Public International Law
| 2i Digest | Atty. Maritess Sy | Module 9-10 |
Island of Palmas Case, 2 UN Rep. of Int. Arb.
Awards, 231 1
FACTS: The Island of Palmas (or Miangas) sits
about halfway between the islands of Mindanao
in the Philippines and Nanusa in the Netherlands
Indies but within the boundaries of the
Philippines as defined by Spain and thus ceded
to the U.S. via the Treaty of Paris in 1898. In
1906, U.S. General Leonard Wood visited
Palmas and discovered that the Netherlands
also claimed sovereignty over the island. An
agreement was signed in between the U.S. and
the Netherlands to submit the dispute to the
Permanent Court of Arbitration, with Swiss jurist
Max Huber as the selected arbitrator acting
therefor.
The U.S. bases its title in the first place on
discovery, thus the existence of sovereignty
acquired is confirmed by treaty (Treaty of
Münster of 1648) to which Spain and the
Netherlands themselves are contracting parties.
They claim that the title was intact at the
moment when, by Article III of the Treaty of
Paris, Spain ceded the Philippines to the U.S,
and that it is unnecessary to establish facts
showing the actual display of sovereignty
precisely over the Island of Palmas since the
same forms a geographical part of the Philippine
group and in virtue of the principle of contiguity
belongs to the Power having the sovereignty
over the Philippines.
The Netherlands countered that the fact of
discovery by Spain is not proved, nor yet any
other form of acquisition, and even if Spain had
at any moment a title, such title had been lost.
Its contention is that the Netherlands,
represented for this purpose in the first period of
colonization by the East India Company, have
possessed and exercised rights of sovereignty
from 1677, or probably from a date prior even to
1648, to the present day. Sovereignty arose out
of conventions entered into with 838 native
princes of the Island of Sangi. the main island of
the Talautse (Sangi) Isles, establishing the
suzerainty of the Netherlands over the territories
of these princes, including Palmas. The state of
affairs thus set up is claimed to be validated by
international treaties.
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Sales
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ISSUE: WON the Island of Palmas in its entirety
forms a part of territory belonging to the U.S.
RULING: NO. Practice, as well as doctrine,
recognizes that the continuous and peaceful
display of territorial sovereignty (peaceful in
relation to other States) is as good as a title. The
growing insistence with which international law,
ever since the middle of the 18th century, has
demanded that the occupation shall be effective
would be inconceivable, if effectiveness were
required only for the act of acquisition and not
equally for the maintenance of the right.
Without manifesting its territorial sovereignty, the
state cannot fulfill its duty to protect within the
territory the rights of other states, in particular
their night to integrity and inviolability in peace
and in war, together with the rights which each
state may claim for its nationals in foreign
territory. Territorial sovereignty cannot limit itself
to its negative side, i.e., to excluding the
activities of other states; for it serves to divide
between nations the space upon which human
activities are employed, in order to assure them
at all points the minimum of protection of which
international law is the guardian.
Whilst conceivable, it would be entirely contrary
to the principles laid down above as to territorial
sovereignty to suppose that the Treaty of Paris
duly notified to the Netherlands and left without
contestation on their part may have some
bearing on an inchoate title not supported by any
actual display of sovereignty by the U.S. or
Spain. Even admitting that the Spanish title still
existed as inchoate in 1898 and must be
considered as included in the cession under
Article Ill of the Treaty of Paris, an inchoate title
could not prevail over the continuous and
peaceful display of authority by another state; for
such display may prevail even over a prior,
definitive title put forward by another state.
As to the principle of contiguity, although states
have in certain circumstances maintained that
islands relatively close to their shores belonged
to them in virtue of their geographical situation, it
is impossible to show the existence of this rule of
positive international law to the effect that
islands situated outside territorial waters should
belong to a state from the mere fact that its
territory forms the terra firma (nearest continent
or island of considerable size). The alleged
principle itself is by its very nature so uncertain
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and contested that even governments of the
same state have on different occasions
maintained contradictory opinions as to its
soundness. As a rule establishing ipso jure the
presumption of sovereignty in favour of a
particular state, this principle would be in conflict
with what has been said as to territorial
sovereignty, and it is wholly lacking in precision
and would in its application lead to arbitrary
results. This would be especially true in a case
such as that of the island in question, which is
not relatively close to one single continent, and
where strict delimitations between the different
parts of its parent archipelago are not naturally
obvious.
Albeit not numerous, the acts of indirect or direct
display of Netherlands sovereignty at Palmas
are proof of the exclusive display of Netherlands
sovereignty. It may suffice that such display
existed in 1898, and had already existed as
continuous and peaceful before that date long
enough to enable any Power who might have
considered herself as possessing sovereignty of
a claim thereof over the island, to have a
reasonable possibility for ascertaining the
existence of a state of things contrary to her real
or alleged rights. Moreover, no evidence was
submitted to the Tribunal that would disclose any
act of display of sovereignty over the island by
Spain or another Power.
