Boston College Law Review

Volume 8

Article 1

Issue 4 Number 4

7-1-1967

The Exercise of Concurrent International Jurisdiction: "Move with Circumspection Appropriate"

John M. Raymond

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John M. Raymond, The Exercise of Concurrent International Jurisdiction: "Move with Circumspection Appropriate", 8 B.C.L. Rev. 673 (1967), http://lawdigitalcommons.bc.edu/bclr/vol8/iss4/1

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BOSTON COLLEGE

INDUSTRIAL AND COMMERCIAL

LAW REVIEW

THE EXERCISE OF CONCURRENT INTERNATIONAL JURISDICTION: "MOVE WITH CIRCUMSPECTION APPROPRIATE"

JOHN M. RAYMOND*

I. INTRODUCTION

Much has been written about the legal bases of jurisdiction, and there have been a number of articles criticizing the assertion of jurisdiction in particular cases or in types of cases.' This article will examine the infrequently treated underlying problem of how a State which claims jurisdiction should exercise that jurisdiction in a case where its exercise may conflict with the legitimate jurisdiction of another State.2

One must start with the basic principle that the territorial sovereign has jurisdiction in every case. "It is an essential attribute of the sovereignty of this realm, as of all sovereign independent States, that it should possess jurisdiction over all persons and things within its territorial limits and in all causes civil and criminal arising within these limits."3 This universally recognized principle of international

* A.B., Princeton University, 1916; LL.B., Harvard University, 1921; Member, United States Supreme Court, United States Courts of Appeals for the First and Fourth Circuits, and Massachusetts Bars; Legal Advisor to the U.S. Military Governor of Germany, 1948-1949; Deputy Legal Advisor, Department of State, 1956-1960; Former Chairman, Section on International and Comparative Law of the American Bar Association; Lecturer in International Law, University of Santa Clara School of Law.

1 E.g., Lenhoff, International Law and Rules on International Jurisdiction, 50 Cornell L.Q. 5 (1964). An extensive and scholarly discussion of the subject is found in a paper prepared by a distinguished British authority, Dr. F. A. Mann, in which a number of the decisions questioned herein are criticized by him as exceeding the jurisdiction of the United States under international law. Mann, The Doctrine Of Jurisdiction in International Law, 1 Recueil des Cours, Academic de Droit International 1 (1964).

2 See also Falk, Jurisdiction, Immunities and Act of State: Suggestions for a Modified Approach, in Essays on International Law (1961).

3 Compania Naviera Vascongado v. S.S. "Cristina" [1938] A.C. 485, 496-97. This principle has been described by Mr. Justice White as "the deeply imbedded postulate in international law of the territorial supremacy of the sovereign, a postulate that has

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law is the foundation upon which all jurisdictional doctrine must be built. Broadly speaking, conflicts arise because other legal principles permit a State legitimately to exercise jurisdiction in cases involving acts committed or situations existing in the territory of another State. Since that other State has jurisdiction as the territorial sovereign, two different States might claim jurisdiction over the same situation. Those jurisdictional principles which might lead to such a conflict and which are pertinent to this discussion are the following:

1.A State has jurisdiction when a constituent element of an offense took place within its territory. This controversial principle, erroneously referred to at times as the "effects doctrine," is frequently invoked by the United States?

2.A State may subject a national to its laws wherever the na-

tional himself may be. Mr. Chief Justice Hughes, speaking for the Supreme Court, clearly announced that an American citizen living abroad "continued to owe allegiance to the United States. By virtue of the obligations of citizenship, the United States retained its authority over him, and he was bound by its laws made applicable to him in a

foreign country." 5

3. A ship has the nationality of the State whose flag it flies .° Consequently, while a ship is on the high seas the flag State has exclusive jurisdiction over it and over those on board.' When the ship is within the territorial waters of a foreign sovereign, the flag State can exercise jurisdiction with respect to "all matters of discipline and all things done on board which affected only the vessel or those belonging to her"—sometimes referred to as the "internal affairs" of the ship— provided that these matters "did not involve the peace or dignity of the country, or the tranquillity of the port.'

4. Personal jurisdiction over a party may be employed to order the party to act or to cause action in the territory of another State.°

been characterized as the touchstone of private and public international law." Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 445-46 (1964) (White, J., dissenting).

