The uncertainties and difficulties attending the punishment of the actions of private persons discussed in the preceding chapters would seem to be partially ameliorated in respect to counterfeiting the currency of foreign states. While states usually assert a right to exercise jurisdiction and to punish the falsification of their currency and securities wheresoever and by whomsoever committed,1 it is equally true that it is in this area where the territorial state is less hesitant to enact legislation punishing counterfeiters of foreign currency, thus attaining a greater measure of international cooperation.2 This does not imply that under the present law states owe each other a general duty to protect their monetary system;3 what it does imply is that on one specific duty there is general agreement, namely, that of preventing and punishing the counterfeiting of a foreign state’s currency. The present chapter has been added precisely to show how that duty has entered the common law of nations and to suggest that perhaps similar steps can be taken in respect to the other offenses previously discussed.


Foreign Currency Penal Code Domestic Currency Slave Trade World Community 
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  1. 1.
    Research in International Law Under the Auspices of the Harvard Law School, “Jurisdiction with Respect to Crime,” Am. J. Int. L. Supp. Vol. 29, p. 561 (1935).Google Scholar
  2. 2.
    P. C. Jessup, A Modern Law of Nations, p. 178 (1947).Google Scholar
  3. 3.
    F. A. Mann, “Money in Public International Law,” Brit. Y.B. Int. L., 1949, Vol. 26, pp. 259, 271 (1949).Google Scholar
  4. 4.
    Professor Vespasian V. Pella maintains that the falsification of currency may be a common crime, a political offense, and an offense between the states. See V. V. Pella, La Coopération des États dans la Lutte contre le Faux Monnayage, pp. 11–14 (1928). For the discussion of the political aspect of the offense, see pp. 101–105.Google Scholar
  5. 5.
    This was contended in the celebrated case The Emperor of Austria v. Day and Kossuth, Great Britain, High Court of Chancery, 2 Giffard 628 (1861).Google Scholar
  6. 6.
    E. de Vattel, Le Droit des Gens, bk. I, c. 10, secs. 108, 109 (Transl. by C. G. Fenwick, 1916). (Italics are those of Vattel). Professor Arthur Nussbaum abundantly illustrates the severity with which counterfeiting was punished. These penalties, however, applied only to the counterfeiting of domestic currency. See A. Nussbaum, Money in the Law: National and International, pp. 40–44 (Rev. ed. 1950).Google Scholar
  7. 7.
    J. W. Garner, “International Convention for the Repression of Counterfeiting,” Am. J. Int. L., Vol. 24, p. 135 (1930).CrossRefGoogle Scholar
  8. 8.
    V. V. Pella, op. cit., pp. 7–16, 106.Google Scholar
  9. 9.
    For text, Am. J. Int. L. Supp., Vol. 29, pp. 478, 479, 563.Google Scholar
  10. 10.
    P. C. Jessup, op. cit., p. 178.Google Scholar
  11. 11.
    Thus, the state courts are merely acting as organs of the state, not of international law. See on this H. Lauterpacht, The Development of International Law by the International Court, p. 20 (1958).Google Scholar
  12. 12.
    H. Kelsen, Principles of International Law, pp. 124–126 (1952); O. Svarlien, An Introduction to the Law of Nations. pp. 92–93 (1955).Google Scholar
  13. 13.
    H. Wheaton, Elements of International Law, p. 164 (R. H. Dana ed. 1866). It is also interesting to note that some states refer to piracy as established by international law. Thus, the Law of the United States punishes those who “commit the crime of piracy as defined by the law of nations.” 18 U.S.C.A., sec. 481 (Criminal Code, section 290). See also C. C. Hyde, International Law Chiefly as Interpreted and Applied by the United States, Vol. 1, p. 769 (2d ed. 1945). Cf. C. Parry, “Some Considerations upon the Content of a Draft Code of Offenses Against the Peace and Security of Mankind,” Int. L. Q., Vol. 3, pp. 208, 211 (1950).Google Scholar
  14. 14.
