Case Book of INTERNATIONAL LAW
CASE NAME- The Charming Betsy case
PARTIES- Murray Vs. The Charming Betsey
YEAR- 1804
PRINCIPLE-
· Charming Betsy canon is a principle of interpretation applied in interpreting national statutes, and general acts of congress. According to this canon, national statutes should be interpreted in such a way that the interpretation does not conflict with international laws. This principle evolved from the case.
· Another principle of this case is in the treaty or custom the state have to maintain though it is clarified or not. The states have to bind to maintain this kind of treaty or custom. Even if the Domestic Law as inter-related to the International Law for the treaty rules or custom.
FACT OF THE CASE-
Once a US national lived in the island named sent Thor conquered by the Denmark. He was the owner of a ship. In 1800 by the Non Intercourse Act his ship was forfeited. By t his there was no business transitive allowed with France. There was the allegation brought against him for breaching this Act. There were a number of reasons had been produce that so far he had been living in abroad.
ISSUE-
- Whether the U.S authority can forfeit her national’s property solely for staying an abroad or not.
- Whether U.S. Navy had violated the Non-Intercourse Act of 1800.
DECESION-
In the dispute the chief justice Marshall to do the judgment. Discussed and interpreted the international country law, conventional law and the effectiveness over the USA of its. According to his decisions, that any law of USA can’t be operated in opposition direction of the international norm and International Laws.
REASONING-
- There is lots of reasoning he produced in giving of its decision. He said the customary law has been found into US law with effectiveness. That is why the congress never can go in the opposite.
- Over the dispute, the allegation which was brought really by the national control of the USA. The crate can do no matter what it seems to better for the state. As it was the Act passed in the congress which was not to be opposing of the International Law.
- The court found that there was sue connection exist to go to the step for the discharge the argument.
CASE NAME- The Barcelona Traction Case
PARTY– Belgium v. Spain
YEAR– 1962–1970
PRINCIPLE-
Principle of protection of company by company’s national state company incorporate in third party.
FACT OF THE CASE–
The Barcelona Traction, Light and Power Co. Ltd., (hereinafter called Barcelona Traction) were a Canadian joint stock company formed in Toronto (Canada) in 1911. The greater part of its share capital belonged to Belgian nationals. Barcelona Traction also owned the shares of several other companies, some of which were operating in Spain under Spanish law.
Barcelona Traction, Light, and Power Company, Ltd. (Barcelona Traction) manufactured and supplied electricity in Spain. Although doing business in Spain, it was incorporated in Canada and maintained its headquarters in Toronto. The company issued corporate bonds to investors outside of Spain. During the Spanish Civil War (1936–1939), the government of Spain refused to allow Barcelona Traction to transfer currency from Spain to pay interest to the bondholders. The interest payments were never resumed.
In 1948, several Spaniards purchased some of the bonds and then brought suit in a Spanish court asking it to declare Barcelona Traction bankrupt because it had failed to pay the interest on the bonds. The court did so and, following several motions and appeals, all of the assets in Spain belonging to the company were finally sold by public auction in 1952. The proceeds from the sale were distributed to creditors and only a very small sum was to be paid to shareholders.
The shareholders then sought the assistance of their home states in seeking to obtain a larger settlement. Canada, among other states, complained to Spain of denials of justice and of the violation of certain treaties it alleged were applicable. Canada, however, eventually agreed that Spain had acted properly in denying Barcelona Traction the right to transfer currency abroad and later in declaring the company bankrupt.
Belgium took an interest in the matter because Belgians owned 88 percent of the shares in Barcelona Traction. It disagreed that Spain had acted properly and after Spain became a member of the United Nations in 1955, Belgium filed a complaint before the International Court of Justice in 1958. The proceedings were suspended and then discontinued while representatives of the private interests concerned carried on negotiations. When the negotiations failed, Belgium submitted a new application to the Court in 1962.
Spain promptly objected that Belgium could not sponsor Barcelona Traction’s or its shareholders’ complaints because Barcelona Traction was a Canadian company.
ISSUE–
Belgium claimed that the Spanish authorities acted contrary to international law against Barcelona Traction, which resulted in damage to the company and its shareholders. Accordingly, Spain was under an obligation to restore in full to Barcelona Traction its property, rights and interests, and ensure compensation for all other losses. Alternatively, Spain should pay Belgium compensation equivalent to the value of the property, rights and interests of Barcelona Traction. As another alternative, Spain should at least pay to Belgium compensation equivalent to the amount of shares of the capital of Barcelona Traction owned by Belgian nationals, together with the amount of the sums standing due on 12 February 1948 in favor of Belgian nationals. Before the Court could proceed with the matter on the basis of the memorial filed by Belgium and the preliminary objection raised by Spain, Belgium informed the Court, in accordance with Article 89 of the Rules of the Court that it wished to withdraw from the case. Later Belgium and Spain engaged in negotiations, but as these did not result in any agreement, Belgium presented a new application in 1992 for the Court to hear the case.
DECESION–
The international court of justice rejected the claim of Belgium by fifteen one votes holding that Belgian Govt. had no “locus standi” in this case to seek reparation.
REASONING–
The Belgian government lacked the standing to exercise diplomatic protection of Belgian shareholders in a Canadian company with respect to measures taken against that company in Spain. The court ruled on the side of the Spanish, holding that only the nationality of the corporation (the Canadians) can sue. The case is important as it demonstrates how the concept of diplomatic protection under international law can apply equally to corporations as to individuals.
CASE NAME- Lotus case
PARTY-France and Turkey
YEAR- 1927
PRINCIPLE-
Criminal jurisdiction and flag State jurisdiction on the high seas.
FACT OF THE CASE-
On 2 August 1926, a collision occurred on the high seas between the French mail steamer Lotus proceeding to Constantinople, and the Turkish collier, “Boz-Kourt”. The “Boz-Kourt” sank and eight Turkish nationals perished. On 3 August, the Lotus arrived in Constantinople; Where the Turkish authorities proceeded to hold an enquiry into the collision. They instituted joint criminal proceedings in accordance with the Turkish law against the captain of the “Boz-Kourt”, and the officer on watch on board the Lotus at the time of the collision, Lieutenant Demons, a French citizen, on a charge of manslaughter.
