CASE NAME- Charming Betsy case, 6 U.S.
PARTIES- Murray vs. the Charming Betsy
1) 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.
2) 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 bound 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.
- 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.
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.
- 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- Alabama Claims Arbitration
PARTIES- USA vs. UK, Moore 1 Int. Arbitration
No state can deny the international responsibilities and for these purpose to deny that not defense as the domestic or state law. But the state law have to connection in the International Law.
FACT OF THE CASE–
In (1861-1865) the USA civil war was occurred. Then Britain declared neutrality of this war and that is accepted as the USA. But the confederate navy made many warship used in civil was from Britain. The USA authority request to Britain that they can take action the company of the ship. But Britain did not take any action against such company. As the violation of the agreement USA had claimed compensation from Britain on the ground that it had violated the law of neutrality.
- Whether under the Washington agreement the Britain follow the neutrality or not.
- Whether the Britain was liable to pay any compensation to the USA or not.
It was held that the Britain failed to follow the neutrality so that Britain had to pay USA 1,55,00,000 dollars so that Britain had to pay in this amount in Gold in the form of compensation for the violation of the laws of neutrality.
- No state to keep away from international responsibility to shelter the national law.
- Each and every state has accountability to protect their national law, but not avoiding international responsibility.
CASE NAME– Anglo-Norwegian Fisheries Case
PARTY- United Kingdom v. Norway, ICJ
Extension by coastal 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.
- 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.
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-MM. 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.
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 sunds 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. Moreover, the relationship between certain sea areas and the mainland as well as the economic interests in a certain region had to be considered.
CASE NAME-Fisheries Jurisdiction Case
PARTY- Iceland and United Kingdom
Extension by coastal state of fisheries jurisdiction case, fishery Zone, preferential
rights and concurrent rights of other stats and conservation measures.
FACT OF THE CASE–
In 1948, the Icelandic Parliament passed a law on the scientific conservation of the continental shelf fisheries. The law was aimed at protecting Icelandic fishing resources since the economy of Iceland depends almost entirely on fishing in the vicinity of its coasts. The law empowered the Government to establish conservation zones, where all fisheries would be subject to Icelandic rules and control, to the extent compatible with agreements with other countries.
In this connection, in 1958, Iceland proclaimed a 12-mile exclusive fishing zone and prohibited all foreign vessels from engaging in any fishing activity within the new zone. The proclamation was the beginning of a wider policy reflected in a resolution of the Parliament of 5 May 1959, which stated that recognition should be obtained for Iceland’s right to the entire continental shelf area in conformity with the policy adopted by the law of 1948.
The 1948 law as well as the 1958 proclamation resulted in a dispute with The United Kingdom, whose vessels had traditionally fished in the area. There were a number of incidents between Icelandic naval craft and British fishery protection vessels.
On 11 March 1961, the two Governments ended their dispute with an Exchange of Notes constituting an agreement between them. The Notes, inter alia, specified that the United Kingdom would no longer object to a 12-mile fishery zone that Iceland would continue to work for the implementation of its Parliament’s resolution of 1959 but would give the United Kingdom six-month notice of any extension of its fisheries jurisdiction and that, in case of a dispute in relation to such extension, the matter would be, at the request of either party, referred to the International Court of Justice.
In 1971, the Icelandic Government announced that the agreement on fisheries jurisdiction with the United Kingdom would be terminated and that the limit of exclusive Icelandic fisheries jurisdiction would be extended to 50 miles. In reply, the United Kingdom emphasized that the 1961 Exchange of Notes was not open to unilateral denunciation and that in its view the measure contemplated by Iceland would have no basis in international law.
On 14 April 1972, following the failure of negotiations, the United Kingdom applied to the International Court of Justice. Iceland did not appear and did not appoint an agent but, in a number of communications to the Court, contended, among other things, that the 1961 Exchange of Notes was no longer in force and that the Court did not have jurisdiction in Iceland issued,
On 14 July 1972, new fisheries regulations extending its fishery limit to 50 miles and prohibiting all fishing activities by foreign vessels inside those limits. The enforcement of the regulations resulted in a series of incidents involving British and Icelandic vessels.
On 19 July 1972, the United Kingdom filed a request for interim measures of protection.
On 13 November 1973, the two Governments reached an interim agreement by an Exchange of Notes, which provided that British vessels would be entitled, for a 2-year period, to catch no more than 130,000 metric tons of fish per year in the disputed area. The 1973 Exchange of Notes also provided for temporary arrangements “pending a settlement of the substantive dispute and without prejudice to the legal position or rights of either Government.
Questions before the Court
i. Whether there was any foundation in international law for
Iceland’s establishment of a zone of exclusive fisheries jurisdiction extending to 50 miles from the baselines and, if not, whether its claim should be deemed invalid; and
ii. Whether the conservation of fish stocks in the waters around Iceland might be susceptible in international law to regulation by Iceland’s unilateral extension of its exclusive fisheries jurisdiction, or could be regulated, as between Iceland and the United Kingdom, by arrangements agreed between them.
On 17 August 1972, on interim measures, by fourteen votes to one, the Court indicated interim measures substantially similar to those sought by the United Kingdom. In particular:
· The United Kingdom and Iceland should ensure that no action of any kind is taken which might aggravate or extend the dispute submitted to the Court.
· The United Kingdom and Iceland should ensure that no action is taken which might prejudice the rights of the other Party in respect of the carrying out of whatever decision on the merits the Court may render.
· Iceland should refrain from taking any measures to enforce the Regulations of 14 July 1972 against vessels registered in the United Kingdom and engaged in fishing activities in the waters around Iceland outside the 12-mile fishery zone.
· Iceland should refrain from applying administrative, judicial or
other measures against ships registered in the United Kingdom, their crews or other related persons because of their having engaged in fishing activities in the waters around Iceland outside the 12-mile fishery zone The United Kingdom should ensure that vessels registered in the United Kingdom do not take an annual catch of more than 170,000 metric tons of fish from the "Sea Area of Iceland" as defined by the International Council for the Exploration of the Sea; and
· The United Kingdom should furnish Iceland and the Registry of the Court with all relevant information, orders issued and arrangements made concerning the control and regulation of fish catches in the area
As regards jurisdiction, the Court found that on a request for interim measures it was not necessary for the Court to satisfy itself conclusively that it had jurisdiction, unless the absence of jurisdiction was manifest. The Court held that the com promissory clause in the 1961 Exchange of Notes accorded it, prima facie, jurisdiction to hear the case.
The Court found that Iceland’s contention was not relevant. The object and purpose of the Exchange of Notes was wider in scope than merely deciding upon the Icelandic claim to fisheries jurisdiction up to 12 miles. The Notes also provided a means whereby the Parties could resolve the question of the validity of any further claims.
The Court found that if the alleged changes in fishing techniques did indeed exist, they would only be relevant for the merits stage of the proceedings. As to this stage of the proceedings, the alleged changes could not affect the com promissory clause establishing the Court's jurisdiction.
CASE NAME- Lotus case
PARTY- France and Turkey
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 a 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.
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?
