Principle: In order to get the validity of international customary law it has to satisfy the material test. That is the practice must be uniform and consistently.
Fact of the case: Victor Raul Haya de la Torre was a Peruvian national. In Oct 3rd, 1948 one military rebellion broke out in Peru which is organized and directed by the American People’s Revolutionary Alliance led by Haya de la Torre. The rebellion was unsuccessful. The Peruvian Government issued a warrant for his arrest on criminal charges related to this political uprising. He fled to the Columbian embassy in Lima seeking for asylum from them.
Columbia the requested permission from Peru for Haya de la Torre’s safe passage from the Columbian embassy, through Peru, goes to Columbia. Peru refused to give such permission. Columbia then brought this suit against Peru in the International Court of Justice, based on the agreement made by both named Act of Lima.
Fact in issue: 1. Based on conventions, which in force between both countries, and in general from American international law, whether Columbia competent, as the country granting asylum, to qualify the offence for the purpose of said asylum?
2. Was Peru bound to give the guarantees necessary for the departure of the refugees from the country, with due regard to the inviolability of his person?
Decision of the case:
1. Columbia was not competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru. 2. Columbia was not entitled to claim that the Peru was bound to gives guarantees necessary for the departure of Haya de la Torre, with due regard to the inviolability of his person.
3. Peru counter-claim that Haya de la Torre was an accused of a common crime was rejected; therefore it was not in accordance with Article I, Paragraph I of the Havana convention. 4. Peru Counter-claim that the grant of asylum by the Columbian government to Haya de la Torre Torre was made in violation of Article 2, Paragraph 2 of the Havana Convention was approved by the court.
Reasoning First: They have examined in a spirit of understanding the existing dispute which they agree to refer for decision to the International Court of Justice, in accordance with the agreement by the two Governments. Second: The Plenipotentiaries of Peru and Colombia having been unable to reach an agreement on the terms in which they might refer the dispute jointly to the International Court of Justice, agree that proceedings before the recognized jurisdiction of the Court may be instituted on the application of either of the Parties without this being regarded as an unfriendly act toward the other, or as an act likely to affect the good relations between the two countries.
The Party exercising this right shall, with reasonable advance notice, announce in a friendly way to the other Party the date on which the application is to be made. Third: They agree, here and now: (a) that the procedure in this case shall be the ordinary procedure; (b) that, in accordance with Article 31, paragraph 3, of the Statute of the Court, each of the Parties may exercise its right to choose a judge of its nationality; (c) that the case shall be conducted in French. Fourth: This document, after it has been signed, shall be communicated to the Court by the Parties" On October 15th, 1949, an Application, referring to the Act of Lima of August 31st, 1949, was filed in the Registry of the Court in the name of the Colombian Government. After stating that Colombia asserts:
"(a) That she is entitled in the case of persons who have claimed asylum in her embassies, legations, warships, military camps or military aircraft, to qualify the refugees, either as offenders for common crimes or deserters from the army or navy, or as political offenders; (b) That the territorial State, namely, in this case, Peru, is bound to give 'the guarantees necessary for the departure of the refugee, with due regard to the inviolability of his person, from the country’”
Anglo – Norwegian Fisheries Jurisdiction case England vs. Norway, ICJ 1951
Principle: Material departure from a practice may negative the existence of a customary rule but minor deviation may not necessarily have the negative consequence.
Fact of the case
In this case, the United Kingdom and Norway contested access to fisheries off the Norwegian coast. Norway had attempted to claim ocean areas through some creative cartography: by drawing “straight baselines” from points along its rugged coastline and asserting that the enclosed areas in between the deep fjords were exclusive Norwegian fisheries. The U.K. argued against this by maintaining that baselines should follow the outline of the coast, using the trace parallele or courbe tangent methods of drawing baselines.
Fact in issue: 1. To declare the principles of international law applicable in defining the baselines by reference to which the Norwegian Government was entitled to delimit a fisheries zone, extending seaward to 4 nautical miles from those lines and exclusively reserved for its own nationals; and to define the said baselines in the light of the arguments of the Parties in order to avoid further legal differences; and
2. To award damages to the Government of the United Kingdom in respect of all Interferences by the Norwegian authorities with British fishing vessels outside the Fisheries zone, which, in accordance with the ICJ's decision, the Norwegian Government may be entitled to reserve for its nationals
Decision: 10 miles bay closing rule was not customary even if it was … the 10 mile rule would appear to be inapplicable as against Norway as she has always attempt to apply it to the Norwegian coast.
Reasoning of the case:
It was agreed from the outset by both Parties and by the Court that Norway had the right to claim a 4-mile belt of territorial sea, that the fjords and sunds along the coastline, which have the character of a bay or of legal straits, should be considered Norwegian for historical reasons, and that the territorial sea should be measured from the line of the low-water mark.
The Court found itself obliged to decide whether the relevant low-water mark was that of the mainland or of the skjaergaard, and concluded that it was the outer line of the skjaergaard that must be taken into account in delimiting the belt of Norwegian territorial waters.
The Court then considered the three methods that had been contemplated to effect the application of the low-water mark. The Court rejected the method of the “tracé parallèle”, which "consists of drawing the outer limit of the belt of territorial waters by following the coast in all its sinuosities", as unsuitable for so rugged a coast. Furthermore, that method was abandoned in the written reply and later in the oral argument by the United Kingdom and, consequently, no longer relevant to the case.