The case was first heard on 28 August 1926 before the Criminal Court of Istanbul. Lieutenant Demons’ objection to the jurisdiction of the Court was overruled. On 15 September, the Criminal Court of Istanbul sentenced Demons to a short term of imprisonment and fine.The proceedings had been instituted in pursuance of Turkish legislation. According to the French Government, the Criminal Court claimed jurisdiction under Article 6 of the Turkish Penal Code.20 the French Government protested against the arrest of Lieutenant Demons and against the assumption of jurisdiction by the Turkish Court. By a special agreement, signed at Geneva on 12 October 1926 between the French and Turkish Governments and filed with the Registry of the Court in accordance with article 40 of the Statute and article 35 of the Rules of the Court, the latter submitted to the Permanent Court of International Justice the question of jurisdiction that had arisen between them as a result of the collision.
ISSUE-
§ Criminal jurisdiction and flag State jurisdiction on the high seas. Questions before the Court Has Turkey, contrary to article 15 of the Convention of Lausanne of 24 July 192321 on conditions of residence, business and jurisdiction, acted in conflict with the principles of international law.
§ And, if so, which principles, by instituting joint criminal proceedings in pursuance of Turkish law against Lieutenant Demons, in consequence of the loss of the “Boz-Kourt” having involved the death of eight Turkish sailors and passengers?
§ Should the reply be in the affirmative, is any pecuniary reparation due to Lieutenant Demons according to the principles of international law and, if so, what should it be?
DECESION-
Judgment was rendered on 7 September 1927. By the President’s casting vote – the votes being equally divided – the Court held that
- Turkey, by instituting criminal proceedings against Lieutenant Demons, had not acted in conflict with the principles of international law;
- Consequently, there was no occasion to give judgment on the question of the pecuniary reparation.
REASONING-
The Court first established that the question submitted to it was whether the principles of international law prevented Turkey from instituting criminal proceedings against Lieutenant Demons under Turkish law. The Court found that the French contention that Turkey, in order to have jurisdiction, should be able to point to some title of jurisdiction recognized by international law was opposed to generally accepted international law, as referred to by Article 15. It stated that the first restriction imposed by international law upon a State was that it could not exercise its power in any form in the territory of another State. However, this did not imply that international law prohibits a State from exercising jurisdiction in its own territory in respect of any case that relates to acts that have taken place abroad and in which it cannot rely on some permissive rule of international law. The Court found that Turkish jurisdiction was justifiable not because of the nationality of the victims but because the effects of the offence were produced on a Turkish ship, and consequently, in a place “assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged”. Once it was admitted that the effects of the offence were produced on the Turkish vessel, it became impossible to hold that there was a rule of international law that prohibited Turkey from prosecuting Lieutenant Demons simply because the author of the offence was on board the French ship.
The Court then addressed the last argument advanced by the French Government that according to international law criminal proceedings arising from collision cases are within the exclusive jurisdiction of the State whose flag is flown. France claimed that questions of jurisdiction in collision cases were rarely encountered in the practice of criminal courts. Therefore, prosecutions only occurred before the courts of the State whose flag is flown, which proved a tacit adherence by States to the rule of positive international law barring prosecutions by other States. The Court rejected this argument. Even if the facts alleged were true, they would merely show that States had often abstained from instituting criminal proceedings, not that they felt obligated to do so.
CASE NAME- Anglo-Norwegian Fisheries Case
PARTY-United Kingdom v. Norway, ICJ
YEAR- 1951
PRINCIPAL-
Extension by costal state of fisheries jurisdiction case, fishery zone, preferential rights and concurrent rights of other stats and conservation measures.
FACT OF THE CASE-
Since 1911 British trawlers had been seized and condemned for violating measures taken by the Parties in order to avoid further legal differences; and the Norwegian Government specifying the limits within which fishing was prohibited to foreigners. In 1935, a Decree was adopted establishing the lines of delimitation of the Norwegian fisheries zone.
On 28 September 1949, the Government of the United Kingdom filed with the Registry of the ICJ an application instituting proceedings against Norway. The subject of the proceedings the Parties in order to avoid further legal differences; and was the validity, under international law, of the lines of delimitation of the Norwegian fisheries zone as set forth in a Decree of 12 July 1935.
The application referred to the declarations by which the United Kingdom and Norway had accepted the compulsory jurisdiction of the ICJ in accordance with Article 36 (2) of its Statute.
ISSUE-
· To declare the principles of international law applicable in defining the baselines by reference to which the Norwegian Government was entitled to delimit a fisheries zone, extending seaward to 4 nautical miles from those lines and exclusively reserved for its own nationals; and to define the said baselines in the light of the arguments of the Parties in order to avoid further legal differences.
· To award damages to the Government of the United Kingdom in respect of all the written reply and later in the oral argument by the United Kingdom and, consequently, no interferences by the Norwegian authorities with British fishing vessels outside the fisheries zone, which, in accordance with the ICJ’s decision, the Norwegian Government may be entitled to reserve for its nationals.
DECESION-
The Fisheries Case was brought before the Court by the United Kingdom of Great; Britain and Northern Ireland against Norway. By a Decree of July 12th, 1935, the Norwegian Government had, in the northern part of the country (north of the Arctic Circle) delimited the zone in which the fisheries were reserved to its own nationals.
‘Me United Kingdom asked the Court to state whether this delimitation was or was not contrary to international law. In, its Judgment the Court found that neither the method employed for the delimitation by the Decree, nor the lines themselves fixed by the said I)decree, are contrary to international law; the first finding is adopted by ten votes to two, and the second by eight votes to four. Three Judges-M.M. Alvalez, Hackworth and Hsu Mo appended to the Judgment; 21 declaration or an individual opinion stating the particular reasons for which they reached their conclusions; two other Judges- Sir Arnold McNair and Mr. J.E. Read-appended to the Judgment statements Of their dissenting Opinions.
REASONING-
- It was agreed from the outset by both Parties and by the Court that Norway had the right to claim a 4-mile belt of territorial sea, that the fjords and sands along the coastline, which have the character of a bay or of legal straits, should be considered Norwegian for historical reasons, and that the territorial sea should be measured from the line of the low-water mark.