For these reasons the Arbitrator decides that the
Island of Palmas (or Miangas) forms in its
entirety a part of Netherlands territory.
Clipperton Island Case, 26 A.J.I.L. 19322
FACTS:
Clipperton Island is an uninhabited
island coral atoll in the eastern Pacific Ocean,
southwest of Mexico, west of Costa Rica and
northwest of Galapagos Islands, Equador. It was
named after John Clipperton, an English pirate
who fought the Spanish during the 18th century
who is said to have passed by the island. It was
discovered by French discovers Martin de
Chassiron and Michel du Bocade in 1711,
commanding the French ships La Princesse and
La Découverte. They drew up the first map and
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Salih
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annexed it to France. The first scientific
expedition took place in 1725 under Frenchman
M. Bocage, who lived on the island for several
months.
France claimed to have occupied an island but
Mexico  claimed that Spain discovered it and
that it was the successor. Mexico also claimed it
due to activities undertaken therein as early as
1848-1849. 
On November 17, 1858, Emperor Napoleon III
annexed it as part of the French colony of Tahiti.
This did not settle the ownership question. After
which, there were no apparent acts of
sovereignty on the part of France. The island
remained without population. 
On November 24, 1897, French naval authorities
found three Americans working for the American
Guano Company, who had raised the American
flag. U.S. authorities denounced their act,
assuring the French that they did not intend to
assert American sovereignty
 Mexico reasserted its claim late in the 19th
century, and on December 13, 1897 sent the
gunboat La Democrata to occupy and annex it.
A colony was established, and a series of
military governors was posted, the last one
being Ramón Arnaud. France insisted on its
ownership, and a lengthy diplomatic
correspondence between the two nations led to
the conclusion of a treaty on March 2, 1909, to
seek the arbitration of King Victor Emmanuel III
of Italy, with each nation promising to abide by
his determination. All the inhabitants of the
island sent by Mexico died in 1917.
ISSUE: The issue is who, between the France
and Mexico, has the sovereignty over the
Clipperton Island. 
RULING:  On January 28, 1931, King Victor
Emmanuel of Italy declared Clipperton to be a
French possession. It was ruled that Mexico was
not able to prove historic right over the Island.
For occupation you also need to possess the
land which France did. 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. The arbitrator
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was satisfied that the French occupation of 1858
satisfied the requirements of international law.
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 reduces 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 organization
capable of making its laws respected. 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 completed. 
There is no reason to rule that France has
subsequently lost her right by derelictio, since
she never had the animus of abandoning the
island, and the fact that she has not exercised
her authority there in a positive manner does not
imply the forfeiture of an acquisition already
definitively perfected. In 1931 Victor Emanuel
issued his arbitral decision in the Clipperton
Island Case, declaring Clipperton to be a French
possession. The French rebuilt the lighthouse
and settled a military outpost, which remained
for seven years before being abandoned.
Magallona v. Ermita, 655 SCRA 4763
FACTS:
In 1961, RA 3046 was enacted demarcating the
maritime baselines if the Philippines as an
archipelagic state which followed the framing of
the Convention on the Territorial Sea and the
Contiguous Zone in 1958 (UNCLOS I), codifying,
among others, the sovereign right of States
parties over their "territorial sea," the breadth of
which, however, was left undetermined. There
were attempts to fill such void; however,
3 baselines], contiguous zone [24 nautical
Tejada
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UNCLOS II ultimately failed to do so. Thus, the
law remained as is for more than five decades.
In March 2009, RA 9522 was enacted amending
the provisions of RA 3046 to comply with the
terms of the United Nations Convention on the
Law of the Sea (UNCLOS III) which the
Philippines ratified on February 27, 1984. 
Among others, UNCLOS III prescribes the
water-land ratio, length, and contour of baselines
of archipelagic States like the Philippines and
sets the deadline for the filing of application for
the extended continental shelf. Complying with
these requirements, RA 9522 shortened one
baseline, optimized the location of some
basepoints around the Philippine archipelago
and classified adjacent territories, namely, the
Kalayaan Island Group (KIG) and the
Scarborough Shoal, as "regimes of islands"
whose islands generate their own applicable
maritime zones.
Petitioners now claim that the law is
unconstitutional for reducing the Philippine
maritime territory, and undermining national
security and sovereignty, among others.
ISSUE:
1. W/N RA 9522 is unconstitutional for
reducing the Philippine maritime
territory.
2. W/N RA 9522 undermines Philippine
sovereignty and national security by
allowing the maritime passage of all
vessels and aircrafts.
