reach an agreement on the terms in which they might refer the dispute

jointly to the International Court of Justice, agree that proceedings

20 November 1950 before the recognized jurisdiction of the Court may be instituted on the
General List No. 7 application of either of the Parties without this being regarded as an
INTERNATIONAL COURT OF JUSTICE unfriendly act toward the other, or as an act likely to affect the good
ASYLUM CASE relations between the two countries. The Party exercising this right
COLOMBIA shall, with reasonable advance notice, announce in a friendly way to
v. the other Party the date on which the application is to be made.
PERU
Third:
JUDGMENT
BEFORE: President: Basdevant; They agree, here and now: (a) that the procedure in this case shall be
Vice-President: Guerrero; the ordinary procedure ; (b) that, in accordance with Article 31,
Judges: Alvarez, Hackworth, Winiarski, Zoricic, De paragraph 3, of the Statute of the Court, each of the Parties may
Visscher, Sir Arnold McNair, Klaestad, Badawi Pasha, exercise its right to choose a judge of its nationality; (c) that the case
Krylov, Read, Hsu Mo, Azevedo, M. Alayza y Paz Soldán shall be conducted in French.
and M. Caicedo Castilla;
Judges ad hoc: M. Garnier-Coignet Fourth:
PermaLink http://www.worldcourts.com/icj/eng/decisions/
: 1950.11.20_asylum.htm This document, after it has been signed, shall be communicated to the
Asylum Case, Colombia v. Peru, Judgment, 1950 I.C.J. Court by the Parties."
Citation:
266 (Nov. 20)
Represent Colombia: M. J. M. Yepes, Professor, Minister On October 15th, 1949, an Application, referring to the Act of Lima of
ed By: Plenipotentiary, Legal Adviser to the Ministry for Foreign August 31st, 1949, was filed in the Registry of the Court in the name
Affairs of Colombia, former Senator, as Agent; assisted by of the Colombian Government. After stating that Colombia asserts:
M. Alfredo Vasquez, Minister Plenipotentiary, Secretary-
General of the Ministry for Foreign Affairs of Colombia, as "(a) that she is entitled in the case of persons who have claimed
Advocate; asylum in her embassies, legations, warships, military camps or
military aircraft, to qualify the refugees, either as offenders for
common crimes or deserters from the army or navy, or as political
Peru: M. Carlos Sayân Alvarez, Barrister, Ambassador, offenders;
former Minister, former President of the Peruvian Chamber
of Deputies, as Agent; assisted by M. Felipe Tudela y (b) that the territorial State, namely, in this case, Peru, is bound to
Barreda, Barrister, Professor of Constitutional Law at Lima; give 'the guarantees necessary for the departure of the refugee, with
M. Fernando Morales Macedo R., Parliamentary due regard to the inviolability of his person, from the country' ", [p269]
Interpreter; M. Juan José Calle y Calle, Secretary of
Embassy; M. Georges Scelle, Honorary Professor of the the Application concludes by requesting the Court:
University of Paris, and M. Julio Lopez Olivân,
Ambassador. "To pass judgment on and answer, whether the Government of the
[p266] Republic of Peru enters an appearance or not, and after such time-
limits as the Court may fix in the absence of an agreement between
The Court, the Parties, the following questions:
composed as above, First Question.—Within the limits of the obligations resulting in
particular from the Bolivarian Agreement on Extradition of July 18th,
delivers the following Judgment: 1911, and the Convention on Asylum of February 20th, 1928, both in
force between Colombia and Peru, and in general from American
On August 31st, 1949, an agreement called the "Act of Lima" was international law, was Colombia competent, as the country granting
signed at Lima in the name of the Colombian Government and of the asylum, to qualify the offence for the purposes of said asylum?
Peruvian Government. This Act is as follows:
Second Question.—In the specific case under consideration, was
"His Excellency Monsieur Victor Andres Belaunde, Ambassador Peru, as the territorial State, bound to give the guarantees necessary
Extraordinary and Plenipotentiary ad hoc of the Peruvian Republic, for the departure of the refugee from the country, with due regard to
and His Excellency Monsieur Eduardo Zuleta Angel, Ambassador the inviolability of his person ?"
Extraordinary and Plenipotentiary ad hoc of Colombia, duty
designated by their respective Governments to negotiate and draw up Together with the Application, the Agent of the Colombian
the [p268] terms of an agreement to refer to the International Court of Government filed in the Registry a certified true copy of the original in
Justice a dispute which arose following a request by the Colombian Spanish, accompanied by a French translation, of the Act of Lima. By
Embassy in Lima for delivery of a safe-conduct for Monsieur Victor letter of October 15th, 1949, received by the Registry on the same
Raul Haya de la Torre, have met in the Ministry of Foreign Affairs and day, the Agent of the Peruvian Government also deposited a certified
Public Worship in Lima and, having exchanged their respective true translation of the Act of Lima.
credentials, make the following declaration in the spirit of cordial
friendship which characterizes the relations between the two The Application was notified, under Article 40, paragraph 3, of the
countries: Statute of the Court, to the States entitled to appear before the Court.
It was also transmitted to the Secretary-General of the United Nations.
First:
As the Application was based upon the Convention on Asylum signed
They have examined in a spirit of understanding the existing dispute at Havana on February 20th, 1928, and upon the Agreement on
which they agree to refer for decision to the International Court of Extradition signed at Caracas on July 18th, 1911, the notification
Justice, in accordance with the agreement concluded by the two prescribed by Article 63, paragraph 1, of the Statute of the Court was
Governments. addressed to the States other than those concerned in the case which
were parties to the foregoing Conventions.
Second:
The Pleadings having been deposited within the time-limits prescribed
The Plenipotentiaries of Peru and Colombia having been unable to in the Order of October 20th, 1949, as extended by Orders of
1
December 17th, 1949, and May 9th, 1950, the case was ready for To adjudge and declare:
hearing on June 15th, 1950.
I.—That the Republic of Colombia, as the country granting asylum, is
As the Court did not include upon the Bench any judge of the competent to qualify the offence for the purpose of the said asylum,
nationality of the Parties, the latter availed themselves of the right within the limits of the obligations resulting in particular from the
provided by Article 31, paragraph 3, of the Statute. The Judges ad Bolivarian Agreement on Extradition of July 18th, 1911, and the
hoc designated were M. José Joaquín Caicedo Castilla, Doctor of Havana Convention on Asylum of February 20th, 1928, and of
Law, Professor, former Deputy and former President of the Senate, American international law in general;
Ambassador, for the Government of Colombia, and M. Luis Alayza y
Paz Soldán, Doctor of Law, Professor, former Minister, Ambassador, II.—That the Republic of Peru, as the territorial State, is bound in the
for the Government of Peru. case now before the Court to give the guarantees necessary for the
The opening of the oral proceedings was fixed for September 26th, departure of M. Victor Raul Haya de la Torre from the country, with
1950. Public sittings were held by the Court on September 26th, 27th, due regard to the inviolability of his person."
28th and 29th and on October 2nd, 3rd, 6th and 9th, 1950. [p270] In
the course of the sittings, the Court heard statements by M. J. M. (on the counter-claim)
Yepes, Agent, and M. Alfredo Vasquez, Advocate, on behalf of the
Republic of Colombia, and by M. Carlos Sayan Alvarez, Agent, and "I. That the counter-claim presented by the Peruvian Government on
M. Georges Scelle, Counsel, on behalf of the Republic of Peru. March 21st, 1950, is not admissible because of its lack of direct
connexion with the Application of the Colombian Government;
At the end of the written proceedings the Parties had presented the
following submissions : 2. That the new counter-claim, irregularly presented on October 3rd,
1950, in the form of a submission upon allegations made during the
On behalf of Colombia (submissions contained in the Reply): oral debate, is not admissible on the grounds that:

"May it please the Court (a) It was presented in violation of Article 63 of the Rules of Court;

To dismiss the submissions of the Government of the Republic of (b) The Court has no jurisdiction to take cognizance of it;
Peru,
(c) It has no direct connexion with the Application of the Colombian
To adjudge and declare: Government."

In accordance with the submissions presented by the Government of On behalf of Peru:

the Republic of Colombia in its Memorial of January 10th, 1950, which
was submitted to the Court on the same date, and "May it please the Court
Rejecting all contrary submissions,
To set aside submissions I and II of the Colombian Memorial.
I. That the Republic of Colombia, as the country granting asylum, is
competent to qualify the offence for the purpose of the said asylum, To set aside the submissions which were presented by the Agent of
within the limits of the obligations resulting in particular from the the Colombian Government at the end of his oral statement on
Bolivarian Agreement on Extradition of July 18th, 1911, and the October 6th, 1950, in regard to the counter-claim of the Government
Convention on Asylum of February 20th, r928, and of American of Peru, and which were repeated in his letter of October 7th, 1950.
international law in general;
To adjudge and declare,
II. That the Republic of Peru, as the territorial State, is bound in the
case now before the Court to give the guarantees necessary for the As a counter-claim, under Article 63 of the Rules of Court and in the
departure of M. Victor Raul Haya de la Torre from the country, with same decision, that the grant of asylum by the Colombian
due regard to the inviolability of his person." Ambassador at Lima to Victor Raul Haya de la Torre was made in
violation of Article r, paragraph r, and of Article 2, paragraph 2, item 1
On behalf of Peru (submissions contained in the Rejoinder): (inciso primer0), of the Convention on Asylum signed in r928, and that
in any case the maintenance of the asylum constitutes at the present
"May it please the Court time a violation of that treaty."

To set aside the submissions of the Government of the Republic of *** [p272]
Colombia;
On October 3rd, 1948, a military rebellion broke out in Peru. It was
To adjudge and declare: suppressed on the same day and investigations were at once opened.

As a counter-claim, under Article 63 of the Rules of Court, and in the On October 4th, the President of the Republic issued a decree in the
same decision, that the grant of asylum by the Colombian recitals of which a political party, the American People's Revolutionary
Ambassador at Lima to Victor Raul Haya de la Torre was made in Alliance, was charged with having organized and directed the
violation of Article 1, paragraph r, and Article 2, paragraph 2, item 1 rebellion. The decree consequently enacted that this party had placed
(inciso primero), of the Convention on Asylum signed at Havana in itself outside the law, that it would henceforth not be permitted to
1928." exercise any kind of. activity, and that its leaders would be brought to
justice in the national courts as instigators of the rebellion.
At the end of the oral statements, the Agent for the Government of Simultaneously, the head of the Judicial Department of the Navy
Peru having made an addition to the submissions in the Pleadings, issued an order requiring the Examining Magistrate to open at once
the following final submissions were presented to the Court orally and an enquiry as to the facts constituting the crime of military rebellion.
confirmed in writing:
On October 5th, the Minister of the Interior addressed to the Minister
On behalf of Colombia: for the Navy a "note of denunciation" against the leader of the
American People's Revolutionary Alliance, Victor Raiil Haya de la
(on the claim) [p271] Torre, and other members of the party as responsible for the rebellion.
This denunciation was approved on the same day by the Minister for
"May it please the Court the Navy and on October 10th by the Public Prosecutor, who stated
that the subject-matter of the proceedings was the crime of military
2
rebellion.
On October nth, the Examining Magistrate issued an order for the
opening of judicial proceedings against Haya de la Torre and others
"in respect of the crime of military rebellion with which they are
charged in the 'denunciation' ", and on October 25th he ordered the
arrest of the persons "denounced" who had not yet been detained.
On October 27th, a Military Junta made a coup d'etat and seized the
supreme power. This Military Junta of the Government issued on
November 4th a decree providing for Courts-Martial for summary
procedure in cases of rebellion, sedition and rioting, fixing short time-
limits and severe punishment without appeal.
This decree was not applied to the judicial proceedings against Haya
de la Torre and others. These proceedings continued under the same
jurisdiction as theretofore. This is shown by a note of November 8th
from the Examining Magistrate requesting the production of certain
documents, by a note of November 13th from the Head of the
Investigation and Surveillance Service to the Examining Magistrate
stating that Haya de la Torre and others were not arrested as they
could not be found, and by an Order by the Examining Magistrate of
the same date requiring the defaulters to be cited by public summons.
On November 16th and the two subsequent days, the summons was
published in the official gazette El Peruano, requiring "the accused
persons who are in default" — Haya de la Torre and others-—to
report to the office of the Examining Magistrate to answer the
accusation brought against [p273] them "for the crime of military
rebellion". Haya de la Torre did not report, and the facts brought to the
knowledge of the Court do not show that any further measures were
taken against him.
On October 4th, the day after the military rebellion, a state of siege
was declared, suspending certain constitutional rights; it was renewed
on November 2nd and December 2nd, 1948, and on January 2nd,
1949.
On January 3rd, 1949, Haya de la Torre sought asylum in the
Colombian Embassy in Lima. On the next day, the Colombian
Ambassador sent the following note to the Peruvian Minister for
Foreign Affairs and Public Worship:
"I have the honour to inform Your Excellency, in accordance with what
is provided in Article 2, paragraph 2, of the Convention on Asylum
signed by our two countries in the city of Havana in the year 1928,
that Señor Víctor Raúl Haya de la Torre has been given asylum at the
seat of this mission as from 9 p.m. yesterday.
In view of the foregoing, and in view of the desire of this Embassy that
Señor Haya de la Torre should leave Peru as early as possible, I
request Your Excellency to be good enough to give orders for the
requisite safe-conduct to be issued, so that Señor Haya de la Torre
may leave the country with the usual facilities attaching to the right of
diplomatic asylum."
On January 14th, the Ambassador sent to the Minister a further note
as follows:
"Pursuant to instructions received from the Chancellery of my country,
I have the honour to inform Your Excellency that the Government of
Colombia, in accordance with the right conferred upon it by Article 2 of
the Convention on Political Asylum signed by our two countries in the
city of Montevideo on December 26th, 1933, has qualified Señor
Víctor Raúl Haya de la Torre as a political refugee."
A diplomatic correspondence followed, leading up to the Act of Lima
of August 31st, 1949, whereby the dispute which had arisen between
the two Governments was referred to the Court.
***
The Colombian Government has presented two submissions, of which
the first asks the Court to adjudge and declare
"That the Republic of Colombia, as the country granting asylum, is
3
competent to qualify the offence for the purpose of the said asylum,
within the limits of the obligations resulting in particular from the
Bolivarian Agreement on Extradition of July 18th, 1911, and the
Convention on Asylum of February 20th, 192S, and of American
international law in general."
If the Colombian Government by this submission intended to allege
that Colombia, as the State granting asylum, is competent [p274] to
qualify the offence only provisionally and without binding effect for
Peru, the solution would not remain a matter of doubt. It is evident that
the diplomatic representative who has to determine whether a refugee
is to be granted asylum or not must have the competence to make
such a provisional qualification of any offence alleged to have been
committed by the refugee. He must in fact examine the question
whether the conditions required for granting asylum are fulfilled. The
territorial State would not thereby be deprived of its right to contest the
qualification. In case of disagreement between the two States, a
dispute would arise which might be settled by the methods provided
by the Parties for the settlement of their disputes.
This is not, however, the meaning which the Colombian Government
has put on its submission. It has not claimed the right of qualification
for the sole purpose of determining its own conduct. The written and
oral arguments submitted on behalf of that Government show that its
claim must be understood in the sense that Colombia, as the State
granting asylum, is competent to qualify the nature of the offence by a
unilateral and definitive decision binding on Peru. Colombia has
based this submission partly on rules resulting from agreement, partly
on an alleged custom.
The Colombian Government has referred to the Bolivarian Agreement
of 1911, Article 18, which is framed in the following terms:
"Aside from the stipulations of the present Agreement, the signatory
States recognize the institution of asylum in conformity with the
principles of international law."
In recognizing "the institution of asylum", this article merely refers to
the principles of international law. But the principles of international
law do not recognize any rule of unilateral and definitive qualification
by the State granting diplomatic asylum.
The Colombian Government has also relied on Article 4 of this
Agreement concerning extradition of a criminal refugee from the
territory of the State in which he has sought refuge. The arguments
submitted in this respect reveal a confusion between territorial asylum
(extradition), on the one hand, and diplomatic asylum, on the other.
In the case of extradition, the refugee is within the territory of the State
of refuge. A decision with regard to extradition implies only the normal
exercise of the territorial sovereignty. The refugee is outside the
territory of the State where the offence was committed, and a decision
to grant him asylum in no way derogates from the sovereignty of that
State.
In the case of diplomatic asylum, the refugee is within the territory of
the State where the offence was committed. A decision to grant
diplomatic asylum involves a derogation from the [p275] sovereignty
of that State. It withdraws the offender from the jurisdiction of the
territorial State and constitutes an intervention in matters which are
exclusively within the competence of that State. Such a derogation
from territorial sovereignty cannot be recognized unless its legal basis
is established in each particular case.
For these reasons, it is not possible to deduce from the provisions of
agreements concerning extradition any conclusion which would apply
to the question now under consideration.
The Colombian Government further relies on the Havana Convention
on Asylum of 1928. This Convention lays down certain rules relating
to diplomatic asylum, but does not contain any provision conferring on
the State granting asylum a unilateral competence to qualify the
offence with definitive and binding force for the territorial State. The
Colombian Government contends, however, that such a competence
is implied in that Convention and is inherent in the institution of
asylum.
A competence of this kind is of an exceptional character. It involves a
derogation from the equal rights of qualification which, in the absence
of any contrary rule, must be attributed to each of the States
concerned; it thus aggravates the derogation from territorial
sovereignty constituted by the exercise of asylum. Such a
competence is not inherent in the institution of diplomatic asylum. This
institution would perhaps be more effective if a rule of unilateral and
definitive qualification were applied. But such a rule is not essential to
the exercise of asylum.
These considerations show that the alleged right of unilateral and
definitive qualification cannot be regarded as recognized by
implication in the Havana Convention. Moreover, this Convention, in
pursuance of the desire expressed in its preamble of "fixing the rules"
which the Governments of the States of America must observe for the
granting of asylum, was concluded with the manifest intention of
preventing the abuses which had arisen in the previous practice, by
limiting the grant of asylum. It did so in a number of ways and in terms
which are unusually restrictive and emphatic ("It is not permissible for
States...."; "Asylum may not be granted except in urgent cases and for
the period of time strictly indispensable....", etc.).
The Colombian Government has invoked Article 2, paragraph 1, of the
Havana Convention, which is framed in the following terms:
"Asylum granted to political offenders in legations, warships, military
camps or military aircraft, shall be respected to the extent in which
allowed as a right or through humanitarian toleration, by the usages,
the conventions or the laws of the country in which granted and in
accordance with the following provisions:" [p276]
This provision has been interpreted by that Government in the sense
that the usages, conventions and laws of Colombia relating to the
qualification of the offence can be invoked against Peru. This
interpretation, which would mean that the extent of the obligation of
one of the signatory States would depend upon any modifications
which might occur in the law of another, cannot be accepted. The
provision must be regarded as a limitation of the extent to which
asylum shall be respected. What the provision says in effect is that
the State of refuge shall not exercise asylum to a larger extent than is
warranted by its own usages, conventions or laws and that the asylum
granted must be respected by the territorial State only where such
asylum would be permitted according to the usages, conventions or
laws of the State of refuge. Nothing therefore can be deduced from
this provision in so far as qualification is concerned.
The Colombian Government has further referred to the Montevideo
Convention on Political Asylum of 1933. It was in fact this Convention
which was invoked in the note of January 14th, 1949, from the
Colombian Ambassador to the Peruvian Minister for Foreign Affairs. It
is argued that, by Article 2 of that Convention, the Havana Convention
of 1928 is interpreted in the sense that the qualification of a political
offence appertains to the State granting asylum. Articles 6 and 7 of
the Montevideo Convention provide that it shall be ratified and will
enter into force as and when the ratifications are deposited. The
Montevideo Convention has not been ratified by Peru, and cannot be
invoked against that State. The fact that it was considered necessary
to incorporate in that Convention an article accepting the right of
unilateral qualification, seems to indicate that this solution was
regarded as a new rule not recognized by the Havana Convention.
Moreover, the preamble of the Montevideo Convention states in its
Spanish, French and Portuguese texts that it modifies the Havana
Convention. It cannot therefore be considered as representing merely
an interpretation of that Convention.
The Colombian Government has finally invoked "American
international law in general". In addition to the rules arising from
agreements which have already been considered, it has relied on an
alleged regional or local custom peculiar to Latin-American States.
The Party which relies on a custom of this kind must prove that this
custom is established in such a manner that it has become binding on
the other Party. The Colombian Government must prove that the rule
4
invoked by it is in accordance with a constant and uniform usage
practised by the States in question, and that this usage is the
expression of a right appertaining to the State granting asylum and a
duty incumbent on the territorial State. This follows from Article 38 of
the Statute of the Court, which refers to [p277] international custom
"as evidence of a general practice accepted as law".
In support of its contention concerning the existence of such a
custom, the Colombian Government has referred to a large number of
extradition treaties which, as already explained, can have no bearing
on the question now under consideration. It has cited conventions and
agreements which do not contain any provision concerning the
alleged rule of unilateral and definitive qualification such as the
Montevideo Convention of 1889 on international penal law, the
Bolivarian Agreement of 1911 and the Havana Convention of 1928. It
has invoked conventions which have not been ratified by Peru, such
as the Montevideo Conventions of 1933 and 1939. The Convention of
1933 has, in fact, been ratified by not more than eleven States and
the Convention of 1939 by two States only.
It is particularly the Montevideo Convention of 1933 which Counsel for
the Colombian Government has also relied on in this connexion. It is
contended that this Convention has merely codified principles which
were already recognized by Latin-American custom, and that it is valid
against Peru as a proof of customary law. The limited number of
States which have ratified this Convention reveals the weakness of
this argument, and furthermore, it is invalidated by the preamble
which states that this Convention modifies the Havana Convention.
Finally, the Colombian Government has referred to a large number of
particular cases in which diplomatic asylum was in fact granted and
respected. But it has not shown that the alleged rule of unilateral and
definitive qualification was invoked or—if in some cases it was in fact
invoked—that it was, apart from conventional stipulations, exercised
by the States granting asylum as a right appertaining to them and
respected by the territorial States as a duty incumbent on them and
not merely for reasons of political expediency. The facts brought to
the knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise of
diplomatic asylum and in the official views expressed on various
occasions, there has been so much inconsistency in the rapid
succession of conventions on asylum, ratified by some States and
rejected by others, and the practice has been so much influenced by
considerations of political expediency in the various cases, that it is
not possible to discern in all this any constant and uniform usage,
accepted as law, with regard to the alleged rule of unilateral and
definitive qualification of the offence.
The Court cannot therefore find that the Colombian Government has
proved the existence of such a custom. But even if it could be
supposed that such a custom existed between certain Latin-Ameri-
can States only, it could not be invoked against Peru which, far [p278]
from having by its attitude adhered to it, has, on the contrary,
repudiated it by refraining from ratifying the Montevideo Conventions
of 1933 and 1939, which were the first to include a rule concerning the
qualification of the offence in matters of diplomatic asylum.
In the written Pleadings and during the oral proceedings, the
Government of Colombia relied upon official communiques published
by the Peruvian Ministry of Foreign Affairs on October 13th and 26th,
1948, and the Government of Peru relied upon a Report of the
Advisory Committee of the Ministry of Foreign Affairs of Colombia
dated September 2nd, 1937; on the question of qualification, these
documents state views which are contrary to those now maintained by
these Governments. The Court, whose duty it is to apply international
law in deciding the present case, cannot attach decisive importance to
any of these documents.
For these reasons, the Court has arrived at the conclusion that
Colombia, as the State granting asylum, is not competent to qualify
the offence by a unilateral and definitive decision, binding on Peru.
***
In its second submission, the Colombian Government asks the Court
to adjudge and declare:

"That the Republic of Peru, as the territorial State, is bound in the
case now before the Court, to give the guarantees necessary for the
departure of M. Victor Raul Haya de la Torre from the country, with
due regard to the inviolability of his person."
This alleged obligation of the Peruvian Government does not entirely
depend on the answer, given to the first Colombian submission
relating to. the unilateral and definitive qualification of the offence. It
follows from the first two articles of the Havana Convention that, even
if such a right of qualification is not admitted, the Colombian
Government is entitled to request a safe-conduct under certain
conditions.
The first condition is that asylum has been regularly granted and
maintained. It can be granted only to political offenders who are not
accused or condemned for common crimes and only in urgent cases
and for the time strictly indispensable for the safety of the refugee.
These points relate to the Peruvian counterclaim and will be
considered later to the extent necessary for the decision of the
present case.
The second condition is laid down in Article 2 of the Havana
Convention: [p279]
"Third: The Government of the State may require that the refugee be
sent out of the national territory within the shortest time possible; and
the diplomatic agent of the country who has granted asylum may in
turn require the guarantees necessary for the departure of the refugee
from the country with due regard to the inviolability of his person."
If regard is had, on the one hand, to the structure of this provision
which indicates a successive order, and, on the other hand, to the
natural and ordinary meaning of the words "in turn", this provision can
only mean that the territorial State may require that the refugee be
sent out of the country, and that only after such a demand can the
State granting asylum require the necessary guarantees as a
condition of his being sent out. The provision gives, in other words,
the territorial State an option to require the departure of the refugee,
and that State becomes bound to grant a safe-conduct only if it has
exercised this option.
A contrary interpretation would lead, in the case now before the Court,
to the conclusion that Colombia would be entitled to decide alone
whether the conditions provided by Articles i and 2 of the Convention
for the regularity of asylum are fulfilled. Such a consequence
obviously would be incompatible with the legal situation created by the
Convention.
There exists undoubtedly a practice whereby the diplomatic
representative who grants asylum immediately requests a safe-
conduct without awaiting a request from the territorial State for the
departure of the refugee. This procedure meets certain requirements:
the diplomatic agent is naturally desirous that the presence of the
refugee on his premises should not be prolonged; and the
government of the country, for its part, desires in a great number of
cases that its political opponent who has obtained asylum should
depart. This concordance of views suffices to explain the practice
which has been noted in this connexion, but this practice does not and
cannot mean that the State, to whom such a request for a safe-
conduct has been addressed, is legally bound to accede to it.
In the present case, the Peruvian Government has not requested that
Haya de la Torre should leave Peru. It has contested the legality of
the asylum granted to him and has refused to deliver a safe-conduct.
In such circumstances the Colombian Government is not entitled to
claim that the Peruvian Government should give the guarantees
necessary for the departure of Haya de la Torre from the country, with
due regard to the inviolability of his person.
The counter-claim of the Government of Peru was stated in its final
form during the oral statement of October 3rd, 1950, in the following
terms: [p280]
"May it please the Court:
5
To adjudge and declare as a counter-claim under Article 63 of the
Rules of Court, and in the same decision, that the grant of asylum by
the Colombian Ambassador at Lima to Victor Raul Haya de la Torre
was made in violation of Article 1, paragraph 1, and Article 2,
paragraph 2, item 1 (inciso primero), of the Convention on Asylum
signed in 1928, and that in any case the maintenance of the asylum
constitutes at the present time a violation of that treaty."
As has already been pointed out, the last part of this sentence: "and
that in any case the maintenance of the asylum constitutes at the
present time a violation of that treaty", did not appear in the counter-
claim presented by the Government of Peru in the Counter-Memorial.
The addition was only made during the oral proceedings. The Court
will, first consider the counter-claim in its original form.
This counter-claim is intended, in substance, to put an end to the
dispute by requesting the Court to declare that asylum was wrongfully
given, the grant of asylum being contrary to certain provisions of the
Havana Convention. The object of the counter-claim is simply to
define for this purpose the legal relations which that Convention has
established between Colombia and Peru. The Court observes in this
connexion that the question of the possible surrender of the refugee to
the territorial authorities is in no way raised in the counter-claim. It
points out that the Havana Convention, which provides for the
surrender to those authorities of persons accused of or condemned
for common crimes, contains no similar provision in respect of political
offenders. The Court notes, finally, that this question was not raised
either in the diplomatic correspondence submitted by the Parties or at
any moment in the proceedings before the Court, and in fact the
Government of Peru has not requested that the refugee should be
surrendered.
It results from the final submissions of the Government of Colombia,
as formulated before the Court on October 6th, 1950, that that
Government did not contest the jurisdiction of the Court in respect of
the original counter-claim; it did so only in respect of the addition
made during the oral proceedings. On the other hand, relying upon
Article 63 of the Rules of Court, the Government of Colombia has
disputed the admissibility of the counter-claim by arguing that it is not
directly connected with the subject-matter of the Application. In its
view, this lack of connexion results from the fact that the counter-claim
raises new problems and thus tends to shift the grounds of the
dispute.
The Court is unable to accept this view. It emerges clearly from the
arguments of the Parties that the second submission of the
Government of Colombia, which concerns the demand for a safe-
conduct, rests largely on the alleged regularity of the asylum, which is
precisely what is disputed by the counter-claim. The connexion is so
direct that certain conditions which are required to exist before a safe-
conduct can be demanded depend precisely on facts [p281] which are
raised by the counter-claim. The direct connexion being thus clearly
established, the sole objection to the admissibility of the counter-claim
in its original form is therefore removed.
Before examining the question whether the counter-claim is well
founded, the Court must state in precise terms what meaning it
attaches to the words "the grant of asylum" which are used therein.
The grant of asylum is not an instantaneous act which terminates with
the admission, at a given moment, of a refugee to an embassy or a
legation. Any grant of asylum results in, and in consequence logically
implies, a state of protection; the asylum is granted as long as the
continued presence of the refugee in the embassy prolongs this
protection. This view, which results from the very nature of the
institution of asylum, is further confirmed by the attitude of the Parties
during this case. The counter-claim, as it appears in the Counter-
Memorial of the Government of Peru, refers expressly to Article 2,
paragraph 2, of the Havana Convention, which provides that asylum
may not be granted except "for the period of time strictly
indispensable". Such has also been the view of the Government of
Colombia; its Reply shows that, in its opinion, as in that of the
Government of Peru, the reference to the above-mentioned provision
of the Havana Convention raises the question of "the duration of the
refuge".
The Government of Peru has based its counter-claim on two different
grounds which correspond respectively to Article I, paragraph I, and
Article 2, paragraph 2, of the Havana Convention.
Under Article 1, paragraph 1, "It is not permissible for States to grant
asylum .... to persons accused or condemned for common crimes....".
The onus of proving that Haya de la Torre had been accused or
condemned for common crimes before the grant of asylum rested
upon Peru.
The Court has no difficulty in finding, in the present case, that the
refugee was an "accused person" within the meaning of. the Havana
Convention, inasmuch as the evidence presented by the Government
of Peru appears conclusive in this connexion. It can hardly be agreed
that the term "accused" occurring in a multilateral treaty such as that
of Havana has a precise and technical connotation, which would have
the effect of subordinating the definition of "accused" to the
completion of certain strictly prescribed steps in procedure, which
might differ from one legal system to another.
On the other hand, the Court considers that the Government of Peru
has not proved that the acts of which the refugee was accused before
January 3rd/4th, 1949, constitute common crimes. From the point of
view of the application of the Havana Convention, it is the terms of the
accusation, as formulated by the legal authorities before the grant of
asylum, that must alone be considered. As has been shown in the
recital of the facts, the sole accusation contained in all the documents
emanating from the Peruvian legal authorities [p282] is that of military
rebellion, and the Government of Peru has not established that
military rebellion in itself constitutes a common crime. Article 248 of
the Peruvian Code of Military Justice of 1939 even tends to prove the
contrary, for it makes a distinction between military rebellion and
common crimes by providing that : "Common crimes committed
during the course of, and in connexion with, a rebellion, shall be
punishable in conformity with the laws, irrespective of the rebellion."
These considerations lead to the conclusion that the first objection
made by the Government of Peru against the asylum is not justified
and that on this point the counter-claim is not well founded and must
be dismissed.
The Government of Peru relies, as a second basis for its
counterclaim, upon the alleged disregard of Article 2, paragraph 2, of
the Havana Convention, which provides as follows: "Asylum may not
be granted except in urgent cases and for the period of time strictly
indispensable for the person who has sought asylum to ensure in
some other way his safety."
Before proceeding to an examination of this provision, the Court
considers it necessary to make the following remark concerning the
Havana Convention in general and Article 2 in particular.
The object of the Havana Convention, which is the only agreement
relevant to the present case, was, as indicated in its preamble, to fix
the rules which the signatory States must observe for the granting of
asylum in their mutual relations. The intention was, as has been
stated above, to put an end to the abuses which had arisen in the
practice of asylum and which were likely to impair its credit and
usefulness. This is borne out by the wording of Articles 1 and 2 of the
Convention which is at times prohibitive and at times clearly
restrictive.
Article 2 refers to asylum granted to political offenders and lays down
in precise terms the conditions under which asylum granted to such
offenders shall be respected by the territorial State. It is worthy of note
that all these conditions are designed to give guarantees to the
territorial State and appear, in the final analysis, as the consideration
for the obligation which that State assumes to respect asylum, that is,
to accept its principle and its consequences as long as it is regularly
maintained.
At the head of the list of these conditions appears Article 2, paragraph
2, quoted above. It is certainly the most important of them, the
essential justification for asylum being in the imminence or
persistence of a danger for the person of the refugee. It was
6
incumbent upon the Government of Colombia to submit proof of facts
to show that the above-mentioned condition was fulfilled.
It has not been disputed by the Parties that asylum may be granted on
humanitarian grounds in order to protect political offenders against the
violent and disorderly action of irresponsible [p283] sections of the
population. It has not been contended by the Government of
Colombia that Haya de la Torre was in such a situation at the time
when he sought refuge in the Colombian Embassy at Lima. At that
time, three months had elapsed since the military rebellion. This long
interval gives the present case a very special character. During those
three months, Haya de la Torre had apparently been in hiding in the
country, refusing to obey the summons to appear of the legal
authorities which was published on November i6th/i8th, 1948, and
refraining from seeking asylum in the foreign embassies where
several of his co-accused had found refuge before these dates. It was
only on January 3rd, 1949, that he sought refuge in the Colombian
Embassy. The Court considers that, prima jacie, such circumstances
make it difficult to speak of urgency.
The diplomatic correspondence between the two Governments does
not indicate the nature of the danger which was alleged to threaten
the refugee. Likewise, the Memorial of the Government of Colombia
confines itself to stating that the refugee begged the Ambassador to
grant him the diplomatic protection of asylum as his freedom and life
were in jeopardy. It is only in the written Reply that the Government of
Colombia described in more precise terms the nature of the danger
against which the refugee intended to request the protection of the
Ambassador. It was then claimed that this danger resulted in
particular from the abnormal political situation existing in Peru,
following the state of siege proclaimed on October 4th, 1948, and
renewed successively on November 2nd, December 2nd, 1948, and
January 2nd, 1949; that it further resulted from the declaration of "a
state of national crisis" made on October 25th, 1948, containing
various statements against the American People's Revolutionary
Alliance of which the refugee was the head ; from the outlawing of this
Party by the decree of October 4th, 1948; from the Order issued by
the acting Examining Magistrate for the Navy on November 13th,
1948, requiring the defaulters to be cited by public summons; from the
decree of November 4th, 1948, providing for Courts-Martial to judge
summarily, with the option of increasing the penalties and without
appeal, the authors, accomplices and others responsible for the
offences of rebellion, sedition or mutiny.
From these facts regarded as a whole the nature of the danger now
becomes clear, and it is upon the urgent character of such a danger
that the Government of Colombia seeks to justify the asylum—the
danger of political justice by reason of the subordination of the
Peruvian judicial authorities to the instructions of the Executive.
It is therefore necessary to examine whether, and, if so, to what
extent, a danger of this kind can serve as a basis for asylum. [p284]
In principle, it is inconceivable that the Havana Convention could have
intended the term "urgent cases" to include the danger of regular
prosecution to which the citizens of any country lay them-selves open
by attacking the institutions of that country; nor can it be admitted that
in referring to "the period of time strictly indispensable for the person
who has sought asylum to ensure in some other way his safety", the
Convention envisaged protection from the operation of regular legal
proceedings.
It would be useless to seek an argument to the contrary in Article 1 of
the Havana Convention which forbids the grant of asylum to persons
"accused or condemned for common crimes" and directs that such
persons shall be surrendered immediately upon request of the local
government. It is not possible to infer from that provision that,
because a person is accused of political offences and not of common
crimes, he is, by that fact alone, entitled to asylum. It is clear that such
an inference would disregard the requirements laid down by Article 2,
paragraph 2, for the grant of asylum to political offenders.
In principle, therefore, asylum cannot be opposed to the operation of
justice. An exception to this rule can occur only if, in the guise of
justice, arbitrary action is substituted for the rule of law. Such would
be the case if the administration of justice were corrupted by
measures clearly prompted by political aims. Asylum protects the
political offender against any measures of a manifestly extra-legal
character which a government might take or attempt to take against
its political opponents. The word "safety", which in Article 2,
paragraph 2, determines the specific effect of asylum granted to
political offenders, means that the refugee is protected against
arbitrary action by the government, and that he enjoys the benefits of
the law. On the other hand, the safety which arises out of asylum
cannot be construed as a protection against the regular application of
the laws and against the jurisdiction of legally constituted tribunals.
Protection thus understood would authorize the diplomatic agent to
obstruct the application of the laws of the country whereas it is his
duty to respect them ; it would in fact become the equivalent of an
immunity, which was evidently not within the intentions of the
draftsmen of the Havana Convention.
It is true that successive decrees promulgated by the Government of
Peru proclaimed and prolonged a state of siege in that country ; but it
has not been shown that the existence of a state of siege implied the
subordination of justice to the executive authority, or that the
suspension of certain constitutional guarantees entailed the abolition
of judicial guarantees. As for the decree of November 4th, 1948,
providing for Courts-Martial, it contained no indication which might be
taken to mean that the new provisions would apply retroactively to
offences committed prior to the publication of the said decree. In fact,
this decree was not applied to the legal proceedings against Haya de
la Torre, as appears from the foregoing recital [p285] of the facts. As
regards the future, the Court places on record the following
declaration made on behalf of the Peruvian Government:
"The decree in question is dated November 4th, 1948, that is, it was
enacted one month after the events which led to the institution of
proceedings against Haya de la Torre. This decree was intended to
apply to crimes occurring after its publication, and nobody in Peru
would ever have dreamed of utilizing it in the case to which the
Colombian Government clumsily refers, since the principle that laws
have no retroactive effect, especially in penal matters, is broadly
admitted in that decree. If the Colombian Government's statement on
this point were true, the Peruvian Government would never have
referred this case to the International Court of Justice."
This declaration, which appears in the Rejoinder, was confirmed by
the Agent for the Government of Peru in his oral statement of October
2nd, 1950.
The Court cannot admit that the States signatory to the Havana
Convention intended to substitute for the practice of the Latin-
American republics, in which considerations of courtesy, good-
neighbourliness and political expediency have always held a
prominent place, a legal system which would guarantee to their own
nationals accused of political offences the privilege of evading
national jurisdiction. Such a conception, moreover, would come into
conflict with one of the most firmly established traditions of Latin
America, namely, non-intervention. It was at the Sixth Pan-American
Conference of 1928, during which the Convention on Asylum was
signed, that the States of Latin America declared their resolute
opposition to any foreign political intervention. It would be difficult to
conceive that these same States had consented, at the very same
moment, to submit to intervention in its least acceptable form, one
which implies foreign interference in the administration of domestic
justice and which could not manifest itself without casting some doubt
on the impartiality of that justice.
Indeed the diplomatic correspondence between the two Governments
shows the constant anxiety of Colombia to remain, in this field as
elsewhere, faithful to the tradition of non-intervention. Colombia did
not depart from this attitude, even when she found herself confronted
with an emphatic declaration by the Peruvian Minister for Foreign
Affairs asserting that the tribunal before which Haj'a de la Torre had
been summoned to appear was in conformity with the general and
permanent organization of Peruvian judicial administration and under
the control of the Supreme Court. This assertion met with no
contradiction or reservation on the part of Colombia. It was only much
later, following the presentation of the Peruvian counter-claim, that the
7
Government of Colombia chose, [p286] in the Reply and during the
oral proceedings, to transfer the defence of asylum to a plane on
which the Havana Convention, interpreted in the light of the most
firmly established traditions of Latin America, could provide it with no
foundation.
The foregoing considerations lead us to reject the argument that the
Havana Convention was intended to afford a quite general protection
of asylum to any person prosecuted for political offences, either in the
course of revolutionary events, or in .the more or less troubled times
that follow, for the sole reason that it must be assumed that such
events interfere with the administration of justice. It is clear that the
adoption of such a criterion would lead to foreign interference of a
particularly offensive nature in the domestic affairs of States; besides
which, no confirmation of this criterion can be found in Latin-American
practice, as this practice has been explained to the Court.
In thus expressing itself, the Court does not lose sight of the
numerous cases of asylum which have been cited in the Reply of the
Government of Colombia and during the oral statements. In this
connexion, the following observations should be made:
In the absence of precise data, it is difficult to assess the value of
such cases as precedents tending to establish the existence of a legal
obligation upon a territorial State to recognize the validity of asylum
which has been granted against proceedings instituted by local
judicial authorities. The facts which have been laid before the Court
show that in a number of cases the persons who have enjoyed
asylum were not, at the moment at which asylum was granted, the
object of any accusation on the part of the judicial authorities. In a
more general way, considerations of convenience or simple political
expediency seem to have led the territorial State to recognize asylum
without that decision being dictated by any feeling of legal obligation.
If these remarks tend to reduce considerably the value as precedents
of the cases of asylum cited by the Government of Colombia, they
show, none the less, that asylum as practised in Latin America is an
institution which, to a very great extent, owes its development to
extra-legal factors. The good-neighbour relations between the
republics, the different political interests of the governments, have
favoured the mutual recognition of asylum apart from any clearly
defined juridical system. Even if the Havana Convention, in particular,
represents an indisputable reaction against certain abuses in practice,
it in no way tends to limit the practice of asylum as it may arise from
agreements between interested governments inspired by mutual
feelings of toleration and goodwill. [p287]
In conclusion, on the basis of the foregoing observations and
considerations, the Court considers that on January 3rd/4th, 1949,
there did not exist a danger constituting a case of urgency within the
meaning of Article 2, paragraph 2, of the Havana Convention.
This finding implies no criticism of the Ambassador of Colombia. His
decision to receive the refugee on the evening of January 3rd, 1949,
may have been taken without the opportunity of lengthy reflection; it
may have been influenced as much by the previous grant of safe-
conducts to persons accused together with Haya de la Torre as by the
more general consideration of recent events in Peru ; these events
may have led him to believe in the existence of urgency. But this
subjective appreciation is not the relevant element in the decision
which the Court is called upon to take concerning the validity of the
asylum ; the only important question to be considered here is the
objective existence of the facts, and it is this which must determine
the decision of the Court.
The notes of the Ambassador of Colombia of January 14th and
February 12th, 1949, reflect the attitude of the Government towards
the asylum granted by its Ambassador. The first of these confirms the
asylum and claims to justify its grant by a unilateral qualification of the
refugee. The second formulates a demand for a safe-conduct with a
view to permitting the departure of the refugee, and has based this
demand expressly on the "international obligations" alleged to be-
binding on the Government of Peru. In thus expressing itself, the
Government of Colombia definitively proclaimed its intention of
protecting Haya de la Torre, in spite of the existence of proceedings
instituted against him for military rebellion. It has maintained this
attitude and this protection by continuing to insist on the grant of a
safe-conduct, even when the Minister for Foreign Affairs of Peru Judges Alvarez, Badawi Pasha, Read and Azevedo, and M. Caicedo,
referred to the existence of "a judicial prosecution, instituted by the Judge ad hoc, declaring that they are unable to concur in certain
sovereign power of the State" against the refugee (notes of the points of the Judgment of the Court, have availed themselves of the
Minister for Foreign Affairs of Peru of March 19th, 1949; of the right conferred on them by Article 57 of the Statute and appended to
Ambassador of Colombia of March 28th, 1949). the Judgment statements of their dissenting opinions.

