A REPORT ON SOME IMPORTANT INTERNATIONAL CASES
Asian Agricultural Production Ltd. Vs. Srilanka, ICSID, 1990
Under the principle of subjective state responsibility if a state fails to show that standard of protection has taken, then that state would be responsible for its subjects act.
This case was brought by a British Company against Srilanka before a tribunal established under the convention for the settlement of Investment Dispute 1965 to which both Srilanka and UK were parties on the basis of the consent given by Article 8, Srilanka-UK Bilateral Investment treaty 1980. the company claimed compensation for the destruction of its lankan farm. On the facts the tribunal found that at the relevant time in 1987 the farm was in an area that was largely under the control of the Tamil Tiger rebels and that the management was requested to dismiss some farm staffs who were alleged to have close relation with Tamil Guerillas. They dismissed those staffs upon such request. After some day, properties of the farm were destroyed. The farm demanded the compensation alleging that such destruction was caused by the rebels as they dismissed those staffs upon the request of the Government.
1. Whether Sri Lanka had strict liability or not?
2. Whether the destruction of the farm was the result of rebel action or the work of some hoodlums?
The decision was in favour of the UK company, that is Srilanka was liable for compensation.
It is generally accepted rule of international law, clearly stated in international arbitral awards and in the writings of the doctrinal authorities, that:
1. A state on whose territory an insurrection occur is responsible for loss or damage sustained by foreign investors unless it can be shown that the Government of that state failed to provide the standard of protection required either by treaty or under general customary law; as the case may be, and
2. Failure to provide the standard of protection required entails the states international responsibility for losses suffered regardless of whether the damage accrued during on insurgent offensive act or resulting from governmental counter-insurgency activities.
Nottebohm Case, ICJ, 1955
Liechtenstein vs. Guatemala
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 conditions for nationalization of foreigners including 3 years residence. In his application Nottebohm 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 Reigning 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 Alliens. 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 instituted proceedings 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.
1. Can Liechtenstein claim on behalf of Nottebohm?
2. What should be the 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.
Merge Case, Italy-United Conciliation Commission, 1955
Italy vs. USA
When a situation comes where twin or effective dual nationality appears, then the Court held that the state which had the most effective nationality can protect its nationality.
Mrs. Merge was an American citizen and she was born in USA in 1909. She never loosed her US nationality. But she married an Italian gentleman named, Mr. Merge and thus required Italian citizenship by marriage. She lived in Rome till 1939 with her husband. Then she went to Tokyo with her husband who was working in the Italian Embassy. He worked there till 1946. Meanwhile she returned to USA for 9 months and then returned to Rome. Both in Rome and in Tokyo she visited American Embassy and registered herself as US citizen. In 1948, USA raised a claim on behalf of Mrs. Merge for the loss of her property in Rome during World War II.
1. Which out of the two countries has the most effective nationality?
2. Whether USA can claim compensation on behalf of Mrs. Merge in this circumstances?
ICJ here decided in favour of Italy and therefore US claim failed.
The principle based on the sovereign equality of States, which excludes diplomatic protection in the care of dual nationality, must yield before the principle of effective nationality whenever such nationality is that of the claiming estate. So in this case the criterion is effective nationality.
Habitual residence can be one of the criteria of evolution of effective nationality but not the only one. The conduct of the individual in economic, social, political, civic, and family life, as well as the closer and more effective bond with one another of the two states must also be considered. In this case Merge had the more effective connection in all these regards with Italy and not with USA.
Savarkar Case , 1911
France Vs UK
If one state do not grant asylum or if that state have mistakenly departed the person or hand over the person of another state, that particular state cannot later on subsequently demand the return of that person saying it was a mistake. Once person has been departed from the territory of a state, however strong the will of the grant asylum of that person is of no validity.
Mr. Vinayak Donador Savarkar, a British Indian was involved in terrorist activities & flew away to UK. He was in custody in abroad in England mail steamer Marea, on his way to India for trial in connection with a murder case. On July 8 while the vessel was in the port of Marcelese , Savarkar succeeded in making his away ashore. He was arrested shortly by a number of France police and returned to the ship. On 9th July the Margo left Marcelese with Mr. Savarkar abroad. It develop later that the arresting policeman did not know the identity of the escape and believed him to be a member of the ship’s crew, escaping after committing some offence. So he was returned, France Government and afterwards demanded the return of the escape.