Judgment was rendered on 7 September 1927. By the President’s casting vote – the votes being equally divided – the Court held that
a) Turkey, by instituting criminal proceedings against Lieutenant Demons, had
not acted in conflict with the principles of international law;
b) Consequently, there was no occasion to give judgment on the question of the pecuniary reparation
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 offense 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 offense 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 offense 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– The Barcelona Traction Case
PARTY- Belgium v. Spain
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) was 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.
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.
The Court first addressed itself to the right of Belgium to exercise diplomatic protection of Belgian shareholders in a company incorporated in Canada. The complaint concerned measures taken not in relation to Belgian nationals, but to the company itself. The Court noted that in municipal law the concept of company was founded on a firm distinction between the rights of the company and those of the shareholders. Accordingly, only the company was endowed with a legal personality, and only it could pursue a legal action on its own behalf in respect of injuries suffered, even if such an injury in fact was also an injury to several of its shareholders. In the present case, the measures complained about were not aimed at shareholders directly, and the injury suffered was a consequence of such measures against the company itself.
The Court also considered whether there might not be, in the present case, special circumstances serving as exceptions to the general rule. Two situations were studied:
(a) The fact that the company had ceased to exist; and
(b) Whether the protecting State of the company lacked the capacity to take action.
The Court found that while Barcelona Traction had lost all its assets in Spain and had been placed in receivership in Canada, the corporate entity of the company had not ceased to exist, nor had the company lost its capacity to take corporate action. Similarly, there was no dispute about the incorporation of the company in Canada where it had its registered office, and about the company’s Canadian nationality, which was generally acknowledged. Canada, therefore, being the national State of the company, in fact had exercised protection for Barcelona Traction for a number of years. According to the Court, whatever the reasons for the Canadian Government’s change of attitude, which resulted in that Government not acting on behalf of Barcelona Traction after a certain point in time, that fact could not constitute a justification for the exercise of diplomatic protection by another State. In the view of the Court, Canada continued to retain its capacity to protect Barcelona Traction. Belgium argued that it could make a claim when investments by its nationals abroad were prejudicially affected and thereby affected the State’s national economic resources. However, the Court noted such a right could only exist in the form of a treaty or a special agreement, which Belgium could not establish. Belgium further based its rights to espouse the claims of its nationals, shareholders in Barcelona Traction, on grounds of equity.
The Court rejected this also on the ground that acceptance of any such right on the part of Belgium would open the door to competing claims on the part of different States, which would create a climate of insecurity in international economic relations.
In view of the above, the Court held that the third preliminary objection was valid. The Court did not consider it necessary to deal with the fourth preliminary objection on the exhaustion of local remedies, as it upheld the third preliminary objection.
A diplomatic claim on behalf of shareholders who were its nationals, but Belgium had not succeeded in proving the Belgian nationality, between the critical dates, of those natural and juristic persons on whose behalf it had sought to claim. Judge Gross held that it was the State whose national economy was adversely affected that possessed the right to take action but that proof of Barcelona Traction’s direct connection to the Belgian economy had not been produced.
Some judges felt that, by denying the jus standi of Belgium and refraining from pronouncing upon the fourth preliminary objection on exhaustion of local remedies, the Court had missed an opportunity to contribute to the clarification and development of international business litigation and international economic relations in international law, and even simply the general international law obligations in the sphere of the treatment of foreigners.
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- North Sea Continental Shelf Cases
PARTIES- Denmark, Federal Republic of Germany and
The relation between treaties and custom s uniformity and consistency of practice.
FACT OF THE CASE–
On 1 December 1964, the Federal Republic of Germany and the Netherlands concluded an agreement for the partial delimitation of the boundary near the coast. On 9 June 1965, the Federal Republic of Germany and Denmark concluded a similar agreement.
The three States failed to reach an agreement on the boundaries beyond the limits of the partial delimitation. Denmark and the Netherlands both contended that the boundaries should be determined in accordance with the principle of equidistant. The delimitation of the boundaries near the coast had been made on the basis of this principle, but the Federal Republic of Germany considered that the prolongation of these boundaries would result in an inequitable delimitation for the Federal Republic of Germany.
On 31 March 1966, Denmark and the Netherlands concluded an agreement on the delimitation of the boundary between the other parts of what they regarded as their respective continental shelves on the basis of "the principle of equidistant". This delimitation assumed that the areas claimed by the Netherlands and Denmark were conterminous and, in particular, that the agreed boundaries between the Federal Republic of Germany and Denmark, and the Federal Republic of Germany and the Netherlands were necessarily delimited on the basis of the principle of equidistant.
On 2 February 1967, the Federal Republic of Germany and Denmark, and the Federal Republic of Germany and the Netherlands signed two special agreements for the submission of the disputes between them concerning the delimitation of their continental shelf boundaries in the North Sea to the International Court of Justice. The Special Agreements further stated that the respective Governments "should delimit the continental shelf in the North Sea between their countries by agreement in pursuance of the decision requested from the International Court of Justice".
Question before the Court:
What principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea, which appertain to each of them beyond the partial boundary as determined by the Agreements of 1964 and 1965?
The Judgment was rendered on 20 February 1969. By eleven votes to six, the Court held that, in each case,
- The use of the equidistance method of delimitation was not obligatory as between the Parties;
- There was no other single method of delimitation, the use of which was in all circumstances obligatory;
The Court first stated that article 6 "provides for delimitation between 'adjacent' States, which Denmark and the Netherlands clearly are not, or between 'opposite' States which the Court thinks they equally are not".
The Court also stated that article 6 of the Geneva Convention was not binding for all the Parties to the case, the Federal Republic of Germany not having ratified it and therefore not being a party.
Finally, the Court considered that the rest of the elements regarded as necessary before a conventional rule can be considered to have become a general rule of international law: the widespread and representative participation in the Convention, provided it included that of States whose interests were especially affected, was hardly sufficient in this case. State practice in the matter of continental shelf delimitation was not of the kind to satisfy this requirement. the Court found that the States – not a great number – which had drawn boundaries according to the principle of equidistance, had not felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so.
CASE NAME- Island of Palmas Case
PARTIES- Netherlands Vs USA
- 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.”
- 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 nulliu or not.
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.
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 Mexico, 26AJIL 390
- 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 Hawai’ 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.
- 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.
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.
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
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.
a. Where the country practically occupied or not
b. Where the country has any legal titled
The court agreed that the actual control of the country and all evidence is sufficient that is the land should be under Denmark.
To established effective occurred two elements are must be needed-
1. Land occupation for exercising sovereignty and
2. Effective expression for the will.
CASE NAME- The Temple of Preah Vihear Case, ICJ
PARTIES- Cambodia vs. Thailand
- 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 Siama neighboringkingdom which had never been formally colonized. The dispute territorial 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, whileto 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 videtur si loqui Debussy ac pottiness (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) a scale map that made a considerable error in placing the watershed, was held to fix the boundary, sup-planting the treaty text, which species a physical fact, the water-shed line, as the boundary;
(b) 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
(c)The general political condition 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 ‘Officials contacted were puzzled that the
court its judgment on a map, considered actually only a rough sketch.’ (Bangkok Post, 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 ?nality 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.
