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by taking into consideration the Belgian law of extradition. The manner in which political asylum arose and developed in Belgium has been described with unsurpassable accuracy by the late Ferdinand von Martitz in the second part of his Internationale Rechtshilfe in Strafsachen (1897). His masterly exposition gives a clear picture of the Belgian legal conception and offers a safe basis for the interpretation of Article 6 of the German-Belgian and German-Spanish treaties required in this case. The result is briefly as follows.

The sphere of offenses not subject to the obligation of extradition includes, in the first place, the crimes and offenses which are political by their nature. They are—without regard for the motive or purpose of the perpetrator— such offenses as are directed against a political possession in law. They can usually be found in the penal codes of the states without great difficulty, even though they are not expressly defined therein as political offenses. German law, in agreement with the motives of the draft of a penal code for the North German Confederation,24 considers the following to be by their nature political offenses: high treason, treasonable crimes, hostile acts against friendly states, criminal acts directed against citizens' rights and against the authority of the state as such. Franz von Liszt has summed them up more briefly as follows: All premeditated crimes directed against the existence or security of the state, against the head of the state, or the political rights of the citizens.28 Clearly the murder of the Spanish Premier does not come under this group.

But the treaty also excludes from extradition offenses connected with a political crime or offense. We are dealing here with offenses characterized by a translation of the conception of faits connexes d un crime ou d&it politique (acts connected with a political crime or offense) developed in the Belgian law of extradition. There are included here—in contrast to offenses political by their nature—offenses that by their nature are common, which by an inherent connection with a political offense are to share the treatment of the latter in matters of extradition. Common offenses are in this sense connected with a political offense if they are intended to prepare, support or conceal an offense political by its nature. An offense that is by its nature common, which by itself alone fulfils its purpose, does not possess this connection, although its motive or purpose could be termed political. The murder of Premier Dato is by its nature a common offense. Consequently, if an examination of the circumstances under which it was committed should show that it has an inherent connection with an offense that is by nature political, it would, by virtue of its character as a connected crime, not be subject to extradition. The Minister of Justice in his speech of February 23 before the Reichstag announced that, according to the official reports from Spain to the German Government, the murder of Dato, as well as the other

"Printed documents of the Reichstag, 1870, No. 5, p. 84.
aDas Volkerreeht, 11th edition, Berlin, 1918, p. 233.

acts of the syndicalists, were intended as acts of revenge and terrorism. As a matter of fact this agrees with what the partizan friends of the prosecuted persons in Spain and in Germany published with regard to the reasons for the murder. According to this, the deed was to be the execution of a death sentence pronounced by the syndicalists against Dato. Hence the deed fulfilled its purpose by itself alone. There is no recognizable connection with any political crime. Therefore, the obligation of extradition had to be recognized as existent, in accordance with the treaty.

The second result of the discussions is in the field of German internal competency. The new constitution of the German Reich of August 11, 1919, leaves doubt as to whether the German Reich has remained a federal state or has become a decentralized unified state. In any case the position of the former individual states in constitutional law, which are today designated as Lander, has been modified to a great extent with a view to a greater unification of the Reich. The same is true with regard to extradition. For extradition it is important that Article 6 of the national constitution has given the Reich as such the exclusive right of legislation on the subject of extradition and foreign relations in general. The German Lander do not therefore possess the power to pass extradition laws or to conclude extradition treaties with foreign states. Similarly, Article 78 of the national constitution provides that the relations to foreign states are exclusively the concern of the Reich. The German Lander cannot therefore negotiate in an individual case with a foreign country with regard to the duty of extradition incumbent upon the Reich. The question of international law whether a treaty entails extradition or not can only be decided by the Reich itself. The statement of the Minister of Justice of February 24, made in the Reichstag, in which he cleared up the question of competency: "The responsibility for granting the extradition is borne by the Government of the Reich" describes correctly the legal situation as established by the constitution. This manner of determining competency is in agreement with the practise of the United States and Switzerland.

The Fort case has already played an important part as a prejudication. It was immediately followed by the Boldrini case. The Italian Government prosecuted the Italian national Giuseppe Boldrini on the charge of participation in the Milan dynamite plots in the execution of which on March 23, 1921, about 30 persons were killed and 80 injured. Boldrini was arrested on German soil. The Italian Government requested his extradition. The perpetrator of the crime and his party friends asserted that it was a political crime since the deed had been committed for political reasons. The German Government extradited Boldrini on May 4, 1922, on the basis of the GermanItalian treaty. The treaty contains the provision for the non-extradition of political criminals in the same form as the German-Spanish and the German-Belgian treaties. In general, the great majority of the existing extradition treaties of the German Reich contain the same provisions as to political asylum as these treaties do. The states that have made similar agreements with the German Reich will find in the discussions of the Fort case valuable material for the interpretation of the provisions as to political asylum. Whether the new German extradition law announced by the Minister of Justice will be based upon the same theories it is still impossible to say.