They alleged that He had been removing from France territory without authorization. France demanded a formal extradition of Savarkar. UK rejected the claims. France went to the Hague Permanent Court of arbitration.
Should Savarkar be restored or not to the France government.
The Arbitral tribunal decided that UK is not bound to return Savarkar.
International law does not impose any obligation upon the state where by on the above ground the criminal may be return. That is to say once a person is extradited even though it was done in irregular way, the country receiving the criminal is not bound under international law to return the accused.
Banco National de Cuba Vs Sabatino, 1962
In 1962 The Government of Cuba claim that it was entitled to proceed of a shipment of sugar on the ground of a law of August 6,1960,ordering the nationalization of property and enterprise; owned by the nationals of the united states or in which such national organized under the law of Cuba, but whose shareholders predominantly residence of United States claimed that the Cuban law was in violation of international law in failing to pay compensation for property ceased from a particular class aliens in relation against their homeland and discriminating against them only.
1. Whether the let of the Cuban government to the US national Sabatino, was in violation of international law?
2. Whether US had the jurisdiction to try the case?
3. Whether Cuba was liable to pay compensation to Sabatino?
Primarily the court held that the decree violated international law in failing to pay compensation for property ceased from particular class of aliens and that the title of The Banco National was invalid. But upon appeal to the Supreme court it was held that the judicial bench will not examine the validity of taking of property within its territory by a sovereign government though not recognized by this country.
Since the taking of property within its territory was an act of the state, according to the Act of the State doctrine, it can’t be questioned by another state whether it is good or bad. This is the reason for which even though the Fidel Castro regime was not recognized by USA it was held that the act of nationalization couldn’t be questioned.
Ambetielos Case, Commission of Arbitration, 1956
Greece vs. UK
In order to provide diplomatic protection, the existing all local remedies must be exhausted by that party.
Ambetielos, a Greek national agreed 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 proceedings were taken to enforce the mortgage. Ambetielos claimed in his defense that the British Government had given an undertaking that vessels would be delivered by specific dates and that he had suffered a loss as a result of the late delivery of some of the vessels and sought to cancel the contract of purchase in respect of two of the ship. But the British Government refused. In the lower court he failed and he appealed 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 procedural remedies available had not been exhausted. While Greece contended that the remedies which English law offered were ineffective and therefore not applicable.
Whether all the local remedies were exhausted?
The Commission found that the local remedies had not been exhausted.
As the opportunity to make appeal to the House of Lords has not been made, it was contended that local remedies had not been fully exhausted.
USA Vs Italy, ICJ ,1989
Before brining any claim for injuries suffered by private individuals it must be proved that the legal remadies available by the individuals has been exhausted.
The dispute arose out of the requisition by Italy of the Plant & other assets of Electronica Sicula SPA (ELSI) an Italian Corporation wholly owned by two US corporations Had began to plan for the liquidation of ELSI. The US claimed compensation for the two US corporate share holder of EISI. By virtue of treaty 1948 Italy argued that local remadies had not yet been exhausted. The Treaty was namely the Friendship commerce & Navigation Treaty of 1948 between USA & Italy. But USA argued that the Treaty was silent regarding the exhaustion of local remedies & so suit must be filed before ICJ.
Whether the claim of USA was admissible?
Italy was not guilty of any International illegality, Tortor wrong &therefore, US claim failed.
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 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 treaty, otherwise it will be considered that the states will follow this principle. In this case as such omission was not maintained in the treaty USA cannot file any suit to ICJ.
Interhandel Case, 1959
Switzerland Vs. USA, ICJ
Interhandel a Swiss company had business in USA seized the property of the company on the ground that the company was under the control of German company and so enemy controlled. The US government 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& went to the ICJ, after unsuccessful court proceeding in the United States on the ground that local remedies has been exhausted.
Whether the company can file a suit to ICJ on the ground that local remedies has been exhausted?
ICJ held in favor of USA & decides that local remedies were not exhausted.
1. It is general principle that before any international proceeding must be proved that local remedies of the state have been exhausted. In this case when the company filed the suit than USA entered the case in case list& showed it to the court & demanded that local remedies had not yet become exhausted.
2. While the application to the ICJ was made by the USA Supreme Court had granted a writ of carciorari & remanded Interhandels case to the district court. It was therefore open to the interhandel to avail itself again to the remedies available to it under the trading with Enemies Act& to seek the restitution of it’s share by proceeding in the US court.
