Abstract
This chapter is intended as a resume of general problems of jurisdiction, without detailed consideration of specific fact situations, related to the maritime context. The purpose is to consider generally the circumstances under which states do exercise jurisdiction over persons who also have contacts with other states and those in which they do not. Putting it differently, there are certain bases, or contacts between a person and a state, which are more or less uniformly recognized internationally as sufficient to justify an exercise by that state of jurisdiction over the person. Some of these bases are considered sufficient by some states and not by others. Also, there are some situations in which, by international law more than one state may have a right to exercise its authority. In this latter type situation, one of the two may defer to the other either because of comity or because a positive rule of international law gives to one state the primary right to act.
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References
See I Oppenheim’s International Law 747 (6th ed. 1947); Trang Puente, “The Nature of the Consular Establishment,” 78 U. of Pa. L. Rev. 329 (1930) Project No. VIII of the International Commission of Jurists, 1927, “Consuls,” Art. 3, 22 A.J.I.L. Spec. Supp. 255 (1928). The Harvard Draft Convention on Legal Position and Functions of Consuls, Sec. II, Art. 2, would create such a duty on the part of signatories, on a most-favored-nation basis, to any state with which diplomatic relations are maintained. However, the commentary to that article makes it clear that no such duty exists under general international law, the article itself being a generalization from various bilateral treaty provisions. 26 A.J.I.L. Supp. 193, 229–231 (1932).
See IV Hackworth, Digest of International Law 666–699.
See treaty with Siam of 1833, 8 Stat. 454.
The United States has, on occasion, established consulates in geographic areas under the control of groups not recognized as the government of the area. IV Hackworth, Digest of International Law 684–699. This has always been done with the consent, tacit or express, of the de facto authorities, however.
Art. I, 47 Stat. 1976, 1977.
U.N. Doc. A/CONF. 25/12, Apr. 23, 1963, 57 A.J.I.L. 995 (1963).
Art. 2 (1).
Art. 2 (2).
The third subdivision of the same article then adds another specific class of tacit consent to the continued existence of consular relations by stating that the severance of diplomatic relations does not ipso facto involve the severance of consular relations. Art. 2 (3). Article 4 subjects such incidents as location of consular posts and changes in them to the consent of the receiving state.
Supra note 5.
Id. at 1977.
Id. at 1978.
Detailed examination is reserved for chapter V.
Supra note 6.
Article 5 (a), 57 A.J.I.L. 995, 997 (1963).
Art. 5 (f), id. at 998.
Art. 5 (k), id. This subdivision also applies to national aircraft, where similar problems are involved.
Id.
Art. 5 (m), id.
TIAS 2494, 3 USTIAS 3426.
Art. 21 (4), id. at 3443.
Art. 22 (4), TIAS 2984, 5 USTIAS 949, 992.
E.g., Art. 21 (3), 22 of Treaty with U.K., 3 USTIAS 3426, 3442.
Consular Convention of 1947 with the Philippines, Art. I 2, 62 Stat. 1593, 1594.
Treaty with Yemen (1946), Art. II, 60 Stat. 1782–1783; Nepal (1947), Art. 2, 61 Stat. 2566, 2567; Ethiopia (1951), Art. III (1), 4 USTIAS 2134, 2137–2138; Iran (1955), Art. XIII (1), TIAS 3853, 8 USTIAS 899, 909–910.
See Colombos, The International Law of the Sea 277, 279, 295, 298 (5th rev. ed. 1962.); I Oppenheim’s International Law 750 (6th ed., 1947). The United States’ position concerning this usage is clearly set forth in IV Hackworth, Digest of International Law 876–883.
See e.g.. Treaty of Friendship, Commerce and Consular Rights With Germany (1923), Art. XVII, 44 Stat. 2132, 2147–2148.
See Oppenheim’s International Law § 18, p. 27 for a discussion of treaties containing “general” international law. (6th ed. 1947).
P.C.I.J. Ser. A, No. 10, 25–27.
P.C.I.J. Ser. A, No. 1, 28.