The Court also declined to apply the “courbe tangente” (the "arcs of circles" method) inasmuch as it was concededly not obligatory by law. Thus, the instant case required the application of a third delimitation method according to which the belt of the territorial waters must follow the general direction of the coast. Such a method consisted of selecting appropriate points on the low-water mark and drawing straight lines between them. The Court found that the method had already been applied by a number of States without giving rise to any protests by other States.
Nicaragua case; Nicaragua vs. US ICJ 1986
Principle: Customary international law continues to exist alongside the Charter even where the rules have identical content.
Fact of the case: The United States had at first been supporting the new government after the fall of Somoza in 1979. By 1981, the US had suspended aid because the US Claimed that the Nicaragua “democratic coalition government” was supporting Guerrillas in El Salvador. On 9 April 1984 the Ambassador of the Republic of Nicaragua to the Netherlands filed in the Registry of the Court an Application instituting proceedings against the United States of America in respect of a dispute concerning responsibility for military and paramilitary activities in and against Nicaragua.
Fact in issue: 1. Whether America is bound to compensate Nicaragua?
2. Does the ICJ have jurisdiction to try this case?
3. Did the US violate principles of international law concerning use of force?
4. Did the US violate the sovereignty of Nicaragua under general and customary international law?
5. What is the US required to do if they are found guilty of Nicaragua’s claims?
Decision: It was held that since America helped to the revolution against Nicaragua and as it was intentional act, hence America is bound to compensate Nicaragua.
Reasoning: The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of Stat conduct inconsistent with the rule, should generally have been treated as breaches of that rule not as recognition of a new rule.
If a State acts in a way that is prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule
The Fisheries Jurisdiction Case, U.K vs. Iceland ICJ 1974
Principle : If different states agreed with each other and practice the same system as a custom then the system will be treated as a customary international law, the consent or agreeness may be express or implied.
Fact of the case: In this case Iceland declared that no country would be allowed to exercise fishing right within 50 nautical miles of its EEZ and imposed embargo on it. Britain and Germany aggrieved with it and they proceeded before the International Court of Justice to have the dispute settled. They argued that Iceland could not take such decision arbitrarily and the matter should be resolved through a bilateral treaty.
Fact in issue: 1. whether there was any foundation in international law for Iceland’s establishment of a zone of exclusive fisheries jurisdiction to 50 miles from the baselines and, if not whether its claim should be deemed invalid; and 2. whether thee conservation of the fish stokes in the water around Iceland might be susceptible in international law to regulation by Iceland’s unilateral extention of its exclusive fisheries jurisdiction or could be regulated as between Iceland and U.K, by arrangements agreed between them.
In adjudicating the dispute the Court was of the opinion that Iceland had no authority to delimit her fishing zone arbitrarily affecting the fishing right of a particular country. The Court observed that both Britain and Germany had been exercising their fishing right on that zone of the Sea for a long period of time and such arbitrary delimitation of fishing zone by Iceland would affect the economy of these countries negatively.
However, the Court ruled that if any country’s economy greatly became dependent upon the fishing on a particular area of the sea then that country should be given the benefit of Preferential Right to fish on that zone of the Sea following the principle of justice, equity and good conscience. In this case the Court opined that since the economy of Iceland was greatly dependent on fishing on that zone of the sea, which had been delimited as her exclusive fishing zone. So following the principle of justice, equity and good conscience the Court upheld the delimitation of the fishing zone of Iceland.
This principle has been adopted both in the UNCLOS, 1982 that the principle of Justice, Equity and Good Conscience should be followed in delimiting the EEZ and Continental Shelf as section 74 and 83 of the said Convention.
Reasoning: 1. The court considered that Iceland failure to appear did not constitute by itself an obstacle to the indication of interim measures. It further stated that the request for interim measures which sought to protect the right to fishing in the area in question , was directly linked to the original application by the U.K 2. The court also considered that Iceland has a right to terminate the agreement made with U.K. The court found that the compromissory clause made the Exchange of Notes a non- permanent agreement. 3. The court considered the equitable principle that it would burden for Iceland since their economy is largely depend on fishing.
Lotus case France vs. Turkey, PCJI, 1927
Principle: Opinio juris sive necessitates that is only practice of certain customary rule is not adequate; it must prove that it has necessities. Only than it would be a customary international law.
Fact of the case: On 2 August 1926, just before midnight, a French mail steamer S S Lotus, on the way to Constantinople, collided with the Turkish cutter Boz-Kourt sank with the loss of eight sailors, all Turkish nationals. The Lotus subsequently arrived in Constantinople at which point the Turkish authorities arrested Lieutenant Demons, the French officer in charge of the Lotus at the time of collision, and Hassan Bey, the captain of Buz-Kourt. Both were charged with manslaughter.
Lieutenant argued that the Turkish courts had no jurisdiction to try him. This argument was rejected and he was sentenced to eight days imprisonment and a fine of twenty-two pounds. Hassan Bey received a slightly heavier punishment. The French Government objected to the actions of the Turkish court i the sense that breaches of navigation regulations fall exclusively within the jurisdiction of the State under whose flag the vessel sails. Then the French and Turks agreed to submit the dispute to the permanent Court of International Justice.
