Shigeharu Tsuda v Nagami Reynolds
| Jurisdiction | Japón |
| Court | District Court (Japan) |
| Date | 30 April 1970 |
The individual in international law Position of individuals in international law Human rights and freedoms Right of travel Issue of passport Discretion Conditions precedent to issue of passport National refused permission to leave country without passport The law of Japan
Jurisdiction High seas Conception of freedom of the seas Jurisdiction on the high seas Right of pursuit Geneva Convention on the High Seas, 1958, Article 23 Hot pursuit Characteristics of Principle of freedom of the high seas Foreign vessel and offender asked not to leave territorial waters Vessel apprehended and offender arrested on leaving territorial waters Whether freedom of the high seas violated Freedom to travel abroad The law of Japan
Summary: The facts:Reynolds, a United States national, was the owner of a yacht regarded by the Japanese authorities as a foreign vessel. He married Akie Nagami a Japanese national. Both wanted to go to the People's Republic of China and Mrs Reynolds applied for a passport. She did not get a passport as she could not get an entrance permission granted by the Chinese authorities which was required by the Japanese Foreign Office. The Reynolds nonetheless left for China on the yacht. While the vessel was still within Japanese territorial waters two patrol ships advised them several times not to leave without a proper exit permit for Mrs. Reynolds. The Reynolds paid no attention to the advice. They were arrested as soon as they left the territorial waters.
Held:(1) The arrest appeared to lack the requirements of the right of hot pursuit.
(2) In the circumstances, however, the arrest did not violate the principle of the freedom of the high seas.
The following is the text of the judgment of the Court:
The accused, Akie Nagami, is fined 50,000 yen.
The accused, Earle L. Reynolds, is fined 30,000 yen.
If one or both of the accused cannot pay the fine completely, he or she shall be detained in the workhouse at the rate of one day for 1,000 yen.
All costs of litigation shall be jointly borne by the accused.
The accused Earle L. Reynolds, a U.S. national, is an anthropologist. While he was engaged in the investigation of children who had suffered from the atomic bomb in Hiroshima City and since his coming to Japan in 1951, he became concerned with the peace problem. He constructed a yacht which he named the Phoenix and with it has been engaged in the World Peace Movement, making long voyages to many places of the world since 1954. The accused Akie Nagami, a.k.a., Akie Reynolds, was concerned with the World Peace Movement and had sympathy with the thought and movement of the accused Reynolds and was married to him in 1964. She continued to be a national of Japan. Both the accused made plans to use the Phoenix to visit the People's Republic of China (hereafter abbreviated Communist China) as a part of the World Peace Movement. Their purpose was the promotion of friendship among Japan, Communist China and the United States of America. The accused Akie negotiated again and again with Hiroshima prefectural authorities and the Foreign Office in order to obtain the proper passport necessary for her visit to Communist China. She started the application procedure around May, 1968. The Foreign Office demanded that her application be accompanied by entrance permission issued by the Communist Chinese Government. She was never able to obtain a passport. Therefore, she decided to carry out her plan without complying with existing procedure.
Although a Japanese citizen is prohibited from leaving Japan without an effective passport stamped with an endorsed exit permit, the accused Akie boarded the Phoenix belonging to the accused Reynolds and set sail from Nagasaki Port, Nagasaki Prefecture, on 10 September 1968 bound for Shanghai, China. She left Japanese territorial waters and departed from Japan on the same day at 0:33 p.m.
The accused Reynolds, at the time and place mentioned above, and although the accused Akie did not possess a properly endorsed exit permit in an effective passport, had her board the Phoenix on which they departed from Japan. By this action he facilitated the offence of the accused Akie, and, knowing her will, thereby aided and abetted her offence.
Both accused were arrested on the high seas in the yacht Phoenix, which is a foreign ship. The case then falls under the principle of the right of hot pursuit provided in Article 23 of the Convention on the High Seas permitting capture of a foreign ship and arrest of her crew on the high seas outside the sovereignty of Japan. However, the arrest on the Phoenix in this case fails in the requirement that
The failure to fulfill this requirement makes the arrest unlawful and in violation of the basic principle of the treaty, that is, freedom of the high seas. Such an arrest is in violation of the Constitution Art. 98 (2), requiring the faithful observation of laws of nations and of Article 31, guaranteeing due process of law. Therefore, in accordance with the Code of Criminal Procedure Art. 338 (4), the prosecution of this case should be ended by the court's dismissing the case.
This Court finds as follows:
It is difficult for the Court to make a finding that the patrol ship Tsurukaze, which had been pursuing the Phoenix, flew the K flag, a stop signal, or ordered the yacht to stop by using a loud speaker or some other device. In the first place, nothing is written in the record of the investigating officer concerning the procedure followed to stop the yacht; although, that record was drawn up in order to clarify the facts of the pursuit from start to finish and that question is the most important of all since it deals with the requirements of an arrest based on the right of hot pursuit. In the second place, the depositions of the maritime police are unreliable on the procedure followed to make the stop...
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