- The Court found itself obliged to decide whether the relevant low-water mark was that of the mainland or of the skjaergaard, and concluded that it was the outer line of the skjaergaard that must be taken into account in delimiting the belt of Norwegian territorial waters.
- The Court then considered the three methods that had been contemplated to effect the application of the low-water mark. The Court rejected the method of the “tracé parallèle”, which” consists of drawing the outer limit of the belt of territorial waters by following the coast in all its sinuosities”, as unsuitable for so rugged a coast. Furthermore, that method was abandoned in the written reply and later in the oral argument by the United Kingdom and, consequently, no longer relevant to the case.
- The Court also declined to apply the “courbe tangente” (the “arcs of circles” method) inasmuch as it was concededly not obligatory by law. Thus, the instant case required the application of a third delimitation method according to which the belt of the territorial waters must follow the general direction of the coast. Such a method consisted of selecting appropriate points on the low-water mark and drawing straight lines between them. The Court found that the method had already been applied by a number of States without giving rise to any protests by other States.
- However, the Court held that the delimitation of sea areas had always had an international aspect and could not be dependent merely upon the will of the coastal State as expressed in its municipal law. Although necessarily a unilateral act, the validity of delimitation of sea areas with regard to other States depended upon international law. The Court considered that in drawing straight baselines, the coastal State had to follow the general direction of the coast.
CASE NAME- The Continental Shelf CASE
PARTY- Libyan Arab Jamahiriya vs. Malta
YEAR-1985
PRINCIPLE-
It is a course axiomatic that the material of customary international law is to be looked for primary in the actual practice and opinion juries of state even though multilateral conventions may have an important role to play in defining and recording rules , deriving from custom or indeed in developing them.
FACT OF THE CASE-
On 23 May 1976, a Special Agreement was signed between the Socialist People’s Libyan Arab Jamahiriya and the Republic of Malta providing for the submission to the Court of a dispute concerning the delimitation of the continental shelf between the two States.
The Parties were broadly in agreement as to the sources of the law applicable to the case, but disagreed as to the way in which the Court was to indicate the practical application of those principles and rules. Malta wished the Court to draw the delimitation line, while Libya wanted it only to pronounce itself on the applicable principles and rules. Having examined the intention of the Parties to the Special Agreement, from which its jurisdiction derived, the Court considered that it was not barred by the terms of the Special Agreement from indicating a delimitation line. The delimitation contemplated by the Special Agreement related only to the areas of continental shelf that appertained to the Parties, to the exclusion of areas which might appertain to a third State. Although the Parties had in effect invited the Court not to limit its Judgment to the area in which theirs were the sole competing claims, the Court did not consider itself free to do so, especially in view of the interest shown in the proceedings by Italy, which in 1984 order to achieve an equitable result. Submitted an application for permission to intervene under article 62 of the Statute. The Court had rejected this application.
ISSUE-
Questions before the Court
· What principles and rules of international law are applicable to the delimitation of the area of the continental shelf that appertains to the Republic of Malta and the area of the continental shelf that appertains to the Libyan Arab Jamahiriya?
· How in practice can the two Parties, in this particular case, apply such principles and order to achieve an equitable result. Rules in order that they may, without difficulty, delimit the areas concerned by agreement?
DECESION-
The Judgment was rendered on 3 June 1985. By fourteen votes to three, the Court held that “with reference to the areas of continental shelf between the coasts of the Parties within the low-water mark of the relevant coast of Libya, that initial line being then limits defined in the present Judgment, namely the meridian 13º 50′ E and the meridian 15º 10′ E.
The principles and rules of international law applicable for the delimitation, to be effected by agreement in implementation of the present Judgment, of the areas of continental shelf appertaining to the Socialist People’s Libyan Arab Jamahiriya and to the Republic of Malta respectively are as follows:
· the delimitation is to be effected in accordance with equitable principles and taking account of all relevant circumstances, so as to arrive at an equitable result;
· The area of continental shelf to be found to appertain to either Party not extending more than 200 miles from the coast of the Party concerned, no criterion for delimitation of shelf areas can be derived from the principles of natural prolongation in the physical sense.
REASONING-
The Court found that, as to the law applicable to the delimitation of areas of shelf between neighboring States, which is governed by article 83 of the 1982 Convention, the Convention sets a goal to be pursued, namely “to achieve an equitable solution” but is silent as to the method to achieve it.
In the view of the Court, the principles and rules underlying the régime of the exclusive economic zone could not be left out of consideration in the present case, the two concepts continental shelf and exclusive economic zone – being linked together in modern law.
The conclusion reached by the Court was that there was no evident disproportion in the areas of shelf attributed to each of the Parties respectively such that it could be said that the requirements of the test of proportionality as an aspect of equity were not satisfied.
CASE NAME- The Reparation Case
PARTIES– United Nation vs. Israel
YEAR-1949
PRINCIPLE–
United Nations Organization is an international institution and legal person under international law. Therefore it is a subject of international law and capable of possessing rights and duties.
FACT OF THE CASE–
In 1947 when Palestine spited in to two countries, Israel emerged as a new country. At that time the UN troops were engaged in the border area of Israel and Palestine of monitoring and peacekeeping and to mediate in the conflict between Arabs and Jews. Mr. Count Bernadette, a Dutch national, was the chief UN truce negotiator for the area. On September 17,1948 when he as in the area of Jerusalem, the area which was under the occupation of Israel, was murdered.
The UN considered that Israel was negligent in duty and was fail to punish the murderers. Consequently the UN decided to make a claim for compensation on behalf of its employee under international law. Does UN capable at all to claim compensation or not the United Nations General Assembly sought advice of ICJ in this regard.
ISSUE–
The issues of this case were as follows:
- Whether The United Nations as an organization can claim compensation and damages for the person appointed under its service.
- Whether UN as international organization has every legal responsibility so that it can be sued and can sue by its own name.
- Whether the UN had the capability to bring an international calm for compensation against a non member state.
DECESION–
The ICJ held that UN as an international institution and legal person, it enjoys all the qualities privileges and claim reparation not only in respect of damages caused to itself but also in respect of damage suffered by the victim persons. Thus the Israel is liable to pay compensation.