Fact in issue: 1. Has Turkey, contrary to article 15 of the Convention of Lausanne of July 24, 1923, respecting conditions of residence and business and jurisdiction, acted in conflict with the principles of international law- and if so what principles –by instituting .......criminal proceedings in pursuance of Turkish law against M. Demons, officer of the watch on board the Lotus at the time of the collision, in consequence of the loss of the Boz-Kourt having involved the death of eight Turkish sailors and passengers? 2. Should the reply be in affirmative, what pecuniary reparation is due to Demons, provided according to the principles of international law, reparation should be made in similar cases?
Decision: The court by majority decides that there is no principle of international law, within the meaning of Article 15 of the Convention Lausanne o f July 24, 1923, which precludes the institution of the criminal proceeding under consideration. Consequently, Turkey, by instituting in virtue of the discretion which international law leaves to every sovereign State, the criminal proceeding in question, has not in the absence of such principles, acted in a manner contrary to the principles of international law within the meaning of the special agreement.
Five judges issued dissenting opinions arguing the rules of navigation that were violated were the responsibility of the flag State to enforce. Judge Moore issued a narrower dissent concerning the connection of the criminal proceedings and Article 6 of the Turkish Penal Code. With the court evenly split, the President of the Court cast the deciding vote.
1. The PCIJ found that Turkey did have the right to try the French sailors.
2. The PCIJ basically found that since the two ships were involved in the same accident, that both countries had concurrent jurisdiction over the accident
3. .The PCIJ found that customary international law gave France jurisdiction, but it didn't give them exclusive jurisdiction.
The Charming Betsy Case (US Supreme Court, 1804)
Principle: International law will be prevail, if there any conflict arise between municipal law and international law.
Fact of the case: One American citizen used to live in an island under the sovereignty of Denmark and he had a ship under his ownership. His ship was appropriated under the Non-Intercourse Act of 1800. This Act imposed ban on trade and commerce against France. It was alleged that he had violated this Act. Another reason behind such appropriation was that he had been out of America for a long time.
Fact in Issue: The following were the fact to decided in the case by the trial court---
a. Whether staying for a long time outside America empowered the American authority to appropriate the property of an American citizen. b. Whether that citizen had violated any of the provisions of the Non-Intercourse Act of 1800.
Decision: Marshall the then Chief Justice of the US Supreme Court discussed different customs in force in International law and opined that these customs were equally applicable to the United States of America. He observed that the US Congress had no jurisdiction to ignore the binding force of these customs. To him the international custom enjoy same status as the national laws of the US enjoy in and outside the US. So the US Congress could not stand against that.
Chief Justice Marshall wrote, “an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains.”
The court sought to the procedure of legal evidence sincrunete with the law of the US and the international law of regulation. The court found that there was a similarity exists to go to the step for discharging the dispute.
As this Act is applicable for the foreigners who are in abroad as such international laws was not contrary with the law of the USA.
The Alabama Claims Award (USA vs. UK, Moore 1 Int. Arb., 1872)
Principle: National law can never be an excuse to deviate from the responsibility of international law.
Fact of the case: Notably the US witnessed the notorious civil war from 1861-1865. The UK then declared her neutrality. However during the time of war many ships of the Confederate Navy were built in the UK. The US Ambassador to the UK objected tot the authority of the UK in the sense that those ships would be used against the US.
He urged the UK to take appropriate measures in that regard. But the UK authority did not took any step in this regard in the sense that the British national law did not empower them to take any measure to interfere in any private contract. Finally those ships were used against the US and caused a huge damage to the life and property to the US. A ship named Alabama, built in Liverpool was very much dangerous among these ships.
At the end of the war the US alleged that the UK was directly responsible behind these sort of loss to the life and property of the US and consequently claimed compensation for that from the US. On the other hand the UK denied all the allegations in toto in the sense she had no responsibility in the eye of International Law. Finally the dispute rolled to the door of the Arbitration Council.
Facts in Issue: The following were the facts in issue in the dispute—
1. Whether the UK had failed to prove her position as a neutral state under the Washington Treaty; 2. Whether the UK was responsible to pay compensation and if she was responsible what would be the amount of that compensation?
Decision: All the Arbitrators came in concurrence to the fact that the UK had failed as a neutral State in that case. They concluded that the UK would pay compensation to the US with an amount of 15 million US Dollar.
In May 1871 the parties signed the Treaty of Washington, which established certain wartime obligations of neutrals. However as those ships was used against so Britain had failed to secure its neutrality.
Hence the tribunal held Britain liable for losses and awarded the U.S. damages.
Professor Nurul Islam vs. The Government of Bangladesh & Others (52 DLR 413)
Principle: whenever there is a specific principle of international law it would not create any opportunity to take the advantage of silentness of domestic law.
Fact of the case: The British American Tobacco Company Ltd is a well-known cigarette manufacturing company. In 1999 it invited ‘Voice of Discovery’ to Bangladesh for the advertisement of its brand “Gold Leaf”. National Professor and President of ADHUNIK (let us prohibit smoking) Nurul Islam instituted a writ petition to the High Court Division of Bangladesh Supreme Court contending that the young generation of the country might be inspired to it and might attracted to smoking deliberately.
In the same writ he also urged the Court to prohibit all kinds of propaganda on the tobacco-manufactured goods in Bangladesh pointing out the negative impact of smoking upon health as declared by the World Health Organization.
Fact in issue: whether ‘Voice of Discovery’ is entitle to perform their work since there exists no prohibitory provision of domestic law?
