Case Studies of International Law

1. Scotia Case (United States Vs. Britain) - 1871

Facts:
 A dispute arose between the United States ship Berkshire and the British steamer Scotia. The
Berkshire was struck by the Scotia because of the Berkshire’s failure to display coloured
lights according to customary law of the sea.

Issue:
 Was the vessel Berkshire in violation of customary international law in failing to display
the same coloured lights as those used by other countries?

Judicial Reasoning:
“Undoubtedly, no single nation can change the law of the sea. That law is of
universal obligation, and no law of one or two nations can create obligations for
the world.  Like all the laws of the nations, it rests upon the common consent of
civilized communities.  It is of force not because it is prescribed by any superior power,
but because it is generally accepted as a rule of conduct. Whatever may have been its
origin, whether in the usages of navigation or in regulations of maritime states, or both, it
has become the law of the sea only by consistent acceptance and use of those
nations who may be said to constitute the commercial world…..”
When we find such rules of navigations mentioned in British law and accepted as into the
national laws of more than 30 of the principal commercial states of the world, including
almost all of which have any shipping on the Atlantic Ocean, we are required to regard them
as part at least, the laws of the sea which were in effect during this collision. This is not
giving laws of any nation’s authority outside of their national sovereignty. It is not treating
them as general maritime laws, but it is recognition of the historical fact that by common
consent of mankind, these rules have been given as a general obligation.

2. Rainbow Warrior Case (New Zealand v. France) – 1990

Brief Fact Summary. Two agents, who were convicted of destroying a ship docked in
New Zealand, were removed by France on the premise that they required emergency
medical treatment.
Synopsis of Rule of Law. The wrongfulness of an act of a state not in consonance with
an international obligation is precluded by the “distress” of the author state if there exists a
situation of extreme peril in which the organ of the state has, at that particular moment, no
means of saving himself or persons entrusted to his care other than to act in a manner
inconsistent with the requirements of the obligation.

Facts. A civilian vessel which was docked in New Zealand was destroyed by a team of
French agents. The agents, Mafart and Prieur, were extradited and New Zealand sought
reparation from the incident. The agents were transferred to a French military facility and
subsequently transported to Paris on the basis that they needed medical attention. This
dispute was brought before an arbitral tribunal in which New Zealand demanded a
declaration that France had breached its obligation and ordered that it return the agents to
the facility for the remainder of their sentences.

Issue. Is the wrongfulness of an act of a state not in consonance with an international

obligation precluded by the “distress” of the author state if there exists a situation of
extreme peril in which the organ of the state has, at that particular moment, no means of
saving himself or persons entrusted to his care other than to act in a manner inconsistent
with the requirements of the obligation at issue?

Held. Yes. the wrongfulness of an act of a state not in consonance with an international

obligation is precluded by the “distress” of the author state if there exists a situation of
extreme peril in which the organ of the state has, at that particular moment, no means of
saving himself or persons entrusted to his care other than to act in a manner inconsistent
with the requirements of the obligation.
In order to justify France conduct, three conditions are required: (1) very exceptional
circumstances of extreme urgency involving medical or other considerations, provided by
New Zealand; (2) the reestablishment of the original situation of compliance; and (3) a
good faith effort to try to obtain the consent of New Zealand. While the removal of Mafart
was justified, the removal of Prieur without the knowledge of New Zealand was
unjustifiable; and this was a material breach on the part of France.

Discussion. France contention that the circumstances here constituted a force majeure

was rejected by the court. “force majeure” is usually invoked to justify unintentional acts
and refers to “unforeseen external events” that render it “materially impossible” to act in
conformity with the obligation.
3. Lotus Case (France Vs. Turkey) - 1927
Overview:

A collision occurred in the high seas between a French vessel and a Turkish vessel. Victims
were Turkish nationals and the alleged offender was French. Could Turkey exercise its
jurisdiction over this French national under international law?

Facts of the Case:

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

Questions before the Court:

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

The Court’s Decision:

Turkey, by instituting criminal proceedings against Demons, did not violate international
law.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an

existing rule of international law or is the mere absence of a prohibition preventing the
exercise of jurisdiction enough?
The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside its
territory unless an international treaty or customary law permits it to do so. This is what
we called the first principle of the Lotus Case. The Court held that:

“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 of another 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.” (para 45)

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

“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 their territory, and if, as an exception to this general prohibition, 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. 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 …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.” (paras 46 and 47)

This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite
to exercise jurisdiction, the Court argued, then “it would…in many cases result in
paralysing the action of the courts, owing to the impossibility of citing a universally
accepted rule on which to support the exercise of their [States’] jurisdiction” (para 48).