Thus, it is clearly apparent from this correspondence that the Court, in Judge Zoricic, whilst accepting the first three points of the operative
its appraisal of the asylum, cannot be confined to the date of January part of the Judgment and the reasons given in support, regrets to
3rd/4th, 1949, as the date on which it was granted. The grant, as has state that he is unable to agree with the last point of the operative
been stated above, is inseparable from the protection to which it gives part, as he considers that asylum was granted in conformity with
rise—a protection which has here assumed the form of a defence Article 2, paragraph 2, of the Havana Convention. On this point he
against legal proceedings. It therefore results that asylum has been shares the views expressed by Judge Read in his dissenting opinion.
granted for as long as the Government of Colombia has relied upon it
in support of its request for a safe-conduct. (Initialled) J. B.
(Initialled) G.-C.
The Court is thus led to find that the grant of asylum from January
3rd/4th, 1949, until the time when the two Governments agreed to
submit the dispute to its jurisdiction, has been prolonged for a reason
which is not recognized by Article 2, paragrajm 2, of the Havana [p290]
Convention. [p288] DISSENTING OPINION BY JUDGE ALVAREZ

This finding renders superfluous the addition to the counterclaim [Translation]

submitted during the oral proceedings and worded as follows: "and
that in any case the maintenance of the asylum constitutes at the
present time a violation of that treaty". This part of the submission, as
finally worded by the Government of Peru, was intended as a
substitution for the counter-claim in its original form if the latter were
rejected: it disappears with the allowance of this counter-claim. Hence
it will not be necessary for the Court to consider either the objection
on the ground of lack of jurisdiction or the objections on the grounds
of inadmissibility which the Government of Colombia has based on an
alleged disregard of Article 63 of the Rules of Court or to consider the
merits of the claim thus submitted by the Government of Peru.
I
Importance of.the Colombian-Peruvian Asylum case. Questions which
should be considered.
The dispute between Colombia and Peru concerning asylum is of
great importance for the countries of the New World who await the
Court's answer with lively interest. This dispute also presents
considerable importance for all the other countries, since asylum has
been written into the Universal Declaration of Human Rights, which
was adopted at the Third Assembly of the United Nations.

For these reasons, To have an exact idea of the case now before this Court, it is
necessary to consider, in addition to the facts, the following questions
The Court, in their broad outlines:

on the submissions of the Government of Colombia, I° Unilateral acts in international law. Their nature.

by fourteen votes to two, 2° Asylum in Europe. Asylum in Latin America. The social and political
Rejects the first submission in so far as it involves a right for environment in which asylum is practised in these countries.
Colombia, as the country granting asylum, to qualify the nature of the
offence by a unilateral and definitive decision, binding on Peru; 3° Does there exist an American international law? Characteristics of
this law, especially at the present time.
by fifteen votes to one,
4° Does there exist a customary American international law on asylum
Rejects the second submission; ? Conventional American international law on the subject.

on the counter-claim of the Government of Peru, 5° The Convention on Asylum which was adopted at the Sixth Pan-
American Conference of Havana in 1928 and was ratified by Peru and
by fifteen votes to one, Colombia. Scope of the provisions of this Convention.

Rejects it in so far as it is founded on a violation of Article i, paragraph II

I, of the Convention on Asylum signed at Havana in 1928;
Unilateral acts in international law. Their nature.
by ten votes to six,
A distinction must be made in international law between unilateral
Finds that the grant of asylum by the Colombian Government to Victor acts, or acts which are the result of the will of one State alone, and
Raul Haya de la Torre was not made in conformity with Article 2, multilateral acts in which the will of two or more States participate.
paragraph 2 ("First"), of that Convention. [p289]
Unilateral acts occupy an important place and play an important role
Done in French and English, the French text being authoritative, at the in international law. I shall not expatiate upon this point but shall
Peace Palace, The Hague, this twentieth day of November, one confine myself to giving three examples of this kind of act : I° those
thousand nine hundred and fifty, in three copies, one of which will be which concern the freedom of the individual and the sovereignty of
placed in the archives of the Court and the others transmitted to the States, on the one hand, and the sovereignty of one or more States,
Governments of the Republic of Colombia and of the Republic of Peru on the other; 2° some acts relating to conventional international law;
respectively. 30 certain acts which relate to politics. [p291]

(Signed) Basdevant, Acts under the first head refer particularly to the admission of aliens to
President. a State, immigration, refuge, asylum, extradition, internment and
expulsion, etc.
(Signed) Garnier-Coignet,
Deputy-Registrar. The acts of the second category arise in connexion with certain
8
conventions: the latter may be adhered to, denounced, etc.; Asylum, in these countries, is regarded as a consequence of the ex-
moreover, some conventions may contain certain special provisions territoriality of the premises on which it is granted and not as a
as, for instance, those excluding from arbitration those questions diplomatic protection ; it is consequently considered that such asylum
which related to the vital interests of the parties. in no way constitutes an intervention or a limitation of the sovereignty
of the territorial State, but rather that it is the legitimate exercise of a
Finally, in the third category are included unilateral acts qualifying prerogative.
certain individuals as persona grata or persona non grata, desirable or
undesirable, etc. Sometimes the government of the territorial State places a police
guard over the approaches of premises sheltering the refugee in order
In all the cases mentioned above, the appreciation of the facts or to prevent the latter from escaping from the local authorities, should
circumstances depends on the will of one of the parties. he leave his place of asylum.

In certain cases, this unilateral appreciation may not be disputed; it Sometimes, also, the diplomatic agent who has granted asylum
may at most be criticized. For example, in matters of immigration—an requests the local authorities to grant a safe-conduct enabling the
important economic and social phenomenon in the lives of American refugee to leave the country in safety.
countries—it is the State in which the immigrants wish to settle which
appreciates unilaterally whether they should be admitted and, if so, In leaving his place of asylum, with or without a safe-conduct, the
under what conditions. The result of such an appreciation may be refugee frequently intends to continue his activities from the country to
prejudicial to the interests of thousands of persons who wish to which he is proceeding ; and it has happened that certain politicians,
emigrate to these countries, as well as to the interests of their national after returning to the country which they had been forced to leave,
State; but nobody disputes the fact that the government of the have subsequently held very important office there, including even
receiving country has the right to act unilaterally and that its decisions that of head of the State.
cannot be disputed.
During revolutionary disturbances, common crimes or offences are
In other cases, the unilateral appreciation may be challenged by the frequently committed, such as murder, looting, arson, etc.
party concerned; this is precisely what happens in the case of asylum.
In view of the importance of asylum in Latin-American countries, these
All these unilateral acts in their above-mentioned form are the countries have followed certain practices and have regulated the
consequence of the individualistic regime and the absolute matter by conventions. By virtue of this fact, the institution of asylum is
sovereignty of States. To-day, under the new regime of part of what is termed American international law or rather Latin-
interdependence, which is now emerging, this matter must undergo American international law. [p293]
important changes which need not be considered here.

III Thus, asylum in Latin America should be considered in the light of the
environment to which I have just referred; it is with this environment in
Asylum in Europe. Asylum in the countries of Latin America. Social mind that we should interpret the provisions of conventions on
and political environment in which asylum is practised in these asylum, fill any gaps they may contain and examine the tendency
countries. which asylum ought to assume in the future.

Until the present day, asylum has been considered as a humanitarian IV

and transitory measure intended to protect individuals against angry Is there an American international law? Characteristics of that law,
mobs or even against the abusive actions of the authorities of the especially at the present time.
State on the territory of which they reside. Asylum has therefore a
juridical, political and psychological aspect, and this distinction has not In the written Pleadings and in the oral statements, reference has
always been properly made. been made to American international law and its existence has been
recognized ; but opinions have been expressed concerning its nature,
No precise rules have been laid down in international law in respect of content and future, which make a clarification necessary. This
asylum. There has been general agreement, however, on two points: clarification is of special importance for America.
asylum shall be granted only to political offenders and not to persons
guilty or accused of having committed a common [p292] crime, and In the present case, Colombia has asked that the principles of
that the State of refuge is competent to appreciate provisionally the American international law be applied to the solution of the present
nature of the offence committed by the refugee. case and that the international spirit of the continent be also taken into
Asylum has been practised in Europe ; but since the middle of the consideration.
xixth century it is especially the countries of Latin America which have
resorted to asylum because of the frequent revolutions and civil wars As far as international law is concerned, the States of America have,
in certain of those countries. since their independence, wished to modify that law so as to bring it
into harmony with the interests and aspirations of their continent. Pan-
In this connexion, it is essential to make a preliminary observation. American conferences, particularly that of Buenos Aires in 1936 and
that of Lima in 1948, proclaimed certain principles as belonging to
In order to understand an institution and to give an adequate solution American international law.
to the questions which it raises, it is necessary to know the political
and social environment which gave it birth, and to consider how the This expression "American international law" has been accepted in
institution has been applied. various ways which need not be mentioned here. This expression
does not mean, as may appear at first sight and as many would have
The Latin-American environment is very different, in matters of us believe, an international law which is peculiar to the New World
asylum, from the European environment. and entirely distinct from universal international law, but rather the
complex of principles, conventions, customs, practices, institutions
The aim of the revolutionary movements which occur in certain Latin- and doctrines which are peculiar to the Republics of the New World.
American countries is either to change the existing political order, or Certain jurists have sought to call this complex the "peculiarities of
to enable a "caudillo" to assume power. The leaders of such international law in America". This is merely a question of terminology.
movements consider that they will be able, in the event of failure, to The designation "American international law" has triumphed.
seek refuge in foreign embassies or legations and asylum is readily
granted to them; it has sometimes even been granted to leaders of I have referred to the "Republics" of the New World because Canada,
barrack mutinies which had been quickly suppressed. which is a British Dominion, and the European colonies in America,
did not participate in Pan-Americanism or in the establishment of
9
American international law.
If certain precepts, which are held to be universal, are not accepted by
the countries of the American continent, it is obvious that they no
longer have that character; and if American precepts are not
recognized by the countries of other continents, they must be applied
only in the New World.[p294]
A principle, custom, doctrine, etc., need not be accepted by all of the
States of the New World in order to be considered as a part of
American international law. The same situation obtains in this case as
in the case of universal international law.
American international law is binding upon all the States of the New
World; it is also binding upon the States of other continents in matters
affecting America, such as immigration, the security zone of the
continent in time of war, etc.
American international law has its sub-divisions, such as, for instance,
Latin-American international law or the law of the Latin Republics of
the New World, which is not binding upon the United States.
American international law has exercised a considerable influence
over universal international law and has given it its peculiar character;
many concepts or doctrines of American origin have achieved or tend
to achieve universal acceptance and many concepts of a universal
nature have, or tend to have, a special application in the New World.
The influence of that law has increased since the last world war. The
number and especially the quality of the institutions and principles
which have lately appeared in America and which tend to be
incorporated in new international law is truly impressive.
Since the last social upheaval, there exist not only an American
international law, but also a European international law, and an Asian
international law is in the process of formation. And apart from these
three international continental systems of law, another important
international system of law is emerging— Soviet law.
It has been maintained during the hearing that American international
law—and consequently other international continental systems of law
—must be subordinated to universal international law, and Article 52
of the United Nations Charter has been invoked in support of this
view. Such a statement is not accurate. Article 52 in question refers
only to regional agreements relating to the maintenance of peace and
not to continental systems of law. Such systems of law are not
subordinate to universal international law, but correlated to it.
Universal international law thus finds itself to-day within the framework
of continental and regional law; and all such legal systems adopt new
trends in accordance with those indicated in the preamble and
Chapter I of the United Nations Charter; such trends reflect entirely
American, international spirit. [p295]
V Persons accused of or condemned for common crimes taking refuge
Does there exist a customary American international law on asylu ?
American international conventional law on the subject.
The institution of asylum is a part of Latin-American international law
because that institution is applied in the Latin countries of the New
World in a special manner; it is not part of the continental American
international law, since the United States have never admitted
asylum.
In view of the fact that asylum is utilized when the political order within
a country is disturbed, and inasmuch as the situation resulting from
this disorder may vary considerably, there is no customary American
international law of asylum properly speaking ; the existence of such a
law would suppose that the action taken by the Latin States of the
New World was uniform, which is not at all the case : governments
change their attitude according to circumstances and political
convenience.
But if there is no customary Latin-American international law on
asylum, there are certain practices or methods in applying asylum
which are followed by the States of Latin America. These may be
summarized as follows:
10
I° Asylum is granted only in cases of -political offence and not to
common criminals.
2° Asylum is granted in accordance with the laws and usages of the
State of refuge, and it is for the latter to appreciate whether the
offence committed by the refugee is a political offence or a common
crime.
3° The territorial State may request the departure of the refugee from
its territory and the State of refuge may then require the former State
to deliver a safe-conduct enabling the refugee to leave the country
safely.
4° The State which granted asylum sometimes, with the same end in
view, requests that a safe-conduct be issued to the refugee.
In view of the importance of asylum in Latin-American countries, the
matter has been regulated in a number of bilateral or multilateral
conventions.
The Latin-American States have signed in particular: the Bolivarian
Agreement on Extradition of July 18th, 1911 ; the Convention on
Asylum adopted at the Sixth Pan-American Conference of Havana,
192S ; the Convention on Political Asylum adopted at the Seventh
Pan-American Conference of Montevideo of 1933 ; the Treaty on
Political Asylum and Refuge adopted at the Second South-American
Congress of International Law at Montevideo in 1939. [p296]
As regards the first of these conventions which refers solely to
extradition, Colombia argues that it is also applicable to asylum in
view of Article 18, which lays down that "aside from the stipulations of
the present agreement, the signatory States recognize the institution
of asylum in conformity with the principles of international law". I
agree with the Court that this claim is unfounded.
VI
The Convention on Asylum which was adopted at the Sixth Pan-
American Conference of Havana in ig28 and ratified by Colombia and
Peru. Scope of its provisions.
It has been rightly argued that the solution to the present case must
be sought especially in the provisions of the Havana Convention of
1928 on Asylum, on the grounds that this Convention was ratified by
Colombia and Peru.
Article 1 of this Convention enacts:
"It is not permissible for States to grant asylum in legations, warships,
military camps or military aircraft, to persons accused or condemned
for common crimes, or to deserters from the army or navy.
in any of the places mentioned in the preceding paragraph, shall be
surrendered upon request of the local government...."
Article 2 provides:
"Asylum granted to political offenders in legations, warships, military
camps or military aircraft, shall be respected to the extent in which
allowed, as a right or through humanitarian toleration, by the usages,
the conventions or the laws of the country in which granted and in
accordance with the following provisions:
First: asylum may not be granted except in urgent cases and for the
period of time strictly indispensable for the person-who has sought
asylum to ensure in some other way his safety.
Second: immediately upon granting asylum, the diplomatic agent,
commander of a warship or military camp or aircraft, shall report the
fact to the Minister of Foreign Relations of the State of the person who
has secured asylum, or to the local administrative authority, if the act
occurred outside the capital.
Third: the government of the State may require that the refugee be
sent out of the national territory within the shortest time possible ; and
the diplomatic agent of the country who has granted asylum may in
turn require the guarantees necessary for the departure of the
refugee, with due regard to the inviolability of his person, from the
country...." [p297]
The provisions of this Convention should be considered in the light of
the Latin-American spirit as well as of the social and political
environment in which asylum is practised in Latin America.
In respect of Article 1, it must be pointed out that it is the State from
which the asylum is requested that must decide whether it wishes to
grant it or not. There are certain countries, such as the United States,
which never grant asylum.
There was considerable discussion as to the meaning of the word
accusation referred to in this same article. It was correctly argued that
this term must be construed in its ordinary juridical meaning:
proceedings instituted before a judicial authority of the country at the
request of a third party, or automatically by that authority. But a
second condition must be added: the accusation must refer to acts
directly committed by the accused, and not to acts committed by
others in connexion with an insurrection or a revolutionary movement
for which the refugee is sought to be held responsible as a leader of
that movement.
There was also long debate as to who is competent to appreciate the
nature of the offence committed by the refugee. This appreciation
must naturally appertain to the State granting asylum ; if it appertained
to the territorial State, the institution of asylum would be rendered
nugatory, for it would be sufficient for that State to affirm that the
refugee was guilty of a common crime and he would then have to be
handed over.
There must, however, be no misunderstanding as to the scope of the
qualification of the offence made by the State of refuge; it should not
be assumed that the State which makes that qualification has the last
word in this respect, and that its appreciation is definitive and
irrevocable. This qualification may be questioned by the territorial
State, and if agreement cannot be reached in this respect, the case
must be submitted to arbitration or to another means of peaceful
settlement. Thus, in the last resort, it is a third party, or international
justice, which decides on the nature of the offence.
It has been claimed that if Peru had ratified the Montevideo
Convention of 1933, Article 2 of which provides that "the judgment of
political delinquency concerns the State which offers asylum", that
country would be bound by this provision and consequently would be
unable to raise an objection to the qualification made by Colombia.
That is not so; even in such a case Peru would be entitled to question
the qualification since such a prerogative is not excluded by Article 2
above.
There has also been much debate on the meaning of political offence.
It has been contended that we should confine ourselves in this
connexion to the legislation of the country where the offence was
committed. This is inadmissible, for in their legislation, States
ordinarily qualify as a common crime certain acts, such as
insurrection, which are manifestly political offences. The qualification
of [p298] the offence should be made by the international legal
authority whose task it is to decide in the matter.
International law contains no precise rules on the subject, but the
numerous precedents in existence may serve to provide general
directives. It may be said that any act which purports to overthrow the
domestic political order of a country must be regarded as a political
offence; in that sense even murder may sometimes be termed a
political offence. This consequently also applies to military rebellion.
Since the two last world wars, two new categories of offences have
been established : international offences such as violation of the rights
of the individual, genocide, etc., and crimes against humanity, the
chief one being responsibility for instigating a war.
These two categories of offences cannot be qualified as political.
11
It is therefore the international judicial authority, as already stated,
which decides in the last resort, whether or not the offence is political;
and in order to do so, it must be guided not by national legislations,
but by the considerations of international justice referred to above.
This predominance of international law over national legislations is
one of the foundations of the new international law.
In normal times, a State may not grant asylum to an individual for the
purpose of removing him from the authorities of his country; but a
State is entitled to grant such asylum in abnormal times in the case of
a political offence; in such a case protection of the individual and
humanitarian considerations come into play.
Article 2 of the Havana Convention has given rise to important
discussions on the question of urgency.
If an international tribunal may easily give a decision on the
qualification of an offence because this matter is a question of law,
that is not the case with regard to urgency which is a matter of fact,
and which may change according to the circumstances of each case;
what is considered urgent by one State need not be considered
urgent by another, and what is urgent in some circumstances is no
longer urgent in others. Moreover, urgency should not be appreciated
retrospectively, long after the events in question; it should be
considered from the standpoint of the time at which the events
occurred.
The meaning of the term "urgency" should be interpreted in
accordance with the nature of asylum in Latin America, i.e., the need
to act with utmost speed in a given situation. There is no urgency in a
case which involves only the possibility of an individual being
persecuted, but there is urgency if he is already being persecuted and
consequently faces an immediate danger.
It is for the State of refuge to appreciate whether or not there is
urgency to grant asylum at the time it is requested. If the territorial
State considers that there was no urgency at the time, it [p299] must
immediately present a claim: any delay in the presentation of such a
claim is a ground for its rejection, for in such a case the territorial
State may be presumed to have admitted that urgency existed.
The same Article 2, "First", provides that asylum must be granted "for
the period of time strictly indispensable for the person who has sought
asylum to ensure in some other way his safety". This provision does
not apply if a dispute has already arisen between the State of refuge
and the territorial State concerning the regularity of the asylum; such a
dispute suspends the effect of the provision in question and asylum
may then continue until the dispute is settled.
Another very important point referred to in Article 2 is that of a safe-
conduct.
It has been claimed that it is only when the territorial State has
demanded the departure of the refugee from its territory that the State
of refuge may, in turn, require the delivery of a safe-conduct to enable
the refugee to leave in safety.
A strict compliance with the terms of Article 2 would be tantamount to
a disregard of the nature of asylum, for if the territorial State failed to
demand the departure of the refugee, the latter would be compelled to
remain indefinitely on the premises where he was granted asjdum.
Besides, the provision contained in "Third" of Article 2 above, is not
exclusive in character ; it does not mean that only the territorial State
is entitled to demand the departure of the refugee. If such had been
the intention of the authors of that provision, they would have stated
so expressly, especially since, in practice, it is frequently the State of
refuge that has requested a safe-conduct to enable the refugee to
leave the country.
It should be pointed out that the Government of Peru, which puts a
restrictive interpretation on "Third" of Article 2, has on several
occasions granted safe-conducts at the request of the diplomatic
agent to persons who had been granted asylum in foreign embassies
or legations. (See Memorial of the Government of the Republic of
Colombia.)
There is therefore a gap in Article 2.
The Havana Convention of 1928 has other important gaps. First of all,
it does not provide for the case of a refugee who is not a political
offender but the head of a State, overthrown by a revolution and
seeking protection from persecution at the hands of the victors ; in
such a case delivery of a safe-conduct is a necessity.
Nor has the case been provided for in which the diplomatic agent who
granted asylum no longer wishes to maintain the asylum, and
chooses to provide for the departure of the refugee whilst the
territorial State objects to that departure.
Another gap in the article concerns the safe-conduct: no allowance is
made for the territorial State to deliver a restricted safe-[p300]
conduct, so as to ensure that the refugee would not escape the action
of justice in the event of his being subsequently sentenced in the said
State for a common crime, or so as to prevent the refugee from
seeking refuge in a country whence he might continue his conspiracy.
We shall see how the Court could, in the present case, interpret
certain provisions of the Convention of 1928 and fill the above-
mentioned gaps, especially with respect to the request for a safe-
conduct.
VII
A. First submission of the Application of the Government of Colombia.
The Government of Colombia, in its Memorial and in its Reply, asks
the Court, as a first submission, to adjudge and declare : "that the
Republic of Colombia, as the country granting asylum, is competent to
qualify the offence for the purpose of said asylum....".
In its judgment, and basing itself on the written and oral arguments
furnished by the Government of Colombia, the Court declares that this
submission should be interpreted in the sense that Colombia, as the
State granting asylum, is competent to qualify the nature of the
offence by a unilateral and definitive decision binding upon Peru. This
submission is rejected by the Court.
I have previously pointed out that, according to the principles of
international law, the qualification of the offence appertains to the
country granting asylum, but that such qualification is not definitive ;
the territorial State may contest it, precisely as Peru has done, and it
is then for the Court to resolve the dispute arising from that
contestation.
I therefore consider that the Court could have expressly declared that,
according to the documents submitted, Haya de la Torre is accused of
military rebellion, which is not a common crime but a political offence.
The judgment of the Court only contains an implicit declaration to that
effect, by rejecting the first submission of the counter-claim of Peru.
B. Second submission of the Application of the Government of
Colombia.
I stated previously that there was a gap in the Havana Convention of
1928 with respect to the request by the State of refuge for the delivery
of a safe-conduct to the refugee.
To bridge this gap, the Court would actually have had to create the
law as it did in its Advisory Opinion of April nth, 1949, which, indeed,
concerned a much more important matter than the present case,
since it referred to the recognition of the right of the [p301] United
Nations to submit international claims in certain cases—a right which
had not been bestowed upon it by the Charter which brought the
Organization into existence.
Among the factors which could have guided the Court are especially
the ideas prevailing in the New World on the subject of asylum, the
fact that, according to Article 2 of the Havana Convention, asylum
should be of short duration and that the refugee should be able rapidly
to find safety by some other means. But the delivery of a safe-conduct
by the territorial State is precisely the means which makes this double
12
purpose possible. An unjustifiable refusal to grant a safe-conduct
would force the State of refuge to keep the refugee indefinitely, which
would be contrary to the nature of asylum.
But before the delivery of such safe-conduct may- be requested, there
must be no contestation of the legality of the asylum, or if such a point
arose, it should have been previously settled; otherwise the State of
refuge would elude the objections raised by the territorial State. In the
present case, this legality has been contested by Peru which
maintained that the offence committed by Haya de la Torre was not a
political offence and especially that no case of urgency existed at the
time at which asylum was granted. The Court on that last point found
for Peru; in the circumstances Colombia has no reason to request a
safe-conduct for Haya de la Torre.
One of the grounds for sometimes refusing to deliver a safe-conduct
is the fear that the refugees may continue their political activities
abroad. That fear is to-day greatly diminished because the view is
emerging according to which one of the obligations of States is to
prevent conspiracies being directed from their territories against
another State. The "Declaration of the great principles of modern
international law", which has been adopted by several important
learned societies, provides this obligation in its Article 25 (C). A similar
provision is embodied in the Declaration of the rights and duties of
States which was drafted by the Codification Commission of the
United Nations.
Should the former refugee participate in such conspiracies while in a
foreign country, the State against which they are directed may require
the government of the foreign State to take the necessary measures
in this connexion.
In any case, if Peru wishes spontaneously to deliver the safe-conduct
which has been requested, it may do so in such a manner that Haya
de la Torre is unable to escape the sentence that may be pronounced
against him by the Peruvian authorities, and that he may be extradited
from the country in which he then finds himself. [p302]
VIII
The counter-claim of Peru.
The counter-claim of Peru is based on two grounds.
The first is the violation by Colombia of Article 1, paragraph 1, of the
Havana Convention. The Court has rejected that claim, probably
because it considers that the offence of which Haya de la Torre is
accused is not a common crime.
The second reason invoked by Peru is that Colombia granted asylum
to Haya de la Torre in violation of Article 2, paragraph 2, of the
Havana Convention, according to which "asylum may not be granted
except in urgent cases and for the period of time strictly indispensable
for the person who has sought asylum to ensure in some other way
his safety".
I have previously pointed out the scope of this provision in so far as
urgency is concerned.
At the time at which Haya de la Torre requested asylum, he was in a
most critical situation, and he was by no means in safety. In the
written Reply, the Government of Colombia has explained the nature
and magnitude of the danger which threatened Haya de la Torre.
It is in the light of that situation that the diplomatic agent of Colombia
decided to grant asylum. I consider that he was able to appreciate
exactly, and better than anyone else, the urgency for such action.
The fact that several foreign embassies and legations had granted
asylum in Peru to various persons who had participated in the same
revolutionary movement as Haya de la Torre, further confirms this
urgency. Moreover, Peru has only recently invoked the absence of
urgency.
As regards the last part of the counter-claim of Peru, submitted on
October 3rd, 1950, and relating to the unlawfulness of the
maintenance of asylum, I cannot consider it well founded, since there
existed a dispute concerning the lawfulness of asylum, and that such
a dispute warranted the maintenance of the asylum.
(Signed) A. Alvarez.
[p303]
DISSENTING OPINION BY JUDGE BADAWI PASHA
[Translation]
I share the opinion of the Court on the various conclusions except
those relating to the American practice, the "question of urgency", and
the maintenance of asylum until August 31st, 1949, the date of the Act
of Lima.
To explain my dissent on the question of urgency, it will be necessary
to recall the circumstances in which asylum was granted on January
3rd, 1949, and which are set out in the judgment of the Court.
**
Relying on these and certain other circumstances, Colombia has
sought to imply that Peruvian justice, as a result of the events of
October 3rd, was not, and could not be administered in an objective
and impartial manner. I do not consider that it is necessary for the
Court to examine this argument. The only issue before the Court is
the validity or regularity of the asylum and the interpretation of the
Convention of 1928. This question must and can be resolved without
its being necessary to appreciate the operation of ordinary justice in
the territorial State, because no measure, not even a state of siege,
adopted by a de jure or a de facto government, was ever inspired by a
desire to influence that justice, or aimed at such a result.
The denunciation by the Minister of the Interior, which has been
described as an injunction to justice, is, in spite of its violent attack on
Apra, quite usual for such denunciations.
On the other hand, in the opinion of Peru, the cases of urgency
referred to in Article 2, paragraph 2, "First", seem to be none other
than pursuit by a furious mob or the action of arbitrary justice,
exercised by a political faction against its adversaries or in conditions
which evidently preclude all guarantees of an impartial and objective
examination. The danger of legal proceedings for political offences
could consequently not be considered as a case of urgency within the
meaning of the above-mentioned provision.
***
The Havana Convention of 1928 gives no definition of "urgent cases".
That Convention is the only instrument to have used the expression.
With the exception of the Montevideo Convention of 1933, the object
of which was merely to define the terms of that of 1928, and which
consequently does not regulate the question in its [p304] entirety, the
Conventions of 1889 and 1939 make no reference to the matter of
urgency.
Indeed, can these terms be defined? This is open to doubt. The
conception of urgency is essentially variable and relative. It depends
first of all on the cases to which it is applied, and then on the
circumstances of time and place. It is experience—not general but
particular—and experience alone which can give concrete form to this
notion. Even the two cases cited by Peru and which are the only ones
known or accepted in Europe (and then only in the drafts of learned
societies and not by States) were not conceived a, priori, but
according to certain experimental data. Thus they cannot be
restrictive to the exclusion of other or more subtle forms of urgency.
In the absence of definition and criteria, upon what basis can the
expression be interpreted? The etymological meaning is obviously of
no help whatsoever.
Since this is not a rational institution which is in the process of
creation or which is being regulated for the first time—as would be the
13
case of a draft convention of a learned society—but a living institution
which is almost a hundred years old, the only safe guide would
appear to be practice, to the extent to which such practice interprets
the intentions of the States which chose these expressions and
agreed to adopt them, or of those States entrusted with carrying out
their intention, either as States of refuge or as territorial States. This
practice would be all the more decisive in determining the scope of
these expressions if it is both subsequent and prior to the Convention,
in other words, if it is uninterrupted.
This practice has been invoked by both sides. It is not limited to the
parties to any particular convention. It has even been adopted by
States which are not bound by any convention, as for instance
Venezuela. It therefore transcends the Convention of 1928 and goes
back to the origins'of the institution of asylum.
Colombia has attempted, unsuccessfully, to draw from this practice
certain conclusions respecting unilateral qualification. On the other
hand, Peru, in arguing that the only cases of urgency are those arising
from pursuit by a mob or from arbitrary justice at the hands of a
political faction, is proceeding by mere assertion or has referred to
non-American authorities. Peru has made no attempt to submit
evidence derived from American life or practice or from American
authorities who have studied this question.
The special circumstances, the conditions or details of the cases cited
in illustration of this practice, have generally not been supplied or at
any rate have not been supplied in a complete manner. It is, however,
easy to see that all these cases without exception have a common
characteristic, i.e., they arose in connexion with a revolution or a
rebellion. Revolution or rebellion is their only reason and [p305]
circumstance. No reference has been made in that connexion to the
threat of mobs or of justice at the hands of a political faction. The
refugees were merely sought by the public authorities of their
countries for the purpose of legal proceedings.
The cases cited as examples also present another aspect: they all
terminated by the grant of safe-conducts to the refugees, and no case
was mentioned of a refugee being surrendered to the territorial
authorities for the purpose of legal proceedings.
In all such cases, revolutions may have produced a state of
disturbance; successful revolutionaries may then be seeking
members of the former government to make them answerable for their
past tenure of office; or a government which has suppressed a
rebellion may be seeking out its authors in order to prosecute them
under the criminal code; or, as in the present case, successful
revolution-aries, having overthrown a government, may be seeking
other revolutionaries who have been less fortunate than themselves.
In such troubled circumstances, exceptional measures are usually
adopted, but the general structure of the government remains intact.
More especially, justice continues to function as usual even in cases
where special tribunals have been instituted in addition to the ordinary
courts.
The existence of this practice is thus undeniable. In the absence of
further proof, it is sufficient to recall what happened in connexion with
these same events of October 3rd. Independently of the degree of
responsibility (a question which is entirely irrelevant to the validity of
the asylum), all the refugees in the eight diplomatic missions, with the
exception of Haya de la Torre, received safe-conducts FN1 whereas
from the point of view of the nature of offence with which they were
charged, and from the point of view of urgency, they were all in the
same situation FN2.
---------------------------------------------------------------------------------------------
------------------------FN1 See the communique of the Peruvian
Government of October 12th, 1948, published in the official gazette El
Peruana of October 13th (see Memorial of Colombia).
FN2 In this connexion, see especially the correspondence exchanged
between the Embassy of Uruguay and the Ministry of Foreign Affairs
of Peru, quoted in the Reply of Colombia, in which even the unilateral
and definitive qualification by the State of asylum has been invoked by
Uruguay. In the case of the refugees who were granted asylum in the
Uruguayan Embassy, safe-conducts were granted on February 17th,
1949.
--------------------------------------------------------------------------------------------- head of a diplomatic mission, considering at the time of asylum that
------------------------ he was granting it to a political offender, subsequently recognized that
the refugee was only a common criminal.
The only question which may arise in the circumstances is whether
this practice is lawful or unlawful. In such cases a measure of urgency is necessarily implied in the
asylum. This measure can only be urgency in the strict meaning of the
There is no doubt that an act resulting from an explicit or implicit word, in accordance with Peru's interpretation of Article 2, paragraph
agreement freely entered into by two States exercising their sovereign 2, of the Convention, i.e., pursuit by a mob, or justice at the hands of a
rights cannot be called unlawful. political faction. In fact, even a common criminal is entitled to regular
justice, and he is justified in seeking asylum in such circumstances of
There are only two alternatives: either this practice has abrogated the urgency.
condition of urgency or it has merely interpreted it in a liberal fashion.
Without having to consider whether an inter-[p306] Paragraph 2 of Article 1 enacts that, in such a case (provided of
national custom can abrogate a rule of positive law, it must be course that the head of the mission does not dispute the fact that the
admitted that the most natural and the most juridical explanation is to refugee is a common criminal), the territorial State may demand the
consider this practice as a method of interpretation of the condition or surrender of the refugee.
urgency.
But it is quite obvious that, even in the case of a common criminal,
But this practice was not only subsequent to the Convention (and urgency in its strict meaning described above ought to have ceased.
consequently constitutes a sound interpretation thereof), it also The request for surrender made by the territorial State is in itself an
existed before the Convention. It should, therefore, be considered as implication of the fact that urgency has ceased.
one of the "rules they [the governments of the Latin-American States]
must observe for the granting of asylum in their mutual relations", In the circumstances, it might well be wondered why such a clear
which rules these governments were "desirous of fixing" by that distinction has been established between the two categories of
Convention (Preamble to the Convention). offenders if, on the one hand, urgency has the same strict meaning for
both and if, on the other hand, the refugee, whether a common
This practice was known to these governments. It was common criminal or a political offender, has to be surrendered to the territorial
knowledge and had not been contested. If these governments had State for the purpose of legal proceedings, as soon as the case of
wished to discontinue it, they would not have failed to denounce it in urgency has ceased or in case urgency never even existed.
one manner or another. The absence of such a denunciation is
conclusive proof that the practice continues and is definitively The truth is that the notion of urgency is not the same for the two
recognized. This proof can only be refuted by showing that the words categories of offenders and that the consequences of asylum also
"urgent cases" thus interpreted would be devoid of meaning. This has differ according to whether the refugee is a common criminal or a
not and could not be shown. It will later be shown what these words political offender. In the former case, as soon as urgency in its strict
were intended to exclude. sense has ceased, or if it has never even existed, the territorial State
may demand his surrender, whereas in the latter case it is the nature
*** of the situation (revolution or rebellion) which determines the urgency
It remains to be seen whether the other provisions of the Convention and justifies the request and immediate grant of a safe-conduct.
of 1928 corroborate the interpretation of the words "urgent cases"
deduced from practice which is both prior and subsequent to the Practice has furnished indisputable confirmation of the conclusions
Convention. deduced from the texts. Not only has this practice been constant in
the sense that revolution is a case of urgency and a [p308]
In considering the provisions of the Convention, it is presumed that valid condition for asylum, but also in the sense that the invariable
there is no conflict between the territorial State and the State of refuge effect of diplomatic asylum, regularly granted to a political offender,
concerning the political nature of the offence which gave rise to the has been the non-surrender of the offender to the territorial State and
asylum, or that any dispute arising on that point was resolved by the his departure from the country by virtue of a safe-conduct granted by
recognition of that political character by the territorial State. that State.

