Page 81 - Law of Peace, Volume ,

Pam 27-161-1

CONVENTION ON THE HIGH SEAS state's rights under international law. 169
Geneva, April 28, 1958 4-17. Exercise of Jurisdiction in Particular Situations.
I 13 U.S.T. 2312, T.I.A.S. 5200,450 U.N.T.S. 82 a. Foreign vessels in internal waters; resolution of con-
. Article 11
flicts of jurisdiction.
1. In the event of a collision or of any other incident of navigation
WILDENHUS' CASE
concerning a ship on the high seas, involving the penal or disciplinary
Supreme Court of the United States, 1887
responsibility of the master or of any other person in the service of the 120U.S. 1,7S.Ct.385,3OL.Ed.565
ship, no penal or disciplinary proceedings may be instituted against such [Wddenhus, a Belgian national, killed another Belgian national below
persons except before the judicial or administrative authorities either of the deck of the Belgian vessel of which they were both crew members,
the flag State or of the State of which such person is a national. which was at the time of the slaying moored to a dock in Jersey City.
2. In disciplinary matters, the State which has issued a master's cer- The local police authorities arrested Widenhus, charging him with the
killing, and held two other crew members as witnesses. The Belgian
tificate or a certificate of competence or license shall alone be compe-
consul applied for a writ of habeas corpus, citing Article 11 of the treaty
tent, after due legal process, to pronounce the withdrawal of such certifi- of March 9, 1880 (21 Stat. 776) between Belgium and the United
. cates, even if the holder is not a national of the State which issued them. States, which provided: "The respective consuls-general, consuls, vice-
3. No arrest or detention of the ship, even as a measure of investiga- consuls, and consular agents shall have exclusive charge of the internal
order of the merchant vessels of their nation, and shall alone take cog-
tion, shall be ordered by any authorities other than those of the flag
nizance of all differences which may arise, either at sea or in port, be-
State.
tween the captains, officers and crews, without exception, particularly
with reference to the adjustment of wages and the execution of con-
RESTATEMENT, SECOND,
FOREIGN RELATIONS LAW OF THE UNITED STATES (1965) tracts. The local authorities shall not interfere except when the disorder
that has arisen is of such a nature as to disturb tranquillity and public
4 31. A state has jurisdiction to prescribe rules attaching legal conse- order on shore, or in the port, or when a person of the country or not
quences to belonging to the crew shall be concerned therein." The Circuit Court
refused to order the release of the prisoners, and the consul appealed to
(a) conduct of any person aboard a vessel or aircraft having its na-
the Supreme Court.]
tionality while the vessel is under the control of its commanding offcer,
WAITE,C.J.. ..By sections 751 and 753 of the Revised Statutes,
and the courts of the United States have power to issue writs of habeas cor-
(b) conduct of any person who is a member of its national military pus which shall extend to prisoners in jail when they are in "custody in
se~ces. violation of the constitution or a law or treaty of the United States," and
the question we have to consider is whether these prisoners are held in
5 32. (1) A state having jurisdiction to prescribe a rule of law has juris-
violation of the provisions of the existing treaty between the United
diction to enforce the rule outside of its territory:
States and Belgium.
(a) aboard a vessel or aircraft having its nationality while under the It is part of the law of civilized nations that, when a merchant vessel of
control of its commanding officer, one country enters the ports of another for the purposes of trade, it sub-
(b) against a member of its military service. jects itself to the law of the place to which it goes, unless, by treaty or
(2) The exercise of the jurisdiction to enforce a rule of law stated in otherwise, the two countries have come to some different understand-
this Section is subject to the rights of the territorial state as indicated in Q ing or agreement; for, as was said by Chief Justice Marshall in The Ex-
change, 7 Cranch. 144: "It would be obviously inconvenient and dan-
44.
gerous to society, and would subject the laws to-continual infraction, and
5 44.(1) A state may not exercise in the territory of another state the ju- the government to degradation, if such . . . merchants did not owe tem-
risdiction to enforce rules of law that it has under the rule stated in Q 32, porary and local allegiance, and were not amenable to the jurisdiction of
except to the extent that
169. For discussion regarding the extent to which a state may exer-
(a) the exercise of the right of innocent passage or entry in distress
cise aboard a vessel having its nationality the enforcement jurisdiction
into the territory of the other state permits it to exercise such jurisdic- recognized by the Restatement, 54 32,44, when the vessel is subject to
tion on board a vessel under the rules stated in QQ 46-48; another skte's territorial jurisdiction, see Reslatement Q 46(3) (permit-
(b) consent from the other state to the visit of one of its vessels or ting "detention or such other interim enforcement measures as the in-
consent to the presence of its military force impliedly permits the exer- ternal management or discipline of the vessel requires" when the vessel
is in innocent passage through territorial waters of another state), and 5
cise of such jurisdiction with respect to such vessel or force under the
50(a) (permitting enforcement measures to the "extent necessary to
rules stated in 85 49 and 50 and QQ 51-62;
detain on board the vessel a person with respect to whom the coastal
(c) the other state otherwise permits its exercise of such jurisdic- state does not exercise its jurisdiction" when the vessel is in internal
tion. waters of another state). See also Arts. 19 and 20 of the Geneva Con-
(2) A state that exercises its enforcement jurisdiction when, under vention on the TerrirLiial Sea and the Contiguous Zone. Compare the
extent of United States jurisdiction asserted in 18 U.S.C.A. 5 7(1), pro-
the rules stated in Subsection (I), it may not do so, violates the other
viding that the "special maritime and territorial jurisdiction of the
United States" includes:
168. The effect of Article 11 is to overrule in part the holding of the The high seas, any other waters within the admiralty and
Permanent Court of International Justice in the "Lotus" Case, supra, maritime jurisdiction of the United States and out of the jurisdic-
note 129. To some extent, this result has already been achieved as tion of any particular State, and any vessel belonging in whole or in
among the parties to the International Convention for the Unification of part to the United States or any citizen thereof, or to any corpora-
Certain Rules Relating to Penal Jurisdiction in Matters of Collisions and tion created by or under the laws of the United States, or of any
.Other Incidents of Navigation, signed at Brussels on May 10, 1952. State, Territory, District or possession thereof, when such vessel is
[I9601 Gr.Brit.T.S. No. 47, at 14, Cmnd. 1128 (entered into force Nov. within the admiralty and maritime jurisdiction of the United States
20, 1955). and out of the jurisdiction of any particular State.