    It should be noted that even in respect to piracy there are certain acts which are only piratical under the law of a particular state, though not so under international law. Professor James L. Brierly cites as an example that in English criminal law it is piracy to engage in slave-trade. See J. L. Brierly, The Law of Nations, pp. 240–241 (5th ed. 1955).Google Scholar
  15. 15.
    While the duty to protect foreign monetary systems in general is denied, the duty to punish counterfeiting of foreign currency is generally conceded. See A. Nussbaum, op. cit., pp. 322–323; also F. A. Mann, “, op. cit., pp. 259, 271.Google Scholar
  16. 16.
    For this reason, counterfeiting of currency has been used as a means of warfare to destroy the enemy’s monetary system. Doubts exist as to whether this is a legitimate means of warfare. See F. A. Mann, The Legal Aspects of Money, p. 437 (2d ed. 1953). It is generally known that the Nazi Government engaged extensively in counterfeiting foreign currency some of which was to be used to upset the British financial system.Google Scholar
  17. 16a.
    See L. A. Mander, Foundations of Modern World Society, pp. 272–273 (Rev. ed. 1947).Google Scholar
  18. 17.
    E. Fitz-Maurice, “Convention for the Suppression of Counterfeiting Currency,” Am. J. Int. L., Vol. 26, pp. 533–534 (1932).CrossRefGoogle Scholar
  19. 18.
    J. W. Garner, op. cit., p. 136.Google Scholar
  20. 19.
    For text, see M. O. Hudson, International Legislation, Vol. 4, p. 2692 (1931).Google Scholar
  21. 20.
    18 U.S.C. sec. 478.Google Scholar
  22. 21.
    18 U.S.C. sec. 486. Punishment is not more than $ 3,000 or imprisonment not more than five years or both.Google Scholar
  23. 22.
    18 U.S.C. sec. 482. Punishment is not more than $ 2,000 or imprisonment not more than two years or both. 23 18 U.S.C. sec. 349.Google Scholar
  24. 24.
    120 U.S. 479 (1887).Google Scholar
  25. 25.
    U.S. Const. art. 1, sec. 8, paragraph 10.Google Scholar
  26. 26.
    United States v. Arjona, 120 U.S. 479, 499 (1887).Google Scholar
  27. 27.
    Forlini v. United States, 12 F2d 631 (CCA N.Y., 1926); United States v. White 25 F2d 716 (D.C. Tex., 1885).Google Scholar
  28. 28.
    Bliss v. United States, 105 F2d 508 (CCA Mass., 1901). Double jeopardy is, therefore, not a constitutional defense. See, U.S. Const. Amend. V.Google Scholar
  29. 29.
    See Note of Counselor Moore of the State Department to Ambassador da Gama of Brazil, November 8, 1913, G. H. Hackworth, Digest of International Law, Vol. 2, pp. 350–351 (1941).Google Scholar
  30. 30.
    For such communications, Ibid., pp. 350–354.Google Scholar
  31. 31.
    Ibid., pp. 351–353.Google Scholar
  32. 32.
    Note of the American Minister to Belgium to the Secretary of State, March 30, 1888. J. B. Moore, A Digest of International Law, Vol. 2, pp. 450–451 (1906).Google Scholar
  33. 33.
    G. H. Hackworth, op. cit., Vol. 2, p. 353.Google Scholar
  34. 34.
  35. 35.
    The Coinage Offenses Act of August 6, 1861, 24 & 25 Vic., chap. 99.Google Scholar
  36. 36.
    Act of 1935, 25 & 26 Geo. V c. 25.Google Scholar
  37. 37.
    This is particularly significant, for Great Britain did not ratify the Convention, yet she incorporated the principles of the Convention into her domestic law. The following acts were amended: The Coinage Offenses Act of 1861, 24 & 25 Vic. c. 99; the Forgery Act of 1913, 3 & 4 Geo. V. c. 27; the Counterfeit Medal Act of 1883, 46 & 47 Vic. c. 45; and the Extradition Act of 1870, 33 & 34 Vic. c. 52.Google Scholar
  38. 38.