But a need to perpetually anticipate it, to respond with unmistakable vigor to any threat against sovereignty, real or imagined. Envisioning this kind of fortress mentality, where every uncertainty in representation might open a credibility gap and every silence might be a doorway to danger, the World Court of 1962may appear to us today as a haunted Hague, encircled by the ghosts of the Cold War. But already at that time, other ghosts were conjured up during the case of Preah Vihear. Acts of the delimitation commissioners of 1905–1908and their dead presidents were scrutinized for their effect on the Thai–Cambodian border, and the meeting of a dead prince and a dead archaeologist became fraught with consequence. And haunting for its absence among these ghosts of colonialism was any mention of the contemporary Holy Men’s Rebellion that so
preoccupiedthe populace of this borderland which, before consolidation of modern nation states, had been a largely autonomous collection of tributary principalities in the Khorat marginal highlands, an area the Siamese Kings called Forest Khmer Domains This paper is a route map to these mutual haunting, as I brush international law against the grain on a sightseeing tour of the many sites at which this border’s history, in words Counsel for Thailand used in the case, ‘borders on the fantastic.’
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.
Extent of the Court’s Powers in indicating Provisional Measures and Formulation of the Provisional Demilitarized Zone. The Court recalled that under Art. 75¶2 of the Rules of Court, it has the power to indicate measures that are in whole or in part other than those requested by a party, or measures that are addressed to the party which has itself made the request and also possesses the power, independent of the parties’ request, to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that the circumstances so require.
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
- 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.
- 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
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 Petrolium Company and was indebted the Royal Bank of Canada. Both British Corporation under new law both there 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.
- 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.
- 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.
Costa Rica government would be bond to perform all international obligations created by the Tinoco Governments.
- 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 ti 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- Haile Selassie Vs Cable and Wireless Ltd case
PARTY- Haile Selassie Vs Cable and Wireless Ltd
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.
Whether the decision was right or wrong.
The appeal was allowed and the action was dismissed.
- 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-Cutting Case
PARTY- U.S.A Vs Mexico
Any state can apply his jurisdiction beyond his territorial on the foreign citizen if the works of foreign citizen which was against the state citizens rights and duties.
Passive Nationality principle.
FACT OF THE CASE–
The American citizen whose name was Mr. Cutting. He public news against an Mexican citizen about his characteristic in the newspapers of Texas. The newspapers some copies are came from Mexico and the citizens of Mexico saw this. The published news against the Mexican Penal Code under section 184 which was an offence and after few days Mr. Cutting when come to Mexico for passing vacation the Marxian police arrest time.
- Whether Mr. Cutting was liable?
- Whether Mexico entitled to applied his jurisdiction or not.
The case was dismissed because of the plaintiff withdraw the case.
CASE NAME- Yunis Case 83 AJIL 94
PARTIES- US vs. Yunis
Though the discussion matter of Passive nations principle to accept but in international Law which is deny to legality of that principle.
FACT OF THE CASE–
Yunis a Lebanese resident and citizen was charged for his alleged involvement in the 1985 hijacking of a Jordanian civil air-craft in the middle east. The only nexus of the aircraft to the united state during the hacking was presence of several American nations on the flight. The aircraft was registered in Jordan, flew the Jordan Flag and never landed American soil or flew over American Airspace.
In September more than two years after the aircraft was hijacking the defended had been lured by the agent of US Federal Burecq of investigation into international waters of the coast of Cypress, where he had appeal handed and forcibly brought to the U.S.A. The defendant moved to dismiss the indictment on each the group that under general principles of international law, the court lacked subject and personal jurisdiction over a cram community by non residence alien on forcing soil and that federal law provided no independent basis for such jurisdiction.
Whether the United States passed any jurisdiction for the trial of such person?
U.S.A court held that Mr. Yunis was punished under this case.
In thievery first the court failed to draw the hearing some lacuna over states for the trail. Then the air hostage act come to assist the court and then the inspirational committee did their sob by recognizing universal and passive personality.
CASE NAME- Eichmann Case
PARTIES- Israel vs. Eichmann
YEAR-1961 36 ILR 5
The principle of this case is responsibility for crime and international adduction.
FACT OF THE CASE
Adolf Eichman was illegally adduced from Argentina member of Israeli secret services, by order of them Israel Prime Minister. David Ben- Ground to stand trial in Israel. He charged under the Nazi and Nazi collaborates Law 1950 with 15 countries of war crime and crimes against community. Under Nazi regime Eichman, by his own administration was in charge or foreign the emigration of 150000 Jews from Australia. He is the main person responsibility for fuel solution the systematic of some 42-43 million Jews. After the war see escaped Argentina and lived with his family. In 1960 Israel force kidnaps him in Argentina and came it seals in box Israel for trial.
a. Where the Eichmann was guilty by the international adduction.
b. Where the Eichmann can get protective from Argentina
It was held that the court found guilty Mr. Eichmann and decide on death penalty. Mr. Eichman appeal from Israel Supreme court affronting the judgment.
The abhorrent crimes define in the law are not crimes under Israel law alone. These crimes which stuck at the whole mankind and shocked the conscience of nation are great offense against the law of nations itself. Therefore so far from international law negating or limiting the jurisdiction of countries with respect of such crimes. International law is in the assert of an international court. In need judicial and legislative organization of every country to give effect to its criminal interdiction and bright criminal to trial. This jurisdiction to try crime under international law is universal.
CASE NAME- Dikko Incident Case
PARTY- U.K Vs Nigeria
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 an 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.
Whether it was reasonable to open diplomatic bag by the airline authority?
The court held that, the airline authority does this which is necessary to avoid the use advantages diplomatic.
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
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 Teheran 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.
- 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?
International courts of Justice held that though Iran government was bound to protect the diplomatic mission. So that Iran Government was not doing this they are bound to pay compensation.
a) Violation of official correspondents.
b) Violation of achieves and documents.
c) Violation of Vienna Convention 1961 22(1) and 22(2)
CASE NAME- The Crying Suitcase
PARTIES- Egypt vs. Italy
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.
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?
The work which was done by the authority was not violation of International law although it was necessary to do.
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- Savarkar Case
PARTY- France Vs. Great Britain
If any state did not granted any persons asylum or mistakenly send him other state for that reason after then aht the state send first other didn't cleared again or the state lastly gave asylum didn't bact the person and that claimed has no validity.
FACT OF THE CASE–
Vinayak Domodor Savarlar was being transported in Mone to India for trail on a charge of right reason and abutment of murder. He managed to step out at mansetiles throughout the port hole of a water clobet. 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 Frenz was entitled extradition of Saverkar?
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.
There is no rule or Act about extradition in International Law which ground the U.K is bound to extradite Savarkar.
CASE NAME- Dey-Et.El Case
PARTIES- Dey-Et.El Vs T.W.A
After completing the checking process of passenger on that here the responsibilities of airline management starting and it is completing after Disembarkation
FACT OF THE CASE–
Dey and the others was passenger in TWA. After completing their checking in Athene airport the were waiting in lough. That time a terrorist attacked on airport. For that reason 3 passengers were died and 40 injured. Dey one of them. Dey and other passenger claimed compensation in TWA. TWA said that his is responsibility to high air authority.
