognition of that state’s absorption of the Baltic States in 1940 (see § 47, n 7, and § 50, n 14), but also about acknowledgement of the passing of title to those extra-territorial assets (see Lillich, ICLQ, 21 (1972), pp 1–2, 11–12).
33 See eg Lorentzen v Lydden  2 KB 202, and comment in BY, 21 (1944), pp 185ff.; Anderson v NV Transandine Handelmaatschappij, AD, 10 (1941–42), No 4; Zivnostenska Banka v Wismeyer, ILR, 20 (1953), p 34; Jabbour v Custodian of Absentee Property  1 All ER 145, 157; Re Claim by Helbert Wagg & Co Ltd  Ch 323; Cassan v Koninklijke Nederlandsche Petroleum Maatschappij (1966), ILR, 47, p 58; Plichon v Koninklijke Nederlandsche Petroleum Maatschappij, ibid, p 67; Banque Nationale pour le Commerce et l’Industrie (Afrique) v Société Algérienne de Commerce et Lavie (1967), ILR, 41, p 266; Banque Nationale pour le Commerce et l’Industrie (Afrique) v Narbonne (1965), ILR, 47, p 120.
In addition to the first two cases mentioned above, see also other cases — in particular AD, 10 (1941–42), Nos 35, 36, 37, 55, 63 — relating to extra-territorial decrees of the governments in exile during the Second World War: see also McNair and Watts, Legal Effects of War (4th ed, 1966), pp 424–45. But see Bank voor Handel en Scheepvaart v Slatford2 All ER 779 (not affected on these points on appeal  1 QB 248, 279) where the court declined to follow Lorentzen v Lydden as distinguishable by reference to the particular situation of an allied government-in-exile. It may be difficult to follow the suggestion, which seems to underlie the former case, that the denial of extra-territorial effect to foreign legislation is the general rule and that therefore the question of the penal character of such legislation is irrelevant.
34 See § 112. Thus Russian legislation, including confiscatory decrees, was given effect with regard to the operation of such legislation within Russian territory: Dougherty v The Equitable Life Assurance Society (1934), 266 NY 71; AD, 7 (1933–34), No 28; Princess Paley Olga v Weisz  1 KB 718; A M Luther Co v James Sagor & Co  3 KB 532. In US v Belmont (1937) 301 US 324; AJ, 31 (1937), p 537: AD, 8 (1935–37), No 15, the decision of the Supreme Court affirming the right of the USA under the so-called ‘Litvinoff Assignment’, to the assets of a Russian company confiscated by the Soviet Government and deposited by the company in a New York bank, was largely based on the view that the assets had become vested in the Soviet Government in Russia, and not in the USA.
The effect of Cuban legislation confiscating US assets in Cuba was similarly acknowledged: see Pons v Republic of Cuba (1961), ILR, 32, p 10; National Institute of Agrarian Reform v Kane (1963), ILR, 34, p 12; Banco National de Cuba v Sabbatino (1964), ILR, 35, pp 2, 25; Palicio y Compania v Brush (1966), ILR, 42, p 41; Banco Nacional de Cuba v First National City Bank of New York (1971), ILR, 51, p 11, and ILR, 66, pp 48, 102; Menendez v Saks and Co (1973), ILR, 66, p 126; Dunhill v Republic of Cuba (1976), ILR, 66, p 212 (these two last cases, and Palicio y Compania v Brush also denied effect to Cuban legislation as regards assets held to have a situs in the US). On the Sabbatino litigation, see § 113. The Iranian nationalisation of the Anglo-Iranian Oil Company’s assets in Iran was similarly given effect in Italy and Japan: see Anglo-Iranian Oil Co Ltd v SUPOR Co, ILR, 22 (1955), pp 19, 23; Anglo-Iranian Oil Co Ltd v Idemitsu Kosan Kabushiki Kaisha, ILR, 20 (1953), p 305; but cf Anglo-Iranian Oil Co Ltd v Jaffrate (The Rose Mary)  1 WLR 246, in which a court in Aden refused to recognise the effect of the Iranian law on the ground that it was contrary to international law (see § 113, n 16). See also Schweizerische Levensversicherungs- und Rentenanstalt v Elkan, ILR, 20 (1953), p 36; Ilitch v Banque Franco-Serbe, ILR, 23 (1956), p 19; Epoux Reynolds v Ministre des Affaires Etrangères (1965), ILR, 47, p 53; Expropriations in Czechoslovakia (Austria) Case (1965), ILR, 51, p 22; Cohen v Credit du Nord (1967), ILR, 48, p 82; Trujillo v Bank of Nova Scotia, AJ, 61 (1967), p 610; Sociedad Minera el Teniente SA v Aktiengesellschaft Norddeutsche Affinerie, ILM, 12 (1973), p 251, and associated proceedings at ILM, 13 (1974), p 1115 (concerning the nationalisation by Chile of certain copper mining interests, on which see generally MacCrate and Goldman, AS Proceedings (1973), pp 72–80, and Seidl-Hohenveldern, AJ, 69 (1975), pp 110–19, and compare the decision of a French court in Braden Copper Co v Groupement d’Importation des Métaux, ILM, 12 (1973), pp 182, 187); BP Exploration Co (Libya) Ltd v Astro Protector Compania Naviera SA (1973), ILR, 77, p 543 (concerning nationalisation by Libya of certain oil companies’ assets, in which connection see also the US State Department’s statement at ILM, 13 (1974), p 767); Stroganoff-Scherbatoff v Weldon (1976), ILR, 66, p 207; Société Total Afrique v Serrure (1981), ILR, 80, p 425; Tchacosh Co Ltd v Rockwell International Corpn (1985), ILR, 