But it will be admitted that asylum of a political offender, if it is not to No case to the contrary has been cited.
be indefinitely prolonged, should come to an end by one or other of
the following solutions: either the refugee leaves the territory with a ***
safe-conduct, or else he is surrendered to the territorial State for the
purpose of legal proceedings. Article 2, paragraph 2 ("First"), further provides that "asylum may not
be granted except in urgent cases and for the period of time strictly
In order to contest the fact that, according to recognized practice, indispensable for the person who has sought asylum to ensure in
asylum should always terminate in the grant of a safe-conduct, it is some other way his safety".
necessary to admit that the territorial State has the right to demand
the surrender of the political offender for the purpose of legal Could the last part of this sentence refer to the surrender to the
proceedings. territorial State for purposes of legal proceedings? It may be true that
in case of pursuit by a mob or legal proceedings at the hands of a
That State has, of course, the right to insist on the surrender of a political faction, such a surrender may ensure safety in some other
common criminal. Article I, paragraph I, expressly says so. But way, but it is even more true that this term would be inadequate; to
nothing of the kind is said concerning political offenders. [p307] ensure safety in some way other than asylum can obviously only
mean departure from the country.
Does it therefore not follow from this provision, by an argument a
contrario, that such a right does not exist in the case of political Thus, departure from the territory seems to be the end of any political
offenders? This argument a contrario is conclusive provided it is asylum. That is the only conclusion compatible with the texts.
confirmed by other arguments or considerations. In this case it is
confirmed by the fact that the Convention has sought to establish that It could be argued, on the other hand, that, even admitting that
the two cases of asylum are clearly distinct. Each is the object of an general practice places revolution on the same footing as pursuit by a
article which provides all the conditions relating to it. mob or justice at the hands of a political faction, all that the territorial
State is bound to do is to respect asylum until the return of normal
Article 1, paragraph I, states that it is not permissible to grant asylum conditions. It could then request the State of refuge to surrender the
to common criminals; but paragraph 2 provides for cases where, in refugee for prosecution before the ordinary courts.
fact, asylum may have been granted, particularly the case where the But whether or not normal conditions have returned is a question of
14
opinion. It might give rise to argument. On the other hand, such an
interpretation of the phrase in question would lead to the inadmissible
conclusion that the' State of refuge was under an obligation to keep
the refugee until such time as it might please the territorial State, at its
absolute discretion, to demand his surrender.
Moreover, what would be the significance or the scope of the rule
appearing in Article 2, paragraph I, to the effect that "asylum granted
to political offenders in legations, warships, military camps or military
aircraft shall be respected....", if that respect were not to manifest
itself as a last resort, by the grant of a safe-conduct? Does this
obligation to respect asylum confine itself to a mere prohibition for the
territorial State to force an entrance into the diplomatic mission for the
purpose of seizing the refugee?
Here again it should be recalled that practice gives no example of
asylum granted on the occasion of a revolution having continued
[p309] until return to normal conditions or having terminated otherwise
than by the departure of the refugee.
***
The analysis of the practice of the South-American States (whether
signatories or not) before and after the Convention of 1928 and the
analysis of the provisions of that Convention as regards the difference
it laid down between common criminals and political offenders, the
absence of any reference to the surrender of the latter to the territorial
State, as well as of the meaning and scope of the expression "ensure
in some other way his safety", and of the obligation to respect asylum
— this double analysis establishes beyond any question that Article 2
refers especially to cases of revolution which are qualified in that
article as urgent cases.
In fact, the Convention of 1928 merely seeks by this reference to
"urgent cases" to exclude from asylum those cases in which it is
granted following legal proceedings, instituted in normal
circumstances and in the absence of revolutionary disturbances or of
possible exceptional measures.
Of course, the Convention of 1928 as a whole has a restrictive
character with regard to the exercise of the right of asylum, but that
general character cannot offset all the arguments derived from a
practice which is both constant and unambiguous on a given point;
this practice is further corroborated by the analysis of the principal
provisions of the Convention itself.
***
It results from the foregoing description of asylum that this institution
has an aspect in South America which it has not elsewhere. If the
reason for this difference cannot be discovered, the conclusions
deduced from practice and from texts, however concordant they may
be, might not appear decisive.
In the search for this difference, I do not consider it necessary to dwell
on the nature of revolutions in that part of the world, their causes or
the various conditions which favour their outbreak. It is sufficient to
say that revolutions and rebellions are very frequent. They sometimes
fulfil the functions of an election, when a section of public opinion
which is dissatisfied with the government wishes to effect a change in
a manner which is less slow and laborious than voting.
It is this frequency of revolutions combined with their character,
causes and conditions, which has given to asylum an object and a
usefulness which it does not seem to have elsewhere. By a kind of
general and implicit agreement it is to be regarded as a means
enabling the authors of unsuccessful conspiracies to [p310] escape
the severity of the acts of vengeance of the government in power and
permitting members of a defeated government to evade the measures
by which a successful conspiracy would seek to ensure its security.
By virtue of this usefulness, asylum has become a factor of peace and
moderation to the extent that it avoids violence, it provides a certain
respite, attenuates the bitterness of defeat and imposes wisdom and
moderation in view of the potential danger of the return of an exiled
refugee.
15
There is no doubt that asylum can also be an element of instability in
so far as it reduces or eliminates the risks involved in revolution, but
these disadvantages, in comparison with the afore-mentioned
advantages, do not seem to have affected either its course or
recurrence.
It is sometimes attempted to explain the particular development of this
institution in America by referring to chivalry and humanity. This point
may be open to doubt, although these concepts are not completely
alien to the institution of asylum. In any case, the idea of chivalry is
quite relative. In former times, asylum for common crimes was
recognized in the name of chivalry, whereas we now condemn this
practice as being contrary to social security and solidarity. In those
days it was refused in cases of political offences, being contrary to a
certain dynastic solidarity. In modern times it is admitted for these
offences precisely because governments to-day no longer have the
character of permanency which they enjoyed in former times. In fact,
democracy necessarily supposes struggle for power and changes of
government. In such struggles and changes errors may be committed,
but they are considered as the price that must be paid for the
advantages of democracy.
***
But however great the usefulness of asylum may be, this usefulness
would be insufficient to explain the development of asylum without
having regard to another consideration relating to the character of
revolutions. In fact, in the troubled times which accompany or follow
them, passions are unleashed which frequently cannot be controlled
by reason and justice, and generally have at their command an almost
absolute power which, it must be admitted, may be necessary in order
to curb the disturbances occasioned by the revolution. This power
would, in the case of a constitutional government, result from the
proclamation of a state of siege. A de facto government simply
confers this power upon itself. In both cases it manifests itself by a
fusion of the legislative and executive powers in the hands of the
members of the government. It is in such circumstances that the
government, without [p311] having to encroach on the general judicial
organization, could be tempted to create special organs of justice
bearing the imprint of political justice.
Such is the case of the decree of November 4th enacted by the
Military Junta providing for Courts-Martial to judge summarily the
authors, accomplices and others responsible for the offences of
rebellion, sedition or mutiny within short time-limits (enquiry three
days; prosecution and judgment six days).
It matters little whether this particular decree was retroactive or not
from the point of view of the summary justice which it instituted. What
is important is the fact that such political justice could be set up by
that same Junta and could examine facts which had occurred prior to
its institution. Such a fact could have been the case of Haya de la
Torre where the enquiry seems to have been suspended since the
summons to appear published on November 16th, 1948, in spite of
the fact that the summons informed the accused that the enquiry
would proceed in their absence.
The creation of new judicial organs and the recognition of their
competence to judge facts prior to their existence, which hitherto fell
within the jurisdiction of ordinary tribunals, could have been regularly
accomplished by a constitutional government. Legislative power is not
prevented from so doing by the rule of non-retro-activity which is not
generally applicable in matters of judicial procedure and organization.
The possibility for an unconstitutional government to proceed in this
manner is even more obvious.
The Junta assumed power on October 27th, 1948, as a de facto
government. It thus held all the power without needing to invoke the
state of siege proclaimed on October 4th by the constitutional
government which had preceded it. However, it saw fit to renew the
state of siege whenever it expired (every thirty days). In fact, the state
of siege was renewed on November 2nd, December 2nd and January
2nd. These successive renewals, although superfluous, prove that, at
any rate until the last date, the Junta considered it necessary to
announce publicly that it might still need excep-tional measures and
that the situation, at the time, was not yet normal.
The fact that the Agent of Peru declared in his Rejoinder on behalf of
his Government—a declaration which was subsequently confirmed in
the oral statement of October 2nd, 1950—that the decree of
November 4th was "intended to apply to crimes occurring after its
publication" in no way alters the possibility existing in January, 1949,
of enacting another decree providing for another Court-Martial with
similar summary procedure to deal with facts which had occurred prior
to the decree. The reference to retroactivity in the foregoing
declaration must be interpreted as bearing on the application of the
penalties provided in the decree of November 4th. [p312]
It is this possibility of exceptional measures which characterizes
periods of revolution and which makes it always possible to speak of
the danger of legal proceedings, in so far as it involves a further
danger, namely proceedings before a political tribunal.
Obviously the danger of legal proceedings for a political offence is not
in principle sufficient to justify the grant of asylum to the person
threatened.
But asylum as practised in America has been indissolubly bound to
the conception of revolution. On the one hand, it provided the social
and political usefulness referred to above, and on the other hand, it
found a general justification in the possibility of exceptional measures.
In this very special environment, asylum assumed the aspect of a
regional or continental institution, approved by the governments in
power, those which triumphed over a conspiracy as well as those
which had triumphed as a result of a conspiracy; and by their
recognition of asylum both types of government considered it as a
possible resort in the event of a reversal of fortune. Just as there exist
usages of war, so a usage of revolution has arisen, which became the
object of implicit and general agreement between the American
States.
It is as such that the exercise of asylum is so frequently and widely
recognized.
Viewed as an isolated phenomenon, the asylum of a political offender
may easily acquire the aspect of an encroachment on territorial
sovereignty, and, as far as it is an obstacle to legal proceedings, it
may appear as a suspicion of the national justice and, in any case, as
an interference in the domestic affairs of a State. However, when it is
accepted by all States, both in the role of the territorial State and the
State of refuge, it loses all such aspects and becomes a general and
impersonal rule of conduct.
The fact that abuses may have arisen in the exercise of asylum is
absolutely alien and irrelevant to the appreciation of that institution as
a juridical phenomenon. Just as alien and irrelevant is the fact that
established governments, enjoying general respect and confidence,
owe their existence to revolutions or to the exercise of asylum. Such
merits or abuses may influence the evolution of the institution or its
transformation, or bring about its extinction. They remain, however,
irrelevant to the task of the Court when considering an individual
application of that institution.
On the other hand, it may readily be agreed that a number of cases
which are not regular cases of asylum have intruded on the practice
already referred to which is recognized as a general rule of conduct.
Such, for example, are cases where, for reasons of political
expediency, safe-conducts may have been granted to refugees whom
the territorial State regarded as common criminals, but in whose case
it did not choose to enter into a dispute. I do not include in this [p313]
category the case of persons against whom no charge has been
made but who, fearing that such a charge may arise, seek asylum ;
for it is in the spirit of the institution to grant to such persons the
protection of asylum.
In spite of this intrusion, the practice of asylum as a usage of
revolution remains a juridical phenomenon which can be regulated,
interpreted and applied, just as the usages of war. The fact that the
Parties had recourse to the Court in order to solve a dispute on the
subject of asylum is sufficient proof thereof.
16
***
It may therefore be concluded that in enacting that asylum may only
be granted in urgent cases, the Havana Convention of 1928 was
desirous of "fixing the rules" (preamble to the Convention) which had
been applied up to that time. These rules tend not to admit asylum in
times of peace and order, but to grant it in times of revolution,
euphemistically described in the Convention as "urgent cases". To
interpret asylum in such a case, as implying suspicion of territorial
justice or interference in the domestic affairs of another State, is
definitely out of the question because this is a special situation, with
ample possibilities of deterioration through the adoption of exceptional
measures, and because all the States, in their alternative capacity as
State of refuge and territorial State, have accepted this rule as a
general rule of conduct.
In the case under consideration, the state of disturbance caused by
the revolution of October 3rd still persisted on January 3rd. Proof of
this may be found in the fact that, the day before, the Military Junta
considered it necessary to proclaim the renewal of the state of siege,
thus implying the possibility of taking exceptional measures. Asylum
was thus regularly granted to Haya de la Torre since this was a case
of urgency, the state of disturbance caused by the rebellion still
persisted, and the offence with which he was charged was
unquestionably a political offence FN1.
---------------------------------------------------------------------------------------------
------------------------FN1 In fact, the proceedings for rebellion against
Haya de la Torre, in the absence of almost all those responsible, who
had been authorized by the Government of Peru to leave the country,
could only be partial and fragmentary. This initial discrimination by the
Executive does not appear to be a perfect guarantee of impartiality.
The de jure Government of Peru seemed specially desirous of
depriving Apra of its financial and publicity resources. (See in the
Counter-Memorial the denunciation of the Peruvian Minister of the
Interior of October 5th, 1948-) Judging by the communique of October
12th, the prosecution assumed secondary importance. On the other
hand, the de facto Government, this aim having been achieved,
seemed to be especially anxious to strike at the head of the party.
(See the contradictory attitudes of this Government at that time
towards Colombia and Uruguay.)
---------------------------------------------------------------------------------------------
------------------------
[p314]
It is very significant in this connexion that the diplomatic
correspondence between Colombia and Peru, which lasted three
months, and which purported to reflect the direct reactions of the two
Parties and to contain the fundamental bases of their respective
attitudes, does not for a single moment touch on the question of
urgency; see especially in the memorial, the letter of Peru of March
19th: VI, second paragraph; VII, first paragraph; IX, X, first paragraph,
and Peru's letter of August 6th: VI.
If Peru considered that there was no urgency in this case, she would
not have failed to rely on this argument and to avoid this long
controversy concerning terrorism, which apparently had no chance of
convincing Colombia for the simple reason that it had no foundation in
fact or in law, and that the so-called terrorist crimes had not given rise
to any accusation prior to the grant of asylum.
It was only after the presentation of the Counter-Memorial that an
attempt was made to argue urgency in the case of Haya de la Torre,
without, however, attributing to this argument, at the beginning, the
importance which it subsequently acquired. It was especially in the
final oral reply that this absence of urgency became the essential
basis and grounds of the counter-claim. No explanation has been
given—and for an obvious reason—to show why this argument, if it is
so decisive and so much less controversial than that of terrorism, has
not been invoked at the very outset in the diplomatic correspondence.
In that correspondence, Colombia, relying on her doctrine of unilateral
and definitive qualification, refrained from any discussion of the
domestic affairs of Peru, although the latter, curiously enough, had
invited Colombia to participate in such a discussion. This attitude on
the part of Colombia may easily be explained by a desire to avoid
being drawn into a discussion of the responsibility of Haya de la Torre
and the terroristic aspect of the crimes committed in the course of the
events of October 3rd, which, in the view of Peru, were to transform
the offences with which Haya de la Torre was charged into common
crimes and thus render his asylum pointless.
***
In view of the foregoing conclusion, any consideration of the duration
of asylum seems to me completely superfluous, especially since the
prolongation of asylum is, in fact, entirely due to the diplomatic
correspondence. This correspondence constitutes the negotiations
between two States concerning a dispute which has [p315] arisen
between them. It was these negotiations which led to the Act of Lima,
by virtue of which the dispute was submitted to the Court.
It is impossible to deny that Colombia is entitled to maintain, by
means of negotiations, what she considers to be her right or to deny
that she is entitled to continue the asylum throughout such
negotiations.
(Signed) Badawi Pasha.
[p316]
DISSENTING OPINION BY JUDGE READ
As I have concurred in the judgment of the Court on the claims
presented by the Government of Colombia, and in a large part of the
judgment on the counter-claim, it is possible for me to confine my
separate opinion to one aspect of the case. I regret that I cannot
agree with the majority of the Court on the question whether the grant
of asylum by the Colombian Ambassador at Lima, on Janu-ary 3rd,
1949, to Sefior Haya de la Torre, could be justified as an urgent case
within the meaning of the Havana Convention, 1928.
Before examining this question, it is necessary to make some
preliminary explanations. In the pleadings, and in the course of the
argument, there have been frequent references to "American
international law", and the "American institution of asylum". As my
conclusions in this case are largely based on my understanding of
these expressions, it is necessary for me to indicate what they mean.
They use the word "American" in a special sense—as relating to a
regional group of States, the twenty Latin-American Republics. The
region covers the greater part of South and Central America, and
extends to parts of North America south of the Rio Grande, including
two of the. Caribbean Islands. It does not, however, include the whole
of either North, South, or Central America, and, in that sense, the use
of the word "American" is misleading. To avoid confusion, it will be
convenient to use quotation marks when it is used in this special
sense.
With regard to "American international law", it is unnecessary to do
more than confirm its existence—a body of conventional and
customary law, complementary to universal international law, and
governing inter-State relations in the Pan American world.
The "American institution of asylum" requires closer examination.
There is—and there was, even before the first conventional regulation
of diplomatic asylum by the Conference at Montevideo in 1889—an
"American" institution of diplomatic asylum for political offenders. It
has been suggested, in argument, that it would have been better if the
institution had been concerned with ordinary people and not with
politicians, that it is unfortunate that political offenders were protected
from trial and punishment by courts of justice during the troubled
periods which followed revolutionary outbreaks, and that it would have
been a wiser course for the republics to have confined the institution
to pro-[p317]tection against mob violence. That is none of our
business. The Court is concerned with the institution as it is. The
facts, established by abundant evidence in the record of this case,
show that the Latin-American Republics had taken a moribund
institution of universal international law, breathed new life into it, and
adapted it to meet the political and social needs of the Pan American
world.
17
The institution was founded upon positive law, the immunity of the
diplomatic mission, and it does not make any difference whether the
theory of extraterritoriality is accepted or rejected.
Upon the reception of a fugitive in an embassy or legation, he enjoyed
in fact, and as a result of the rules of international law, an absolute
immunity from arrest or interference of any nature by the
administrative or judicial authorities of the territorial State. The only
course open to that State was diplomatic pressure. It could not force
an entry and remove the fugitive. It could insist on the recall of the
head of the mission ; and, as a last resort, it could break off diplomatic
relations.
The record in this case discloses that revolutions were of frequent
occurrence in the region under consideration, and that a practice
developed of granting asylum to political offenders. This practice
became so common that it was regarded as a normal part of the
functions of diplomatic missions. During a period when the institution
of diplomatic asylum was obsolescent in other parts of the world, it
was in a stage of vigorous growth and development in Latin-America.
This practice had a profound effect upon the legal relationship
resulting from the establishment of a diplomatic mission, or the
presentation of Letters of Credence by a new head in the case of a
mission already established. This legal relationship finds its origin in
implied contract. Its terms are never expressed in the Letters of
Credence or other formal documents. The understanding of the
parties as to what constitutes the proper functions of a diplomatic
mission was affected by this widespread practice of granting asylum
to political offenders, and, in consequence, the legal relationship
based on implied contract was altered. Within the region under
consideration, a territorial State, in the event of the grant of asylum to
a political offender, could no longer assert, with justification, that the
ambassador had transgressed the limits of the proper functioning of a
diplomatic mission. The territorial State, on receiving the ambassador,
had consented to the exercise by him of all the ordinary diplomatic
functions, and within the Latin-American world, as a result of the
development of this practice, it was understood by everybody that "the
ordinary diplomatic functions" included the grant of asylum to political
offenders. [p318]
Having established the nature of the "American institution of asylum",
it is possible to proceed to the examination of the special aspect of the
counter-claim in which I am unable to concur in the judgment of the
Court. The majority is of the opinion that the grant of asylum in the
present case was made in violation •of the "First" provision of Article 2
of the Havana Convention, on the ground that it was not an urgent
case within the meaning of that provision. I am of the opinion that it
was an urgent case, and that the counter-claim should be dismissed.
The "First" provision of Article 2 reads as follows:
"First: Asylum may not be granted except in urgent cases and for the
period of time strictly indispensable for the person who has sought
asylum to ensure in some other way his safety."
It is obvious that the expression "except in urgent cases .... safety" is
not clear and unambiguous. Urgency has more than one ordinary and
natural meaning, and it is capable of application to the problem of
asylum in more than one way. In order to determine the meaning that
the Parties to the Convention had in mind when they used this
expression, it is necessary to look at the nature of the problem with
which they were concerned, and at the context in which it is to be
found.
The preamble shows that the Governments represented at the Sixth
Pan American Conference at Havana in 1928 were "desirous of fixing
the rules they must observe for the granting of asylum in their mutual
relations". They dealt with asylum as an existing institution ; and, in
Articles 1 and 2—the operative provisions of the Convention—they
prescribed a series of restrictive conditions upon the grant of asylum,
procedures which should be followed, and obligations which were for
the most part incumbent upon the country of refuge. The only
obligations imposed on the territorial State were the duty to recognize
a grant of asylum made in compliance with the restrictive conditions,
and the ancillary duty to furnish a safe-conduct in cases where the
territorial State required that the refugee should be sent out of the
country.
The principal provision in Article 2 imposes an obligation on the
territorial State—the only primary obligation imposed on that State by
the Convention. It is the obligation that asylum ' 'shall be respected",
and it imposes on the territorial State a legal obligation to respect any
asylum which has been granted by a Party to the Convention, in
conformity with the conditions clearly imposed under Articles 1 and 2,
both precedent and subsequent. It is an obligation to respect not
merely the grant but also the maintenance of asylum within the
conventional limitations.
There are certain conditions arising under the 2nd, 4th, 5th and 6th
provisions in Article 2 which are not unimportant, but which do not
raise any difficulties in the present case. There are, however, [p319]
four essential conditions precedent, all of which had to be fulfilled in
order to grant or maintain an asylum which the territorial State was
bound to respect. They are:
(a) The refugee must not have been "accused or condemned for
common crimes".
(b) The refugee must be a "political offender" within the meaning of
the expression as used in the first paragraph of Article 2.
(c) Asylum shall be respected only "to the extent in which allowed, as
a right or through humanitarian toleration, by the usage, the
conventions or the laws" of the country of refuge.
(d) It must be an urgent case.
The first three conditions were fulfilled in this case, but the fourth
requires special consideration. The fundamental problem is to
determine what the Parties to the Havana Convention had in mind
when they used the expression "in urgent cases". There are two
possible interpretations, one which was put forward by the Peruvian
Government at a relatively late stage in the controversy, namely, in
the Counter-Memorial, and the other put forward by the Colombian
Government at an even later stage, namely, the Reply. The reason for
the delay in raising this issue can be readily understood. It had never
occurred to anybody in Government circles in either Peru or Colombia
that there was any doubt as to the existence of urgency in the present
case.
The Governments of Peru and Colombia, in the months of February
and March, 1949, were vigorously debating the question as to
whether the asylum granted in the present case by the Colombian
Ambassador could be justified, and whether the Peruvian Government
was justified in refusing to recognize the asylum and grant a safe-
conduct. If it had ever dawned on the consciousness of any person in
authority in Lima that it was possible to place a construction on the
expression "urgent cases" that would raise a doubt as to whether this
was an urgent case, it is unthinkable that the point would not have
been raised in the diplomatic correspondence. It was at a later stage
that the Peruvian Agent thought it worth while to raise this point by
way of counter-claim. It is now necessary to decide whether to adopt
the position put forward by Peru, or the position put forward by
Colombia, or a middle ground between two extremes.
To begin with, I do not think that it is possible to accept the extreme
argument put forward on behalf of the Colombian Government. That
argument was based upon an attempt to discredit the administration
of justice in Peru, coupled with charges of administrative interference
in judicial process. In this matter, it is sufficient to say that the
Colombian Government has not proved its case, [p320] and that there
is no justification for discrediting the administration of justice or for any
lack of confidence in that administration, whether in Peru or in any
other State.
Having disposed of the extreme Colombian position, it is necessary to
look at the extreme Peruvian position. It has been contended that the
use of the expression "urgent cases" limits the grant of asylum to
incidents in which the fugitive is being pursued by an angry mob or
18
perhaps by a partially organized force meting out a form of crude and
popular pseudo-justice in a period intervening between a successful
revolution and the formation of a new organized judicial system. The
basis of this view is that it is inconceivable that the Governments
represented at the Panamerican Conference at Havana in 1928 could
possibly have had in mind a system which would protect political
offenders from police measures and prosecution and punishment
under the laws of the country in which their offences had been
committed.
I find it impossible to accept this extreme position, advanced by the
Peruvian Government during the later stages of this dispute.
From the point of view of the regions of the world with which I have
had close contact, it would be inconceivable, in principle, that
governments could have intended "urgent cases" to include the
protection of political offenders from the local justice. It would be
unthinkable that a treaty provision should, in the absence of express
words, be construed so as to frustrate the administration of justice.
There is, however, a principle of international law which is truly
universal. It is given equal recognition in Lima and in London, in
Bogota and in Belgrade, in Rio and in Rome. It is the principle that, in
matters of treaty interpretation, the intention of the parties must
prevail.
To apply this principle to the Havana Convention, I am compelled to
disregard regional principles, and personal prejudices and points of
view, which are not accepted and shared by the peoples and
governments of the "American" region. I am compelled to look at the
problem from the point of view of the twenty Latin-American
Republics, the signatories of the Havana Convention. The United
States of America contracted out of the Convention, by reservation
before signature, and its special position does not need to be
considered.
It is, therefore, necessary to examine the question, taking into account
the principles of international law which are of universal application,
and, also, the point of view and manner of thinking of the Parties to
the Convention as indicated by the record. The real issue is : whether
the Conference at Havana in 1928 had in mind the limitation of
asylum to cases of mob violence, and whether [p321] such an
interpretation is confirmed or contradicted by the context. For this
purpose, principles of international law which are universally
accejoted would justify consideration of the following points:
Ist. the nature of the institution with which the Conference was
dealing;
2nd. the context and the economy of the treaty regarded as a whole;
and
3rd. the understanding of the parties to the treaty as to its meaning, as
reflected by their subsequent action.
To my mind, the Peruvian interpretation, when subjected to these
three tests, meets three insuperable obstacles, and must be
discarded. They may be considered in turn.
The first test relates to the nature of the institution of asylum. While I
have concurred in the view of the majority of my colleagues that
Colombia has not established that there is a right of unilateral
qualification or a right to safe-conduct based on customary law, there
can be no doubt about the existence of an "American" institution of
asylum, an extensive and persistent practice, based on positive law,
on convention and on custom.
The record in this case discloses that over a period of more than a
century there were numerous instances in which asylum was granted
and made effective in the Latin-American republics. The wide spread
of the practice is indicated by the citation, in the Reply, of more than
fifty separate instances in which asylum was granted and made good,
covering two hundred and forty-four enumerated individuals, as well
as a number of groupings in which precise numbers are not given. At
least seventeen Latin-American States were concerned. While the
information available is by no means complete, the dates and such
details as are given make it possible to tie in the instances in which
asylum was granted to political revolutions and the periods of
disturbed conditions which followed both successful and unsuccessful
revolts. There is no instance anywhere in the record in which a
country of refuge, of the Pan American world, acceded to a request by
a territorial State to surrender a political offender to the local justice.
There is nothing in the record to suggest that the granting of asylum
was limited to cases in which the fugitive was being pursued by angry
mobs. The evidence shows that asylum was granted, as a matter of
course, to political offenders who were seeking to escape from
ordinary judicial process under the laws of the territorial State. There
can be no doubt that the institution of asylum, which the Pan
American Conference was seeking to regulate in 1928, was one in
which asylum was freely granted to political offenders during periods
of disturbed conditions following revolutions. The Governments
represented at the Conference made their intention abundantly clear
in the preamble. They were "desirous of fixing the rules they [p322]
must observe for the granting of asylum". They gave no indication of
any intention to change the essential character of the institution.
Taking into account the points of view and manner of thinking of the
twenty Latin-American republics, as disclosed by the evidence as to
tradition and practice in the record, it is inconceivable that they could
have intended to limit the grant of asylum for political offenders to
cases in which they were being pursued by angry mobs. It is
unthinkable that, in using an ambiguous expression "urgent cases",
they were intending to bring to an end an "American" institution,
based on ninety years of tradition, and to prevent the grant of asylum
to political offenders "in times of political disturbance". To apply such
a construction would be to revise, and not to interpret the Havana
Convention ; a course which I am precluded from adopting by the rule
laid down by this Court when it stated : "It is the duty of the Court to
interpret the Treaties, not to revise them." "Interpretation of Peace
Treaties (second phase), Advisory Opinion : I.C.J. Reports 1950, p.
229."
Accordingly, the Peruvian contention fails to meet the test of the first
obstacle, and must be rejected.
On the positive side the application of this test would strongly support
and confirm an interpretation of the expression "urgent cases" as
covering cases in which asylum was granted during a period of
disturbed conditions following a revolution, and as excluding asylum
during periods of political tranquillity.
The second test arises out of the context and the general economy of
the Convention. I have already reviewed the general economy of the
treaty and shall confine myself to two aspects of the context.
The argument that asylum cannot be granted to protect the political
offender from prosecution and possible conviction by the local courts,
which is at the basis of the Peruvian interpretation of "urgent cases",
encounters an insuperable obstacle in the text of Article I.
The first paragraph of this article provides that "it is not permissible for
States to grant asylum .... to persons accused or condemned for
common crimes....". The second paragraph provides that "persons
accused of or condemned for common crimes taking refuge .... shall
be surrendered upon request of the local government". Accordingly, it
is clear that a person accused, or even condemned, for a political
offence was regarded by the Governments represented at the
Conference as a proper subject for asylum. It is equally clear that a
refugee accused or condemned for a political offence alone need not
be surrendered to the local government. In the case before the Court,
Peru has no right, [p323] under the Havana Convention, to demand
the surrender of the fugitive.
There is another aspect of the context. An examination of Articles i
and 2 of the Convention shows that the parties intended to draw a
clear-cut line between common criminals and political offenders. An
interpretation, limiting asylum for political offenders to cases in which
mob violence or revolutionary tribunals were involved, would eliminate
this distinction and leave Article 2 to serve no useful purpose. I am
precluded from accepting such an interpretation by the rule laid down
by this Court when it stated: "It would indeed be incompatible with the
19
generally accepted rules of interpretation to admit that a provision of
this sort occurring in a special agreement should be devoid of purport
or effect." "Corfu Channel Case, Judgment of April 9th, 1949, I.C.J.
Reports 1949, p. 24."
This Convention, in paragraph I of Article 2, deals with "asylum
granted to political offenders". A political offender is a person who has
committed a political offence against the laws of the territorial State.
Asylum cannot, by its very nature, be granted to a political offender
without protecting him from local prosecution, and without frustrating
the administration of justice in the territorial State. An interpretation
limiting the grant of asylum under Article 2 to cases in which political
offenders were pursued by angry mobs, coupled with the duty to turn
the fugitive over to the local police to be prosecuted for his political
offence, would put the political offender on exactly the same footing
as the common criminal. It is conceded that the latter can be given
temporary shelter from mob violence or lynch law, on humanitarian
grounds, and handed over to the local police for prosecution. Such an
interpretation would, in effect, delete the word asylum from the first
paragraph of the article, substitute temporary shelter on humanitarian
grounds, and create a position in which the provisions of Article 2
would "be devoid of purport or effect".
Any attempt to interpret the expression "urgent cases" as limiting
diplomatic asylum to protection from mob violence encounters the
insuperable obstacle presented by these provisions of the
Convention, and must be rejected.
On the positive side, the application of this test would support an
interpretation of the expression as covering cases of asylum during
periods of revolutionary disturbance, and as excluding it during
periods of tranquillity, and would bring the provisions of Articles 1 and
2 into close harmony.
The third test relates to the understanding of the parties to the treaty
as to its meaning, reflected by their subsequent action. It may be
observed that this Court relied upon an examination of the [p324]
subsequent attitude of the Parties with a view to ascertaining their
intention, when interpreting an international agreement, stating: "The
subsequent attitude of the Parties shows that it was not their intention,
by entering into the Special Agreement, to preclude the Court from
fixing the amount of the compensation." "Corfu Channel Case,
Judgment of April 9th, 1949: I.C.J. Reports 1949, p. 25."
In the present case, if the Parties had meant that asylum was to be
restricted to cases where offenders were seeking to escape from
angry mobs, or from improvised revolutionary tribunals, it is certain
that there would have been a fundamental change in the practice of
the Latin-American States. There is sufficient evidence in the record
to convince me that there was no change in practice in granting or
recognizing diplomatic asylum, in the years following the coming into
force of the Havana Convention.
Considerations of time and space, and the lack of information
regarding the course followed by all of the Parties to the Convention,
prevent a comprehensive examination of all aspects of this test. It will
be sufficient to examine the course followed by Colombia and Peru in
granting asylum, and in recognizing the grant of asylum by other
countries, during the last twenty-two years.
With regard to Colombia, it is sufficient to note that there was no
break in Colombian practice in the matter of the grant of asylum by
Colombian diplomatic missions, or in the recognition of asylum
granted in Colombia by the diplomatic missions of other Latin-
American States. There was no indication of any tendency to restrict
the grant or recognition of asylum to cases in which a political
offender was not seeking protection from arrest, prosecution and
punishment by the local authorities.
With regard to Peru, it is equally clear that, prior to March 21st, 1950,
there was no change in practice. Disregarding the Spanish Civil War
cases which were of a special character, Peru recognized the grant of
asylum by the Bolivian Legation in 1930, granted asylum in
Guatemala in 1944, in Bolivia in 1946, and in Panama in 1948, and
recognized grants of asylum by the Brazilian, Paraguayan,
Colombian, Chilean, Uruguayan and Venezuelan Embassies in Lima
in 1948 and 1949. Even the course followed in the case of Señor
Haya de la Torre did not indicate any change in practice. Throughout
the diplomatic correspondence, Peru strongly contended that
Colombia was not entitled to grant the asylum because the refugee
had been accused of a common crime. It was urged, with equal
vigour, that Peru was not bound to give a safe-conduct, and that
Colombia did not have a right of unilateral qualification. It was not
contended that the grant of asylum was invalid, on the ground that it
had not been an "urgent case". It was not argued that asylum [p325]
could not be accorded when its purpose was to enable a refugee to
escape from prosecution or imprisonment by the local judicial
authorities. There is only one possible explanation for this omission;
namely, that, at that time, the Peruvian Government considered that
the conditions of urgency contemplated by the Havana Convention
existed in Lima in January 1949.
There is the strongest possible confirmation of this explanation in the
"Official information from the Ministry for Foreign Affairs" published in
the Official Bulletin of the Government of Peru, El Peruano, October
26th, 1948, and cited in the Memorial, paragraph 39. An attempt was
made by Colombia to treat this document as committing the
Government of Peru to acceptance of the doctrine of unilateral
qualification upon which it was largely based. I do not dissent from the
action of the Court in rejecting this extreme view of the nature and
significance of the document. But that does not mean that the
document has no significance. While it may not have conformed to the
view of the Military Junta, it remains an official statement of the views
of the constitutional Peruvian Government as to the nature and scope
of diplomatic asylum. It is the strongest possible evidence that the
Peruvian Government, on October 26th, 1948, did not consider that
the "First" provision in Article 2 of the Havana Convention, in using the
expression "urgent cases" could be regarded as restricting asylum to
refugees fleeing from angry mobs or revolutionary tribunals. All of the
"asylees" whose position was explained in this document were
political offenders, fugitives from the ordinary administration of justice
in Peru.
While it is impossible to review the practice in all of the Republics
which were Parties to the Convention, and while the references to the
attitude adopted by Bolivia, Guatemala, Panama, Brazil, Paraguay,
Chile, Uruguay and Venezuela are incomplete, there is one fact that
emerges from the state of the record in this case. There is not one
instance, cited by either Colombia or Peru, in which a Party to the
Convention has refused to grant or to recognize diplomatic asylum to
a political offender "in times of political disturbance" on the ground
that he was seeking to escape from arrest, prosecution or
imprisonment, for a political offence, by the judicial authorities of the
territorial State. If there had been such an instance, it is inconceivable
that it would not have been included in the voluminous documentation
of this case.
It is impossible to escape the conclusion that the Parties to the
Convention have acted over a period of twenty-two years upon the
understanding that the use of the expression -"urgent cases" was not
intended to be a bar to the grant of asylum to [p326] political
offenders, seeking to escape from prosecution for a political offence
by the local judicial authorities, "in times of political disturbance".
Accordingly, the Peruvian interpretation fails to meet the third test.
On the positive side, the application of this test supports an
interpretation of the expression "urgent cases" as covering cases of
asylum granted to political offenders "in times of political disturbance",
and as excluding it during periods of tranquillity.
The three tests lead to the same results. They lead to the rejection of
the new Peruvian interpretation of "urgent cases" ; and they lead, with
equal force, to the acceptance of the view put forward by the Peruvian
Foreign Ministry on October 26th, 1948. This is a clear and
unequivocal statement of the views of the Government as to the
nature and extent of the obligations imposed on Peru by the
conventional and customary rules binding on that country. It is also
noteworthy that it contains a clear statement on the point which is
under immediate consideration. It reads as follows:
20
"Diplomatic asylum is based on a desire for humanitarian protection in
times of political disturbance and on the recognized inviolability of the
seats of diplomatic missions. Therefore, it must be recognized in favor
of persons prosecuted for political reasons."
In stating that diplomatic asylum "must be recognized in favor of
persons prosecuted for political reasons", the Government was taking
the position that a person seeking to escape from prosecution by the
local judicial authorities could be an "urgent case" within the meaning
of Article 2 of the Havana Convention. In saying that "diplomatic
asylum is based on a desire for humanitarian protection in times of
political disturbance", the Government of Peru was furnishing the key
to the solution of the problem. Nowhere in the extensive
documentation of this case can we find a clearer or more convincing
interpretation of the expression "urgent case". Nowhere can we find
any other interpretation which will satisfy the three tests set forth
above, as well as any other tests which would be permissible under
the rules of international law governing the interpretation of treaties.
Accordingly, I am compelled to reach the conclusion that the
expression "urgent cases" must be construed as restricting the grant
of diplomatic asylum, as regards political offenders, to cases in which
the grant is made "in times of political disturbance" of a revolutionary
character, and as preventing the grant of asylum during periods of
tranquillity.
The question remains whether the third day of January, 1949, has
been proved to have been a time of political disturbance of a [p327]
revolutionary character. This is a matter peculiarly within the
knowledge of the territorial State, and, in my opinion, Colombia was
not bound to establish more than a prima facie case. There can be no
doubt that Colombia has discharged the burden of proof to this extent.
On the other hand, Peru has not furnished a scintilla of evidence with
regard to political conditions obtaining in Lima at the beginning of
January, 1949. The Agent for Peru in the Rejoinder stated: "We do
not propose to describe the internal situation of Peru which justified
the promulgation of the decrees mentioned by Colombia" (the decrees
mentioned included that under which a state of siege was proclaimed
on January 2nd, 1949). Certain assertions were made on behalf of the
Peruvian Government as to conditions obtaining at that time, but they
were incomplete and, even if accepted in the absence of proof, they
did not cover all relevant phases of the conditions existing at the date
in question. In these circumstances, I am of the opinion that it is
necessary to make a finding in favor of the Colombian contention in
this respect, namely, that January 3rd, 1949, was a time of political
disturbance in which a request from a political offender for protection
against prosecution by the local authorities could be regarded as an
"urgent case" within the meaning of the Convention.
It is unnecessary at this stage to do more than indicate the extent of
the prima facie evidence submitted by Colombia to prove the
existence of a period of political disturbance at that time. It is sufficient
to indicate that the period of disturbance lasted until February 17th,
1949. Beyond that date, there is nothing in the record to justify an
assumption that disturbed conditions continued or disappeared. The
evidence is as follows:
1. The state of siege proclaimed by the Government of Peru on
January 2nd, 1949, and extending for a period of 30 days. It is true
that under the Peruvian Constitution the proclamation of a state of
siege did not prevent the functioning of the ordinary courts of justice.
On the other hand, it is conclusive evidence of the fact that the
Government of Peru was at that date of the opinion that a period of
political tranquillity had not been reached, but that political conditions
were so disturbed that it was necessary to continue the state of siege
and the suspension of the constitutional guarantees.
2. Apart altogether from the proclamation of a state of siege, there is
unmistakable evidence that the Peruvian Government was of the
opinion that the conditions up to the 17th February, 1949, were such
that a grant of asylum in Lima could be regarded as an "urgent case"
within the meaning of the Havana Convention. During this period the
Peruvian Government acted on this assumption, and as late as
February 17th, 1949, delivered safe-conducts to the Uruguayan
Ambassador (Reply, Annex 1). [p328]

3. In addition to the appraisal of the situation made by the Peruvian
Foreign Office and by the Colombian Ambassador, it has been
established that the Ambassadors of Bolivia, Guatemala, Panama,
Brazil, Paraguay, Uruguay, Chile and Venezuela considered that the
political situation in Lima was so disturbed that grants of asylum to
political offenders could be justified as "urgent cases" within the
meaning of the Convention. These transactions took place at varying
dates extending beyond the middle of February, 1949, and none of
the cases seemed to be grants of asylum for the purpose of escaping
from angry mobs. The action of these Ambassadors is not conclusive,
but it is difficult to believe that they could all have been wrong in this
respect, and that their error could have been shared by the Peruvian
Ministry for Foreign Affairs.
4. This was not a case of conflict between a lawfully established
constitutional government and a person alleged to be a leader of a
revolutionary party. It was a conflict between two revolutionary
groups. The record shows that the successful group had staged a
revolution in August, 1948, which had failed; and a second revolution
on October 27th, which had succeeded. This group, which described
itself as "The Military Junta of the Government", was exercising
supreme legislative and executive powers in Peru.
This Military Junta, which had gained power by unconstitutional
means, as its fourth official act, made a Decree-Law, dated November
4th, 1948, and published in El Peruano on the following day, with
harsh measures directed against rebels. The provisions of this Law
were in striking contrast to those of the Peruvian Constitution and
Codes which have been brought to the attention of the Court.
I do not think that it has been established that the provisions of this
Law could have been invoked against Señor Haya de la Torre. On the
other hand, they demonstrate the extreme nature of the legislative
and executive powers which were, in fact, being exercised by an
unconstitutional'military junta. They point to the fact that orderly
government had not been restored in Peru.
It seems clear, therefore, that Colombia has established considerably
more than a -prima facie case, and that the Court should find that the
grant of asylum to Señor de la Torre was an "urgent case" within the
meaning of the Convention.
Before stating my final conclusions on the counter-claim, I must deal
with some other points which affect the case. [p329]
It has been contended that urgency is lacking in this case because the
grant of asylum on January 3rd, 1949, by the Colombian Ambassador
was three months after the second rebellion, two months after the
third and successful rebellion by the Military Junta, and 48 days after
the summons of November 16th, 1948. It must not be overlooked that
the fugitive was a political leader, well known in Peru, and if he had
remained in hiding for three months and if he had refused to comply
with the summons, which has not been proved in these proceedings,
there may have been good and sufficient reasons entirely consistent
with urgency. It was undoubtedly necessary for him to remain hidden
until the hue and cry had diminished to the point where he could reach
an embassy in safety. If a right to grant the asylum existed, a delay
reasonably necessary to take advantage of this right under the treaty
could not impair the validity of the grant.
Further, the suggestion that 48 days or even three months was an
unreasonably long time seems somewhat unrealistic to any person
who possesses any knowledge of the history of revolutions, whether
in Latin-America or in other parts of the world. It should not be
overlooked that the contention, if accepted, would destroy the
foundation of the case presented by the Government of Peru. It
implies that if the fugitive had arrived at the Colombian Embassy at an
earlier date, say Christmas or Thanksgiving Day, there would have
been urgency and the grant by the Ambassador would have been
valid, but even at the earlier dates the effect of asylum would have
been to protect the fugitive from prosecution by the local authorities.
There is another point of greater importance. This opinion has been
confined to the question of the grant of asylum; and, apart from an
21
incidental remark, maintenance has not been mentioned. Further, the
case has been discussed in the light of the circumstances when the
Colombian Ambassador granted the asylum; and facts intervening
during the diplomatic negotiations or pending the proceedings before
this Court have been treated as irrelevant.
Beginning with the first point, maintenance, it would be improper for
me, as a judge, to pass on the matter. The Peruvian Government has
made its request to the Court in precise terms. It has confined the
issue to the question of grant ("l'octroi''). My reasons for adopting this
view may be stated shortly:
(a) What did Peru ask the Court to decide? Peru asked the Court to
adjudge and declare "that the grant (l'octroi) of asylum by the
Colombian Ambassador at Lima to Victor Raul Haya de la Torre was
made in violation of Article I", etc. [p330]
(b) What did Peru mean when its Agent used this language?
Ordinarily, it would be enough to say that the Peruvian Government
meant what it said. The words used "1'octroi de l'asile" mean the grant
of asylum—and do not mean "grant and maintenance".
In this case, however, the meaning of "l'octroi" has been given a
double demonstration by Peru. The fact that Peru made a fruitless
effort to bring the question of "maintenance" into the case, by putting
forward a new counter-claim based on "maintenance" during the oral
proceedings, is proof that Peru did not think that it had already been
brought before the Court by the language used in the original counter-
claim.
Further, the Peruvian Government has explained, in unequivocal
language, what its Agent meant when he made the counter-claim. The
statement was made in the course of the oral proceedings:
"The essential reason for the presentation of the counter-claim was to
induce the Court to declare that, at the moment when the asylum was
granted, the accused man was not exposed to any physical and
transient danger such as would result from the action of an angry
mob, rioting, the impotence of the government, or even from the
constitution of an extraordinary tribunal, a tribunal of vengeance. That
is the essential basis of our counter-claim. If that danger did not exist,
and a fortiori if it did not persist, there was no reason for granting
asylum. Accordingly, it is only as a quite subsidiary and secondary
issue that we have discussed the point whether it was a question of a
common crime or of a political delinquency, or whether M. Haya de la
Torre was guilty or innocent. That point is entirely, or almost entirely,
outside the debate. We might have argued that you had no jurisdiction
to decide on it, and that the only question we were asking you to
answer was whether at the moment when the asylum was granted,
and at the present time, the refugee was exposed to any danger, and
whether, in consequence, the asylum was legitimate or otherwise."
The first sentence in the quotation takes in the original counterclaim,
and shows that Peru meant to ask the Court to decide on the grant
and not the maintenance of the asylum. The last sentence takes in
both the original and the new counter-claim made on October 3rd, and
repeated on October 9th in the course of the oral proceedings. It
shows that Peru meant to ask the Court to decide on the grant and
also on the maintenance at the present time ("l'heure actuelle"); but
not on the question of maintenance between this original grant and
the date of the judgment of the Court.
(c) My third reason for refusing to interpret "grant" as including
"maintenance" is to be found in the attitude of the Parties in this case.
[p331]
Peru has not—either in the diplomatic correspondence, in the
pleadings or in the oral proceedings—called on Colombia to surrender
the fugitive. This attitude was fully explained in the Counter-Memorial.
The explanation given reserved the right to demand surrender; but it
also showed that Peru recognized that there were political as well as
legal factors involved, and that there was no desire to raise the
question of surrender (and maintenance is inseparably connected with
surrender) pending the settlement of the legal questions put to the
Court in the counter-claim.