Re Castiono; 1891
Queen’s Bench Division, Great Britain.
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 citizens including Castioni, seized the Arsenal of the town of Bellinzona, disarmed the police, caught and seized several persons connected with the Cantonal administration and forced them to march in front of the armed crowed to the municipal palace. Mr. Castioni was armed with a receiver. Rossi, a policeman was shot and died and witness later identified Castioni as the person who fixed the fatal shot. Castioni then fled to Geat Britain and the Swiss Government formally requested the arrest and extradition of 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 offence committed by Castioni, was a crime of political nature?
The court held that Castioni was not bound to be extradict.
The Court ruled that Castioni had done an over act and it was part of an attack on the palace. The act was connected with an uprising man aimed at the Cantonal Government and this was a struggle between two groups. Castioni in this situation who had no personal feeling against Rossi and he shot at Rossi in the promotion of a political uprising. His act constituted a political offence, for which he could not be surrendered to the Swiss authority.
Re Mennier 1894
Queen’s Bench Division, Great Britain.
The court in this case held that the party of anarchy is the enemy of all governments. Their efforts are directed primarily against the general body of citizens. They say secondarily and incidentally, offences committed against them were directed against some particular government but if it is evident that their offences are mainly directed against the private citizens, and then such offences would not be regarded as political.
Mr Meunier a French citizen, by political belief an anarchist, in March 1892 caused two explosions, one at the Cafe Very in Paris and the other at the Military Barracks in the same city. As a result of both explosions several persons and some soldiers died. After committing the two attacks, Meunier fled to Great Britain. In his absence the French Court tried him and on convictions on charge of murder sentenced him to death. The French Government made formal application for his arrest and extradition. Meunier was arrested on 14th April, 1894 in London. He protested his arrest and his counsel by citing Castioni case claimed that the blame of attacking and killing of two persons was not sufficiently proved by the French Government.
Did Meunier act6s in Paris correspond to the accepted definition of a political offence?
The court rejected Meunier’s contention and his extradition to French Government.
1. The attacks did not constitute political offences. There was no struggle between two parties. The group with which Meunier identified himself was the enemy of the Government and desired to abolish them rather than to control them, the terrorist acts of anarchist was not only against the Government but also fearful for the private citizens.
2. Under this circumstances Meunier’s act did not represent political offence with the meaning of British Extradition Acts of 1870 and 1873.
Ex Parte Kolzyniski 1954
Queen’s Bench Division, Great Britain.
Political influence is a common scenario in the decisions of extradition of an offender. It is often seen that a State refuses to extradite a political offender of another State of reverse political ideology.
In September 1954, seven Polish nationals, members of the crew of a Polish fishing vessel in the North Sea, decided to seek political asylum in England, overpowered the captain and other members of the crew, only one of whom offered resistance, and brought the ship into an English port where they placed under arrest. In accordance with the Anglo-Polish Extradition treaty, 1932 and the Poland (Extradition) Order in Council 1934, the Polish Government sought the extradition of the seven sailors. The accused contended that they were political offenders within the protection of sec.3 of the Extradition Act 1870. They alleged that had been under a close surveillance, one of whom was assigned to each trawler, but particularly after news came through that Kolzyniski’s brother had done it in order to escape from political prosecution. Furthermore, although the request for extradition had been made for the offence of revolt against the master of a ship on the High Seas, if they were returned to Poland, they would be tried for punishment for the more serious offence, amounting to treason under Polish Laws, of escaping to a capitalist country for which they might be hanged.
The Court had to decide on two issues:
1. Whether the offence for which extradition is sought is an offence of a political nature.
2. Have the applicants proved to the satisfaction of this court before whom they were brought of habeas corpus that the requisition has infact been made with a view to trying or punishing them for an offence of a political nature.
The court decides in favour of the Polish seamen and declared them as political offenders.
1. The court found no clear evidence that the Polish nationals were common criminals.
2. There is a probability that they might be prosecuted for political offences if they are extradited.
Government of Greece vs. Governor of Brixton Prison, 1969
The decision to extradite an offender is often hugely influenced by political ideology of the requested State.
A Greek fugitive falsely collected a huge sum of money and managed to fled away to United Kingdom. He was convinced in his absence by a Greek court pf obtaining money by false pretences. He argued that he was determined opponent of the then military Government in Greece and had been detained without with out trial there on a number of occasions and had felt obliged to live outside Greece. 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” per Lord Reid.