22 U.S.C. 1173, R.S. § 1707, 1878.
22 U.S.C. 1174, R-S. § 1708, 1878.
22 U.S.C. 1185, R-S. § 1718, 1878.
46 U.S.C. 354, 355, R-S. §§ 4309, 4310, 1878.
46 U.S.C. 12, 38 Stat. 1193.
46 U.S.C. 570, R.S. § 4517, 1878.
46 U.S.C. 569, R.S. § 4516, 1878.
46 U.S.C. 622, R.S. §§ 4539, 4541, 1878.
46 U.S.C. 656, 657, 658, R.S. §§ 4559, 4560, 4561, 1878, 38 Stat. 1165.
46 U.S.C. 662, 664, R.S. §§ 4565, 4567, 1878.
46 U.S.C. 682–685, R.S. §§ 4580–4583, 1878.
46 U.S.C. 721, R.S. § 4238, 1878.
46 U.S.C. 703, R.S. § 4600, 1878.
§ 534 – 2–1.
532.
528. 2.
22 U.S.C. 256, 257, 258, 258a, R.S. 4079–4081, 1878, 38 Stat. 1184.
103 U.S. 261 (1880).
In the case of In re Aubrey, 26 Fed. 848 (E.D. La. 1885), although the court decided that it had no power to assist the consul by keeping the seamen incarcerated pursuant to his order, it assumed throughout that he was an official of the British government one of whose functions it was to enforce British shipping laws on British seamen in the United States. There was no treaty with Britain out of which the result could have been inferred.
Riley v. The Obeli Mitchell, 20 Fed. Cas. 804 (No. 11839) (S.D. N.Y. 1861).
50 U.S. 37 (1850).
2 Stat. 203. The statute required the master of American merchant vessels to deposit the official ship’s papers with the consul on arrival in his district, he to have the power to withhold return of them to compel compliance with his orders under certain circumstances.
50 U.S. 372, 381–382. At one point the Court said: “Those functions [consular] are ... to exercise jurisdiction in some respects over American vessels and seamen abroad; sometimes of a judicial character ....” Id. at 382.
The Belgenland, 114 U.S. 355, 364–365 (1885); Ex Parte Newman, 81 U.S. 152, 168–169 (1871).
Supra note 50.
7 F. 2d 605 (2d Cir. 1925).
In this case, he was held to have exceeded his authority by preventing the vessel’s master from leaving the country, but the court throughout assumed that he had the authority to take any steps reasonably necessary to enforce the particular United States statute involved.
The Navemar, 102 F. 2d 444 (2d Cir. 1939), reversing 24 F. Supp. 495 (E.D. N.Y. 1938). The particular decision became moot because the revolution was successful and the United States recognized the Franco revolutionary government which promptly rescinded the prior government’s action in expropriating the vessel and asked the court to dismiss the action seeking possession of the vessel from its owners.
47 Fed. 328 (D. Wash. N.D. 1891).
Id. at 329. The Falls of Keltie, 114 Fed. 357 (D. Wash. N.D. 1902), restricted this rule to situations involving no American national. Accord, Bolden v. Jensen, 70 Fed. 505 (D. Wash. N.D. 1895).
The Becherdass, 3 Fed. Cas. 13 (No. 1203) (D. Mass. 1871); The Lilian M. Vigius, 15 Fed. Cas. 520 (No. 8346) (S.D. N.Y. 1879); The Carolina, 14 Fed. 424 (E.D. La. 1876); The Montapedia, 14 Fed. 427 (E.D. La. 1882); The City of Carlise, 39 Fed. 807 (D. Cir. 1889); Camille v. Couch, 40 Fed. 176 (E.D. S.C. 1889); The Topsy, 44 Fed. 631 (D. S.C. 1890); The Sirius, 47 Fed. 825 (N.D. Cal. 1891); The Karoo, 49 Fed. 651 (D. Wash. W.D. 1892).
May 3,1962. For convenience sake, it will be cited only as Restatement hereinafter.
Restatement § 6, p. 25.
Restatement § 7, p. 26.
Whether an international claim arises out of illegal prescription is beyond the scope of this paper.
The fact that one state has jurisdiction either to prescribe or to enforce does not impose upon any other state the legal obligation to give effect to the rule established pursuant to that authority. Whether it will do so depends upon its municipal law rule of conflict of laws. Restatement § 9, p. 31.
If the prescription itself adversely affects another state, it will have an international claim against the prescribing state. See Restatement § 8, Comment b., p. 29. Even if not adversely affected, a state may have an interest in objecting to the rule. A failure to object may be taken as a tacit acceptance of the prescribing state’s authority and tend toward the establishment of a customary rule of international law. Id., Comment C, p. 29–30.
I Oppenheim’s International Law 293–294 (7th ed. 1948).
Restatement § 10, p. 35–36.