In fact, apart from the original grant of asylum, there has been no
actual issue of maintenance between the Parties. It was necessary to
keep the fugitive in the Embassy to preserve the matter in status quo
during the period of diplomatic negotiation. It was equally necessary
to retain him while the case was pending before this Court. In the
absence of a demand for his surrender, his retention was with the
concurrence of the Peruvian Government.
It is necessary to emphasize that I must confine my opinion to the
counter-claim as presented in the final submission of the Peruvian
Government made on October 9th, 1950. The request that the Court
should adjudge and declare "that in any case the maintenance of the
asylum constitutes at the present time a violation of that treaty" must
be rejected, because it was made in the course of the oral
proceedings contrary to the provision of Article 63 of the Rules of
Court. Its acceptance would deprive the Colombian Government of its
procedural right to answer this new counter-claim in the Reply, and to
present evidence in respect of it. With regard to the original counter-
claim, I am bound to limit my opinion to the question as to whether
"the grant of asylum by the Colombian Ambassador .... was made in
violation of" the provisions of the Convention.
For all of these reasons, I am compelled to reach the conclusion that it
has been established that the asylum was granted by the Colombian
Ambassador to a political offender "in times of political disturbance"
between a successful revolution and the restoration of settled
conditions in Peru. It follows that this was an urgent case and that the
grant of asylum by the Ambassador was not made in violation of the
provisions of Article 2 of the Havana Convention.
(Signed) J. E. Read.
[p332]
DISSENTING OPINION BY JUDGE AZEVEDO
[Translation]
Much to my regret, I am obliged to dissent from the reasons and the
conclusions adopted by the Court in its Judgment and to state my
personal views on those various points.
1. Care must be taken that an exaggerated application of the
grammatical method, excessive concern for the intention of the
authors of a text and strict adherence to formal logic should not lead
to disregard of the manner in which a legal institution has become
adapted to the social conditions existing in a certain part of the world.
It should be remembered, on the other hand, that the decision in a
particular case has deep repercussions, particularly in international
law, because views which have been confirmed by that decision
acquire quasi-legislative value, in spite of the legal principle to the
effect that the decision has no binding force except between the
parties and in respect of that particular case (Statute, Art. 59).
Technical procedures may be applied in such a strict manner that a
chivalrous and traditional institution, the utility of which is universally
acknowledged, may be weakened and transformed to such an extent
that it becomes something akin to a police measure. Thus, in the field
of asylum, the distinction on which the institution is based, i.e.
between political offences and common crimes, is disregarded: the
difference between respect in the first case and prohibition in the
second disappears.
If indeed the main concern is the material protection of the individual
against the excesses of an unruly mob during the time strictly
indispensable to surrender the refugee to the local authorities, and if,
on the other hand, it is inconceivable that temporary protection
against lynching should be refused even to the most infamous
common criminal during the time indispensable for their surrender to
the custody of the territorial State, then all distinction disappears.
It would be equally possible to consider that a refugee is in safety by
virtue of his surrender to the local authorities, even after it has been
agreed that he is merely a political offender, without even a
22
reservation concerning punishment for common crimes of which he
may be subsequently accused, as is the rule in the case of extradition.
2. Reality, as I see it, is quite different, and the most firmly-established
traditions of Latin America which ensure the advantages [p333]
of asylum to all persons accused of political crimes or offences, either
during revolutions or in the more or less disturbed periods that follow,
do not appear to me in the same light. This result goes beyond the
intentions of the draftsmen of the Treaty of 1928 and rests, not on the
sole grounds that the administration of justice should be presumed to
be defective, but on the fact that such an adulteration is always
possible in troubled times and that it is better in each case to avoid an
inquiry which would be more offensive to the country concerned than
a general provision which is always applicable on the basis of strict
reciprocity.
No one disputes the fact that international law may be influenced by
special factors which are perfectly compatible with it. This secondary
formation may result from various factors such as those of race,
religion or geographical proximity.
Diplomatic asylum is a striking example of the necessity of taking into
account, in the creation or adaptation of rules of restricted territorial
scope, of geographical, historical and political circumstances which
are peculiar to the region concerned—in this case the twenty nations
of Latin America.
In Europe, where social changes are rare but serious, the institution of
asylum tends to disappear; in Latin America, however, where
revolutions are less serious but much more frequent, the adaptation
and development of this ancient practice has progressed, gaining
force with each convention signed, and it is still not yet possible to
foresee the high point, much less the low point, of the curve.
3. In that region, asylum has practically dated from the autonomy of
the States concerned, which have been independent for less than a
century and a half. The extent of the application of this institution is
confined to the territories of Central and South America, and I cannot
recall a single State that has remained aloof from the action of asylum
in its two aspects. Hundreds of persons have benefited from asylum,
and the protection of those precious lives weighs more with me than
the punishment of a few political offences.
Apart from humanitarian considerations, however, which are clearly
individualistic in character, asylum has another even more important
aspect. It is also a highly social institution and has a deep educational
action towards the control of passions, the exercise of self-control,
and the respect for a rule which is so deep-rooted that it has become
almost sacramental. This practice has asserted itself even on the
most powerful de facto governments which have assumed power in
the course of civil wars. At the most critical times of political strife, this
fraternal voice is heard calling upon the combatants to separate and
urging men to clemency. [p334]
That deep-rooted intuiton is more powerful than any technical
subtleties, and it is the first time that a dispute of this kind has been
submitted to international jurisdiction, the few difficulties having been,
so far, easily overcome.
If environment and other relevant factors are disregarded in favour of
the literal interpretation of one single condition, the result would not
then be a case of summum jus, but of an element of disturbance,
which, far from contributing to peace, would be responsible for
increasing the number of disputes and perhaps even of civil wars in
America.
4. In my opinion, the institution of asylum in Latin America may be
summarized as follows:
(1) It applies not only to political offenders, properly speaking, but also
to persons who are persecuted for political reasons, as explained in a
purely declaratory manner in Article 2 of the Montevideo Convention
of 1939: all political opponents are protected, whether they be
statesmen in disgrace or politicians who have failed in their attempt to
overthrow the government.
(2) Its exclusive, if not its principal, purpose is not to protect the
refugee from the excesses of a mob. Such excesses as may have
sometimes occurred in the overthrow of corrupt dictators, remain rare
because of the natural sympathy of the people for those in trouble.
The purpose of asylum is not only to protect life, but especially to
safeguard liberty against every kind of persecution.
(3) Its purpose is not only to prevent the application of ad hoc
legislation by exceptional courts, but also to protect the refugee
against ordinary justice, in cases of political offences which, by their
very nature, do not lend themselves to judicial appreciation, and are
sometimes deferred to political organs following a procedure of
impeachment. Extradition of political offenders is refused the world
over, even when requested by countries living under a normal
constitutional regime. This fact is especially noteworthy, since the
country of refuge does not itself take measures to punish the refugee,
at least not to the extent it would punish an identical offence
committed on its own territory. This attitude, however, would deprive a
refusal of all moral justification and would reveal the doubts
entertained concerning the proper administration of justice in the other
State.
(4) Urgency, which may be interpreted in a number of ways, cannot
be determined in relation to a unit of time, but in relation to various
factors, including even the geographical difficulties of external refuge,
which can be reached much more easily in densely-populated areas
where rapid means of transportation are available to nearby frontiers.
[p335]
(5) Periods of constitutional abnormality are among the first factors to
be considered in assessing the danger threatening the refugee when
the rule of law is suspended or practically ceases to exist. Serious
concern for the safeguard of justice is then justified because of the
direct or indirect pressure which unlimited power may exercise on
ordinary or extraordinary courts.
(6) The restrictive clause on the duration of asylum, apart from being
obviously illogical if the departure of the refugee depends on the
goodwill of the other State, cannot be interpreted in the sense that the
surrender of the refugee to the local authorities is an equivalent form
of guarantee. On the contrary, because of the irreparable character of
its consequences, asylum, if regularly granted, cannot in any way
terminate without the consent of the refugee.
(7) Like extradition, asylum is instantaneous in its character and
should be judged in relation to a very definite moment. Subsequent
events, and their unpredictable developments, may sometimes
assume an unexpected direction, but they merely represent the
consequences and the conclusion of a previously existing legal
situation.
5. To state these fundamental points does riot imply that asylum may
be granted without careful consideration. Indeed, this would increase
the frequency of social disturbances and encourage the initiative of
adventurers specializing in asylum. That is why a diplomat should not
be approached concerning the attitude he may adopt in the future,
should such a case arise. The regulations issued to the Brazilian
diplomatic service expressly provide that diplomatic officials shall not
offer asylum to anyone seeking it or lead such a person to the seat of
the mission (H. Accioly, Traite de droit international public, Paris,
1940-1942, tome II, paragraph 1170/A). Moreover, asylum would not
thereby be made easier, for it is inconceivable that a diplomat would
welcome these alien guests, who are the cause of serious
inconvenience and considerable trouble.
To prevent abuse, American writers on international law (see H.
Accioly, op. cit., paragraphs 1170/A and 1173; Heitor Lira, Revisto de
Direito, Rio de Janeiro, v. 126) warn against any exten-sive
interpretation of this institution and restrict the grant of asylum to
grave circumstances. Governments, as we have just seen, often send
instructions to this effect to their diplomatic agents.
On the other hand, a strict interpretation should not lead to the
23
distortion of the purposes of asylum, or, in practice, bring about its
abolition by excessive respect for the letter of the texts or even of
mere preambles.
6. We have already mentioned the antiquity, extent and, particularly,
the continuity of this practice. It is indisputable that [p336] Latin-
American countries practise asylum extensively, whether actively or
passively; they sign conventions, even if they sometimes fail to ratify
them; they make solemn declarations, they issue press
communiques, they praise the services rendered by asylum. In a
word, they appear generally proud of the extensive and continued
application of this ancient institution.
But it will be argued that such a practice, if it is interrupted, cannot be
regarded as a custom and that the Parties have dwelt particularly on
the contradictions in their respective practices.
The difficulties involved in referring "to custom as a source of
international law are well known; custom plays a most important part
(the principal part, according to certain writers) in the development of
international law.
It is therefore necessary to consider the examples of interruption in
the practice in order to determine their true nature and decide whether
they suffice to destroy the value of other concordant cases which, by
their number, would clearly reveal an opinio juris. In the present case,
it will be necessary, for example, to consider whether the nature and
the purpose of the institution, as they may be deduced from the form it
has assumed in that part of the world, have been affected by the
exceptions or whether, on the contrary, the latter merely prove the
rule. But these exceptions are only the result of personal attitudes and
rather reflect the conduct of governments in defiance of the juridical
conscience of States which had previously been firmly established.
Such transitory or episodic reactions are always the counterpart of
political situations in the process of consolidation and rarely arise from
the normal functioning of constitutional organs. Viewed from another
angle, these sporadic reactions have an abnormal character when
they are confined to one aspect of asylum—the reluctance to
recognize the measures taken by a foreign -diplomat, whereas the
recalcitrant State continues to grant asylum in other countries. It is
unnecessary to qualify such conduct.
No value can attach to such weak elements, even if they assume, as
has already occurred, the strange form of the abolition of asylum by
unilateral declaration, for such an abolition is always immediately
followed by a return to the previous practice, which is thus
strengthened by facts and not merely by presumptions, although
doctrine may consider the latter sufficient. The opponents of the
voluntary theory even go so far as to say that it is impossible to seek a
psychological element which remains necessarily intangible (Paul
Guggenheim, Les deux elements de la coutume Internationale, in "La
technique et les principes du droit public, Etudes en l'honneur de
Georges Scelle", Paris, 1950, Vol. I, pp. 276 et sqq.).
On the contrary, those occasional denials constitute violations of an
already established rule, for a State cannot oppose a custom
previously accepted. [p337]
To destroy such a custom, a clear, coherent, unilinear attitude would
be required, such as that of the United States for instance, which,
while refusing to become in any way involved in the institution of
asylum adopted by their sister-republics, have in practice shown
toleration in some extreme cases, although with restricted effects.
7. What is the value, however, of such a custom as against
conventions, and even a complex of conventions, the signature and
ratification of which sometimes reveal a certain lack of consistency in
the principles of the States belonging to the group which establishes
them?
There is no need to go into the matter of the derogative action of
treaties upon custom, nor into the question of the compatibility of the
two sources of law. It will be sufficient to emphasize that treaties often
embody principles already established by custom, and thus have a
declaratory effect with regard to customary rules. This role is greater
in a system where the field of written law is progressively extended by
the reception of new practices which have manifested themselves in
the interval.
It is then very dangerous for a State to proclaim that it is bound only
by the treaties which it has signed and ratified. This purely gratuitous
declaration is rather daring, particularly at a time when the contractual
element is undergoing an obvious and deep change by virtue of the
para-legislative action of an international character which is being
developed even at the cost of substituting the majority principle for the
principle of unanimity.
Thus, in a course at the Academy of International Law, Professor
Balladore Pallieri referred to the current observation to the effect that
"a large number of Pan-American conventions are observed, even by
States which did not ratify them, and that they often become common
and general law for America" (Recueil des Cours, 1949, Vol. 74, p.
540).
This practice is so deep-rooted that it may be observed that on
several occasions in respect of the Treaty of mutual assistance signed
at Rio de Janeiro on September 2nd, 1947, the signatories could not
participate in the voting provided for in that Treaty unless they had
ratified it.
8. To show the force of custom in the field of asylum in Latin America,
it is sufficient to recall the significant fact that Spain was almost
compelled to accept not only the institution of asylum, but also to
comply with regional agreements, even though these had not been
ratified by several American States, on the grounds that the mother-
country was bound to accept from her numerous offspring a sort of
estate in reversion.
Another decisive test may be mentioned. Very few of the twenty
States of the group ever ratified or even signed a treaty on asylum.
The names of Bolivia and Venezuela come to mind. In [p338]
so doing, did they avoid the general practice, or did they at least adopt
other principles ? On the contrary, they practise asylum naturally, like
the other States, invoking and accepting indis-criminately the
application of principles contained in regional treaties.
There is a third, though minor, factor, and that is the practice of
immediately requesting a safe-conduct without awaiting the initiative
of the territorial State. It is therefore not proper to deduce from the
failure to ratify a new convention the conclusion that the State
concerned remains outside the group in which the custom is
respected.
9. In order to refute the claim that we should return to a literal
interpretation of the texts, it will be necessary to add to these general
data concerning the environment and the spirit of the continent two
further considerations which apply particularly to the Respondent,
although doctrine and jurisprudence are not concerned with seeking
the recognition of custom in the practice of the contesting States (A.
Verdross, Recueil des Cows, Vol. 30, p. 295).
On the one hand, on October 12th, 1948, the respondent Government
recognized in an official note the respect of international obligations
concerning established practices (Memorial). On October 26th, 1948,
while already confining itself to conventions which it had ratified, the
Respondent acknowledged the right of diplomatic agents to require
the necessary guarantees for the departure of the refugee. This right
cannot be disregarded, any more than the right to qualify the offence.
In those conditions, the Court cannot readily suppose that an error
has been committed, as was subsequently contended.
This was no extraordinary and isolated declaration of the Executive—
of lesser importance than that accepted by the Permanent Court in
the famous Eastern Greenland case, and I believe that in so doing
that Court was applying international law—but a declaration merely
interpretative of treaties, and in harmony with the normal attitude of
the State (J. L. Brierly, Recueil des Cours, Vol. 58, p. 71), and which
moreover is in accordance with views accepted and recognized by all
American countries (Memorial).
24
On the other hand, on October 20th and 28th, 1948, it seemed natural
to the diplomatic representatives of the Respondent in Guatemala and
Panama to ask territorial States to recognize the protection granted by
the Havana and Montevideo Conventions on Asylum (Memorial),
whereas it was necessary to establish that the State of refuge would
in any case not practise asylum to a greater extent than was
warranted by its own usages, conventions or laws. [p339]
These two considerations may lead to the belief that application more
geométrico of treaty clauses—even by a court deciding strictly in law
—would be difficult to justify.
But let us admit, for the sake of argument, that it is necessary to
return to the pure theory of the autonomy of the will, irrespective of the
direct action of custom exerting itself alongside that of treaties in
functions which are normally exercised prater legem. Even then, it
would not be possible to disregard the profound action of custom as a
preponderant factor in the interpretation of any text adopted on the
same subject, especially if such action assumes a character of
reciprocity (H. Lauterpacht, Recueil des Cours, Vol. 62, pp. 157-161).
10. It has already been pointed out that the purpose of asylum, as
traditionally practised in Latin America, is not only to protect the
person of the refugee, but also to remove him from the juris-diction of
territorial courts for political offences, just as in the case of refusal of
extradition.
Concern for a good administration of justice is thus shown in the same
way in both institutions as regards political offences which are purely
of an artificial or conventional nature (G. Sotgia, II delitto politico,
Rome, 1950, pp. 20 and 98).
The question might arise, however, whether this protection against a
mere legal danger, the danger of unfair trial and condemnation,
should not be set aside in the case of asylum, which differs from that
of extradition in the sense that the offender continues to remain on the
territory of the State of which he is a national, while protected not by
the obsolete fiction of exterritoriality, but simply by immunities granted
to a foreign diplomat.
To dispel this doubt, it is enough to recall other examples in which
international law, without any personal reflection on municipal judges,
does not comply with their final decisions and recognizes
compensation based on a denial of justice. This amounts to reciprocal
control, which must be tolerated in the absence of a super-State
order. The situation is the same in the case of recognition of individual
rights below a certain standard type, even if this inadequate regime
applies to nationals.
Continual efforts are being made at the present time to establish on
an international plane a judicial organ to correct the inadequacy of
municipal courts, so that the new Declaration of Human Rights may
not remain a dead letter.
In this way the French law of March 10th, 1924, provides that
extradition shall not be granted even in cases of common crimes if the
request has been made with a political end in view (Art. 5, para. 2),
and the grounds for such a provision have been very [p340] aptly
explained by Professor Donnedieu de Vabres ( Traité de droit pénal et
de législation pénale comparée, 3rd éd., 1947, para. 1791).
Already in the municipal laws of some countries a prejudiced local
attitude constitutes a legal reason for transferring the trial of a criminal
to the assizes of another district, sufficiently remote not to be
disturbed by the repercussions of the crime.
Finally, it would be difficult to understand why, in America, if the
purpose of asylum was not to protect a political offender from ordinary
courts, the territorial State should resign itself, in every case, to accept
this serious consequence simply by courtesy or goodwill, even if at
the outset that State sometimes makes a certain attempt to oppose it.
This fact is evident and irrefutable: it has just been naturally admitted,
before or after a categorical denial.
Reference has been made to a certain lack of clarity in the
circumstances of the numerous cases of asylum described before the
Court by the Parties, but there is one point which in any case is
beyond dispute—and that is, that among the means by which asylum
was terminated does not appear the surrender of the refugee to the
local authorities without his consent, even if the prevailing conditions
had changed.
There is no known case to the contrary, and, as an indication of the
extent to which the diplomatic code of honour is respected, the
famous case may be cited in which a refugee wished to renounce the
protection and surrender himself to the local authorities; on that
occasion the Ambassador who, incidentally, was accredited in Latin
America by a European country, demanded an explanatory letter,
signed not only by the refugee, but countersigned by persons who
were removed from constraint of any kind, and in that instance the
letter was widely publicized by the Ambassador.
This fact is to be explained by the decisive consideration that the
withdrawal of the favour which had been granted to the refugee would
greatly aggravate his position. He could not be sent away with
impunity ; having lost his hiding-place and by appearing in the full light
of day, he would become the object of special vigilance and would be
deprived of the means of seeking another form of refuge, which would
have been easier for him to do before leaving the Embassy.
11. Would not this evident restriction to sovereignty offend national
feelings, particularly in America, where countries are most jealous of
their independence, and have initiated well-known continental
doctrines like those of Monroe, Drago, Porter, etc.? A mere reference
to widespread historical factors shows that preoccupations of
sovereign equality among American States are not based on inter-
continental reasons, except in some exceptional [p341] cases in the
past, which showed apprehension of the extremes of a political
hegemony without counterpart on the continent itself. The Charter of
the Organization of American States, signed in Bogota on May 2nd,
1948, provides that an act of aggression against one American State
is an act of aggression against all the other American States (Art. 5 f).
Particularly in the Latin-American group, there are no susceptibilities
to trouble the fraternal atmosphere and the smallest country will, as a
matter of course, grant asylum and ask the most powerful State for a
safe-conduct without the slightest hesitation and with the clear
conscience of exercising a right. Considerations of sovereignty easily
give way to a superior spirit of justice in matters concerning the
protection of the inalienable rights of man, even before the
spectacular reception of the individual into the international field, as a
result of the decision of the United Nations Assembly in Paris in 1948.
It must also be observed that in the Treaty of Rio de Janeiro of
September 2nd, 1947, for the common defence of the continent, two
procedures and two solutions were adopted depending upon whether
the aggression was external or by an American State.
M. Levi Carneiro, Brazilian jurist now Counsellor to the Ministry for
Foreign Affairs, referring to the best-known authors of the Northern
and Southern American continents, says that asylum is not to be
considered merely as the result of humanitarian concern, but as a
preoccupation of justice—even of individual justice—based on a
certain reserve, a certain distrust of executive organs of the
government and the courts of the country of the accused or of the
individual persecuted. The first grants of asylum were not motivated
by humanitarian reasons alone. They therefore imply certain
manifestations of opinion regarding the domestic affairs of the country
(0 direito internacional e a democracia, Rio de Janeiro, 1945, p. 140).
Besides, Article 3 of the Havana Convention has turned the old
discussion on the nature of asylum—whether a right or a mere
humanitarian practice—into an academic question. It was illogical in
itself, as it opposed two heterogeneous factors, namely, cause and
effect. A right may be based on ethical considerations or take its
source from economic, political or other factors. In any event, the
Convention has decided that the effects of asylum are the same,
whatever the reasons for which it was granted.
25
If the relation between the individual and the State granting asylum
alone is considered, any restriction may become an anachronism
when asylum begins to be treated not as a mere option but as [p342]
a right, recognized in its external aspect by the Declaration of Human
Rights.
The time is happily past when the preparatory work of the 1930 Rocco
Code in Italy referred to the fact that ' 'the right of political asylum is an
anachronism incompatible with the situation of a strong State".
As early as 1939, Uruguay proposed the insertion in the Convention
of a rule to replace the faculty for the diplomat to grant asylum by an
obligation which he assumed vis-á-vis any individual who might need
such protection (Franchini Netto, O asilo diplomático e o costume
internacional, Sao Paulo, 1939, p. 100). Consequently, it is not a mere
toleration, which would moreover be incompatible with any
codification if asylum were to depend upon the goodwill of each
government. On the contrary, a European writer, Cabral de Moneada,
has emphasized the future of this institution in international law in
respect of the determination of the minor rights of the human person
(O asilo interno em Direito internacional publico, Coimbra, 1946, p.
158).
12. To understand the true American spirit, it is necessary to take into
account other elements which might easily pass unobserved outside
the continent.
For example, the Convention of 1928 on the effects of treaties
contains a clause which says that treaties will continue to have effect
even if the Constitution of a signatory State is modified (Article II).
Finally, it was the American nations which, for the first time in the
world, directly and explicitly agreed that a majority of them be
empowered to take decisions binding upon all. This majority was two-
thirds, and applied in matters of great importance such as mutual
assistance in case of aggression, but did not apply to armed
collaboration which continued to depend upon the consent of each
State (the above-quoted Treaty of 1947, Articles 8, 17 and 20).
13. It matters little that, in the question of recognition of new de facto
governments, the collective action of American countries has not yet
made it possible to arrive at a definite solution by means of
preliminary consultations. In accordance with new trends and
doctrines such as those of Estrada, Tobar, Larreta, etc., there is an
attempt to demand a perfect and immediate application of democratic
principles after any political change (Charles Fenwick, The problem of
the recognition of de facto governments, "Inter-American Juridical
Yearbook, 1948, Washington, 1949, p. 18).
At any rate, there can be no comparison between the two cases, for
the need to establish and maintain good-neighbourly relations
explains why certain formal conditions have to be accepted for the
recognition of a government as, for instance, apparent stability, [p343]
the maintenance of public order, or respect for international
undertakings.
But these conditions do not justify the sacrifice of all concern for
justice and the safeguard of the dignity of the human person.
Restrictions on the administration of justice in the political domain do
not offend governments to the same extent as a refusal of recognition,
even if the new government owes its existence to force.
That is why the Latin-American countries have so willingly accepted
the consequences of asylum which, at first sight, might gravely
encroach upon their sovereignty; moreover, the reciprocity which is
the basis of this institution deprives this measure, adopted by a
restricted group of States, of any aspect of intervention. It was
therefore considered preferable to accept, even at the price of
impunity, a privilege which was tantamount to a sort of amnesty
having a general application in which any personal suspicion of the
members of the judicial system of such a country was removed.
Even admitting that the intention at Havana in 1928 was to put an end
to abuses, there is no evidence to prove that this purpose was
achieved, in view of the imperfect character of the texts which were
adopted at that time. Moreover, little value can be attributed to
preparatory work, especially to such complicated work as that
accomplished by a very large assembly (Max Sorensen, Les sources
du droit international, Copenhagen, 1946, p. 215). On the contrary, it
must be admitted that precisely after that date the institution of asylum
assumed great importance, a phenomenon which has. been often
observed in connexion with articles of codes which, in response to the
pressure of urgent social needs, frequently have effects which their
authors had not foreseen.
All the foregoing considerations have clearly characterized the attitude
adopted by the Respondent, as we shall see later on. In this
connexion, we must examine frankly the clause which was clumsily
introduced into the Havana Convention and which has given rise to so
much misunderstanding. It is evidently that clause which refers to the
"time strictly indispensable for the refugee to ensure in some other
way his safety". Does this clause concern the State granting asylum?
But if it be concluded that the territorial State may reject the
qualification and especially refuse to grant the safe-conduct, then the
rule would have no meaning. Indeed, who would be responsible for
the delay? An enquiry would have to be opened in order to appraise
the conduct of each State, and the conclusion might be that the
clause had been violated but that no one was to blame for this
violation.
In the circumstances it is not apparent how this text is conclusive,
especially in the present case, where the reply to the three notes from
the Applicant was despatched 48 days after the first note was sent.
[p344]
But it would be an exaggeration to consider that, by virtue of that
clause, the refugee must be surrendered to the local authorities at the
first opportunity as if this represented a guarantee for his security
comparable to that constituted by the diplomatic premises.
14. In support of almost all of what I have just stated, I could rely on a
series of articles which are dated 1945 but which were published
between January 1947 and August 1948 in.the Revista, peruana de
Derecho internacional, the organ of the "Sociedad peruana de
Derecho internacional" (Vols. 7 and 8, Nos. 23 to 28), by one of the
directors of this review, M. Alejandro Deustua A., a summary of which
may be found in the Yearbook of the Pan-American Union for 1948
(Washington, 1949, p. 219).
Let us briefly recapitulate the principal points: relying upon the
definition of asylum of the outstanding international jurist Alberto
Ulloa, the author proves the weakness of the arguments invoked by
European authors, particularly those which refer to the reservation of
sovereignty and the authority of local courts. In considering the
prevailing opinion in his country, the author mentions as the sole
exception one writer, M. Wiesse, all other writers having adopted
American continental practice; he then examines the institution in the
light of all the American conventions without exception, and points out
that the life of the refugee is not the only human value that is
protected by asylum, the purpose of the latter being also to preclude
the possibility of unjust punishment; the notion of danger is then
carefully examined with a view to ensuring that the refugee will be free
to choose the precise moment when he needs security, it being also
left to the discretion of the diplomat to appreciate this necessity ; then
the author points out that in principle the local government does not
oppose this choice and, without disputing the urgency of the
protection, rather seeks to deny the political character of the offence
attributed to the refugee. Continuing what becomes almost a
prophecy of future events, the author seeks to dispel the confusion
between asylum and mere refuge, showing that such an institution
cannot subsist without the recognition of political offences. And finally,
after having emphasized that the qualification must not appertain to
an interested party but rather to a neutral authority, such as a foreign
agent, the author goes on to examine certain other interesting
considerations relating to the institution which he has examined from
its historical origins; he reaches sixteen conclusions of which the
fourth leaves the character of urgency on one side and the ninth
recognizes that the State granting asylum has the faculty to qualify the
offence.
15. Two particular aspects of asylum must be emphasized: the
immutability of the conditions as viewed at the time asylum was
26
granted and the irreparable character of the consequences which the
withdrawal of asylum would imply for the refugee. [p345]
Whether asylum is considered as a simple option, as a humanitarian
act, or as a veritable right, once it has been granted, it lays an
obligation upon the State which granted it. It is true that the refugee
runs a grave risk if the doors of the legation remain closed to him, but
if he succeeds in being admitted he acquires the assurance that he
will not be surrendered to the territorial State, except on serious
grounds.
The two foregoing observations make it possible to eliminate all
confusion between the grant of asylum, which produces
instantaneous and final results, and the vicissitudes which may sub-
sequently arise before the situation is resolved.
A radical change in the situation makes it indeed possible to conceive
of the departure of the refugee, not in order to surrender to the police,
but in order to return to his domicile with all due peace of mind; for the
intervention of new factors, without in any way affecting the regularity
or irregularity of the asylum granted— which remains unchanged—
might result in the elimination of the two reasons which gave rise to
asylum, namely danger to life and liberty, on account of previous
political activity. In such cases, which are not very rare, the objection
of the refugee would be proof of a mere abuse which is never
supported by law, and the rule rebus sic stantibus could then apply.
Apart from this exceptional situation, the refugee cannot be
surrendered to the local authorities without his free consent.
The grant of asylum gives rise to effects ex tunc and not ex nunc; in
fact, in this latter case the territorial State could always defer the issue
of the safe-conduct or any other solution by agreement in the hope of
laying hands on the refugee following a change in the status quo ante,
for political events frequently take quite unexpected directions and
there has even arisen a case of exchange of residence between the
government and a diplomatic mission.
In the present case, it has been seen, for instance, that the Minister
who had brought the charges against the refugee approached that
same Ambassador three weeks later, and the latter, being above
party considerations, granted him his protection.
The grant of asylum thus constitutes an admitted fact the
circumstances of which must be fixed, once and for all, ad ferpetuam
rei memoriam, in view of any appreciation which may have to be
made in the future. It is entirely independent of its maintenance for a
necessarily indefinite period once it is recognized that the
determination of its duration does not depend exclusively on the
person granting it. Just as in all obligations, whatever their nature, the
formation and effects of a contractual obligation cannot be confused
with the manner in which it is terminated. As for extradition itself, it is
necessary to consider a definite moment in order to appreciate
whether the accused should be surrendered, and subsequent
modifications cannot influence this appreciation; on the contrary,
efforts are made to ensure that the situation of the extradited person
is not aggravated by other charges. [p346]
16. The Respondent has understood this problem perfectly. This is
apparent from the clarity with which he has formulated the counter-
claim in verbis: "the grant of asylum by the Colombian
Ambassador .... was made in violation....".
But later on, the theory of the separate stages, which was still
accepted at the time of the oral statements in order to explain an
objection to a certain mode of terminating the asylum, was replaced
by the theory of the continuity of asylum as a whole.
This change, however, has required a formal modification of the
original claim; this modification, which was submitted with the consent
of the agent of the Respondent, consisted of adding to the idea of
grant that of maintenance.
Such a claim has been considered to be superfluous, but it was
necessary to accept a prolongation until August 31st, 1949, of the
circumstances constituting urgency, a concept which by its very
nature is transitory, and this observation is also superfluous in view of
the conclusion that asylum was irregularly granted on January 3rd.
In my opinion, this application of the theory of "continuous" asylum is
even less defensible in that it even contradicts the ordinary meaning
of the verbs used in this connexion ("octroyer", "accorder" and
"conceder").
As has already been pointed out, it is difficult to draw conclusions
from a delay which results from the very nature of a divergence of
view, especially if the parties have reached an agreement on the
means of solving the dispute, in a regular manner, thus rejecting on
both sides the effects of a delay which had already occurred at the
time the agreement was concluded, as well as the effects of any delay
which might result from the subsequent procedure. The truth is that
the parties have in this way mutually decided to remove any
consequences which might arise from such a delay.
It is worthy of note, finally, that the draft approved at Bath, used the
conjunction or to separate the phrase referring to the grant of asylum
from that which referred to the maintenance of asylum, instead of
linking them by the conjunction and.
17. I shall not dwell on points which have become of minor importance
after the modification of the case.
Thus, as regards qualification of offences, it was seen that the
respondent State itself, invoking a precedent, proper to its own
practice, considered that it was for the State granting asylum to qualify
the act which led to the asylum. That declaration would be sufficient to
set aside the statement made incidentally during the proceedings that
the Respondent had not ratified the Conventions of 1933 and 1939,
because of an aversion from the right of qualification. But a host of
other reasons would explain the omission—very [p347] frequent in
Latin America—to ratify a convention which also contained other
provisions. It would be necessary to put forward some material
evidence to establish this aversion. Moreover, in 1939 it did not then
exist, since the delegates of the Respondent had renewed the
signature already given to the same effect in 1933.
It is unnecessary to argue ad hominem because, in my opinion, the
clause of unilateral qualification is self-evident and even constitutes
the only means of settling such a difficult problem. It thus happened
twice at Montevideo that previous practice was restated and that the
texts merely proclaimed anew what was already accepted practice at
the time (H. Accioly, of. cit., para. 1171/A); a simple expression in the
preamble recording the undisputed fact of a material modification
could not act as an obstacle in the path of a reality recognized without
exception up to 1949. This is a much more natural explanation of why
four of the States which were signatories in 1928 considered it
unnecessary to join by a mere declaration in the restatement of the
existing law.
The decision of the territorial State would bring into play a practically
arbitrary factor and the conditions of a prior agreement would be
incompatible with the prompt action required. On the contrary, the
conflicting solutions regarding the two kinds of offences—respect of
asylum and surrender of the refugee—and the very general reference
to the domestic law of the country granting asylum would amply justify
the view that the Treaty of 1928 assumed the same preference for
exclusive qualification which fourteen States later expressly accepted
(eleven in 1933, plus Nicaragua, which had not then deposited the
ratification which had been given, and two in 1939) and which six
others accepted in practice.
It is thus seen that the fact in no way offends against national
sovereignty, by virtue of the reciprocity and of the purposes in view,
namely, the protection of human rights against the contingencies of
political life.
18. The qualification of asylum must not only be unilateral but also
stable, as has already been seen above.
What is involved here is not a provisional qualification or a mere
question of effectiveness, but rather a necessary consequence of the
normal functioning of asylum as understood in Latin-American
practice.
27
The conclusion reached on the nature of qualification cannot,
however, attribute the value of res judicata to a unilateral decision of
the country of asylum, even if this qualification should assume a
definitive character. This qualification is not unattackable and is
subject not to the ordinary revision of facts in each case, but, [p348] in
exceptional cases, to a sort of appeal such as the recours en
cassation, in the event of manifest violation of international law.
Obvious abuse and misuse of powers may occur in the grant of
asylum, in which case international law will intervene—as would
municipal law—to suppress any arbitrary action by specific means for
the peaceful settlement of disputes. In fact, reference to such means
may be found in certain treaties (Treaty of Montevideo, 1939, Art. 16).
19. As regards the obligation to grant a safe-conduct without
reservations, I agree in principle with the opinion of the majority of the
Court, although this solution is entirely independent of the problem of
qualification. It suffices, in this connexion, to recall that asylum may
have been regularly granted and yet the territorial State may refuse to
issue a safe-conduct for political reasons.
It is true that current practice has developed in the direction of the
initiative being taken by the State of refuge, but a fundamental
psychological element should here be taken into consideration. In
order to respect asylum a State will yield, thus curbing its wishes and
waiving its interests, thereby showing its obedience to a compulsory
rule. But it is impossible to find here evidence of the recognition of any
obligation, even reluctantly fulfilled.
Indeed, the easy grant of a safe-conduct coincides with the interest of
the State. It consents to the departure of a dangerous individual,
capable of creating difficulties, even though isolated in a diplomatic
residence and subject to severe restrictions, for the material obstacle
would be quite insufficient to control the excesses of an unruly mob,
should such a case arise.
This attitude also shows the conviction on the part of the territorial
State that it will not be able to punish the refugee, except after his
departure and by means of a request for extradition.
But in some cases, on the contrary, the territorial State may have a
reasonable interest in preventing the departure of the refugee,
because of the greater danger he might cause to public order, as for
instance by joining insurgent groups inside or outside its boundaries.
By virtue of direct negotiations or the mediation of a third State, it may
be possible to arrive at a conciliation safeguarding the interests of the
country, by means of restrictions which in fact have already been
adopted in several conventions or drafts (Pessoa, 1912, Draft of the
conference of jurists in Rio de Janeiro, 1927), and which recall,
moreover, that asylum should not bestow unfair advantage on one of
the opposing factions. It is quite natural, therefore, that with or without
the guarantee of the State of refuge the refugee should undertake not
to take up arms, or establish his residence near the frontier, as
otherwise his unconditional departure might be most detrimental to
the State. [p349]
20. In cases of asylum and non-extradition of political offenders, there
is a degree of constraint upon the State which is thus unable to apply
its criminal law—the obstacle being either the flight of the criminal or
his entrance into a diplomatic residence.
This negative aspect should be emphasized, because it is a serious
thing to put a State under an obligation to perform a positive act, such
as the issue of an exit permit, the psychological repercussions of
which are most serious.
In this connexion it is also necessary to admit that the State is free to
discriminate and to decide on the danger which would result from the
departure of each refugee individually, without such decision being
subject to criticism.
Reservations made by the territorial State are even-more
understandable when that State considers that asylum resulted from
an "abuse of right". This constitutes a kind of reservation, comparable
to the exceptio non adimpleti contractus, which, consists in the
postponement of the delivery of a safe-conduct until the dispute has
been settled, instead of permitting immediate departure, even with the
reservation of an ultimate request for extradition, especially when, in
the country of refuge, the latter measure is left exclusively to the
decision of the judicial authorities, thus depriving the obligation which
the government might assume in this connexion of all its
effectiveness.
21. Let us now examine the present case.
Following the grant of asylum to M. Haya de la Torre, the countries
concerned embarked upon a diplomatic correspondence which finally
resulted in a very clear legal dispute, in which the Respondent, while
referring exclusively to the Conventions of 1911 and 1928, disputed
the legitimacy of asylum on the sole grounds that the refugee was not
a political offender but a common criminal previously accused of acts
of terrorism. No one has claimed that the element of urgency required
by the Convention of Havana was absent, and yet three months had
already elapsed since the main fact with which the leaders of the party
in question were charged, namely the military rebellion in the port of
Callao on October 3rd, 1949.
Was this due to error or oversight? No, for in reply to the
communication of January 4th, 1949, the first letter of the Respondent
began with a reference to the rules of Havana, including the
circumstance of urgency, without raising any objection in this
connexion.
This was tantamount to a full recognition of the fact that asylum had
been properly granted, for it was unnecessary to begin a painful
discussion on any other point. Such an attitude further stresses the
manner in which the institution of asylum is viewed in [p350] its
natural surroundings. The arithmetical aspect of the duration of this
asylum did not attract the attention of any local jurist.
It is in this spirit that there arose a single dispute or controversy of
crystal clarity, the main points of which have been indicated several
times already. It is true that the two Parties did not agree on the terms
in which the dispute should be. submitted to the Court, but there is
nothing to show that the lack of such agreement was due to a
question which did not arise at the time ; on the contrary, the
divergence noted referred to the question of criminality, the Applicant
preferring to confine himself to the two abstract problems—namely,
the right of qualification and the obligation to deliver a safe-conduct—
and the Respondent hoping to invoke the existence of a prior
accusation of common crimes.
In any case, the Act of Lima was concluded in order to submit to the
Court the dispute "which arose following a request .... for the delivery
of a safe-conduct....", etc. Thus, on these two occasions, namely
January 3rd and August 30th, 1949, the dispute was confined to
definite points, in accordance with consent of the Parties repeatedly
expressed.
But, removed from the environment in which it arose, was understood
and defined, the case began to undergo the effects of a process of
change, at first discreet, but which finally resulted in completely
transforming the dispute.
22. Thus the counter-claim has added to the complaint of violation of
Article 1, paragraph 1, of the Havana Convention, that of violation of
Article 2, paragraph 2 ("First"), of the same instrument.
From the antecedents of the case and in the absence of a precise
explanation on the developments which that paragraph may permit, it
could readily be imagined that, far from laying down a new ground, it
referred rather to an alternative arising out of the previous discussion
which has retained the same tenor in the subsequent development of
the legal proceedings until the last oral statement, constantly recurring
as a leitmotiv in the case : the charge of common crime made in
respect of acts of terrorism to a certain extent tends to deprive such
acts of their political character.
It could therefore be admitted that after such express declarations
28
(see Memorial, Counter-Memorial, Rejoinder and oral statements) it
would automatically follow that, once the existence of prior charges of
common crimes has been disposed of, the grant of asylum to a mere
politician in distress or to a political criminal whose right of asylum the
Respondent has in principle always acknowledged, would appear to
be perfectly regular.
In other words, if the Court finds that the refugee was not accused of
a common crime prior to the grant of asylum, the asylum must be
upheld. [p351]
A very careful scrutiny of the Pleadings was necessary in order to
discover in two or three hidden references to urgency (Counter-
Memorial, Rejoinder) a new and even subsidiary requirement for the
acceptance of the asylum. I might even go so far as to say that the
clarity of the reference which precedes the submission of the counter-
claim is far from satisfactory (see Counter-Memorial).
But the question was presented in an entirely different form in the oral
rejoinder, in order to make it possible to state to the Court that it was
free to consider or not the question of the qualification of the offence,
which question the Respondent at that time considered to be outside
the debate and the "trend which it had assumed", for the Respondent
was mainly concerned with the circumstance of urgency connected
with a material and transitory danger.
The centre of the case was thus displaced; all concern with common
crimes, which had hitherto been the only grounds for not recognizing
the asylum, disappeared ; and the question was then raised of the
competence of the Court to decide on problems which had been
raised only in the counter-claim.
I cannot, for my part, remain indifferent to such a practice, which is
reminiscent of the Anglo-Saxon concept of estoppel, nor could I
accept that the onus of proving urgency should, at the eleventh hour,
be placed upon the Applicant who, in respect of the counterclaim,
became the Respondent, when, in the absence of any objection
regularly presented on the point of urgency, the procedural rule
should be applied according to which facts not disputed by the other
party should be assumed to be true.
In any case the question of proof has no importance whatever in the
present case, for the documents submitted by both Parties, with
different ends in view, are more than sufficient to prove the facts
which are necessary for the Court's decision in this case.
23. In my opinion the Court was not even competent to decide upon a
dispute which did not exist at the time of the conclusion of the Act of
Lima, whereas that Act described a dispute which had already arisen
and had been clearly defined. Under the terms of the Protocol signed
in Rio de Janeiro by the Parties on May 24th, 1934, a direct
preliminary diplomatic discussion would also have been necessary
before a question could be brought before the Court.
It was considered preferable to confine the discussion to a tacit
agreement of the Parties since, in the oral submissions, the Applicant
did not again refer to the competence of the Court to consider what he
called the first claim, whereas he referred to its lack of jurisdiction with
respect to the second counter-claim (see Reply and Oral Statements).
This reason, although supported by the jurisprudence of the
Permanent Court, is very weak. First of all, I would prefer to this
[p352] jurisprudence the dissenting opinion submitted among others
by-Judge Max Huber (P.C.I.J., Series A, No. 15: Judgment No. 12, p.
53). Furthermore, this was a case of a lack of jurisdiction ratione
materia which the Applicant has in fact recalled in connexion with the
duty of the Court to examine ex officio the two requirements laid down
in Article 63 (jurisdiction and connexion).
But there is yet a more important circumstance; it is that the
modification to the essential basis of the claim was pleaded at a time
when the other Party was no longer able to reply, and that condition
was in any case required by the Permanent Court in connexion with a
simple modification of submissions (M. 0. Hudson, The Permanent
Court of International Justice, New York, 1943, page 576, and note
25).
In any case, instead of seeking the consent of the Parties in the weak
measure of a tacit or a contrario renunciation, I would prefer to seek it
in a solemn document such as the Act of Lima, which is at the basis of
the whole case, and limits the jurisdiction which was conferred upon
the Court only by the will of the Parties and which the Court must
observe ex officio. (Viktor Bruns, in Recueil des Cours, Vol. 62, p.
603.)
24. The counter-claim, and especially the importance so unexpectedly
assumed by the circumstance of urgency, has brought about a
considerable modification in the case, removing it from the field of
simple juridical discussion to a plane where the political aspect is of
paramount importance. The intention has clearly been to "burst an
abscess".
The Applicant, who had displayed extreme reserve throughout the
diplomatic discussions, refraining from appraising the facts (see
Rejoinder) and relying on the general aspects of the law, was forced
to set forth the existing political motives on the first occasion which
presented itself after the Counter-Memorial, namely in the Reply.
The Court has rejected almost unanimously the contention concerning
the existence of a common crime at the time at which asylum was
granted. This is the complete rejection of the view maintained by the
Respondent up to the date of his Counter-Memorial, a view which was
relegated to a subsidiary position only on October 9th, 1950.
But is has been argued that another provision of the Havana
Convention was violated because, within three months after the
principal event, there was no urgency and because on January 3rd,
1949, there was not sufficient real danger to justify the grant of
asylum.
25. But even up to that time, several diplomats continued to grant
asylum, without opposition, to a great number of persons, and this
circumstance further leads to the rejection of a strict interpretation of
the word "urgency" in relation to time, according [p353] to which the
period should only consist of an unspecified number of days.
It is very difficult to adopt an interpretation of a text without regard to
the special circumstances in which it was drafted; these
circumstances are both numerous and varied.
Sometimes even the dates are lacking which would permit the time to
be calculated. It is also necessary to take into account the difficulties
of reaching a legation, for the first concern of the police in such cases
is to watch the premises of diplomatic missions in order to prevent
suspects from reaching them. In such instances a refugee is forced to
wait a long time for a favourable opportunity of passing through
unnoticed, generally at night.
It will be noted in the present case that the first definite indication of
an accusation of political offence was the summons which appeared
in the official gazette of November 16th, 1948 ; the Ministerial letter to
which we shall refer later had remained secret.
But could an anticipated request be willingly agreed to by a diplomatic
agent or, on the contrary, would he reject it on the ground that it was
premature? It would be very difficult to appraise such a situation in
such different conditions of time and place with a view to
understanding the hesitation which might arise in the mind of the
fugitive.
It will be argued that there had existed since October 4th, 1948, a
decree outlawing the Aprist Party, the recitals of which contained clear
references to the intention to punish the moral authors of acts contrary
to the public order of the nation, in spite of the fact that the
programme of that party had been known for a long time and that
many of its members had belonged to the Congress or the
Government. But the constitutional validity of this act was none the
less open to judicial appreciation, since the Peruvian Constitution
remained in force before October 27th with only the restrictions
pertaining to a state of siege. It will be sufficient to note that the said
decree was based on Article 154, No. 2, of the Constitution, which
29
attributes the maintenance of public order to the executive power,
without however authorizing that power to violate the Constitution or
the laws.
Other circumstances could also be considered in appreciating the
conduct of the Ambassador, as well as that of his Government, which
subsequently had to support him. First of all the letter of the Minister
of the Interior of October 5th, 1948, denouncing crimes; this letter was
of a clearly political nature, and although it remained secret, produced
visible results such as the sequestration of his assets and
newspapers; then the successive renewals of a state of siege, the last
of which occurred the day before the asylum was granted, showing
that the fear of social disturbances had in no way disappeared ; and,
finally, the decree-law of November 4th, to which we shall refer later.
[p354]
On the other hand, there could remain the danger of private attacks,
for instance from personal enemies, who might evade all precautions
taken by the police guard.
26. But indisputable proof that the decision of the Ambassador was
not abnormal, unlawful or hasty, is to be found in the profound change
in the circumstances during the three months' period which elapsed
between the two facts of rebellion and asylum.
It is most regrettable to be obliged to examine the merits of political
facts, but there is no other means of considering the problems raised
by the counter-claim, and even then we are bound to argue in a
hypothetical and retrospective manner, since we are dealing with a
situation already past.
The success on October 27th, 1948, of another revolutionary
movement aggravated the situation of the refugee, especially if he is
held responsible for the distribution of the pamphlets that have been
submitted to this Court.
It may perhaps have been considered that the punitive action
instituted by the constitutional President against the Aprist Party was
insufficient, and it has been stated, on the other hand, that the new
Government did not consider itself bound by the policy of the
preceding Government in a question such as the qualification of
asylum.
It is important to recall that a Military Junta of the Government was set
up or, as is stated in the Judgment, "seized the supreme power".
Such a situation was incompatible with a real constitution, and in the
first place with that particular Constitution which had been violated by
the installation of this new organ. The limitations of power which those
who govern by virtue of an act of force impose upon themselves are
always deceptive, since they proceed from a will that can be changed
at any moment. The decree of November 4th, for instance, is founded
on the powers which have been conferred upon the Junta without its
having been thought necessary to give the least explanation
concerning the source of such powers.
Thus, the monthly renewal of a state of siege, which normally is
confined to the suspension of certain constitutional guarantees, has
but little significance in the light of the unlimited scope of the powers
which the de facto government could assume in any case; the said
decree of November 4th, providing the death penalty and simplifying
the legal procedure in cases of political crimes, is clear proof of the
force of a practically unlimited power.
It is therefore possible to admit in principle that a foreign diplomat
could have serious doubts concerning the functioning of ordinary
justice. For the dismissal, under various pretexts, not only of military
judges, but also of permanent judges even [p355] belonging to a
Supreme Court, is not an unusual possibility in a country which might
find itself for any length of time deprived of its normal constitutional
regime. Such a possibility need not seem surprising in the light of a
famous attempt which was made to change the majority of a court in
one of the greatest democracies of the world, although the object in
that instance concerned only the fundamental interests of the country
and consisted in transforming the economic system of the State.
It matters little whether the decree-law of November 4th was not
actually applied in the proceedings against the subordinate accused,
for, at any time, another act based upon the same unlimited powers
could have, by a mere stroke of the pen, given an entirely different
course to these proceedings in a manner which could not have been
foreseen in so unstable a situation.
Thus, a diplomat placed in similar circumstances could not be certain
that the old and deep-rooted cultural tradition of the country to which
he was accredited could be a sufficient obstacle to a possible
retroactive application of a new law, the intimidating effect of which
was undeniable.
It is true that a declaration made before the Court on June 15th and
October 2nd, 1950, by a constitutional government deserves absolute
respect and constitutes a guarantee against the future application of
the exceptional law in case the refugee were to stand trial, although
the task of applying a law appertains to the judicial and not to the
executive authority. But, in any case, such a declaration is irrelevant
to the situation, as it existed at a time when it was considered easy to
abandon the policy of the preceding constitutional government (see
Memorial).
The observation made by the Respondent that the Applicant had
adopted similar laws relating to the aggravation of penalties and the
simplification of procedure in cases of political offences is not an
argument in support of his case. On the contrary, if a constitutional
government can, in a simple state of siege, exercise such essentially
legislative functions by virtue of particular provisions in its constitution,
it can readily be imagined what might happen in a case where such
provisions did not exist or were only partially applied at the discretion
of the de facto authorities.
The Ambassador was able to note that proceedings were to continue
in the absence of the accused pursuant to a summons published
officially by order of the military Examining Magistrate (see Counter-
Memorial). Could he foresee that this penalty would not be imposed
by virtue of a legal provision prohibiting proceedings in absentia? The
exact terms of this provision are not yet known to the Court and would
need explanation especially as regards the significance of the
references in the last part of the decision reproduced in the Rejoinder.
It matters little that a moderate judgment was delivered without haste
on March 22nd, 1950, against those of the accused who put in an
appearance; [p356] for it also proclaims in an unduly anticipatory
manner the main responsibility of the leaders of Apra for events from
which they were to derive personal advantage (see Rejoinder).
27. In fact, there is only one way of appraising any question of
responsibility whatsoever, and that is to return to the conditions of
place, time and environment in which the events took place, although
it is possible to hesitate between a subjective and an objective
appreciation by adopting, in the first case, the point of view of the
accused and, in the second, an abstract attitude comparing the
criticized conduct to an ideal conduct which is the well-known criterion
of bonus paterfamilias.
The approval given by the Government to the action of its
representative has not changed the aspect of the situation nor
displaced the facts a single day after January 3rd, 1949. It would
therefore not be reasonable to set against the facts, which 'occurred
at that time, a subsequent version which has been constructed two
years after the events and at a place far removed from the scene of
those events.
The sole purpose of the diplomatic discussion was to achieve a re-
consideration of attitude in the light of reasons going as far back as
the grant of asylum. These negotiations did not succeed, and the
problem has remained in the state in which it was referred to the
Court by the text of the counter-claim.
The dispute remained the same, and it was impossible to escape from
the following dilemma : either the violation is admitted, in which case
the Ambassador was wrong in the light of the only circumstances that
may be taken into consideration, or else he was right, in which case
there can be no question of violation or even, in an attenuated form, of
lack of conformity.
30
If this harsh alternative is abandoned, then the only course is to enter
the field of arbitrary action, for there can be no question of passing
judgment on the personal conduct of the Ambassador, or whether he
committed an error or not, whether such an error was excusable, or
whether he should be acquitted.
28. There are other elements in the case which the Court cannot fail
to consider, especially as regards the change which has allegedly
occurred in the situation since January 3rd, with a view to deciding
whether the surrender of the refugee would make it possible to ensure
his safety.
Thus it will be seen, apart from the letter of the Minister of the Interior
of October 5th, 1948, that:
(I) on May 25th, 1949, the prosecutor denounced the refugee for
participation in the crime of homicide on the count of second-degree
instigation and on the basis of mere presumptions (see Counter-
Memorial); [p352]
(2) on September 7th, 1949, another enquiry was opened into the
forgery of a document which was to benefit the party and the refugee
(Counter-Memorial);
(3) on September 13th, 1949, the prosecutor brings a charge against
the refugee for the crime of usurpation of authority (see Counter-
Memorial) ;
(4) on September 21st, 1949, an enquiry was opened on the count
given above under No. 3 (see Counter-Memorial);
(5) on December 5th, 1949, the judgment accepts in a preliminary
manner the accusations of homicide and offences against the
administration of justice and against the good name of the State (see
Counter-Memorial);
(6) on December 31st, 1949, an Examining Magistrate was appointed
who on that same day ordered the opening of two enquiries on counts
given above in No. 5 (see Counter-Memorial);
(7) on April 22nd, 1950, the enquiry into offences against the good
name of the State and the administration of justice was completed
and an order issued for the application of the provisions of the law
against the defaulting defendants without the scope of such penalties
being known (see Rejoinder).
All these facts have made it possible to argue during the oral
proceedings that "the municipal courts [of the country of which the
refugee is a national] consider him responsible for the assassination
of Grana and for crimes against the administration of justice and
against the good name of the State, and it is on these counts that the
proceedings were instituted" (see Rejoinder).
29. My conclusion that both the main claim and the counterclaim
should be dismissed could obviously give rise to the criticism that the
deadlock would continue after the twenty-two months which have
already elapsed; but the two Parties, whilst having urgently appealed
to the Court to resolve the dispute, have not furnished it with the
means to arrive at an independent solution as would have been
possible under Article 38, paragraph 2, of the Statute of the Court
(judgment ex cequo et bono). On the contrary, the Parties have
limited the action of the Court by indicating only the legal data
applicable to the case.
But, if the fundamental points were finally settled as suggested in my
opinion, i.e. if the Respondent were not obliged to deliver a safe-
conduct and yet were not authorized to require the surrender of the
refugee, this situation would be conducive to an agreement
compatible with the requirements of security of the territorial State and
the individual rights of man, by virtue of conditions [p358] relating to
the protection of the fundamental interests of the country and the
dignity of its citizens.
It would therefore not be possible to speak of life imprisonment or
even indefinite imprisonment, for the question of the asylum would be
easily solved as it was in all other cases where a dispute arose.
30. In the circumstances, if the principal Applicant is dismissed by an
admission of the counter-claim, I wonder whether the Respondent,
who up to now has not demanded the surrender of the refugee, will
not be induced to do so in accordance with the reservation made in
that connexion (see Counter-Memorial). I wonder what the attitude of
the principal Applicant may be if such a claim were made, or even
whether, in the absence of any request, the Respondent would not
compel the refugee to leave the Embassy. I wonder whether both
sides will not be led to admit that the surrender of the refugee to
territorial justice is the only solution. If that were so, then it would
happen that after hundreds of cases of asylum, we might witness, and
for the first time—at any rate as regards Latin America—the surrender
of a political offender to territorial justice, whether civil or military. I
wonder if, in that event, that justice would try him not only for the
political offence with which he is charged, but even for common
crimes, applying to him that curious Article 248 of the Military Code of
Justice which provides that, when the real authors of related crimes
arc not known, it is permissible to punish the principal leaders of the
rebellion. Such results appear to me to be contrary to the idea of
asylum to political offenders, which provnils in Latin America.
(Signed) Ph. Azevedo.
[p359]
DISSENTING OPINION BY M. CAICEDO CASTILLA
[Translation]
1. Diplomatic asylum is an institution which is characteristic of Latin
America. As a result of the frequency with which political upheavals
occur (civil wars, coups d'etat, etc.), and of the intensity of the
struggle between the various parties or groups, the aim of asylum in
that part of the world is twofold. Firstly, to protect the life, liberty and
safety of persons prosecuted for political offences by the local
authorities, taking this expression in its wider meaning to include the
various organs of the government. In accordance with this aim,
diplomatic asylum has rendered great services, for, generally
speaking, it is statesmen, politicians, intellectuals and outstanding
personalities who request asylum. Asylum protects the persecuted
individual, whose merits may be recognized later on, thus enabling
him to render outstanding services to his country and to the American
continent. In Latin America we have not such an abundance of men of
ability and culture that we can afford to contemplate with an indifferent
eye their sacrifice on the altar of unbridled political passion. One
glance at the list of persons to whom asylum has been granted will
show no less than twenty heads of States. The list of writers,
journalists, parliamentarians and jurists who have at one time or
another sought refuge could be prolonged indefinitely, which goes to
show that by protecting this category of persons the State granting
asylum is rendering a valuable service to the territorial State in that it
prevents biased legal proceedings, unjust persecution or a decision
based on the result of a triumphant revolution from creating
irreparable situations and sowing the seeds of future discord and
implacable hatred between the nationals of the same State.
The second aim of asylum is in keeping with the ideal which has
always inspired Latin America, that of ensuring respect for
fundamental human rights.
In spite of governments which have, on more than one occasion,
violated these rights, the ideal aspiration has always been the
establishment of a democratic and republican regime in all American
States. For this reason, asylum has always been accepted on the
international plane as a means of guaranteeing political liberty.
2. An obvious conclusion may be drawn from the preceding
considerations: in studying the problems of diplomatic asylum and in
reaching a decision, account must be taken of the Latin-American
spirit and environment, as well as of the special interpretation of
American international law regarding asylum, which is very different
from the European interpretation.
31
3. The Judgment of the Court refrains from considering the institution
of asylum as it appears in Latin America. Basing itself [p360] on such
grounds, the Judgment of the Court was necessarily bound to arrive
at very debatable conclusions with which I cannot agree.
Indeed, the Judgment imposes such limitations on the institution of
asylum that its practice becomes difficult, if not impossible. Thus, for
instance, the recognized right of the territorial State to question the
qualification made by the State granting asylum implies a legal
insecurity concerning the grant of asylum as well as the possibility -of
lengthy litigation. With the theory of urgency, it would be impossible to
justify asylum ; with such an interpretation, none of the hundreds of
cases of asylum which occurred in America during the last few years
would be justified. With an interpretation that the State of refuge may
request the necessary guarantees enabling the refugee to leave the
country only if the local government has requested his departure,
asylum may be indefinitely prolonged and this would obviously be
prejudicial to both countries.
4. The Court rejects the contention of Colombia that the State granting
asylum has the unilateral and definitive right to qualify the nature of
the offence of which the refugee is accused. At the same time, the
Court agrees that Colombia was entirely right in her qualification of M.
Haya de la Torre as a political offender.
This last point is of great importance, for the whole dispute between
the two Governments, as will be seen from a mere reading of the
diplomatic correspondence between the Ambassador of Colombia in
Lima and the Minister for Foreign Affairs of Peru, referred to the
insistence of the Peruvian Government in considering that well-known
intellectual and eminent political leader, M. Victor Raul Haya de la
Torre, as a vulgar common criminal. In spite of the fact that, during
this case, the Peruvian Government brought new and abundant
evidence in an attempt to prove its views, the Court Unanimously
decided that it has not been established that M. Haya de la Torre was
a common criminal.
It is thus evident that the attitude of Colombia was -unimpeachable,
since she gave asylum to a political refugee. In accordance with the
legal principles and the jurisprudence in force in America, the
Colombian Ambassador could not act otherwise.
5. In my opinion, the State which grants asylum must have the right to
qualify unilaterally and definitively the nature of the offence of the
refugee. I base this view on:
(1) the Havana Convention of 1928 and the Bolivarian Agreement of
1911, both in force and binding upon Colombia and Peru; [p361]
(2) the very nature of the American institution of asylum;
(3) the obligations deriving from the international custom existing in
the American continent.
6. The Havana Convention provided that asylum was to be
determined by the laws of the country of refuge. This is clearly stated
in Article 2 of the Convention, and may be also deduced from the
history of that Convention.
The draft was prepared at the 1927 meeting of jurists in Rio de
Janeiro and submitted as a basis of discussion at the Havana
Conference. Article 2, however, was modified with the definite aim of
referring to the customs, conventions and laws of the country granting
asylum.
The documents of the Havana Conference and of its Second
Committee enable us to follow the various steps in the elaboration of
the Convention. As the United States delegation opposed the right of
asylum, the Mexican delegate, Dr. Gonzalez Roa, undertook to find a
formula which would enable all American States, including the United
States of America, to sign the proposed Convention in spite of their
different views regarding the right of asylum and the extent of its
application. In this formula of the Mexican delegate, which became
Article 2 of the Havana Convention, two main points stand out:
(I) No effort is made to find a definite basis for asylum from the legal
point of view, so that some contracting States may consider asylum
as an institution based strictly on law, whilst others may consider it as
a custom or merely a humanitarian toleration. Within the framework of
the Havana Convention, this point is of no interest.
(2) Apart from the provisions laid down in this Convention, the
conditions of asylum are also determined by the law of the country of
refuge.
The United States, nevertheless, did not accept the Havana
Convention, which did not achieve the desired unanimity. Article 2,
however, retained the definitive form proposed by the Mexican
delegate with the scope and extent already mentioned. By virtue of
this article, according to the explanation given by the Mexican
delegate in his report to the Mexican Government, "contracting States
remain free to pursue their own policy in matters of asylum". It is for
this reason that the Argentinian writer, M. Bollini Shaw, maintains in
his important work on the right of asylum that the Havana Convention
is restrictive in that it does not lay down one general rule but refers to
the particular legislation of each of the signatory States.
In view of the scope of Article 2 of the Havana Convention, the
Rapporteur of the 1939 Montevideo Convention was able to state
[p362] in a document as important as the Official Report, that in the
Havana Convention "asylum was left to the customs, conventions and
laws of the country of refuge".
The author of this Report is the Chilean professor Julio Escudero
Guzman, former member of the Inter-American Legal Committee, and
the Report, before being submitted to the Montevideo Congress, was
approved by all members of the Committee on which all the countries
attending the Congress were represented, including Colombia and
Peru.
I have no intention of claiming that this document lays any legal
obligation whatever on the Parties in the present case, but I strongly
maintain that it is of acknowledged importance for a proper
understanding of the interpretation and extent of Article 2 of the
Havana Convention. For this is a document that was drawn up and
approved by well-known American legal advisers, who had no dispute
to settle and no special case before them, but whose intention it was
to prepare a report of an exclusively legal nature.
This interpretation of Article 2 of the Havana Convention is so obvious
that both Parties in the present case accept it—Colombia explicitly in
all its allegations, while Peru, in spite of attacking it in several places,
does in. fact accept it in its statement regarding its interpretation of the
Havana Convention. It is asserted on page 10 of the Peruvian
Rejoinder: "Henceforth an asylum would not be considered regular,
and consequently would not have to be respected if it were proved
that the diplomat who granted it, or the government which directed
him to maintain it, was not acting in conformity as a minimum with the
prescriptions of their domestic law, whether customary or
conventional."
This interesting opinion set forth in the Rejoinder in such positive
terms amounts to a statement that henceforth asylum will be
considered regular and must consequently be respected, once it is
proved that the diplomat who granted it or the government which
directed him to maintain it was acting in conformity, as a minimum,
with the prescriptions of their domestic law, whether customary or
conventional.
7. The Havana Convention does not require all three factors, custom,
convention and law, since it refers to customs or conventions or laws,
which means that the existence of one of these factors is sufficient.
However, as regards Colombia, the three factors are equally in favour
of unilateral qualification.
In the case of asylum in Colombian embassies or legations, that
country has always claimed and obtained the right to qualify. In the
course of this case, numerous examples were mentioned to prove this
fact; I do not think that there is any need to repeat [p363] again. In
cases of asylum in foreign embassies or legations, the Colombian
32
Government has always respected the qualification of the respective
diplomatic agents.
Colombian usage has been amply proved. Almost twenty cases of
asylum occurred since 1928 in the foreign embassies and legations
accredited in Colombia. In all these cases, asylum was respected and
safe-conducts granted. There were eleven cases in which the
Colombian Government did not agree with the qualification made by
the foreign diplomatic agent, but in all these cases the Government
yielded to the unilateral qualification. All these cases have been listed
in detail either in the Written Pleadings or in the oral statements (see
Memorial of Colombia, p. 82; Rejoinder, p. 34; Oral Statements, p.
44).
I do not think that it is possible to submit more complete or more
convincing proof without a single contradictory case and without it
being possible to argue that the countries concerned were signatories
of the Montevideo Convention of 1933; for several of these cases of
asylum involved Venezuela, which has not ratified either the Havana
or the Montevideo Convention and, consequently, has no bond with
Colombia other than that derived from the Bolivarian Agreement of
1911 and from the principles of American international law.
8. As regards Colombian laws and conventions, we must quote law
No. 15 of 1936 approving the 1933 Montevideo Convention on
political asylum. This Convention contains an article under which "the
judgment of political delinquency concerns the State which offers
asylum".
Law No. 15 of 1936 is a Colombian law enacted with the same
formalities as the ordinary laws, it was approved by the Chamber of
Deputies and the Senate of the Republic, and duly confirmed by the
executive organ of the government. It proves the adherence of
Colombia, of the executive and legislative organs of Colombia to the
theory of unilateral qualification.
9. In an effort to invalidate the views expressed above, reference has
been made to a report by M. Raimundo Rivas, which was approved
by the Committee of Legal Advisers to the Ministry for Foreign Affairs.
It should be pointed out in this connexion that the Committee in
question is merely a consultative body and that its opinions are not
binding on the Government which may well depart from them. The
Committee's opinion is at most a piece of information supplied to the
Government. By requesting it, the Government did not pledge itself in
advance to approve it. Consequently, M. Rivas's report merely
expresses the private opinion of a writer and can in no sense be
considered an official Colombian document. Furthermore, some of the
information it contains is false, as, for example, his reference to the
Spanish Civil War when he states that [p364] Colombia did not grant
asylum to one single person, whereas, on the contrary, she granted it
on several occasions. On the other hand, on page 182 of the Counter-
Memorial may be found a fragment of a declaration by the Colombian
Government showing the attitude and opinion of Colombia in the case
of Spain, which were in absolute agreement with the generous and
liberal views so brilliantly defended by Chile at the time.
10. There is another aspect of the question. The right to qualify the
nature of an offence must necessarily lie with the State granting -
asylum, otherwise the very institution of asylum could no longer exist.
For asylum is granted precisely to protect those persons who are
prosecuted by the local government, usually at difficult moments in
the life of the country, moments of great upheaval when political
passions lead to the diminution or disappearance, even in very highly
cultured statesmen, of that serenity of mind which is indispensable for
an impartial judgment of political opponents. To recognize the right of
the local State to qualify the nature of the offence would be equivalent
to allowing this qualification to depend upon the opinion of the
government, whose interests would urge it to act against the refugee.
Asylum in these circumstances would be absurd. Unilateral
qualification is in fact inherent in the very nature of the asylum itself; it
is essential for the continued existence of this institution as it is
understood in Latin America.
In this respect there can be no better quotation than a passage from
Professor Scelle in his commentaries on cases occurring in South
America in 1911, which appeared in the Revue générale de Droit
international public.
The first case was the dispute between the Argentine Republic and
Paraguay, and Professor Scelle wrote, inter alia:
"The Treaty of Montevideo (of 1889) states that the list of refugees
should be submitted to the local government before asylum may
definitely be granted and the refugees transported to foreign or neutral
territory. This does not signify that the local authority has the right
either to oppose this transfer or to insist that such and such a refugee
should be surrendered to it, for this would render the right of asylum
illusory. In doubtful or disputed cases, a definitive decision can only
be made by the authorities granting asylum FN1." (Revue generale de
Droit international public, 1912, pp. 623-634.)
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---------------FN1 Translation by the Registry.
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---------------
The conclusions could not be more final or more opportune : asylum
would be illusory if the territorial State could demand the surrender of
the refugee or oppose his departure from the country ; in case of
doubt the decision can only be made by the authorities granting
asylum. [p365]
In his analysis of the dispute which arose in 1911 between the
Governments of Ecuador and Great Britain regarding the asylum
granted to a number of refugees on board a merchant ship (the case
in which the Minister for Foreign Affairs of Ecuador, Dr. Tovar,
attempted to assimilate internal and external asylum), Professor
Scelle makes the following general observations on the problems of
asylum:
"This assimilation of external and internal asylum made by the
Minister of Ecuador was rather clever. It is juridical, and, in practice, it
would appear that asylum on territory properly speaking is more
difficult to grant than diplomatic asylum. It would also appear that the
examination of political refugees is usually much more thorough in the
case of external asylum, and this is understandable as it is easier. In
both cases, however, the right of decision lies entirely with the
government granting asylum FN1."
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---------------FN1 Translation by the Registry.
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---------------
Professor Scelle's opinion is categorical. As regards the examination
of political refugees, whether in a case of territorial asylum or in a
case of diplomatic asylum, "the right of decision lies entirely with the
government granting asylum".
11. Similarly I can refer to the Dutch writer, M. Savelberg, cited in the
Counter-Memorial of Peru as an authority in matters of American
international law. M. Savelberg has, in several passages of his book,
insisted on the need for unilateral qualification. He says that this
qualification "is necessary in order to prevent a State which
recognizes the right of asylum on its territory from rendering its
exercise impossible by means of an arbitrary interpretation of the
expression 'political offence' FN1" (p. 359). He says elsewhere that
unilateral qualification "is indispensable, since the State in which
asylum has been granted, having received the qualification of the
political offence, could by an arbitrary interpretation of that expression
render illusive any exercise of that right". (P. 284.)
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------------------------FN1 Translation by the Registry.
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------------------------
12. As regards practice, I would point out that it has been favourable
to unilateral qualification and that the Havana Convention has been
constantly interpreted in this manner. This is not a personal
statement, it is an assertion by one of the most authoritative
international jurists of America, M. Hildebrando Accioly. This eminent
Brazilian author and diplomat who is at present his country's
33
representative on the Council of the Organization of American States,
writing on the question of "who shall decide whether the motives
justifying the asylum are purely political or whether they contain an
element of common criminality" states that "in practice and, as is only
reasonable, the solution was left to the discretion of the diplomatic
agent granting [p366] asylum, just as, in the case of extradition, it is
the requested State which has the right to determine the nature of the
fact which justifies extradition". (Accioly, Vol. II, p. 351.)
13. As for the tendencies of American law, an eloquent illustration is
provided by the fact that twelve countries ratified the two Conventions
of Montevideo which expressly confirm the rule of unilateral
qualification, namely, Brazil, Colombia, Chile, Salvador, Guatemala,
Honduras, Mexico, Nicaragua, Panama, Paraguay, the Dominican
Republic and Uruguay. Three countries which had ratified the Havana
Convention, namely, Costa Rica, Cuba and Ecuador, also accepted
the above rule, by means of declarations of a public character. Finally,
two countries, the Argentine Republic and Venezuela, which did not
ratify the treaties, also recognize the above rule. In all, seventeen out
of twenty Latin-American countries are in favour of unilateral
qualification. The Colombian view is thus the very expression of
American law.
14. The theory according to which the qualification should be made
jointly, that is, provisionally by the State of asylum and then ratified or
rejected with objections by the territorial State, practically amounts to
this: that qualification would be the attribute of the territorial State. For
with this joint qualification, the territorial State can at will prevent the
institution of asylum from functioning. It would be strange, but true,
that on the pretext of avoiding unilateral qualification we should arrive
at a confirmation of that practice—in favour however of the territorial
State.
It may be argued that in the event of a difference of opinion the States
concerned must resort to arbitration or to legal proceedings. That
would mean that each case of asylum would become a lawsuit, a
lengthy lawsuit, for it is understandable that international proceedings
should require several months to examine and decide upon a case.
Asylum would then become an inexhaustible source of litigation and
hence of dispute among States, with the result that the two countries
would have to examine the domestic situation of the territorial State,
thus rendering the dispute bitter and embarrassing and probably
giving rise to a disagreement which would hamper and weaken
understanding between the two countries.
15. On the other hand, what is there to justify the conclusion that the
Havana Convention recognizes such a prerogative as appertaining to
the territorial State? Nowhere is this stated in the Havana Convention.
It has been said that we should abide strictly by the letter of the texts;
where are such texts to be found which speak of two qualifications,
one provisional and one final, or which provide that the right of
qualification must be exercised both by [p367] the territorial State and
by the State of refuge? On the contrary, instead of express rules,
there is a reference to the usages, conventions and laws of the
country of refuge. This reference, which completely supports the
Colombian view, is an express and literal reference contained in the
Convention.
16. Peru has on several occasions accepted the American practice as
obligatory, including the principle of unilateral qualification.
In 1936, during the Spanish Civil War, the Peruvian Government, in
an official declaration by its Minister for Foreign Affairs, expressed its
solidarity with other American countries, stating that it was "in entire
agreement with the theories maintained in Madrid by diplomatic
representatives of the Argentine Republic, Chile and other countries".
But the theories put forward by these countries were precisely the
legality of diplomatic asylum, the right of the State granting asylum to
qualify the nature of the refugee's offence, and the duty of the
territorial State to give the necessary guarantees to enable the
refugees to leave the country freely.
Explaining the attitude of the Latin-American States towards Spain,
the Chilean delegate to the League of Nations summed up the
opinions of the said States in these words:

"All refugees, at least those in embassies and legations of Latin-
American States, have been received in accordance with the rules
regarding the right of asylum laid down by the 1933 Montevideo
Convention."
On October 26th, 1948, the Peruvian Government published an
official statement on asylum, from which we shall quote the following
paragraph:
"Under the relevant international conventions in force, the State
granting asylum is competent to qualify the act which has motivated
asylum, either to decide that it is a criminal offence, or that it is a
political offence.... For its part, Peru has previously claimed that, when
a diplomatic representative refuses to surrender a refugee because
he does not consider him as a common criminal offender, extradition
is granted only when the refugee has left the country, and according
to the procedure established by international agreements on the
matter. This thesis is accepted and recognized by all American
States." (Memorial of the Government of Colombia, p. 28.)
An analysis of this statement shows that:
(1) The Peruvian Government agreed by virtue of treaties in force in
America, including the Havana Convention, that the right to qualify the
nature of the offence belonged to the State granting asylum.
(2) Peru had already maintained on previous occasions that, if a
diplomatic agent did not surrender a refugee on the grounds [p368]
that he was not a common criminal, the Peruvian Government would
respect the decision of the foreign diplomatic agent, reserving its right
to request extradition once the refugee had left Peruvian territory. In
other words, Peru had already declared itself in favour of unilateral
qualification by the foreign diplomat and the obligation to provide a
safe-conduct without, however, prejudicing its rights to make a
subsequent request for extradition.
(3) According to the official statement, the foregoing doctrine is at the
present time not merely a Peruvian doctrine but has been accepted
and recognized by all American States.
The foregoing declaration is not that of a mere official but of the
Peruvian Government itself. Moreover, it was made after the October
revolution, precisely with the object of defining the attitude of the
Peruvian Government towards the numerous cases of asylum which
had arisen. It was in force on January 3rd, 1949, as the expression of
the rules which the Government of Peru accepted at that date in
matters of asylum. In such circumstances, the declaration has a very
definite legal significance.
17. Apart from the Havana Convention of 1928, there exists another
agreement binding on both Colombia and Peru, namely, the
Bolivarian Agreement on Extradition of 1911, Article 18 of which
recognizes the institution of asylum'in conformity with the principles of
international law.
The argument that, because the Caracas Agreement is an extradition
treaty, it has nothing to do with the regulation of asylum, has a certain
force which I cannot deny in so far as there is any intention to apply
the rules of a treaty on extradition to the institution of asylum. But it is
quite inadmissible to seek to deny the value of Article 18. For the
argument that asylum and extradition are different institutions leads
precisely to the conclusion that Article 18 has a very definite
significance, namely that it makes it quite clear that, apart from the
stipulations regarding extradition, the contracting States have agreed
to recognize another institution, asylum, and have admitted that that
institution should be governed by legal principles. Thus the
Agreement regulates two institutions—extradition in all clauses of the
Agreement except one, and asylum in one clause, Article 18. It may
be argued that it is inconvenient and unusual to regulate two different
institutions in the same treaty; but this criticism, even if it were valid,
would not deprive Article 18 of its legal value or render it inapplicable.
On the other hand, it is obvious that the plenipotentiaries of 1911 were
of opinion that the two institutions were similar and that they could,
consequently, be included, from a formal point of view, in a single
treaty. This view may be criticized, but it must in any case be
34
respected; it was after ail adopted by the said plenipotentiaries.
Furthermore, it had already been adopted in the Treaty of Montevideo
of 1889, which included both institutions in the same treaty under
different headings. [p369]
To contend, as the Rejoinder does, that the article is devoid of effect
because it confines itself to an obvious statement—a simple allusion
to international law—amounts to a unilateral denial of a contractual
obligation. Article 38 of the Statute of the International Court of Justice
says that the latter will apply the general principles of law ; it cannot
be argued that, because these principles have not been determined
and because the article makes a simple reference to law, this
provision of the Statute is null and void. Yet this is practically the claim
that is made regarding Article 18 of the Bolivarian Agreement.
The most reasonable thing to do would be to examine Article 18 of the
agreement and ascertain what juridical effects it could have. It would
then be found, in the first place, that the signatory States recognize
asylum as a right; it is not a practice, neither is it a simple act of
humanitarian toleration, but an institution governed by the principles of
law. In the second place, this institution is recognized in accordance
with the principles of international law; namely, in accordance with
those principles accepted by American States, both in their
international conferences and in their collective declarations. These
principle s of international law cannot be other than those which have
been stated in the various treaties on asylum which were concluded in
America, whether or not they were ratified by the "Bolivarian"
countries; for we are not concerned with the determination of a
contractual obligation, but with the determination of those principles
which are generally adopted in America in matters of asylum. For
example, according to the Bolivarian Agreement of 1911, asylum may
only be granted to political offenders. Why? Simply because this is the
principle that is generally accepted in American international law. The
same thing should hold good as regards the qualification of the
offence. This qualification appertains to the State granting asylum,
since the principle is specially mentioned in the Montevideo
Convention of 1933; according to the Havana Convention, it is applied
when the law of a country granting asylum recognizes it ; and
furthermore, this constitutes the practice of American States.
A further conclusion may be drawn from this article, namely, that
acceptance of the application of the principles of international law
entails a recognition of principles which may be derived from
international custom. If this is the case, this article in the Bolivarian
Agreement has a special meaning as regards custom in matters of
asylum, namely, that it demonstrates the existence in both Colombia
and Peru of one of the elements which arc necessary for the
existence of a custom—the psychological element, the opinio furis
sive necessitatis. The Bolivarian Agreement recognizes asylum,
recognizes the value of the principles applied in America; hence
[p370] it includes these principles as binding. Consequently, their
acceptance by governments or by one individual government implies
their acceptance by that government as "being the law", that is to say,
that they are the applicable law.
This is a matter of the utmost importance, since the psychological
element of custom, which is always so difficult to prove, is here
entirely proved.
18. In my opinion, diplomatic asylum is an international custom of
Latin America.
American Republics have practised asylum, have respected the
unilateral qualification exercised by the State granting asylum, and
have furnished the indispensable safe-conducts to enable the
refugees to leave the territory.
The custom has been continuous since it arose as early as the middle
of last century. Thus we see that we are dealing with a custom one
century old and consequently much earlier in date than any treaties
that exist on the matter.
The custom was general; all the Latin-American Republics recognized
and practised diplomatic asylum and all exercised the right to
unilateral qualification of the offence when circumstances required it.
Mexico, the Republics of Central America, Cuba, and the South
American Republics are all in the same position.
Finally, by recognizing the practice of asylum, the American Republics
accepted it as obligatory. Nothing is more remarkable in this respect
than the case of the Republic of Venezuela. It offers asylum in its
embassies and legations and respects asylum in foreign legations and
embassies without having ratified either the Montevideo Convention
or the Havana Convention. That is to say, it recognizes asylum as an
American right, as a practice which is obligatory throughout the
continent. In the same way, it also accepts the unilateral qualification
of the offence.
There is a recent case in which several countries were involved and
which demonstrates the general feeling of American countries
regarding the obligatory character of asylum. With reference to the
asylum of ex-President Betancourt in the Colombian Embassy at
Caracas, the Chilean Government, supported by the Guatemalan
Government, lodged a protest with the Council of the Organisation of
American States against the Venezuelan Government "for its delay in
delivering the safe-conduct". Thus we see that a country like Chile,
which had no treaty with Venezuela regarding asylum, considered that
it had the right to lodge a complaint against the latter in order to obtain
the necessary guarantees to enable the refugee to leave Venezuelan
territory. This is not all! Chile then claimed that the refugee in question
was at the embassy of a third State. Such a claim could not have
been made by a country so highly respected in America as Chile, had
it not been for the conviction that the practice of asylum, with its
various consequences, is juridically obligatory. It must furthermore be
noted [p371] that in the incident in question, the Republic of
Venezuela did not put forward as an excuse or as a reply to the
Chilean protest the non-existence of treaties on asylum. Neither did it
deny the juridical obligations resulting from this custom. On the
contrary, it proved that it had respected American practice and
American law by showing that the safe-conduct had already been
granted when the complaint was lodged. Thus we have the example
of three American States, Chile, Guatemala and Venezuela,
recognizing the practice of asylum as obligatory, together with its
consequences, such as the qualification by the country granting
asylum and the right of the said country to demand a safe-conduct for
the refugee.
Another American country noted for its outstanding culture, Uruguay,
has also maintained the opinion in question on several occasions. It
will be sufficient to mention the memorandum presented by the
Uruguayan Embassy in Lima to the Peruvian Minister for Foreign
Affairs and Public Worship regarding the asylum granted to MM.
Manuel Gutierrez Aliaga and Luis Felipe Rodriguez. One of the
paragraphs of the Memorandum states:
"In accordance with the preceding facts, the Acting Charge d’Affaires
received instructions from his Government to impress upon the
Peruvian Government the necessity for a speedy delivery of safe-
conducts which cannot be delayed on the pretext of an alleged
implication of the refugees in common crimes or political offences
related thereto, by virtue of the principle by which the country granting
asylum has the right to decide whether the offence is of a political
nature or is a common crime."
In the case of Paraguay of 1922, other countries, the Argentine
Republic, Brazil, Uruguay, Bolivia, Cuba and even Peru collectively
drew up the following declaration as a rule of conduct and embodied it
in an official document:
"Any person who shall request asylum in the residence of a foreign
delegation for reasons of a political nature shall make a statement of
the facts which led him to request asylum, and the appreciation of the
circumstances shall be left to the head of the legation."
In the case of Spain, the Argentine and Dominican Republics
maintained that Spain, in spite of the fact that it had no treaties
regarding the right of asylum, should nevertheless respect this
practice, and also that the head of the legation or embassy had the
right to qualify the offence and to request the delivery of safe-
conducts in every case.
35
The Government of Cuba declared in a recent statement:
"The principle that the qualification of the offence concerns the State
granting asylum is a general rule of law confirmed by custom." [p372]
In Chile, the instructions of the Ministry for Foreign Affairs to its
diplomats of November 26th, 1935, say:
"The right to qualify the political offence appertains to the State
granting asylum." (Quoted by Antokoletz.)
In a recent declaration, Costa Rica has expressed itself in favour of
the theory according to which the State granting asylum has the right
to qualify the nature of the offence.
Ecuador also has very definitely stated its opinion as follows:
"The Government of Ecuador considers that Article 18 of the
Bolivarian Agreement and Article 2 of the Convention on Asylum of
February 20th, 1928, which are valid instruments for Ecuador, should
be interpreted as meaning that the qualification of the nature of the
offence appertains to the country granting asylum.... The Government
of Ecuador bases this view on the very nature of the institution of
asylum: this institution would lose all value if the local government
were granted the right to qualify the nature of the offence, thus
rendering inoperative the international agreements on the matter. On
the other hand, American customary law also attributes the right of
qualification to the country granting asylum. This interpretation was
expressly confirmed by the Convention on Asylum signed at the
Seventh American International Conference at Montevideo in
December 1933 FN1."
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---------------FN1 Translation by the Registry
---------------------------------------------------------------------------------------------
---------------
19. As regards the question of a safe-conduct, the Judgment
maintains that Article 2, § 3, of the Havana Convention should be
interpreted as meaning that the State granting asylum may only
request the necessary guarantees to enable the refugee to leave the
country, after the territorial State has requested the refugee to leave
the national territory.
I cannot accept this interpretation for several reasons, but chiefly
because I believe that the Havana Convention recognizes two
separate rights:
(a) firstly, the right of the territorial State to require the removal of the
refugee from the territory as rapidly as possible, that is to say that, as
asylum is a transitory situation which cannot be prolonged indefinitely,
the State granting asylum should respect this request. This is an
obligation on the State granting asylum. The sojourn of the refugee on
national territory cannot be prolonged against the will of the territorial
State;
(b) the second right is that, which is conferred by the above-
mentioned text upon the State granting asylum, to require that the
refugee should leave the country with the necessary guarantees. This
right is a necessary consequence of asylum.
The unanimous practice of American States is in accordance with this
interpretation. In all cases of asylum, the diplomatic agent has
requested and obtained the departure of the refugee [p373] without
waiting for the territorial government to take the initiative. This practice
has been amply proved in the documents annexed to the Pleadings of
this case. They include a note dated October 20th, 1944, from the
Minister of Peru in Guatemala to the Honourable Members of the
Revolutionary Junta of Guatemala; another, dated October 28th,
1948, from the Peruvian Legation in Panama to the Minister for
Foreign Affairs of Panama, and two other communications, dated
November 2nd and 5th, 1948, respectively, from the Uruguayan
Embassy in Lima to the Minister for Foreign Affairs of Peru. All these
notes announce the grant of asylum and simultaneously request the
delivery of safe-conducts; in none of these cases has the State of
refuge waited for the territorial State to express any wishes on the
subject.
It would be impossible to quote a single diplomatic communication
contrary to this practice. And as far as Peru is concerned, apart from
the above-cited documents of the Peruvian Legations in Guatemala
and Panama, there is an official Government communique of October
12th, 1948, which states: "The Government, respectful of its
international agreements and of the established practice, has granted
the respective safe-conducts." In other words, the Peruvian
Government admits that, in accordance both with the treaties in force
and with American practice, it is compelled to deliver safe-conducts.
It has also been maintained that American practice is contrary to the
text of the Convention and that, consequently, it cannot prevail. It
should be argued in reply:
(1) that authors such as Accioly consider that the Convention
conforms with practice on this point;
(2) that practice shows what interpretation has been put upon the
Convention by the countries which signed and ratified it.
If there has been no other interpretation, why search for an
interpretation of the Havana provision outside American custom?
On the other hand, why disregard the interpretation which had been
accepted by Peru? It may be said, to meet this argument, that States
are entitled to change their minds. I recognize that right as far as
purely political questions are concerned, but as regards legal
questions, such as the interpretation or application of treaties, a
change of opinion is scarcely admissible except for the future.
Otherwise an element of uncertainty would be introduced into
international relations. It is hardly admissible in law that a country,
after maintaining a given interpretation of a treaty and making it
known to other contracting parties by declaring its intention to apply
that interpretation to cases involving given circumstances, should be
able to disregard its own interpretation in cases and circumstances
arising whilst that rule was still considered to be in force. [p374]
Any other practice would create a new element of insecurity in
international relations.
Furthermore, there have been cases in which the opinion of the State
granting asylum prevailed. We may, for example, quote the case of
the parliamentarian Rodriguez Araya, who took refuge in the
Uruguayan Embassy in Buenos Aires in 1949. The Argentine
Government declared that the local authorities were not prosecuting
him and that the latter enjoyed all necessary guarantees to reside
freely on the national territory. In spite of this declaration by the
territorial State, Uruguay insisted that the refugee should be allowed
to leave the territory of the Argentine Republic. In face of this
insistence, the Argentine Republic, which has so many noble juridical
traditions in matters of asylum, immediately granted the necessary
safe-conduct.
Consequently, it must be admitted that the interpretation put by
Colombia upon Article 2 of the Havana Convention is entirely in
accordance with the general principles of law, as well as with the spirit
of the text and the provisions of the Convention taken as a whole.
Colombia has thus respected the uniform and continuous practice of
the American nations, including Peru.
20. In my opinion the second basis of the counter-claim (case of
urgency) of the Government of Peru presented on March 21st, 1950,
does not come within the jurisdiction of the Court and is not directly
connected with the subject-matter of the Application. My grounds for
this opinion are that Peru, during the controversy which preceded the
signature of the Act of Lima, made no claim whatsoever concerning
the existence of urgency; and consequently, this consideration was
not a part of the existing dispute ; it was not referred to by Colombia in
connexion with the question of the grant of a safe-conduct, the latter
question being based upon the essentially political nature of the
offence attributed to the refugee, the grant of the safe-conduct
constituting an obligation for the territorial State. There was no other
36
subject of dispute between the Parties.
21. As regards the condition of urgency, it is sufficient to recall that M.
Haya de la Torre was threatened in his life or liberty due to the fact
that he was being prosecuted for political reasons, and this
consideration justifies the conclusion that he was entitled to invoke in
his favour the institution of diplomatic asylum in Latin America.
Furthermore, there is abundant evidence to show that at that time
Peru was passing through an abnormal situation. One of the first
decrees promulgated by the Military Junta was that of Novem-ber
2nd, 1948, under which "the Military Junta of the Government
assumes all the powers which the Constitution of the State confers
upon the executive and legislative branches of the Government" FN1.
---------------------------------------------------------------------------------------------
------------------------FN1 Translation by the Registry
---------------------------------------------------------------------------------------------
------------------------
[p375]
In other words, the de facto military government conferred upon itself
the right to make new laws and modify or abrogate existing laws,
without regard to the rules of the Constitution. In the exercise of the
rights which it had conferred upon itself, the Junta enacted decrees as
grave as that of November 4th, which provided for Oral Courts-Martial
and authorized the application of the death sentence, whilst
suspending appeal to the Supreme Court against the judgment. The
decree-law fastened those accused of military rebellion, such as M.
Haya de la Torre, in a grip of iron: the members of the Courts-Martial
were soldiers who depended upon the government, the defence for
the accused was to be appointed by the government, the penalty
imposed might be death, which was not accepted under the Code of
Military Justice, and there was to be no appeal against the judgment;
all the foregoing measures superseded the Peruvian Code of Military
Justice which had provided for an appeal to the Supreme Court on the
grounds of nullity, naturally restricted to alleged irregularities of form.
Subsequently, on November 17th, a new decree-law was enacted
concerning the composition of the Supreme Court of Justice, which
stated as follows:
"I. Law No. 9654 of November 13th, 1942, is abrogated: the positions
which are at present provided on the Supreme Court of Justice of the
Republic under law No. 9654 are vacant as from the date of the
present decree.
2. The vacancies resulting from the application of the present decree
as well as the positions of Judges and General Advocates of the
Supreme Court of Justice shall be filled by direct appointment of the
Military Junta of the Government FN1.”
---------------------------------------------------------------------------------------------
---------------FN1 Translation by the Registry
---------------------------------------------------------------------------------------------
---------------
It is true that the Agent of the Government of Peru declared that the
decree of November 4th does not have retroactive effect. But this
declaration in no way modifies the problem in so far as M. Haya de la
Torre is concerned. For this problem must be envisaged as it existed
on January 3rd, 1949, the date of the grant of asylum: at that time the
decree was in force and there was no reason to believe that it would
not have retroactive effects for: 1) no declaration had been made by
the Government in this connexion, 2) there existed at that time a de
facto Government whose powers were founded, not on constitutional
provisions but on the success of a coup d'état: and that Government
had conferred upon itself the right to promulgate laws regardless of
the Constitution, and 3) it was not known how this decree would be
interpreted by the Oral Courts-Martial.
On the other hand, the Peruvian Government during those same days
of October and November 1948 had promulgated decrees of a
retroactive character, such as that of October 4th [p376] concerning
the outlawing of the Aprist Party which established the collective
criminal responsibility of the Aprist leaders for the events of October
3rd. In other words, there was established ex post facto a penal
responsibility attributable to a whole category of persons. A further
retroactive decree was that of the Military Junta concerning the
suspension of proceedings for military rebellion which had been
instituted against Colonel Llosa and others for the abortive revolution
of July 1948. This decree intervened in the operation of military
justice, and suspended the action of the latter.
In making these remarks, I in no way intend to criticize the Peruvian
Government, for it is evident that it could judge, better than anyone,
what measures should be taken for the country. My sole reason for
referring to all these laws is because, in my opinion, they prove clearly
that there existed an unstable domestic situation characterized by
political disturbances, precisely the kind of situation constituting the
urgency of diplomatic asylum.
This abnormal situation is confirmed by the existence of a state of
siege. By a supreme decree of January 2nd, 1949, published on
January 3rd, i.e. the very day asylum was granted to M. Haya de la
Torre, the state of siege was extended for 30 days. In its recitals, the
decree states that "the reasons which have led to the decree
providing for the suspension of individual guarantees, continue to
exist....". In other words, the abnormal situation continues to exist.
The decree adds "that it is necessary that the authority should have
extraordinary powers in order to maintain public order and tranquility
FN1".
---------------------------------------------------------------------------------------------
------------------------FN1 Translation by the Registry.
---------------------------------------------------------------------------------------------
------------------------
It has been pointed out that Haya de la Torre sought refuge only on
January 3rd, whereas the revolution had occurred on October 3rd. For
me, the time factor has no importance, for the important question here
is whether on January 3rd the abnormal situation still existed: and
irrefutable proof of this fact is furnished by the above-quoted decree.
On the other hand, if the Callao revolution occurred on October 3rd, it
was only at the end of that month that the military uprising occurred
which aggravated the situation of M. Haya de la Torre, since the
second revolution which led to the fall of President Bustamante took
place with the avowed intention of punishing Apra. Consequently, the
policy of the new government consisted of the exclusion and
repression of Aprism (note of February 22nd, from the Peruvian
Minister for Foreign Affairs: "It was for that reason that the armed
forces of the Republic, by a unanimous impulse, took action to put an
end to all this crime and wickedness, and to save Peru." P. 150 of the
Counter-Memorial). Furthermore, M. Haya de la Torre, prosecuted as
a criminal, his personal assets having been seques-trated, and in the
face of a declaration of a state of siege which [p377] facilitated search
without a warrant from a competent judge, and at a time when foreign
embassies and legations were under the surveillance of the police, M.
Haya de la Torre, we say, was not really in a position to choose the
date of his asylum. It might be said that he sought refuge when he
could.
The existence of the condition of urgency was so evident that it was
accepted without hesitation by the Diplomatic Corps accredited in
Lima. For, following the revolution of October 3rd, M. Haya de la Torre
was not the only person obliged to seek asylum. There were many
refugees who had sought and obtained asylum in eight embassies; all
of them were Aprist leaders involved in the same proceedings as M.
Haya de la Torre. It is possible to deduce from the foregoing that the
Ambassadors considered that there existed a situation implying
serious danger for-the security of the refugee Aprist leaders. The case
of M. Haya de la Torre is identical with that of the other refugees.
On the other hand, it must not be forgotten that M. Haya de la Torre
was reputed to have given orders for the extermination of his
adversaries. There is no proof of this order, but the rumour was
spread (Counter-Memorial, p. 7). In moments of such confusion and
passion when a complete change in the political situation had just
taken place, it was quite conceivable that there should be some
danger of reprisals against the Aprists, and more especially against
their leader. The leaders of a victorious revolutionary movement, even
when they have assumed total power, are not always able to control
the activities of the extremist elements among their subordinates and
supporters. The very fact that the Colombian Embassy in Lima has
37
been provided with a continuous police guard, is evidence of the
anxiety of the local authorities lest the political opponents of Haya de
la Torre might take action to seize him and endanger his life. If that
happened while he was in the Embassy, how much greater would the
possibilities have been and how much greater the danger for his
personal safety, had he been in another place.
Furthermore, in judging the conduct of the Ambassador, we must
consider:
1. That the two official communiques of the Peruvian Government—
one of the 12th and the other of 26th October 1948—accepted the
existence of a situation which might justify the urgency of asylum, as
well as the principle of unilateral qualification and that of the grant of a
safe-conduct. These communiques were in force on January 3rd,
1949, for it was only in a note of February 22nd, that the Peruvian
Government showed any desire to change its attitude.
2. The Ambassador had granted asylum to M. Pulgar Vidal, an Aprist
deputy, who obtained a safe-conduct on November 29th, in other
words, after the summons had been issued regarding [p378] M. Haya
de la Torre and his friends, and without any remarks being made by
the Peruvian Government on the matter of urgency. Thus, in the case
of M. Pulgar Vidal, the theories set forth in the two official
communiques were put into application.
3. Other Ambassadors had granted asylum without any observations
being made by the Peruvian Government.
4. Official declarations by the Head of a State, published in the official
gazette El Peruano on January 3rd, 1949, recognizing that the
situation of the country at the time was abnormal.
5. The de facto situation which has already been described actually
existed.
Having regard to the foregoing elements of fact and of law, I consider
that the Colombian Ambassador acted correctly: he could not do
otherwise than grant asylum ; he conformed to international law and
American practice; he granted the asylum in strict conformity with the
stipulations of the Havana Convention.
22. Finally, we have further recognition by Peru of the abnormal
nature of conditions existing in January 1949, namely, the
modification of her counter-claim. To maintain that present conditions
are different from those that obtained in 1949, amounts to an
admission that the conditions in 1949 were abnormal, that is, if it is
claimed that present conditions are not abnormal.
23. Asylum, such as is recognized in America, has never been
regarded as a form of intervention. It is not intervention in the sense
that a government may interfere in the domestic affairs of a country by
favouring the members of a certain party; indeed, asylum has always
been exercised generously and nobly, in favour of all types of persons
without discrimination and regardless of the political views of the
refugee. This point must be stressed because it is to the credit of the
Latin-American countries.
In the case of Colombia and Peru, it is sufficient to point out that the
same Ambassador granted asylum, first to M. Julio C. Villegas, who,
as Minister of the Interior, wrote the letter providing for the application
of certain measures in the proceedings against M. Haya de la Torre,
and later, to Haya de la Torre himself.
24. Nor is diplomatic asylum contrary to the principle of
nonintervention, which is fundamental in American law. The historical
origins of this principle are to be found in the relations between the
United States of America and the Latin-American nations, and it was
put forward by the latter as an affirmation of their independence
against interventions, even armed interventions, which had occurred
but which need not be recalled here. At the Montevideo Conference of
1933, the principle was accepted by the United [p379] States of
America following the development of the policy of President Franklin
Roosevelt ; and pursuant to the confirmation of the juridical equality of
American States, their subsequent mutual relations developed in an
atmosphere of complete solidarity, for the feelings of distrust which
had existed theretofore now disappeared.
That is why it has never been.believed in America that asylum is
related to intervention or to non-intervention. These are entirely
different situations which have never been confused. That is why
countries like, the Argentine Republic and Mexico which have always
most enthusiastically supported non-intervention, have also supported
with the same enthusiasm the institution of asylum. In so doing, they
were not being inconsistent, but were rather taking American reality
into account.
25. The Havana Conference of 1928 had before it the institution of
asylum which was intended to assist political refugees' in the event of
domestic disturbance. The Conference never chose at any moment to
modify the essential character of the institution of asylum, but sought
rather to maintain and strengthen it. Nor did it express a desire to put
an end to alleged abuses in the matter of asylum. The precedents of
the Convention are very clear in this connexion. The principal one was
the meeting of jurists at Rio de Janeiro in 1927, whose purpose was
merely to attempt to codify public international law and private
international law in accordance with the systems adopted by the Fifth
Pan-American Conference of Santiago (Chile) of 1923, namely, the
elaboration of a code of private international law and the preparation
of partial agreements for public international law. The criterion applied
in selecting the questions of public international law at Rio was that
preference should be given to questions in which there were no wide
divergencies of view, and upon which there was general agreement.
These were so to speak subjects which were ripe for insertion in a
treat}' following a generally favourable consensus, a kind of juridical
conscience that had already been formed in this respect among the
American countries. We may therefore assume that if the subject of
asylum was chosen at Rio it was because this was doubtless a
question which enjoyed general support and sympathy, a matter in
which agreement was possible, as was the case for the other topics
adopted on that occasion (diplomatic officials, consuls, treaties,
literary copyright, etc.).
The same spirit may be noted in the acts and deliberations at Havana.
There was no resistance to asylum except the opposition in principle
of the United States of America. With this exception, the matter
presented no difficulty and raised no objections.
26. The grant of asylum and the maintenance of asylum are different
phenomena. The former is instantaneous, the latter extends in time.
This was Peru's understanding in presenting its counter-claim
concerning the grant of asylum as well as the addition, which was not
examined by the Court, concerning the maintenance of asylum. For
this reason I believe that all that relates to the grant of asylum can
only be examined by considering one date and one date alone,
January 3rd, 1949.
To pass judgment on the maintenance of asylum is to go beyond the
limits of the Peruvian claim as it was expressed by that Government,
and in my capacity as Judge, I consider that I must confine myself to
resolving the questions which have been put by the Parties.
Nevertheless, the maintenance of asylum is fully justified in the case
of Colombia on the following grounds:
I. At no moment has Peru requested the surrender of the refugee.
2. Peru opposed the asylum on the grounds that M. Haya de la Torre
was a common criminal, a fact which Peru has not been able to
establish.
3. On the very day after the grant of asylum, namely January 4th,
1949, Colombia requested a safe-conduct to enable M. Haya de la
Torre to leave Peru with the necessary guarantees, thus bringing the
stage of diplomatic asylum to a close.
4. This request on the part of Colombia was not entertained.
5. Following the Act of Lima, the question is sub judice and the two
countries have agreed upon their obligations to respect the existing
situation.
38
27. It has been stated that Colombia, following the day on which the
counter-claim was presented and during the oral proceedings, chose
to transfer her defence to a plane on which the Havana Convention
could provide it with no foundation. This refers to the fact that the
spokesmen for Colombia have examined the circumstances in which
proceedings were instituted against M. Haya de la Torre. In my
opinion, this examination did not depend upon the will of Colombia,
but rather upon the policy adopted by Peru in presenting a counter-
claim which, in contrast to the Colombian Application, does not submit
purely legal questions to the Court but rather questions of fact and
accusations against the conduct of the Colombian Ambassador in
Lima. Throughout the diplomatic correspondence, Colombia has
consistently refused to enter into a discussion concerning Peruvian
politics or the domestic situation in Peru. This refusal is to be found in
all the Colombian notes, in spite of the repeated invitations of the
Peruvian Minister for Foreign Affairs. But confronted with the counter-
claim, Colombia was obliged to change her attitude and to examine
the documents and facts which were raised in that counter-claim.
[p381]
Evidence of the change which was introduced by the counterclaim is
found in the fact that the point which was most discussed in the last
stage of the proceedings was the condition of urgency, a question
which had not even been mentioned during the diplomatic
discussions.
Among the documents presented by Peru, the letter of October 5th,
1948, from the Minister of the Interior, M. Villegas, who subsequently
sought refuge in the Colombian Embassy, is worthy of. special
attention. It has been contended that this letter constitutes a
denunciation, although it does not fulfil the requirements of Peruvian
legislation in this respect. This letter is a very serious document
because it orders the Examining Magistrate to follow a certain
procedure in respect of M. Haya de la Torre, which procedure that
judge actually adopted. This constitutes irrefutable evidence of the
influence and intervention of the Government in military justice.
28. In view of the foregoing considerations, it is possible to conclude
that the conduct of Colombia was beyond reproach. It must further be
emphasized that it is abundantly clear from the whole proceedings
that the Colombian Ambassador at Lima had urgent grounds to grant
asylum to M. Victor Raul Haya de la Torre, and it is equally clear that
the refugee is a political offender. This proves that Colombia's actions
were inspired by the most respectable considerations.
Colombia has not sought to defend a particular interest, but rather the
legal principles which are generally accepted in Latin America.
Colombia has considered that, as a member of the American
community, she is bound to work for the integrity of these principles
which, along with many others, are effectively in force on the
American continent, thus ensuring that international relations in that
part of the world develop on the basis of noble doctrines and not on
grounds which are purely utilitarian or materialistic. In this case
Colombia has remained faithful to her own traditions as well as to the
juridical traditions of the continent. In stating resolutely and unselfishly
the tendencies which are common to the other American Republics,
Colombia actually becomes the spokesman of the free peoples of
America.
In defending a political refugee, Colombia defends a fundamental
human right, and in so doing not only honours her contractual
obligations, but also undertakings of another order, the force of which
cannot be disregarded.
I am referring to the essential principles which have inspired not only
the Charter of the United Nations, but also the declarations which
have been adopted by the IXth Pan-American Conference, and by the
General Assembly of the United Nations.
(Signed) Jose Joaquin Caicedo Castilla.
[p382]
ANNEX
LIST OF DOCUMENTS SUBMITTED TO THE COURT
 20.—Bolivarian Agreement on Extradition, signed at Caracas on July
I.—ANNEXES DEPOSITED DURING THE WRITTEN 18th, 1911.
PROCEEDINGS
21.—Convention on Asylum, signed at the VIth Pan-American
A.—By the Government of Colombia Conference.