RULING:
1. No. Contrary to petitioners’ contentions,
RA 9522 actually increased the
Philippine maritime territory. Further,
petitioners’ contention that RA 9522
disregards the pre-UNCLOS III
demarcation of the territory under the
Treaty of Paris and related treaties,
successively encoded in the definition of
national territory under the 1935, 1973
and 1987 Constitutions is also
untenable. UNCLOS III has nothing to
do about the acquisition or loss of
territory. It is a multilateral treaty
regulating, among others, sea-use rights
over maritime zones (i.e., the territorial
waters [12 nautical miles from the
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miles from the baselines], exclusive
economic zone [200 nautical miles from
the baselines]), and continental shelves
that UNCLOS III delimits.  b.  Bajo de Masinloc, also known as
RA 9522, a baseline law, is enacted in
conformity with the UNCLOS III to mark-
out specific basepoints along their
coasts from which baselines are drawn,
either straight or contoured, to serve as
geographic starting points to measure
the breadth of the maritime zones and
continental shelf. UNCLOS III and its
ancillary baseline laws do not play a part
in acquisition or loss of territory. Under
traditional international law typology,
States acquire (or conversely, lose)
territory through occupation, accretion,
cession and prescription, not by
executing multilateral treaties on the
regulations of sea-use rights or enacting
statutes to comply with the treaty’s
terms to delimit maritime zones and
continental shelves. Territorial claims to
land features are outside UNCLOS III,
and are instead governed by the rules
on general international law.
Petitioners’ assertion that RA 9522
would result to a loss of about 15,000
nautical miles of territory is unfounded.
On the contrary, RA 9522, by optimizing
the location of basepoints, increased the
Philippines’ total maritime space by
145,216 square nautical miles.
Petitioners’ assertion that because the
Kalayaan Group of Islands and the
Scarborough shoal are now outside the
drawn demarcation the aforementioned
islands are now outside the Philippine
territory is negated by RA 9522 itself.
Section 2 of the legislation provides:
The baselines in the following
areas over which the Philippines
likewise exercises sovereignty
and jurisdiction shall be
determined as "Regime of
Islands" under the Republic of
the Philippines consistent with
Article 121 of the United Nations
Convention on the Law of the
Sea (UNCLOS):
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a.  The Kalayaan Island Group as
constituted under Presidential Decree
No. 1596 and
Scarborough Shoal.
The inclusion of the island groups in the
drawing of the baseline would be a
departure to the guidelines set by the
UNCLOS III which provides that “[t]he
drawing of such baselines shall not
depart to any appreciable extent from
the general configuration of the
archipelago,” and would lead to adverse
legal effects. Thus, RA 9225 is valid,
and does not operate to reduce maritime
territory.
2. No. Petitioners’ contention that the law
unconstitutionally "converts" internal
waters into archipelagic waters, hence
subjecting these waters to the right of
innocent and sea lanes passage under
UNCLOS III, including overflight
indubitably expose Philippine internal
waters to nuclear and maritime pollution
hazards, in violation of the Constitution
is likewise untenable. Under Article 49 of
the UNCLOS III, The Philippines
exercises sovereignty over this
“archipelagic waters” or “internal waters”
as referred to in the Constitution. 
The fact of sovereignty, however, does
not preclude the operation of municipal
and international law norms subjecting
the territorial sea or archipelagic waters
to necessary, if not marginal, burdens in
the interest of maintaining unimpeded,
expeditious international navigation,
consistent with the international law
principle of freedom of navigation.
Significantly, the right of innocent
passage is a customary international
law, thus automatically incorporated in
the corpus of Philippine law. No modern
State can validly invoke its sovereignty
to absolutely forbid innocent passage
that is exercised in accordance with
customary international law without
risking retaliatory measures from the
international community. Thus, allowing
safe passage of vessels and aircraft
does not undermine Philippine
sovereignty and national security.
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*There was also a contention that the
passage of RA 9522 was optional based
on the permissive text of UNCLOS III.
The Court, however, ruled that the
luxury of choosing to implement the
guidelines is a prerogative of the
congress; moreover, choosing to
implement the same comes at a very
steep price. Absent such legislation, an
archipelagic State like the Philippines
will find itself devoid of internationally
acceptable baselines from where the
breadth of its maritime zones and
continental shelf is measured. This is [a]
recipe for a two-fronted disaster: first, it
sends an open invitation to the seafaring
powers to freely enter and exploit the
resources in the waters and submarine
areas around our archipelago; and
second, it weakens the country’s case in
any international dispute over Philippine
maritime space. These are
consequences Congress wisely
avoided.
