INNOCENT PASSAGE

THROUGH TERRITORIAL
SEA

SECTION 3. INNOCENT PASSAGE IN THE TERRITORIAL SEA

SUBSECTION A.
RULES APPLICABLE TO ALL SHIPS

Article 17
Right of innocent passage
Subject to this Convention, ships of
all States, whether coastal or landlocked, enjoy the right of innocent
passage through the territorial sea.

Article 18
Meaning of passage

1. Passage means navigation through the territorial sea

for the purpose of:
(a) traversing that sea without entering internal waters or
calling at a roadstead or port facility outside internal
waters; or
(b) proceeding to or from internal waters or a call at such
roadstead or port facility.
2. Passage shall be continuous and expeditious.
However, passage includes stopping and anchoring, but
only in so far as the same are incidental to ordinary
navigation or are rendered necessary by force majeure
or distress or for the purpose of rendering assistance to
persons, ships or aircraft in danger or distress.
3

The Corfu Channel Case (United Kingdom of

Great Britain and Northern Ireland-Albania)
The Corfu Channel Case (United Kingdom of Great Britain and
Northern Ireland-Albania) arose from incidents that occurred on
October 22nd, 1946, in the Corfu Strait: two British destroyers struck
mines in Albanian waters and suffered damage, including serious loss
of life. The United Kingdom first seized the Security Council of the
United Nations which, by a Resolution of April 9 th, 1947, recommended
the two Governments to submit the dispute to the Court. The United
Kingdom accordingly submitted an Application which, after an
objection to its admissibility had been raised by Albania, was the
subject of a Judgment, dated March 25 th, 1948, in which the Court
declared that it possessed jurisdiction. On the same day the two
Parties concluded a Special Agreement asking the Court to give
judgment on the following questions.
Is Albania responsible for the explosions?
In its Judgment the Court declared on the first question, by 11 votes
against 5, that Albania was responsible.
4

ONE OF THE RECOVERED

MINES

The facts are as follows

On October 22nd, 1946, two British cruisers and
two destroyers, coming from the south, entered the
North Corfu Strait. The channel they were following,
which was in Albanian waters, was regarded as
safe: it had been swept in 1944 and check-swept in
1945. One of the destroyers, the Saumarez, when
off Saranda, struck a mine and was gravely
damaged. The other destroyer, the Volage, was
sent to her assistance and, while towing her, struck
another mine and was also seriously damaged.
Forty-five British officers and sailors lost their lives,
and forty-two others were wounded.
8

The obligations incumbent upon the Albanian

authorities consisted in notifying, for the benefit of
shipping in general, the existence of a minefield in
Albanian territorial waters and in warning the
approaching British warships of the imminent
danger to which the minefield exposed them. Such
obligations are based, not on the Hague
Convention of 1907, No. VTII, which is applicable in
time of war, but on certain general and wellrecognized
principles,
namely:
elementary
considerations of humanity, even more exacting in
peace than in war ; the principle of the freedom of
maritime communication ; and every State's
obligation not to allow knowingly its territory to be
used for acts contrary to the rights of other States.
9

 The International Court of Justice

ruling in the case established a
precedent regarding whether a
violation of territorial sovereignty is
justified intervention. The United
Kingdom claimed it was justified in
entering Albanian territorial waters
on 12 and 13 November 1946 to
secure evidence needed to support
its case. The ICJ responded,
10

"The Court cannot accept such a line of defence. The Court can
only regard the alleged right of intervention as the manifestation of a
policy of force, such as has, in the past, given rise to most serious
abuses and such as cannot, whatever be the present defects in
international organisation, find a place in international law.
Intervention is perhaps still less admissible in the particular form it
would take here; for, from the nature of things, it would be reserved
for the most powerful States, and might easily lead to perverting the
administration of inter-national justice itself. The United Kingdom
Agent, in his speech in reply, has further classified "Operation Retail"
among methods of self-protection or self-help. The Court cannot
accept this defence either. Between independent States, respect for
territorial sovereignty is an essential foundation of international
relations. The Court recognises that the Albanian Government's
complete failure to carry out its duties after the explosions, and the
dilatory nature of its diplomatic notes, are extenuating
circumstances for the action of the United Kingdom Government. But
to ensure respect for international law, of which it is the organ, the
Court must declare that the action of the British Navy constituted a
violation of Albanian sovereignty."
11

Article 19
Meaning of innocent passage
1. Passage is innocent so long as it is
not prejudicial to the peace, good
order or security of the coastal
State. Such passage shall take place
in conformity with this Convention
and with other rules of international
law.