The breadth of the band of water known as the territorial sea will not be discussed herein. Suffice it to say that there is a substantial amount of disagreement on the breadth that a coastal state can legally claim. The United States claims a three mile breadth, while other states claim varying widths of up to 200 miles. Laws and Regulations on the Regime of the Territorial Sea, United Nations Legislative Series, ST/LEG/Ser. B/6 (U.N., N.Y., 1957).
Restatement § 11, p. 37. The state also has exclusive jurisdiction over the sea bed and subsoil of the continental shelf for the purpose of exploitation, but this is not relevant to the instant inquiry. Article 2, Convention on the Continental Shelf, Apr. 29, 1958, U.N. Doc. A/CONF. 13/L. 55.
It does not matter, insofar as this discussion is concerned, whether a state has absolute sovereignty over a particular area or exercises jurisdiction over it pursuant to an agreement. The result is the same, subject to any restrictions imposed by the agreement. See Restatement §§ 24 and 25, pp. 76 and 77.
S.S. Lotus, P.C.I.J., Ser. A, No. 10, 24–25. The Court used the term “the State the flag of which it flies,” but that was the equivalent of nationality. Restatement § 31, p. 91.
Restatement §§ 17, 18, pp. 49, 52–53.
See the brief discussion of nationality in Chapter III at p. 165. The Comment to Article 5 of the Harvard Research in International Law, Jurisdiction with respect to Crime, states that “The competence of the State to prosecute and punish its nationals on the sole basis of their nationality is universally conceded”. 29 A.J.I.L. Supp. 519 (1935).
Restatement § 30, p. 87.
Restatement § 31, p. 91; see Chapter III at p. 88 et seq. The nationality of the victim of an act apparently is not recognized as a legal basis for the exercise of jurisdiction to prescribe rules of conduct affecting others. Restatement § 30 (2), p. 87. See the discussion of this problem in the S.S. Lotus, P.C.I.J., Ser. A, No. 10, pp 37–39. Contra, Art. 4 (b) Convention on Offences and Certain other Acts Committed on Board Aircraft, signed at Tokyo, Sept. 14, 1963, I.C.A.O. Doc. 8364 (1963). “A Contracting State which is not the state of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offense committed on board except in the following cases: (b) the offense has been committed by or against a national or permanent resident of such state; [emphasis supplied]. There is another recognized basis for the exercise of prescriptive jurisdiction by a state which has not been discussed herein because it has no relevance within the scope of this paper. A state is entitled to attach legal consequences to conduct abroad which threatens its security. Restatement § 33, p. 94; see United States v. Bowman, 260 U.S. 94, 102 (1922), involving the possibility that a foreigner might be punished in the United States for acts committed broad in a conspiracy to defraud the United States. A seaman might become involved in some situation covered by this principle, but it is unlikely that the problem would in any way be affected by his status as a seaman.
See I Oppenheim’s International Law 262–263 (7th ed. 1948); Hall, International haw 56–57 (8th ed. 1924).
Restatement § 7, Comment on Subsection (1), pp. 26–27.
Restatement § 20, p. 64. Effective enforcement action may be made possible by use of extradition procedures, but that question is not within the scope of this paper.
Restatement § 32, pp. 92–93.
Restatement § 37, pp. 105–106.
Restatement §§ 54–65, pertaining to jurisdiction over visiting foreign military forces.
See exchange of notes between the United States and Iceland of 21 and 27 Dec, 1962, reciprocally conferring relief from local taxation of earnings from the operations of ships or aircraft (established by documentation and registration) of the other. TIAS 5255, 13 USTIAS 3827.
The Harvard Research in International Law, Part II, Jurisdiction of Crime, Comment to Article 5, 29 A.J.I.L. 531 (1935), states, with regard to the conflict of jurisdiction between the state of nationality of the actor and the state where the act occurred: “The widespread inclusion of such limitations [upon the prosecution of a national for an act committed abroad] in national legislation tends to confirm the opinion that jurisdiction based upon nationality is properly regarded as subsidiary to the territorial jursdiction of the State where the crime was committed .... It is believed, however, that these are matters which each State is free to determine for itself.”
Restatement § 38, pp. 109–113.
See the NATO Status of Forces Agreement of 1951, Art. VII 3, TIAS 2846, 4 USTIAS 1792, 1800.
Specific situations which may depart from the general rules will be discussed in the succeeding chapter.
