PUBLIC INTERNATION LAW

[PUBLIC INTERNATION LAW]JUDGE SAWALI

#1.

WESTERN SAHARA CASEOctober 16, 1975FACTS: In accordance with a resolution that was made by the General Assembly, the International Court of Justice was requested upon for an advisory opinion on certain questions regarding the legal ties of Western Sahara to which the countries of Spain, Mauritania, and Algeria asserted sovereign rights.ISSUE: (1) Was Western Sahara, at the time of the colonization of Spain, a territory belonging to no one?(2) If the first issue is answered in the negative, what were the legal ties between Western Sahara and the Kingdom of Morocco and the Mauritanian entity?HELD: (1)It must be answered in the context of the colonization of Spain. In the view of the ICJ, the determination of Western Sahara as a terra nullius during the time of Spains colonization would be possible only if it were established that the territory belonged to no one during such period which would then open the territory to acquisition through the process of occupation.Despite the different opinions presented by Jurists, the State practice relevant to the period indicates that territories inhabited by tribes or people having a special and political organization would not be regarded as terra nullius. The acquisition of such territories were not effected through occupation but through agreements with local rulers. Such agreements are to be considered only as derivative roots of title and not original titles that were obtained by occupation of terra nullius.(2) Western Sahara possesses a special geographical characteristic which largely determined the way of life for the people that inhabit it. Therefore, the legal regime in Western Sahara can only be determined with consideration of such special characteristics.During the colonization of Spain in Western Sahara, it had a sparse population which was composed primarily of nomadic tribes.The ICJ found out that it was the nomadic tribes enjoyed the rights over the territorys properties and they also found that inter-tribal conflict.During Spains colonization, the Mauritanian entity did not exist as a state and the present State cannot have a retroactive effect. There only ties to the racial, linguistic, religious, cultural, and economic features between the region and the Mauritanian entity. Such legal ties, therefore, cannot be sustained.However, it does not mean that no legal ties existed at all. The nomadism in the area gave rise to certain legal ties between Western Sahara and the Mauritanian entity.

#2. Clipperton Island Case (France v. Mexico)January 28, 1931Doctrine:Animus occupandi, the actual, and not the nominal, taking of possession are a necessary condition of occupation. Facts:In this dispute between France and Mexico regarding their rival claims to sovereignty over the Island of Clipperton, Mexico contended that the Island had been discovered by Spanish sailors in the 16th century and that, by the law then in force, it had been given to Spain from whom it had passed to Mexico, as Spain's successor, in 1836. 20. 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 Clipperon, an English pirate who fought the Spanish during the 18thcentury 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 Dcouverte. They drew up the first map and annexed it to France. The first scientific expedition took place in 1725 under Frenchman M. Bocage, who lived on the island for several months.Other claimants included the UnitedStates, whose American Guano MiningCompany claimed it under Guano Islands Act of 1856. 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 to occupy and annex the island.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 in1917.On January 28, 1931, King Victor Emmanuel of Italy declared Clipperton to be a French possession.Issue:Who has sovereignty over the Clipperton Island?Held:France,The Arbitrator held that, even assuming the discovery to have been made by Spain, it would be necessary for Mexico to show that Spain had effectively exercised the right of incorporating the Island in her possessions, but that Spain had not done so. Since Mexico had similarly failed to exercise any right of sovereignty before the arrival of French sailors on the Island, it was therefore a terra nullius at the latter date and the French claim to sovereignty, based on effective occupation, was to be preferred.Mexico was not able to prove historic right over the Island. When France proclaimed her sovereignty over Clipperton, the Island was in a legal situation of terra nullius, and therefore susceptible to occupation. By theregularity of the act of France, itis clear that it had theintention to consider the island ashis territory. 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 itselfan 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. 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.

#3Anglo- Nowegian Fisheries Case (U.K vs. Norway)Facts: There was a dispute between the Government of the United Kingdom and the Norwegian Government relating to the limits at sea within which the Norwegian Government are entitled to reserve fishing exclusively to Norwegian vessels. The Norwegian government was complaining that British fishermen were invading the Norwegian fisheries zone.On 24 September 1949, the UK requested that the International Court of Justice determine how far Norway's territorial claim extended to sea, and to award the UK damages in compensation for Norwegian interference with UK fishing vessels in the disputed waters, claiming that Norway's claim to such an extent of waters was against international law.It is to be noted in this case that in order to delimit its fisheries zone, the 1812 Decree was used as the basis. In that Decree, Norwegian government had been using was that the limit was to be reckoned from the outermost islands and islets 'not continuously covered by the sea.' Norwegian authorities applied their system of delimitation consistently and uninterruptedly from 1869 until the time when the dispute arose.Issue: WON the baselines fixed by the 1812 Decree is contrary to international law?Ruling: NO. The Court is thus led to conclude that the method of straight lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that even before the dispute arose, this method had been consolidated by a constant and sufficiently long practice, in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law.(cited by the book)There is no fixed norm for determining the low water mark but the said case has suggested that for the purpose of measuring the breadth of the territorial sea, it si the low-water mark as opposed to the high-water mark or the mean between the two tides, which has generally been adopted in the practice of the states. This criterion is the most favourable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory. Also, in this case, Archipleagic states, however, instead of drawing normal baselins, have drawn straight baselines. Instead of following the curvatures of the coast, straight lines are drawn connecting selected points on the coast without appreciable departure from the general shape of the coast. This method of drawing lines was first upheld in this case.

