Allegiance, Diplomatic Protection and Criminal Jurisdiction over Aliens
![handle is hein.journals/camblj9 and id is 338 raw text is: The Cambridge Law Journal
ALLEGIANCE, DIPLOMATIC PROTECTION AND CRIMINAL
JURISDICTION OVER ALIENS
H. LAUTERPACHT
T HE cause cdl~bre of King v. William Joyce, subsequently reported
as Joyce v. Director of Public Prosecutions,1 was concerned to a
large extent with matters of interest for international law, and it is mainly
from this point of view that it is proposed to discuss it in the present
article. 2 Obviously the case is also of considerable importance both for
criminal law, in so far as it is concerned with the crime of treason, and
for constitutional law inasmuch as it bears directly on the question of
the nature and the obligations of allegiance. However, it is probable
that the case books which will claim it most insistently will be those of
international law. For the decision in Rex v. Joyce is not only an
authority on certain aspects of allegiance owed by aliens and of the right
of a State to assume jurisdiction over acts committed by aliens abroad.
It sheds light on such questions as the nature of diplomatic protection
of citizens, the right of a State to protect diplomatically persons who are
not its citizens, the obligation of allegiance of so-called protected persons,
and some others. Not all these questions were judicially answered, but
they loomed large in argument and imparted to the proceedings the
complexion of a case concerned predominantly with international law.
In view of this it may be pertinent to preface this article by drawing
attention to a point which appears to be a mere matter of terminology
but which, it is believed, raises an issue of wider significance.
I.--' COMITY or NATIONS'
Throughout the proceedings in the Joyce Case the principal argument
put forward on behalf of the accused was that it would be contrary to
the 'comity of nations 'for an English court to assume jurisdiction over
an alien for a crime committed abroad. The House of Lords held that
' no principle of comity demands that a state should ignore the crime of
treason committed against it outside its territory.'a The reference to
' comity of nations' when what the Court really has in mind is 'the law
of nations' or ' international law ' has been a somewhat persistent feature
of recent English (and, at times, American) judicial practice. It seems to
have gained currency following upon the judgment in The Parlement
Belge, the well-known case concerned with the jurisdictional immunity of
1 [1945] W. N. 220; 173 L. T. 377 (Court of Appeal); [1946] A. C. 347 (House of Lords).
2 The article is the substance of a lecture delivered in the Law School of the University
of Cambridge in the Lent Term, 1946. I have expanded the lecture by the addition of
footnotes and otherwise, but I have retained some passages as delivered on that occasion.
3 [1946] A. C. at p. 372.](ViewImageLocal?handle=hein.journals/camblj9&div=30&collection=&method=preview&ext=.png&size=3)
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Allegiance, Diplomatic Protection and Criminal Jurisdiction over Aliens
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