ISLAND OF PALMAS CASE

Citation. Perm. Ct. of Arbitration, 2 U.N. Rep. Int’l Arb. Awards 829
(1928).

Brief Fact Summary. Both the United States (P) laid claim to the
ownership of the Island of Palmas. While the U.S. (P) maintained that it
was part of the Philippines, the Netherlands (D) claimed it as their
own.

Synopsis of Rule of Law. A title that is inchoate cannot prevail over a

definite title found on the continuous and peaceful display of
sovereignty.

Facts. Both the United States (P) laid claim to the ownership of the
Island of Palmas. While the U.S. (P) maintained that it was part of the
Philippines, the Netherlands (D) claimed it as their own. The claim of
the U.S. (P) was back up with the fact that the islands had been ceded
by Spain by the Treaty of Paris in 1898, and as successor to the rights
of Spain over the Philippines, it based its claim of title in the first
place on discovery. On the part of the Netherlands (D), they claimed to
have possessed and exercised rights of sovereignty over the island from
1677 or earlier to the present.

Issue. Can a title which is inchoate prevail over a definite title found
on the continuous and peaceful display of sovereignty?

Held. (Huber, Arb.). No. A title that is inchoate cannot prevail over a
definite title found on the continuous and peaceful display of
sovereignty. The peaceful and continuous display of territorial
sovereignty is as good as title. However, discovery alone without
subsequent act cannot suffice to prove sovereignty over the island. The
territorial sovereignty of the Netherlands (D) was not contested by
anyone from 1700 to 1906. The title of discovery at best an inchoate
title does not therefore prevail over the Netherlands (D) claims of
sovereignty.

Discussion. Evidence of contracts made by the East India Company and the
Netherlands (D) was examined by the arbitrator. The claims made by the
Netherlands (D) were also based on the premise of the convention it had
with the princes and native chieftains of the islands. Hence, at the
time of the Treaty of Paris in 1898, Spain was found not to have
dominion over the island.
 y 4,700 private U.S. claims, ordered payment by Iran (D) to U.S.
nationals amounting to over $2.5 billion.

CLIPPERTON ISLAND CASE

1.3.1.3.2 Taking possession To occupy land one needs to take possession

of it: When the land is not occupied little is needed to take
possession: Clipperton Island Case (France v Mexico) (1932) 26 AJIL 390
FACTS: France claimed to have occupied an island but Mexico also claimed
that Spain discovered it and that it was the successor. HELD: For
occupation you also need to possess the land which France did.
(Arbitrator: King Victor Emmanuel III of Italy) “that  island  was
in  the  legal  situation   of terratorium nullius, and, therefore,
susceptible of occupation. The question remains whether France proceeded
to an effective occupation, satisfying the conditions required  by
international  law  for  the  validity  of  this  kind  of
territorial  acquisition.”

PUBLIC INTERNATIONAL LAW

1. INTERNATIONAL LEGAL PERSONS, STATEHOOD AND SOVEREIGNTY 17

WHAT IS NORMALLY REQUIRED: (Arbitrator: King Victor Emmanuel III of

Italy) “It  is  beyond  doubt  that  by  immemorial  usage
having  the  force  of  law,  besides   the animus occupandi, the
actual, and not the nominal, taking of possession is a necessary
condition of occupation. This taking of possession consists in the act,
or series of acts, by which the occupying state reduced to its
possession the territory in question and takes steps to exercise
exclusive authority there. Strictly speaking, and in ordinary cases,
that only takes place when the state establishes in the territory itself
an organisation capable  of  making  its  law  respected.” WHAT IS
REQUIRED IF IT IS UNINHABITED: (Arbitrator: King Victor Emmanuel III of
Italy) “But this step is, properly speaking, but a means of procedure
to the taking of possession, and, therefore, is not identical with the
latter. There may also be cases where it is unnecessary to have recourse
to this method. Thus, if 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  complete…”
FISHERIES CASE SUMMARY

Fisheries Jurisdiction (United Kingdom v. Iceland) case brief

Fisheries Jurisdiction (United Kingdom v. Iceland)

Procedural History:
This case is a proceeding before the International Court of Justice
(ICJ).

FACTS:
-In 1961, the United Kingdom (Plaintiff) recognized Iceland's (D) claim
to a 12-mile fisheries limit. This was in return for Iceland's (D)
agreement that any dispute concerning Icelandic fisheries jurisdiction
beyond the 12-mile limit be referred to the International Court of
Justice.
-In 1972, Iceland proposed to extend its exclusive fisheries
jurisdiction from 12 to 50 miles around its shores.
-As a result, the United Kingdom (P) filed an application before the
ICJ.
-Iceland (D) claimed that the agreement was no longer valid due to
changed circumstances - being that the 12-mile limit was now generally
recognized and that there would be a failure of consideration for the
1961 agreement.