#4. Corfu Channel Case (United Kingdom Vs Albania 1946)December 15, 1949Facts:On May 15th. 1946 the British warships passed through the Channel without the approval of the Albanian government and were shot at. Later, on October 22nd, 1946, a squadron of British warships (two cruisers and two destroyers), left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. Both destroyers were struck by mine and were heavily damaged. This incident resulted also in many deaths. The two ships were mined in Albanian territorial waters in a previously swept and check-swept channel.After the explosions of October 22nd, the United Kingdom Government sent a note to the Albanian Government, in which it announced its intention to sweep the Corfu Channel shortly. The Albanian reply, which was received in London on October 31st, stated that the Albanian Government would not give its consent to this unless the operation in question took place outside Albanian territorial waters. Meanwhile, at the United Kingdom Government's request, the International Central Mine Clearance Board decided, in a resolution of November 1st, 1946, that there should be a further sweep of the Channel, subject to Albania's consent. The United Kingdom Government having informed the Albanian Government, in a communication of November 10th, that the proposed sweep would take place on November 12th, the Albanian Government replied on the 11th, protesting against this 'unilateral decision of His Majesty's Government'. It said it did not consider it inconvenient that the British fleet should undertake the sweeping of the channel of navigation, but added that, before sweeping was carried out, it considered it indispensable to decide what area of the sea should be deemed to constitute this channel, and proposed the establishment of a Mixed Commission for the purpose. It ended by saying that any sweeping undertaken without the consent of the Albanian Government outside the channel thus constituted, i.e., inside Albanian territorial waters where foreign warships have no reason to sail, could only be considered as a deliberate violation of Albanian territory and sovereignty. After this exchange of notes, 'Operation Retail' took place on November 12th and 13th.One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to Greece by reason of the traffic to and from the port of Corfu.Issues:1. Whether or not Albania was responsible for the explosions and loss of life and had to compensate the UK government.2. Whether or not UK violated the territorial sovereignty of AlbaniaRuling:1. Yes. The British government claimed the minefield which caused the explosions was laid between May 15th, 1946, and October 22nd, 1946, by or with the approval or knowledge of the Albanian Government. The UK government claims that on October 22nd, 1946, Albania neither notified the existence of the minefield, nor warned the British warships of the danger they were approaching. According to the principle of state responsibility, they should have done all necessary steps immediately to warn ships near the danger zone, more especially those that were approaching that zone. In fact, nothing was attempted by the Albanian authorities to prevent the disaster. These grave omissions involve the international responsibility of Albania.But Albania's obligation to notify shipping of the existence of mines in her waters depends on her having obtained knowledge of that fact in sufficient time before October 22nd; and the duty of the Albanian coastal authorities to warn the British ships depends on the time that elapsed between the moment that these ships were reported and the moment of the first explosion.The Court therefore reaches the conclusion that Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon Albania to pay compensation to the United Kingdom.2. No. In addition to the passage of the United Kingdom warships on October 22nd, 1946, the second question in the Special Agreement relates to the acts of the Royal Navy in Albanian waters on November 12th and 13th, 1946 when the British government carried out a minesweeping operation called 'Operation Retail' without the consent of Albania. UK held the opinion the passage on October 22nd, 1946 was innocent and that according to rules of international law it had the right to innocent passage through the North Corfu Channel as it is considered part of international highways and does not need a previous approval of the territorial state. The Albanian Government does not dispute that the North Corfu Channel is a strait in the geographical sense; but it denies that this Channel belongs to the class of international highways through which a right of passage exists, on the grounds that it is only of secondary importance and not even a necessary route between two parts of the high seas, and that it is used almost exclusively for local traffic to and from the ports of Corfu. Thus a previous approval of the territorial state is necessary. The court analyses the geographical situation of the channel connects two parts of the high seas and is in fact frequently being used for international navigation. Taking into account these various considerations, the Court concludes that the North Corfu Channel should be considered as belonging to the class of international highways through which an innocent passage does not need special approval and cannot be prohibited by a coastal State in time of peace.Albania was in fact in war with Greece which means that the coastal state was not in time of peace. UK had not an innocent passage due to the way it was carried out.. Having thus examined the various contentions of the Albanian Government in so far as they appear to be relevant, the Court has arrived at the conclusion that the United Kingdom did not violate the sovereignty of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946.The United Kingdom Government does not dispute that 'Operation Retail' was carried out against the clearly expressed wish of the Albanian Government. It recognizes that the operation had not the consent of the international mine clearance organizations, that it could not be justified as the exercise of a right of innocent passage, and lastly that, in principle, international law does not allow a State to assemble a large number of warships in the territorial waters of another State and to carry out minesweeping in those waters. The United Kingdom Government states that the operation was one of extreme urgency, and that it considered itself entitled to carry it out without anybody's consent.The court gives judgment that the United Kingdom did not violate the sovereignty of the People's Republic of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946; and unanimously, gives judgment that by reason of the acts of the British Navy in Albanian waters in the course of the Operation of November 12th and 13th, 1946, the United Kingdom violated the sovereignty of the People's Republic of Albania, and that this declaration by the Court constitutes in itself appropriate satisfaction.

#5.NICARAGUA VS UNITED STATES OF AMERICA, 1986 ICJ REP. 14Overview:The case involved military and paramilitary activities conducted by the United States against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities violated international law.Facts of the Case:In July 1979 the Government of President Somoza collapsed following an armed opposition led by theFrenteSandinista de LiberacibnNacional(FSLN. The new government installed by FSLNbegan to meet armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. The US initially supportive of the new government changed its attitude when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated United Statesaid to Nicaragua and in September 1981, according to Nicaragua, the United Statesdecided to plan and undertake activities directed against Nicaragua.The armed opposition to the new Government was conducted mainly by (1)FuerzaDemocraticaNicaragense(FDN), which operated along the border with Honduras, and(2)AlianzaRevolucionariaDemocratica(ARDE), which operated along the border with Costa Rica, Initial US support to these groups fighting against the Nicaraguan Government (called contras) was covert. Later, the United Statesofficially acknowledged its support (for example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting directly or indirectly military or paramilitary operations in Nicaragua).Nicaragua also alleged that the United Statesis effectively in control of thecontras, the United Statesdevised their strategy and directed their tactics and that they were paidfor and directly controlled by United Statespersonal. Nicaragua also alleged that some attacks were carried out by United Statesmilitary with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua alleged thataircrafts belonging to the United Statesflew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population.The United Statesdid not appear before the ICJ at the merit stages, after refusing to accept the ICJs jurisdiction to decide the case. The United Statesat the jurisdictional phase of the hearing, however, stated that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UNCharter by providing, upon request, proportionate and appropriate assistance to Costa Rica, Honduras and El Salvador in response to Nicaraguas alleged acts aggression against those countries (paras. 126, 128).ISSUEDid the United Statesbreach its customary international law obligation not to intervene in the affairs of another State when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua? YESMilitary and paramilitary activities that the United Statesundertook in and against Nicaragua be justified as collective self-defence? NODid the United Statesbreach its customary international law obligations not to violate the sovereignty of another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful maritime commerce when it laid mines in the internal waters and the territorial sea of Nicaragua? YES1. The court held that theUnited Statesbreached its customary international law obligation not to use force against another State: (1) when it directly attacked Nicaragua in 1983 1984; and (2) when its activities with the contra forces resulted in the threat or use of force(see paras 187 -201).The Court held that: Theprohibition on the use of forceis found inArticle 2(4) of the UN Charterand in customary international law. In a controversial finding the court sub-classified the use of force as: (1) the most grave forms of the use of force (i.e. those that constitute an armed attack) and (2) the less grave form (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another State when the acts referred to involve a threat or use of force not amounting to an armed attack). The United States violated the customary international law prohibition on the use of force when it laid mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil installations and a naval base. The United States violated the customary international law prohibition on the use of force when it assisted the contras by organizing or encouraging the organization of irregular forces and armed bands for incursion into the territory of another state and participated in acts of civil strifein another State when these acts involved the threat or use of force. The Court held that the United States could not justify its military and paramilitary activities on the basis of collective self-defence. The United States breached its customary international law obligation not to violate the sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea or internal waters of Nicaragua by persons in the pay or acting ion the instructions of the United Statesand acting under its supervision with its logistical support. The United Statesdid not issue any warning on the location or existence of mines and this resulted in injuries and increases in maritime insurance rates.The court found that the United Statesalso carried out high-altitude reconnaissance flights over Nicaraguan territoryand certain low-altitude flights, complained of as causing sonic booms.The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter. State sovereignty extends to a States internal waters, its territorial sea and the air space above its territory. The United States violated customary international law when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried outunauthorisedoverflights over Nicaraguan airspace by aircrafts that belong to or was under the control of the United States.