Decision: In this case the court took into account the principles of state policy set forth in the Constitution of Bangladesh in its Article 25(1). It runs as follows---
“The State shall base its international relations on the principle of respect for national sovereignty and equality, non-interference in the internal affairs of other countries, peaceful settlement of international disputes and respect for international law and the principles enunciated in the United Nations Charter....”
And as such the allowance of ‘Voice of Discovery’ would be a violation of responsibility under international law.
The Court in its observed that Bangladesh being a member of the UN and world community could define the international responsibility arising in or outside the territory of Bangladesh. Bangladesh, as the court observed, is bound to follow all the rules of international law and principles followed by the UN.
From the decision of these cases it is evident that a state has no option open to ignore the binding force of International Law picking up the excuse of the limitation of national law.
Chorzow Factory Case Germany vs. Poland PCIJ, 1928
Principle: The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”
“it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation.”
Fact of the case:
In 1919, by a series of legal instruments, the Oberschlesische Stickstoffwerke AG was established, to which the Reich conveyed the nitrate factory at Chorzów. In 1920, the Oberschlesische Stickstoffwerke AG was entered in the land register as owner of the factory, which retained its links to the Bayrische Stickstoffwerke AG. On 14 July 1920, Poland enacted a Liquidation Law which transferred to the Polish Treasury all assets of the German Reich located in the territory ceded to Poland. This law declared null and void any transactions affecting such property which were made after 11 November 1918, the date of the armistice.
Accordingly, the competent, in the meanwhile Polish, court entered the Polish State as owner of the Chorzów factory in the land register. On 15 November 1922, the claim of the Oberschlesische Stickstoffwerke AG was brought before the German-Polish Mixed Arbitral Tribunal. The German Reich claimed that the liquidation of the factory at Chorzów was contrary to the Convention concerning Upper Silesia between Germany and Poland signed in Geneva on 15 May 1922.
This Convention regulated in particular the principles for the maintenance of economic continuity, the protection of minorities as well as the jurisdiction and the procedure of the Mixed Commission and the Arbitral Tribunal for Upper Silesia. In 1925, Germany filed an application with the Permanent Court of International Justice pursuant to Article 25 of this Convention.
Fact in issue: 1. Whether Poland has any international obligation under the treaty? 2. Whether Poland has to compensate for any breach of agreement?
Decision: The injured State is entitled to obtain from the State which has committed internationally wrongful act full reparation in the form of restitution in kind, compensation, satisfaction and assurances and guarantees of non-repetition, either singly or in combination.
The PCIJ, after dismissing the preliminary objection filed by Poland and affirming its jurisdiction, held that Germany was entitled to claim compensation for the internationally wrongful act committed by Poland.
Reasoning: The Court observes that it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation. In Judgment No. 8, when deciding on the jurisdiction derived by it from Article 23 of the Geneva Convention, the Court has already said that reparation is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself.
Barcelona Traction Light and Power Co. Ltd.; (Belgium vs. Spain, ICJ, 1970)
Principle: It is the settle principle of law adopted by states as a general principle of law, that a company is completely separate from its shareholders.
Fact of the case: The Company Barcelona Traction Light and Power was established in Canada, which would operate the management and control of electricity in Canada. But majority of the Shareholders were citizens of Belgium. The court of Spain declared the Company insolvent in 1948 and the properties of the Company were attached. So Belgium proceeded before court against Spain. Spain then questioned the locus standi of Belgium because it is the shareholders and not Belgium who have suffered damage for the declaration of insolvency of the Company.
Facts in issue: 1. Whether company has any separate entity from its shareholders.
2. Whether Belgium has locus standi to sue.
Decision: The Court rejected the plea of Belgium and ruled that it has got no locus standi to proceed before the court against Spain. In explaining the ground of the decision the Court explained that company is totally a separate and distinct entity other than its shareholders. Actually Canada is the real sufferer in this case, not Belgium. So it is Canada who is entitled to proceed before the Court for compensation.
The Court is of the opinion that it is the settled principle adopted by the States as a general principle of law that a company is completely separate from the shareholders of it.
Thus by recognizing the general principles of law recognized by the civilized States, dynamism of international law and the creative function of the International Court of Justice has been ensured. Indeed it enables to fill the gaps or weaknesses which be left by the operation of custom and treaty.
International law had to refer to those rules generally accepted by municipal legal systems. An injury to the shareholder's interests resulting from an injury to the rights of the company was insufficient to found a claim. Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly conferred such a right on the shareholder's national State.
Reparation Case ICJ, 1949
Principle: International organization has a legal entity thus United Nation is the subject of international law.
Fact of the case: In 17th September 1948 a Swedish citizen namely Count Bernadotte has been killed by some terrorist in Israel. He was acting as an agent of United Nation and he was killed when was under official capacity. After this incident United Nation seek the advisory opinion of international court of justice, whether they are entitle to bring a suit in the ICJ.
Fact in issue: In the event of an agent of the United Nation in his performance of his duties suffering. injury in circumstances involving the responsibility of a State, has the united Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him?
Decision: In court was of opinion that the United Nation as an organization is bringing a claim for reparation of damage caused to its agent, it can only do so by basing its claim upon a breach of obligation due to itself; respect for this rule will usually prevent a conflict between the action of the United Nation and such Rights as the agents national state may possess; and as such the defaulting state is liable to compensate.