Abu Daud Case, 1977
For extradition the offence alleged must be committed in the territory of the state requesting for the extradition of the criminal.
The most brutal incident in the history of modern Olympic was the murder of eight Israeli Athletes in the Munich Olympic 1976 in Germany .Abu Daud a Lebanese Muslim was implicated for the killing of Those athiets. Abu Daud entered into. France with a false passport and was detected there by the French intelligence service .He was arrested by the French police after 4 days.
Being informed of the arrest of Abu Daud both west Germany and Israel claimed his extradition. West Germany’s claim was based on the fact that the alleged offence was committed within its territory so it had the right to try and punish the offender . Israel, on the other hand argued that his nationals had been killed by Abu punish Abu Daud , so it was Israel who could try and punish Abu Daud, The alleged offender.
The French court had to decide whether Abu Daud could be extradited to either west Germany or Israel.
The French court decided that Abu Daud cannot be extradited to either west Germany or Israel.
- The offence was committed outside the territory of Israel ,so Israel had no locus standi in the case . In the case of extradition , The offence must be committed within the territory of the country requesting for the extradition.
- Regarding the west Germany’s claim. The court took the view that it didn’t impart its claim in rough proper channel.
UK, USA vs. Libya
On 21st December 1988 . Pan Am flight 103 was destroyed over Lockerbie, in Scotland. USA court indicted two Libyan nationals (the accuzed) charging, inter alia, that they had caused a bomb in that flight which bomb had exploded causing the airplane to crash. USA demanded extradition of these two Libyan national. Libya refused. There was no extradition treaty between them and Libya promised to prosecute her nationals. Both of them were the parties of Montréal Convention 1971. UK also claimed extradition on the basis of territorial jurisdiction.
On request of USA, Security Council imposed sanction against Libya. Libya went to ICJ alleging it as the violation of Montreal Convention 1971.
Whether US compel Libya to surrender its two accused national in absence of any extradition treaty between them?
Without going to the merits of the case, the court advised Libya to oblige the rules of Security Council.
USA VS UK
Robert E Brown was American citizen. In 1894 he went to South Africa and started the work of digging gold mines. After some time the head of the state of South Africa declare that in the eastern part of that area, state would undertake the work. Robert Brow submitted an application of license for carrying on digging of gold mine but it was rejected. Later on The government withdraw its earlier order for carrying on digging of gold mines. Robert Brown filed a suit in 1895 for recovery of compensation. But the case could not produce because in the mean time Great Britain conquered South Africa and incorporated it in its empire. Mr. Brown had been authorized to carry on digging gold mines but this right was subsequently matched from him before South Africa was annexed by Britain
It was argued to refer this dispute to arbitration.
The arbitration had to decide two questions
1. Whether South Africa refused to do justice to Robert brown?
2. If justice were denied to him whether the succeeding state of south Africa would be responsible for the loss and damage?
In reply to the first question the arbitration held that justice was denied to Brown because if the case had proceeded South Africa would have been liable to pay damage.
In reply to the second question The arbitrator decided that the peace agreement under which South Africa surrendered before Britain, hence Britain is not liable.
The general law is that if the private or individuals claim arise from unlawful action of the predecessor state, successor state has no liability as regard this state.
Hence Mr. Brown was deprived of his right to claim and deprecated for the wrongful refusal of the license by the predecessor state of South Africa. Now Great Britain is the successor state. So she is not entitled to give damage for the wrongful act of the predecessor state.
But if the former state had accepted or decided to pay the compensation than the succeeding state should pay the damage for torts.
CRYING SUITCASE CASE (1964)
EGYPT VS ITALY
In 1964, an Egyptian Diplomat kidnapped an Israeli National. In Italy when he cross Rome airport some one head a sound like crying. As a result the airport authorities suspected him and opened the diplomatic bag and found an Israeli national who was dragged, bound and gagged in a trunk marked “diplomatic mail” that was being sent by the Egyptian mission to Cairo.
1. Whether Italy has the right to search the bag?
2. Whether the act of search is a violation of the convention or International law?
The Court held that the act was not a violation of international law relating to diplomatic relations.
1. The overriding duty to preserve and protect human life might have justified its opening in appropriate circumstances.
2. There was no breach of article 27 for saving life.
The official correspondence must be inviolable.