Issue:
Does there have to be a radical transformation of the extent of the
obligations that need to be performed for there to be a "change of
circumstances" that give rise to a ground for invoking a termination of
a treaty?

HOLDING: Yes.
-In order for a change of circumstances to give rise to a ground for
invoking the termination of a treaty it is necessary that the change has
resulted in a radical transformation of the extent of the obligations
still to be performed.
-The change must have increased the burden of the obligations yet to be
executed to the extent of rendering the performance something
essentially different from that initially undertaken.
-The change of circumstances alleged by Iceland in this case cannot be
said to have transformed radically the extent of the jurisdictional
obligation that was imposed in the 1961 Exchange of Notes.

Rule:
-In order for a change in circumstances to give rise to a ground for
invoking the termination of a treaty, it is necessary that the change
has resulted in a radical transformation in regards to the obligations
that are still to be performed.
Analysis:
The original agreement between the parties provided for recourse to the
I.C.J. in the event of a dispute arising.
Iceland’s economy was highly dependent on fishing.
The Court did not reach the merits of Iceland’s argument here, but
instead the court dealt with the jurisdictional issues at hand.

2. Brief Fact Summary. Because some circumstances changed, Iceland (D)

claimed that a fishing treaty it had with the United Kingdom (P) was no
longer applicable.

Synopsis of Rule of Law. In order that a change of circumstances may

give rise to the premise calling for the termination of a treaty, it is
necessary that it has resulted in a radical transformation of the extent
of the obligations still to be performed.

Facts. Iceland’s (D) claim to a 12-mile fisheries limit was recognized

by the United Kingdom (P) in 1961 in return for Iceland’s (D) agreement
that any dispute concerning Icelandic fisheries jurisdiction beyond the
12-mile limit be referred to the International Court of Justice. An
application was filed before the I.C.J. when Iceland (D) proposed to
extend its exclusive fisheries jurisdiction from 12 to 50 miles around
its shores in 1972. By postulating that changes in circumstances since
the 12-mile limit was now generally recognized was the ground upon which
Iceland (D) stood to argue that the agreement was no longer valid.
Iceland (D) also asserted that there would be a failure of consideration
for the 1961 agreement.

Issue. In order that a change of circumstances may give rise to a ground

for invoking the termination of a treaty, is it necessary that it has
resulted in a radical transformation of the extent of the obligation
still to be performed?

Held. Yes. In order that a change of circumstances may give rise to the
premise calling for the termination of a treaty, it is necessary that it
has resulted in a radical transformation of the extent of the
obligations still to be performed.
The change of circumstances alleged by Iceland (D) cannot be said to
have transformed radically the extent of the jurisdictional obligation
that was imposed in the 1961 Exchange of Notes.

Discussion. Recourse to the I.C.J. in the event of a dispute was the

original agreement between the parties. The economy of Iceland (D) is
dependent on fishing. The merit of Iceland (D) argument was not reached
by the Court in this case, however, but rather dealt with the
jurisdictional issues.

JOYCE VS. DIRECTOR OF PUBLIC PROSECUTION

PRINCIPLE: Protective Principle. If a crime committed outside of the

country by a foreign national which effect that country he may charged
for High Treason

FACT OF THE CASE: The appellant, Mr. Joyce was an American citizen born
in the United States of America in 1906. At about three years of age, He
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.

ISSUE: Whether an alien can be convicted of high treason-act committed

outside the United Kingdom.

DECESION: 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.

REASONING: The capability of a state to prosecute and punish its

nationals on the sole basis of their nationality is based upon the
loyalty which the person charged with the crime owes to the State of
which he is a national. It is now generally 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 substitute basis for jurisdiction.
Law Help BD © 2016. All Rights Reserved.

UNDERHILL VS. HERNANDEZ

Underhill v. Hernandez, 168 U.S. 250 (1897)

Underhill v. Hernandez

No. 36

Argued October 22, 25, 1897

Decided November 29, 1897

168 U.S. 250

Syllabus

Hernandez was in command of a revolutionary army in Venezuela when an

engagement took place with the government forces which resulted in the
defeat of the latter, and the occupation of Bolivar by the former.
Underhill was living in Bolivar, where he had constructed a waterworks
system for the city under a contract with the government, and carried on
a machinery repair business. He applied for a passport to leave the
city, which was refused by Hernandez with a view to coerce him to
operate his waterworks and his repair works for the benefit of the
community and the revolutionary forces. Subsequently a passport was
given him. The revolutionary government under which Hernandez was acting
was recognized by the United States as the legitimate government of
Venezuela. Subsequently Underhill sued Hernandez in .the Circuit Court
for the Second Circuit to recover damages caused by the refusal to grant
the passport, for alleged confinement of him to his own house, and for
alleged assaults and affronts by Hernandez' soldiers. Judgment being
rendered for defendant, the case was taken to the circuit court of
appeals, where the judgment was affirmed, the court holding "that the
acts of the defendant were the acts of Venezuela, and as such are not
properly the subject of adjudication in the courts of another
government." Held that the circuit court of appeals was justified in
that conclusion.