    Great Britain, High Court of Chancery, 2 Gififard 628 (1861).Google Scholar
  39. 39.
  40. 40.
    See Italian Penal Code, 1930, article 256.Google Scholar
  41. 41.
    See in this connection, Venezuelan Penal Code, art. 281; Penal Code of Panama, 1922, art. 216(a).Google Scholar
  42. 42.
    There is no reason why this claim would not adequately fall within Article 36, paragraph 2(c) of the Statute of the International Court of Justice, which extends the jurisdiction of the Court, inter alia, to “the existence of any fact which, if established, would constitute a breach of an international obligation.”Google Scholar
  43. 43.
    Cf. P. E. Corbett, Law and Society in the Relations of States, p. 76 (1951).Google Scholar
  44. 44.
    V. V. Pella, op. cit., pp. 32–35. Also A. Nussbaum, op. cit., p. 508, n. 28. Here are included the penal codes of France and Belgium. Specifically, the French Penal Code penalizes the counterfeiting of domestic currency more severely than that of foreign currency. In this connection, compare Article 132 dealing with domestic currency with Article 133 dealing with foreign currency.Google Scholar
  45. 45.
    For text, see M. O. Hudson, International Legislation, Vol. 4, p. 2692 (1931).Google Scholar
  46. 46.
    A. Nussbaum, op. cit., p. 323. It has been seen, however, that the law of the United States and Great Britain is far ahead of international requirements.Google Scholar
  47. 47.
    However, according to Article 2 of the Convention, “the word ‘currency’ is understood to mean paper money (including banknotes) and metallic money, the circulation of which is legally authorized.” In May, 1937, the League of Nations set up a Committee of Jurists to prepare a draft additional protocol to the 1929 Convention “the object of which was to extend to the suppression of the falsification of documents of value the provisions of this Convention.” See L. A. Mander, op. cit., p. 272.Google Scholar
  48. 48.
    J. W. Garner, op. cit., p. 137.CrossRefGoogle Scholar
  49. 49.
    For text, see M. O. Hudson, International Legislation, Vol. 4, p. 2705 (1931).Google Scholar
  50. 50.
    There is general agreement on this. See J. W. Garner, op. cit., p. 138;Google Scholar
  51. 50a.
    E. Fitz-Maurice, op. cit., p. 545. This provision should be compared with Article 7 of the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, which says that “Genocide and the other acts enumerated in Article III shall not be considered as political crimes for the purpose of extradition.” For text, see Am. J. Int. L. Supp., Vol. 45, p. 7 (1951). Thus, unlike counterfeiting, genocide shall never be considered as a political offense.Google Scholar
  52. 51.
    For an extensive discussion of political offenses, see M. R. García-Mora, International Law and Asylum as a Human Right, c. 6 (1956).Google Scholar
  53. 52.
    It is interesting to observe that counterfeiting was not included by the International Law Commission of the United Nations in its Draft Code of Offenses Against the Peace and Security of Mankind because it was not believed to contain “a political element… which endangers or disturbs the maintenance of international peace and security.” See Report of the International Law Commission Covering the work of its Third Session, 16 May-27 July, 1951, U.N. General Assembly, Official Records, Sixth Session, Supplement No. 9 (A/1858, p. 11 (1951).Google Scholar
  54. 54.