Fisheries Case, ICJ Reports (18 December
1951) United Kingdom v. Norway4
Summary:
The International Court of Justice delivered a
judgment, by 10 votes to 2, that the method
employed for the delimitation of the fisheries
zone by the Royal Norwegian Decree is not
contrary to international law; by 8 votes to 4, that
the baselines fixed by said decree in application
of this method are not contrary to international
law.  general direction of the coast and in a
The United Kingdom requested the court to
decide if Norway had used a legally acceptable
method in drawing the baseline from which it
measured its territorial sea. The United Kingdom
argued that customary international law did not
allow the length of a baseline drawn across a
bay to be longer than ten miles. Norway argued
that its delimitation method was consistent with
general principles of international law.
4 for the delimitation of the fisheries zone by the
Yalung
5
Facts:
Since 1911, British trawlers had been seized
and condemned for having violated measures
taken by the Norwegian Government specifying
the limits within which fishing was prohibited to
foreigners. In 1935, a decree was enacted
delimiting the Norwegian fisheries zone. The
decree covers the drawing of straight lines,
called “baselines” 4 miles deep into the sea. This
4-mile area is reserved fishing exclusive for
Norwegian nationals.
On September 28th, 1949, the Government of
the United Kingdom filed with the Registry an
Application instituting proceedings before the
Court against Norway, the subject of the
proceedings being the validity or otherwise,
under international law, of the lines of
delimitation of the Norwegian fisheries zone laid
down by the Royal Decree of July 12th, 1935.
The Application referred to the Declarations by
which the United Kingdom and Norway had
accepted the compulsory jurisdiction of the Court
in accordance with Article 36, paragraph 2, of
the Statute. 
The UK Government argued that 1) Norway
could only draw straight lines across bays; 2)
that the length of the baselines drawn across the
waters lying between the formations of the
skjaergaard must not exceed 10 miles; 3) certain
lines did not follow the general direction of the
coast, or did not follow it sufficiently closely, or
that they did not respect the natural connection
existing between certain sea areas and the land
formations separating or surrounding them; and
4) that the Norwegian system of delimitation was
unknown to UK and that the system lacked
essential notoriety to provide the basis of
historical title enforceable upon the UK. On the
other hand, Norway argued that the baselines
had to be drawn in such a way as to respect the
reasonable manner.
Issue:
Whether or not the 1935 Decree concerning the
delimitation of the Norwegian fisheries is valid
under the international law of the lines of
delimitation.
Held:
YES. The ICJ ruled that the method employed
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Royal Norwegian Decree of 1935 is valid and
not contrary to international law. The judgment
of the court first examined the applicability of the
principles put forward by the government of the
UK, then the Norwegian system, and finally the
conformity of that system with international law.
The first principle put forward by the UK is that
the baselines must be low water mark, this
indeed is the criterion generally adopted by most
states and but differ as to its application. The
court considered the methods of drawing the
lines but, the court rejected the “trace Parallele”
which consists of drawing the outer limits of the
belt following the coast and all its sinuosity. The
court also rejected the “courbe tangente” (arcs of
a circle) and it is not obligatory under
international law to use these methods of
drawing the lines. The court also paid particular
attention to the geographical aspect of the case.
The geographical realities and historic control of
the Norwegian coast inevitably contributed to the
final decision by the ICJ. The coast of Norway is
too indented and is an exception under
international law from the 3 miles territorial
waters rule. The fjords, Sunds along the
coastline which have the characteristic of a bay
or legal straits should be considered Norwegian
for historical reasons that the territorial sea
should be measured from the line of low water
mark. So it was agreed on the outset of both
parties and the court that Norway had the right
to claim a 4 mile belt of territorial sea. The court
concluded that it was the outer line of the
Skaergaard that must be taken into account in
admitting the belt of the Norwegian territorial
waters.
The law relied upon mainly international Law of
the sea; how far a state can modify its territorial
waters and its control over it, exclusively
reserving fishing for its nationals. In this case,
rules that are practiced for instance how long a
baseline should be. Only a 10 mile long straight
line is allowed and this has been the practice by
most states however it is different in the case of
Norway because of Norway's geographic
indentation, islands and islets and that Norway
always opposed any attempt to apply it to its
coast.
The Court established the existence and the
constituent elements of the Norwegian system of
delimitation, further finds that this system was
consistently applied by Norwegian authorities
and that it encountered no opposition on the part
of other States. It was also stated that the lines
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drawn were in accordance with the traditional
Norwegian system and moreover, pointed out
that they were a result of a careful study initiated
by Norwegian authorities as far back as 1911.
PCA Case No. 2013-19, “In the Matter of the
South China Sea Arbitration” Between the
Republic of the Philippines and the People’s
Republic of China 5
FACTS:
The Philippines initiated arbitration proceedings
against China seeking the declaration that the
Parties’ respective rights and obligations in
regard to the waters, seabed and maritime
features of the South China Sea are governed
by UNCLOS, and that China’s claims based on
its “nine dash line” are inconsistent with the
Convention and therefore invalid.