#6 Lauritzen vs Larsen (1953)May 25, 1953FACTS: Larsen, a Danish seaman, while temporarily in New York joined the crew of the Randa, a ship of Danish flag and registry, owned by petitioner, a Danish citizen. Larsen signed ship's articles, written in Danish, providing that the rights of crew members would be governed by Danish law and by the employer's contract with the Danish Seamen's Union, of which Larsen was a member. He was negligently injured aboard the Randa in the course of employment, while in Havana harbor.Respondent brought suit under the Jones Act on the law side of the District Court for the Southern District of New York and demanded a jury. Petitioner contended that Danish law was applicable and that, under it, respondent had received all of the compensation to which he was entitled. He also contested the court's jurisdiction. Entertaining the cause, the court ruled that American rather than Danish law applied, and the jury rendered a verdict of $4,267.50. The Court of Appeals, Second Circuit, affirmed.Denmark has enacted a comprehensive code to govern the relations of her shipowners to her seagoing labor which by its terms and intentions controls this claim. Though it is not for us to decide, it is plausibly contended that all obligations of the owner growing out of Danish law have been performed or tendered to this seaman. The shipowner, supported here by the Danish Government, asserts that the Danish law supplies the full measure of his obligation and that maritime usage and international law as accepted by the United States exclude the application of our incompatible statute.ISSUE: Whether statutes (Jones Act) of the United States should be applied to this claim of maritime tort.RULING: NOIn the case before us, two foreign nations can claim some connecting factor with this tort - Denmark, because, among other reasons, the ship and the seaman were Danish nationals; Cuba, because the tortious conduct occurred and caused injury in Cuban waters. The United States may also claim contacts because the seaman had been hired in and was returned to the United States, which also is the state of the forum. We therefore review the several factors which, alone or in combination, are generally conceded to influence choice of law to govern a tort claim, particularly a maritime tort claim, and the weight and significance accorded them:1. Place of the Wrongful Act. - The solution most commonly accepted as to torts in our municipal and in international law is to apply the law of the place where the acts giving rise to the liability occurred, the lex loci delicti commissi. This rule of locality, often applied to maritime torts, would indicate application of the law of Cuba, in whose domain the actionable wrong took place. The test of location of the wrongful act or omission, however sufficient for torts ashore, is of limited application to shipboard torts, because of the varieties of legal authority over waters she may navigate.

However, the locality test, for what it is worth, affords no support for the application of American law in this case since the injury occurred on a Danish ship in Cuban waters.

2. Law of the Flag - Perhaps the most venerable and universal rule of maritime law relevant to our problem is that which gives cardinal importance to the law of the flag. Each state under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby accepting responsibility for it and acquiring authority over it. Nationality is evidenced to the world by the ship's papers and its flag.

It is settled American doctrine that the law of the flag governs all matters of discipline on a ship and all things done on board which affect only the ship and those belonging to her, and which do not involve the peace and dignity of the country or the tranquillity of the port.

3. Allegiance or Domicile of the Injured - respondent is neither citizen nor resident of the United States. While on direct examination he answered leading questions that he was living in New York when he joined the Randa, the articles which he signed recited, and on cross-examination he admitted, that his home was Silkeburg, Denmark. His presence in New York was transitory and created no such national interest in, or duty toward, him as to justify intervention of the law of one state on the shipboard of another.

4. Allegiance of the Defendant Shipowner - A state "is not debarred by any rule of international law from governing the conduct of its own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed." Until recent times this factor was not a frequent occasion of conflict, for the nationality of the ship was that of its owners. But it is common knowledge that in recent years a practice has grown, particularly among American shipowners, to avoid stringent shipping laws by seeking foreign registration eagerly offered by some countries. Confronted with such operations, our courts on occasion have pressed beyond the formalities of more or less nominal foreign registration to enforce against American shipowners the obligations which our law places upon them. But here again the utmost liberality in disregard of formality does not support the application of American law in this case, for it appears beyond doubt that this owner is a Dane by nationality and domicile.

5. Place of Contract - - Place of contract, which was New York, is the factor on which respondent chiefly relies to invoke American law. It is one which often has significance in choice of law in a contract action. But a Jones Act suit is for tort, in which respect it differs from one to enforce liability for maintenance and cure. . As we have said of the latter, "In the United States this obligation has been recognized consistently as an implied provision in contracts of marine employment. Created thus with the contract of employment, the liability, unlike that for indemnity or that later created by the Jones Act, in no sense is predicated on the fault or negligence of the shipowner."

We do not think the place of contract is a substantial influence in the choice between competing laws to govern a maritime tort. Also, the contract itself validly provided for application of Danish law.

6. Inaccessibility of Foreign Forum - It is argued, and particularly stressed by an amicus brief, that justice requires adjudication under American law to save seamen expense and loss of time in returning to a foreign forum. This might be a persuasive argument for exercising a discretionary [345 U.S. 571, 590] jurisdiction to adjudge a controversy; but it is not persuasive as to the law by which it shall be judged.

Confining ourselves to the case in hand, we do not find this seaman disadvantaged in obtaining his remedy under Danish law from being in New York instead of Denmark. The Danish compensation system does not necessitate delayed, prolonged, expensive and uncertain litigation. It is stipulated in this case that claims may be made through the Danish Consulate. There is not the slightest showing that to obtain any relief to which he is entitled under Danish law would require his presence in Denmark or necessitate his leaving New York. And, even if it were so, the record indicates that he was offered and declined free transportation to Denmark by petitioner.

7. The Law of the Forum The argument that an American forum has perfected its jurisdiction over the parties and that the defendant does frequent and regular business in the forum state does not justify application of the law of the forum in this case.

The purpose of a conflict-of-laws doctrine is to assure that a case will be treated in the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum. Jurisdiction of maritime cases in all countries is so wide and the nature of its subject matter so far-flung that there would be no justification for altering the law of a controversy just because local jurisdiction of the parties is obtainable.This review of the connecting factors which either maritime law or our municipal law of conflicts regards as significant in determining the law applicable to a claim of actionable wrong shows an overwhelming preponderance in favor of Danish law. The parties are both Danish subjects, the events took place on a Danish ship, not within our territorial waters. Against these considerations is only the fact that the defendant was served here with process and that the plaintiff signed on in New York, where the defendant was engaged in our foreign commerce. The latter event is offset by provision of his contract that the law of Denmark should govern. We do not question the power of Congress to condition access to our ports by foreign-owned vessels upon submission to any liabilities it may consider good American policy to exact. But we can find no justification for interpreting the Jones Act to intervene between foreigners and their own law because of acts on a foreign ship not in our waters.

#7.

FRANCE v. TURKEY (The SS Lotus Case) Jurisdiction of States (Criminal) September 7, 1927

FACTS: Just before midnight of 2 August 1926, a collision occurred between the SS Lotus (a French mail steamer), sailing to Constantinople (current name: Istanbul), and the Turkish collier Boz-Kourt, between 5 and 6 nautical miles to the north of Cape Sigri (Mytilene).

Boz-Kourt was cut in half, sank and 8 Turkish nationals who were on board died. The Lotus continued proceeding to Constantinople, arriving the next day.

During the collision, the chief officers of the ships were oMonsieur Demons, a French citizen, lieutenant in the merchant service and first officer of SS Lotus;oHassan Bey, a Turkish national, directed the movements of Boz-Kourt; he was saved from the wreck.

The Turkish authorities held an investigation which led to the arrest of Lt. Demons, without previous notice to the French Consul-General, and Hassen Bey, among others. The authorities described this as an arrest pending their trial for involuntary manslaughter.

The criminal case proceeded and Lt. Demons submitted that the Turkish courts had no jurisdiction.

On 15 September, the criminal court in Turkey delivered its judgment: 80 days of imprisonment and a fine of 22 pounds for Lt. Demons; slightly more severe penalty for Hassan Bey.

Due to the imposition of judgment on Lt. Demons, the French government submitted many diplomatic representations in order to either demand his release or transfer the case to the French courts.

The Turkish government then declared that it would have no objection to the reference of the conflict of jurisdiction to the Court of The Hague.

The undisputed fact was that the collision between two ships carrying different flags took place on the high seas. The territorial jurisdiction therefore of any state other than France and Turkey does not enter into account.

Turkeys arguments: The first and foremost restriction imposed by international upon a state is thatfailing the existence of a permissive rule to the contraryit may not exercise its power in any form in the territory of another state. Jurisdiction is territorial; it cannot be exercised by state outside its territory except by virtue of a permissive rule derived from international custom or convention.

There are 2 different standpoints in this matter: Principle of freedom, in virtue of which each state may regulate its legislation at its discretion, provided that in doing so it does not come in conflict with a restriction imposed by international law.