REASONING–
The court observed that United Nation Organization is a political body charged with political tasks of important character and covering a wide field, namely the maintenance of international peace and security, achieve international co operation in the pasture of economic social cultural rights. It is a present the supreme type of international organization and it could not carry out the intention of its founders if it was devoid as international character. The court has come to the conclusion that this organization is an international person and it can be assumed that the organization has the capacity to bring a claim on an international plane, to negotiation, to conclude a special agreement and to prosecute a claim before an international tribunal. The organization has the capacity to claim reparation of damage by basing its clam upon a breach of obligation due to itself and this will bring about settlement.
CASE NAME- Prof. Nurul Islam and Others Govt. of Bangladesh and others Case
YEAR-1999
PRINCIPLE-
NO state can deny the international responsibilities; avoid this responsibilities not defense as the domestic or state. But the state law has to relation the International Law.
FACT OF THE CASE-
IN 1999 the most popular cigarette producer British American Tobacco (BD) Ltd. To manufacturer of their brand “Gold Leaf”. The “Voyage of Discovery” has to invite to advertise the product. The new generation of our country addicted for the purpose of this kind of advertisement so that Prof. Nurul Islam issued a writ petition against that kind of advertisement in the High court Division. Not only that advertisement, he raised in report of WHO (World Health Organization) that the effect of the smoking and the obstruct on the Tobacco Products on the publicity.
The Tobacco corporation show that, In Bangladesh control in the marketing of tobacco products for 1988 “Tobacco Originated Goods Marketing (Regulation) Law. In this law not banned the advertisement but when the advertise this kind of product it is necessary to say that can use alertness of word which is obey on that company. The lawyer of the Company argued that, through in 1990 the ordinance no 16 to canceled the tobacco products advertisement, although the ordinance is not raised in the Parliament and to lost the power of Law. So now in Bangladesh there is no law existence to obstruct the advertisement of Tobacco Products.
ISSUE-
Whether cancellation of Voyage of Discovery to come though there is no law existence.
DECESION-
The decision of the court that the obstruct to come the “Voyage of Discovery” in Bangladesh.
REASONING-
Bangladesh is bound to follow the international law accordance with article 25(1) of the Bangladesh constitution.
CASE NAME- Chorzow Factory Case
PARTIES– Germany vs. Poland
YEAR-1928 PCIJ
PRINCIPLE–
It is a general principle of international law that any breach of an engagement involves an obligation to make reparation.
FACT OF THE CASE–
There was an agreement between Germany and Poland and that bilateral treaty was known as the Geneva Upper Silesia convention 1922. it had been provided in that treaty that on transfer of sovereignty of certain territories from Germany to Poland after the 1st world war, existing proprietary right were to be maintained except that the Polish Government was granted a right of expropriation under certain condition with respects of all property belonging to German nationals in Upper Silesia. The present dispute arose when Poland seized to companies there in breach of its international obligation under the Upper Silesia convention of 1922. The Germany demanded compensation from the Poland.
ISSUE–
The issues of the case were as follows:
- Whether the convention of 1922 creates any obligation on the part of the Poland.
- Where seizure of the 2 companies by the Polish Government is contrary to its international obligation, whether Poland is bound to make reparation to Germany.
- If there appears any breach of international obligation, whether Poland is bounty to make reparation to Germany.
DECESION–
The reparation of wrong may consist in an indemnity corresponding to the damage which is contrary of International Law. Right or interests of an individual the violation of which rights cause damages are always in a different plain to rights belonging to a state, which rights may also be infringed by the same act.
REASONING–
In deciding the case the court considered the following the reasons to be applied:
- The action of Poland was not expropriation in its real sense, it was rather a seizure of property, right and interest which could not be expropriated even against compensation, save under the special conditions fixed by Art. 7 of the Upper Silesia convention of 1922. in doing so, therefore, Poland acted contrary to its obligations.
- It is general principle of international law and even a general concept of law that a breach of an agreement involves a duty to make reparation.
- Reparation is the expendable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. This case is one of an unlawful expropriation and in such cases expropriating sates must in addition to paying the compensation due in respect of lawful expropriation, pay also damages for any loss continued by the injured party.
CASE NAME- Island of Palmas Case
PARTIES- Netherlands Vs USA
YEAR-1928
PRINCIPLE-
- The principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of the law
- The territory if occupied it is not enough to the state who occupied the territory which is belong upon the state. The state should have the authoritative power of the territory he relationship and sovereignty with the inter-connection between the occupied territory.
FACT OF THE CASE-
The Island of Palmas Case dealing with island disputes. It involved a Sparsely inhabited island twenty nautical miles off the southwest coast of the Philippines. The United States and the Netherlands contested ownership of the island. The United States claimed the Island of Palmas based on two legal theories. First, Spain’s earlier “discovery” of the island, which had given Spain “original title,” passed to the United States when the United States defeated Spain in the Spanish-American War and the United States took possession of the Philippines. Second, the United States claimed Palmas Island due to the contiguity of the island to the Philippines. When Spain first discovered the Island of Palmas in the sixteenth century, international law arguably granted absolute title to islands that were terra nullius to the discoverer. The United States, therefore, argued that this law, the law at the time of discovery, should apply and international law at that time granted title to terra nullius to its discoverer. On the other hand, the Netherlands claimed the island because the Netherlands had had contact with the region, and they contended that the island was a “tributary of native princes, [who were] vassals of the Netherlands Government.” Moreover, regarding the applicable law, the Netherlands countered the United States’ argument of the United States regarding applicable law by stating that, “[t]he changed conceptions of law developing in later times cannot be ignored in judging the continued legal value of relations which, instead of being consummated and terminated at one single moment, are of a permanent character.”
ISSUE-
- Whether Netherlands had any legal rights or not.
- Whether the Island was terra nu the territory if occupied it is not enough to the state who occupied the territory which is belong upon the state. The state should have the authoritative power of the territory he relationship and sovereignty with the inter-connection between the occupied territory terra nullius or not.
DECESION-
It was held that by the ICJ, that the arbitrator then held that though the U.S. had inchoate title to the Island of Palmas, based on its ascension to possession of the Philippines through earlier Spanish discovery, the Netherlands had actual title to the island because it had peacefully and continuously displayed authority over the island.