The Court based this finding on the sovereign will of States. It held that:

“International law governs relations between independent States. The rules of law binding upon States therefor  emanate from their own free will as

expressed in conventions or by usages generally accepted as expressing principles of law and established in order to   regulate the relations between these

co-existing independent communities or with a view to  the achievement of  common aims. Restrictions upon the independence of  States cannot therefore be

presumed”
[Note: This was one of the more debated aspects of the judgement. Some argued that the
Court placed too much emphasis on sovereignty and consent of States (i.e. took a strong
positivist view)].

Criminal Jurisdiction: Territorial Jurisdiction

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

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

  “If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must
be  applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law

prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding   the offence as having been committed in

its territory and prosecuting, accordingly, the delinquent.”

The Lotus Case is also significant in that the Court said that a State would have territorial
jurisdiction, even if the crime was committed outside its territory, so long as a constitutive
element of the crime was committed in that State. Today, we call this subjective territorial
jurisdiction. In order for subjective territorial jurisdiction to be established, one must prove
that the element of the crime and the actual crime are entirely inseparable: in other words,
if the constituent element was absent – the crime would not have happened. The Court
said:
“The offence for which Lieutenant Demons appears to have been prosecuted  was an act – of negligence or imprudence – having its origin on board the

Lotus, whilst its effects made themselves felt on board the Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that their separation

renders the offence non-existent… It is only natural that each should be  able to exercise jurisdiction and to do so in respect of the incident as a whole. It is

therefore a case of concurrent jurisdiction.”

Customary International Law

The Lotus case gave an important dictum on creating customary international law. France
had alleged that jurisdictional questions on collision cases are rarely heard in criminal
cases, because States tend to prosecute only before the flag State. France argued that this
absence of prosecutions points to a positive rule in customary law on collisions.The Court
disagreed and held that, this:

  “…would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being
obliged to do so; for only if such abstention were based  on their being conscious of having a duty to abstain would it be possible to speak of an international
custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen, there
are other circumstances calculated to show that the contrary is true.” 

In other words, opinio juris is reflected not only in acts of States (Nicaragua Case), but also
in omissions when those omissions are made following a belief that the said State is
obligated by law to  refrain from acting in a particular way.

Subsequent ICJ Decisions and Separate Opinions That Referred to Principles

of the Lotus Case

Advisory Opinion on the Unilateral Declaration of Kosovo (2010)

In the Kosovo Advisory Opinion the Court had to decide if the unilateral declaration of

Kosovo of February 2008 was ‘in accordance with’ international law. The Court inquired
and concluded that the applicable international law did not prohibit an unilateral
declaration of independence. Based on this finding, the Court decided that ‘the adoption of
the declaration of independence  did not… violate any applicable rule of international law’.

Judge Simma disagreed, inter alia, with  Court’s methodology in arriving at this conclusion.
He imputed the method to the principle established in the Lotus case: that which is not
prohibited is permitted under international law. He criticised the Lotus dictum as an out
dated, 19th century positivist approach that is excessively differential towards State
consent. He said that the Court should have considered the possibility that international
law can be deliberately neutral or silent on the international lawfulness of certain acts.
Instead of concluding that an the absence of prohibition ipso facto meant that a unilateral
 declaration of independence is permitted under international law, the  Court should have
inquired whether under certain conditions international law permits or tolerates unilateral
declarations of independence.

4. Corfu Channel Case (United Kingdom of Great Britain and

Northern Ireland Vs. Albania) – 1946

In May 1946 British warships passed through the Corfu Channel, in Albanian territorial
waters, and were fired upon by Albanian coastal batteries. In October 1946, when two
British warships passed through the Corfu Channel the ships struck mines and were
damaged. In November 1946 the British Royal Navy swept for mines in the Corfu Channel
in Albanian waters without Albanian consent. The Court held that Albania was responsible
for the October 1946 explosion in Albanian waters, and for the damage and loss of human
life that resulted. A decision regarding the amount of compensation was reserved for
further consideration. International decisions recognized circumstantial evidence, and such
evidence in this case indicated that the laying of the minefield which caused the explosions
in October 1946 could not have been accomplished without the knowledge of the Albanian
government. Albania had the responsibility to warn British warships of the danger the
minefields exposed them to. This responsibility flowed from well-recognized principles of
humanity which were even more exacting in time of peace than in war, from the principle of
freedom of maritime communication, and from the obligation of all states not to knowingly
allow their territory to be used contrary to the rights of other states. The Court decided that
the United Kingdom did not violate the sovereignty of Albania when it passed through
Albanian waters in October 1946. In times of peace, states had the right to send their
warships through straits used for international navigation between two parts of the high
seas without the previous authorization of a coastal state, provided the passage was
innocent. However, when the Royal Navy swept for mines in November 1946, it violated the
sovereignty of Albania. This operation did not have the consent of international mine
clearance organisations, could not be justified as the exercise of a right of innocent passage,
and international law did not allow a state to assemble a large number of warships in the
territorial waters of another state and to carry out mine-sweeping in those waters. The
United Kingdom’s arguments regarding intervention and self-protection were not
persuasive.
5. The United Nations Reparation for Injuries suffered in the Service
of the United Nations