Reasoning: The Court states that the Charter conferred upon the Organization rights and obligations which are different from those of its Members. The Court stresses, further, the important political tasks of the Organization: the maintenance of international peace and security. Accordingly the Court concludes that the Organization possessing as does rights and obligations has at the same time a large measure of international personality and the capacity to oprate upon international plane, although it is certainly not a super-state.
The North Sea Continental Shelf Case; (Germany vs. Netherlands) (Germany vs. Denmark, ICJ, 1969)
Principle: In case of multinational treaties generally states which are not signed are not bound, except their behaviors shows it that they has implied consent to it, only than they would be bound by that treaty.
Fact of the case: Germany entered into a treaty separately with Netherlands and Denmark in 1964 and 1965 respectively. Subject matter of the treaties was delimitation of the continental shelf following the principle of equidistance. However complexity arose regarding the delimitation of the continental shelf in the North Sea and the States who are parties to the separate treaties proceeded before the International Court of Justice for the peaceful Settlement of the complexity. The parties to the disputes were Germany and Netherlands, and Germany vs. Denmark. Since the subject matters of both the disputes were same, the Court decided to proceed with both the disputes in a single proceeding.
Facts in issue: 1. Whether the principle of equidistance adopted in the Geneva Convention of 1958 is applicable to Germany; 2. Which principle will be applicable?
Decision: The Court in this regard ruled that the principle of equidistance as argued by Netherlands and French will not be applicable to Germany. It is because Germany is not a party to the Geneva Convention, 1958. So Germany is not bound to follow this principle. On the other hand the Court ruled that the ‘equitable principle’ in place of the ‘principle of equidistance’ would be applicable to Germany in delimiting the continental shelf between the disputing States.
Reasoning: The Court considered that the particular form in which article 6 is embodied in the Convention, and having regard to the relationship of that article to other provisions of the Convention, the equidistance principle was not of a fundamentally norm-creating character In the first place, article 6 is so framed as to put second the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. Also, the part played by the notion of special circumstances relative to the principle of equidistance as embodied in article 6 and the controversies as to the meaning and scope of this notion, raises further doubts as to the potentially norm-creating character of the rule.
Continental Shelf Case Libya vs. Malta 1985
Principle: Principle of Equidistance.
Fact of the case: Both Libya and Malta are the parties to the International Convention on the Law of the Sea, 1982. However, conflict arose due to the natural prolongation of the land territory of the each of ht countries. In this case the Court was asked to decide the question as what principles and rules of International Law are applicable in the delimitation of the areas of the Continental shelf which appertains to Malta and the area which appertains to Libya and how in practice such principles and rules can be applied by the two parties in this particular case in order that they may without difficulty delimit such areas by an agreement.
On behalf of Libya it was contended inter alia that the natural prolongation of the respective land territories in to and under the sea is the basis of title to the areas of continental shelf, which appertain to each of them. The delimitation should be accomplished in such a way as to leave as much as possible to each party all areas of continental shelf that constitute the natural prolongation of its land territory without encroachment on the natural prolongation of the other. Further the delimitation in this case should reflect the element of a reasonable degree of proportionality which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the respective
State and the length of the relevant parts of their coasts, account being taken of any other delimitation between States in the same region. Last but not the least, application of the equidistance method is not obligatory, and its application in the particular circumstances of this case would not lead to an equitable result.
On the other hand Malta contended that the principles and rules of International law are applicable in the area that the delimitation shall be effected on the basis of International Law in order to achieve an equitable solution and in practice the above principles and rules are applied by means of a median line every point of which is equidistant from the nearest points on the baselines of Malta and the low water mark of the coasts of Libya
Fact in issue: Whether article 6(2) of the convention of 1958 or the customary principle International law shall be applied in settling the dispute between Libya and Malta, as both of the countries are signatories tot eh UNCLOS, 1982.
Decision:The Court solved the dispute by applying the principle of Equidistance Principle following the principles of customary International Law.
Tinico Arbitration case U.K vs. Costa Rica PCIJ 1923
Principle: The main issue is whether the government has any effective control upon the population of the state rather then whether it is in power democratically or constitutionally.
Fact of the case: Case involved claims by Great Britain against Costa Rica for acts of a predecessor regime, the Tinoco regime, which had come to power by a coup and maintained control for two years. Tinoco regime was recognized by some governments but not many leading powers (including GB and US). When the Tinoco regime fell, the restored government nullified all the Tinoco contracts, including an oil concession to a British company.
GB argued the Tinoco regime was the only government when the liabilities were created and its acts could not be repudiated. Costa Rico argued Tinoco regime was not a government and that GB was estopped by its non-recognition of Tinoco from claiming that Tinoco could confer rights on British subjects..
Fact in issue: whether the U.K had recognized the new regime was by and irrelevant in deciding the defacto existence of the Tinoco government or not?
Whether the government was recognized defacto was a matter to be decided objectively against international standard. And issued to be resolved by examining the subject view of a majority of state or not?
Decision: For Great Britain. GB’s refusal to grant diplomatic recognition to the Tinoco government did not remove the de facto nature of Tinoco as a government. And hence Costa Rica government would be liable to perform all international obligation created by Tinoco government.
Reasoning: To hold that a government which establishes itself and maintains a peaceful administration, with the acquiescence of the people for a substantial period of time, does not become a de facto government unless it conforms to a previous constitution would be to hold that within the rules of international law a revolution contrary to the fundamental law of the existing government cannot establish a new government. This cannot be, and is not, true.