Throughout the proceedings, China has rejected
and returned correspondence from the Tribunal
sent by the Registry, explaining on each
occasion “its position that it does not accept the
arbitration initiated by the Philippines.”
ISSUES and HELD:
THE ‘NINE-DASH LINE’ AND CHINA’S CLAIM
TO HISTORIC RIGHTS IN THE MARITIME
AREAS OF THE SOUTH CHINA SEA
- As between the Philippines and China,
the UNCLOS defines the scope of
entitlements in the South China Sea,
which may not extend beyond the limits
imposed therein. China’s claims to
historic rights, or other sovereign rights
or jurisdiction are contrary to the
UNCLOS and without lawful effect to the
extent that they exceed the geographic
and substantive limits of China’s
maritime entitlements under the
UNCLOS.
THE STATUS OF FEATURES IN THE SOUTH
CHINA SEA
- Within the meaning of Art. 121(1) of the
UNCLOS (Regime of islands), naturally
formed areas of land, surrounded by
water, which are above water at high
tide, However, under Art. 121(3) of the
UNCLOS, the high-tide features at
Scarborough Shoal are rocks that
cannot sustain human habitation or
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economic life of their own and
accordingly shall have no EEZ or
continental shelf.
CHINESE ACTIVITIES IN THE SOUTH CHINA
SEA
A. Alleged Interference with the Philippines'
Sovereign Rights in the EEZ and Continental
Shelf
- China has, through the operation of its
marine surveillance vessels breached Art. 77 of
the UNCLOS (Rights of the coastal
State over the continental shelf) with respect to
the Philippines’ sovereign rights over the
non-living resources of its continental shelf in the
area of Reed Bank. The Tribunal further
finds that China has, by promulgating its 2012
moratorium on fishing in the South
China Sea (including areas falling within the EEZ
of the Philippines), breached Art. 56 of the
UNCLOS (Rights, jurisdiction and duties of the
coastal State in the EEZ) with respect to
the Philippines’ sovereign rights over the living
resources of its EEZ.
B. Alleged Failure to Prevent Chinese Nationals
from Exploring the Philippines’ Living Resources
- China has, through the operation of its
marine surveillance vessels at Mischief Reef and
Second Thomas Shoal in May 2013,
failed to exhibit due regard for the Philippines’
sovereign rights with respect to fisheries
in its EEZ. Accordingly, China has breached its
obligations under Art. 58(3) of the
UNCLOS (Rights and duties of other States in
the EEZ.
C. China’s Actions in respect of Traditional
Fishing at Scarborough Shoal
- China has, through the operation of its
official vessels at Scarborough Shoal from May
2012 onwards, unlawfully prevented
Filipino fishermen from engaging in traditional
fishing at Scarborough Shoal.
THE FUTURE CONDUCT OF THE PARTIES
- Both parties are obliged to comply with
the Convention regarding the resolution
of disputes, and to respect the rights
and freedoms of other States under the
UNCLOS.
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Joyce v. Director of Public Prosecution,
House of Lords, Dec 18, 1945, Am Journal,
6
Vol 40 (1946)
Facts:
Appellant William Joyce was an
American citizen. He stayed in England until
1939 and settled there. On July 4, 1933, he
applied for a British passport, describing himself
as a British subject by birth. He was granted the
passport for a period of five years. After its
expiration he again applied for a renewal of his
passport for a further period of one year,
repeating the same declaration. His application
was granted.
After the outbreak of war between Great
Britain and Germany and on his arrest in the
year 1945, they found on his person a "work
book" issued by the German State on October 4,
1939, from which it appeared that he had been
employed by the German Radio Company of
Berlin as an announcer of English news from
September 18, 1939. In this document his
nationality was stated to be "Great Britain" and
his special qualification "English." It was proved
to the satisfaction of the jury that he had at the
dates alleged in the indictment broadcast
propaganda on behalf of the enemy. He was
found guilty accordingly and was convicted of
high treason at the Central Criminal Court and
duly sentenced to death. From this verdict an
appeal was brought to the Court of Criminal
Appeal, arguing that the Court wrongly assumed
jurisdiction to try an alien for an offence against
British law committed in a foreign country.
Issue: 
Whether or not the British Court has jurisdiction
to try and convict appellant for high treason in
respect of acts committed by him
Held: 
Yes. The statute in question (the
Treason Act of 1351) deals with the crime of
treason committed within or, as was held in Rex
v. Casement, without the realm. It is general in
its terms and there is no reason for limiting its
scope. No principle of comity demands that a
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State should ignore the crime of treason
committed against it outside its territory. On the
contrary, a proper regard for its own security
requires that all those who commit that crime,
whether they commit it within or without the
realm, should be amenable to its laws.