- TWA was bound to pay compensation?
- Whether it was the responsibility in TWA?
The decisions happen in the case that TWA was responsible to pay compensation.
It was responsibility of the airline authority after the completion of checking
CASE NAME- Harnandez Case
PARTY- Harnandez Vs Air France
Completing the checking process of passenger at that time the responsibilities of airline authority will be started and it will be completed after disembarkation of passengers.
FACT OF THE CASE
Mr. Harnandez was a passenger of Air France. After landed the plain at Chelsea the Gal airport in Paris he was waiting in the airport for his larges after completed disembarkation. At that time there was an attacked by Terries and Mr. Harnandez injured. He claims compensation in Air France.
- Whether disembarkation was complete or not?
- Whether Air France was bound to pay compensation or not?
The court held that the disembarkation was completed and on that time the responsibility of air France was finished. So that Air France not bound to pay compensation.
When the disembarkation complete, responsibility of the air France also end with that. So air France is not bound to pay compensation.
Case Name-Aerial Incidence Case
Party-Israel Vs Bulgaria,
A state has to right to protect her airspace and if any intrusion on the state any state can took defaced or other.
FACT OF THE CASE:
In 1955, 27 July a business flight EL AL Israel Airlines Ltd goanna from London to Paris then Israel. On the way the airspace of Bulgaria without permission entered then the fighter plane of Bulgaria search to follow and the attracted on the business plain by the fighter plane in Bulgaria and blasts it. For that 7 cure and 51 passengers was died.
- Whether Bulgaria was any right to attack a business plain?
- Whether the passenger are entitled to get competitive.
The court accepts the argument of Bulgaria. After that the Bulgaria gave compensation they died persons family the amount of 19.5 million us dollar.
Every Sovereign state have right to protect their airspace safe and secure.
CASE NAME- U-2 Case
PARTIES- U.S.A vs. USSA
It is a right to protect own airspace and make sure the sovereignty. The state can make any type of action if a military aircraft entire without permission in their airspace.
FACT OF THE CASE–
On May 1, 1960, a U-2, a US high altitude reconnaissance aircraft, was shot down at a height of 20,000 meters over soviet territory. The airplane had taken off from Pakistan and was schedule to land in the Finland and after taken aerial photographs while over soviet territory. The USSR protested at the flight. The US did not try to justify its action in terms of international law or protest at the shooting down or of the subsequent trial of the pilot. The lack of protest by U.S in this case in consistent with the view that, other them in the case of entry in distress, international trespass by military aircraft may be met by the use of force without warning.
- Whether there have any rights to soviet territory to shoot military aircraft?
- Whether the aircraft trespass Soviet territory?
Soviet court held that, the force of Soviet which does legal and Mr. Powerson (pilot) wars punished 10 years imprisonment.
State can take any reasonable step to protect his airspace.
CASE NAME- The Libyan Airline Tragedy
PARTY-Libyan Vs Israel
To force any non-government/ non military aircraft which was not consider according to the international law and which is not consent for the reason of that to land in the aircraft which is without the conscience of mind.
FACT OF THE CASE–
In February 1973 a military aircraft of Israel shootout a Libyan business plain blasted in place of Shinai Mountain on airspace for those 106 passengers was died. On the report of ICAO, the aircraft entered without any intention to entire that area. Israel says though the high time of the military situation the Israel know that aircraft may be used by destroying work. The added that they signaled may times to land the aircraft.
- Whether Israel has any power to do that?
- Whether it was violation of international law?
Whatever the situation arise, any state have no right to attack any civil aircraft.
In the conclusion of ICAO report they published whatever the conditions there have no right to attack any civil aircraft. This is obviously violation of international law.
It is not endurable that the abide by the civil aircraft. Because it might not be understand by the civil aircraft pilot.
CASE NAME- Korean Airline Tragedy
PARTIES- USSR vs. Korea
I case of civil aircraft there is no weapon or force applied again the aircraft. Which is not applicable UN convert rule 51?
FACT OF THE CASE–
On September 1, 1983, Korean Airlines Boeing 747 airliner, Flight 007 was on the last leg of a flight fromNew York Cityto Seoul, with a stopover in Anchorage,Alaska. As it approached its final destination, the plane began to veer far off its normal course. In just a short time, a Soviet Su-15 interceptor fired two air-to-air missiles at a Korean Airlines Boeing 747 airliner, Flight 007, destroying the aircraft and killing all 269 crew members and passengers. Soviet air defense units had been tracking the aircraft for more than an hour while it entered and left Soviet airspace over the Kamchatka Peninsula. The order to shoot down the airliner was given as it was about to leave Soviet airspace for the second time after flying over Sakhalin Island. It was probably downed in international airspace. For that reason 269 passengers with all crews was died for life and property damages USSR claimed compensation. Britain only claimed compensation 2 million pound for death of their citizen.
- Whether USSR has any right to shootout civil aircraft.
- Whether USSR was liable for that incident.
The report of Icon the attitude of the URRS was very much criticized. The main incident was that in law USSR invent missile which was through in Air to Air and the effect of the examiner. After that URRS president Govechev gave an amount of compensation of Korea and gave pardon.
It was observed by the ICAO that the circumstance arose negligence or fault by the craft crews .And next it brought soviet Union invent missile which was through air to air.
CASE NAME- Prof. Nurul Islam and Others Govt. of Bangladesh and others Case
NO state can deny the international responsibilities; avoid this responsibilities not defense as the domestic or state. But the state law have 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 alardness 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 Parlament and to lost the power of Law. So now in Bangladesh there is no law existence to obstruct the advertisement of Tobacco Products.
Whether cancellation of Voyage of Discovery to come though there is no law existence.
The decision of the court that the obstruct to come the “Voyage of Discovery” in Bangladesh.
Bangladesh is bound to follow the international law accordance with article 25(1) of the Bangladesh constitution.
CASE NAME- Arantzazu Mendi Case
In the circumstances there is no distinguish between the De- Jure recognition
and defacto 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 rem 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 impleaded a foreign sovereignty state namely. The antionalsit government of Spain.
- 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.
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.
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- Ex Parte kolezynski case
PARTIES -Poland vs. UK
The offender kept away in which state, the state Judiciary or supreme Court will be decided at very offense was political offense or not.
FACT OF THE CASE–
Mr. Kolezynski was an Polish citizen. He was an in Polish ship. He and other some sailors protists against the captain in ship and kept away from Britain and claim asylum there. On sea if made any offense the Poland has only the trial there to adjudicate their sailor in this ground Poland claimed there sail. Then kolezynki said that they need to freedom of common and kept away in Britain which was an demonic country to freely. If extradition there in Poland they tried by not to sailors, they trial for protest communistic.
- Whether it was an political offense
- Whether Britain Extradition to Poland?
The court held that to free from communism Mr. Kolezynski and his other sailors happened the offense which was an political offense and decided that Britain was not bound to extradition them.
CASE NAME- Govt. of India vs. U.C.C (Bhopal) corp.