It didn’t matter that the government wasn’t recognized. You couldn’t deny that it had been in control.
This had been a deal between a British company, not the government, and Costa Rica. Britain stepped in to protect the company (rare, and it’s usually a bad idea for a corporation to contract with a government anyway).
Ordinarily, changes in government don’t change the state’s obligations. The President signs for his state, not for himself. The Shah’s agreements are still binding on Iran, and they have to go through the procedures to remove them if they don’t like them.
Salimoff & Co. v. Standard Oil of N.Y., New York Court of Appeals 1933
Principle: It is irrelevant to recognition of government since defacto government has effective control and because of this its laws are valid and has binding force.
Fact of the case: The property in question, oil land, was in the USSR. The de facto power in control of the Russian territory was the Soviet government. The land had been confiscated from Salimoff & Co., who claimed that the Soviet government was a band of robbers. The Soviet government was not yet officially recognized by the United States, so what was the validity of its acts? The case was taken to court in New York State.
Fact in issue: 1. Whether Salimoff is entitle to get back his goods or not? 2. Whether in this case defacto recognition is necessary or not?
Decision: The claim of Salimoff was rejected hence he is not entitled to get back the oil. The standerd Oil Co. can buy oil from USSR though U.S.A did not give any recognition to USSR because in this particular case the defacto recognition is not necessary from the U.S.A.
Reasoning: The USSR met all four requirements of statehood, and the Soviet government de facto existed. Recognition does not create the state. So the New York court held that the Soviet government’s actions did pass title of the oil lands, and it was legally binding in United States courts.
Luther vs. Sagor King’s Bench Division, Court of Appeal, 1921
Principle: whenever the recognition has made has no importance, it shall be on effect from the establishment of the sate. In other word the effect shall be Retrospective in nature.
Fact of the case: Luther is a British citizen he had a timber factory in USSR. After the rush revolution in 1917 the government of USSR by a declaration nationalize his factory. However in 1920 USSR government trade organization had made a contract with a British timber businessman Sagor. According to the contract the timber was delivered to England. In that situation Luther claim that the USSR government unlawfully nationalizes his factory and hence he is the owner of those timbers and he is entitled to get back the timber. He also argued that the British government not yet recognizes the USSR government.
Fact in issue: Whether the High Court was bound to take into consideration the activities of the Soviet government?
Decision: It was held that the act of the soviet government was recognized by the U.K. because U.K gave a defacto recognition to Russia in 1921. so after giving the defacto recognition the U.K has no right to give a decision against the act of Russia since recognition has a retrospective effect.
Reasoning: 1. The U.K government gave a defacto recognition to Soviet government. 2. It would not be any factor whenever the recognition is given. 3. There is no distinction between defacto and dejure recognition in practice.
Haile Selassie vs. Cable and Wireless Co. Ltd; Abyssinia vs. U.K, 1939
Principle: Only recognized government can claim on behalf of the state and recognition has retrospective effect.
Fact of the case: In December 1936, the King of Italy was recognized by the British Government as the de facto Sovereign of Ethiopia, while the Emperor Haile Selassie continued to be recognized as de jure Sovereign. In November 1938, the British Government recognized the King of Italy as de jure Emperor of Ethiopia and withdrew its recognition from the Emperor Haile Selassie.
Fact in issue: 1. Which government would get the priority between two recognized governments? 2. What would be the consequences of two recognitions at the same time?
Decision: The decision of the Court of First Instance had been given before the de jure recognition of the Italian conquest, while the Court of Appeal decided after that event. The Court of Appeal reversed the decision of the Chancery Division given in favour of the plaintiff and dismissed Emperor Haile Selassie's action. After the dejure recognition of the Italian conquest it was held that inthe Courts of England the King of Italy as Emperor of Abyssinia is entitled by succession to the public property of the State of Abyssinia, and the late Emperor of Abyssinia's title thereto was no longer recognized as existent. It was further held that that right of succession is to be dated back at any rate to the date when de facto recognition of the King of Italy as Sovereign ofEthiopia had taken place.
Reasoning: The Emperor of Abyssinia’s title thereto is no longer recognized as existent. The principle operates retrospectively from the date when the authority of the government was first accepted was applied in the above case.
Arantzazu Mendi Case; House of Lords, 1939
Principle: since de jure government has no effective control and where the de facto government has effective control over the state that’s why the activities of the second one would have the binding force and get the priority.
Fact of the case: In 1937, during the Spanish civil war, the Arantzazu Mendi a Spanish ship registered in Bilbao was requisition on the high seas ba a decree of Republican government of Spain. On her arrival on London her owner issued a right in rem for possession and she was arrested by admiralty Marshal. The Republican government then issued a writ claiming possession of the ship. The Nationalist government sought to det aside the writ and arrest warrant on the ground that the action impeded a foreign sovereign state namely the nationalist government of Spain.
Fact in issue: Whether the Republican government is entitle to take the possession of the ship?
Decision: The House of Lords has given the Judgement in favour of the Nationalist government and declare that the Republican government would not entitle to take the possession of the ship.
Reasoning: It is the only procedure by which the court can inform itself of the material fact. The sovereign has to decide to whom she will recognize as a fellow sovereign in family of states. But it does not appear to be material whether the territory over which it exercises the sovereign powers in from time to time increased or diminished.