The International Court of Justice on April 11, 1949, gave its unanimous opinion that, in the
event of an agent of the United Nations in the performance of his duties suffering injury in
circumstances involving the responsibility of a Member (or a non-member) State, the
United Nations as an organization has the capacity to bring an international claim against
the responsible de jure or de facto government with a view to obtaining the reparation due
in respect of the damage caused the United Nations. By a majority of eleven, with four
judges dissenting, the Court also gave its opinion that the United Nations has the capacity
to claim reparation due in respect of the damage caused to the victim or to persons entitled
through him. The Court by ten votes to five gave its further opinion that when the United
Nations 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 obligations due to itself; and that
respect for this rule will usually prevent a conflict between the action of the United Nations
and such rights as the agent’s national state may possess, and thus bring about a
reconciliation between their claims.

6. Nottebohm Case (Liechtenstein v. Guatemala) - 1955

Brief Fact Summary. A month after the start of World War II, Nottebohm (P), a
German citizen who had lived in Guatemala (D) for 34 years, applied for Liechtenstein (P)
citizenship.

Synopsis of Rule of Law. Nationality may be disregarded by other states where it is clear

that it was a mere device since the nationality conferred on a party is normally only the
concerns of that nation

Facts. Nottebohn (P), a German by birth, lived in Guatemala (D) for 34 years, retaining his
German citizenship and family and business ties with it. He however applied for
Liechtenstein (P) citizenship a month after the outbreak of World War II. Nottebohm (P)
had no ties with Liechtenstein but intended to remain in Guatemala. The naturalization
application was approved by Liechtenstein and impliedly waived its three-year. After this
approval, Nottebohm (P) travelled to Liechtenstein and upon his return to Guatemala (D),
he was refused entry because he was deemed to be a German citizen. His Liechtenstein
citizenship was not honored.  Liechtenstein (P) thereby filed a suit before the International
Court to compel Guatemala (D) to recognize him as one of its national. Guatemala (D)
challenged the validity of Nottebohm’s (P) citizenship, the right of Liechtenstein (P) to
bring the action and alleged its belief that Nottebohm (P) remained a German national.

Issue. Must nationality be disregarded by other states where it is clear that it was a mere
device since the nationality conferred on a party is normally the concerns of that nation?

Held. NO. issues relating to citizenship are solely the concern of the granting nation. This
is the general rule. But it does not mean that other states will automatically accept the
conferring state’s designation unless it has acted in conformity with the general aim of
forging a genuine bond between it and its national aim. In this case, there was no
relationship between Liechtenstein (P) and Nottebohm (P). the change of nationality was
merely a subterfuge mandated by the war. Under this circumstance, Guatemala (D) was not
forced to recognize it. Dismissed.

Discussion. A state putting forth a claim must establish a locus standi for that purpose.
Without interruption and continuously from the time of the injury to the making of an
award been a national of the state making the claim and must not have been a national of
the state against whom the claim has been filed. International law 347 (8th Ed. 1955) Vol.1.

UK vs. Norway (North Atlantic Fisheries Case)

In this case, the UK requested the International Court of Justice (ICJ) to determine how far
Norway’s territorial claim extended to sea and to provide some compensation because
Norway interfered in the fishing vessel of the UK and also claimed that Norway’s claim to
such extent was against International Law.
The Court held that Norway’s claim to the waters was consistent with the International law
regarding the part of the sea space.
7. Nicaragua vs. USA

Article 51 of the UN Charter

Article 51 provides the countries to engage in self-defence and against an armed attack. A
case relating to Self-Defense is:

In this case, In 1979, when a pro soviet government called the Sandini States came to power
in Nicaragua, the US authority were alarmed, as this was the height of the cold war.
In 1981, the Reagan administration decided to support the rebel forces in Nicaragua called
Somosistas, who was a USA citizen.
The Central Intelligence Agency ran extensive illegal and secret operations targeting the
Nicaraguan army and air forces, supplied arms, ammunition, money and frequently
kidnapped Nicaragua citizens.
Nicaragua citizens brought a case against the USA for violating the Treaty of the UN
Charter.
The Court held that US contested that ICJ did not have jurisdiction to hear this case but ICJ
nevertheless proceeded with the case because of the 1955 treaty of friendship between
Nicaragua and the USA.
The ICJ found out that the USA had knowingly and intentionally violated the provisions of
the UN Charter, general rules of International Law and had clearly violated the territorial
sovereignty of Nicaragua.
In 1992, because of tremendous pressure Nicaragua took back the complaint and
unofficially apologized to the US Government.