12

2. Passage of a foreign ship shall be considered to be

prejudicial to the peace, good order or security of the
coastal State if in the territorial sea it engages in any
of the following activities:
(a) any threat or use of force against the sovereignty,
territorial integrity or political independence of the
coastal State, or in any other manner in violation of
the principles of international law embodied in the
Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the
prejudice of the defence or security of the coastal
State;
(d) any act of propaganda aimed at affecting the
defence or security of the coastal State;
13

(e) the launching, landing or taking on board of any

aircraft;
(f) the launching, landing or taking on board of any military
device;
(g) the loading or unloading of any commodity, currency or
person contrary to the customs, fiscal, immigration or
sanitary laws and regulations of the coastal State;
(h) any act of wilful and serious pollution contrary to this
Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of
communication or any other facilities or installations of
the coastal State;
(l) any other activity not having a direct bearing on
passage.
14

The FON program

The FON program was designed to
challenge any nation's attempt to extend
their domain of the sea beyond that
afforded them by international law.
The United States Freedom of Navigation
program challenges territorial claims on
the world's oceans and airspace that are
considered excessive by the United
States, using diplomatic protests and/or
by challenge.
15

Some coastal states make claims that

the United States see as inconsistent
with international law, which, if
unchallenged, would limit navigational
freedoms of the vessels and aircraft of
the U.S. and other countries.
On several occasions, U.S. armed
forces have conducted operations in
areas claimed by other countries,
such as naval operations in the Gulf of
Sidra in the 1980s.
16

 Throughout the years U.S. forces have been

performing "Freedom of Navigation
operations in the strait of Gibraltar, Strait of
Hormuz, Straits of Malaca, and the
Indonesian Archipelago, the Black Sea under
the name 'Silver Fox.
One of the notable operations conducted as
part of Freedom of Navigation program was
performed by USS YORKTOWN during which,
on February 12, 1988 she was "nudged" by
Soviet frigate Bezzavetny in an attempt to
divert the vessel out of Soviet-claimed
territorial waters.
17

Gulf of Sidra Incidents 1981 & 1989

(Libya- US)
In 1973, Libya claimed the Gulf of Sidra as a
closed bay and part of its territorial waters.
Libya claimed much of the Gulf of Sidra as
its territorial waters and subsequently
declared a "line of death", the crossing of
which would invite a military response.
This prompted the United States to conduct
Freedom of Navigation (FON) operations in
the area since the claim did not meet the
criteria established by International Law
18

Gulf of Sidra

19

Black Sea Bumping Incident and

Freedom of Navigation 1988

20

1989
USA -USSR: JOINT STATEMENT WITH ATTACHED UNIFORM
INTERPRETATION OF RULES OF INTERNATIONAL LAW
GOVERNING INNOCENT PASSAGE
Since 1986, representatives of the United States of America and the
Union of Soviet Socialist Republics have been conducting friendly
and constructive discussions of certain international legal aspects
of traditional uses of the oceans, in particular navigation.
The Governments are guided by the provisions of the 1982 United
Nations Convention on the Law of the Sea, which, with respect to
traditional uses of the oceans, generally constitute international
law and practice and balance fairly the interests of all States. They
recognize the need to encourage all States to harmonize their
internal laws, regulations and practices , with those provisions.
The Governments consider it useful to issue the attached Uniform
Interpretation of the Rules of International Law Governing
Innocent Passage. Both Governments have agreed to take the
necessary steps to conform their internal laws, regulations and
practices with this understanding of the rules.
21