U.N. Convention on the High Seas, TIAS 5200, 13 USTIAS 2312.
Art. 24, United Nations Convention on the Territorial Sea and the Contiguous Zone, U.N. Doc. A/CONF. 13/L. 52.
Id.
Id.
This rationale could also extended to the requiring of certain acts while the vessel is still on the high seas outside the contiguous zone. For example, a state should have the authority to require a vessel which is approaching for the purpose of entry into inland waters to give notice, say 24 hours, in advance of reaching territorial waters. She might also legitimately be required to do some act even in her home port in a foreign state, such as procuring a document from a consul of the prescribing state attesting to health and sanitary conditions there.
See Article XIII 1. of the Treaty of Friendship, Establishment and Navigation with Luxemburg (1962), TIAS 5306, 14 USTIAS 251, 260.
E.g. Art. XX, 1954, Treaty of Friendship, Commerce and Navigation with the Federal Republic of Germany, TIAS 2593, 7 USTIAS 1839, 1860.
Articles 14–23, United Nations Convention on the Territorial Sea and the Contiguous Zone, U.N. Doc. A/CONF. 13/L. 52.
Article 14, subd. 2, id.
Emphasis supplied. This section will be considered in more detail in the succeeding chapter.
Emphasis supplied.
Article 4 of the United Nations Convention on the Territorial Sea and the Contiguous Zone envisages the possibility of a right of innocent passage through inland waters where the use of straight base lines cuts off areas which had previously been high seas or territorial waters. This was a codification of the decision in the Anglo-Norwegian Fisheries Case. 1951 I.C.J. 116.
This question will be considered in detail in the succeeding chapter. Note: If a member of the ship’s company should go off the ship, although there may be a conflict of jurisdiction because of his nationality differing from that of the local state, that conflict is not peculiarly related to his status as a seaman and therefore will not be discussed.
Supra note 68 and 69.
Supra note 73.
The discussion of the locus of the activity, and the provisions of the United Nations Conventions on the law of the sea considered there are relevant to this problem. Supra at p. 210 et seq.
Supra at p. 108.
190 Fed. 216 (E.D. S.C. 1911).
Supra at p. 91.
See IV Hackworth, Digest of International Law 885.
The Falls of Keltie, 114 Fed. 357 (D. Wash. N.D. 1902); Bolden v. Jensen, 70 Fed. 505 (D. Wash. N.D. 1895); The Troop, 117 Fed. 557 (D. Wash. W.D. 1902); The Neck, 138 Fed. 144 (W. D. Wash. N.D. 1905).
345 U.S. 571 (1952).
46 U.S.C. 688, 38 Stat. 1185.
Supra note no at 574–575.
Id. at 584–586.
358 U.S. 354 (1959).
Id. at 383.
345 U.S. 571, 586–587.
Shorter v. Bermuda & West Indies S.S. Co., Ltd., 57 F. 2d 313 (S.D. N.Y. 1932); Gambero, v. Bergoty, 132 F. 2d 414 (2d Cir. 1942) — alien seamen domiciled in the United States.
The Oriskany, 3 F. Supp. 805 (D. Md. 1933); Clark v. Montezuma Transportation Co., 217 App. Div. 172, 216 N.Y. Supp. 295, (2d Dept. 1926).
Supra at pp. 115–116.
Supra note no.
Id. at 583–584.
This question will be considered in more detail in the Succeeding chapter.
Restatement § 20, p. 64.
Article 22, 13 USTIAS 2312, 2318–2319.
19 U.S.C. 1701(a), 49 Stat. 517.
Id. 19 U.S.C. 1701(b); 49 Stat. 517, 525. For a discussion of this statute, see Jessup, “The Anti-Smuggling Act of 1935,” 31 A.J.I.L. 101 (1937).
Id. See The Reidun, 14 F. Supp. 771 (E.D. N.Y. 1936).
U.N. Doc. A/CONF. 13/L. 52, Article 24.
The Pictorian, 3 F. 2d 145, 146 (E.D. N.Y. 1924).
Article 24, Subdivision 2, U.N. Doc. A/CONF. 13/L. 52.
It is, perhaps necessary to point out that, since the convention limits the type of interests which may be protected by enforcement action within the zone, all others are presumably implicitly excluded. E.g., the local authorities would not have the right to stop a foreign vessel in the zone after leaving port for the purpose of arresting and punishing a seaman for a crime committed ashore. See Restatement § 21, Comment on Subsection (1)(b), p. 67.