Next, although the Island of Palmas was much closer to the Philippines than Indonesia, the court rejected the United States’ “contiguity” claim, concluding that international law did not support such a principle. Consequently, the rule in international law stated that discovery, without any further display of authority or occupation of an island, did not demonstrate ownership where another State exercised actual authority over the same islands.
REASONING
The territorial sovereignty was absence from the sides of the continues effectiveness sovereignty over the land by Netherlands. So mere discovered is not okay to be territorial sovereignty. Spain did not fulfill the requirement of having the land through terra nullius.
CASE NAME- Clipperton Island Arbitration Case
PARTIES-France Vs México, 26AJIL 390
YEAR- 1932
PRINCIPLE-
- A territory, by virtue of the fact that it was completely uninhabited is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed disposition of that state, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby completed.
- The occupation on Territory not on the occupied the land or territory it is insufficient but also necessary to effective on that occupation of the territory.
FACT OF THE CASE-
The Clipperton Island Case involved a dispute between Mexico and France over a small, uninhabited island 600 miles southwest of Mexico. Mexico claimed the island based on Spanish discovery several hundred years earlier. France argued that it obtained title in November 1858 after a French naval ship discovered the island, and its commanding officer later published France’s claim in a newspaper. After “discovering” Clipperton Island and publishing notice of the discovery in a Hawaii’ newspaper, France took no further action to assert her sovereignty until 1897, thirty-nine years blather, when a French naval ship found three Americans collecting guano on the island. France protested to the United States, which responded that it made no claim to the island. A month later, Mexico, believing that Clipperton Island was under its possession, and having heard about the same guano exploration, dispatched a naval ship to investigate. The ship found the same three Americans on the island and Mexican soldiers raised the Mexican flag. France protested Mexico’s action, and both sides engaged in an acrimonious debate over ownership of the island, until both parties agreed to have their dispute arbitrated by Emperor Victor Emmanuel III of Italy in 1909. Victor Emmanuel, however, would not issue his ruling on the case for twenty-two years, until 1931. The Emperor awarded Clipperton Island to France, stating that “the proof of an historic right of Mexico’s is not supported by any manifestation of her sovereignty over the island, a sovereignty never exercised until the expedition of 1897.
ISSUE-
- Whether there is any authoritative power over the territory in the Spain.
- Whether France or Mexico had title to the island.
- Whether Mexico had any title belongs over the island.
- Whether it provides a lower occupation requirement to prove actual title where the territory claimed is an uninhabited island.
DECESION-
The discovery of the island by the Spanish authority was not sufficiently proved, nor was the title of Spain to the territory. Meanwhile, it was clear that France had not at any point abandoned her claim to the island. In the circumstances, sovereignty over the islands belonged to France.
REASONING-
In 17th November 1858 Clipperton Island was legitimately acquired by French. France did not lose subsequently right by dereliction. France never had the animus of abandoning the island and it had not exercised its authority their positive manner. From 17th November 1858, for this reason France belongs the sovereignty over the Clipperton Island.
CASE NAME- Eastern Greenland Case, PCIJ
PARTIES- Denmark vs. Norway
YEAR-1933
PRINCIPLE-
To established effective occupation two elements are must needed-
- Land occupation for exercising sovereignty
- Effective expression for the will.
FACT OF THE CASE
The sovereignty of Denmark over Greenland was established upon 1721. Actually , the conflict was began from 10th July 1931, when Norway declared through Royal Proclamation that cast terra- nullius was under their control and they raised the flag of Norway. But Denmark considered the island as their own as after World War 1. The allied power countries agreed that the actual control of the country should be under Denmark. Denmark again claims that there here ruling the area for a long time and it also shows its authority. So Denmark took the dispute to PCIJ.
ISSUE-
v Where the country practically occupied or not
v Where the country has any legal titled
DECESION-
The court agreed that the actual control of the country and all evidence is sufficient that is the land should be under Denmark.
REASONING-
To established effective occurred two elements are must be needed-
- Land occupation for exercising sovereignty and
- Effective expression for the will.
CASE NAME- The Temple of Preah Vihear Case, ICJ
PARTIES- Cambodia vs. Thailand
YEAR-1967
PRINCIPLE-
- The international law elements of the case are territorial sovereignty, and the power of treaties.
- The Court weighed heavily the historical context of the creation of Annex I in making its judgment. It is clear that the Court found it important to first clarify the frontier lines between Cambodia and Thailand before deciding the issue of sovereignty. Because one could not be correctly judged without the other, the principles of subject-matter jurisdiction, temporal jurisdiction and territorial jurisdiction are all important in this case.
- The power of treaties held Thailand accountable for the border dispute and allowed Cambodia to expel Thai forces from the Temple.
FACT OF THE CASE-
On15June1962,the International Court of Justice (ICJ) pronounced judgment on a dispute between Cambodia, formerly acolony of France,and Thailand,formerly called Siam,a neighboringkingdom which had never been formally colonized.The disputeterritorial sovereignty over the area of an ancient Brahmanic temple named Preah Vihear . The Temple is perched high on a spur of the Dangrek mountain chain which roughly forms the boundary between both countries. North of the Dangrek lies the Khorat Plateau of Northeast Thailand, while to the south the Temple affords a magni?cent view of the forested Cambodian plain below. The judgment was peculiar in that it relied upon absence to startling effect. Applying the principle qui tacet con-sentire videtursi loquidebussed ac potuisset (Judgment,) [He who keeps silent is held to consent if he must and can speak—ICJ held that Thailand’s failure to protest the inaccuracy of a map purporting to re?ect the watershed line between the two states, and thus by the Treaty of 1904 the international boundary between them, constituted tacit acceptance of the map line as the line established by treaty. The effects of this reasoning were as follows:
· A scale map that made a considerable error in placing the
watershed, was held to ?x the boundary, sup-planting the treaty text, which species a physical fact, the water-shed line, as the boundary;
· Concrete acts of sovereignty on the ground were largely dismissed as being ‘exclusively the acts of local, provincial authorities’ (Judgment,) while mere inferences about behavior taken to be absence of official protest received legal force; and
· The ‘general political conditions existing in Asia at his period,’ (Judgment,) the enormous facts of French colonialism, were ignored. The response to the judgment in Thailand was incredulity and outrage. The World Court reasoning was seen, in the words of Thai Foreign Minister Thanat Khoman, as a ‘miscarriage of justice,’ while
· Other‘Officialscontactedwerepuzzledthatthecourt its judgment o amap, considered actually only a roughsketch.’(BangkokPost,June18,1962)Looking back on the oral pleadings and the judgment together with the dissenting opinions, what seems truly strange is that if ICJ, in resolving the dispute with a map, hoped to uphold the stability and nullity of conventional agreements between States rather than capitulate to achievements of sheer conquering force, then the basis for its judgment ran exactly in reverse. Dramatizing the failure to protest, the World Court seemed to announce not an end to violence.