The exclusively territorial character of law constitutes a principal, which, except as otherwise expressly provide, would, ipso facto, prevent states from extending the criminal jurisdiction of their courts beyond their frontiers.

Consequently, whichever of the 2 systems be adopted, the same result will be arrived at in this particular case: the necessity of ascertaining whether or not under international law there is a principle which would have prohibited Turkey from prosecuting Lt. Demons. It must be ascertained by examining precedents offering a close analogy to the case.

The conclusion of the court: there no is no rule of international law with regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown. The offense for which Lt. Demons appeared to have been prosecuted was an act having its origin on board the Lotus, whilst its effects made themselves felt on Boz- Kourt. These two elements are legally and entirely inseparable. It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. Therefore, this is a case of concurrent jurisdiction.

[Minor] As to Frances arguments, the Court answered them one by one: 1. A State cannot punish offenses committed by a foreigner simply by reason of the

The collision resulted in the death of 8 Turkish sailors and passengers, justifying the institution of the case in Turkey.

The case is pursuant to Article 6 of the Turkish Penal Code, which according to Turkey, is in conformity with the principles of international law, as translated: Any foreigner, who, apart from the cases contemplated by Article 4, commits an offense abroad to the prejudice of Turkey or of a Turkish subject, for which offense Turkish law prescribes a penalty involving loss of freedom for a minimum period of not less than 1 year, shall be punished in accordance with the Turkish Penal Code provided that he is arrested in Turkey xxx

Francess arguments: International law does not allow a state to take proceedings with regard to the offenses committed by foreigners abroad, simply by reason of the nationality of the victim; and in this case, the offense must be regarded as having been committed on board the French vessel.International law recognizes the exclusive jurisdiction of the state whose flag is flown as regards everything which occurs on board a ship on the high seas.These principles are especially applicable in a collision case.

ISSUES: W/N Turkey had criminal jurisdiction against the captain of the French ship, which had collided with the Turkish vessel on the high seas.

HELD & RATIO: YES, BUT Turkey and France have concurrent jurisdiction on this collision case.

Nationality of the victim. This contention only relates to the case where the nationality of the victim is the only criterion on which the criminal jurisdiction the state is based.

2. With regard to precedents, none of those submitted by the French government relates to the offenses affecting two ships flying the flags two different countries. The offenses contemplated by the conventions only concern a single ship in which State has claimed a right to prosecute an offense committed on board a foreign ship, which it regarded as punishable under its legislation.

3. The French government argues that questions of jurisdiction in collision cases frequently arise before civil courts, and are rarely encountered in the practice of criminal courts; and that from this practice, prosecutions only occur before the courts of the state whose flag is flown and that is a proof of tacit consent on the part of the states. The Court disagreed. The situation merely shows that states had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so.

FINAL VERDICT: France and Turkey have concurrent jurisdiction.

#8. TRAIL SMELTER ARBITRATION (US v. CANADA)16 April 1938 and 11 March 1941

FACTS: The Consolidated Mining and Smelting Company Limited of Canada operated a zinc and lead smelter along the Columbia River at Trail, British Columbia about 10 miles north of the international boundary with the State of Washington. In the period between 1925 and 1935, the U.S. Government objected to the Canadian Government that sulfur dioxide emissions from the operation were causing damage to the Columbia River valley in a 30 mile stretch from the international boundary to Kettle Falls, Washington. The two governments resorted twice to legal arbitration, once from 1928 to 1931 and again from 1935 to 1941, in an attempt to resolve the dispute. The outcome of each decision involved some payment by the Canadian Government for damages caused to the State of Washington. The latter decision also prescribed a set of operational guidelines under which the smelter at Trail should conclude its operations for at least a year-and-a-half. The main concern of the United States was that the smelter's sulfur dioxide emissions were harming the land and the trees of the Columbia River Valley which were used for logging, farming, and cattle grazing; the three industries crucial to the area. The main species affected were yellow pines, Douglas firs, larch, and cedar. Affected harvests included alfalfa, wheat, and oats. Plaintiffs (US) argument: The sulfur dioxide emissions from the Trail Smelter damaged the Columbia River Valley. The conditions did not improve after the first suit. Defendants (Canada) argument: Canada previously paid the US for compensation ($350,000). There is no reason to close the smelting plant since the damages can be contained. There is no substantial proof that crops had been damaged due to the smelting plant.ISSUES:(1) Whether damage caused by the Trail Smelter in the state of Washington occurred since the first day of January 1932, and if so, what indemnity should be paid therefor?(2) If the first question is answered affirmative, should the Trail Smelter be required to refrain from causing future damages and, if so, to what extent? (3) In accordance to the previous questions, what measures should be taken by the Trail Smelter?HELD:1. YES. Damage caused by the Trail Smelter in the State of Washington has occurred since the first day of January, 1932, and up to October 1, 1937, and the indemnity to be paid therefor is $78,000. This compensation was primarily for damage done to land along the Columbia River valley in the United States. The Tribunal decided that the United States had not displayed enough evidence for damage to livestock or businesses in Washington State from the operation of the Trail smelter.2. YES. It is the responsibility of the State to protect other states against harmful act by individuals from within its jurisdiction at all times. No state has the right to use or permit the use of the territory in a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein as stipulated under the United States laws and the principles of international law.By looking at the facts contained in this case, the arbitration held that Canada is responsible in international law for the conduct of the Trail Smelter Company. Hence, the onus lies on the Canadian government to see to it that Trail Smelters conduct should be in line with the obligations of Canada as it has been confirmed by International law. The Trail Smelter Company will therefore be required from causing any damage through fumes as long as the present conditions of air pollution exist in Washington.So, in pursuant of the Article III of the convention existing between the two nations, the indemnity for damages should be determined by both governments. Finally, a regime or measure of control shall be applied to the operations of the smelter since it is probable in the opinion of the tribunal that damage may occur in the future from the operations of the smelter unless they are curtailed.3. It had decided that the Trail Smelter should refrain from causing any future damage to the State of Washington from its sulfur dioxide emissions. To ensure this, it mandated that the smelter maintain equipment to measure the wind velocity and direction, turbulence, atmospheric pressure, barometric pressure, and sulfur dioxide concentrations at Trail. Readings from these instruments were to be used by the smelter to keep its sulfur dioxide emissions at or below levels determined by the Tribunal. Moreover, copies of the readings were to be supplied to both governments monthly so that they could see the smelter's compliance. If the smelter could not keep to the prescribed sulfur dioxide levels, then compensation could be awarded to the United States as determined by the Tribunal and the Canadian Government.

#9. Blackmer vs US (1932)February 15, 1932Facts:Harry M. Blackmer was a United States citizen residing in France. He was served subpoenas to appear in court as a witness in a criminal trial in the US. For failure to respond to the subpoenas issued to him, contempt proceedings were initiated against Harry. Thereafter, he was found guilty and find. He appealed on the ground that the US statute requiring attendance of a witness abroad who is a citizen of the US or domiciled therein is unconstitutional.Issue:Whether or not Blackmer can be compelled to testify.Held:The Court unanimously ruled against Blackmer, with Chief Justice Charles Evans Hughes delivering the judgment and opinion of the Court and Justice Owen Josephus Roberts not participating. Chief Justice Hughes, in delivering the opinion of the Court, stated "[n]or can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal." Also, "[i]t is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned."