Restatement § 20, Comment b., p. 64.
The flag state does not have a right to take any action it chooses to enforce its laws while the ship is within snother state. In criminal matters, for example, the local authorities need only permit the action necessary to restrain the offender. If more than minor disciplinary action is indicated, the offender would have to be shipped home for action. Restatement § 49, Comment on Subsection (3), p. 167.
U.N. Doc. A/CONF. 13/L. 52.
See Jessup, The Law of Territorial Waters and Maritime Jurisdiction 123–133 (1927).
Article 14, subd. 2, 4.
24 A.J.I.L. Supp. 234, 240 (1930).
See Restatement § 48, Comment h., p. 160.
Article 19.
“The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters.”
On vessels merely passing through, it will be recalled, the coastal state may take jurisdiction with regard to any act which occurred in the territorial waters, but in any case not within the listed exceptions, that jurisdiction was secondary to the flag state’s.
Article 19, subdivision 5.
See supra at p. 213.
E.g., only that the actor was a national of the coastal state.
Supra note 90.
Article 20.
See supra at p. 48.
Supra at p. 121.
See Restatement § 50, Comment on Subsection (2), pp. 172–173.
This is the conclusion of the reporters in the Restatement. Id. It should be noted that the suggestion is that the authority is unnecessary if the ship is passing through the territorial sea to or from internal waters since the authority could be exercised in any event while the ship is there. Of course, if the vessel is not in “innocent” passage, the cosatal state has jurisdiction for all purposes. Supra at note 135.
Inferentially, this is the view of the Restatement. See § 50, Comment d. on Subsection (1). p. 50.
See The Eleanor, Edw. 135 (1809) — “distress ... must be at all times a sufficient passport for human beings ....”; Restatement § 51, Comment a, p. 174.
See North Atlantic Fisheries Tribunal of Arbitration, Per. Ct. Arb., Scott, Hague Court Reports (1916) 146, 180.
Restatement §§ 51, 52, 53.
P. 194 (1927). Professor Jessup was treating the question of vessels in port as well as in the territorial sea.
See Restatement § 53.
See Dana’s Wheaton, Section 95, note 58; II Moore, Digest of International Law 292.
In this area as in others where the actions of governments come into conflict, there must be some internationally accepted standard to control state conduct. Otherwise, the international rule may be nullified by the domestic legal action of a particular state. Other areas similarly governed by an international standard are the treatment to which aliens are entitled and the credit required of one state to the conferral of nationality by another. See Cutler, “Treatment of Foreigners,” 27 A.J.I.L. 227 (1933), and the Nottebohm Case, 1955 I.C.J. 4.
The concurrent nature of the jurisdiction of the two states arose in the case of United States v. Flores, 289 U.S. 137, 155–157 (1933), although the court was not required to decide the question of priority. Note that a problem inherent in the federal system of the United States arises at this point. If a ship of a foreign state is within the internal waters of a state of the United States, all acts on board her would normally be subject to that state’s enforcement jurisdiction. Federal law would be controlling on state activity because of the Constitutional power to control maritime affairs, but absent Congressional action requiring the state to defer to the law of the ship, state authorities might not consider themselves free to defer to that law because of a rule of customary international law. However, if that rule of international law were contained in a treaty with the flag state, it would be binding automatically as being Constitutionally the supreme law of the land.
TIAS 2045, 1 USTIAS 247.
Art. X, 1 (a), 2, id. at 270–272. This general allocation of authority has been followed since the very early treaties of the United States. See Treaty of 1827 with Sweden and Norway, Art. XIII, 8 Stat. 346, 352.
See Article 22 (2) (b) of the 1951 Convention on Consular Officers with U.K., TIAS 2494, 3 USTIAS 3426, 3443.
Incidentally, this section conclusively adopts the standards of the local society as to what acts are of a type which are likely to disturb the peace of the port whether or not those standards are consistent with any international standard.
This problem will be dealt with in detail in the succeeding chapter.
See Restatement § 53, Reporters’ Note 2, p. 181.
Supra note 160.
Art. X, 1. (b), 1 USTIAS 272.
See Article 22 (1), of Treaty with United Kingdom, supra note 162, which contains a provision having similar import. A more detailed treatment of this problem will be undertaken in the succeeding chapter.
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Garbesi, G.C. (1968). General Jurisdictional Problems. In: Consular Authority Over Seamen from the United States Point of View. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-6267-0_4
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