Every sovereign state is bound to respect the independence of every

other sovereign state, and the courts of one country will not sit in
judgment on the acts of the government of another, done within its own
territory.

In the early part of 1892, a revolution was initiated in Venezuela

against the administration thereof, which the revolutionists

Page 168 U. S. 251

claimed had ceased to be the legitimate government. The principal

parties to this conflict were those who recognized Palacio as their
head, and those who followed the leadership of Crespo. General Hernandez
belonged to the anti-administration party and commanded its forces in
the vicinity of Ciudad Bolivar. On the 8th of August, 1892, an
engagement took place between the armies of the two parties at Buena
Vista, some seven miles from Bolivar, in which the troops under
Hernandez prevailed, and on the 13th of August, Hernandez entered
Bolivar and assumed command of the city. All of the local officials had
in the meantime left, and the vacant positions were filled by General
Hernandez, who from that date, and during the period of the transactions
complained of, was the civil and military chief of the city and
district. In October, the party in revolt had achieved success
generally, taking possession of the capital of Venezuela October 6, and
on October 23, 1892, the "Crespo government," so called, was formally
recognized as the legitimate government of Venezuela by the United
States.

George F. Underhill was a citizen of the United States, who had

constructed a waterworks system for the City of Bolivar under a contract
with the government, and was engaged in supplying the place with water,
and he also carried on a machinery repair business. Some time after the
entry of General Hernandez, Underhill applied to him, as the officer in
command, for a passport to leave the city. Hernandez refused this
request, and requests made by others in Underhill's behalf, until
October 18, when a passport was given, and Underhill left the country.

This action was brought to recover damages for the detention caused by
reason of the refusal to grant the passport, for the alleged confinement
of Underhill to his own house, and for certain alleged assaults and
affronts by the soldiers of Hernandez' army.

The cause was tried in the Circuit Court of the United States for the
Eastern District of New York, and on the conclusion of plaintiff's case,
the circuit court ruled that, upon the facts, plaintiff was not entitled
to recover, and directed

Page 168 U. S. 252

a verdict for defendant on the ground that

"because the acts of defendant were those of a military commander,
representing a de facto government in the prosecution of a war, he was
not civilly responsible therefor."

Judgment having been rendered for defendant, the case was taken to the
circuit court of appeals, and by that court affirmed upon the ground

"that the acts of the defendant were the acts of the government of
Venezuela, and as such are not properly the subject of adjudication in
the courts of another government."

65 F. 577. Thereupon the cause was brought to this Court on certiorari.

2. UNDERHILL v. HERNANDEZ, (1897)

No. 36

Argued: Decided: November 29, 1897

In the early part of 1892 a revolution was initiated in Venezuela,

against the administration thereof, which the revo- [168 U.S. 250, 251]
lutionists claimed had ceased to be the legitimate government. The
principal parties to this conflict were those who recognized Palacio as
their head, and those who followed the leadership of Crespo. Gen.
Hernandez belonged to the antiadministration party, and commanded its
forces in the vicinity of Ciudad Bolivar. On the 8th of August, 1892, an
engagement took place between the arimes of the two parties at Buena
Vista, some seven miles from Bolivar, in which the troops under
Hernandez prevailed; and, on the 13th of August, Hernandez entered
Bolivar, and assumed command of the city. All of the local officials had
in the meantime left, and the vacant positions were filled by Gen.
Hernandez, who from that date, and during the period of the transactions
complained of, was the civil and military chief of the city and
district. In October the party in revolt had achieved success generally,
taking possession of the capital of Venezuela, October 6th; and on
October 23, 1892, the 'Crespo government,' so called, was formally
recognized as the legitimate government of Venezuela by the United
States.

George F. Underhill was a citizen of the United States, who had

constructed a waterworks system for the city of Bolivar, under a
contract with the government, and was engaged in supplying the place
with water; and he also carried on a machiney repair business. Some time
after the entry of Gen. Hernandez, Underhill applied to him, as the
officer in command, for a passport to leave the city. Hernandez refused
this request, and requests made by others in Underhill's behalf, until
October 18th, when a passport was given, and Underhill left the country.