4 [T]he courts of many countries ... which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially

its effects, have taken place there.

The S.S. "Lotus," P.C.I.J., ser. A, No. 10, at 23 (1927). Blackmer v. United States, 284 U.S. 421, 436 (1932).

6 Convention on the High Seas, April 29, 1958 [1962] 13 U.S.T. & 0.I.A. 2312, art. 6. 7 Ibid. See also Boczek, Flags of Convenience 157-58 (1962).

8 Wildenhus's Case, 120 U.S. 1, 12 (1887). In McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963), the Court referred to "the well-estab- lished rule of international law that the law of the flag state ordinarily governs the

internal affairs of a ship," citing Wildenhus's Case.

9 Other bases of jurisdiction, not pertinent to the present discussion, are the "protec-

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The last situation differs from the first three, because in this fourth situation a tribunal issues an ad hoc order to bring about certain action abroad, whereas in the other situations general legislation is made applicable to foreign acts. In all four situations, however, there may be a conflict with foreign law or policy.

How can these conflicts be avoided? Certain situations may be governed by a treaty giving one or the other State "primary" jurisdiction." Even in the absence of such a treaty, some foreign authorities take the position that a State may not exercise its jurisdiction in a way that would infringe upon the jurisdiction of the territorial sovereign, and there is some indication in cases that certain of our own courts share this view. This position would certainly minimize unfortunate conflicts and may well become accepted as the rule." On the other hand, the Second Restatement of Foreign Relations Law (hereinafter the Restatement) takes the view that jurisdiction is a fundamental attribute of sovereignty, that a State's sovereignty cannot be limited by dogma unless the principle is widely accepted and firmly established, and that there is no principle of law so accepted and established denying a State the exercise of its legitimate jurisdiction, even though such exercise may conflict with the jurisdiction of another sovereign." Accepting the Restatement concept as indicative of the present state of our law, the problem to which this article is addressed is what should be done in practice to alleviate or eliminate the conflicts and hardships that can arise as a result of the exercise of conflicting international jurisdiction.

The problem straddles two disciplines—political science and law—but it has been discussed far more often in legal circles. Quite frequently it arises in the area of antitrust. A number of other countries have antitrust laws and policies diametrically opposed to ours and permit, encourage, or even require that which this country prohibits.

tive principle," Rocha v. United States, 288 F.2d 545 (9th Cir.), cert. denied, 366 U.S. 948 (1961), and the "universality principle," Attorney-General v. Eichmann, Dist. Ct. Jerusalem, Criminal Case No. 40/61, Dec. 11, 1961, reported in Oliver, Judicial Decisions, 56 Am. J. Int'l L. 805, 808-11 (1962). Both of these principles are recognized and followed by the United States. In addition, some other States follow the "passive personality principle." See Ebb, Regulation and Protection of International Business 82-84 (1964). For examples of even more extreme doctrines, see Lenhoff, supra note I, at 7. These doctrines are not considered legitimate bases of jurisdiction by the United States.

10 E.g., NATO Status of Forces Agreement, June 19, 1951, [1953] 4 U.S.T. & O.I.A. 1792, art. VII, § 3. A solution involving congressional rather than treaty action was proposed by the Working Group on Antitrust Policy in International Trade of the Committee on International Trade and Investment, Section of International and Comparative Law, American Bar Association. 1963 Proceedings, Sect. Intl & Comp. L., ABA 70.

11 See Oppenheim, International Law § 128 (8th ed. Lauterpacht 1955); Mann, Anglo-American Conflict of International Jurisdiction, 13 Int'l & Comp. L.Q. 1460 (1964).

12 Restatement § 37, comment a (1965); id. § 39, comment b.

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Therefore, when the United States tries to extend its antitrust laws to render "illegal" acts which were committed abroad—often acts of foreign nationals committed in their own country—the seeds of a serious conflict may have been sown. This subject was the focal point of a widely discussed report given by a committee of the International Law Association at its Tokyo Conference in 1964. 13 The resolution which was finally adopted by the Association on this subject affirmed that "the actions of States in this field are subject to rules of international law." Significantly, however, it requested its committee not only to define the applicable rules of law but also to recommend "practical methods for eliminating, reducing or resolving conflicts between States arising out of the extraterritorial application of such legislation."" The International Law Association wisely stressed the practical in seeking a workable solution.