1. The relevant rules of international law governing

innocent passage of ships in the territorial sea are
stated in the 1982 United Nations Convention on
the Law of the Sea (Convention of 1982),
particularly in Part II, Section 3.
2. All ships, including warships, regardless of cargo,
armament or means of propulsion, enjoy the right
of innocent passage through the territorial sea in
accordance with international law, for which
neither prior notification nor authorization is
required.
22

3.Article 19 of the Convention of 1982 sets out in

paragraph 2 an exhaustive list of activities that
would render passage not innocent. A ship passing
through the territorial sea that does not engage in
any of those activities is in innocent passage.
4. A coastal State which questions whether the
particular passage of a ship through its territorial
sea is innocent shall inform the ship of the reason
why it questions the innocence of the passage, and
provide the ship an opportunity to clarify its
intentions or correct its conduct in a reasonably
short period of time.
23

5. Ships exercising the right of innocent passage shall

comply with all laws and regulations of the coastal
State adopted in conformity with relevant rules of
international law as reflected in Articles 21, 22, 23
and 25 of the Convention of 1982. These include the
laws and regulations requiring ships exercising the
right of innocent passage through its territorial sea to
use such sea lanes and traffic separation schemes as
it may prescribe where needed to protect safety of
navigation. In areas where no such sea lanes or traffic
separation schemes have been prescribed, ships
nevertheless enjoy the right of innocent passage.
24

6. Such laws and regulations of the coastal State

may not have the practical effect of denying or
impairing the exercise of the right of innocent
passage as set forth in Article 24 of the Convention
of 1982.
7. If a warship engages in conduct which violates
such laws or regulations or renders its passage not
innocent and does not take corrective action upon
request, the coastal State may require it to leave
the territorial sea, as set forth in Article 30 of the
Convention of 1982. In such case the warship shall
do so immediately.
25

8. Without prejudice to the exercise of

rights of coastal and flag States, all
differences
which
may
arise
regarding a particular case of
passage of ships through the
territorial sea shall be settled
through diplomatic channels or other
agreed means.
26

Article 20
Submarines and other underwater vehicles

In the territorial sea, submarines

and other underwater vehicles are
required to navigate on the surface
and to show their flag.

27

Article 21

Laws and regulations of the Coastal State

relating to innocent passage
1. The coastal State may adopt laws and
regulations, in conformity with the
provisions of this Convention and other
rules of international law, relating to
innocent passage through the territorial
sea, in respect of all or any of the
following:
28

(a) the safety of navigation and the regulation of

maritime traffic;
(b) the protection of navigational aids and facilities and
other facilities or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws
and regulations of the coastal State;
(f) the preservation of the environment of the coastal
State and the prevention, reduction and control of
pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs,
fiscal, immigration or sanitary laws and regulations of
the coastal State.
29

2. Such laws and regulations shall not apply to

the design, construction, manning or
equipment of foreign ships unless they are
giving
effect
to
generally
accepted
international rules or standards.
3. The coastal State shall give due publicity to
all such laws and regulations.
4. Foreign ships exercising the right of
innocent passage through the territorial sea
shall comply with all such laws and
regulations and all generally accepted
international regulations relating to the
prevention of collisions at sea.
30

Article 22
Sea lanes and traffic separation schemes in the territorial sea

1. The coastal State may, where necessary having

regard to the safety of navigation, require foreign
ships exercising the right of innocent passage
through its territorial sea to use such sea lanes and
traffic separation schemes as it may designate or
prescribe for the regulation of the passage of
ships.
2. In particular, tankers, nuclear-powered ships and
ships carrying nuclear or other inherently
dangerous or noxious substances or materials may
be required to confine their passage to such sea
lanes.
31

3. In the designation of sea lanes and the

prescription of traffic separation schemes under
this article, the coastal State shall take into
account:
(a) the recommendations of the competent
international organization;
(b) any channels customarily used for international
navigation;
(c) the special characteristics of particular ships
and channels; and
(d) the density of traffic.
4. The coastal State shall clearly indicate such sea
lanes and traffic separation schemes on charts to
which due publicity shall be given.
32

Article 23

Foreign nuclear-powered ships and ships

carrying nuclear or other inherently
dangerous or noxious substances
Foreign nuclear-powered ships and ships
carrying nuclear or other inherently dangerous
or noxious substances shall, when exercising
the right of innocent passage through the
territorial sea, carry documents and observe
special precautionary measures established
for such ships by international agreements.
33

Article 24
Duties of the coastal State

The coastal State shall not hamper

the innocent passage of foreign ships
through the territorial sea except in
accordance with this Convention. In
particular, in the application of this
Convention or of any laws or
regulations adopted in conformity
with this Convention, the coastal
State shall not:

1.