#10. THE NOTTEBOHM CASE (Liechtenstein v Guatemala) * The Doctrine on effective nationality link is used to determine which of two states of which a person is a national will be recognized as having the right to give diplomatic protection to the holder of dual nationality.Nottebohm was a German national by birth. In 1905, at the age of 24, he moved to Guatemala, where he maintained a residence and a business enterprise. On several occasions, he made business trips to Germany. Between 1931 and 1939, he visited his brother in Liechtenstein on several instances. In October 1939, shortly after the outbreak of WW2, he applied for citizenship by naturalization in Liechtenstein. By the end of October 1939, he was granted citizenship and received a Liechtenstein passport. On December of the same year, he received a visa form Guatemala Consul in Zurich. Nottebohm then returned to Guatemala.Several months before declaring war on Germany, The US blacklisted him and froze his US assets. Like US, Guatemala entered WW2 against Germany. In 1943, Guatemala arrested him as a dangerous enemy alien and deported him to US where he was interned until 1946. He then returned to Liechtenstein, after Guatemala refused his application for readmission.Later on, Liechtenstein brought this action against Guatemala asking the Court to declare that the Government of Guatemala, in arresting Nottebohm and seizing his property without compensation acted in breach of their obligations under International Law. For its part Guatemala asked the court to declare the claim inadmissible on the grounds of nationality of the claimant.The issues are:1. Whether the naturalization thus granted could be validly invoked against Guatemala; and2. Whether the nationality bestowed upon Liechtenstein a sufficient title to exercise protection in respect of Nottebohm as against Guatemala and therefore entitled it to seize the Court of a claim relating to him.Examining Guatemala's attitude towards Nottebohm since his naturalization, the Court considered that Guatemala had not recognized Liechtenstein's title to exercise protection in respect to Nottebohm. It then considered whether the granting of nationality by Liechtenstein directly entailed an obligation on the part of Guatemala to recognize its effect, in other words, whether that unilateral act by Liechtenstein was one which could be relied upon against Guatemala in regard to the exercise of protection. The Court dealt with this question without considering that of the validity of Nottebohm's naturalization according to the Law of Liechtenstein.Nationality is within the domestic jurisdiction of the State, which settles, by its own legislation, the rules relating to the acquisition of its nationality. But the issue which the Court must decide is not one which pertains to the legal system of Liechtenstein; to exercise protection is to place oneself on the plane of international law. International practice provides many examples of acts performed by States in the exercise of their domestic jurisdiction which do not necessarily or automatically have international effect. When two States have conferred their nationality upon the same individual and this situation is no longer confined within the limits of the domestic jurisdiction of one of these States but extends to the international field, international arbitrators or the Courts of third States which are called upon to deal with this situation would allow the contradiction to subsist if they confined themselves to the view that nationality is exclusively within the domestic jurisdiction of the State. In order to resolve the conflict they have, on the contrary, sought to ascertain whether nationality has been conferred in circumstances such as to give rise to an obligation on the part of the respondent State to recognize the effect of that nationality. In order to decide this question, they have evolved certain criteria. They have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one of these States whose nationality is involved. Different factors are taken into consideration, and their importance will vary from one case to the next: there is the habitual residence of the individual concerned but also the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc. Similarly the court of third states, when they have before them an individual whom two other states hold to be their national, seek to resolve the conflict by having recourse to International criteria and their prevailing tendency is to prefer the real and effective nationality. The same tendency prevails among writers. Moreover, the practice of certain States, which refrain from exercising protection in favour of a naturalized person when the latter has in fact severed his links with what is no longer for him anything but his nominal country, manifests the view that, in order to be invoked against another State, nationality must correspond with a factual situation. The character thus recognized on the international level as pertaining to nationality is in no way inconsistent with the fact that international law leaves it to each State to lay down the rules governing the grant of its own nationality. This is so failing any general agreement on the rules relating to nationality. It has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fixing of such rules to the competence of each State. But, on the other hand, a State cannot claim that the rules it has laid down are entitled to recognition by another State unless it has acted in conformity with this general aim of making the nationality granted accord with an effective link between the State and the individual.According to the practice of States, nationality constitutes the juridical expression of the fact that an individual is more closely connected with the population of a particular State. Conferred by a State, it only entitles that State to exercise protection if it constitutes a translation into juridical terms of the individual's connection with that State. Is this the case as regards Mr. Nottebohm? At the time of his naturalization, does Nottebohm appear to have been more closely attached by his tradition, his establishment, his interests, his activities, his family ties, his intentions for the near future, to Liechtenstein than to any other State?In this connection the Court stated the essential facts of the case and pointed out that Nottebohm always retained his family and business connections with Germany and that there is nothing to indicate that his application for naturalization in Liechtenstein was motivated by any desire to dissociate himself from the Government of his country. On the other hand, he had been settled for 34 years in Guatemala, which was the centre of his interests and his business activities. He stayed there until his removal as a result of war measures in 1943, and complains of Guatemala's refusal to readmit him. Members of Nottebohm's family had, moreover, asserted his desire to spend his old age in Guatemala. In contrast, his actual connections with Liechtenstein were extremely tenuous. If Nottebohm went to chat country in 1946, this was because of the refusal of Guatemala to admit him.There is thus the absence of any bond of attachment with Liechtenstein, but there is a long-standing and close connection between him and Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any real prior connection with Liechtenstein, nor did it in any way alter the manner of life of the person upon whom it was conferred in exceptional circumstances of speed and accommodation. In both respects, it was lacking in the genuineness requisite to an act of such importance, if it is to be enticed to be respected by a State in the position of Guatemala. It was granted without regard to the concept of nationality adopted in international relations. Naturalization was asked for not so much for the purpose of obtaining a legal recognition of Nottebohm's membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent State that of the subject of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligations - other than fiscal obligations - and exercising the rights pertaining to the status thus acquired.Guatemala is under no obligation to recognize a nationality granted in such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis-a-vis Guatemala and its claim must be held to be inadmissible.For these reasons the Court held the claim submitted by the Government of the Principality of Liechtenstein is inadmissible.