ISSUE-
Dispute as to the meaning or scope of the 1962 Judgment and Jurisdiction of the Court .The Court stated that when it receives a request for the indication of provisional measures in the context of proceedings for interpretation of a judgment under Art. 60 of the Statute, the Court has to consider whether the conditions laid down by that Article for the Court to entertain a request for interpretation appear to be satisfied9. Art. 60 of the Statute provides that:
- The judgment is final and without Appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party”.
- Legal Conditions required for indication of Provisional Measures.
- The Court indicated that the power to indicate provisional measures under Art.41 of the Statute has as its object the preservation of the respective rights of the parties pending the decision of the Court and this power may be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible.
- The Court examined the conditions of ‘plausibility’ one by one and concluded that the conditions had been satisfied.
DECESION-
In its Order, the Court first unanimously rejected Thailand’s request for the case
Introduced by Cambodia to be removed from the General List (as set out in
Section 2 of this Summary). It then indicated various provisional measures, as
Follows:
· That both parties should immediately withdraw their military personnel currently present in the provisional demilitarized zone (PDZ), as defined in 62 Of the Order, and refrain from any military presence within that zone and from any armed activity directed at it. This decision was reached by a majority of 11 to 5 votes.
· That having noted that the Temple area had been the scene of armed Clashes between the Parties and those such clashes might reoccur, the Court Decided that in order to ensure that no irreparable damage was caused, there Was an urgent need for the presence of all armed forces to be temporarily? Excluded from a PDZ around the area of the Temple.
· That each of the Parties should inform the Court as to its compliance with the
above provisional measures and that, until the Court had rendered its judgment on the request for interpretation it would remain seized of the matters which Form the subject of the Order.
REASONING-
Thailand did not claim for a long time that the temple and Cambodian sovereignty was exercised peacefully. So that it would be treated as under Cambodian territory.
The international court of justice restricted the scope of an error as a ground of invalidating a state’s consent to be bound by a treaty. The Vienna Convention 1969, Article 48 was prevailed over the judgment. The principle of estoppels is also applied in the judgment.
CASE NAME- Tinoco Arbitration
PARTIES- U.K Vs Costa Rica
YEAR- 1913
PRINCIPLE-
The effective Government. It is important that the government have any authoritative power effectiveness of the state.
FACT OF THE CASE-
In 1971, the government of Costa Rica was over thrown by Federico Tinoco who assumed a power called an election established a new constitution June 1917. in 1919 Tinoco and left the country his government fell. In 1922 the return of the Costa Rica Govt. passed a law invalidating all contracts between the executive powers and private persons, made with or without approval of the legislature power during the period of the Tinco government. The Tinoco government had granted a concession of the central Costa Rica Petroleum Company and was indebted the Royal Bank of Canada. Both British Corporation under new law both their obligation were abrogated. Great Britain which had never recognized the Tinoco Government Claimed behalf of these corporations and the maker was refereed to arbitration. The arbitrations in this award discussed the question of recognition.
ISSUE-
v Whether the United Kingdom had recognized the new regime was by and large Delevan in deciding the defacto existence of the Tinoco Govt. or not.
v Whether the Govt. was recognized defacto was a matter to be decided objectively against international standards and as issued to be resolve by examining the subject views of a majority of status or not.
DECESION-
Costa Rica government would be bond to perform all international obligations created by the Tinoco Governments.
REASONING-
· Tinoco government was the only government of its Rica Defacto and Dejure for 2 years and 9 months. During that time there was no other government disputing its sovereignty. That is as unpeaceful administration of the whole country with the accusation of the people. The succeeding government could not by legitimate decree avoid responsibility for acts of that govt. affecting British Govt. subject except in violation of international law. So that contrast validity make with the as it was an effective one any obligation entries into by effective government cannot be nullified.
· The arbitration decide that since the Tinaco administration was in effective control of the Costa Rica, it was the valid government irrespective of the fact that the UK, together with a significant number o the other state , had not recognized it.
· The succeeding government could not by legitimate decree avoid responsibility for acts of that government affecting British Government subject except in violation of international law.
CASE NAME- Russia ship Case
PARTIES– USSR vs.USA
YEAR-1948, USA Federal Court.
PRINCIPLE–
“Par in Parem non-habit imperium/jurisdum (equal over equal do not have any jurisdiction)” this maxim which concern with the status of sovereign equality enjoyed by all independent states.
FACT OF THE CASE–
Russia ship was a Russian passenger ship. The ship was in the ocean of Atlantic. At that time, a collision occurred that injured tow American women. Reaching the port of New York they brought a suit against the ship and claimed compensation. But Russian foreign ministry argued that since the ship was a property of Russia, this USA had no jurisdiction to file suit against Russia.
ISSUE–
Where USA can file a suit against the property belong to Russia according to international law.
DECESION–
It was held that USA couldn’t file a suit against Russia
CASE NAME– Luther vs. Sagor Case
PARTIES- Luther vs. Sagor
YEAR-1921 1kb 456(1921) 3kb each kings bench division court of appeal.
PRINCIPLE-
The importance of international law recognition with the retrospective effect
FACT OF THE CASE-
The concerned operation is produce of a timber factory in Russia owned by the plaintiffs which have been nation in 1990 by the soviet government. In 1920 defendant company purchase of quality of wood from the user and this was claimed in England by the plaintiff as their property seen it had come from what had been factory.
ISSUE-
Whether the high court bound to take notice from the soviet decree or not.