This action was brought to recover damages for the detention caused by
reason of the refusal to grant the passport, for the alleged confinement
of Underhill to his own house, and for certain alleged assaults and
affronts by the soldiers of Hernandez's army.

The cause was tried in the circuit court of the United States for the
Eastern district of New York, and on the conclusion of plaintiff's case
the circuit court ruled that upon the facts plaintiff was not entitled
to recover, and directed [168 U.S. 250, 252] a verdict for defendant, on
the ground that 'because the acts of defendant were those of a military
commander, representing a de facto government in the prosecution of a
war, he was not civilly responsible therefor.' Judgment having been
rendered for defendant, the case was taken to the circuit court of
appeals, and by that court affirmed, upon the ground 'that the acts of
the defendant were the acts of the government of Venezuela, and as such
are not properly the subject of adjudication in the courts of another
government.' 26 U. S. App. 573, 13 C. C. A. 51, and 65 Fed. 577.
Thereupon the cause was brought to this court on certiorari.

Walter S. Logan, C. M. Demond, and Salter S. Clark, for plaintiff in

error.

F. R. Coudert, F. R. Coudert, Jr., and Joseph Kling, for defendant in

error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing
language, delivered the opinion of the court.

Every sovereign state is bound to respect the independence of every

other sovereign state, and the courts of one country will not sit in
judgment on the acts of the government of another, done within its own
territory. Redress of grievances by reason of such acts must be obtained
through the means open to be availed of by sovereign powers as between
themselves.

Nor can the principle be confined to lawful or recognized governments,

or to cases where redress can manifestly be had through public channels.
The immunity of individuals from suits brought in foreign tribunals for
acts done within their own states, in the exercise of governmental
authority, whether as civil officers or as military commanders, must
necessarily extend to the agents of governments ruling by paramount
force as matter of fact. Where a civil war prevails (that is, where the
people of a country are divided into two hostile parties, who take up
arms and oppose one another by military [168 U.S. 250, 253] force),
generally speaking, foreign nations do not assume to judge of the merits
of the quarrel. If the party seeking to dislodge the existing government
succeeds, and the independence of the government it has set up is
recognized, then the acts of such government, from the commencement of
its existence, are regarded as those of an independent nation. If the
political revolt fails of success, still, if actual war has been waged,
acts of legitimate warfare cannot be made the basis of individual
liability. U. S. v. Rice, 4 Wheat. 246; Fleming v. Page, 9 How. 603;
Thorington v. Smith, 8 Wall. 1; Williams v. Bruffy, 96 U.S. 176§; Ford v.
Surget, 97 U.S. 594§; Dow v. Johnson, 100 U.S. 158§; and other cases.

Revolutions or insurrections may inconvenience other nations, but by

accommodation to the facts the application of settled rules is readily
reached. And, where the fact of the existence of war is in issue in the
instance of complaint of acts committed within foreign territory, it is
not an absolute prerequisite that that fact should be made out by an
acknowledgment of belligerency, as other official recognition of its
existence may be sufficient proof thereof. The Three Friends, 166 U.S.
1§, 17 Sup. Ct. 495.

In this case the archives of the state department show that civil war
was flagrant in Venezuela from the spring of 1892, that the revolution
was successful, and that the revolutionary government was recognized by
the United States as the government of the country; it being, to use the
language of the secretary of state in a communication to our minister to
Venezuela, 'accepted by the people, in the possession of the power of
the nation, and fully established.'

That these were facts of which the court is bound to take judicial
notice, and for information as to which it may consult the department of
state, there can be no doubt. Jones v. U. S., 137 U.S. 202§, 11 Sup. Ct.
80; Mighell v. Sultan of Jahore [168 U.S. 250, 1894] 1 Q. B. 149.

It is idle to argue that the proceedings of those who thus triumphed

should be treated as the acts of baditti, or mere mobs.

We entertain no doubt, upon the evidence, that Hernandez [168 U.S. 250,
254] was carrying on military operations in support of the
revolutionary party. It may be that adherents of that side of the
controversy in the particular locality where Hernandez was the leader of
the movement entertained a preference for him as the future executive
head of the nation, but that is beside the question. The acts complained
of were the acts of a military commander representing the authority of
the revolutionary party as a government, which afterwards succeeded, and
was recognized by the United States. We think the circuit court of
appeals was justified in concluding 'that the acts of the defendant were
the acts of the government of Venezuela, and as such are not properly
the subject of adjudication in the courts of another government.'