The American Law Institute, on the other hand, has stated its solution, or partial solution, as a principle of law, set forth in black letter dogma. Section 40 of the Restatement provides:

Where two states have jurisdiction to prescribe and enforce rules of law and the rules they may prescribe require inconsistent conduct upon the part of a person, each state is required by international law to consider, in good faith, moderating the exercise of its enforcement jurisdiction, in the light of such factors as

(a)vital national interests of each of the states,

(b)the extent and the nature of the hardship that inconsistent enforcement actions would impose upon the person,

(c)the extent to which the required conduct is to take place in the territory of the other state,

(d)the nationality of the person, and

(e)the extent to which enforcement by action of either state can reasonably be expected to achieve compli-

ance with the rule prescribed by that state. (Emphasis added.)

It is an underlying premise of this provision that both States have jurisdiction. Section 37 of the Restatement declares that "a state having jurisdiction . . . may exercise [it] . . . notwithstanding the fact that another state also has jurisdiction, except as otherwise

13 Report of Fifty-First Conference, Intl L. Ass'n 348 (Tokyo 1964).

14 Id. at xxix. The corresponding resolution, adopted in 1966, asked the committee

to propose "new techniques or procedures for the avoidance or resolution of such disputes." Advance Report by the American Branch of the Resolutions Adopted at the

Fifty-Second Conference, Int'l L. Ass'n 5 (Helsinki 1966).

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provided by the rules stated in § 40. . . ." This seems to mean that a State which has jurisdiction may exercise it only if it complies with the legal rules set forth in section 40; that if a State fails "to consider, in good faith, moderating the exercise of its enforcement jurisdiction, in the light" of the enumerated factors, it has violated section 40, and is, therefore, exercising its jurisdiction illegally. Since a right of the other State is thus infringed, the latter has an international claim which could be prosecuted through diplomatic or perhaps legal channels against the offending State. Such a result is, to say the least, extremely novel. No authority is cited to support this approach. The cases referred to in the Reporters' Notes on the section deal with considerations of comity, fairness, and practicality rather than law. It would seem more in accord with the precedents of international law and the realities of international relations and judicial procedures to say, not that "each state is required by international law" to give consideration to such matters, but that each State should consider them, in the interests of maintaining harmony in international relations, preventing unjust hardship on parties, and avoiding the futile and injudicious act of issuing unenforceable orders.

Regardless of whether section 40 should state law or reflect practical policy, its enumeration of the factors to be considered seems woefully deficient. Although it mentions the need to consider whether there will be hardship on a party and whether the desired result can be achieved, it fails to require consideration of the broad problem of whether there will be possible international complications arising from the infringement of another's sovereignty. Section 40 speaks only of two peripheral aspects of the problem—the nationality of the person, and the place where an act to be required in the future will take place. True, it allows consideration of whether the vital national interests of the State are involved, but this would be a very rare case indeed. Furthermore, section 40 deals only with the situation where two States impose conflicting requirements of law. The problem is just as real, however, when a statute or a judicial decision of State A declares illegal an act done in State B by a national of State B that was perfectly legal there and quite possibly encouraged by State B at the time it was done, even though it may not have been required by law. There is yet another facet that has been overlooked in the drafting of section 40. A state may have certain deeply rooted policies or customs, infringement of which can touch a sensitive nerve of the sovereign and cause perhaps a more severe reaction than infringement of its law.

The approach to be followed in this article involves an examination and analysis of situations that have arisen in the past, in order

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to see what considerations influenced the decision makers in exercising their discretion and, in some cases, what considerations should have influenced them. The techniques used to try to avoid conflict will be noted, and their effectiveness discussed. The philosophy and rationale of the decision, rather than the actual holdings, will be stressed. On the basis of such analysis, suggestions will be made as to the most appropriate and practical solutions to the problem.

In considering the situations presented below, two points should be borne in mind. First, the discussion will not involve choice-of-law problems or other matters within the realm of conflict of laws. In choice-of-law questions, the issue is whether the laws of one jurisdiction or those of another should be applied to govern the disposition of the case. In the cases to be discussed hereafter, the law to be applied, if any is to be applied, is American law, and the issue is whether, and how, to apply it. Second, except as otherwise made clear by the context, references to jurisdiction do not relate to "personal" jurisdiction over a party in order to adjudicate a dispute, but rather to "legislative" jurisdiction to apply our law or orders to a particular act or situation."

