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WILDENHUS CASE, 1887

Belzium vs. USA


 Facts
The Belgian steamer Noorland was docked in the port of New Jersey. On October 6, 1886,
one of the Belgian members of the crew, Joseph Wildenhus, fought below docks with
another Belgian crew member, by the name of Fizants, died as a consequence of the
wound. Wildenhus was charged for murder and sent to the jail. Belgian authority claimed
the case to be handled by Belgian law because no third person from another country was
involved and the crime had taken place between two Bewlgian citizens and both of them
were also the crews of the same ship. They placed the contention that as the commission
of the crime, abroad ship and below decks had not disturbed the tranquility of the part
and public order.
The US circuit court refused to deliver the arrested persons. The Consul of Belgium
appealed.

 Issue
Does murder abroad in a foreign vessel in port affecting only member of the foreign crew,
constitute a disturbance of the tranquility of the port and thereby justify assertion of
jurisdiction by the local law enforcement agencies?
 Decision
The court affirmed the contentions made by the USA.

 Reasoning
The crime of murder by its commission disturbs tranquility and public order on share or
in a port, so that it has to be regarded as failing of 1886, in which the local authorities
have a right to interfere.

 Note
In general only the flag bearing the state has territorial jurisdiction over the ship but when
it is anchored to any foreign port then the coastal state has jurisdiction to adjudge such
matter if it interferes with the peace and tranquility of the shore or the port.
R VS ANDERSON (1868)

 Fact
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 detained 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.

 Issue
Which country had jurisdiction to try the accused under the condition described?

 Decision
The appellate court affirmed the conviction holding that British court had jurisdiction to
try the offence committed abroad British ship.

 Reasoning
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)

 Fact
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 of 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.

 Issue
Whether Italy had the jurisdiction to try Mr. Yannopulous for the said offence?

 Decision
The Italian court acquitted Mr. Yannopulous with honor and set him free.

 Reasoning
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.
Corfu Channel Case, 1949, ICJ
UK vs. Albenia
 Principle

Two main principles were established in this case- i) warships have right of innocent
passage through international strait; ii) if a state through its acts or omissions is the direct
cause of damage to a foreign state, then it is liable to pay reparation for the damage so
caused.

 Fact

On 22 October, 1946 a squadron of British warships, the cruisers Mauritius and Leander
and the destroyers Saumarez and Volage, left the port of Corfu and proceeded
northwards through a channel previously swept for mines in the North Corfu straight.
Outside the Bay of Saranda, Saumarez struck a mine and was heavily damaged. Whilst
to rescue the Saumarez, Valage also struck a mine and was damaged too. The damage to
both destroyers took place in the Albanian territorial water.

Three weeks later on Nov. 13, British mine sweepers swept the channel without Albanian
consent and cut the cables of twenty two moored mine. After that Great Britain
demanded compensation for damage to its ships and for the loss of life on the latter.
Albania rejected h claim and on 22 May 1947 Britain instituted a proceedings in the ICJ
against Peoples Republic of Albenia.

 Issues

1. Was Albania responsible under international law for the explosions?


2. Was there any duty on the port of Albania to pay compensation if such
responsibility was established?

 Decision
The court ruled that Albania was responsible under international law for the damage and
loss of life resulting from them and that Albania owed a duty to UK to pay compensation
of a sum total of £843,947.

 Reasoning

1. It had been a duty of the Albanian Government to ratify the world in general of
the existence of the mine field and also to warn the approaching British Naval
units of their imminent danger. But Albania failed to perform that duty.

Nothing had been done by the Albanian authorities to prevent the disaster, this
omission gave rise to the international responsibility of Albania.
THE LOTUS CASE, 1927, PCIJ
FRANCE Vs TURKEY

 FACTS
The Lotus was a French steamship. On its way to Constantinople it collided with a
Turkish Collier Boz-kourt, on the high seas, 6 miles off Cape Sigri on August 2nd, 1926.
As a result of the collision the Boz-kourt sank and eight Turkish nationals lost their lives.
At the arrival on Turkish waters on August 3 ‘Lotus’ anchored in the port of Istanbul.
Then the Turkish Government arrested Lotus’s Captain Mr. Demons, a French citizen
and started criminal prosecution against him in accordance with Turkish Law. He was
sentenced to 80 days imprisonment and a fine of 22 pounds.
The French Government protested and demanded the release of Demons or the transfer
of the case to the French Court and argued:
i) International law does not allow the State to take proceedings with
regard to offences committed by foreigners abroad, simply by
reason of the nationality of the victim.

ii) International law recognizes the exclusive jurisdiction of the flag-


state on high seas.

iii) This principle is especially applicable in a collision case.

Turkey argued before the Court that in the absence of a rule to the contrary, there was a
permissive rule empowering her to try the officer.
Having failed to arrive at any settlement, the countries agreed to refer the matter to the
PCIJ at The Hague and the case started from 13th October 1926.

 ISSUES
1. Would exclusive territorial character of law prevent States from extending the
criminal jurisdiction of their Courts beyond their Frontiers?
2. Which one of the two countries can try the case, France or Turkey?
3. Whether Turkey by instituting a criminal proceeding against a French national
acted contrary to the principles of International Law.