79, p 582; Settebello Ltd v Banco Totta and Acores  2 All ER 1025; Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd  AC 368 (concerning the compulsory acquisition of shares: see Forsyth, CLJ, 44 (1985), pp 376–8; F A Mann, LQR, 102 (1986), pp 191–7, and LQR, 103 (1987), pp 26–8; but cf the decision of a US Court of Appeals in parallel proceedings, Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd (1988), ILR, 78, p 676); Dayton v Czechoslovak Socialist Republic (1986), ILR, 79, p 590. The nationalisation of shares of a company by the state under whose laws it was established has been held by a Belgian court still to leave the company the owner of its subsidiary companies operating abroad, on the ground that the ownership of shares in those subsidiaries had not been changed by the nationalisation of the shares of the parent company, which still existed as a company in which the ownership of the shares in the subsidiary was vested: Shareholders v Cie de Saint-Gobain, ILM, 26 (1987), p 1251. See also Holzer v Deutsche Reichsbahn-Gesellschaft (1938) 277 NY 474; AD, 9 (1938–40), No 71, for an example of recognition of contracts made under the law of a foreign country — public policy notwithstanding.
Since much of the law on this matter turns on the territorial location of the property, the special position in this connection of ships has often been considered. On the extra-territorial effect of confiscatory decrees in respect of ships abroad see The El Condado (No 2), Lloyd’s List Law Reports, 63 (1939), p 83; AD, 9 (1938–40), No 77, where it was held that the general principle denying extra-territorial effect to confiscatory decrees was applicable to foreign ships in British waters or in foreign waters outside the territory of the confiscating state. See, to the same effect, The Jupiter (No 3)  P 122. In The Elise the Supreme Court of Canada, reversing the decision of the court below, held that it would be contrary to public policy for Canadian courts to enforce a foreign confiscatory decree purporting to have extra-territorial effect by seeking to reach in a Canadian port a merchant ship which was never in the possession of the foreign government in question:  SCR 530; AD, 15 (1948), No 50. See too Latvian State Cargo and Passenger Steamship Line v The United States, ILR, 20 (1953), p 193. On the other hand, the US Supreme Court held in The Navemar (1939) 304 US 68; AD, 9 (1938–40), No 68, that in view of the quasi-territoriality of ships, ie the doctrine that they are part of national territory, there was no room for applying to them the general principles relating to foreign confiscatory decrees; accordingly rights over a vessel might be properly acquired by a state while the vessel was outside its territory (on the high seas) and so support a claim to immunity from a third state’s courts, although forcible possession of the vessel acquired in a third state would not be effective for that purpose. Peaceful possession taken of a vessel in foreign waters by a state, in pursuance of its requisition decrees or similar measures, can, however, be effective: see Ervin v Quintanilla (1938) 99 F(2d) 935; AD, 9 (1938–40), No 76. See also The Rigmor, AD, 10 (1941–42), No 63, holding a decree of requisitioning by the Norwegian Government effective as a legal basis for the transfer of possession of the vessel in a Swedish port to the Norwegian Government by the act of the master of the vessel. See also, treating as effective the requisition and subsequent sale of a vessel in a foreign port by its flag state, Zadeh v United States, ILR, 22 (1955), p 336. See generally as to the requisitioning of merchant ships McNair, Grotius Society, 31 (1945), pp 30–46, and JCL, 3rd series, 27 (1945), pp 68–78; McNair and Watts, Legal Effects of War(4th ed, 1966), pp 441–5. For a clear presentation of the British and American practice in the matter in the course of the Spanish Civil War of 1936–39 see Preuss, AJ, 35 (1941), pp 263–81, 36 (1942), pp 37–55. See also Jaenicke, ZöV, 9 (1939), pp 354–82; Riesenfeld, Minn Law Rev, 25 (1940), pp 62ff.
35 Eg Cie Francaise de Credit et de Banque v Atard (1969), ILR, 52, p 8; and see § 113, n 6. Thus where a defendant bank remitted the plaintiff’s property into the territory of the legislating state from abroad, thereby bringing it within the territorial scope of that state’s confiscatory laws, a US court refused to treat compliance with a foreign confiscatory decree as a ground for relieving the defendant of liability. See Plesch v Banque Nationale de la République d’Haiti, where the court said: ‘Confiscation, in ostensible compliance with foreign edicts which are void in this State, has sometimes been compared, in its legal effect, to action by thieves or marauders … That the confiscation decree in question, clearly contrary to our public policy, was enacted by a government recognised by us, affords no controlling reason why it should be enforced in our courts’: (1948) 77 NYS 2d 41; AD, 15 (1948), No 7.
36 See § 113.