Active nationality Principle
The powerful country time to time change their choice as they needs of Active Nationality principle and passive Nation Principle and they use it as they want.
FACT OF THE CASE–
Union carbide corporation (U.C.C) which is an multinational company and the head office situation U.S.A. In India Bhopal a of this company established those are mainly responsible for the of gas at Bhopal in 1984. For there unresponsiveness the pipe of gas linked and the blast was happened thousands of people was and many people injured.
- Whether U.C.C was responsible for the incident?
- Whether Govt. of India entitled to get compensation as active nationality principle or not?
The supreme court of Bhopal held that U.C.C has to pay compensation 470 million dollar.
CASE NAME- Kerr Case
PARTIES- Kerr vs. Illinois
YEAR- U.S. Supreme Court (1886)
If extraditable which is in the treaty is the extradition office is extraditable person.
FACT OF THE CASE–
An acting for the state of Illinois went to Peru with a warrant for the extradition of Kerr under the extradition the between the U.S. and Peru. At the theme Peru was with Chile and the most of Peru, including Lima, was in Chilean hands. In this confused situation, the agent approached the Chilean military authority in Lima and with their assistance, obtained custody to Kerr and took him back to Illinois. No approach was made to the Peruvian Government which was still in existence in retreat, and no recourse was hard to the extradition treaty. Peru did not protest against the agent's action Kerr’s trade.
- Whether any jurisdiction of Illinois court to adjudicate the matter of Kerr?
- Whether there is any effect for unjustified arrest of Kerr on case?
The court held that, it was not violation of sovereign of Peru to adjudicate the matter of Kerr are the process and came to before the court thought it was illegal but it was effect on trial.
The U.S. Supreme court ruled that Kerr's trail was not country U.S. Constitution. For that view that the case involved violation of Peruvian territorial sovereignty because the Chilean authorities were competent. In the situation prevailing at the time surrender Kerr.
CASE NAME- Re Menuier Case
PARTIES-France vs. U.K. Q.B.D
If any distractedness creating group believe and to destroy the on that state law which was not treated a political disturbance.
FACT OF THE CASE–
Mr. Meunier was a French citizen. He was an explosion believer. He believes that there was no state and no any govt. in the state. In this political interface on him. To destroy the of the explosion many place by bombing in the state. His explosion by two bombs in military shelter and left in Britain. Menuier shown the cause of political disturbance and Britain could not extradite.
- Whether it was a political disturbance?
- Whether it was a extraditable matter?
Britain bound to Mr. Meunier extradition in French
Mr. Meunier was an explosion-er and terrorist so that it was an offense which was under criminal jurisdiction. Terrorism could not a political disturbance. If political disturbance the two very party must be related with each other.
CASE NAME- Russia Ship Case
PARTIES-USSR vs. USA
YEAR- USA Federal Court.1948
In this case “Pur Un Parem non-habet imprium or equal over equally don't have any authority” – by this principles every state is equal it is established.
FACT OF THE CASE–
This is the passenger ship at Russia turn by the state in the board there were two American citizens. When the ship crossed Atlantic in order to reach New York. The heavy wind made the ship trouncing and two American women fell down and hurt. On reaching New Your Port the two women filled a compensation case and requested to hold the ship until the judgment was completed.
a) Whether the ship was the wealth of state or not.
b) Whether the ship was arrested it is contrary of International law or not.
The court was held that the Russia to be free.
It was observed by the court that since ship was the wealth of Russia and it was included in Sovereign authority. So America did not have the authority hold the ship.
CASE NAME- Extradition Case
Doctrine of Prima Facie.
Extradition claimed state not back the kept away person on that state until or unless the slandered state gave the documents against that very person.
FACT OF THE CASE
V.S Tarnsov was a sailor on a Russian oil Tanker. He charged for theft of Rs. 700 on November 25.1962. He jumped American Steel surveyor on 25th November. An enquire made judicial Magistrate as per section 5 of the Indian Extradition in his judgment on March 29,1963, no prima facie could be against Tarnsov on the basis of the report submitted by M.F the captain of ship(Tanker).
a) Whether there was any Prima Facie on this case?
b) Whether Tarnsov was extradition by India?
There evidence against Tarnsov was not convenience this extradition was not allowed to the Soviet Union by the India Government.
There is no evidence which was necessary to prove the Prima Facie Case.
CASE NAME- Ambatielos Case,
PARTIES- Greece vs. UK, Commission of arbitration
In order to provide diplomatic protection, the existing all local remedies must be exhausted by that party.
FACT OF THE CASE–
Ambetilos, a Greek national, did a agreement in 1919 to purchase a number of ships from the British Government. The UK Government had given the credit on the seller but had retained a mortgage over the vessels and in due course proceeding was taken to enforce the mortgage. Ambetielos claimed in his defense that he British Government had given an undertaking that vessels would be delivered by specific dates and that he had suffered a loss as result of the late delivery of some of the vessels and sought to cancel the contract of purchase in respect of two of the ships. But the British Government refused demand. In the lower court he failed and he applied in the Appellate court and the same judgment sustained. He did not then appealed to House of Lords. The claim was then submitted to a commission of Arbitration in accordance with the provisions of the Anglo-Greek Treaty of Commerce and Navigation of 1886. before the tribunal UK invoked the local remedies rule and submitted that available local or procedural remedies had not been exhausted by the party. While Greece contended that the remedies which English law offered were ineffective and therefore not applicable.
Whether all the local remedies were exhausted by Ambetielos?
The commission found that the local remedies had not been exhausted. The party went to the lower court where he failed and after that he applied in the Appellate Court were the judgment of the lower court was sustained. Subsequently Ambetielos did not appeal to House of Lords. Thus the jurists raise the question that Ambetielos did not exhaust all the possible local remedies.
According to the decision of Arbitration
a. As the opportunity to make an appeal to the House of Lords had not been met, it was contended that local remedies had not been fully exhausted.
b. The ourt further contented that the party weren’t to the lover court where he failed and after that he appealed in the Appellate Court where the judgment of the lower court was sustained.
c. Subsequently Ambetielos did not appeal to House of Lords. Thus the jurists raise the question that AMbetielos did not exhaust all the possible local remedies.
Case name: Asylum Case
PARTIES- Columbia vs. Peru
International Court of Justice,
An unsuccessful military rebellion took place in Peru in October 1948. it was suppressed on he 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 Torres, the head of the American Peoples Revolutionary Alliance and a Peruvian national, in connection with the rebellion. On 3 January 1949 Haya dela 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.
In determining the issues involved, the International Court of Justice considered the following issues:
a) 1.whether Columbia is competent to qualify the offense of Haya de la Torre and granting asylum.
- Whether the granting of diplomatic asylum wags a practice or custom in the region of Latin America.
b) 3. Whether such asylum was being practiced recurrently as customary norms of the international law.
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.
The following reasons have been considered by the International Court of Justice for its decision:
Firstly, the Colombian Government invoked the rule of “American international law in general”. In addition to that rules the court has relied on an alleged regional or local custom to Latin-American State regarding diplomatic asylum.