Therefore, in this case, the Court has the
jurisdiction to try the appellant.
Allegiance is owed to their Sovereign
Lord the King by his natural born subjects; so it
is by those who, being aliens, become his
subjects by denization or naturalization; so it is
by those who, being aliens, reside within the
King's realm. By obtaining a British passport the
appellant, as a person already owing allegiance
to the King here, extended his duty of allegiance
beyond the moment when he left England. It was
immaterial that he had obtained the passport by
misrepresentation and that he was not in law a
British subject. In all the circumstances of the
case the appellant had, at the material times,
adhered to the King's enemies beyond the realm
and was, therefore, guilty of treason within the
meaning of the Treason Act 135.
The Schooner Exchange vs. McFaddon
11 U.S. (7 Cranch) 116, 18127
SUMMARY  violently and forcibly taken by certain persons,
The Schooner Exchange is owned by John
McFaddon and William Greetham. On October
27, 1809, it sailed from Baltimore, Maryland for
San Sebastián, Spain. On December 30, 1810,
the Exchange was seized by order of Napoleon
Bonaparte. The Exchange was then armed and
commissioned as a French warship, under the
name of Balaou. When the vessel later docked
in Philadelphia because of storm damage,
McFaddon and Greetham filed an action in the
district court to seize the vessel, claiming that it
had been taken illegally. The district court found
that it did not have jurisdiction over the dispute.
On appeal, the circuit court reversed the
decision of the district court and ordered the
district court to proceed to the merits of the case.
The Supreme Court reversed the circuit court's
decision and affirmed the district court's
dismissal of the action. While a State has
absolute and exclusive jurisdiction within its
territory, it could waive its jurisdiction by express
or implied consent. If the ports of a nation
generally or any particular ports be closed
against vessels of war, or the vessels of any
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Adalim
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particular nation, notice is usually given. If there
be no prohibition, the ports of a friendly nation
are considered as open to the public ships of all
powers with whom it is at peace.  In almost
every instance, the treaties between civilized
nations contain a stipulation to this effect in favor
of vessels driven in by stress of weather or other
urgent necessity. In such cases, the sovereign is
bound by compact to authorize foreign vessels
to enter his ports. The treaty binds him to allow
vessels in distress to find refuge and asylum in
his ports, and this is a license which he is not at
liberty to retract. By principle of public law that
national ships of war entering the port of a
friendly power open for their reception are to be
considered as exempted by the consent of that
power from its jurisdiction.
FACTS:
On August 24, 1811, John McFaddon & William
Greetham, of the State of Maryland, filed their
libel in the District Court of the United States for
the District of Pennsylvania against the
Schooner Exchange, setting forth that they were
its sole owners on October 27, 1809, when she
sailed from Baltimore, bound to St. Sebastians,
in Spain. That while lawfully and peaceably
pursuing her voyage, December 30, 1810, it was
acting under the decrees and orders of
Napoleon, Emperor of the French, out of the
custody of the libellants (John McFaddon &
William Greetham), and of their captain and
agent, and was disposed of by those persons, or
some of them, in violation of the rights of the
libellants and of the law of nations in that behalf.
It then became known as Balaou or Vessel no. 5
and is is now a national armed vessel,
commissioned by and in the service of the
Emperor of France. That it had been brought
into the port of Philadelphia about July 22, 1811
for refreshment and repairs having encountered
great stress of weather upon the high seas, and
was then in the jurisdiction of that court, in
possession of a certain Dennis M. Begon, its
reputed captain or master. That having entered
the said port from necessity and not voluntarily,
having procured the requisite refreshments and
repairs, and having conformed in all things to the
law of nations and the laws of the United States,
was about to depart from the said port of
Philadelphia and to resume her voyage in the
service of his said Imperial and Royal Majesty
when on August 24, 1811, it was seized,
arrested, and detained in pursuant of the
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process of attachment issued upon the prayer of
the libellants. They therefore prayed the usual
process of the court to attach the vessel, and
that it might be restored to them.
ISSUE
Whether or not the Exchange or Balaou, a
French warship, is within the US court
jurisdiction.  prince, then without a doubt, a military force can
RULING
NO, the Supreme Court ruled that the district
court does not have jurisdiction. Since there are
only few, if any, aids from precedents or written
law, the Court has found it necessary to rely on
general principles and train of reasoning
founded on cases in some degree analogous to
this in order to decide this case.