DECESION-
It was held that the fact of soviet government was recognizing defacto and dejure did not affect the issue. Another interesting point is that seen the foreign office certificate include a statement that the forever provisional government of Russia recognized by the U.K had been diapered during 1917. The court inferred the commencement of the soviet from that date.
REASONING-
On appeal the decision in favor of the plaintiff was reserve in the light of the intervening recognition of the soviet government by the British government. This recognition was held to be retrospective and to date back to the actual coming into being of the recognized entity.
CASE NAME- Haile Selassie Vs Cable and Wireless Ltd case
PARTY- Haile Selassie Vs Cable and Wireless Ltd
YEAR-1939
PRINCIPLE-
Usually there is no deference between the De-jure recognition and DE-facto recognition. But if there is any country between them in the circumstances the Defacto recognition is retrospective in power.
FACT OF THE CASE-
By a contract entered into by the director general of posts, telegraphs and telephones of Ethiopia with a Mario and telegraphic company a sum of money become due from the defendants to the public revenue of Ethiopia. Ethiopia was subsequently conquered and governed by Italy. In the court at first instance it was held that although Italy had been recognized by Great Britain as the Defect government of Ethiopia, the plaintiff was still recognized by Great Britain as the De jure sovereign and therefore the right to issue for money owed was vested in him.
ISSUE-
Whether the decision was right or wrong.
DECESION-
The appeal was allowed and the action was dismissed.
REASONING-
- At first court decided that Haile Selassie is entitled to get that debt money because he was legally recognized empire.
- And the court of Apple took place before the commencement of the action brought by Haile Selassie. Consequently the action was dismissed and Haile Selassie had no “Locus Standi’ before English Court.
CASE NAME- Salimoff and Co. vs. Standard Oil of N.Y. Case
PARTIES– Salimoff and Co. vs. Standard Oil of N.Y.
YEAR– 1933
PRINCIPLE–
The principle of sovereign equality one state cannot interfere in the act of another state. This view recognizes or establishes the declaratory theory of recognition.
FACT OF THE CASE–
Salimoff was a Russian citizen. He had oil business. The Russian Govt. by a decree nationalized all the oil company. Then the Govt. entered into a contract with Standard Oil Company of New York to sell oil. When the oil reached to New York Salimoff claimed the oil arguing that since America had not recognized Russia, the contract is void and it cannot enter into any transaction. Moreover, he raised the issue that the oil was taken from Solimoff by an illegal act.
ISSUE–
· Whether non-recognition of a state affects the existence of that state?
· Who will get the oil?
DECESION–
U.S court held that U.S cannot interfere in the act of another state as it was the act of a sovereign authority.
REASONING–
U.S court took the position that though America did not give recognition to U.S.S.R. even then it cannot ignore the existence of U.S.S.S. according to the principle of sovereign equality U.S. cannot interfere in the act of another state. According to the “parin parem non-habet imperium” an equal cannot interfere against another equal state.
CASE NAME- Arantzazu Mendi Case.
PARTIES– Spain vs. U.K
YEAR-1939
PRINCIPLE-
In the circumstances there is no distinguish between the De- Jure recognition
and De-Facto recognition. Both are treated as same on the matter of situation.
FACT OF THE CASE-
In 1939, during the Spanish Civil war, the Arantzazu Mendi, a Spanish ship registered in Bilbao was requisitioned which on the high seas by a decree of the Republican government of Spain. On her arrival on London, her owners issued a right in ram for possession and she was arrested by the Admiralty Marshal, The Republican Govt. then issued a wait claiming possession of the Arantzazu Mendi. The nationalist govt. sought to set aside the writ and arrest warrant on the ground that the action imploded a foreign sovereignty state namely. The nationalist government of Spain.
ISSUE-
- Whether the arrest of Arantzazu Mendi, by Administrative Marshall was lawful or not.
- Whether the nationalist Government of Spain was a foreign sovereign state.
- Where the Nationalist Government of Spain is recognized by His Majesty’s Government as a foreign.
- Whether the party sought to be impeded.
DECESION-
The judgment by Becknell that the nationalist government was a foreign sovereign state for the purpose of international Law and set the writ and warrant of arrest a side. This secession was appealed to the House of Lords but the appeal was dismissed.
REASONING –
The sovereign has to decide whom he will recognize as a follow a sovereign in the family of state. In the above case the House held that a letter from the foreign office stating that the Nationalist Government of Spain at the Date of the write was a foreign sovereign terminated the controversy as to its status.
CASE NAME- Dikko Incident Case
PARTY-U.K Vs Nigeria
YEAR- 1984
PRINCIPLE-
The diplomatic bag do not open or capture. If any I in case of any incident happened that the diplomatic bag was used illegal way or think that for the reasonable cause then it should maintained its non violation process.
FACT OF THE CASE-
Mr. Dikko was a Nigerian political leader who kept away from London and to staying there he speech against the Nigerian Military Government. He arrested by the Nigerian Diplomatic agent after that to use a high power of drug to slept him for the reason of trafficking him in Nigeria by the diplomatic bag. But in the airport the bag was challenged by the airline authority checked by the authority Dikko was found that bag senseless.
ISSUE-
Whether it was reasonable to open diplomatic bag by the airline authority?
DECESION-
The court held that, the airline authority does this which is necessary to avoid the use advantages diplomatic.
REASONING-
To restrain or avoid the abuse of diplomat, activities of airline authority did not do any wrong which is conflicting the international law.
CASE NAME- Iran Case
PARTIES- U.S.A Vs Iran
YEAR- 1980
PRINCIPLE–
To entire into mission area without permission or protect to destroy in mission area and not to violation in peace of mission or take necessary steps because of not to reduce the dignity of mission which is a special duty of a state.
FACT OF THE CASE-
The United States Embassy at teharan in Iran overruled a military group and hundreds of several students. They are not permitted by the president of Iran Al Khowameni. They controlled over the documents and arcades to entire into the diplomatic mission area and captured by the officials. By Iran authority was not protest them.
ISSUE-
- Whether the Iranian Government was bound to provide force to secure U.S.A Embassy and its personals?
- Whether Iran Government was bound to provide compensation or not?
- Whether Iran Government breached any International Law or not?
DECESION-
International courts of Justice held that though Iran government was bound to protect the diplomatic mission. So that Iran Government was not do this they are bound to pay compensative.