#11. UNITED STATES v. YUNIS February 12, 1988Facts:This criminal proceeding and indictment arise from the hijacking of a Jordanian civil aircraft, Royal Jordanian Airlines ("ALIA") Flight 402, on June 11, and 12, 1985. There is no dispute that the only nexus to the United States was the presence of several American nationals on board the flight. The airplane was REGISTERED in Jordan, flew the Jordanian flag and never landed on American soil or flew over American airspace.On the morning of June 11, the aircraft was positioned at the Beirut International Airport, Beirut, Lebanon, for a scheduled departure to Amman, Jordan. As the 50-60 passengers boarded, several Arab men, one allegedly the defendant, stormed the plane and ordered the pilot to fly to Tunis, Tunisia where a meeting of the Arab League Conference was underway. The airplane departed from Beirut with all passengers, including the Americans, held hostage. The plane made a short landing in Larnaco, Cyprus where additional fuel was obtained. It then proceeded to Tunis where landing privileges were denied. The airplane flew to Palermo, Sicily, where it was allowed to replenish its fuel and food supply. Thereafter, it lifted off, destined once more for Tunis. Again, entry was denied and the pilot returned to Beirut. On the morning of June 12th, it took off for Damascus, Syria. However, the Syrian authorities also denied landing privileges. Thus after crisscrossing the Mediterranean Sea area for more than 30 hours, the hijackers were forced to return to Beirut, their point of initial departure.After landing, the hostages were directed to exit the aircraft. The hijackers then called an impromptu press conference and the defendant Yunis allegedly read a speech, which he originally intended to give to the delegates of the Arab League Conference then meeting in Tunis. Following the speech, the hijackers blew up the Jordanian aircraft, quickly left the scene and vanished into the Beirut landscape.Between June 11 and 12, 1985, ALIA flight 402 never landed on or flew over American space. Its flightpath was limited to an area within and around the Mediterranean Sea. Based on the absence of any nexus to United States territory, Yunis has moved to dismiss the entire indictment, arguing that no United States federal court has jurisdiction to prosecute a foreign national for crimes committed in foreign airspace and on foreign soil. He further claims that the presence of the American nationals on board the aircraft is an insufficient basis for exercising jurisdiction under principles of international law.Issue:Whether or not there is a basis for jurisdiction under international law, and if so, whether Congress intended to and had authority to extend jurisdiction of our federal courts over criminal offenses and events which were committed and occurred overseas and out of the territorial jurisdiction of such courts.Analysis:Yes.The Universal and the Passive Personal principle appear to offer potential bases for asserting jurisdiction over the hostage-taking and aircraft piracy charges against Yunis. However, his counsel argues that the Universal principle is not applicable because neither hostage-taking nor aircraft piracy are heinous crimes encompassed by the doctrine. He urges further, that the United States does not recognize Passive Personal as a legitimate source of jurisdiction. The government flatly disagrees and maintains that jurisdiction is appropriate under both.1. Universal PrincipleThe Universal principle recognizes that certain offenses are so heinous and so widely condemned that "any state if it captures the offender may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or where the crime was committed. The crucial question for purposes of defendant's motion is how crimes are classified as "heinous" and whether aircraft piracy and hostage taking fit into this category.Those crimes that are condemned by the world community and subject to prosecution under the Universal principal are often a matter of international conventions or treaties. The Universal principle, standing alone, provides sufficient basis for asserting jurisdiction over an alleged offender. See Tel-Oren v. Libyan Arab Republic, 726 F.2d at 781, n. 7, ("The premise of universal jurisdiction is that a state `may exercise jurisdiction to define and punish certain offenses recognized by the community of nations as of universal concern,' . . . even where no other recognized basis of jurisdiction is present.") Therefore, under recognized principles of international law, and the law of this Circuit, there is clear authority to assert jurisdiction over Yunis for the offenses of aircraft piracy and hostage taking.2. Passive Personal PrincipleThis principle authorizes states to assert jurisdiction over offenses committed against their citizens abroad. It recognizes that each state has a legitimate interest in protecting the safety of its citizens when they journey outside national boundaries. Because American nationals were on board the Jordanian aircraft, the government contends that the Court may exercise jurisdiction over Yunis under this principle. Defendant argues that this theory of jurisdiction is neither recognized by the international community nor the United States and is an insufficient basis for sustaining jurisdiction over Yunis.As noted above, supra p. 9, the Hostage Taking Convention set forth certain mandatory sources of jurisdiction. But it also gave each signatory country discretion to exercise extraterritorial jurisdiction when the offense was committed "with respect to a hostage who is a national of that state if that state considers it appropriate." Art. 5(a)(d). Therefore, even if there are doubts regarding the international community's acceptance, there can be no doubt concerning the application of this principle to the offense of hostage taking, an offense for which Yunis is charged.Defendant's counsel correctly notes that the Passive Personal principle traditionally has been an anathema to United States lawmakers.8 But his reliance on the Restatement (Revised) of Foreign Relations Laws for the claim that the United States can never invoke the principle is misplaced.9 In the past, the United States has protested any assertion of such jurisdiction for fear that it could lead to indefinite criminal liability for its own citizens. This objection was based on the belief that foreigners visiting the United States should comply with our laws and should not be permitted to carry their laws with them. Otherwise Americans would face criminal prosecutions for actions unknown to them as illegal.10 However, in the most recent draft of the Restatement, the authors noted that the theory "has been increasingly accepted when applied to terrorist and other organized attacks on a state's nationals by reason of their nationality, or to assassinations of a state's ambassadors, or government officials The authors retreated from their wholesale rejection of the principle, recognizing that perpetrators of crimes unanimously condemned by members of the international community, should be aware of the illegality of their actions.11 Therefore, qualified application of the doctrine to serious and universally condemned crimes will not raise the specter of unlimited and unexpected criminal liability.Thus the Universal and Passive Personality principles, together, provide ample grounds for this Court to assert jurisdiction over Yunis. In fact, reliance on both strengthens the basis for asserting jurisdiction. Not only is the United States acting on behalf of the world community to punish alleged offenders of crimes that threaten the very foundations of world order, but the United States has its own interest in protecting its nationals.14

#12.

Filartiga v. Pea-Irala

DOLLY M.E. FILARTIGA and JOEL FILARTIGA, Plaintiffs-Appellants, v.AMERICO NORBERTO PEA-IRALA, Defendant-AppelleeJune 30, 1980

Facts:

The Filartiga family, Dolly and Dr. Joel Filartiga, Paraguay nationals, claim that on 29 March 1976, Dr. Filartigas seventeen-year-old son Joelito Filartiga was kidnapped and tortured to death by the Inspector General of Police in Asuncion at that time, Americo Norberto Pea-Irala (Pea). Dolly Filartiga was forced out of her house in the middle of the night to view her brothers mutilated body. They claim that Joelito was maltreated because his father was a longstanding opponent of the government of Paraguayan President Alfredo Stroessner who ruled over the country since 1954.

In 1978, Joelitos sister Dolly and (separately) Pea came to the United States. Dolly applied for political asylum, while Pea stayed under a visitor's visa. Dolly learned of Pea's presence in the United States and reported it to the Immigration and Naturalization Service, who arrested and ordered the deportation of Pea for staying well past the expiration of his visa.

Immediately after, on 6 April 1979, when Pea was taken to the Brooklyn Navy Yard pending deportation, the Filartiga family filed a complaint, brought forth by the Center for Constitutional Rights, before US courts alleging that Pea had wrongfully caused Joelito's death by torture and seeking compensatory and punitive damages of $10,000,000. In support of federal jurisdiction, the Filartiga family relied on the Alien Tort Claims Act (which gives foreign nationals the right to sue for wrongful actions that violate international law or the law of the nations), a federal statute of 1789. They also sought to enjoin Peas deportation to ensure his availability for testimony at trial.

The District Court for the Eastern District of New York dismissed the case on the grounds that subject matter jurisdiction was absent and for forum non conveniens (forum which is not convenient).

Although the district court initially stayed Peas deportation, it ultimately granted Peas motion to dismiss the complaint and allowed his return to Paraguay, ruling that, although the proscription of torture had become a norm of customary international law, the court was bound to follow appellate precedents which narrowly limited the function of international law only to relations between states.

The district court was stating that they did not have jurisdiction over what Paraguayan officials did to Paraguayan citizens on Paraguayan soil.

The Filartiga family appealed. On 16 October 1979, the case was heard by the Second Circuit Court of Appeals.

Issues:

Does an act of torture violate the law of nations?

Can a foreign national bring a case before federal courts for civil redress, for acts, which occurred abroad?Ruling:

Yes. The Court of Appeals, Second Circuit, ruled that even though the Filrtiga family did not consist of US nationals and that the crime was committed outside the US, the family was allowed to bring a claim before US courts. It held that torture was a violation of the laws of nations and that federal jurisdiction was provided.

The Court of Appeals reversed the District Courts decision, and declared that foreign nationals who are victims of international human rights violations may sue their misfeasors in federal court for civil redress, even for acts, which occurred abroad, so long as the court has personal jurisdiction over the defendant. In particular, the Court held that whenever an alleged torturer is found and served with process by an alien within our borders, 1350 of the Alien Tort Statute provides federal jurisdiction.

The Court further ruled that freedom from torture is guaranteed under customary international law. The prohibition as such is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens. In addition, the Court held that an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.

Deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties. In reaching the conclusion that the prohibition of torture has become part of customary international law, the Court referred to as evidence to the Universal Declaration of Human Rights and as particularly relevant, the 1975 Declaration on the Protection of All Persons from Torture.

The Declaration expressly prohibits any state from permitting the dastardly and totally inhuman act of torture. Torture, in turn, is defined as "any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as ... intimidating him or other persons." The Declaration goes on to provide that "(w)here it is proved that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed by or at the instigation of a public official, the victim shall be afforded redress and compensation, in accordance with national law." This Declaration, like the Declaration of Human Rights before it, was adopted without dissent by the General Assembly.

These U.N. declarations are significant because they specify with great precision the obligations of member nations under the Charter. Since their adoption, "(m)embers can no longer contend that they do not know what human rights they promised in the Charter to promote." Moreover, a U.N. Declaration is, according to one authoritative definition, "a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated." Accordingly, it has been observed that the Universal Declaration of Human Rights "no longer fits into the dichotomy of "binding treaty' against "non-binding pronouncement,' but is rather an authoritative statement of the international community." Thus, a Declaration creates an expectation of adherence, and "insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon the States." Indeed, several commentators have concluded that the Universal Declaration has become, in toto, a part of binding, customary international law.

Turning to the act of torture, we have little difficulty discerning its universal renunciation in the modern usage and practice of nations The international consensus surrounding torture has found expression in numerous international treaties and accords The substance of these international agreements is reflected in modern municipal i. e. national law as well. Although torture was once a routine concomitant of criminal interrogations in many nations, during the modern and hopefully more enlightened era it has been universally renounced. According to one survey, torture is prohibited, expressly or implicitly, by the constitutions of over fifty-five nations, (12) including both the United States (13) and Paraguay.

There now exists an international consensus that recognizes basic human rights and obligations owed by all governments to their citizens .... There is no doubt that these rights are often violated; but virtually all governments acknowledge their validity.

Having examined the sources from which customary international law is derived the usage of nations, judicial opinions and the works of jurists, we conclude that official torture is now prohibited by the law of nations. The prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens.

In respect of perpetrators of torture in general, the Court famously held that for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.

#13. ADOLF EICHMANN v. THE ATTORNEY GENERAL OF THE GOVERNMENT OF ISRAEL 136 ILR 277, Israel, Supreme Court of Israel, Per CuriamBACKGROUND AND FACTS: The accused, Adolf Eichmann, was an Austrian by birth who volunteered to work for the Security Service (SD) in Berlin when he was a member of the Austrian SS. He rose through the ranks and eventually occupied the position of Head of Section (Referant) for Jewish Affairs charged with all matters related to the implementation of the Final Solution to the Jewish Question. In this capacity, he oversaw the transport and deportation of Jewish persons, set up and personally ran an operations centre in Hungary in order to implement the Final Solution there, organized the transfer of money from evacuated Jews to the State and was responsible for the administration of the camps at Terezin and Bergen-Belsen. In a nutshell, he played a central role in the planning and implementation of the persecution of Jews in Germany, Poland, Hungary and several other countries before and during WWII. At the end of the war, he escaped to Argentina where he lived and worked under an alias until May 1960, when he was kidnapped by the Israeli intelligence service, Mossad, and transferred to Jerusalem to face the its District Court. Argentina complained to the Security Council, while making it clear that it did not condone Eichmanns crimes, that the abduction clearly violated Argentine sovereignty. It stated that it caused international friction and if repeated, may endanger international peace and security. Th Security Council requested the Government of Israel to make reparations in accordance with the Charter of the UN and the rules of international law. Both governments were able to resolve the conflict in a joint communiqu. The trial commenced on April 11, 1961 with the indictment charging Eichmann with 15 counts of crimes against the Jewish people, crimes against humanity, war crimes and membership in the organization declared criminal by the International Military Tribunal in Nuremberg 15 years earlier. He was convicted and sentenced to death. The Supreme Court of Israel dismissed Eichmanns appeal and he was hanged at the gallows on May 31, 1962. He was the only person ever formally executed by the State of Israel.ISSUE: In Eichmanns appeal, the following is the contention pertinent to Jurisdiction of States:1.) The offences for which Eichmann was tried are in the nature of extra-territorial offences (offences committed outside the territory of Israel by a citizen of a foreign state) and even though it confers jurisdiction in respected to such offences, it conflicts with the principle of territorial sovereignty, which postulates that only the country within whose territory the offence was committed or to which the offender belongs (In this case, Germany) has jurisdiction to punish for.RULING: AMONG OTHERS, THIS CONTENTION OF EICHMANN WAS REJECTED.It will be recalled that according to that contention the enactment of a criminal law applicable to an act committed in a foreign country by a foreign national conflicts with the principle of territorial sovereignty. But here, too, we must hold that there is no such rule in customary international law, and that to this day it has not won universal international recognition. This is established by the judgment of the Permanent Court of International Justice in the Lotus case (P.C.I.J. Series No. 10, 1927). In that case, subject to this restriction, every state may exercise a wide discretion as to the application of its laws and the jurisdiction of its courts in respect of acts committed outside the state; and that only insofar as it is possible to point to a specific rule prohibiting the exercise of this discretion - a rule agreed upon by international treaty - is a state prevented from exercising it. That view was based on the following two grounds: (1) It is precisely the conception of state sovereignty which demands the preclusion of any presumption that there is a restriction on its independence; (2) even if it is true that the principle of the territorial character of criminal law is firmly established in various states, it is no less true that in almost all such states criminal jurisdiction has been extended, in ways that vary from state to state, so as to embrace offences committed outside its territory.As to the first ground, it was stated in the Judgment (ibid., p. 18): "Restrictions upon the independence of states cannot ... be presumed." As to the second ground, it was stated (ibid., p. 30): "Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the state which adopts them, and they do so in ways which vary from state to state. The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty." The view based on these two grounds was expressed in the following terms (p. 18, 19): "Now the first and foremost restriction imposed by international law upon a state is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention. "It does not, however, follow that international law prohibits a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to states to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside its territory, and if, as an exception to their general prohibition of another, it allowed states to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that states may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every state remains free to adopt the principles which it regards as best and most suitable." Also: "This discretion left to states by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other states; it is in order to remedy the difficulties resulting from such variety that efforts have been made for many years past...to prepare conventions the effect of which would be precisely to limit the discretion at present left to states in this respect by international law..." And finally:"In these circumstances, all that can be required of a state is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty." It is worthy of note that in the same case the Permanent Court of International Justice declared the criminal jurisdiction of the State of Turkey valid on another, rather more restricted, ground, namely, that the actual damage caused by the negligent act of the French ship occurred in the ship that was flying the Turkish flag. In other words, the resultant damage which constituted an essential element in the offence under Turkish law occurred in a place which was deemed to be Turkish territory. Hence the principle of territorial sovereignty was upheld (ibid., pp. 23, 25). There are some who hold that this ground, which relates to the special facts of the case in question, and which was also supported in principle by the minority judge, Judge Moore (ibid., p. 65), is the `precise' ground that guided the court in the above-mentioned decision (cf. Lauterpacht Oppenheim ibid., vol. 1, p. 334, and note 1). On the other hand, many authorities in this field of law take the view that it is the wide ground relied upon by the court, as set out above, which correctly and positively reflects international law in this matter (see articles by Schwarzenberger in Current Legal Problems 1950, pp. 265-266; Green, in Modern Law Review, vol. 23 (1960), p. 513; MacGibbon in the British Yearbook of International Law (1954) pp. 184-185; W.B. Cowles in the California Law Review (1945), vol. 33, pp. 178-181). As against these there are international jurists who do not agree with that approach (such as the minority judges in the Lotus case), or at least do not view it with favour de lege ferenda (see W.W. Cook in Logical and Legal Bases of the Conflict of Laws, p. 77). We have no intention of dealing extensively with the above- mentioned divided opinion, or of associating ourselves with any one of them. Our only object in setting forth these views, including the majority view in the Lotus case, is to point to the fact that on the question of the jurisdiction of a state to punish persons who are not its nationals for acts committed beyond its borders, there is as yet no international accord. In the words of Cook (ibid.): "...that there is not at present any general agreement on such rule of international law seems reasonably clear." Thus also Helen Silving in her article (American Journal of International Law, vol. 55, pp. 321-322, note 45): "The question...of the extent to which territorial jurisdiction may deviate from territorial sovereignty has not been uniformly answered in time or in space." Attention may also be drawn to the statement of MacGibbon, in his above article (ibid., p. 184): "The difficulties of a plaintiff state in its search for a prohibitive rule in such circumstances are not merely the result of the unfettered independence of the defendant state but are inherent in the unsettled state of the law which such a situation presupposes." It follows that in the absence of general agreement as to the existence of the rule of international law, upon which Counsel for the Appellant relied, there is no escape from the conclusion that it cannot be deemed to be embodied in Israel municipal law, and therefore on that ground, too, his second contention fails. We are fortified in this opinion by the reply of the Privy Council to the contention that the enforcement of a punitive sanction - the seizure of a boat belonging to a foreign national - by the Mandatory Government for an act committed outside the territorial waters of Palestine, constituted a violation of the principles of international law. In rejecting this contention, the judges based themselves, inter alia, on the following ground: "There is room for much discussion within what limits a state may for the purpose of enforcing its revenue or police or sanitary law claim to exercise jurisdiction on the sea outside its territorial water. It has not been established that such a general agreement exists on this subject as to satisfy the test laid down by Lord Alverstone... Their Lordships, therefore, could not in any event conclude that any principle of international law had been violated" (Naim Molvan v. Attorney General for Palestine (1948 A.C. 351, 369). We should add that even if Counsel for the Appellant were right in his view that international law prohibits a state from trying a foreign national for an act committed outside its borders, this would not avail his client in any way. The reason for this is that, according to the theory of international law, in the absence of an international treaty which vests rights in an individual, that law only recognizes the rights of a state; in other words, assuming that there is such a prohibition in international law, the violation of it is deemed to be a violation of the rights of the state to which the accused belongs, and not a violation of his own rights (vide Green in his article op. cit., ibid. p. 512). Thus in the Molvan case the Privy Council (as an additional reason for its decision) also found that it was not open to the owner of the ship - for reasons which are no concern of ours here - to claim "the protection of any state nor could any state claim that any principle of international law was broken by her seizure" (ibid., p. 370). It should be noted - and we shall yet revert to this fact with reference to another contention of Counsel for the Appellant - that, according to his own words, his application to the Government of Western Germany to claim its right to try the Appellant in Germany, was refused.