DISCUSSION
The jurisdiction of the nation within its own
territory is necessarily exclusive and absolute. It
is susceptible of no limitation not imposed by
itself. Any restriction upon it deriving validity from
an external source would imply a diminution of
its sovereignty to the extent of the restriction and
an investment of that sovereignty to the same
extent in that power which could impose such
restriction. But the world being composed of
distinct sovereignties, possessing equal rights
and equal independence, whose mutual benefit
is promoted by intercourse with each other and
by an interchange of those good offices which
humanity dictates, and its wants require, all
sovereigns have consented to a relaxation in
practice, in cases under certain peculiar
circumstances, of that absolute and
complete jurisdiction within their respective
territories which sovereignty confers. This full
and absolute territorial jurisdiction, being alike
the attribute of every sovereign and being
incapable of conferring extraterritorial power,
would not seem to contemplate foreign
sovereigns nor their sovereign rights as its
objects. Some instances in which every
sovereign is understood to waive the exercise of
a part of that complete exclusive territorial
jurisdiction are as follows. Firstly, the exemption
of the person of the sovereign from arrest or
detention within a foreign territory. If he enters
that territory with the knowledge and license of
its sovereign, that license, although containing
no stipulation exempting his person from arrest,
is universally understood to imply such
stipulation. A second case, standing on the
9
same principles with the first, is the immunity
which all civilised nations allow to foreign
ministers. A third case in which a sovereign is
understood to cede a portion of his territorial
jurisdiction is where he allows the troops of a
foreign prince to pass through his dominions.
But if, without such express permit, an army
should be led through the territories of a foreign
never gain immunities of any other description
than those which war gives by entering a foreign
territory against the will of its sovereign.
RULE APPLICABLE TO SHIPS OF WAR
But the rule which is applicable to armies does
not appear to be equally applicable to ships of
war entering the parts of a friendly power. A
different rule, therefore, with respect to this
species of military force has been generally
adopted. If the ports of a nation generally or any
particular ports be closed against vessels of war,
or the vessels of any particular nation, notice is
usually given of such determination. If there be
no prohibition, the ports of a friendly nation are
considered as open to the public ships of all
powers with whom it is at peace. In almost every
instance, the treaties between civilized nations
contain a stipulation to this effect in favor of
vessels driven in by stress of weather or other
urgent necessity. In such cases, the sovereign is
bound by compact to authorize foreign vessels
to enter his ports. The treaty binds him to allow
vessels in distress to find refuge and asylum in
his ports, and this is a license which he is not at
liberty to retract. If there be no treaty applicable
to the case, and the sovereign permits his ports
to remain open to the public ships of foreign
friendly powers, the conclusion is that they enter
by his assent. And if they enter by his assent
necessarily implied, no just reason is perceived
by the Court for distinguishing their case from
that of vessels which enter by express assent. 
DISTINCTION BETWEEN PRIVATE
INDIVIDUALS OR MERCHANT VESSELS AND
SHIPS OF WAR
Those treaties which provide for the admission
and safe departure of public vessels entering a
port from stress of weather or other urgent
cause provide in like manner for the private
vessels of the nation, and where public vessels
enter a port under the general license which is
implied merely from the absence of a prohibition,
they are in the same condition with merchant
vessels entering the same port for the purposes
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of trade who cannot thereby claim any
exemption from the jurisdiction of the country. It
may be contended that the same rule and same
principle are applicable to public and private
ships, and since it is admitted that private ships
entering without special license become subject
to the local jurisdiction. It is by no means
conceded that a private vessel availing herself of
an asylum provided by treaty, and not attempting
to trade, would become amenable to the local
jurisdiction unless she committed some act
forfeiting the protection she claims under
compact. On the contrary, motives may be
assigned for stipulating and according
immunities to vessels in cases of distress which
would not be demanded for or allowed to those
which enter voluntarily and for ordinary purposes
like private individuals or merchant vessels.
But in all respects different is the situation of a
public armed ship. She constitutes a part of the
military force of her nation; acts under the
immediate and direct command of the sovereign;
is employed by him in national objects. He has
many and powerful motives for preventing those
objects from being defeated by the interference
of a foreign state. Such interference cannot take
place without affecting his power and his dignity.
The implied license, therefore, under which such
vessel enters a friendly port may reasonably be
construed as containing an exemption from the
jurisdiction of the sovereign within whose
territory she claims the rites of hospitality.
Thus, by principle of public law that national
ships of war entering the port of a friendly
power open for their reception are to be
considered as exempted by the consent of
that power from its jurisdiction.
Underhill v. Hernandez, 168 US 250.
8
168 U.S. 250 (1897)
Facts:
In early part of 1892, a revolution was
initiated in Venezuela against the administration
thereof, which the revolutionists claimed had
ceased to be the legitimate government. General
Hernandez belonged to the anti-administration
party and commanded its forces in the vicinity of
Ciudad Bolivar.