Russian ship case; USSR vs. U.S.A, US Federal Court 1948
Principle: Equal over equal doesn’t have any authority.
Fact of the case: It was a Russian ship. In the voyage towards New York there were two American women. Where the ship crossed Atlantic in order to reach New York the bad weather made the ship trouncing and two American women fell down and hurt. After reaching New York they filed a compensatory suit and requested to hold the ship until the adjudication of the suit.
Fact in issue: whether arresting the ship would tantamount to violation of international law?
Decision: The court was held that Russia ship to be free.
Reasoning: It was held that the ship is the property of Soviet state and it is under its sovereign authority hence America has no authority to arrest the ship.
Island of Palmas Case Netherland vs. U.S, 1928
Principle: Possession must be specific, continues and without any interruption also it must be recognized by all states. And the possession must has to be effective.
Fact of the case: Palmas, also referred to as Miangas, is an island of little economic value or strategic location. It is two miles in length, three-quarters of a mile in width, and had a population of about 750 when the decision of the arbitrator was handed down. The island is located between Mindanao, Philippines and the northern most island, known as Nanusa, of what was the former Netherlands East Indies. In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas sat within the boundaries of that cession to the U.S. In 1906, the United States discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. On January 23, 1925, the two governments signed an agreement to that effect. Ratifications were exchanged in Washington on April 1, 1925. The agreement was registered in League of Nations Treaty Series on May 19, 1925. The arbitrator in the case was Max Huber, a Swiss national. Fact in issue:
1. Whether Netherland had any legal rights or not? 2. Whether the island was terra nullies or not?
Decision: It was held that the concern island was in the possession of Spain. But it was failed to established its title over the island and hence the island belonged to Netherland as they entertained over the territorial effectively.
Reasoning: The Spanish, and by succession, American, claim is based on being the first to discover the island. This is based on reports that an island was seen (which based on geographical data, is probably the one in the class), although there is no mention of landing on or contacting the natives. Until recently, there were no allegations of taking possession or administration of the island by Spain. The view most favorable to Americans would be that the mere fact of seeing land without any subsequent act grants sovereignty and not merely an incomplete/partial title that needs to be completed within a reasonable time. However, it is incompatible with the current positivist view of international law that are neither under effective sovereignty of a State nor have a master, but are still reserved for the exclusive influence of a State. Thus discovery alone cannot suffice to prove sovereignty. Another view is that discovery doesn’t create an absolute title, but an incomplete/partial title that must be completed through subsequent action within a reasonable time. Even if the title was incomplete/partial in 1898, and must be considered ceded by the Treaty of Paris, such title would not overcome continuous and peaceful display of authority by another state.
Eastern Greenland Case Denmark vs. Norway, PCIJ, 1933
Principle: For effective possession it must has to satisfy two element, namely 1. There must be a clear intention of exercising the sovereignty over the land. 2. There must be some sort of express impration of that intention.
Fact of the case: In the 1920s, Norway occupied and claimed as its own parts of Eastern Greenland, a territory previously claimed by Denmark. A Danish diplomatic representative asked Norway’s Minister of Foreign Affairs about the country’s intentions toward Eastern Greenland. The Minister replied that Norway did not intend to contest Danish sovereignty over the whole of Greenland. Denmark later sued Norway before the Permanent Court of International Justice on the ground that Norway violated Danish sovereignty in Eastern Greenland.
Fact in issue: 1. Which state is practically in possession? 2. Which state has valid title?
Decision: Held that Greenland has displayed through legislation enacted, treaties and conventions, during the period of 1814 to 1915 her authority over the uncolonized territory. Held that Denmark has demonstrated occupation on July 10 1931 activity of Denmark in area.
Reasoning: 1. Until 1931 no state claim was any adverse title over the land. 2. Denmark had taken a lot of Judicial and Executive activities during that period which were effective all over the Greenland. 3. Denmark demand its claim whenever the Norwegian flag was fly.
Clipperton Island Arbitration France vs. Mexico 1933
Principle: Possession must be effective, mere claiming of taking possession over certain territory would not be adequate to acquire a territory.
Fact of the case: In1858 a French officer claimed Clipperton Island which was uninhabited as French territory. The officer notified his action to the French consolur which published the declaration of French sovereignty in a local jurnal. However 1897, a Mexican boat arrived there and raised the Mexican flag. Mexico argued that Clipperton Island was the same known by Spain as Passion Island, Medano or Medanos Island, that the Spanish Navy had been discovered before the French Navy discovered it in 1711.
Fact in issue: 1. Whether there are any authoritative powers over the territory? 2. Whether Mexico had any title over the island?
Decision: The tribunal found that Mexico had failed to prove that “Spain not only had the right, as a state, to incorporate the island 13 in her possessions, but also had effectively exercised the right” and failed to show any manifestation of sovereignty over the island.
Reasoning: French in a proper way express its intention to exercise the sovereignty, by raising flag on the land and also by notifying in the official journal and also by the official decoration.
The Temple of Preah Vihear Case Combodia vs. Thailand ICJ, 1967
Principle: In order to establishing any titleship over any land it must be prove that it has been in possession from a long time without any intervention.
Fact of the case: In 1904 the boundary between Thailand and Combodia was determined by a treaty between French and Thailand under which a map was created, which placed the temple in the area of Combodia. However Thailand was accepted the map without raising any objection. The dispute was arise when UNESCO declared the temple as a historical site.