The party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party. The Colombian Government must prove that the rule invoked by it is in accordance with constant and uniform usages practiced by the States in question. And this usages is the expression of aright appertaining to the State gaining asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, Which refers to international custom as evidence of a “general practice accepted as law”.
Secondly, Counsel for the Colombian Government riled particularly on the Montevideo Convention of 1933. it is contended that this Convention has merely codified principles which were already recognized by Latin-American custom, and it is valid against Peru as a proof of customary law. The limited number of States which have airfield this convention ravels the weakness of this argument, and furthermore, it is invalidated by the preamble which states that his convention modified the Havana Convention.
Finally, the Colombian Government has referred to a large number of particular case in which diplomatic asylum was granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification for granting diplomatic asylum was invoked. Moreover, if in some cases it was in fact invoked-that it was apart from conventional stipulations, exercised by the States granting asylum as rule appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency. But even if it could be supposed that such a custom existed between certain Latin-American States only, it could not be invoked against Peru which, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offense relating to diplomatic asylum.
Note: this case was also referred to International Court of Justice for determining the existence of regional international law among certain Latin American countries. It was further contended in an orbiter dicta that if there is no conflict between regional and international law then the regional law may prevail over international law.
Case name:Caire Claims
PARTIES- France vs. Mexico
Supporting the objective state responsibility doctrine it was added in this case that the state also bears international responsibility for all acts committed by its officials or organs regardless of the point whether such officials or organs have acted so within heir limit or beyond their limit.
Mr. Caire, a French national, received a demand for 5000 mexican dollars under threat of being shot from Major Avilla, a follower of the confectionist General of the then Mexico. Mr. Caire was unable to meet this demand and offered all he had in paper money 200 dollars. He was thereupon taken away by avilla and hot, together with M. Flores who had intervened on his behalf. His widow brought a claim before the national Claims Commission, which greed that his death had been caused by confectionist force then in control of Mexico. But it was held that the claims law of 1919 which cuisine the commission and not regarding the Confectionist forces. So it decided not to grant an indemnity. The matter was then refereed to the Franco-Mexican Commission. The matter was decided in the light of the Franco-Mexican Conventions-1924.
1. Whether the persons responsible for Mr. Caire's Killing belongs to one of the forces mentioned in the Paragraph 1 to 4 of Article 3 of the Franco-Mexican Convention, 1924?
2. Whether Mexico can be held liable for an act of an individual who was a member of connections soldiers?
Answering to both the issues affirmatively the Commission by a majority vote decided, amending the dicta of the National Claim Commission that Mr. Jean Baptiste Caire was assassinated by forces envisaged in Article 3 para 2 of the convention and awarded to his successors, by way of indemnity the sum of 20,000 Mexican Gold pistes without interest.
The assassination of Mr. Caire must be attribution to revolutionary forces because the force belonging to the General played a part in the revolutionary movement of 1913 and killers of Mr. Caire were his followers. The state must be considered as obliged to exercise a higher vigilance in anticipating wrongs committed by any soldier acted without order.
Case name: Chorozow Factory case
PARTIES- Germany vs. Poland
It is a general principle of international law that any breach of an engagement involves an obligation to make reparation.
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.
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 bound to make reparation to Germany.
PCIJ in its judgment by 9 votes to 3 decided that Poland acted in Breach of its obligation under the convention of 1922 and therefore owed reparation of Germany.
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 exceptional 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 dispensable 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 sustained by the injured party.
Case name: ELSI CASE, ICJ,
Before brining any claim for injuries suffered by private individuals it mus be proved that the legal remedies available by the individuals has been exhausted.
The dispute arose out the requisition by Italy of the Plant and other assets of Electronica Sicula SPA (ELSI). It ias an Italian Corportation wholly owened by two US corporations. The authority had begun to pan for the liquidation of ELSI. Then the US claimed compensation for the two US corporate share holder of EISI. By virtue of treaty 1948 Italy argued that local remedies had not yet been exhausted. The name of the Treaty was the Friendship commerece and Navigation Treaty of 1948 between USA and Italy. But against this proposition of Italy USA argued that the Treaty was silent regarding the exhaustion of local remedies and so suit must be filed before ICJ.
- Whether the claim of USA is admissible?
- How much entertain able the Italian ground for exhaustion of local remedy?
Italian proposition must be followed at first. This the local remedy must be met at first if then ay party is dissatisfied then they can approach to any International forum.
It is established principle that the parties to the treaty can agree that the local remedies rule will not apply to claims based on alleged breaches of that treaty or the parties to the treaties can confirm that it shall apply.
If any state wants to omit it e.g. exhaustion of local remedies rules, it must be clearly maintained in the teratyu, otherwise it will be conceded that the states will follow the principle of exhaustion of local remedy. In this case as such omission was not maintained in the treaty, therefore USA cannot file any suit t o ICJ.
Case name: Governemnt of Greece vs. Governor of Brixton Prison
PARTIES- Government of Greece vs. Governor of Brixton Prison
The decision to extradite an offender is often highly influenced by political ideology of the requested State.
A Greek fugitive falsely collected a huge sum of money and managed to flee away to United Kingdom. He was convicted in his absence by a Greek court by the allegation of obtaining money by pretenses. He argued that he was determined opponent of the ten military Government in Greece and had been detained without trail for several years. He thus had good reason to fear further such detention, in addition to the sentence arising out of the criminal conviction, if he were returned to Greece. The Government of Greece demanded his extradition to the UK.
The issue before the UK court was whether the Greek national can be extradited.
The court rejected the arguments on behalf of the Greek National, and ordered for his extradition.
The court showed the following reason for their decision. “it would be a clear breach of faith on the part of the Government of Greece if he were detained in Greece otherwise than for the purpose of serving his sentence and it appears to me to be impossible for our courts… to assume that any foreign Government with which her Majesty's Government has diplomatic relations may act in such a manner” said Lord Reid.
Case name: Joyce vs. Director of Public Prosecutions
PARTIES- Joyce vs. Director of Public Prosecutions
Whether an alien can be convicted of high treason-act committed outside the United Kingdom.
The appellant was an American citizen born in the United States of America in 1906, the son of a naturalized American citied who had previously been a births subject by birth. At about three years of age, the appellant was brought to Ireland. In 1921, he came to England where he stayed until 1939.
On 4 July 1933, he applied for a British passport describing himself as a British subject by birth, born in Galway. He asked for the passport for the purpose of holiday touring in Belgium, France, Germany, Switzerland, Italy and Austria. He was granted the passport for a period of five years. On its expiry, again describing himself as a British subject. He obtained renewals on 26 September 1938 and on 24 August 1939 each for a period of one year.
On some day after 24 august 1939 the appellant left the realm. On his arrest in 1945 it was proved that he had been employed by the German radio company of Berlin as an announcer of English news from 18September 1939 and that he had broadcast propaganda on behalf of the enemy. The pass port was not found in his possession when he was arrested. He was charged with High Treason by adhering to the King’s enemies elsewhere than in the King’s Realm, to wit, in the German Realm, contrary to the Treason Act 1351. Having been convicted of high treason, he appealed.