The diplomatic bag shall not be opened or detain.
The diplomatic bag shall be inviolable when ever it may be, it shall not be opened or detain or shall be exempted from examination directly of through electronic or other technical devices.
Nevertheless if the competent authority of the receiving or the transit state has serious reason to believe that the consular bag contains some thing other than the corresponded document or archives referred to in paragraph of article 25,they may request that the bag be opened in their presence to by an authorized representation of the sending state. If the authorities of sending state refuse this request the bag shall be returned to its place of genuine.
USSR LORY CASE,1980
USSR VS WEST GERMANY
USSR sent in West Germany some boxes, which were carried by a lorry, and it was externally marked “diplomatic bag”. So West Germany posed doubt on the lorry about it being a diplomatic bag. USSR ambassador said that diplomatic bag was the lorry. Since West Germany was under reasonable doubt they search the bag. And they claimed that though the inner material of the lorry might be a diplomatic bag or bags, but the lorry itself was not a diplomatic bag.
1. Whether west Germany has the right to search the diplomatic bag?
2. Whether it was the violation of article 36 of the Vienna convention 1961 on diplomatic relation?
The court held that the size of diplomatic bag must be reasonable. A lorry can’t be said or accept as diplomatic bag. Hence the opening of the West Germany was not unjustified.
Article 36 deals with exemption from customs duties and baggage search. Article 36 proviso that the diplomatic baggage shall be exempted from inspection unless there are serious grounds for presuming that, it contains article not covered by the exemptions mentioned in paragraph 1 of this article.
According to the West German customs the lorry sent by the USSR can’t be turned as a diplomatic bag.
The lorry was capable of movement. So being capable of movements it could not be a bag.
R VS ANDERSON (1868)
James Anderson an American citizen, was indicted for murder on board a vessel belonging to the port of Yarmouth, Nava Scotia,and registered in Great Britain. At the time when the offence was committed (in great Britain) The ship was moving up the river Garronne, on its way to the French city of Berdeaux, some ninety miles from the coast of the vessel, at that time, was therefore on the internal waters of the French empire.
The accused was detai8ned on the ship until it returned to England and was charged with murder in the central criminal court in London. He was convicted of manslaughter, despite his plea that the court-lacked jurisdiction, since the offence has been committed in French territory, abroad a colonial vessel by an American citizen. The judgment of the criminal court was appealed.
Which country had jurisdiction to try the accused under the condition described?
The appellate court affirmed the conviction holding that British court had jurisdiction to try the offence committed abroad British ship.
The court of criminal appeal found that the accused was subject to American Jurisdiction as an American citizen, to French jurisdiction as for having committed an offence in the French territory and also to British jurisdiction and of British courts extends to the protection of British vessels, no matter where those vessels might be at a given time.
The French authorities could have enforced laws arresting Anderson and placing him on trial for his offence. French had not asserts its undoubted right to prosecute Anderson for disturbing the tranquility of its port and public order. Great Britain in control of the vessel, than exercise its authority and prosecute Anderson.
STATE VS YANNOPULOUS(1947)
Mr.Yannopulous was a Greek national. He was the member of crew of a ship belong to Cypress. The ship was anchored in an Italian port with a huge quantity marijuana, carrying o9f which itself is an offence. Mr. Yannopulous was arrested and send to the court alleging that his carrying of marijuana was a threat to the peace in the shore.
Whether Italy had the jurisdiction to try Mr. Yannopulous for the said offence?
The Italian court acquitted Mr. Yannopulous with honor and set him free.
Under the customary International law the coastal state has jurisdiction both civil and criminal in its internal matters. But if the offence is committed on board the vessel, the flag state has the jurisdiction, which is concurrent to that of the state whose national was the offender. There is an exception to this general rule, which provides that if the offence disturbed the peace tranquility and good order of the shore, that the coastal state can try such offense on the ground of public interest. There is no evidence in this case that the act of yannopulous disturbed the peace tranquility and good order of the port of Nepales.
Although Mr. Yannopulous was found in position of the drugs it was established that he only possessed it and had no intention to sell it.
It is determined unilaterally by the coastal state whether an act of an aliens affects the peace, tranquility and good order of that port or that country.
SUN YATSEN INCIDENT (1896)
The premises of diplomatic mission should be used in a manner which is violation of international law. No civilized state could permit foreign legation to be make it a place of imprisonment.