    A classical statement of this doctrine was neatly expressed by the Supreme Court of the United States in Factor v. Laubenheimer, 290 U.S. 276 (1933). In this case, the Court said: “The principles of international law recognize no right to extradition apart from treaty.” Ibid., p. 287. A more recent statement of the doctrine was expressed by the Department of State on January 20, 1947, when it refused to extradite a former employee of the Soviet Embassy in Mexico who was accused of embezzlement and who had taken refuge in the United States. At this time, the State Department said: “It is a well-established principle of international law that no right to extradition exists apart from treaty. No extradition treaty exists between the United States and the Soviet Union.” Dept.StateBull., Vol. 16, p. 212 (1947). It is worth noting that the Constitution of Honduras provides in Article 20 that “extradition may only be granted by virtue of a law or by treaty…” For text, see R. H. Fitzgibbon, The Constitutions of the Americas p. 468 (1948); T. A. Taracouzio says that the Soviet Government extradites criminals only on the basis of extradition treaties, but in the absence of treaties, upon “special consent granted for each individual case.”Google Scholar
  55. 54a.
    T. A. Taracouzio, The Soviet Union and International Law, pp. 145–146 (1935).Google Scholar
  56. 56.
    A typical formulation of the doctrine of reciprocity is well illustrated by Article 646 of the Argentine Code of Criminal Procedure, which provides as follows: “Extradition of criminals, whether requested by the Republic or granted by it at the request of another State, shall only take place: (1) In the cases provided for by existing treaties; and (2) In the absence of treaties, in the cases in which extradition is proper according to the principle of reciprocity or the uniform practice of States.” Cited by the Harvard Research in International Law, Extradition, Am. J. Int. L. Supp., Vol. 29, p. 360 (1935). The Argentine Extradition Law of 1885 contained an identical provision. For text, see U.S. Foreign Rel. 1886, p. 4 (1887).Google Scholar
  57. 56.
    E. Fitz-Maurice, op. cit., p. 541.Google Scholar
  58. 57.
    J. Paoli, “Contribution à L’étude des crimes de Guerre et des crimes contre l’Humanité en Droit Penal International,” Rev. Gén. de Droit Int. Public. Vol. 39, p. 147 (France, 1941–1945).Google Scholar
  59. 58.
    This seems to be the general practice of the countries whose system of law is based on Roman Law. See, C. C. Hyde, International Law Chiefly as Interpreted and Applied by the United States, Vol. 2, pp. 1027–1029 (2d ed. 1945).Google Scholar
  60. 59.
    See in this connection Article 5 of the Harvard Research, “Jurisdiction with Respect to Crime,” Am. J. Int. L. Supp., Vol. 29, pp. 519–535 (1935).CrossRefGoogle Scholar
  61. 60.
    See C. C. Hyde, op. cit., Vol. 2, pp. 1027–1029. For the British view,Google Scholar
  62. 60a.
    see L. Oppenheim, International Law, Vol. 1, pp. 699–700 (8th ed. by H. Lauterpacht, 1955).Google Scholar
  63. 61.
    See Chapter IX, infra. Google Scholar
  64. 62.
    E. Fitz-Maurice, op. cit., p. 543.Google Scholar
  65. 63.
    Thus, when the Brazilian Government requested the American Government to punish persons who in Brazil counterfeited Brazilian currency and came to the United States, the State Department answered that “As the territorial theory of crime obtains in the United States, it would not be practicable for this Government to enter into a treaty arrangement with the Brazilian Government providing for the prosecution of persons for committing in Brazil the crimes of counterfeiting Brazilian money, securities, etc.” See Note of Counselor Moore to Ambassador da Gama, November 8, 1913, G. H. Hackworth, op. cit., Vol. 2 p. 351.Google Scholar
  66. 66.
    Professor Vespasian V. Pella regarded counterfeiting as an offense against the peace and security of mankind sometime ago. See V. V. Pella, op. cit., p. 106.Google Scholar
  67. 67.
    Ibid., pp. 106–107. This responsibility of course depends upon the measures of exertion discussed previously.Google Scholar
  68. 68.
    F. A. Mann, “Money in Public International Law,” Brit. Y.B. Int. L. 1949, Vol. 26, p. 272 (1949).Google Scholar

Copyright information

© Martinus Nijhoff, The Hague, Netherlands 1962

Authors and Affiliations

  • Manuel R. García-Mora
    • 1
  1. 1.Fordham UniversityUSA

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