(a) Annexes to the Memorial: 22.—Convention on Political Asylum, signed at the VIIth Pan-
I.—1949, January 4th. No. 2/1. Letter from the Ambassador of American Conference.
Colombia at Lima to the Peruvian Minister for Foreign Affairs and
Religion. 23.—Extract from the Treaty on Asylum and Political Refuge, signed
at the IInd South-American International Law Congress which met at
2.—1949, January 14th. No. 8/2. Letter from the Ambassador of Montevideo in 1939.
Colombia at Lima to the Peruvian Minister for Foreign Affairs and
Religion. 24.—Excerpt from the American Declaration on the Rights and Duties
of Man, adopted at the IXth Pan-American Conference.
3.—1949, February 12th. No. 2/64. Letter from the Ambassador of
Colombia at Lima to the Peruvian Minister for Foreign Affairs and 25.—Extract from the Universal Declaration on Human Rights,
Religion. adopted by the General Assembly of the U.N. on December 10th,
1948.
4.—1949, February 22nd. No. (D) 6-8/2. Letter from the Peruvian
Minister for Foreign Affairs and Religion to the Ambassador of (b) Annexes to the Reply:
Colombia at Lima.
1.—Documents concerning the asylum of MM. Manuel Gutierrez
5.—1949, March 4th. No. 40/6. Letter from the Ambassador of Aliaga and Luis Felipe Rodriguez in the Uruguayan Embassy at Lima
Colombia at Lima to the Peruvian Minister for Foreign Affairs and and the safe-conducts granted to them by the Peruvian Government
Religion. (five notes listed from A to E).

6.—1949, March 19th. No. (D) 6-8/4. Letter from the Peruvian Minister 2.—Decree No. 4 of November 4th, 1948, creating a Court Martial for
for Foreign Affairs and Religion to the Ambassador of Colombia at the summary judgment of authors, accomplices and other persons
Lima. responsible for rebellion, sedition or rioting.

7.—1949, March 28th. No. 73/9. Letter from the Ambassador of B.—By the Government of Peru
Colombia at Lima to the Peruvian Minister for Foreign Affairs and (a) Annexes to the Counter-Memorial:
Religion.
1.—The Lima Act of August 31st, 1949 (cf. Annex No. 1).
8.—1949, April 6th. No. (D) 6-8/6. Letter from the Peruvian Minister
for Foreign Affairs and Religion to the Ambassador of Colombia at 2.—The Public Prosecutor's indictment, dated September 7th, 1949,
Lima. in the proceedings concerning the crime of military rebellion and other
crimes (cf. Annexes Nos. 2, 4, 25).
9.—1949. April 7th. Statements given to the press by the Colombian
Minister for Foreign Affairs. 3.—Folios 105 to 145 of Folder 8-A in the proceedings concerning the
crime of military rebellion and other crimes, containing the report of
10.—1949, April 29th. No. (S) 6-8/7. Letter from the Peruvian Minister the Deputy-Inspector, head of the Bureau for special cases, on the
for Foreign Affairs and Religion to the Ambassador of Colombia at malicious damage caused to the Central Telephone Exchange (cf.
Lima. Annex No. 3).

11.—The Act of Lima, dated August 31st, 1949.
12.—1949, August 31st. Letter from the Special Plenipotentiary of
Colombia at Lima to the Peruvian Special Plenipotentiary.
13.—1949, August 31st. No. (D) 6-8/14. Letter from the Peruvian
Special Plenipotentiary to the Special Plenipotentiary of Colombia at
Lima.
14.—1949, August 31st. No. 300/36. Letter from the Ambassador of
Colombia to the Peruvian Minister for Foreign Affairs and Religion.
[p383]
15.—1949, September 1st. Letter from the Peruvian Minister for
Foreign Affairs and Religion to the Ambassador of Colombia at Lima.
16.—1944, October 20th. Letter from the Peruvian Legation at
Guatemala to the Military Junta of the Government.
17.—1948, October 28th. No. 5-20 M/34. Letter from the Peruvian
Legation at Panama to the Minister for Foreign Affairs.
18.—Extract from the Treaty on Private International Law, signed at
the Junta of American jurists which met at Lima in 1879.
19.—Extract from the Treaty on International Penal Law, signed at the
1st South-American Congress on Private International Law which met
at Montevideo in 1889.
39
4.—Copy of El Peruano, the Peruvian official gazette, of October 4th,
1948 (cf. Annexes Nos. 4 and 32). [p384]
5.—Folios 27, 31 and 196 of Folder 10-A in the proceedings
concerning the crime of military rebellion and other crimes, containing
the indictment, the inspection by eye-witnesses and the experts'
report on the explosives found at San Isidro (cf. Annex No. 5).
6.—Folio 708 of Folder 10-B of the proceedings concerning the crime
of military rebellion and other crimes, containing note No. 290, of
October 3rd,. 1948, to the Inspector-General, head of the
Investigations and Surveillance Service, on the bombs found in a taxi
(cf. Annex No. 6).
7.—Note of October 4th, 1948, to the Inspector-General, head of the
Investigations and Surveillance Service, concerning a dynamite bomb
found in the garden of the house of the secretary of the Telephone
Company ; Folder 10-A in the proceedings concerning the crime of
military rebellion and other crimes (cf. Annex No. 7).
8.—Folios 219 et sqq. of Folder 10-A in the proceedings concerning
the crime of military rebellion and other crimes, containing Report No.
3r2, of October 5th, 1948, to the Deputy-Inspector, head of the
Secretariat, on the explosion of bombs on the roofs of buildings (cf.
Annex No. 8).
9.—Folio 501 of Folder 10-B in the proceedings concerning the crime
of military rebellion and other crimes, containing communique No.
201, of October 4th, 1948, addressed to the Inspector-General, head
of the Investigations and Surveillance Service, on the damage caused 3rd, 1948 (cf. Annexes Nos. 25 and 57).
to a branch of the People's Bank of Peru (cf. Annex No. 9).
24.—Folios 96 to 98 of Folio 8-A in the proceedings concerning the
10.—Folios 215 to 217 of Folder 10-A in the proceedings concerning crime of military rebellion and other crimes, containing Report No. 55
the crime of military rebellion and other crimes, containing note No. of October 8th, 1948, on the manufacture of explosives in a kitchen
465, of October 4th, 1948, and the report No. 1309, of October 14th, stove factory (cf. Annex No. 26).
1948, addressed to the Inspector-General, head of the Investigations
and Surveillance Service, on the dynamite cartridges placed near a 25.—Folios 90 et sqq. of Folder 8-A in the proceedings concerning the
petrol pump (cf. Annex No. 10), and note No. 211-R/Ia, addressed to crime of military rebellion and other crimes, containing the report of
the said inspector-general in regard to bombs found near a barracks the assistant chief of the Investigations and Surveillance Service to
(cf.. Annex No. 24). the Inspector-General, chief of the Service, on the manufacture of
11.—Folios 516 et sqq. of Folder 10-B in the proceedings concerning bombs by the Aprist Party (cf. Annex No. 27).
the crime of military rebellion and other crimes, containing the
documents relating to the bombs placed in the party wall of a glass 26.—Report by the examining magistrate on the malicious damage
factory (cf. Annex No. 11). caused to the Central Telephone Exchange and the manufacture
[p386] of explosive bombs by the members of the Aprist Party; this
12.—Folios 509 et sqq. of Folder 10-B in the proceedings concerning report is contained in Folios 300 et sqq. of Folder 8-A in the
the crime of military rebellion and other crimes, containing documents proceedings concerning the crime of military rebellion and other
relating to the dynamite bombs found in the garden of a house at crimes (cf. Annex No. 28).
Miraflores (cf. Annex No. 12).
27.—Folio 847, and overleaf, of Folder 10-B in the proceedings
13.—Folios 523 et sqq. of Folder 10-B in the proceedings concerning concerning the crime of military rebellion and other crimes, containing
the crime of military rebellion and other crimes, containing various the deposition of M. Alberto Benavides, who was asked by the Aprist
documents relating to the bombs which exploded on the public leaders to cast shells for explosive bombs (cf. Annex No. 29).
highway, injuring passers-by (cf. Annex No. 13).
28.—Five photographic reproductions of leaflets used by Apra in its
14.—Folio 703 of Folder 10-B in the proceedings concerning the campaign of incitement preceding the rebellion of October 3rd, 1948
crime of military rebellion and other crimes, containing various (cf. Annex No. 30).
documents relating to the bomb and the incendiary bottle placed in
the doorway of a grocer's shop (cf. Annex No. 14). [p385] 29.—Copies of the Lima newspapers containing information published
after the rising on October 3rd, 1948 (cf. Annex No. 31).
15.—Folios 221 to 223 of Folder 10-A in the proceedings concerning
the crime of military rebellion and other crimes, containing various 30.—Volume containing the record of the prosecution for trade in
documents relating to the bomb found near the printing works of the drugs instituted in a court of the United States of America (district of
newspaper El Comercio (cf. Annex No. 15). Southern New York), against Edward Tampa, Miguel E. Gonzales and
Eduardo Balarezo, showing the connexion which existed between the
16.—Folios 512 et sqq. of Folder 10-B in the proceedings concerning latter and the revolutionary movement of October 3rd, 1948, and also
the crime of military rebellion and other crimes, containing various his connexion with Victor Raul Haya de la Torre, the leader of Apra.
documents relating to the bombs thrown at a house (cf. Annex No. This document is authenticated by the United States authorities (cf.
16), and the bomb found at the foot of the wall of a barracks (cf. Annex No. 33).
Annex No. 22).
31.—Photographic copies of documents communicated to the
17.—Folios 203 to 205, and overleaf, of Folder 10-A in the Peruvian Ambassador at Washington by the Bureau of Narcotics of
proceedings concerning the crime of military rebellion and other the United States of America (cf. Annex No. 34).
crimes, containing various documents relating to a bomb placed on
the tramway (cf. Annex No. 17). 32.—Letter addressed to M. Haya de la Torre by Major Aguila Pardo,
Folio 624 of Folder 10-B in the proceedings concerning the crime of
18.—Folder 210 of Folder 10-A in the proceedings concerning the military rebellion and other crimes. Photographic reproduction of the
crime of military rebellion and other crimes, containing documents document and authenticated copy (cf. Annex No. 35).
relating to the bomb found in a motor bus (cf. Annex No. 18).
33.—Decree No. 23 of October 4th, 1948, by the Executive Power,
19.—Folio 229 of Folder 10-A in the proceedings concerning the outlawing Apra (cf. Annex No. 36).
crime of military rebellion and other crimes, containing documents
relating to the gelignite cartridge found in the premises of the daily 34.—Copy of the Penal Code of the Republic of Peru ; law No. 4868
paper La Prensa (cf. Annex No. 19). of January 10th, 1924 (cf. Annex No. 37).

20.—Folios 201 and 202 of Folder 10-A in the proceedings 35.—Copy of the Code of Military Justice of the Republic of Peru ; law
concerning the crime of military rebellion and other crimes, containing No. 8991 of October 16th, 1939 (cf. Annex No. 37).
various documents relating to the twenty-eight dynamite bombs found
on the roof of an hotel (cf. Annex No. 20). 36.—Order made by the head of the Naval Judicial Department, dated
October 3rd, 1948, giving instructions for the opening of investigations
21.—Folios 740 et sqq. of Folder 10-B in the proceedings concerning by the Permanent Examining Magistrate of the Navy, Folio 1, and
the crime of military rebellion and other crimes, containing various overleaf, in the proceedings concerning the crime of military rebellion
documents concerning the bomb, hidden in the coal, which exploded and other crimes (cf. Annex No. 38).
in a kitchen range (cf. Annex No. 21).
22.—Folio 700 of Folder 10-B in the proceedings concerning the 37.—Folios 8 and 9 of Folder 1 in the proceedings concerning the
crime of military rebellion and other crimes, containing various crime of military rebellion and other crimes, containing a request by
documents relating to bombs found on the roof of a house adjoining the prosecutor to the Directorate of the Judicial Department of the
the workshops of the Telephone Company (cf. Annex No. 23). Navy for the issue of a formal order for the opening of the
proceedings, and an order dated October 4th, 1948, for the opening of
23.—Folios 21.and 22 of Folder n-A in the proceedings concerning a military prosecution in accordance with the opinion given by the
the crime of military rebellion and other crimes, containing a list of prosecutor on the same date (cf. Annex No. 39). [p387]
documents and exhibits transmitted by the Prefecture to the judicial
department of the Navy with a view to their being attached to the 38.—Folios 22 to 24 of Folder 1 in the proceedings concerning the
prosecution opened in regard to the subversive movement of October crime of military rebellion and other crimes, containing the institution
40
of the prosecution of the persons responsible, the perpetrators and authenticated copy of the same document (cf. Annex No. 55).
accomplices (cf. Annex No. 40).
55.—Photographic copy contained in Folder 10-B in the proceedings
39.—Accusation by the Minister of the Interior, transmitted by the concerning the crime of military rebellion and other crimes, of the
Minister of the Navy to the head of the Judicial Department of the Code of Justice of the Aprist Advanced Guard, together with an
Navy ; this accusation appears in Folios 1 to 5, and on the reverse of authenticated copy of that document (cf. Annex No. 56).
Folios 5, 10 and 11, and on the reverse of Folder 10-A of the
proceedings concerning the crime of military rebellion and other 56.—Text of a cable from President Benavides, dated December
crimes (cf. Annex No. 41). 26th, 1938 (cf. Annex No. 58).

40.—Folios 16 to 23 of Folder 10-A concerning the crime of military 57.—Official publication by the Peruvian Ministry of the Interior
rebellion and other crimes, containing a certified true copy of the containing President Bustamante y Rivero's message dated February
examining magistrate's report (cf. Annex No. 42). 29th, 1948 (cf. Annex No. 59).

41.—Folio 170, and overleaf, of Folder 10-A in the proceedings
concerning the crime of military rebellion and other crimes, containing
the judicial order for the arrest of the accused persons who are not yet
in custody (cf. Annex No. 43).
42.—Folio 346, and overleaf, of Folder 10-A in the proceedings
concerning the crime of military rebellion and other crimes, containing
the note requesting the delivery of the documents found at the
headquarters of the Aprist Party, in the premises of La Tribuna, and in
Haya de la Torre's private house, with a renewed order for the arrest
of the accused persons who have defaulted (cf. Annex No. 44).
43.—Folio 421, and overleaf, of Folder 10-A in the proceedings
concerning the crime of military rebellion and other crimes, containing
the note from the Inspector-General of the Investigations and
Surveillance Service to the judicial authority, informing the latter that
Haya de la Torre and other accused persons had not been found (cf.
Annex No. 45).
44.—Folio 414, and overleaf, of Folder 10-A in the proceedings
concerning the crime of military rebellion and other crimes, containing
the judge's order for the citation, by public summons, in accordance
with the law, of the accused persons who have defaulted (cf. Annex
No. 46).
45.—Copy of the Peruvian official gazette El Peruana, of November
16th, 1948, containing the first of the citations summoning the
accused persons to appear (cf. Annex No. 47).
46.—Note dated January 4th, 1949, from the Colombian Ambassador
in Lima to the Peruvian Minister for Foreign Affairs (cf. Annex No. 48.)
58.—Judgment delivered on December 5th, 1949, in the trial of
Alfredo Tello Salavarria and other persons for the murder of M.
Francisco Gratia Garland, in which orders were given for the
institution of proceedings against Victor Raul Haya de la Torre and
Carlos Boado for the crime which was the subject of that trial (cf.
Annex No. 60).
59.—The public prosecutor's indictment of Haya de la Torre and other
persons for the crime of usurpation of authority (cf. Annex No. 61).
60.—Order for the institution of proceedings against Victor Raul Haya
de la Torre and other persons for the crime of usurpation of functions
to the prejudice of the State (cf. Annex No. 62).
(b) Annexes to the Rejoinder:
1.—Extracts from the Peruvian Code of Military Law (document
transmitted with the Counter-Memorial).
2.—Extracts from the resolution of the head of the Judicial
Department of the Navy which declares Mr. Haya de la Torre, among
others, a defaulting criminal. (Folios 24 to 54 of Folder n-C in the
proceedings concerning the crime of military rebellion and other
crimes.)
3.—Extracts from the sentence pronounced on March 22nd, 1950, by
the tribunal which tried the persons responsible for rebellion and other
crimes.
4.—Articles from the Military Penal Code of Colombia. [p389]

47.—Note dated January 14th, 1949, from the Colombian 5.—Colombian decree extending the jurisdiction of the Courts Martial.
Ambassador in Lima to the Peruvian Minister for Foreign Affairs (cf.
Annex No. 48.) 6.—Colombian decree increasing the penalties under the Penal Code.