34

(a) impose requirements on foreign ships which

have the practical effect of denying or
impairing the right of innocent passage; or
(b) discriminate in form or in fact against the
ships of any State or against ships carrying
cargoes to, from or on behalf of any State.
2. The coastal State shall give appropriate
publicity to any danger to navigation, of which
it has knowledge, within its territorial sea.
35

Article 25
Rights of protection of the coastal State

1. The coastal State may take the necessary

steps in its territorial sea to
prevent
passage which is not innocent.
2. In the case of ships proceeding to internal
waters or a call at a port facility outside
internal waters, the coastal State also has
the right to take the necessary steps to
prevent any breach of the conditions to
which admission of those ships to internal
waters or such a call is subject.
36

3. The coastal State may, without

discrimination in form or in fact
among
foreign
ships,
suspend
temporarily in specified areas of its
territorial sea the innocent passage
of foreign ships if such suspension is
essential for the protection of its
security,
including
weapons
exercises. Such suspension shall take
effect only after having been duly
published.
37

Article 26
Charges which may be levied upon foreign ships

1. No charge may be levied upon

foreign ships by reason only of their
passage through the territorial sea.
2. Charges may be levied upon a
foreign ship passing through the
territorial sea as payment only for
specific services rendered

38

SUBSECTION B. RULES APPLICABLE TO

MERCHANT SHIPS AND GOVERNMENT SHIPS
OPERATED FOR COMMERCIAL PURPOSES
Article 27
Criminal jurisdiction on board a foreign ship
1. The criminal jurisdiction of the coastal State should not be
exercised on board a foreign ship passing through the
territorial sea to arrest any person or to conduct any
investigation in connection with any crime committed on board
the ship during its passage, save only in the following cases:
(a) if the consequences of the crime extend to the coastal State;
(b) if the crime is of a kind to disturb the peace of the country or
the good order of the territorial sea;
(c) if the assistance of the local authorities has been requested by
the master of the ship or by a diplomatic agent or consular
officer of the flag State; or
(d) if such measures are necessary for the suppression of illicit
traffic in narcotic drugs or psychotropic substances.
39

2. 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.
3. In the cases provided for in paragraphs 1 and 2,
the coastal State shall, if the master so requests,
notify a diplomatic agent or consular officer of
the flag State before taking any steps, and shall
facilitate contact between such agent or officer
and the ship's crew. In cases of emergency this
notification may be communicated while the
measures are being taken.
40

4. In considering whether or in what manner an

arrest should be made, the local authorities shall
have due regard to the interests of navigation.
5. Except as provided in Part XII or with respect to
violations of laws and regulations adopted in
accordance with Part V, the coastal State may
not take any steps on board a foreign ship
passing through the territorial sea to arrest any
person or to conduct any investigation in
connection with any crime committed before the
ship entered the territorial sea, if the ship,
proceeding from a foreign port, is only passing
through the territorial sea without entering
internal waters.
41

SS Lotus Case

(France vs Turkey);
Year of the decision: 1927
Court: PCIJ.
A collision occurred on the high seas
between a French vessel and a Turkish
vessel. Victims were Turkish nationals
and the alleged offender was French.
Could Turkeyexercise its jurisdiction
over
the
French
national
under
international law?
42

Facts of the case:

A collision occurred on the high seas between a French
vessel Lotus and a Turkish vessel Boz-Kourt. The BozKourtsank and killed eight Turkish nationals on board the
Turkish vessel. The 10 survivors of the Boz-Kourt(including
its captain) were takento Turkey on board the Lotus.
In Turkey, the officer on watch of the Lotus (Demons), and the
captain of the Turkish ship were chargedwith manslaughter.
Demons, a French national, was sentencedto 80 days of
imprisonment and a fine. The French government protested,
demanding the release of Demons or the transfer of his
case to the French Courts.
Turkey and France agreed to refer this dispute on the
jurisdiction to the Permanent Court of International Justice
(PCIJ).
43

Questions before the Court:

Did Turkey violate international law
when
Turkish
courts
exercised
jurisdiction over a crime committed
by a French national, outside Turkey?
If
yes,
should
Turkey
pay
compensation to France?
The Courts Decision:
Turkey,
by
instituting
criminal
proceedings against Demons, did not
violate international law.
44

 Criminal
Jurisdiction:
Territorial
Jurisdiction
France alleged thatthe flag State of a vessel
would have exclusive jurisdiction over
offences committed on board the ship in high
seas. The PCIJ disagreed. It held that France,
as the flag State, did not enjoy exclusive
territorial jurisdiction in the high seas in
respect of a collision witha vessel carrying
the flag of another State (paras 71 84). The
Court held that Turkey and France both have
jurisdiction in respect of the whole incident:
i.e. there is concurrent jurisdiction.
45

 The PCIJheld that a ship in the high seas is

assimilatedto the territory of the flag State. This
State may exercise its jurisdiction over the ship,
in the same way as it exercises its jurisdiction
over its land, to the exclusion ofall other States.
In this case, the Court equated the Turkish
vessel to Turkish territory. In this case, the
PCIJheld that the offence produced its
effects on the Turkish vessel and consequentlyin
a place assimilated to Turkish territory in which
the application of Turkish criminal law cannot be
challenged, even in regard to offences
committed there by foreigners. Turkey had
jurisdiction over this case.
46

 If, therefore, a guilty act committed on the

high seas produces its effects on a vessel
flying another flag or in foreign territory, the
same principles must beapplied as if the
territories of two different States were
concerned, and the conclusion must
therefore be drawn that there is no rule of
international law prohibiting the State to
which the ship on which the effects of the
offence have taken place belongs, from
regardingthe offence as having been
committed in its territory and prosecuting,
accordingly, the delinquent.
47

 The offence for which Lieutenant Demons

appears to have been prosecutedwas an
act of negligence or imprudence having
its origin on board the Lotus, whilst its
effects made themselves felt on board the
Boz-Kourt. These two elements are, legally,
entirely inseparable, so much so that their
separation renders the offence nonexistent It is only natural that each should
beable to exercise jurisdiction and to do so
in respect of the incident as a whole. It is
therefore a case of concurrent jurisdiction.
48

 The first principle of the Lotus case said that

jurisdiction is territorial:
A State cannot exercise its jurisdiction outside its
territory unless an international treaty or
customary law permits itto do so. This is what we
called the first Lotus Principle.
Now the first and foremostrestriction imposed by
international law upon a State is that failing the
existence ofa permissive rule to the contrary it
may not exercise its power in any form in the
territory of another State. In this sense jurisdiction is
certainly territorial; it cannot be exercised by a State
outside its territory except by virtue of a permissive
rule derived from international custom or from a
convention. (para 45)
49

 The second principle of the Lotus

case:
Within its territory, a State may
exercise its jurisdiction, on any
matter, even if there is no specific
rule of international law permitting it
to do so. In these instances, States
have a wide measure of discretion,
which is only limited by the
prohibitive rules of international law.
50

1958, CONVENTION ON THE HIGH SEAS

Article 11
1. In the event of a collision or of any other incident of navigation
concerning a ship on the high seas, involving the penal or
disciplinary responsibility of the master or of any other person
in the service of the ship, no penal or disciplinary proceedings
may be instituted against such persons except before the
judicial or administrative authorities either of the flag State or
of the State of which such person is a national.
2. In disciplinary matters, the State which has issued a master's
certificate or a certificate of competence or licence shall alone
be competent, after due legal process, to pronounce the
withdrawal of such certificates, even if the holder is not a
national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of
investigation, shall be ordered by any authorities other than
those of the flag State.
51