Sun Yat Sen a Chinese national who was a rebel against the Chinese socialist government was detained in the Chinese Embassy in London against his will. Being informed his companions went to the foreign office to make him free by intervention.
1. Whether Chinese Embassy in London could detain Sun Yat Sen against his will.
2. Whether diplomatic premises can be used for the purposes other than purposes as described under the Vienna Convention.
No, it was illegal. It was clearly incompatible.
It is obligation on the part of the sending state not to use the premises of the mission for any incompatible purpose. Detention of any man in any mission against his will is a breach of this obligation. Mr. Sun Yat Sen was himself a revolutionist and was always advocating for revolution in china. His detention was actually humiliating one and breach of obligation on the4 part of the sending state,China.
DIKKO INCIDENT (1984)
NIGERIA VS U.K
MR. Dikko was a political leader of Nigeria. He was a member of the government of Nigeria, which was overthrown by military regime. Mr. Dikko went to Landon and started speaking against the military government. He was apprehended by the agent of the Nigeria within diplomatic baggage which was challenged by the U>K custom. The baggage was inspected and Mr. Dikko was found.
Nigeria protested that it was a violation of the immunities of principles of diplomatic baggage.
Her it is to mention that although labeled “diplomatic baggage”, the crate locked the invisible external marks required by the article 27(4) of the Vienna Convention on Diplomatic relation.
Whether the opening of the diplomatic bag was justified.
The court held that the act was not a violation of international law relating diplomatic relations.
The general practice regarding diplomatic bags is that it is not checked not opened in the airport or by the customs authorities. But if the custom authorities has enough reason to believe that there is something inside the bag carrying of which is dangerous and illegal as well as harmful, they can open it in appropriate circumstances.
Here we se that –
There was no breach of article 27(4) as it was evident that the bag locked external visible marks, required by article27 (4)
According to the UK foreign secretary even if the crate were a diplomatic bag, the overriding duty to preserve and protect human life might have justified its opening in appropriate circumstances.
IRAN CASE , 1980
U.S.A VS IRAN
On November 4, 1979 several hundreds of Iranian students and other demonstrators took possession of the US embassy in Tehran by force. They did so in protest at the admission of the deposed Shah in Iran in to the US for medical treatment. The militants were not opposing by the Iranian secretary force that simply disappeared from the scene. The demonstrator occupied US consulates else where in Iran, seized archives and document and continued to hold 52 US national. After some days of the incident on 17 th November,1979Ayatullah Khomeni The head of the Iran, congratulate the militants. Us requested ICJ for a declaration that Iran had infringed the 1961 and 1963 Vienna convention on Diplomatic and consular relation respectively. It also asked for a declaration calling for the release of the hostage, the evacuation of the embassy and consulates, the punishment of the person responsible and payment of preparation.
Whether Iran had infringed the provision of 1961and 1963 convention on the diplomatic relations respectively and also whether Iran was responsible for the capture and holding as hostages of the diplomatic and consular stuff of USA?
The court decided in favor of USA and Iran was held liable.
The indication of Iranian government by itself constitute clear and serious violation of article 24,25,26,27,29and 45(1) of the Vienna convention on consular relations,1963.
The declaration by Khomeni on 17 th November 1979 is an authorization which can be construed as considering the acts of militants as acts of the state.
The court observe that the rules of diplomatic law as a “self contained regime which on one hand, lays down the receiving state’s obligations regarding the facilities and immunities to be accorded to diplomatic mission on the other hand foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving state to counter any such abuse.”
Iran is responsible under article22 (2) of the Vienna convention for its failure to take steps to protect the embassy and the adoption of these acts by the Iranian government held Iran directly responsible for the breach of the inviolability of the premises and correspondence.
The obligation of Iran was not only contractual one but also obligation under general international law.
FISHERISE JURISDICTION CASE
UK&WEST GERMANY VS ICELAND, ICJ 1975
In 1958 following the Geneva conference, Iceland declared a 12 n.miles exclusive fisheries zone and UK accepted it in 1961. September 1,1972,Iceland announced of a fifty mile conservation or economic zone measured from straight baselines close to all fishing vessels. On April 14,1972 UK unilaterally instated preceding before the ICJ claiming that Iceland was not entitle to the unilateral extension of the zone and that the conservation of fish stock of Iceland should be subject to bilateral arrangements between the two countries. The court received another issue concerning the similar German Iceland dispute. The court joined them together.