48.—Note dated February 12th, 1949, from the Colombian 7.—Extracts from the report of the examining magistrate in the
Ambassador in Lima to the Peruvian Minister for Foreign Affairs (cf. proceedings against Victor Raul Haya de la Torre and others
Annex No. 48). concerning the crime of usurpation of authority.

49.—Official publication containing the note No. (D) 6-8/2, dated (c) Documents submitted to the Registry of the International Court of
February 22nd, 1949, from the Peruvian Minister for Foreign Affairs to Justice with the Rejoinder:
the Colombian Ambassador in Lima (cf. Annex No. 49). [p388]
I.—Folios 24 to 54 of Folder n-C in the proceedings concerning
50.—Official publication containing the note No. (D) 6-8/4, dated- military rebellion and other crimes, containing the resolution of the
March 19th, 1949, from the Peruvian Minister for Foreign Affairs to the head of the Judicial Department of the Navy, which declares M. Haya
Colombian Ambassador in Lima (cf. Annex No. 49). de la Torre, among others, a defaulting criminal.

51.—Official publication containing the note No. (D) 6-8/6., dated April 2.—Certified copy of the sentence pronounced on March 22nd, 1950,
6th, 1949, from the Peruvian Minister for Foreign Affairs to the by the tribunal which tried the persons responsible for rebellion and
Colombian Ambassador in Lima (cf. Annex No. 49). other crimes.

52.—Photographic copy of the pages of the Revista colombiana de 3.—Copy of the Military Penal Code of Colombia (law 3 a of 1945).
Derecho international, containing a report by the advisory commission
of the Colombian Ministry of Foreign Affairs (cf. Annex No. 50). 4.—Cutting from the Official Journal of Colombia containing decree
No. 3562 of 1949.
53.—Photographic copy of a page of the year-book of Peruvian
legislation, containing the text of law No. 9048 (cf. Annex No. 54). 5.—Copy of the Official Journal of Colombia containing decree No.
957 of 1950.
54.—Photographic copy contained in Folder 10-B in the proceedings
concerning the crime of military rebellion and other crimes, of the 6.—Certified copy of the report of the examining magistrate in the
Disciplinary Statute of the People's Party, together with an proceedings against Victor Raul Haya de la Torre and others
41
concerning the crime of usurpation of authority.
II.—annexes deposited during oral proceedings
By the Government of Colombia:
1.—Authentication of the signature of the Notary Public for the District
of Columbia by the Secretary of the Bureau des Commissaires of that
district.
2.—Letter from M. Serafino Romualdi to M. Francisco Urrutia, signed
before a notary at New York on 6th September, 1950.
3.—Copy of a letter from M. Serafino Romualdi to M. Edward G. Miller
Jr., dated nth April, 1950.
4.—Photocopy of a letter from Mr. Edward G. Miller Jr., dated 1st
May, 1950, in answer to M. Serafino Romualdi's letter.
5.—Photocopy of M. Victor Raul Haya de la Torre's passport.
The Paquete Habana, 175 U.S. 677 (1900)
The Paquete Habana
Nos. 895-896
Argued November 7-8, 1899
Decided January 8, 1900
175 U.S. 677 (1900)
APPEALS FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF FLORIDA
Syllabus
Under the Act of Congress of March 3, 1891, c. 517, this Court has
jurisdiction of appeals from all final sentences and decrees in prize
causes, without regard to the amount in dispute and without any
certificate of the district judge as to the importance of the particular
case.
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as often
as questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must
be had to the customs and usages of civilized nations, and, as
evidence of these, to the works of jurists and commentators, not for the
speculations of their authors concerning what the law ought to be, but
for trustworthy evidence of what the law really is.
At the present day, by the general consent of the civilized nations of
the world and independently of any express treaty or other public act, it
is an established rule of international law that coast fishing vessels,
with their implements and supplies, cargoes and crews, unarmed and
honestly pursuing their peaceful calling of catching and bringing in
fresh fish, are exempt from capture as prize of war. And this rule is one
which prize courts, administering the law of nations, are bound to take
judicial notice of, and to give effect to, in the absence of any treaty or
other public act of their own government in relation to the matter.
At the breaking out of the recent war with Spain, two fishing smacks --
the one a sloop, 43 feet long on the keel and of 25 tons burden, and
with a crew of three men, and the other a schooner, 51 feet long on the
keel and of 35 tons burden, and with a crew of six men -- were
42
regularly engaged in fishing on the coast of Cuba, sailing under the
Spanish flag, and each owned by a Spanish subject, residing in
Havana; her crew, who also resided there, had no interest in the
vessel, but were entitled to shares, amounting in all to two thirds, of her
catch, the other third belonging to her owner, and her cargo consisted
of fresh fish, caught by her crew from the sea, put on board as they
were caught, and kept and sold alive. Each vessel left Havana on a
coast fishing voyage, and sailed along the coast of Cuba about two
hundred miles to the west end of the island; the sloop there fished for
twenty-five days in the territorial waters of Spain, and the schooner
extended her fishing trip a hundred
Page 175 U. S. 678
miles farther across the Yucatan Channel, and fished for eight days on
the coast of Yucatan. On her return, with her cargo of live fish, along
the coast of Cuba, and when near Havana, each was captured by one
of the United States blockading squadron. Neither fishing vessel had
any arms or ammunition on board, had any knowledge of the blockade,
or even of the war, until she was stopped by a blockading vessel,
made any attempt to run the blockade, or any resistance at the time of
her capture, nor was there any evidence that she, or her crew, was
likely to aid the enemy. Held that both captures were unlawful, and
without probable cause.
The cases are stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
These are two appeals from decrees of the District Court of the United
States for the Southern District of Florida condemning two fishing
vessels and their cargoes as prize of war.
Each vessel was a fishing smack, running in and out of Havana, and
regularly engaged in fishing on the coast of Cuba; sailed under the
Spanish flag; was owned by a Spanish subject of Cuban birth, living in
the City of Havana; was commanded by a subject of Spain, also
residing in Havana, and her master and crew had no interest in the
vessel, but were entitled to shares, amounting in all to two-thirds, of her
catch, the other third belonging to her owner. Her cargo consisted of
fresh fish, caught by her crew from the sea, put on board as they were
caught, and kept and sold alive. Until stopped by the blockading
squadron, she had no knowledge of the existence of the war or of any
blockade. She had no arms or ammunition on board, and made no
attempt to run the blockade after she knew of its existence, nor any
resistance at the time of the capture.
The Paquete Habana was a sloop, 43 feet long on the keel,
Page 175 U. S. 679
and of 25 tons burden, and had a crew of three Cubans, including the
master, who had a fishing license from the Spanish government, and
no other commission or license. She left Havana March 25, 1898,
sailed along the coast of Cuba to Cape San Antonio at the western end
of the island, and there fished for twenty-five days, lying between the
reefs off the cape, within the territorial waters of Spain, and then
started back for Havana, with a cargo of about 40 quintals of live fish.
On April 25, 1898, about two miles off Mariel, and eleven miles from
Havana, she was captured by the United States gunboat Castine.
The Lola was a schooner, 51 feet long on the keel, and of 35 tons
burden, and had a crew of six Cubans, including the master, and no
commission or license. She left Havana April 11, 1898, and proceeded
to Campeachy Sound, off Yucatan, fished there eight days, and started
back for Havana with a cargo of about 10,000 pounds of live fish. On
April 26, 1898, near Havana, she was stopped by the United States
steamship Cincinnati, and was warned not to go into Havana, but was
told that she would be allowed to land at Bahia Honda. She then
changed her course, and put for Bahia Honda, but on the next
morning, when near that port, was captured by the United States
steamship Dolphin.
Both the fishing vessels were brought by their captors into Key West. A
libel for the condemnation of each vessel and her cargo as prize of war
was there filed on April 27, 1898; a claim was interposed by her master
on behalf of himself and the other members of the crew, and of her
owner; evidence was taken, showing the facts above stated, and on
May 30, 1898, a final decree of condemnation and sale was entered,
"the court not being satisfied that as a matter of law, without any
ordinance, treaty, or proclamation, fishing vessels of this class are
exempt from seizure."
Each vessel was thereupon sold by auction; the Paquete Habana for
the sum of $490 and the Lola for the sum of $800. There was no other
evidence in the record of the value of either vessel or of her cargo.
It has been suggested in behalf of the United States that
Page 175 U. S. 680
this Court has no jurisdiction to hear and determine these appeals
because the matter in dispute in either case does not exceed the sum
or value of $2,000, and the district judge has not certified that the
adjudication involves a question of general importance.
The suggestion is founded on § 695 of the Revised Statutes, which
provides that
"an appeal shall be allowed to the Supreme Court from all final decrees
of any district court in prize causes, where the matter in dispute,
exclusive of costs, exceeds the sum or value of two thousand dollars,
and shall be allowed, without reference to the value of the matter in
dispute, on the certificate of the district judge that the adjudication
involves a question of general importance."
The Judiciary Acts of the United States, for a century after the
organization of the government under the Constitution, did impose
pecuniary limits upon appellate jurisdiction.
In actions at law and suits in equity the pecuniary limit of the appellate
jurisdiction of this Court from the circuit courts of the United States was
for a long time fixed at $2000. Acts of September 24, 1789, c. 20, § 22;
1 Stat. 84; March 3, 1803, c. 40; 2 Stat. 244; Gordon v. Ogden, 3 Pet.
33; Rev.Stat. §§ 691, 692. In 1875, it was raised to $5,000. Act of
February 16, 1875, c. 77, § 3; 18 Stat. 316. And in 1889 this was
modified by providing that, where the judgment or decree did not
exceed the sum of $5,000, this Court should have appellate jurisdiction
upon the question of the jurisdiction of the circuit court, and upon that
question only. Act of February 25, 1889, c. 236, § 1; 25 Stat.
693; Parker v. Ormsby, 141 U. S. 81.
As to cases of admiralty and maritime jurisdiction, including prize
causes, the Judiciary Act of 1789, in § 9, vested the original jurisdiction
in the district courts, without regard to the sum or value in controversy,
and in § 21 permitted an appeal from them to the circuit courts where
the matter in dispute exceeded the sum or value of $300. 1 Stat. 77,
83, c. 20; The Betsey, 3 Dall. 6, 3 U.S. 16; The Amiable Nancy, 3
Wheat. 546; Stratton v. Jarvis, 8 Pet. 4, 33 U. S. 11. By the Act of
March 3, 1803, c. 40, appeals to the circuit court were permitted from
all final decrees of a district court where
Page 175 U. S. 681
the matter in dispute exceeded the sum or value of $50, and from the
circuit courts to this Court in all cases "of admiralty and maritime
jurisdiction, and of prize or no prize" in which the matter in dispute
43
exceeded the sum or value of $2,000. 2 Stat. 244; Jenks v. Lewis, 3
Mason 503; Stratton v. Jarvis, above cited; The Admiral, 3 Wall.
603, 70 U. S. 612. The acts of March 3, 1863, c. 86, § 7, and June 30,
1864, c. 174, § 13, provided that appeals from the district courts in
prize causes should lie directly to this Court, where the amount in
controversy exceeded $2,000, or "on the certificate of the district judge
that the adjudication involves a question of difficulty and general
importance." 12 Stat. 760; 13 Stat. 310. The provision of the act of
1803, omitting the words "and of prize or no prize," was reenacted in §
692 of the Revised Statutes, and the provision of the act of 1864,
concerning prize causes, was substantially reenacted in § 695 of the
Revised Statutes, already quoted.
But all this has been changed by the Act of March 3, 1891, c. 517,
establishing the circuit courts of appeals and creating a new and
complete scheme of appellate jurisdiction, depending upon the nature
of the different cases, rather than upon the pecuniary amount involved.
26 Stat. 826.
By that act, as this Court has declared, the entire appellate jurisdiction
from the circuit and district courts of the United States was distributed,
"according to the scheme of the act," between this Court and the circuit
courts of appeals thereby established, "by designating the classes of
cases" of which each of these courts was to have final
jurisdiction. McLish v. Roff, 141 U. S. 661, 141 U. S. 666; American
Construction Co. v. Jacksonville Railway, 148 U. S. 372, 148 U. S.
382; Carey v. Houston & Texas Railway, 150 U. S. 170, 150 U. S. 179.
The intention of Congress, by the act of 1891, to make the nature of
the case, and not the amount in dispute, the test of the appellate
jurisdiction of this Court from the district and circuit courts clearly
appears upon examination of the leading provisions of the act.
Section 4 provides that no appeal, whether by writ of error or
otherwise, shall hereafter be taken from a district court
Page 175 U. S. 682
to a circuit court, but that all appeals, by writ of error or otherwise, from
the district courts "shall only be subject to review" in this Court or in the
circuit court of appeal "as is hereinafter provided," and "the review by
appeal, by writ of error, or otherwise" from the circuit courts, "shall be
had only" in this Court or in the circuit court of appeals, "according to
the provisions of this act regulating the same."
Section 5 provides that "appeals or writs of error may be taken from
the district courts, or from the existing circuit courts, direct to the
Supreme Court, in the following cases:"
First.
"In any case in which the jurisdiction of the court is in issue; in such
cases, the question of jurisdiction alone shall be certified to the
Supreme Court from the court below for decision."
This clause includes "any case," without regard to amount, in which the
jurisdiction of the court below is in issue, and differs in this respect from
the act of 1889, above cited.
Second. "From the final sentences and decrees in prize causes." This
clause includes the whole class of "the final sentences and decrees in
prize causes," and omits all provisions of former acts regarding amount
in controversy, or certificate of a district judge.
Third. "In cases of conviction of a capital or otherwise infamous crime."
This clause looks to the nature of the crime, and not to the extent of the
punishment actually imposed. A crime which might have been
punished by imprisonment in a penitentiary is an infamous crime, even
if the sentence actually pronounced is of a small fine only. Ex Parte
Wilson, 114 U. S. 417, 114 U. S. 426. Consequently, such a sentence
for such a crime was subject to the appellate jurisdiction of this Court,
under this clause, until this jurisdiction, so far as regards infamous
crimes, was transferred to the circuit court of appeals by the Act of
January 20, 1897, c. 68. 29 Stat. 492.
Fourth. "In any case, that involves the construction or application of the
Constitution of the United States."
Fifth.
"In any case in which the constitutionality of any law of the United
States, or the validity or construction of any treaty made under its
authority, is drawn in question. "
Page 175 U. S. 683
Sixth. "In any case in which the Constitution or law of a state is claimed
to be in contravention of the Constitution of the United States."
Each of these last three clauses, again, includes "any case" of the
class mentioned. They all relate to what are commonly called federal
questions, and cannot reasonably be construed to have intended that
the appellate jurisdiction of this Court over such questions should be
restricted by any pecuniary limit -- especially in their connection with
the succeeding sentence of the same section:
"Nothing in this act shall affect the jurisdiction of the Supreme Court in
cases appealed from the highest court of a state, nor the construction
of the statute providing for review of such cases."
Writs of error from this Court to review the judgments of the highest
court of a state upon such questions have never been subject to any
pecuniary limit. Act of September 24, 1789, c. 20, § 25; 1 Stat. 85;  Buel
v. Van Ness, 8 Wheat. 312; Act of February 5, 1867, c. 28, § 2; 14
Stat. 386; Rev.Stat. § 709.
By section 6 of the act of 1891, this Court is relieved of much of the
appellate jurisdiction that it had before; the appellate jurisdiction from
the district and circuit courts "in all cases other than those provided for
in the preceding section of this act, unless otherwise provided by law,"
is vested in the circuit court of appeals, and its decisions in admiralty
cases, as well as in cases arising under the criminal laws, and in
certain other classes of cases, are made final, except that that court
may certify to this Court questions of law, and that this Court may order
up the whole case by writ of certiorari. It is settled that the words
"unless otherwise provided by law," in this section, refer only to
provisions of the same act, or of contemporaneous or subsequent acts,
and do not include provisions of earlier statutes. Lau Ow Bew v. United
States, 144 U. S. 47, 144 U. S. 57; Hubbard v. Soby, 146 U. S.
56; American Construction Co. v. Jacksonville Railway, 148 U. S.
372, 148 U. S. 383.
The act of 1891 nowhere imposes a pecuniary limit upon the appellate
jurisdiction, either of this Court or of the circuit court of appeals, from a
district or circuit court of the United States. The only pecuniary limit
imposed is one of
Page 175 U. S. 684
$1,000 upon the appeal to this Court of a case which has been once
decided on appeal in the circuit court of appeals, and in which the
judgment of that court is not made final by section 6 of the act.
Section 14 of the act of 1891, after specifically repealing section 691 of
the Revised Statutes and section 3 of the act of February 16, 1875,
further provides that
44
"all acts and parts of acts relating to appeals or writs of error,
inconsistent with the provisions for review by appeals or writs of error
in the preceding sections 5 and 6 of this act, are hereby repealed."
26 Stat. 829, 830. The object of the specific repeal, as this Court has
declared, was to get rid of the pecuniary limit in the acts referred
to. McLish v. Roff, 141 U. S. 661, 141 U. S. 667. And, although neither
section 692 nor section 695 of the Revised Statutes is repealed by
name, yet, taking into consideration the general repealing clause,
together with the affirmative provisions of the act, the case comes
within the reason of the decision in an analogous case, in which this
Court said:
"The provisions relating to the subject matter under consideration are,
however, so comprehensive, as well as so variant from those of former
acts, that we think the intention to substitute the one for the other is
necessarily to be inferred, and must prevail."
Fisk v. Henarie, 142 U. S. 459, 142 U. S. 468.
The decision in this Court in the recent case of United States v.
Rider, 163 U. S. 132, affords an important, if not controlling, precedent.
From the beginning of this century until the passage of the act of 1891,
both in civil and in criminal cases, questions of law upon which two
judges of the circuit court were divided in opinion might be certified by
them to this Court for decision. Act of April 29, 1802, c. 31, § 6; 2 Stat.
159; June 1, 1872, c. 255, § 1; 17 Stat.196; Rev.Stat. §§ 650-652, 693,
697; Insurance Co. v. Dunham, 11 Wall. 1, 78 U. S. 21; United States
v. Sanges, 144 U. S. 310, 144 U. S. 320. But in United States v.
Rider, it was adjudged by this Court that the act of 1891 had
superseded and repealed the earlier acts authorizing questions of law
to be certified from the circuit court to this Court, and the grounds of
that adjudication sufficiently appear by
Page 175 U. S. 685
the statement of the effect of the act of 1891 in two passages of that
opinion:
"Appellate jurisdiction was given in all criminal cases by writ of error
either from this Court or from the circuit courts of appeals, and in all
civil cases by appeal or error, without regard to the amount in
controversy, except as to appeals or writs of error to or from the circuit
courts of appeals in cases not made final as specified in § 6. . . . It is
true that repeals by implication are not favored, but we cannot escape
the conclusion that, tested by its scope, its obvious purpose, and its
terms, the Act of March 3, 1891, covers the whole subject matter under
consideration, and furnishes the exclusive rule in respect of appellate
jurisdiction on appeal, writ of error, or certificate."
163 U. S. 163 U.S. 138, 163 U. S. 140.
That judgment was thus rested upon two successive propositions: first,
that the act of 1891 gives appellate jurisdiction, either to this Court or to
the circuit court of appeals, in all criminal cases, and in all civil cases
"without regard to the amount in controversy;" second, that the act, by
its terms, its scope, and its obvious purpose, "furnishes the exclusive
rule in respect of appellate jurisdiction on appeal, writ of error, or
certificate."
As was long ago said by Chief Justice Marshall,
"the spirit as well as the letter of a statute must be respected, and
where the whole context of the law demonstrates a particular intent in
the legislature to effect a certain object, some degree of implication
may be called in to aid that intent."
Durousseau v. United States, 6 Cranch 307, 10 U. S. 314. And it is a
well settled rule in the construction of statutes, often affirmed and
applied by this Court, that,
"even where two acts are not in express terms repugnant, yet if the
latter act covers the whole subject of the first, and embraces new
provisions, plainly showing that it was intended as a substitute for the
first act, it will operate as a repeal of that act."
United States v. Tynen, 11 Wall. 88, 78 U. S. 92; King v. Cornell, 106
U. S. 395, 106 U. S. 396; Tracy v. Tuffly, 134 U. S. 206, 134 U. S.
223; Fisk v. Henarie, 142 U. S. 459, 142 U. S. 468; District of Columbia
v. Hutton, 143 U. S. 18, 143 U. S. 27; United States v. Healey, 160 U.
S. 136, 160 U. S. 147.
We are of opinion that the act of 1891, upon its face, read
Page 175 U. S. 686
in the light of settled rules of statutory construction and of the decisions
of this Court, clearly manifests the intention of Congress to cover the
whole subject of the appellate jurisdiction from the district and circuit
courts of the United States, so far as regards in what cases, as well as
to what courts, appeals may be taken, and to supersede and repeal, to
this extent, all the provisions of earlier acts of Congress, including
those that imposed pecuniary limits upon such jurisdiction, and, as part
of the new scheme, to confer upon this Court jurisdiction of appeals
from all final sentences and decrees in prize causes, without regard to
the amount in dispute, and without any certificate of the district judge
as to the importance of the particular case.
We are then brought to the consideration of the question whether,
upon the facts appearing in these records, the fishing smacks were
subject to capture by the armed vessels of the United States during the
recent war with Spain.
By an ancient usage among civilized nations, beginning centuries ago
and gradually ripening into a rule of international law, coast fishing
vessels pursuing their vocation of catching and bringing in fresh fish
have been recognized as exempt, with their cargoes and crews, from
capture as prize of war.
This doctrine, however, has been earnestly contested at the bar, and
no complete collection of the instances illustrating it is to be found, so
far as we are aware, in a single published work, although many are
referred to and discussed by the writers on international law, notable in
2 Ortolan, Regles Internationales et Diplomatie de la Mer (4th ed.) lib.
3, c. 2, pp. 51-56; in 4 Calvo, Droit International (5th ed.) §§ 2367-
2373; in De Boeck, Propriete Privee Ennemie sous Pavillon Ennemi,
§§ 191-196, and in Hall, International Law (4th ed.) § 148. It is
therefore worth the while to trace the history of the rule from the
earliest accessible sources through the increasing recognition of it, with
occasional setbacks, to what we may now justly consider as its final
establishment in our own country and generally throughout the civilized
world.
The earliest acts of any government on the subject mentioned
Page 175 U. S. 687
in the books either emanated from, or were approved by, a King of
England.
In 1403 and 1406, Henry IV issued orders to his admirals and other
officers, entitled "Concerning Safety for Fishermen -- De Securitate pro
Piscatoribus." By an order of October 26, 1403, reciting that it was
made pursuant to a treaty between himself and the King of France, and
for the greater safety of the fishermen of either country, and so that
they could be, and carry on their industry, the more safely on the sea,
45
and deal with each other in peace, and that the French King had
consented that English fishermen should be treated likewise, it was
ordained that French fishermen might, during the then pending season
for the herring fishery, safely fish for herrings and all other fish from the
harbor of Gravelines and the Island of Thanet to the mouth of the
Seine and the harbor of Hautoune. And by an order of October 5,
1406, he took into his safe conduct and under his special protection,
guardianship, and defense all and singular the fishermen of France,
Flanders, and Brittany, with their fishing vessels and boats, everywhere
on the sea, through and within his dominions, jurisdictions, and
territories, in regard to their fishery, while sailing, coming, and going,
and at their pleasure, freely and lawfully fishing, delaying, or
proceeding, and returning homeward with their catch of fish, without
any molestation or hindrance whatever, and also their fish, nets, and
other property and goods soever, and it was therefore ordered that
such fishermen should not be interfered with, provided they should
comport themselves well and properly, and should not, by color of
these presents, do or attempt, or presume to do or attempt, anything
that could prejudice the King, or his Kingdom of England, or his
subjects. 8 Rymer's Foedera 336, 451.
The treaty made October 2, 1521, between the Emperor Charles V and
Francis I of France, through their ambassadors, recited that a great
and fierce war had arisen between them, because of which there had
been, both by land and by sea, frequent depredations and incursions
on either side, to the grave detriment and intolerable injury of the
innocent
Page 175 U. S. 688
subjects of each, and that a suitable time for the herring fishery was at
hand, and, by reason of the sea being beset by the enemy, the
fishermen did not dare to go out, whereby the subject of their industry,
bestowed by heaven to allay the hunger of the poor, would wholly fail
for the year unless it were otherwise provided -- quo fit, ut piscaturae
commoditas, ad pauperum levandam famen a coelesti numine
concessa, cessare hoc anno omnino debeat, nisi aliter
provideatur. And it was therefore agreed that the subjects of each
sovereign, fishing in the sea or exercising the calling of fishermen,
could and might, until the end of the next January, without incurring
any attack, depredation, molestation, trouble, or hindrance soever,
safely and freely, everywhere in the sea, take herrings and every other
kind of fish, the existing war by land and sea notwithstanding; and,
further, that, during the time aforesaid, no subject of either sovereign
should commit, or attempt or presume to commit, any depredation,
force, violence, molestation, or vexation to or upon such fishermen or
their vessels, supplies, equipments, nets, and fish, or other goods
soever truly appertaining to fishing. The treaty was made at Calais,
then an English possession. It recites that the ambassadors of the two
sovereigns met there at the earnest request of Henry VIII and with his
countenance and in the presence of Cardinal Wolsey, his chancellor
and representative. And towards the end of the treaty, it is agreed that
the said King and his said representative, "by whose means the treaty
stands concluded, shall be conservators of the agreements therein, as
if thereto by both parties elected and chosen." 4 Dumont, Corps
Diplomatique, pt. 1, pp. 352, 353.
The herring fishery was permitted, in time of war, by French and Dutch
edicts in 1536. Bynkershoek, Quaestiones Juris Publicae, lib. 1, c. 3; 1
Emerigon des Assurances, c. 4, section 9; c. 12, section 19, section 8.
France, from remote times, set the example of alleviating the evils of
war in favor of all coast fishermen. In the compilation entitled "Us et
Coutumes de la Mer," published by Cleirac in 1661, and in the third
part thereof, containing "Maritime or Admiralty Jurisdiction -- la
Jurisdiction de la
Page 175 U. S. 689
Marine ou d'Admiraute -- as well in time of peace as in time of war,"
article 80 is as follows:
"The admiral may in time of war accord fishing truces -- tresves
pescheresses -- to the enemy and to his subjects, provided that the
enemy will likewise accord them to Frenchmen."
Cleirac 544. Under this article, reference is made to articles 49 and 79,
respectively, of the French ordinances concerning the admiralty in
1543 and 1584, of which it is but a reproduction. 4 Pardessus,
Collection de Lois Maritimes 319; 2 Ortolan, 51. And Cleirac adds, in a
note, this quotation from Froissart's Chronicles:
"Fishermen on the sea, whatever war there were in France and
England, never did harm to one another; so they are friends, and help
one another at need -- Pescheurs sur mer, quelque guerre qui soit en
France et Angleterre, jamais ne se firent mal l'un a l'autre; aincois sont
amis, et s'aydent l'un a l'autre au besoin."
The same custom would seem to have prevailed in France until
towards the end of the seventeenth century. For example, in 1675,
Louis XIV and the States General of Holland, by mutual agreement,
granted to Dutch and French fishermen the liberty, undisturbed by their
vessels of war, of fishing along the coasts of France, Holland, and
England. D'Hauterive et De Cussy, Traites de Commerce, pt. 1, vol. 2,
p. 278. But by the ordinances of 1681 and 1692, the practice was
discontinued, because, Valin says, of the faithless conduct of the
enemies of France, who, abusing the good faith with which she had
always observed the treaties, habitually carried off her fishermen, while
their own fished in safety. 2 Valin sur l'Ordonnance de la Marine (1776)
689, 690; 2 Ortolan 52; De Boeck, § 192.
The doctrine which exempts coast fishermen, with their vessels and
cargoes, from capture as prize of war, has been familiar to the United
States from the time of the War of Independence.
On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to
his admiral, informing him that the wish he had always had of
alleviating, as far as he could, the hardships of war, had directed his
attention to that class of his subjects
Page 175 U. S. 690
which devoted itself to the trade of fishing, and had no other means of
livelihood; that he had thought that the example which he should give
to his enemies, and which could have no other source than the
sentiments of humanity which inspired him, would determine them to
allow to fishermen the same facilities which he should consent to grant,
and that he had therefore given orders to the commanders of all his
ships not to disturb English fishermen, nor to arrest their vessels laden
with fresh fish, even if not caught by those vessels; provided they had
no offensive arms, and were not proved to have made any signals
creating a suspicion of intelligence with the enemy, and the admiral
was directed to communicate the King's intentions to all officers under
his control. By a royal order in council of November 6, 1780, the former
orders were confirmed, and the capture and ransom, by a French
cruiser, of The John and Sarah, an English vessel, coming from
Holland, laden with fresh fish, were pronounced to be illegal. 2 Code
des Prises (ed. 1784) 721, 901, 903.
Among the standing orders made by Sir James Marriott, Judge of the
English High Court of Admiralty, was one of April 11, 1780, by which it
was
"ordered that all causes of prize of fishing boats or vessels taken from
the enemy may be consolidated in one monition, and one sentence or
interlocutory, if under fifty tons burthen, and not more than six in
number."
46
Marriott's Formulary 4. But by the statements of his successor, and of
both French and English writers, it appears that England, as well as
France, during the American Revolutionary War, abstained from
interfering with the coast fisheries. The Young Jacob and Johanna, 1
C. Rob. 20; 2 Ortolan 53; Hall, § 148.
In the treaty of 1785 between the United States and Prussia, article 23
(which was proposed by the American Commissioners, John Adams,
Benjamin Franklin, and Thomas Jefferson, and is said to have been
drawn up by Franklin), provided that if war should arise between the
contracting parties,
"all women and children, scholars of every faculty, cultivators of the
earth, artisans, manufacturers, and fishermen,
Page 175 U. S. 691
unarmed and inhabiting unfortified towns, villages, or places, and in
general all others whose occupations are for the common subsistence
and benefit of mankind, shall be allowed to continue their respective
employments, and shall not be molested in their persons, nor shall
their houses or goods be burnt or otherwise destroyed, nor their fields
wasted by the armed force of the enemy, into whose power, by the
events of war, they may happen to fall; but if anything is necessary to
be taken from them for the use of such armed force, the same shall be
paid for at a reasonable price."
8 Stat. 96; 1 Kent Com. 91, note; Wheaton, History of the Law of
Nations, 306, 308. Here was the clearest exemption from hostile
molestation or seizure of the persons, occupations, houses, and goods
of unarmed fishermen inhabiting unfortified places. The article was
repeated in the later treaties between the United States and Prussia of
1799 and 1828. 8 Stat. 174, 384. And Dana, in a note to his edition of
Wheaton's International Laws, says:
"In many treaties and decrees, fishermen catching fish as an article of
food are added to the class of persons whose occupation is not to be
disturbed in war."
Wheaton, International Law (8th ed.) § 345, note 168.
Since the United States became a nation, the only serious
interruptions, so far as we are informed, of the general recognition of
the exemption of coast fishing vessels from hostile capture, arose out
of the mutual suspicions and recriminations of England and France
during the wars of the French Revolution.
In the first years of those wars, England having authorized the capture
of French fishermen, a decree of the French National Convention of
October 2, 1793, directed the executive power "to protest against this
conduct, theretofore without example; to reclaim the fishing boats
seized; and, in case of refusal, to resort to reprisals." But in July, 1796,
the Committee of Public Safety ordered the release of English
fishermen seized under the former decree, "not considering them as
prisoners of war." La Nostra Segnora de la Piedad (1801) cited below;
2 De Cussy, Droit Maritime, 164, 165; 1 Masse, Droit Commercial (2d
ed.) 266, 267.
Page 175 U. S. 692
On January 24, 1798, the English government by express order
instructed the commanders of its ships to seize French and Dutch
fishermen with their boats. 6 Martens, Recueil des Traites (2d ed.) 505;
6 Schoell, Histoire des Traites, 119; 2 Ortolan, 53. After the
promulgation of that order, Lord Stowell (then Sir William Scott) in the
High Court of Admiralty of England condemned small Dutch fishing
vessels as prize of war. In one case, the capture was in April, 1798,
and the decree was made November 13, 1798. The Young Jacob and
Johanna, 1 C. Rob. 20. In another case, the decree was made August Page 175 U. S. 694
23, 1799. The Noydt Gedacht, 2 C. Rob. 137, note.
Both the capture and the condemnation were within a year after the
For the year 1800, the orders of the English and French governments order of the English government of January 24, 1798, instructing the
and the correspondence between them may be found in books already commanders of its ships to seize French and Dutch fishing vessels,
referred to. 6 Martens 503-512; 6 Schoell, 118-120; 2 Ortolan 53, 54. and before any revocation of that order. Lord Stowell's judgment shows
The doings for that year may be summed up as follows: on March 27, that his decision was based upon the order of 1798, as well as upon
1800, the French government, unwilling to resort to reprisals, strong evidence of fraud. Nothing more was adjudged in the case.
reenacted the orders given by Louis XVI in 1780, above mentioned,
prohibiting any seizure by the French ships of English fishermen,
But some expressions in his opinion have been given so much weight
unless armed or proved to have made signals to the enemy. On May
by English writers that it may be well to examine them particularly. The
30, 1800, the English government, having received notice of that action
opinion begins by admitting the known custom in former wars not to
of the French government, revoked its order of January 24, 1798. But
capture such vessels, adding, however, "but this was a rule of comity
soon afterward, the English government complained that French
only, and not of legal decision." Assuming the phrase "legal decision"
fishing boats had been made into fireboats at Flushing, as well as that
to have been there used, in the sense in which courts are accustomed
the French government had impressed and had sent to Brest, to serve
to use it, as equivalent to "judicial decision," it is true that, so far as
in its flotilla, French fishermen and their boats, even those whom the
appears, there had been no such decision on the point in England. The
English had released on condition of their not serving, and on January
word "comity" was apparently used by Lord Stowell as synonymous
21, 1801, summarily revoked its last order, and again put in force its
with courtesy or goodwill. But the period of a hundred years which has
order of January 24, 1798. On February 16, 1801, Napoleon
since elapsed is amply sufficient to have enabled what originally may
Bonaparte, then First Consul, directed the French commissioner at
have rested in custom or comity, courtesy or concession, to grow, by
London to return at once to France, first declaring to the English
the general assent of civilized nations, into a settled rule of
government that its conduct,
international law. As well said by Sir James Mackintosh:

"contrary to all the usages of civilized nations, and to the common law
"In the present century, a slow and silent, but very substantial,
which governs them, even in time of war, gave to the existing war a
mitigation has taken place in the practice of war, and in proportion as
character of rage and bitterness which destroyed even the relations
that mitigated practice has received the sanction of time, it is raised
usual in a loyal war, "
from the rank of mere usage and becomes part of the law of nations."

Page 175 U. S. 693

Discourse on the Law of Nations 38; 1 Miscellaneous Works, 360.