THE WILDENHUS CASE

Volume 120 of the U.S. Supreme Court
Reports, 1887, at page 1
While a Belgian vessel was docked in the
port of Jersey City, New Jersey [in 1886], a
Belgian crew member [fought and] killed
another Belgian crew member on board
the vessel. [The Jersey City police boarded
the steamer and arrested Wildenhus. They
then committed him to jail in New Jersey,
pending trial for murder.]
52

 The Belgian consul sought a [writ of] habeas corpus to

obtain the release of the Belgian national. The consul
relied upon a March 9, 1880 treaty between the United
States and Belgium. Article IX provided that consular
officials "shall alone take cognizance of all differences
which may arise, either at sea or in port, between the
captains, officers, and crews, without exception .... The
local authorities shall not interfere, except when the
disorder that has arisen is of such a nature as to
disturb the tranquility and public order on shore, or in
the port, or when a person of the country or not
belonging to the crew, shall be concerned therein."
The U.S. Circuit Court refused to deliver the prisoners
to the consul and remanded them to jail. This case is
an appeal to the U.S. Supreme Court.

53

 1. In this case, which state has rightful

jurisdiction? The United States or Belgium?
2. In this case, on what legal basis is jurisdiction
to be determined?
3. How is the language of the U.S.-Belgian Treaty
to be interpreted? What is specifically meant by a
"disorder" that "disturb[s] the tranquility and
public order on shore, or in port?"
4. In cases involving disturbances of the
tranquility of the port, how is jurisdiction to be
determined?
5. What "disorders" so "disturb the tranquility
and public order on shore, or in port" as to give
the local state jurisdiction?
54

JUDGMENT
"The judgment of the [U.S.] Circuit
Court [was] affirmed." The Supreme
Court ruled that the Belgian crew
members would remain in American
custody for trial. The consul's petition
for habeas corpus was denied.

55

 The United States has jurisdiction in this case. B. U.S. jurisdiction

is based on the "tranquility of the port" principle.
1. This general principle of international law is based on "comity."
2. The principle provides that "all matters of discipline and all
things done on board which affected only the vessel or those
belonging to her, and did not involve the peace or dignity of the
country, or the tranquility of the port, should be left by the local
government to be deal with by the authorities of the nation to
which the vessel belonged. But if crimes are committed on board
of a character to disturb the peace and tranquility of the country
to which the vessel has been brought, the offenders have never by
comity or usage been entitled to any exception from the operation
of the local laws for their punishment, if the local tribunals see fit
to assert their authority."
3. Treaties have been entered into which codify the "tranquility of
the port" principle in order to "prevent the inconvenience that
might arise from attempts to exercise conflicting jurisdictions."

56

 "It is not alone the publicity of

the act, or the clamor which
attends it, that affixes the
nature of the crime, but the act
itself. If it is of a character to
awaken public interest when it
becomes known, it is a 'disorder'
the nature of which is to affect
the community at large, and
consequently to invoke the
power of the local government."
57

"Parlement Belge" (1880)

It involved a collision between this ship Parlement Belge and a British
tug, and the claim for damages brought by the latter vessel before the
Probate, Divorce and Admiralty division of the High Court.
The Parlement Belge belonged to the King of Belgians and was used
as a cargo boat. During the case, the Attorney General intervened to
state that the court had no jurisdiction over the vessel as it was the
property of the Belgian Monarch, and that further, by a political
agreement of 1876 between Britain and Belgium, the same immunity
from foreign legal process as applied to warships should also apply to
this packet boat.
In discussing the case, the court concluded that only public ships of
war were entitled to such immunity and that such immunity could not
be extended to other categories by a treaty without parliamentary
consent. Indeed, it was stated that this would be a use of the treatymaking prerogative of the Crownwithout precedent, and in principle
contrary to the law of the Constitution.
58