Whether Iceland was entitled to the unilateral extension of its economic zone 50 n. miles beyond its territorial water?
The court by ten votes to four held
1. That the Iceland was not entitled to declare unilaterally an exclusive fisheries zone of 50 n. miles beyond its territorial sea.
2. That the Governments of Ice land UK and West Germany was under an obligation to negotiate an equitable solution.
3. That the preferential rights of Iceland and the established right of UK and west Germany should be taken in to account in the negotiation.
The International court of justice first established the principle of ‘preferential right’ over the particular regime of the sea of Iceland extensively considering the economic face of Iceland and its gathering of foreign currency thereby.
The court held that 90% foreign currency of Iceland is earned from fishing. actually their total; economy depends on fishing. So Iceland was given preferential right over that particular zone.
The court found that the unilateral declaration of 50 nautical miles exclusive economic zone neither legal nor illegal under the principle of International law.
The obligation to negotiate follows from the very nature of the respective parties; to direct them to negotiate is therefore a proper exercise of judicial function in the case. It also corresponds to the principle and provision of the UN charter concerning peaceful settlement of dispute.
WEST RAND GOLD MINING CO VS REX, 1905
West Rand gold mining co was a registered company in England. It was engaged in the work o digging of gold mines in Transval. In October 1899 a quantity of gild was sized by officials of South African republican. It was alleged that in accordance with the laws of the republic the government was under a liability to return the gold or its value.
As a result of the was which commenced on October 11, 1899the South African republic was conquered and become part of the British dominion.
Now the company sought petition of right to recover the gold or its value from the British government, on the ground that by the conquest and annexation Britain has succeed all the rights and duties, properties and obligations of the former government.
Whether the British government is liable to pay damages or liable to return the sized gold?
The court held that the conquering state is not liable to fulfill the private contractual obligation of a conquered state.
It is a principle of International law that successor state can’t be held liable for any wrongful act done by the predecessor state.
I Am Alone
CANADA VS USA (1935)
On March 20,1929,the ‘I am alone’, a rum runner of Canadian registry, was sighted by the coast guard vessel Wolcott about 10.5 miles off the Louisiana coast, but within one hours sailing distance form shore. The I am alone refused to stop when ordered by the Wolcott’s jammed and pursuit was taken up by the Dexter and Wolcott caught up with the I am alone more than two hundred miles off the coast of U.S When I am Alone refused to heave to, the Dexter fired and the I am alone sank as a result, all but one person being rescued.
The dispute was put to two commissioners appointed under 1929 convention.
1. Whether US pursing was hot pursuit?
2. Whether the US pursuit was reasonable or proportionate one?
3. If it would not be hot pursuit, whether US will be liable to pay compensation?
The commissioner held that the pursuing by USA was not a hot pursuit. The action was not a justifiable one and was order to p[ay compensation to Canada.
US had the right of hot pursuit in the circumstances and was entitled to exercise the rights under article 2 of the 1924convention at the time when the Dexter joined the Wolcott in the pursuit of I am alone.
“ The pursuit didn’t begin with in the territorial waters 3 miles limit which is an essential factor. Further more the cutter which sank the schooner had not participated in the original pursuit but had come up from the entirely direction two days latter” was the statement of Canadian legation. The commissioners didn’t deny or recognizes it.
By the interim report the court found that any thing in the convention did not justify the sinking of vessel.
The commission then adds that it could not be justified by any principle of International law. Because US instead of firing the ship she might use necessary and reasonable force for the purpose of effecting the object of boarding into part the suspected vessel and if sinking would occur incidentally as a result of the exercise of necessary and reasonable force for such purpose, the pursing vessel might be entirely blameless.
But the commissioners thinks that in the circumstances stated above the admittedly intention of sinking of the suspected vessel was not justified by any thing by the convention.
The commissioners consider that US formally acknowledged its illegality and apologies to His Majesty’s Canadian government and should pay the sum of $25000to the Canadian government and $25000 for captain and crews.
Anglo French Continental Shelf Case
UK VS FRANCE, ICJ (1987)
In this case a dispute arose between UK and France in respect of deciding the areas of the continental shelves in the English Channel and in the Atlantic.
What principles and rules of International law are to be applicable as to the delimitation of continental shelves between the parties?