II. EXTRATERRITORIAL APPLICATION OF STATUTES

A. Military Base Cases'°

In successive terms, the Supreme Court adopted two contradictory approaches to the question of whether local legislation which limited the working hours of laborers should be applied to our military bases located abroad. The two approaches demonstrate the contrasting philosophies which have persisted in our courts to the present day, one of which tends to provoke international repercussions, while the other deliberately avoids them.

Fermi/yrs-Brown Co. v. Conner raised the question whether the requirement of the Fair Labor Standards Act, which provided for maximum hours of work in interstate and foreign commerce,' applied to labor on our military base at Bermuda. The act expressly applied to the commerce of "any . . . possession of the United States.' The narrow, question required the construction of the word "possession,"

15 Restatement § 7(2) states: "A state does not have jurisdiction to enforce a rule of law prescribed by it unless it had jurisdiction to prescribe the rule." It is in the sense of "jurisdiction to prescribe the rule" (i.e., "legislative jurisdiction") that the term "jurisdiction" is generally being used herein, as distinguished from jurisdiction over a party (i.e., "personal jurisdiction"). As to the latter, see von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121 (1966).

le See generally Green, Applicability of American Laws to Overseas Areas Controlled by the United States, 68 Harv. L. Rev. 781 (1955).

17 335 U.S. 377 (1948).

18 '52 Stat. 1063 (1938), as amended, 29 U.S.C. § 207 (1964).

79 52 Stat. 1061 (1938), as amended, 29 U.S.C. § 203(c) (1964).

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but the broader question was whether Congress meant to extend the standards of the act to labor employed on military bases abroad. The lease of the base in question had given the United States "all the rights, power and authority within the Leased Areas which are necessary for the establishment, use, operation and defence thereof, or appropriate for their control. . . 2' 2° At the time of the enactment of the Fair Labor Standards Act, Congress had not considered its application to our overseas military bases. In the absence of any discernible congressional intent in this matter, the Court reached the unnecessary and unfortunate conclusion that "it is difficult to formulate a boundary to [the act's] . . . coverage short of areas over which the power of Congress extends. . . ."2 '. It held that the Bermuda base should be

deemed a "possession" of the United States, and that the act applied there.22

Mr. Justice Jackson wrote a strong dissenting opinion in which three other Justices joined. In his dissent, he contended that the United States had not acquired, in Bermuda, "such responsibilities as would require us to import to those islands our laws, institutions and social conditions beyond the necessities of controlling a military base."'

The following year, the Court had a very similar case, but used a different and much wiser approach. Foley Bros. v. Filardo' raised the question whether the Eight Hour Law applied to work done on American military bases in Iraq and Iran pursuant to a contract of the United States. This law provided that "every contract to which the United States ... is a party . . . shall contain" provisions specifying an eight-hour working day." In holding that the Eight Hour Law did not apply to contracts for work in those areas, the Court used a very significant approach.

The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States . .. is a valid approach whereby unexpressed congressional intent may be ascertained. It is based on the assumption that Congress is primarily concerned with domestic conditions. We find nothing in the Act itself, as amended, nor in the legislative history, which would lead to the belief that

20 55 Stat. 1560 (1941).

23 335 U.S. at 389.

22 The case treated the statute as regulating the actions of our citizens as employers when abroad as well as here, even though those employed and controlled by the act might be aliens. Id. at 381.

23 Id. at 394.

24 336 U.S. 281 (1949).

25 Eight Hour Law, ch. 174, 37 Stat. 137 (1912).

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Congress entertained any intention other than the normal one in this case. . . .

... An intention so to regulate labor conditions which are the primary concern of a foreign country should not be attributed to Congress in the absence of a clearly expressed purpose."

The Court distinguished Vermilya-Brown, noting that it only involved construction of the term "possession." Mr. Justice Frankfurter wrote

a concurring opinion, joined by Mr. Justice Jackson, in which he said that Vermilya-Brown should be overruled. He noted that in an applica-

tion for rehearing of that case, the Secretary of the Army had pointed out that a number of countries had a scale of maximum wages with

which our minimum-wage scale might well conflict.'