The appeal was dismissed. An alien abroad holding a British passport enjoys the protection of the Crown and if he is adherent to the King’s enemies he is guilty of treason. So long as has not renounced that portion.
It is clear that the question for your Lordship determination is whether an alien who has been resident within the realm can be held guilty and convicted in this country of high treason in respected of acts committed by him outside the realm.
The competence of a state to prosecute and punish its nationals on the sole basis of their nationality is based upon the allegiance which the person charged with the crime owes to the State of which he is a national. It is now universally accepted that a state may prosecute its nationals for crimes committed anywhere in the world.
Also, in this case the protective principle was accepted by the House as providing can alternative basis for jurisdiction. Neer Claims, 1926
Case name: Neer Claims
PARTIES- USA vs. Mexico
In this case, the court affirmed the doctrine of objective responsibility of the state. According to this doctrine the responsibility for the acts committed by its officials or its organs develop upon the state itself.
Paul Neer, an American citizen was superintendent of a mine near Guanacvi, state of Durago, Mexico. On November 10 1924, at about 8 pm. He and his wife were riding from the village to their nearby home. In that way they were stopped by a group of armed man. The American was killed.
Mrs. Neer summoned help, and the village authority went to the scene where it took place. On the following morning the local judge examined some witness including Mrs. Neer. Several days passed during which a number of suspects were arrested but released subsequently because of lack of evident. Mrs. Neer filed a claim of $1,00,000 for her and her daughters, charging that the Mexican authorities showed an utmost negligence in investigation of her husband's death. The claim was placed before he US-Mexican General Claims Commission.
How to determine the degree of lack of due diligence on the part of the Mexican authorities? Because of lack of due diligence to what extent it creates the ground of state responsibility for Mexico?
The administration decided that there had been no lack of due diligence to justify state responsibility and therefore rejected the American claim.
The local authorities were handicapped by the fact that the only eye witness of the murder Mrs. Neer failed to supply sufficient information. For that reason the Mexican authority failed to arrest the murderer. The activities of the Mexican authority did not properly prove the lack of due diligence on their part.
Case name: Nicaragua Case, ICJ.
PARTIES- Nicaragua vs. USA
There is no customary rule in International Law permitting a State to exercise the right of collective self-defense in another country on the basis of its own assessment of the sanitation.
In 1979, U.S. Supported samoza Government in Nicaragua which was overthrown by Sandinista revolutionaries. In 1981 U.S.A. Terminated its economic aid to Nicaragua on the ground that it had aided guerrillas fighting against the U.S. Supported EI Salvador Government.
On April 9, 1984 Nicaragua filed a case against the U.S.A in the international Court of Justice charging U.S.A for illegal intervention in the internal affairs. Nicaragua claimed that the U.S.A had, which was contrary to the customary International law, used direct armed forces against it by laying mines in Nicaraguan internal and territorial water causing damage to Nicaraguan ports, oil installations and naval base. Moreover, and given assistance to the contra rebels. Nicaragua further claimed that the U.S.A acted in breach of the 1956 U.S.A. Nicaraguan Treaty of Friend hip, commerce and Navigation.
The main issues of the case were as follows:
- Whether the International Court of Justice had the jurisdiction to entertain such dispute.
- Whether there is any rule in customary International Law permitting another State to exercise the right to collective self-defense on the basis of its own assessment of the situation;
- Where U.S.A had infringed the customary International Law regarding the use of force and intervention
- Whether Nicaragua is entitled to any compensation.
In this case the U.S.A did not appear and on may 10,1984 in its interim measure the court held that U.S.A should immediately cease and refrain from any action restricting, blocking, or endangering access to or from Nicaragua ports and in Particular the laying of means. The court further held that it had jurisdiction to entertain the application filed by Nicaragua.
The court further said that there is no justification on the part of U.S.A to apply collective self defense in connection with the military and Para military activities in and against Nicaragua nor her is any such international customary rule to do that. Therefore, Nicaragua is entitled o get compensation. But the court did not fix the amount of compensation.
In the decision the court considered the following reasons:
- According to the Art. 387 of the Statue of the International Court of Justice, the court is entitled to apply custom where there is an evidence of general practice of practice of that custom.
- The general practice of the custom is accepted by law. Form the fact of the case it appears that there is a consumer grading the non use of force and non intervention. As it is a generally practiced custom it is accepted by law. So the court has full power and jurisdiction to entertain the issues.
- There is no rule in customary International law permitting another state to use the right of collective self defense until it is invoked. It is expected that the state for whose benefit this right is used will have declared itself to be victim of a armed attack and as it was there won internal factor, the U.S.A had no jurisdiction to exercise their power in the internal matter of Nicaragua.
- By laying mines in the internal or territorial waters or Nicaragua, U.S.A was in breach of its obligations under customary international law not to use force against another state, not to interrupt in maritime commerce. U.S.A by attacking on Nicaragua territory violated the object and purpose of the treaty of friendship, commerce and Navigation, 1956.
Case name: Nottembohm Case, ICJ,
PARTIES- Liechtenstein vs. Guatemala
A state can offer nationality to anybody only on the condition that it does not affect the interest of a third country.
Mr. Friedrich Nottebohm was born at Homburg Germany on September 16, 1881. He was a German by birth and still possessed German nationality when in 1939 he applied for naturalization in Liechtenstein. Meanwhile,
In 1905 he went to Guatemala. He took up his residence there and made that country the head quarter of his business. From 1905 he continued to have business relations with Germany and occasionally visited that country on business purpose. Some of his relatives lived in Germany and some in Guatemala. After 1931 he paid a few visit to a brother resident in Liechtenstein. But he himself continued to have fixed abode in Guatemala until 1943.
The law of Liechtenstein regarding nationality laid down certain condition for nationalization of foreigners including 3 years residence. In his application Nottrlebohm sought dispensation of the qualification and asked that the naturalization be effected without delay. A certificate of nationality had been produced to the effect that Mr.Nottebohm was naturalized by supreme resolution of the Raging Prince dated October 13, 1939. Having obtained a Liechtenstein passport he had a visa from the Consul General of Guatemala at Zurich on December 10,1939 and returned to Guatemala at the beginning of 1940. Where his change of nationality was enrolled on the register of Aliens. He resumed his business activities there again.
In 1943, during the World War II, his property was taken over, while he was arrested and transferred to the USA Military authorities and interned in the USA. After the war, in 1946, when Nottebohm was refused readmission to Guatemala, he went to Liechtenstein. By the application of December 17, 1951, the Government of Liechtenstein in instituted proceeding before ICJ in which it claimed restitution and compensation on the ground that the government of Guatemala had acted towards the person and property of a Liechtenstein national in a manner contrary to international law.
- Can Liechtenstein claim on behalf of Nottebohm?
- What should be criteria to determine the problem and to solve it in this situation?
ICJ by 11 votes to 3, held that, the claims submitted by Liechtenstein was inadmissible.
The principle applied here is the genuine link principle to determine the nationality of Nottebohm. Nottebohm had been settled in Guatemala for 34 years, he had carried on his business activities there. It was the main seat of his interest. In contrast to his actual connections with Liechtenstein were extremely tenuous. No settled abode. And from the fact it was clear that he maintained genuine link with Germany. So ICJ gave such decision.