Fact in issue: 1. Whether the Thailand government has any absolute right over the Temple? 2. Whether Thailand government reached any agreement regarding the boundary of the territory? 3. Whether Thailand has any right to claim it?
Decision: In its Judgment on the merits the Court, by nine votes to three, found that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia and, in consequence, that Thailand was under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory. Reasoning: The court concluded that Thailand had accepted the Annex I map. Even if there were any doubt in this connection, Thailand was not precluded from asserting that she had not accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her. Furthermore, the acceptance of the Annex I map caused it to enter the treaty settlement; the Parties had at that time adopted an interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty and, as there was no reason to think that the Parties had attached any special importance to the line of the watershed as such, as compared with the overriding importance of a final regulation of their own frontiers, the Court considered that the interpretation to be given now would be the same. The Court therefore felt bound to pronounce in favour of the frontier indicated on the Annex I map in the disputed area and it became unnecessary to consider whether the line as mapped did in fact correspond to the true watershed line. For these reasons, the Court upheld the submissions of Cambodia concerning sovereignty over Preah Vihear.
Rainbow warrior case 1985 New Zealand vs. France
Principle: There is a doctrine of non-intervention in international law and that states will be punished for contravening it.
Fact of the case: In July 1985 a team of French agents sabotaged and sank the Rainbow Warrior, a vessel belonging to Greenpeace International, while it lay in harbour in New Zealand. One member of the crew was killed. Two of the agents, Major Mafart and Captain Prieur, were subsequently arrested in New Zealand and, having pleaded guilty to charges of manslaughter and criminal damage, were sentenced by a New Zealand court to ten years' imprisonment.1 A dispute arose between France, which demanded the release of the two agents, and New Zealand, which claimed compensation for the incident. New Zealand also complained that France was threatening to disrupt New Zealand trade with the European Communities unless the two agents were released.
Fact in issue: Whether French would be liable to compensate New Zealand?
Decision: It was held that French would be liable to compensate New Zealand..
Reasoning: Where a state sends its agents abroad to commit acts which are illegal under international or municipal law of the target country, it is customary for the state to take responsibility for the act and issue compensation. However its agents are usually granted immunity from local courts. In this case however, New Zealand managed to call out the French state under international law and try its agents under its own municipal law.
The cutting Case USA vs. Mexico 1887
Principle: Passive nationality principle. Any state can apply its jurisdiction beyond its territory whenever the act of foreign national became against the interest of nationals.
Fact of the case: Augustus K. Cutting, a U.S. national resident in Mexico, having been proceeded against for the publication of defamatory statements appearing in a Mexican newspaper of which he was editor, consented to a ‘judgment of conciliation’ requiring the publication of a retraction. But, instead of complying, he repeated the defamatory statements in a Texas newspaper. Having returned to Mexico, he was thereupon sentenced by a Mexican court to imprisonment and the payment of a civil indemnity on the ground of the original libel and also under art. 186 of the Penal Code, which provided for the punishment of offences committed abroad. The legitimacy of this basis of jurisdiction was strongly contested by the United States in diplomatic exchanges following the incident.
Fact in issue: 1. Whether Mr. Cutting is liable? 2. Whether Mexico entitled to apply its jurisdiction?
Note: Mr. Cutting was released by order of a superior court, the complainant having withdrawn from the proceedings.
USA vs. Yunis 1988
Principle: Whenever any national of any state suffered injury by a foreign national it would be not an issue where the occurrence was made. The first mentioned state can apply passive nationality principle.
Fact of the case: Yunis a labanese resident and citizen was charged for his involvement for hijacking a civilian air craft in middle east. There were two women in that air craft. After a long time whenever Yunis reached USA, he was arrested tried for the alleged offence. However Yunis argued that USA has no jurisdiction to try the case since the air craft was belongs to Jordan.
Fact in issue: Whether USA has any jurisdiction to try the case against Yunis?
Decision: It was held that the USA has jurisdiction to try the case and hence Yunis is liable for that offence.
Reasoning: The court was of opinion that there were two American citizens in that air craft and they were very much shocked by that incident. And hence the USA can apply its passive nationality principle.
Govt. of India vs. U.C.C. (Bhopal) Corp, 1987
Principle: Passive nationality principle.
Fact of the case: In December 1984, a gas leak of approximately forty metric tons of methyl isocyanate (MIC) from a pesticide plant in Bhopal, India, resulted in as many as 3,000 deaths and injuries to thousands. U.C.C, an American company, which had a branch in India. Mainly they were liable for the disaster. After that huge disaster The Government of India passed the Bhopal Gas Leak Disaster Act, which gave the government rights to represent all victims in or outside India. Under that Act India claim compensation to the South District Court in USA. The main purpose of which was to get a proper amount of compensation.
Fact in issue:
1. Whether U.C.C is liable to pay the compensation? 2. Whether India is entitled to file the suit in USA Court?
Decision: The Supreme Court of India held that the U.C.C is liable to compensation only 470 million dollar. Reasoning: The South District Court of USA held that USA was not the proper place to file the suit, since the incident was held in India and a sufficient number of evidence can only available in India to settle the dispute.
Joyce vs. Director of Public Prosecutor, 1946
Principle: The state has jurisdiction to try a case of an alien who committed any crime beyond the territory of that state, which is a crime under the law of that state and which is against the protection of the state or dang