By Gordon E. Sherman
Lately Assistant Professor of International Law, Yah University


With the victorious growth of Napoleon's military power subsequent to the disastrous rupture in May, 1803, of the peace concluded at Amiens on March 27, 1802, the emperor determined to revive and develop certain conceptions already illustrated in decrees of the Directory and Consulate which had looked to the subversion of England through limitation or annihilation of its sea-borne commerce. French tradition was familiar with such a purpose through the contests, in the preceding century, of Louis XIV with Spain, then the mistress of a vast maritime traffic. For Napoleon, Great Britain's trans-atlantic trade furnished a ready object of attack as well through cruiser warfare on the open ocean as by oppressive commercial regulation at home. Accordingly a decree of the Consulate on June 30, 1803, forbade all importation from England, and a month later French ports were closed to all ships coming from Great Britain or having even touched there; while on February 6, 1805, an imperial proclamation laid a heavy tax on colonial products, to be soon followed by yet more oppressive measures.

In March, 1806, the Electorate of Hanover was wrested from the British Crown and annexed to Prussia by order of Napoleon, and the British flag was promptly excluded from the electoral ports. To this the British Government, Fox being Secretary of State for Foreign Affairs, replied by announcing a blockade of Prussian harbors, together with an embargo of all Prussian ships found in Great Britain, and on May 14th an order in council directed the seizure of such vessels wherever found, and on May 16th a further order announced a blockade of the entire west coast of Europe under French control. This measure was intended to meet the views of the British mercantile class, now grown jealous of the extensive share which was being assumed by the United States in trans-atlantic commerce; but it was found, in view of American protests, expedient to so limit, on the following September 25th, the geographical aspects of Fox's blockade that it should be restricted to such ports along the English Channel and North Sea as could be effectively controlled by British cruisers, thus actually bringing the blockade in harmony with accepted views of international law.

Notwithstanding England's technically correct position as settled by this last blockade order, two months later, on November 21, 1806, Napoleon deemed himself sufficiently powerful, the old Germanic Empire having collapsed in the preceding August and the Prussians having been crushed at Jena in October, to launch a decree from the Prussian capital intended as a formal inauguration of what came to be termed the "Continental system." Briefly, the decree declared a general blockade of Great Britain and consequent prohibition of all traffic in British merchandise even though actually the property of neutrals; nor was any vessel proceeding from Great Britain or its possessions to be allowed entrance to a French port or one anywhere under imperial control. The text of the decree is as follows:

Imperial Camp, Berlin, November 21, 1806. Napoleon, Emperor of the French and King of Italy, considering:

1. That England does not admit the right of nations as universally acknowledged by all civilized people;

2. That she declares as an enemy every individual belonging to an enemy state, and, in consequence, makes prisoners of war, not only of the crews of armed vessels, but also of merchant vessels, and even the supercargoes of the same;

3. That she extends or applies to merchant vessels, to articles of commerce, and to the property of individuals, the right of conquest which can only be applied or extended to what belongs to an enemy state;

4. That she extends to ports not fortified, to harbors and mouths of rivers, the right of blockade, which, according to reason and the usage of civilized nations, is applicable only to strong or fortified ports;

5. That she declares blockaded, places before which she had not a single vessel of war, although a place ought not to be considered blockaded but when it is so invested as that no approach to it can be made without imminent hazard; that she declares even places blockaded which her united forces would be incapable of doing, such as entire coasts, and a whole empire;

6. That this unequalled abuse of the right of blockade has no other object than to interrupt the communications of different nations, and to extend the commerce and industry of England upon the ruin of those of the Continent;

7. That this being the evident design of England, whoever deals on the Continent in English merchandise favors that design and becomes an accomplice;

8. That this conduct in England (worthy only of the first ages of barbarism), has benefited her, to the detriment of other nations;

9. That it being right to oppose to an enemy the same arms she makes use of, to combat as she does, when all ideas of justice and every liberal sentiment (the result of civilization among men) are disregarded;

We have resolved to enforce against England the usages which she has consecrated in her maritime code.

The present decree shall be considered as the fundamental law of the empire, until England has acknowledged that the rights of war are the same on land as at sea; that it cannot be extended to any private property whatever, nor to persons who are not military, and until the right of blockade be restrained to fortified places, actually invested by competent forces;

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