Case name: Rainbow warrior incident.
PARTIES- Netherlands vs. France
The rainbow Warrior was a ship belonged to Green Peace. It anchored at the port of the Netherlands. Its main purpose was to oversexed France Nuclear Test activities in the Pacific. At that moment France was conducting the test upon the island of Bikini. France being desperate to get rid of this ship sent two naval officer to secretary the ship, Rainbow warrior, and that was successfully done by them. Netherlands at first filed a suit in the ICJ claiming damages from France. Later the case was withdrawn and they became agree to mediate the matter under the mediation of UN secretary General.
Whether France has incurred state responsibility by destroying the ship Rainbow Warrior anchored in Netherlands?
The Secretary General decided that the alleged act was imputable to France and awarded Netherlands 7 million US dollar as compensation. But Netherlands refused accept money rather claimed that –
- France must apologies and must promise not to repeat such act of infringing territorial interglacial in future and
- The two accused naval officers who committed the offense in person would stay in Netherlands' island for 3 years during which period they would not be permitted to leave Netherlands. France agreed to comply with their two conditions.
France violated the territorial integrity of Netherlands which affected the legitimate interest of Netherlands.
Case name: Re Castioni, Queen's Bench Division, Great Britain
PARTIES- Switzerland vs. Great Britain
Which the prisoner had committed was incidental to and formed a part of political disturbances, and therefore was an offence of a political character within the meaning of the statute, and the prisoner could not be surrendered, but was entitled to be discharged from custody
Angello Castioni, a Swiss citizen, had participated in an uprising on September 11, 1890 in the Canton of Tinoco. The revolt was against the administration. A large group of citizen including Castioni, seized the Arsenal of the town of Belizean, disarmed the police, caught and seized several persons connected with the Cantonal administration and forced them to march in from of the armed crowed to the municipal palace. Mr. Castoioni was armed with a receiver. Rossi, a policeman was shot and die. A witness later unidentified Castioni as the person who fired the fatal shot to the policeman. Castioni then fled to Great Britain and the Swiss Government formally requested to arrest and extradites Castioni on the charge of having committed willful murder. After his arrest his legal representative asked for the issuance of writ of habeas corpus and for the freeing of Castioni, claiming that he had been guilty of only a political murder.
- Whether the authority is bound to be extraditing Castioni?
- Whether the offense committed by Castioni, was a crime of political nature?
The court held that the authority is not bound to extradite Castioni.
The court ruled that Castioni had committed act and it was part of an attack on the palace. The act was connected with an uprising aimed at the Cantonal Government and his was a struggle between two groups. Castioni in this situation had no personal feeling against Rossi. He shota t Rossi in the promotion of a political uprising. His act constituted a political offense, for which he could not be surrenders to the Swiss authority on the ground of extradition.
CASE NAME- The Reparation Case
PARTIES- United Nation vs. Israel
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.
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 for 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 Assemble sought advice of ICJ in this regard.
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.
- Weather 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 calim for compensation against a non member state.
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.
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, achieving international co operation in the field 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 personality.
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 reconciliation.
Case name: Youman’s Case.
PARTIES- USA vs. Mexico
A lieutenant of State forces in a town in Mexico was ordered by the Mayor of the town to proceed with troops to suppress a riots and attacks against certain American citizens. Instead of dispersing the rioters, the troops did just the reverse- they joined the rioters cause. They started firing the house in which the American’s taken refuse. In the process, all the American’s succeeded to flew though the back door, except one- Mr. youman, and he was killed. USA lodged a claim against Mexico for compensation of her national and the case was sent to Arbitration Council.
Whether the ultra virus act of the Mexican soldiers would be imputable to Mexican state responsibility?
Mexico would be responsible for the wrongful acts of the soldiers even though they acted beyond the scope of their authority.
1. The principle of international law regarding state responsibility is that a state shall be responsible for the act of the persons under its authority even though they acted ultra viers. Here the soldiers were under the authority of Mexico, tough they killed the American disobeying the superior authority.
2. The acts of the Mexican soldiers were directly imputable upon the state. So Mexico cannot be exempted from the responsibility.
CASE NAME- Luther vs. Sagor Case
PARTIES- Luther vs. Sagor
YEAR-1921 1kb 456(1921) 3kb each kings bench division court of appeal.
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.
Whether the high court bound to take notice from the soviet decree or not.
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.
On appeal the decision in favor of the plaintiff was keep in the light of the intervening appreciation of the soviet government by the British government. This appreciation was held to be retrospective and to date back to the actual coming into being of the predictable entity.
CASE NAME- Interhandel Case
PARTIES-Switzerland vs. USA
It is s general principle that before any international proceeding it must be proved that local remedies of the state have been exhausted.
FACT OF THE CASE-
Interhandel, a Swiss company, had business in USA. The authority of USA seized the property of the company on the ground that the company was under the control of German people. So it was a company controlled by their enemy. The USA Govt. had seized the company under the provision of trading with the Enemies Act.
From 1919 onward the company tried to recover the property from USA. Till 1950 the litigation continued. After 9 years Switzerland sued USA and went to the ICJ. Switzerland invoked the ground that local remedies have been exhausted in USA.
Whether the company can file a suit to ICJ on the ground that local remedies has been exhausted.
ICJ held in favor of USA and decides that local remedies were not exhausted.
A. In this case when the company filed the suit in the international forum then the USA raised the issue that the case is in case list of the local court. Providing this document USA demanded that local remedies had not been exhausted.
B. While the application to the ICJ was made, the USA Supreme court had granted a writ of Certiorari and remanded Interhandels case to the district court. The remedies were available to the trading with Enemies Act.
CASE NAME- The U.S.S.A. Lorry Case
PARTIES- USSR vs. West Germany
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.
§ 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.
A. The court held that
B. The seizure of a bag must be reasonable.
C. A lorry cannot be said or accepted as diplomatic bag.
a. Article 36 deals with exemption of diplomatic bag from customs duties and search
b. 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- Abu Daud case
PARTIES- France vs. Germany and Israel
The apex court was decided whether it was political offence or not.
FACT OF THE CASE
In 1976 the Olympic game in Munich 1976 the Olympic game in Munich, and palatine Abu Daud murdered by bomb blast the athletic in Israel. After that, Abu Daud kept from franc end leave in there but the in from of France arrest him in there. After arrest Abu Daud German and Israel both are clamed extradition when the news was published Germany clamed for the reason the offence was made his country. On the other hand Israel clamed for that reason to murder his athletic, and Palestine Abu Daud murdered by bomb blast the athletic in Israel. After that, Abu Daud kept from franc end leave in there but the in from of France arrest him in there. After arrest Abu Daud German and Israel both are clamed extradition when the news was published Germany clamed for the reason the offence was made his country. On the other hand Israel clamed for that reason to murdered his athletic
Whether there has any right to clamed extradition Germany or Israel.
The court held that board that countries are right to clamed extradition
- Germany did not claim Abu Daud for extradition in a proper way.
- The crime did not occur in Israel so that they have no right to extradite him in Israel.