Public international and municipal law

Customary international law in municipal law

Chung Chi Cheung v. R

[1939] AC 160 (Privy Council)
A criminal offence committed by a member of the crew on board and internal to
a foreign armed public ship in the territorial waters of a coastal state is an
offence committed in and subject to the jurisdiction of the coastal state.
However, under customary international law recognised in the municipal law of
the coastal state, the offender may be entitled to immunity from jurisdiction
unless immunity is waived by the state to which the ship belongs.
Background
Chung Chi Cheung, the appellant in the Privy Council, was a member of the crew
of a foreign armed public ship, the Chinese Maritime Customs cruiser, Cheung
Keng. In January 1937, while the ship was in the territorial waters of Hong Kong,
a British crown colony, the appellant shot and killed the captain of the ship. In
respect of this offence, the appellant was convicted of murder by the Supreme
Court of Hong Kong after the Chinese government waived any immunity from
jurisdiction to which the appellant may have been entitled.
On appeal to the Privy Council, the appellant contended that, as a member of the
crew of a foreign armed public ship, he was not subject to the jurisdiction of the
Supreme Court of Hong Kong.
Disposition
Under customary international law, a foreign armed public ship in the territorial
waters of a coastal state is not a part of the territory of the state to which the
ship belongs. A criminal offence committed on a foreign armed public ship in the
territorial waters of a coastal state is an offence committed in and subject to the
jurisdiction of the coastal state.
In this regard, the supposed theory
(extraterritoriality) that a foreign armed public ship is a floating island of the
state to which the ship belongs is a fiction which must be rejected. Brierlys Law
of Nations, 1928, p 110 approved.
In the present case, any immunity from jurisdiction to which the appellant may
have been entitled under customary international law as a member of the crew
of a foreign armed public ship had been waived by the Chinese government.
Accordingly, the appellant had properly been convicted of murder by the
Supreme Court of Hong Kong.
Judgment extract
In the course of considering the immunity from jurisdiction of foreign armed
public ships, LORD ATKIN (who delivered the judgment of the Privy Council) made
the following observations on the relationship between customary international
law and municipal law:

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[167] It must be always remembered that, so far, at any rate, as
the Courts of this country are concerned, international law has
no [168] validity save in so far as its principles are accepted and
adopted by our own domestic law. There is no external power
that imposes its rules upon our own code of substantive law or
procedure. The Courts acknowledge the existence of a body of
rules which nations accept amongst themselves. On any judicial
issue they seek to ascertain what the relevant rule is, and,
having found it, they will treat it as incorporated into the
domestic law, so far as it is not inconsistent with rules enacted
by statutes or finally declared by their tribunals.
[After referring with approval to the decision of the Supreme
Court of the United States in Schooner Exchange v. MFaddon
(1812) 7 Cranch 116, where the Court recognised the immunity
from jurisdiction under customary international law of an armed
public ship of the Emperor of the French which had entered the
port of Philadelphia under stress of weather and, after referring
with approval to remarks of Professor Brierly in The Law of
Nations, 1928, p 110, his Lordship continued.]
[175] The true view is that, in accordance with the conventions
of international law, the territorial sovereign grants to foreign
sovereigns and their envoys, and public ships and the naval
forces carried by such ships, certain immunities.
The
sovereign himself, his envoy, and his property, including his
public armed ships, are not to be subjected to legal process.
These immunities are well settled. In relation to the particular
subject of the present dispute, the crew of a warship, it is
evident that the immunities extend to internal disputes between
the crew. Over offences committed on board ship by one
member of [176] the crew upon another, the local Courts would
not exercise jurisdiction.
[However, in the present case] it appears to their Lordships as
plain as possible that the Chinese Governmentconsented to
the British Court exercising jurisdiction.
Appeal dismissed
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