The Schooner Exchange v. McFaddon

1812
Two Americans ( P) laid claims of ownership and entitlements
to the schooner Exchange.
Two Americans (P) claimed they owned and were entitled to
the schooner Exchange they seized on the high seas. The
claim which the United States Attorney (D) put forward for
the prevention of the ship leaving was that, the ship which
was owned by the Emperor of France had been forced to
enter the port of Philadelphia due to bad weather conditions.
At this point in time, the U.S and France were on friendly
terms. The United States (D) request for the dismissal of
ownership and release of the ship was granted by the district
court. However, this judgment was reversed by the circuit
court and this did not prevent the United States (D) from
appealing to the U.S. Supreme Court.
59

Issue. Are National ships of war viewed as been

exempted by the consent of the power of the
friendly jurisdiction whose port the ship enters?
Chief Justice John Marshall (US Supreme Court) held Yes.
National ships of war are viewed as been exempted by
consent of the power of the friendly jurisdiction whose
port the ship enters. A nations jurisdiction within its
sovereign territory is exclusive and absolute.

The Exchange been a public armed ship, currently under

the control and supervision of a foreign power, who at
the time of the ships entry into the United States
territory, was at peace with the United States, must be
viewed as having entered the states territory under an
implied promise that while in such environment, would
be exempt from the jurisdiction of the country.
60

Chung Chi Cheung Vs. The King

AIR 1939 PC 69
On 11th January 1937 the accused shot and killed the captain.
He then went up the ladder to the bridge and shot at and
wounded the acting chief officer, and then went below and
shot and wounded himself. The acting chief officer as soon as
he was wounded directed the boatswain to proceed to
Hongkong at full speed and hail the police launch. He wanted,
he said, help to arrest the accused from the Hongkong police.
Within a couple of hours the launch of the Hongkong water
police came alongside in answer to the cruiser's signal. The
police took the wounded officer and the accused to hospital.
They took possession of the two revolvers with which the
accused had armed himself, of the spent revolver bullets and
expended shells, and of some unexpended cartridges.
61

 On 25th February, extradition proceedings

were commenced against the accused on the
requisition of the chairman of the Provincial
Government of Kwangtung alleging murder
and attempted murder on board the Chinese
Customs cruiser "within the jurisdiction of
China while the said cruiser was
approximately one mile off Futaumun (British
waters)."This appears to be an allegation that
the vessel had not at the time reached British
territorial waters. The fact that the crime was
in reality committed within British waters is
not now in dispute.
62

 After many adjournments the Magistrate

decided, on evidence called for the defence,
that the accused was a British national and that
the proceedings therefore failed. The accused
was at once re-arrested and charged with
murder "in the waters of this colony"and duly
committed. At the hearing before the
Magistrate and at the trial the acting chief
officer and three of the crew of the Chinese
cruiser were called as witnesses for the
prosecution. Police witnesses produced and
gave evidence as to the revolvers, cartridge
cases and bullets. The accused was convicted
and sentenced to death.
63

 The appellant was convicted of the murder of Douglas

Lorne Campbell and was sentenced to death. The
murder was committed on board the Chinese Maritime
Customs cruiser "Cheung Keng"while that vessel was
in Hongkong territorial waters. Both the murdered man
and the appellant were in the service of the Chinese
Government as members of the officers and crew of
the cruiser. The former was captain: the appellant was
cabin boy. Both were British nationals. At the trial, the
point was taken that as the murder took place on an
armed public vessel of the foreign Government, the
British Court had no jurisdiction in the matter. The
contention was overruled by the Chief Justice at the
trial, and on appeal his decision was upheld by the Full
Court over which he presided.
64

 Applying these considerations to the present case, it appears

to their Lordships as plain as possible that the Chinese
Government once the extradition proceedings were out of
the way, consented to the British Court exercising
jurisdiction. It is not only that with full knowledge of the
proceedings they made no further claim, but at two different
dates they permitted four members of their service to give
evidence before the British Court in aid of the prosecution.
That they had originally called in the police might not be
material if on consideration they decided to claim jurisdiction
themselves. But the circumstances, stated together with the
fact that the material instruments of conviction, the revolver
bullets, etc. were left without demur in the hands of the
Hongkong Police make it plain that the British Court acted
with the full consent of the Chinese Government.
It therefore follows that there was no valid objection to the
jurisdiction and the appeal fails.
65