REASONING-
- Violation of official correspondents.
- Violation of achieves and documents.
- Violation of Vienna Convention 1961 22(1) and 22(2)
CASE NAME- The Crying Suitcase Case
PARTIES- Egypt vs. Italy
YEAR- 1964
PRINCIPLE-
The diplomatic bag do not open or capture. If any I in case of any incident happened that the diplomatic bag was used illegal way or think that for the reasonable cause then it should maintained its non violation process.
FACT OF THE CASE-
An Egyptian diplomatic agent back to his state carries on a suitcase in Italy at Rome airport. The custom officials of the airport hear cried noise into the suitcase. For that reason they (officials) checking the suitcase but the agent deny this. The officials opened the suitcase in force and found that the Israeli Diplomatic into the suitcase and went away him. The diplomatic of Egypt said that they (official) violation of the Vienna Convention 1961 Rule 27(3) to opened the suitcase.
ISSUE-
Whether they worked was done by the airport authority in Rome which was violation on the international Law or diplomatic chance and the responsibility or not?
DECESION-
The work which was done by the authority was not violation of International law although it was necessary to do.
REASONING–
When it was a question foe a man’s life to use by force and opened it was not violating of international law. Although it was restricted by the Vienna convention 1961, rule 27(3)
CASE NAME- The U.S.S.A. Lorry Case
PARTIES- USSR vs. West Germany
YEAR- 1980
PRINCIPLE–
In this case the lorry was capable of movement. So being capable of movements it could not be a diplomatic bag is not a justified reason.
FACT OF THE CASE–
USSR sent some boxes in West Germany which were carried by a lorry that was externally marked as “diplomatic bag”. But the authority of West Germany posed doubt on the lorry about it being a diplomatic bag. USSR ambassador said that the lorry was a diplomatic bag. Since West Germany was under reasonable doubt they demanded for the search of the bag. They further contended that though the inner material of the lorry might be diplomatic bag or bags, but the lorry itself was not a diplomatic bag.
ISSUE–
· Whether West Germany has the right to search the diplomatic bag.
· Whether it was violation of the article 36 of the Vienna Convention on Diplomatic Relation, 1961.
DECESION–
The court held that
· The seizure of a bag must be reasonable.
· A lorry cannot be said or accepted as diplomatic bag.
REASONING–
· Article 36 deals with exemption of diplomatic bag from customs duties and search
· Article 36 provides that the diplomatic baggage shall be exempted from inspection unless there are serious ground for doubt that , it contains article not covered by the exemptions.
CASE NAME- Asylum Case
PARTIES- Columbia vs. Peru
YEAR- 1950, International Court of Justice.
PRINCIPLE–
- Regional rules are not necessarily subordinate to general rules of international law but may be in a sense complementary or correlated thereto, and
- An international tribunal must, as between states in the particular region concerned give effect to such regional rules as are duly proved to the satisfaction of the tribunal.
FACT OF THE CASE-
An unsuccessful military rebellion took place in Peru in October 1948. It was suppressed on the same day and the President of the Republic issued a decree outlawing the American People’s Revolutionary Alliance, which he charged with having organized and directed the rebellion. A warrant was issued for the arrest of Victor Raul Haya de la Torre, the head of the American People’s Revolutionary Alliance and a Peruvian national, in connection with the rebellion. On 3 January 1949 Haya de la Torre sought asylum in the Colombian Embassy in Lima, the capital city of Peru.
The Colombian Ambassador informed the Peruvian Government that he had granted diplomatic asylum to Haya de la Torre under Art. 2, paragraph 2 of the Havana Convention on Asylum 1928, and under Art. 2 of the Montevideo Convention on political Asylum, 1933. He had qualified Haya de la Torre as a political refugee, and requested the government of Peru to allow Torre to leave the country.
Peru contended that Haya de la Torre was not entitled to asylum and refused to accept the right of Colombia to define unilaterally the nature of Haya de la Torre’s offense. After diplomatic correspondence between two countries, the case was referred to the International Court of Justice.
ISSUE-
In determining the issues involved, the International Court of Justice considered the following issues:
- Whether there is an custom so established that it is binding to allow Columbia to grant political asylum
- Whether the granting of diplomatic asylum was a practice or custom in the region of Latin America.
- Whether Columbia is competent to qualify the offence of Haya de la Torre and granting asylum.
- Whether such asylum was being practiced recurrently as customary norms of the international law.
DECESION-
The international Court of Justice decided that a State granting diplomatic asylum do not have the unilateral right to qualify an offense for The purpose of asylum, nor was Colombia entitled to claim guarantees for the safe departure of the man to whom he had given asylum.
REASONING-
Columbia cited several conventions, of which some Peru was not a party so not binding, and others that were accepted by so few states it is very weak. Columbia also refers to many cases where political asylum was granted, but court cannot determine whether they were granted due to usage, or for political expediency. Court says Columbian Govt. has not through its arguments proven the existence of such a custom. And, if there was such a custom, it could not been forced against Peru, because they were not party to the Montevideo convention which included matters of political asylum
CASE NAME- Savarkar Case
PARTY-France Vs. Great Britain
YEAR-1911
PRINCIPLE-
If any state did not granted any persons asylum or mistakenly send him other state for that reason after then the state send first other didn’t cleared again or the state lastly gave asylum didn’t back the person and that claimed has no validity.
FACT OF THE CASE-
Mr. Vinayak Donador Savarkar was being transported in India for trail on a charge of right reason and abutment of murder. He managed to step out at manse tiles throughout the port hole of a water closet. But he was captured by a French Police man who handed him over to the captain of more without extradition proceeding being a political offender. France demanded him back but the British Government refused to surrender.
ISSUE-
- Whether France was entitled extradition of Saverkar?
- What are the relevant international law and customs in this regard?
DECESION-
International court gave decision in favor of Britain and said that here is no rule extradition of international law for that reason the Britain was bound to extradition Saverker in France.
REASONING-
There is no rule or Act about extradition in International Law which ground the U.K is bound to extradite Savarkar.
CASE NAME- Alabama Claims Arbitration
PARTIES- USA vs. UK,
YEAR- 1872
PRINCIPLE-
No state can deny the international responsibilities and for these