In Vermilya-Brown, therefore, the Court had adopted an approach which, by importing American labor standards into a British Crown Colony where labor conditions and policies were entirely different, had created the danger of international complications. Foley Bros., on the other hand, took the view that congressional legislation is meant to apply only within the territorial jurisdiction of the United States unless a contrary intent is evident. In particular, as that case clearly indicates, courts should not impute to Congress an intent to extend our own social and economic legislation to control aliens in foreign territory.

B. Seamen's Acts Cases'

Although the Seamen's Acts cases are not new, they are presented here because they state principles which should have been followed later in other areas. They involve the question whether these statutes applied to foreign vessels in our ports, and whether they were intended to affect transactions which had occurred prior to the ship's

28 336 US. at 285-86. As the Secretary of State said only a year or two ago: "We have neither the authority nor the power—and I hope not the desire—to regulate the affairs of the rest of the world." Address by Dean Rusk, George Washington University, 52 Dep't State Bull. 1030, 1031 (1965).

27 A third case involving our military bases overseas arose the same year. United States v. Spelar, 338 U.S. 217 (1949), raised the question whether our Newfoundland base was a "foreign country" for the purposes of the Federal Tort Claims Act, ch. 753, 60 Stat. 842 (1946) (codified in scattered sections of 28 U.S.C.), which excluded from

its coverage claims arising in a "foreign country." The Supreme Court, while refusing to overrule Vennilya-Brown, distinguished it by saying that that case "postulates that

the executive agreement and leases effected no transfer of sovereignty," 338 U.S. at 221, and it held that the Newfoundland base was a foreign country. It thus confirmed that Vermilya-Brown had imported our labor legislation into a foreign country having a different sovereignty. Again Justices Jackson and Frankfurter wrote concurring opinions castigating the Court for its position in Vermilya-Brown.

28 On the subject of application of our laws to foreign ships and their personnel, see generally Raymond, The Application of Our Laws to Foreign Merchant Ships, 67 Dick. L. Rev. 289 (1963).

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entry there. As noted above,' it has been the practice, if not the law, for the territorial sovereign to refrain from exercising jurisdiction over such vessels when the matter related only to the internal affairs of the ship. "A merchant vessel . . . is deemed to be a part of the territory of [the flag State] . when in navigable waters within the territorial limits of another sovereignty,' even though the territorial sovereign may exercise its own jurisdiction if disturbances on the vessel affect the peace of the port.

The Dingley Act at one time contained the following provisions:

(a) It shall be ... unlawful in any case to pay any seaman wages ... in advance of the time when he has actually

shall apply as well to foreign vessels as to vessels of the

In Patterson v. Bark Eudora," this section was held applicable, be-

cause of its express language, to a British ship which was advancing payments to seamen in one of our ports. However, in Sandberg v. McDonald," when a seaman on a foreign vessel had received an

advance abroad, according to his contract, and tried to collect the amount again here, the Court significantly rejected the claim:

Conceding . . . that Congress might have legislated to annul such contracts as a condition upon which foreign vessels might enter the ports of the United States, it is to be noted, that such sweeping and important requirement is not found specifically made in the statute. Had Congress intended to make void such contracts and payments a few words would have stated that intention, not leaving such an important regulation to be gathered from implication.'

Thereafter Congress amended the statute to provide that advance payment of wages, "whether made within or without the United

States," should not absolve the vessel from full payment of the wages after they were earned." Nevertheless, in Jackson v. S.S. "Archi-

29 See text accompanying note 8 supra.

no United States v. Flores, 289 U.S. 137, 155-56 (1933).

31 Dingley Act § 10, 23 Stat. 55, 56 (1884), 46 U.S.C. § 599(a), (e) (1964). 32 190 U.S. 169 (1903).

33 248 U.S. 185 (1918).

at Id. at 195. For a case where such a condition was written into the statute, see

Strathearn S.S. Co. v. Dillon, 252 U.S. 348 (1920). See also Bickel, Strathearn S.S. Co. v. Dillon—An Unpublished Opinion by Mr. Justice Brandeis, 69 Marv. L. Rev. 1177, 1179

(1956).

35 41 Stat. 1006 (1920), as amended, 46 U.S.C. § 599(a) (1964).

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