The court held that delimitation is to be effected in accordance with equitable principle taking in to account all relevant circumstances.
The court found no existence of a customary rule that division of common continental shelf of adjacent countries must be effected according to the equidistance principle. That is the use of equidistance method is not obligatory.
And also in the particular geographic circumstances of the case, the physical structure of the continental shelf areas is such as to draw any line of the delimitation.
And also the court found that there is no other signal method of delimitation the use of which is in all circumstances obligatory.
So the court followed the equitable principle.
TUNISIA LIBYA CONTINENTAL SHELF CASE
A dispute arose between Tunisia and Libya in respect of delimitation of the respective area of continental shelf appertaining to each on the basis of the geology, physiographic and bathymetry. Each party sought to claim particular areas of seabed as the natural prolongation of its territory.
What rules and principles of International law are applicable to the delimitation between Tunisia and Libya of the respective area of the continental shelf appertaining to each?
By a majority of ten to four the court held that the delimitation to be affected in accordance with the principles of equity taking in to account of all the relevant circumstances.
The area relevant for the delimitation constitutes a single continental shelf as the natural prolongation of the land territory of both parties, so that in this case no criterion for delimitation of shelf areas can be divided from the principle of the natural prolongation as such.
It is the particular geographical circumstances in this case, the physical structure of the continental shelf areas is not such as to follow any theory of determining the continental shelf except equitable principle.
LIBYA – MALTA CONTINENTAL SHELF CASE.
A dispute arose between Libya and Malta in respect of delimitation of the areas of the continental shelf, which appertains, to Malta and of the continental shelf, which appertains to Libya. Both the parties were the signee of the 1982 UN convention on the law of the sea. But Libya was not a party of the 1958 convention though Malta was.
What would be the principle of delimitating the continental shelf between Malta and Libya?
By a majority of 14 votes to 3, the court held that the delimitation is to be affected in accordance with the principles of equidistance.
In this case ICJ goes back to the principle of equidistance for delimitation. Actually both the principle of equity and equidistance are applicable but it depends upon the peculiarly geographical situation of the coastal state.
Here an equitable result may be arrived at by drawing at the first stage in the process a median line every point of which is equidistant from the low water mark of the relevant court of Libya.
Mavrommatis Palestine Concession Case, 1924
Greece Vs Spain, PCIJ
A state can protect its subjects & can give diplomatic protection when affected by an act contrary to international law committed by another state. All that is necessary is a genuine link between the subject & that particular state.
Mr. Mavrommatis is a Greek national received in 1914 concession from ataman authorities in regard to certain public works to be constructed in Palestine. It was alleged by the Greek government that since 1921 the government of Palestine, i.e., the British government had refused to recognize his rights to full extant. On his behalf Greece demanded a sum of $121045 as compensation with the interest.
Whether Greece can offer protection of interest to it’s nationals?
The state has the right to protect her national’s & therefore Greek claim is not illegal.
According to PCIJ it is an elementary principle of international law that a state is entitle to protect it’s subject; when injurer by acts contrary to international law committed by another state; from whom they have been enable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects & by restoring to diplomatic action or international proceeding on his behalf, a state is in reality ascertaining its own right to ensure in the person of its subjects respects for the rules of international law.
The Caroline Case, 1841
CANADA (UK) Vs. U.S.A
In Canada, which was then the colony of Britain, some revolutionaries were tried to over throw the government. Caroline, an American ship was carrying some Americans and weapons from across the river Nigeria (within the territory of America) to assist the rebels. The British government lodged a protest against it but with no effect consequently the British soldier crossed the river seized the ship and destroyed it. The U.S.A. Government claimed this use of force as illegal.
Whether the British action was justified and reasonable?
The British action was not a justified and proportionate one on the basis of the test propounded by the US secretary of state and had to express regrets.
Self-defense has been a valid ground of intervention for long time. On the ground of self-defense a state may intervene in the affairs of another state. In this connection Mr. Webster the secretary of the state of the United States of America propounded a very important principle that is the necessity of self-defense should be instant overwhelming and leaving no choice of means and no moment for deliberation. Even if all the elements exist the action for self-defense must be reasonable and proportionate.
Britain failed to justify its action on the basis of this principle.
Hernandez Vs Air France, 1976
Mr. Hernandez was a passenger of air France. After the aircraft being landed he left a