The decisions cited on plaintiff's behalf are not in point. Cases

respecting arrests by military authority in the absence of the
prevalence of war, or the validity of contracts between individuals
entered into in aid of insurrection, or the right or revolutionary
bodies to vex the commerce of the world on its common highway without
incurring the penalties denounced on piracy, and the like, do not
involve the questions presented here.

We agree with the circuit court of appeals that 'the evidence upon the
trial indicated that the purpose of the defendant in his treatment of
the plaintiff was to coerce the plaintiff to operate his waterworks and
his repair works for the benefit of the community and the revolutionary
forces,' and that 'it was not sufficient to have warranted a finding by
the jury that the defendant was actuated by malice or any personal or
private motive,' and we concur in its disposition of the rulings below.
The decree of the circuit court is affirmed.

THE LOTUS CASE

Name of the Case: The Lotus Case (France vsTurkey); Year of the decision: 1927; and
Court: PCIJ.

Overview: A collision occurred on the high seas between a French vessel and a Turkish
vessel. Victims were Turkish nationals and the alleged offender was French. CouldTurkey
exercise its jurisdiction over the French national under international law?

Facts of the Case:

A collision occurred on the high seas between a French vessel – Lotus

– and a Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed
eight Turkish nationals on board the Turkish vessel. The 10 survivors of
the Boz-Kourt (including its captain) were taken to Turkey on board the
Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the
captain of the Turkish ship were charged with manslaughter. Demons, a
French national, was sentenced to 80 days of imprisonment and a fine.
The French government protested, demanding the release of Demons or the
transfer of his case to the French Courts. Turkey and France agreed to
refer this dispute on the jurisdiction to the Permanent Court of
International Justice (PCIJ).

Questions before the Court:

Did Turkey violate international law when Turkish courts exercised
jurisdiction over a crime committed by a French national, outside
Turkey? If yes, should Turkey pay compensation to France?

The Court’s Decision:

Turkey, by instituting criminal proceedings against Demons, did not

violate international law.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of

jurisdiction using an existing rule of international law or is the mere
absence of a prohibition preventing the exercise of jurisdiction enough?

The first principle of the Lotus case said that jurisdiction is

territorial: A State cannot exercise its jurisdiction outside its
territoryunless an international treaty or customary law permits it to
do so. This is what we called the first Lotus Principle.

The second principle of the Lotus case: Within its territory, a State
may exercise its jurisdiction, on any matter, even if there is no
specific rule of international law permitting it to do so. In these
instances, States have a wide measure of discretion, which is only
limited by the prohibitive rules of international law.

Criminal Jurisdiction: Territorial Jurisdiction

France alleged that the flag State of a vessel would have exclusive
jurisdiction over offences committed on board the ship in high seas. The
PCIJ disagreed. It held that France, as the flag State, did not enjoy
exclusive territorial jurisdiction in the high seas in respect of a
collision with a vessel carrying the flag of another State (paras 71 –
84). The Court held that Turkey and France both have jurisdiction in
respect of the whole incident: i.e. there is concurrent jurisdiction.

The PCIJ held that a ship in the high seas is assimilated to the
territory of the flag State. This State may exercise its jurisdiction
over the ship, in the same way as it exercises its jurisdiction over its
land, to the exclusion of all other States. In this case, the Court
equated the Turkish vessel to Turkish territory. In this case, the PCIJ
held that the “… offence produced its effects on the Turkish vessel
and consequently in a place assimilated to Turkish territory in which
the application of Turkish criminal law cannot be challenged, even in
regard to offences committed there by foreigners.” Turkey had
jurisdiction over this case.
MIGHELL VS. SULTAN OF JOHORE

Mighell v. Sultan of Johore§

Principle: Foreign sovereign shall be treated as independent sovereign

and therefore have immunity form local jurisdiction.

Diplomatic immunity.

Fact: The Sultan’ s sovereign status was an issue in a court case in

England. When Miss Mighell sued a certain Albert Baker (Sultan of
Johor), travelling incognito in the United Kingdom) for breach of
promise of marriage, the Court granted the Sultan as an “independent
sovereign” immunity from jurisdiction. The decision was based on a
letter from the Secretary of State for the Colonies stating that
“generally speaking, [the Sultan] exercises without question the usual
attributes of a sovereign ruler.” This further demonstrates the British
recognition of the Sultanate of Johor as an independent State.

Issue: whether sultan Johor will get diplomatic immunity or not?

Decision: Sultan Johor will get the diplomatic immunity as an

“independent sovereign

Reasoning: The Court granted the Sultan as an “independent sovereign”

immunity from jurisdiction

Law Help BD © 2016. All Rights Reserved.