8
Alcaide
10
The troops under Hernandez prevailed,
and the latter entered Bolivar and assumed
command of the city. All the local officials had in
the meantime left, and the vacant positions were
filled by General Hernandez, who was the civil
and military chief of the city and district. The
party in revolt had achieved success generally,
taking possession of the capital of Venezuela,
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. 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, until later when a passport was
given, and Underhill left the country.
The present action was brought to
recover damages for the detention caused by
reason of the refusal to grant the passport, for
alleged confinement of Underhill to his own
house, and for certain alleged assaults and
affronts by the soldiers of Hernandez’ army.
Issue:
Whether or not plaintiff Underhill is
entitled to recover damages.
Ruling:
No. Underhill is not entitled to recover
damages.
The Court affirmed the decision of the
Circuit Courts on the ground that “because 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 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.
Every sovereign state is bound to
respect the independence of every other
sovereign state, and the courts of one country
will not sit in the judgment on the acts of the
government of another done within its own
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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 facts. Where a civil
war prevails, 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.
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 acknowledgement
of belligerency, as other official recognition
of its existence may be sufficient proof
thereof.
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 accepted by the people, in the
possession of the power of the nation, and fully
established.
Lotus Case, PICJ, Ser. A. No. 10, 1927,
Hudson, World Ct. Rep 20 9
French mail steamer Lotus - Demons  A rule of international law, which prohibits a
Turkish collier Bozkourt - Hassan Bey
The collision happened on the high seas  foreign national who commits acts outside of the
9
Angeles, C.
11
Facts: On August 2nd, 1926, just before
midnight, a collision occurred between the
French mail steamer Lotus, proceeding to
Constantinople, and the Turkish collier Boz-
Kourt, between five and six nautical miles to the
north of Cape Sigri (Mitylene). The Boz-Kourt,
which was cut in two, sank, and eight Turkish
nationals who were on board perished. After
having done everything possible to succour the
shipwrecked persons, of whom ten were able to
be saved, the Lotus continued on its course to
Constantinople, where it arrived on August 3rd. 
At the time of the collision, the officer of the
watch on board the Lotus was Monsieur
Demons, a French citizen, lieutenant in the
merchant service and first officer of the ship,
whilst the movements of the Boz-Kourt were
directed by its captain, Hassan Bey, who was
one of those saved from the wreck. 
As early as August 3rd the Turkish police
proceeded to hold an enquiry into the collision
on board the Lotus ; and on the following day,
August 4th, the captain of the Lotus handed in
his master's report at the French Consulate-
General, transmitting a copy to the harbour
master. 
On August 5th, Lieutenant Demons was
requested by the Turkish authorities to go
ashore to give evidence. The examination, the
length of which incidentally resulted in delaying
the departure of the Lotas, led to the placing
under arrest of Lieutenant Demons without
previous notice being given to the French
Consul-General-and Hassan Bey, amongst
others. This arrest, which has been
characterized by the Turkish Agent as arrest
pending trial (arrestation préventive), was
effected in order to ensure that the criminal
prosecution instituted against the two officers, on
a charge of manslaughter, by the Public
Prosecutor of Stamboul, on the complaint of the
families of the victims of the collision, should
follow its normal course. 
ISSUE: Whether or not Turkey violated
international law when Turkish courts exercised
jurisdiction over a crime committed by a French
national outside Turkey 
HELD: No. 
state from exercising criminal jurisdiction over a
state’s national jurisdiction does not exist. Failing
the existence of a permissive rule to the contrary
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is the first and foremost restriction imposed by
international law on a state and it may not
exercise its power in any form in the territory of
another state. Both states here may exercise
concurrent jurisdiction over this matter because
there is no rule of international law in regards to
collision cases to the effect that criminal
proceedings are exclusively within the
jurisdiction of the state whose flag is flown. 
This case is also significant in that the PCIJ said
that a State would have territorial jurisdiction,
even if the crime was committed outside its
territory, so long as a constitutive element of the
crime was committed in that State. 
If, therefore, a guilty act committed on the high
seas produces its effects on a vessel flying
another flag or in foreign territory, the same
principles must be applied as if the territories of
two different States were concerned, and the
conclusion must therefore be drawn that there is
no rule of international law prohibiting the State
to which the ship on which the effects of the
offence have taken place belongs, from
regarding the offence as having been committed
in its territory and prosecuting, accordingly, the
delinquent. 
The offence for which Lieutenant Demons
appears to have been prosecuted was an act –
of negligence or imprudence – having its origin
on board the Lotus, whilst its effects made
themselves felt on board the Boz-Kourt. These
two elements are, legally, entirely inseparable,
so much so that their separation renders the
offence non-existent… It is only natural that
each should be able to exercise jurisdiction and
to do so in respect of the incident as a whole. It
is therefore a case of concurrent jurisdiction. 

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