#14.UNITED STATESv.ALVAREZ MACHAIN, respondentJune 15, 1992FACTS:Respondent, a citizen and resident of Mexico, was forcibly kidnapped from his office in Mexico by persons working for DEA agents and flown by private plane to Texas, where he was arrested for his participation in the kidnapping and murder of a Drug Enforcement Administration (DEA) agent and the agent's pilot. He contended that his abduction was illegal because of an extradition treaty between the United States and Mexico. After concluding that DEA agents were responsible for the abduction, the District Court dismissed the indictment on the ground that it violated the Extradition Treaty between the United States and Mexico (Extradition Treaty or Treaty), and ordered respondent's repatriation. The Court of Appeals affirmed. Based on one of its prior decisions, the court found that, since the United States had authorized the abduction and since the Mexican government had protested the Treaty violation, jurisdiction was improper.ISSUE:Does the presence of an extradition treaty between the United States and another nation necessarily preclude obtaining a citizen of that nation through abduction? RULING:The presence of an extradition treaty between the United States and another nation does not necessarily preclude obtaining a citizen of that nation through abduction. The fact of respondent's forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws. (a) A defendant may not be prosecuted in violation of the terms of an extradition treaty.United Statesv.Rauscher,119 U.S. 407. However, when a treaty has not been invoked, a court may properly exercise jurisdiction even though the defendant's presence is procured by means of a forcible abduction.Kerv.Illinois,119 U.S. 436. Thus, if the Extradition Treaty does not prohibit respondent's abduction, the rule ofKerapplies and jurisdiction was proper. (b) Neither the Treaty's language nor the history of negotiations and practice under it supports the proposition that it prohibits abductions outside of its terms. The Treaty says nothing about either country refraining from forcibly abducting people from the other's territory or the consequences if abduction occurs. In addition, although the Mexican government was made aware of the Kerdoctrine as early as 1906, and language to curtailKerwas drafted as early as 1935, the Treaty's current version contains no such clause.(c) General principles of international law provide no basis for interpreting the Treaty to include an implied term prohibiting international abductions. It would go beyond established precedent and practice to draw such an inference from the Treaty based on respondent's argument that abductions are so clearly prohibited in international law that there was no reason to include the prohibition in the Treaty itself. It was the practice of nations with regard to extradition treaties that formed the basis for this Court's decision inRauscher, supra,to imply a term in the extradition treaty between the United States and England. Respondent's argument, however, would require a much larger inferential leap with only the most general of international law principles to support it. While respondent may be correct that his abduction was "shocking" and in violation of general international law principles, the decision whether he should be returned to Mexico, as a matter outside the Treaty, is a matter for the Executive Branch. MACHAIN argued that since international law prohibits abductions, the drafters of the treaty had no reason to consider a prohibition thereof necessary. However, this body of law only applies to situations where no extradition treaty exists, so it is irrelevant here. Consequently, since the extradition treaty does not prohibit abduction such as occurred here, it was not illegal. Case is reversed and remanded.

SIDE NOTE:Alvarez-Machainlost this battle but won the war. He was tried in Los Angeles in 1993. At the close of the prosecution's case, the trial judge, Edward Rafeedie, dismissed the case for lack of evidence. (The judge used some harsh language in his order, apparently believing the case should never have been brought.)

#15Secretary of Justice vs. Lantion (Oct. 17, 2000)Facts:On January 18, 2000, by a vote of 9-6, the SC dismissed the petition at bar and ordered the petitioner to furnish private respondent copies of the extradition request and its supporting papers and to grant him a reasonable period within which to file his comment with supporting evidence. On February 3, 2000, the petitioner timely filed an Urgent Motion for ReconsiderationOn March 28, 2000, a 58-page Comment was filed by the private respondent Mark B. Jimenez, opposing petitioners Urgent Motion for Reconsideration.Issue:Whether or not the private respondent is entitled to the due process right to notice and hearing during the evaluation stage of the extradition processRuling:No. It is of judicial notice that the summons includes the petition for extradition which will be answered by the extraditee.First, there isno provisionin the RP-US Extradition Treaty and in P.D. No. 1069 which gives an extraditee the right to demand from the petitioner Secretary of Justice copies of the extradition request from the US government and its supporting documents and to comment thereonwhile the request is still undergoingevaluation.We cannot write a provision in the treaty giving private respondent that right where there is none.It is well-settled that a "court cannot alter, amend, or add to a treaty by the insertion of any clause, small or great, or dispense with any of its conditions and requirements or take away any qualification, or integral part of any stipulation, upon any motion of equity, or general convenience, or substantial justice.xxxAll treaties, including the RP-US Extradition Treaty,should be interpreted in light of their intent.Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a signatory provides that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their