 DECISION
By a majority decision it was held that the action of the Turkish authority was not
inconsistent with International law. That means Turkey has not violated any principle of
International law by prosecuting Mr. Demons.
It is also pointed out that argument of France does not satisfy the principle of ‘OPINIO
JURIS SIVE NECESSITATIS’ Therefore Turkey Government has the authority to try the
case.

 REASONS:

As regards the French argument that under International law No State can prosecute the
national of another State, the Court observed that under International law a State might
not exercise its power in any form in the territory of another State. It means that the
jurisdiction is certainly territorial, but that does not mean that International law prohibits
a State to exercise jurisdiction in its own territory, in respect of any case which relates to
acts which have taken place abroad.
As the effects of the crime had taken place on Turkish territory (i.e. on board of a Turkish
ship) the Turkish Court had the jurisdiction to try the offence.
It is certainly true that apart from certain special cases which are defined by the
international law, vessels on the high seas are subject to exclusive authority of the State
whose flag they fly, but it by no means follows that a State can never in its own territory
exercise jurisdiction over acts which have occurred on board of a foreign ship on the high
seas.
As regards the French argument that criminal proceedings arising from collision cases
are within the exclusive jurisdiction of the flag-State of the vessel and not of any other
State, the Court rejected the ground on the basis of that it does not mean that they
recognized themselves as being obliged to do so or they were conscious of having such a
duty; but from the sense that it was a mere practice. As they did so from the sense of mere
practice which does not create any obligation, hence it fails to satisfy "the psychological
test."
I Am Alone
CANADA VS USA (1935)

 FACT
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.

 ISSUE
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?

 DECISION
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.

 REASONING
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.
North-Sea Continental Shelf Cases, ICJ, 1969
Federal Republic of Germany Vs. Denmark
Federal Republic of Germany Vs. The Netherlands
 Principle
These cases are an example where International Court of Justice (ICJ) ruled against its
earlier decisions. Here ICJ ruled against the existence of a customary rule which the Court
in an earlier decision affirmed that the division of a common continental shelf of an
adjacent country must be effected according to the equidistance rule. However, the Court
decided here on the basis of equitable principle.

 Facts
There were two bilateral agreements between the Federal Republic of Germany and the
Netherlands and between Federal Republic of Germany and Denmark. The two
agreements were signed in 1964 and 1965 respectively and did no more than drawing a
dividing line for a short distance from the coastline beginning at the point at which the
land boundary of the two states concerned was located. Further agreement for
delimitation of their portion in the North Sea Continental Shelf had proved impossible
and the parties of the said agreements put the dispute separately to the International
Court of Justice. As in both cases the issues were the same they were joined together by
the Court and were entertained by a single judgment.

 Issues
The followings were the issues of this case:-
2. Whether art.6 of the Geneva Convention of 1958 which embodied the principles of
equidistance if binding on Federal Republic of Germany.
3. If it is not binding on Federal Republic of Germany, then what principles and rules
of International Law were applicable to the delimitation as between parties of the
areas of the Continental Shelf of the North Sea.

 Decision
In its decision ICJ rejected the Netherlands and the Danish claim that the boundaries on
the shelf had to be drawn in accordance with the principle of equidistance, as laid down
in art.6 of Geneva Convention on the Continental Shelf and that the Court held Federal
Republic of Germany not bound by the 1958 agreement as not being a party to the treaty.
The Court further held that there was no single method of delimitation the use of which
was in all circumstances obligatory under this circumstances the Court decided that the
principles and rules of International Law applicable to the delimitation as between the
parties are as follows:-
i. delimitation is to be effected by agreement in accordance with the equitable
principles.
ii. if the delimitation leaves to the parties areas that overlap, these are to be
divided between them in agreed proportions on failing agreement equally,
unless they decide on a regime of joint jurisdiction, user or exploitation for the
zones of overlap or any part of them.

 Reasoning
1. Article 6 of the Geneva Convention is so framed as to put second the obligation to
make use of the equidistance method, causing it to come after a primary obligation
constitutes an usual preface to what is claimed to be a potential general rule of law.
2. Before a conventional rule can be considered to have become a general rule of
International law, it might be that although it is not a long practice, nevertheless,
it is widely practiced. But the number of ratification until that time was not
sufficient. In such a situation it hardly constitutes a basis on which positive
acceptance of its principles can be implied.
3. Most of the cases regarding the dispute in the continental shelves were resolved
under agreements; although the states concerned agreed to draw or did draw the
boundaries concerned according to the principles of equidistance. There is no
evidence that they so acted by reason of a customary law obliging them to do so.
4. It emerges from the history of the development of the legal regime of the
Continental Shelf that delimitation must be the object of agreement between the
states concerned and that such an agreement must be arrived at in accordance with
equitable principle.
Anglo French Continental Shelf Case
UK VS FRANCE, ICJ (1987)

 FACT
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.

 ISSUE
What principles and rules of International law are to be applicable as to the delimitation
of continental shelves between the parties?

 DECESSION
The court held that delimitation is to be effected in accordance with equitable principle
taking in to account all relevant circumstances.

 REASONING
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
ICJ, 1982

 FACT
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.

 ISSUE
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?

 DECISION
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.

 REASONING
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
ICJ, 1985

 FACT
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.

 ISSUE
What would be the principle of delimitating the continental shelf between Malta and
Libya?

 DECISION
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.

 REASONING
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.