and "tended only to exasperate the two nations, and to put off the term
of peace," and that the French government, having always made it
"a maxim to alleviate as much as possible the evils of war, could not
think, on its part, of rendering wretched fishermen victims of a
prolongation of hostilities, and would abstain from all reprisals."
On March 16, 1801, the Addington Ministry, having come into power in
England, revoked the orders of its predecessors against the French
fishermen, maintaining, however, that "the freedom of fishing was
nowise founded upon an agreement, but upon a simple concession,"
that "this concession would be always subordinate to the convenience
of the moment," and that "it was never extended to the great fishery, or
to commerce in oysters or in fish." And the freedom of the coast
fisheries was again allowed on both sides. 6 Martens 514; 6 Schoell
121; 2 Ortolan, 54; Manning, Law of Nations (Amos' ed.) 206.
Lord Stowell's judgment in The Young Jacob and Johanna, 1 C. Rob.
20, above cited, was much relied on by the counsel for the United
States, and deserves careful consideration.
The vessel there condemned is described in the report as "a small
Dutch fishing vessel taken April, 1798, on her return from the Dogger
bank to Holland," and Lord Stowell, in delivering judgment, said:
"In former wars, it has not been usual to make captures of these small
fishing vessels; but this rule was a rule of comity only, and not of legal
decision; it has prevailed from views of mutual accommodation
between neighboring countries, and from tenderness to a poor and
industrious order of people. In the present war, there has, I presume,
been sufficient reason for changing this mode of treatment, and as they
are brought before me for my judgment, they must be referred to the
general principles of this Court; they fall under the character and
description of the last class of cases -- that is, of ships constantly and
exclusively employed in the enemy's trade."
And he added: "It is a further satisfaction to me in giving this judgment
to observe that the facts also bear strong marks of a false and
fraudulent transaction."
47
The French prize tribunals, both before and after Lord Stowell's
decision, took a wholly different view of the general question. In 1780,
as already mentioned, an order in council of Louis XVI had declared
illegal the capture by a French cruiser of The John and Sarah, an
English vessel coming from Holland, laden with fresh fish. And on May
17, 1801, where a Portuguese fishing vessel, with her cargo of fish,
having no more crew than was needed for her management and for
serving the nets, on a trip of several days, had been captured
Page 175 U. S. 695
in April, 1801, by a French cruiser, three leagues off the coast of
Portugal, the Council of Prizes held that the capture was contrary to
"the principles of humanity and the maxims of international law," and
decreed that the vessel, with the fish on board, or the net proceeds of
any that had been sold, should be restored to her master. La Nostra
Segnora de la Piedad, 25 Merlin, Jurisprudence, Prise Maritime, § 3,
arts. 1, 3; S.C. 1 Pistoye et Duverdy, Prises Maritimes 331; 2 De
Cussy, Droit Maritime 166.
The English government, soon afterwards, more than once
unqualifiedly prohibited the molestation of fishing vessels employed in
catching and bringing to market fresh fish. On May 23, 1806, it was
"ordered in council that all fishing vessels under Prussian and other
colors, and engaged for the purpose of catching fish and conveying
them fresh to market, with their crews, cargoes, and stores, shall not
be molested on their fishing voyages and bringing the same to market,
and that no fishing vessels of this description shall hereafter be
molested. And the Right Honorable the Lords Commissioners of His
Majesty's Treasury, the Lords Commissioners of the Admiralty, and the
Judge of the High Court of Admiralty, are to give the necessary
directions herein as to them may respectively appertain."
5 C. Rob. 408. Again, in the order in council of May 2, 1810, which
directed that
"all vessels which shall have cleared out from any port so far under the
control of France or her allies as that British vessels may not freely
trade thereat, and which are employed in the whale fishery, or other
fishery of any description, save as hereinafter excepted, and are
returning, or destined to return either to the port from whence they
cleared, or to any other port or place at which the British flag may not
freely trade, shall be captured and condemned together with their
stores and cargoes, as prize to the captors,"
there were excepted "vessels employed in catching and conveying fish
fresh to market, such vessels not being fitted or provided for the curing
of fish." Edw.Adm. appx. L.
Wheaton, in his Digest of the Law of Maritime Captures and Prizes,
published in 1815, wrote:
"It has been usual
Page 175 U. S. 696
in maritime wars to exempt from capture fishing boats and their
cargoes, both from views of mutual accommodation between
neighboring countries, and from tenderness to a poor and industrious
order of people. This custom, so honorable to the humanity of civilized
nations, has fallen into disuse, and it is remarkable that both France
and England mutually reproach each other with that breach of good
faith which has finally abolished it."
Wheaton, Captures, c. 2, § 18.
This statement clearly exhibits Wheaton's opinion that the custom had
been a general one, as well as that it ought to remain so. His
assumption that it had been abolished by the differences between
France and England at the close of the last century was hardly justified
by the state of things when he wrote, and has not since been borne
out.
During the wars of the French Empire, as both French and English
writers agree, the coast fisheries were left in peace. 2 Ortolan 54; De
Boeck § 193; Hall § 148. De Boeck quaintly and truly adds, "and the
incidents of 1800 and of 1801 had no morrow -- n'eurent pas de
lendemain."
In the war with Mexico, in 1846, the United States recognized the
exemption of coast fishing boats from capture. In proof of this, counsel
have referred to records of the Navy Department, which this Court is
clearly authorized to consult upon such a question. Jones v. United
States, 137 U. S. 202; Underhill v. Hernandez, 168 U. S. 250, 168 U.
S. 253.
By those records, it appears that Commodore Conner, commanding
the Home Squadron blockading the east coast of Mexico, on May 14,
1846, wrote a letter from the ship Cumberland, off Brazos Santiago,
near the southern point of Texas, to Mr. Bancroft, the Secretary of the
Navy, enclosing a copy of the commodore's "instructions to the
commanders of the vessels of the Home Squadron, showing the
principles to be observed in the blockade of the Mexican ports," one of
which was that "Mexican boats engaged in fishing on any part of the
coast will be allowed to pursue their labors unmolested," and that, on
June 10, 1846, those instructions were approved by the Navy
Department, of which Mr. Bancroft was still the head, and continued to
be until he was appointed Minister to
Page 175 U. S. 697
England in September following. Although Commodore Conner's
instructions and the Department's approval thereof do not appear in
any contemporary publication of the government, they evidently
became generally known at the time, or soon after, for it is stated in
48
several treatises on international law (beginning with Ortolan's second
edition, published in 1853) that the United States in the Mexican war
permitted the coast fishermen of the enemy to continue the free
exercise of their industry. 2 Ortolan (2d ed.) 49, note; (4th ed.) 55; 4
Calvo (5th ed.) § 2372; De Boeck § 194; Hall (4th ed.) § 148.
As qualifying the effect of those statements, the counsel for the United
States relied on a proclamation of Commodore Stockton, commanding
the Pacific Squadron, dated August 20, 1846, directing officers under
his command to proceed immediately to blockade the ports of
Mazatlan and San Blas, on the west coast of Mexico, and saying to
them,
"All neutral vessels that you may find there you will allow twenty days
to depart, and you will make the blockade absolute against all vessels,
except armed vessels of neutral nations. You will capture all vessels
under the Mexican flag that you may be able to take."
Navy Reports of 1846, pp. 673, 674. But there is nothing to show that
Commodore Stockton intended, or that the government approved, the
capture of coast fishing vessels.
On the contrary, General Halleck, in the preface to his work on
International Law, or Rules Regulating the Intercourse of states in
Peace and War, published in 1861, says that he began that work
during the war between the United States and Mexico "while serving
on the staff of the commander of the Pacific Squadron," and "often
required to give opinions on questions of international law growing out
of the operations of the war." Had the practice of the blockading
squadron on the west coast of Mexico during that war, in regard to
fishing vessels, differed from that approved by the Navy Department on
the east coast, General Halleck could hardly have failed to mention it
when stating the prevailing doctrine upon the subject as follows:
Page 175 U. S. 698
"Fishing boats have also, as a general rule, been exempted from the
effects of hostilities. As early as 1521, while war was raging between
Charles V and Francis, ambassadors from these two sovereigns met at
Calais, then English, and agreed that, whereas the herring fishery was
about to commence, the subjects of both belligerents engaged in this
pursuit should be safe and unmolested by the other party, and should
have leave to fish as in time of peace. In the war of 1800, the British
and French governments issued formal instructions exempting the
fishing boats of each other's subjects from seizure. This order was
subsequently rescinded by the British government on the alleged
ground that some French fishing boats were equipped as gunboats,
and that some French fishermen who had been prisoners in England
had violated their parole not to serve, and had gone to join the French
fleet at Brest. Such excuses were evidently mere pretexts, and after
some angry discussions had taken place on the subject, the British
restriction was withdrawn and the freedom of fishing was again allowed
on both sides. French writers consider this exemption as an
established principle of the modern law of war, and it has been so
recognized in the French courts, which have restored such vessels
when captured by French cruisers."
Halleck (1st ed.) c. 20, § 23.
That edition was the only one sent out under the author's own auspices
except an abridgment, entitled "Elements of International Law and the
Law of War," which he published in 1866, as he said in the preface, to
supply a suitable textbook for instruction upon the subject, "not only in
our colleges, but also in our two great national schools -- the Military
and Naval Academies." In that abridgment, the statement as to fishing
boats was condensed as follows:
"Fishing boats have also, as a general rule, been exempted from the
effects of hostilities. French writers consider this exemption as an
established principle of the modern law of war, and it has been so
recognized in the French courts, which have restored such vessels
when captured by French cruisers."
Halleck's Elements, c. 20, § 21.
In the treaty of peace between the United States and Mexico,
Page 175 U. S. 699
in 1848, were inserted the very words of the earlier treaties with
Prussia, already quoted, forbidding the hostile molestation or seizure in
time of war of the persons, occupations, houses, or goods of
fishermen. 9 Stat. 939, 940.
Wharton's Digest of the International Law of the United States,
published by authority of Congress in 1886 and 1887, embodies
General Halleck's fuller statement, above quoted, and contains nothing
else upon the subject. 3 Whart. Int.Law Dig. § 345, p. 315; 2 Halleck
(Eng. eds. 1873 and 1878) p. 151.
France in the Crimean war in 1854, and in her wars with Italy in 1859
and with Germany in 1870, by general orders, forbade her cruisers to
trouble the coast fisheries or to seize any vessel or boat engaged
therein unless naval or military operations should make it necessary.
Calvo, § 2372; Hall, § 148; 2 Ortolan (4th ed.) 449; 10 Revue de Droit
Internationale (1878) 399.
Calvo says that, in the Crimean War,
"notwithstanding her alliance with France and Italy, England did not
follow the same line of conduct, and her cruisers in the Sea of Azof
destroyed the fisheries, nets, fishing implements, provisions, boats,
and even the cabins of the inhabitants of the coast."
Calvo § 2372. And a Russian writer on prize law remarks that those
depredations,
"having brought ruin on poor fishermen and inoffensive traders, could
not but leave a painful impression on the minds of the population,
without impairing in the least the resources of the Russian
government."
Katchenovsky (Pratt's ed.) 148. But the contemporaneous reports of
the English naval officers put a different face on the matter by stating
that the destruction in question was part of a military measure,
conducted with the cooperation of the French ships, and pursuant to
instructions of the English admiral
"to clear the seaboard of all fish stores, all fisheries and mills, on a
scale beyond the wants of the neighboring population, and indeed of all
things destined to contribute to the maintenance of the enemy's army
in the Crimea,"
and that the property destroyed consisted of large fishing
establishments and storehouses of the Russian government, numbers
of heavy launches, and enormous quantities of nets and gear, salted
fish, corn,
Page 175 U. S. 700
and other provisions intended for the supply of the Russian army.
United Service Journal of 1855, pt. 3, pp. 108-112.
Since the English orders in council of 1806 and 1810, before quoted, in
favor of fishing vessels employed in catching and bringing to market
fresh fish, no instance has been found in which the exemption from
capture of private coast fishing vessels honestly pursuing their
49
peaceful industry has been denied by England or by any other nation.
And the Empire of Japan (the last state admitted into the rank of
civilized nations), by an ordinance promulgated at the beginning of its
war with China in August, 1894, established prize courts and ordained
that "the following enemy's vessels are exempt from detention,"
including in the exemption "boats engaged in coast fisheries," as well
as "ships engaged exclusively on a voyage of scientific discovery,
philanthrophy, or religious mission." Takahashi, International Law 11,
178.
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as often
as questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must
be had to the customs and usages of civilized nations, and, as
evidence of these, to the works of jurists and commentators who by
years of labor, research, and experience have made themselves
peculiarly well acquainted with the subjects of which they treat. Such
works are resorted to by judicial tribunals not for the speculations of
their authors concerning what the law ought to be, but for trustworthy
evidence of what the law really is. Hilton v. Guyot, 159 U. S. 113, 159
U. S. 163-164, 159 U. S. 214-215.
Wheaton places among the principal sources international law
"text writers of authority, showing what is the approved usage of
nations, or the general opinion respecting their mutual conduct, with
the definitions and modifications introduced by general consent."
As to these, he forcibly observes:
"Without wishing to exaggerate the importance of these writers or to
substitute, in any case, their authority for the principles of reason, it
may be affirmed that they are generally
Page 175 U. S. 701
impartial in their judgment. They are witnesses of the sentiments and
usages of civilized nations, and the weight of their testimony increases
every time that their authority is invoked by statesmen, and every year
that passes without the rules laid down in their works being impugned
by the avowal of contrary principles."
Wheaton, International Law (8th ed.), § 15.
Chancellor Kent says:
"In the absence of higher and more authoritative sanctions, the
ordinances of foreign states, the opinions of eminent statesmen, and
the writings of distinguished jurists are regarded as of great
consideration on questions not settled by conventional law. In cases
where the principal jurists agree, the presumption will be very great in
favor of the solidity of their maxims, and no civilized nation that does
not arrogantly set all ordinary law and justice at defiance will venture to
disregard the uniform sense of the established writers on international
law."
1 Kent, Com. 18.
It will be convenient, in the first place, to refer to some leading French
treatises on international law, which deal with the question now before
us, not as one of the law of France only, but as one determined by the
general consent of civilized nations.
"Enemy ships," say Pistoye and Duverdy, in their Treatise on Maritime
Prizes, published in 1855,
"are good prize. Not all, however, for it results from the unanimous
accord of the maritime powers that an exception should be made in
favor of coast fishermen. Such fishermen are respected by the enemy
so long as they devote themselves exclusively to fishing."
1 Pistoye et Duverdy, Tit. 6, c. 1, p. 314.
De Cussy, in his work on the Phases and Leading cases of the
Maritime Law of Nations -- Phases et Causes Celebres du Droit
Maritime des Nations -- published in 1856, affirms in the clearest
language the exemption from capture of fishing boats, saying, in lib. 1,
Tit. 3, § 36, that
"in time of war, the freedom of fishing is respected by belligerents;
fishing boats are considered as neutral; in law, as in principle, they are
not subject either to capture or to confiscation,"
and that in lib. 2, c. 20, he will state "several facts and several
decisions
Page 175 U. S. 702
which prove that the perfect freedom and neutrality of fishing boats are
not illusory." 1 De Cussy, p. 291. And in the chapter so referred to,
entitled De la Liberte et de la Neutralite Parfaite de la Peche, besides
references to the edicts and decisions in France during the French
Revolution, is this general statement:
"If one consulted only positive international law -- 1e droit des gens
positif -- [by which is evidently meant international law expressed in
treaties, decrees, or other public acts, as distinguished from what may
be implied from custom or usage], fishing boats would be subject, like
all other trading vessels, to the law of prize; a sort of tacit agreement
among all European nations frees them from it, and several official
declarations have confirmed this privilege in favor of 'a class of men
whose hard and ill rewarded labor, commonly performed by feeble and
aged hands, is so foreign to the operations of war.'"
2 De Cussy 164, 165.
Ortolan, in the fourth edition of his Regles Internationales et Diplomatie
de la Mer, published in 1864, after stating the general rule that the
vessels and cargoes of subjects of the enemy are lawful prize, says:
"Nevertheless, custom admits an exception in favor of boats engaged
in the coast fishery; these boats, as well as their crews, are free from
capture and exempt from all hostilities. The coast-fishing industry is, in
truth, wholly pacific, and of much less importance in regard to the
national wealth that it may produce than maritime commerce or the
great fisheries. Peaceful and wholly inoffensive, those who carry it on,
among whom women are often seen, may be called the harvesters of
the territorial seas, since they confine themselves to gathering in the
products thereof; they are for the most part poor families who seek in
this calling hardly more than the means of gaining their livelihood."
2 Ortolan 51. Again, after observing that there are very few solemn
public treaties which make mention of the immunity of fishing boats in
time of war, he says:
"From another point of view, the custom which sanctions this immunity
is not so general that it can be considered as making an absolute
international rule; but it has been so often put in practice, and, besides,
it accords so well with the rule in use in wars on
Page 175 U. S. 703
50
land, in regard to peasants and husbandmen, to whom coast fishermen
may be likened, that it will doubtless continue to be followed in
maritime wars to come."
2 Ortolan 55.
No international jurist of the present day has a wider or more deserved
reputation than Calvo, who, though writing in French, is a citizen of the
Argentine Republic employed in its diplomatic service abroad. In the
fifth edition of his great work on international law, published in 1896, he
observes, in § 2366, that the international authority of decisions in
particular cases by the prize courts of France, of England, and of the
United States is lessened by the fact that the principles on which they
are based are largely derived from the internal legislation of each
country, and yet the peculiar character of maritime wars, with other
considerations, gives to prize jurisprudence a force and importance
reaching beyond the limits of the country in which it has prevailed. He
therefore proposes here to group together a number of particular cases
proper to serve as precedents for the solution of grave questions of
maritime law in regard to the capture of private property as prize of
war. Immediately, in § 2367, he goes on to say:
"Notwithstanding the hardships to which maritime wars subject private
property, notwithstanding the extent of the recognized rights of
belligerents, there are generally exempted, from seizure and capture,
fishing vessels."
In the next section, he adds: "This exception is perfectly justiciable
-- Cette exception est parfaitement justiciable" -- that is to say,
belonging to judicial jurisdiction or cognizance. Littre,
Dist. voc. Justiciable; Hans v. Louisiana, 134 U. S. 1, 134 U. S. 15.
Calvo then quotes Ortolan's description, above cited, of the nature of
the coast-fishing industry, and proceeds to refer in detail to some of the
French precedents, to the acts of the French and English governments
in the times of Louis XVI and of the French Revolution, to the position
of the United States in the war with Mexico, and of France in later
wars, and to the action of British cruisers in the Crimean war. And he
concludes his discussion of the subject, in § 2373, by affirming the
exemption of the coast fishery and pointing out the distinction in this
regard between the coast fishery and
Page 175 U. S. 704
what he calls the great fishery, for cod, whales, or seals, as follows:
"The privilege of exemption from capture, which is generally acquired
by fishing vessels plying their industry near the coasts, is not extended
in any country to ships employed on the high sea in what is called the
great fishery, such as that for the cod, for the whale or the sperm
whale, or for the seal or sea calf. These ships are, in effect, considered
as devoted to operations which are at once commercial and industrial
-- Ces navires sont en effect consideres comme adonnes a des
operations a la fois commerciales et industrielles."
The distinction is generally recognized. 2 Ortolan 54; De Boeck § 196;
Hall, § 148. See also The Susa, 2 C. Rob. 251; The Johan, Edw.Adm.
275, and appx. L.
The modern German books on international law, cited by the counsel
for the appellants, treat the custom by which the vessels and
implements of coast fishermen are exempt from seizure and capture as
well established by the practice of nations. Heffter § 137; 2 Kalterborn
§ 237, p. 480; Bluntschli § 667; Perels § 37, p. 217.
De Boeck, in his work on Enemy Private Property under Enemy's Flag
-- De la Propriete Privee Ennemie sous Pavillon Ennemi -- published in
1882, and the only continental treatise cited by the counsel for the
United States, says in § 191:
"A usage very ancient, if not universal, withdraws from the right of
capture enemy vessels engaged in the coast fishery. The reason of
this exception is evident; it would have been too hard to snatch from
poor fishermen the means of earning their bread. . . . The exemption
includes the boats, the fishing implements, and the cargo of fish."
Again, in § 195:
"It is to be observed that very few treatises sanction in due form this
immunity of the coast fishery. . . . There is, then, only a custom. But
what is its character? Is it so fixed and general that it can be raised to
the rank of a positive and formal rule of international law?"
So, T. J.Lawrence, in § 206 of his Principles of International Law, says:
"The difference between the English and the French view is more
apparent than real, for no civilized belligerent would now capture the
boats of fishermen plying their avocation peaceably in the territorial
waters of their own state, and no jurist would seriously argue that their
immunity must be respected if they were used for warlike purposes, as
were the smacks belonging to the northern ports of France when Great
Britain gave the order to capture them in 1800."
But there are writers of various maritime countries not yet cited too
important to be passed by without notice.

After discussing the statements of other writers, he approves the Jan Helenus Ferguson, Netherlands Minister to China, and previously
opinion of Ortolan (as expressed in the last sentence above quoted in the naval and in the colonial service of his country, in his Manual of
from his work) and says that, at bottom, it differs by a shade only from International Law for the Use of Navies, Colonies, and Consulates,
that formulated by Calvo and by some of the German jurists, and that published in 1882, writes:

"it is more exact, "An exception to the usage of capturing enemy's private vessels at sea
is the coast fishery. . . . This principle of immunity from capture of
fishing boats is generally adopted by all maritime powers, and in actual
Page 175 U. S. 705
warfare they are universally spared so long as they remain harmless."

without ignoring the imperative character of the humane rule in

2 Ferguson § 212.
question -- elle est plus exacte, sans meconnaitre le caractere
imperatif de la regle d'humanite dont il s'agit."
Ferdinand Attlmayr, captain in the Austrian Navy, in his Manual for
Naval Officers, published at Vienna in 1872 under the auspices of
And in § 196 he defines the limits of the rule as follows:
Admiral Tegetthoff, says:

"But the immunity of the coast fishery must be limited by the reasons
"Regarding the capture of enemy property, an exception must be
which justify it. The reasons of humanity and of harmlessness -- les
mentioned, which is a universal custom. Fishing vessels which belong
raisons d'humanite et d'innocuite -- which militate in its favor do not
to the adjacent coast, and whose business yields only a necessary
exist in the great fishery, such as the cod fishery; ships engaged in that
livelihood, are, from considerations of humanity, universally excluded
fishery devote themselves to truly commercial operations, which
from capture."
employ a large number of seamen. And these same reasons cease to
be applicable to fishing vessels employed for a warlike purpose, to
those which conceal arms, or which exchange signals of intelligence 1 Attlmayr 61.
with ships of war; but only those taken in the fact can be rigorously
treated; to allow seizure by way of preventive would open the door to
Ignacio de Megrin, First Official of the Spanish Board of Admiralty, in
every abuse, and would be equivalent to a suppression of the
his Elementary Treatise on Maritime International Law, adopted by
immunity."
royal order as a textbook in the naval schools of Spain and published
at Madrid in 1873, concludes his chapter "Of the lawfulness of prizes"
Two recent English text writers cited at the bar (influenced by what with these words:
Lord Stowell said a century since) hesitate to recognize that the
exemption of coast fishing vessels from capture has now become a
"It remains to be added that the custom of all civilized peoples
settled rule of international law. Yet they both admit that there is little
excludes from capture and from all kind of hostility the
real difference in the views, or in the practice, of England and of other
maritime nations, and that no civilized nation at the present day would
molest coast fishing vessels so long as they were peaceably pursuing Page 175 U. S. 707
their calling and there was no danger that they or their crews might be
of military use to the enemy. Hall, in § 148 of the fourth edition of his
fishing vessels of the enemy's coasts, considering this industry as
Treatise on International Law, after briefly sketching the history of the
absolutely inoffensive, and deserving, from its hardships and
positions occupied by France and England at different periods, and by
usefulness, of this favorable exception. It has been thus expressed in
the United States in the Mexican war, goes on to say:
very many international conventions, so that it can be deemed an
incontestable principle of law at least among enlightened nations."
"In the foregoing facts there is nothing to show that much real
difference has existed in the practice of the maritime countries.
Negrin, Tit. 3, c. 1, § 310.
England does not seem to have been unwilling to spare fishing vessels
so long as they are harmless, and it does not appear that any state has
accorded them immunity under circumstances of inconvenience to Carlos Testa, captain in the Portuguese Navy and professor in the
itself. It is likely that all nations would now refrain from molesting them naval school at Lisbon, in his work on Public International Law,
as a general rule, and would capture published in French at Paris in 1886, when discussing the general right
of capturing enemy ships, says:
Page 175 U. S. 706
"Nevertheless, in this, customary law establishes an exception of
immunity in favor of coast fishing vessels. Fishing is so peaceful an
them so soon as any danger arose that they or their crews might be of
industry, and is generally carried on by so poor and so hardworking a
military use to the enemy, and it is also likely that it is impossible to
class of men, that it is likened, in the territorial waters of the enemy's
grant them a more distinct exemption."
country, to the class of husbandmen who gather the fruits of the earth
for their livelihood. The examples and practice generally followed

51
establish this humane and beneficent exception as an international
rule, and this rule may be considered as adopted by customary law
and by all civilized nations."
Testa, pt. 3, c. 2, in 18 Bibliotheque International et Diplomatique, pp.
152, 153.
No less clearly and decisively speaks the distinguished Italian jurist,
Pasquale Fiore, in the enlarged edition of his exhaustive work on
Public International Law, published at Paris in 1885-1886, saying:
"The vessels of fishermen have been generally declared exempt from
confiscation because of the eminently peaceful object of their humble
industry and of the principles of equity and humanity. The exemption
includes the vessel, the implements of fishing, and the cargo resulting
from the fishery. This usage, eminently humane, goes back to very
ancient times, and although the immunity of the fishery along the
coasts may not have been sanctioned by treaties, yet it is considered
today as so definitely established that the inviolability of vessels
devoted to that fishery is proclaimed by the publicists as a positive rule
of international law, and is generally respected by the nations.
Consequently we shall lay down the following rule: (a) vessels
belonging to citizens of the enemy state, and devoted to fishing
Page 175 U. S. 708
along the coasts, cannot be subject to capture; (b) such vessels,
however, will lose all right of exemption when employed for a warlike
purpose; (c) there may nevertheless be subjected to capture vessels
devoted to the great fishery in the ocean, such as those employed in
the whale fishery, or in that for seals or sea calves."
3 Fiore § 1421.
This review of the precedents and authorities on the subject appears to
us abundantly to demonstrate that, at the present day, by the general
consent of the civilized nations of the world, and independently of any
express treaty or other public act, it is an established rule of
international law, founded on considerations of humanity to a poor and
industrious order of men, and of the mutual convenience of belligerent
states, that coast fishing vessels, with their implements and supplies,
cargoes and crews, unarmed and honestly pursuing their peaceful
calling of catching and bringing in fresh fish, are exempt from capture
as prize of war.
The exemption, of course, does not apply to coast fishermen or their
vessels if employed for a warlike purpose, or in such a way as to give
aid or information to the enemy, nor when military or naval operations
create a necessity to which all private interests must give way.
Nor has the exemption been extended to ships or vessels employed on
the high sea in taking whales or seals or cod or other fish which are not
brought fresh to market, but are salted or otherwise cured and made a
regular article of commerce.
This rule of international law is one which prize courts administering
the law of nations are bound to take judicial notice of, and to give effect
to, in the absence of any treaty or other public act of their own
government in relation to the matter.
Calvo, in a passage already quoted, distinctly affirms that the
exemption of coast fishing vessels from capture is perfectly justiciable,
or, in other words, of judicial jurisdiction or cognizance. Calvo § 2368.
Nor are judicial precedents wanting in support of the view that this
exemption, or a somewhat analogous one, should be recognized and
declared by a prize court.
Page 175 U. S. 709
52
By the practice of all civilized nations, vessels employed only for the
purposes of discovery or science are considered as exempt from the
contingencies of war, and therefore not subject to capture. It has been
usual for the government sending out such an expedition to give notice
to other powers, but it is not essential. 1 Kent, Com. 91, note; Halleck,
c. 20, § 22; Calvo § 2376; Hall § 138.
In 1813, while the United States were at war with England, an
American vessel on her voyage from Italy to the United States was
captured by an English ship, and brought into Halifax, in Nova Scotia,
and, with her cargo, condemned as lawful prize by the court of vice
admiralty there. But a petition for the restitution of a case of paintings
and engravings which had been presented to and were owned by the
Academy of Arts in Philadelphia was granted by Dr. Croke, the judge of
that court, who said:
"The same law of nations which prescribes that all property belonging
to the enemy shall be liable to confiscation has likewise its
modifications and relaxations of that rule. The arts and sciences are
admitted amongst all civilized nations as forming an exception to the
severe rights of warfare, and as entitled to favor and protection. They
are considered not as the peculium of this or of that nation, but as the
property of mankind at large, and as belonging to the common
interests of the whole species."
And he added that there had been "innumerable cases of the mutual
exercise of this courtesy between nations in former wars." The Marquis
de Somerueles, Stewart Adm. (Nova Scotia) 445, 482.
In 1861, during the war of the Rebellion, a similar decision was made
in the District Court of the United States for the Eastern District of
Pennsylvania in regard to two cases of books belonging and consigned
to a university in North Carolina. Judge Cadwalader, in ordering these
books to be liberated from the custody of the marshal and restored to
the agent of the university, said:
"Though this claimant, as the resident of a hostile district, would not be
entitled to restitution of the subject of a commercial adventure in books,
the purpose of the shipment in question gives to it a different
Page 175 U. S. 710
character. The United States, in prosecuting hostilities for the
restoration of their constitutional authority, are compelled incidentally to
confiscate property captured at sea, of which the proceeds would
otherwise increase the wealth of that district. But the United States are
not at war with literature in that part of their territory."
He then referred to the decision in Nova Scotia, and to the French
decisions upon cases of fishing vessels, as precedents for the decree
which he was about to pronounce, and he added that, without any such
precedents, he should have had no difficulty in liberating these
books. The Amelia, 4 Philadelphia 417.
In Brown v. United States, 8 Cranch 110, there are expressions of
Chief Justice Marshall which, taken by themselves, might seem
inconsistent with the position above maintained, of the duty of a prize
court to take judicial notice of a rule of international law, established by
the general usage of civilized nations, as to the kind of property subject
to capture. But the actual decision in that case, and the leading
reasons on which it was based, appear to us rather to confirm our
position. The principal question there was whether personal property of
a British subject, found on land in the United States at the beginning of
the last war with Great Britain, could lawfully be condemned as
enemy's property on a libel filed by the attorney of the United States,
without a positive act of Congress. The conclusion of the Court was
"that the power of confiscating enemy property is in the legislature, and
that the legislature has not yet declared its will to confiscate property
which was within our territory at the declaration of war."
8 Cranch 12 U. S. 129. In showing that the declaration of war did not,
of itself, vest the Executive with authority to order such property to be
confiscated, the Chief Justice relied on the modern usages of nations,
saying:
"The universal practice of forbearing to seize and confiscate debts and
credits, the principle universally received that the right to them revives
on the restoration of peace, would seem to prove that war is not an
absolute confiscation of this property, but simply confers the right of
confiscation,"
and again:
"The modern rule, then, would seem to be that tangible property
Page 175 U. S. 711
belonging to an enemy, and found in the country at the
commencement of war, ought not to be immediately confiscated, and
in almost every commercial treaty, an article is inserted stipulating for
the right to withdraw such property."
8 Cranch 12 U. S. 123-125. The decision that enemy property on land,
which by the modern usage of nations is not subject to capture as prize
of war, cannot be condemned by a prize court, even by direction of the
Executive, without express authority from Congress appears to us to
repel any inference that coast fishing vessels, which are exempt by the
general consent of civilized nations from capture and which no act of
Congress or order of the President has expressly authorized to be
taken and confiscated, must be condemned by a prize court for want of
a distinct exemption in a treaty or other public act of the government.
To this subject in more than one aspect are singularly applicable the
words uttered by Mr. Justice Strong, speaking for this Court:
"Undoubtedly no single nation can change the law of the sea. The law
is of universal obligation, and no statute of one or two nations can
create obligations for the world. Like all the laws of nations, it rests
upon the common consent of civilized communities. It is of force not
because it was prescribed by any superior power, but because it has
been generally accepted as a rule of conduct. Whatever may have
been its origin, whether in the usages of navigation, or in the
ordinances of maritime states, or in both, it has become the law of the
sea only by the concurrent sanction of those nations who may be said
to constitute the commercial world. Many of the usages which prevail,
and which have the force of law, doubtless originated in the positive
prescriptions of some single state, which were at first of limited effect,
but which, when generally accepted, became of universal obligation."
"This is not giving to the statutes of any nation extraterritorial effect. 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 acquiesced in as of general obligation. Of that fact we think we
may take judicial notice. Foreign municipal laws
Page 175 U. S. 712
must indeed be proved as facts, but it is not so with the law of nations."
The Scotia, 14 Wall. 170, 81 U. S. 187-188.
The position taken by the United States during the recent war with
Spain was quite in accord with the rule of international law, now
generally recognized by civilized nations, in regard to coast fishing
vessels.
On April 21, 1898, the Secretary of the Navy gave instructions to
Admiral Sampson, commanding the North Atlantic Squadron, to
53
"immediately institute a blockade of the north coast of Cuba, extending
from Cardenas on the east to Bahia Honda on the west." Bureau of
Navigation Report of 1898, appx. 175. The blockade was immediately
instituted accordingly. On April 22, the President issued a proclamation
declaring that the United States had instituted and would maintain that
blockade "in pursuance of the laws of the United States, and the law of
nations applicable to such cases." 30 Stat. 1769. And by the act of
Congress of April 25, 1898, c. 189, it was declared that the war
between the United States and Spain existed on that day, and had
existed since and including April 21, 30 Stat. 364.
On April 26, 1898, the President issued another proclamation which,
after reciting the existence of the war as declared by Congress,
contained this further recital:
"It being desirable that such war should be conducted upon principles
in harmony with the present views of nations and sanctioned by their
recent practice."
This recital was followed by specific declarations of certain rules for the
conduct of the war by sea, making no mention of fishing vessels. 30
Stat. 1770. But the proclamation clearly manifests the general policy of
the government to conduct the war in accordance with the principles of
international law sanctioned by the recent practice of nations.
On April 28, 1898 (after the capture of the two fishing vessels now in
question), Admiral Sampson telegraphed to the Secretary of the Navy
as follows:
"I find that a large number of fishing schooners are attempting to get
into Havana from their fishing grounds near the Florida reefs and
coasts. They are generally manned by excellent seamen, belonging
Page 175 U. S. 713
to the maritime inscription of Spain, who have already served in the
Spanish navy, and who are liable to further service. As these trained
men are naval reserves, most valuable to the Spaniards as
artillerymen, either afloat or ashore, I recommend that they should be
detained prisoners of war, and that I should be authorized to deliver
them to the commanding officer of the army at Key West."
To that communication the Secretary of the Navy, on April 30, 1898,
guardedly answered:
"Spanish fishing vessels attempting to violate blockade are subject,
with crew, to capture, and any such vessel or crew considered likely to
aid enemy may be detained."
Bureau of Navigation Report of 1898, appx. 178. The admiral's
dispatch assumed that he was not authorized, without express order,
to arrest coast fishermen peaceably pursuing their calling, and the
necessary implication and evident intent of the response of the Navy
Department were that Spanish coast fishing vessels and their crews
should not be interfered with so long as they neither attempted to
violate the blockade nor were considered likely to aid the enemy.
The Paquete Habana, as the record shows, was a fishing sloop of 25
tons burden, sailing under the Spanish flag, running in and out of
Havana, and regularly engaged in fishing on the coast of Cuba. Her
crew consisted of but three men, including the master, and, according
to a common usage in coast fisheries, had no interest in the vessel, but
were entitled to two-thirds of her catch, the other third belonging to her
Spanish owner, who, as well as the crew, resided in Havana. On her
last voyage, she sailed from Havana along the coast of Cuba, about
two hundred miles, and fished for twenty-five days off the cape at the
west end of the island, within the territorial waters of Spain, and was
going back to Havana with her cargo of live fish when she was
captured by one of the blockading squadron on April 25, 1898. She
had no arms or ammunition on board; she had no knowledge of the
blockade, or even of the war, until she was stopped by a blockading
vessel; she made no attempt to run the blockade, and no resistance at
the time of the capture; nor was there any evidence
Page 175 U. S. 714
whatever of likelihood that she or her crew would aid the enemy.
In the case of the Lola, the only differences in the facts were that she
was a schooner of 35 tons burden, and had a crew of six men,
including the master; that, after leaving Havana and proceeding some
two hundred miles along the coast of Cuba, she went on, about one
hundred miles farther, to the coast of Yucatan, and there fished for
eight days, and that, on her return, when near Bahia Honda on the
coast of Cuba, she was captured, with her cargo of live fish, on April
27, 1898. These differences afford no ground for distinguishing the two
cases.
Each vessel was of a moderate size, such as is not unusual in coast
fishing smacks, and was regularly engaged in fishing on the coast of
Cuba. The crew of each were few in number, had no interest in the
vessel, and received, in return for their toil and enterprise, two-thirds of
her catch, the other third going to her owner by way of compensation
for her use. Each vessel went out from Havana to her fishing ground
and was captured when returning along the coast of Cuba. The cargo
of each consisted of fresh fish, caught by her crew from the sea and
kept alive on board. Although one of the vessels extended her fishing
trip across the Yucatan channel and fished on the coast of Yucatan, we
cannot doubt that each was engaged in the coast fishery, and not in a
commercial adventure, within the rule of international law.
The two vessels and their cargoes were condemned by the district
court as prize of war; the vessels were sold under its decrees, and it
does not appear what became of the fresh fish of which their cargoes
consisted.
Upon the facts proved in either case, it is the duty of this Court, sitting
as the highest prize court of the United States and administering the
law of nations, to declare and adjudge that the capture was unlawful
and without probable cause, and it is therefore, in each case
Ordered, that the decree of the district court be reversed, and the
proceeds of the sale of the vessel, together with the proceeds of any
sale of her cargo, be restored to the claimant, with damages and costs.
Page 175 U. S. 715
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE
HARLAN and MR. JUSTICE McKENNA, dissenting:
The district court held these vessels and their cargoes liable because
not "satisfied that, as a matter of law, without any ordinance, treaty, or
proclamation, fishing vessels of this class are exempt from seizure."
This Court holds otherwise not because such exemption is to be found
in any treaty, legislation, proclamation, or instruction granting it, but on
the ground that the vessels were exempt by reason of an established
rule of international law applicable to them which it is the duty of the
court to enforce.
I am unable to conclude that there is any such established international
rule, or that this Court can properly revise action which must be treated
as having been taken in the ordinary exercise of discretion in the
conduct of war.
In cannot be maintained "that modern usage constitutes a rule which
acts directly upon the thing itself by its own force, and not through the
54
sovereign power." That position was disallowed in Brown v. United
States, 8 Cranch 110, 12 U. S. 128, and Chief Justice Marshall said:
"This usage is a guide which the sovereign follows or abandons at his
will. The rule, like other precepts of morality, of humanity, and even of
wisdom, is addressed to the judgment of the sovereign, and although it
cannot be disregarded by him without obloquy, yet it may be
disregarded. The rule is in its nature flexible. It is subject to infinite
modification. It is not an immutable rule of law, but depends on political
considerations which may continually vary."
The question in that case related to the confiscation of the property of
the enemy on land within our own territory, and it was held that
property so situated could not be confiscated without an act of
Congress. The Chief Justice continued:
"Commercial nations in the situation of the United States have always
a considerable quantity of property in the possession of their
neighbors. When war breaks out, the question what shall be done with
enemy property in our country is a
Page 175 U. S. 716
question rather of policy than of law. The rule which we apply to the
property of our enemy will be applied by him to the property of our
citizens. Like all other questions of policy, it is proper for the
consideration of a department which can modify it at will, not for the
consideration of a department which can pursue only the law as it is
written. It is proper for the consideration of the legislature, not of the
executive or judiciary."
This case involves the capture of enemy's property on the sea, and
executive action, and if the position that the alleged rule ex proprio
vigore limits the sovereign power in war be rejected, then I understand
the contention to be that by reason of the existence of the rule, the
proclamation of April 26 must be read as if it contained the exemption
in terms, or the exemption must be allowed because the capture of
fishing vessels of this class was not specifically authorized.
The preamble to the proclamation stated, it is true, that it was desirable
that the war "should be conducted upon principles in harmony with the
present views of nations and sanctioned by their recent practice," but
the reference was to the intention of the government "not to resort to
privateering, but to adhere to the rules of the Declaration of Paris," and
the proclamation spoke for itself. The language of the preamble did not
carry the exemption in terms, and the real question is whether it must
be allowed because not affirmatively withheld -- or, in other words,
because such captures were not in terms directed.
These records show that the Spanish sloop Paquete Habana "was
captured as a prize of war by the U.S.S. Castine" on April 25, and "was
delivered" by the Castine's commander "to Rear Admiral Wm. T.
Sampson (commanding the North Atlantic Squadron)," and thereupon
"turned over" to a prize master with instructions to proceed to Key
West.
And that the Spanish schooner Lola "was captured as a prize of war by
the U.S.S. Dolphin," April 27, and "was delivered" by
the Dolphin's commander "to Rear Admiral Wm. T. Sampson
(commanding the North Atlantic Squadron)," and thereupon "turned
over" to a prize master with instructions to proceed to Key West.
Page 175 U. S. 717
That the vessels were accordingly taken to Key West and there libeled,
and that the decrees of condemnation were entered against them May
30.
It is impossible to concede that the Admiral ratified these captures in
disregard of established international law and the proclamation, or that
the President, if he had been of opinion that there was any infraction of
law or proclamation, would not have intervened prior to condemnation.
The correspondence of April 28, 30, between the Admiral and the
Secretary of the Navy, quoted from in the principal opinion, was
entirely consistent with the validity of the captures.
The question put by the Admiral related to the detention as prisoners of
war of the persons manning the fishing schooners "attempting to get
into Havana." Noncombatants are not so detained except for special
reasons. Sailors on board enemy's trading vessels are made prisoners
because of their fitness for immediate use on ships of war. Therefore
the Admiral pointed out the value of these fishing seamen to the
enemy, and advised their detention. The Secretary replied that if the
vessels referred to were "attempting to violate blockade," they were
subject "with crew" to capture, and also that they might be detained if
"considered likely to aid enemy." The point was whether these crews
should be made prisoners of war. Of course, they would be liable to be
if involved in the guilt of blockade running, and the Secretary agreed
that they might be on the other ground in the Admiral's discretion.
All this was in accordance with the rules and usages of international
law, with which, whether in peace or war, the naval service has always
been necessarily familiar.
I come then to examine the proposition
"that at the present day, by the general consent of the civilized nations
of the world and independently of any express treaty or other public
act, it is an established rule of international law, founded on
considerations of humanity to a poor and industrious order of men, and
of the mutual convenience of belligerent states, that coast fishing
vessels, with their implements and supplies,
Page 175 U. S. 718
cargoes, and crews, unarmed, and honestly pursuing their peaceful
calling of catching and bringing in of fresh fish, are exempt from
capture as prize of war."
This, it is said, is a rule
"which prize courts, administering the law of nations, are bound to take
judicial notice of, and to give effect to, in the absence of treaty or other
public act of their own government."
At the same time, it is admitted that the alleged exemption does not
apply
"to coast fishermen or their vessels if employed for a warlike purpose
or in such a way as to give aid or information to the enemy, nor when
military or naval operations create a necessity to which all private
interests must give way,"
and further that the exemption has not
"been extended to ships or vessels employed on the high sea in taking
whales or seals, or cod or other fish which are not brought fresh to
market, but are salted or otherwise cured and made a regular article of
commerce."
It will be perceived that the exceptions reduce the supposed rule to
very narrow limits, requiring a careful examination of the facts in order
to ascertain its applicability, and the decision appears to me to go
altogether too far in respect of dealing with captures directed or ratified
by the officer in command.
55
But were these two vessels within the alleged exemption? They were
of twenty-five and thirty-five tons burden, respectively. They carried
large tanks in which the fish taken were kept alive. They were owned
by citizens of Havana, and the owners and the masters and crew were
to be compensated by shares of the catch. One of them had been two
hundred miles from Havana, off Cape San Antonio, for twenty-five
days, and the other for eight days off the coast of Yucatan. They
belonged, in short, to the class of fishing or coasting vessels of from
five to twenty tons burden, and from twenty tons upwards, which, when
licensed or enrolled as prescribed by the Revised Statutes, are
declared to be vessels of the United States, and the shares of whose
men, when the vessels are employed in fishing, are regulated by
statute. They were engaged in what were substantially commercial
ventures, and the mere fact that the fish were kept alive by
contrivances
Page 175 U. S. 719
for that purpose -- a practice of considerable antiquity -- did not render
them any the less an article of trade than if they had been brought in
cured.
I do not think that, under the circumstances, the considerations which
have operated to mitigate the evils of war in respect of individual
harvesters of the soil can properly be invoked on behalf of these hired
vessels as being the implements of like harvesters of the sea. Not only
so as to the owners, but as to the masters and crews. The principle
which exempts the husbandman and his instruments of labor exempts
the industry in which he is engaged, and is not applicable in protection
of the continuance of transactions of such character and extent as
these.
In truth, the exemption of fishing craft is essentially an act of grace, and
not a matter of right, and it is extended or denied as the exigency is
believed to demand.
It is, said Sir William Scott, "a rule of comity only, and not of legal
decision."
The modern view is thus expressed by Mr. Hall:
"England does not seem to have been unwilling to spare fishing
vessels so long as they are harmless, and it does not appear that any
state has accorded them immunity under circumstances of
inconvenience to itself. It is likely that all nations would now refrain
from molesting them as a general rule, and would capture them so
soon as any danger arose that they or their crews might be of military
use to the enemy, and it is also likely that it is impossible to grant them
a more distinct exemption."
In the Crimean war, 1854-55, none of the orders in council, in terms,
either exempted or included fishing vessels, yet the allied squadrons
swept the Sea of Azof of all craft capable of furnishing the means of
transportation, and the English admiral in the Gulf of Finland directed
the destruction of all Russian coasting vessels not of sufficient value to
be detained as prizes except "boats or small craft which may be found
empty at anchor, and not trafficking."
It is difficult to conceive of a law of the sea of universal obligation to
which Great Britain has not acceded. And I
Page 175 U. S. 720
am not aware of adequate foundation for imputing to this country the
adoption of any other than the English rule.
In his lectures on International Law at the Naval Law College, the late
Dr. Freeman Snow laid it down that the exemption could not be
asserted as a rule of international law. These lectures were edited by
Commodore Stockton and published under the direction of the
Secretary of the Navy in 1895, and, by that department, in a second
edition, in 1898, so that in addition to the well known merits of their
author, they possess the weight to be attributed to the official
imprimatur. Neither our treaties nor settled practice are opposed to that
conclusion.

In view of the circumstances surrounding the breaking out of the

Mexican war, Commodore Conner, commanding the Home Squadron,
on May 14, 1846, directed his officers, in respect of blockade, not to
molest "Mexican boats engaged exclusively in fishing on any part of
the coast," presumably small boats in proximity to the shore, while on
the Pacific coast, Commodore Stockton, in the succeeding August,
ordered the capture of "all vessels under the Mexican flag."

The treaties with Prussia of 1785, 1799, and 1828, and of 1848 with
Mexico, in exempting fishermen, "unarmed and inhabiting unfortified
towns, villages, or places," did not exempt fishing vessels from seizure
as prize, and these captures evidence the convictions entertained and
acted on in the late war with Spain.

In is needless to review the speculations and repetitions of the writers

on international law. Ortolan, De Boeck, and others admit that the
custom relied on as consecrating the immunity is not so general as to
create an absolute international rule; Heffter, Calvo, and others are to
the contrary. Their lucubrations may be persuasive, but not
authoritative.

In my judgment, the rule is that exemption from the rigors of war is in

the control of the Executive. He is bound by no immutable rule on the
subject. It is for him to apply, or to modify, or to deny altogether such
immunity as may have been usually extended.

Page 175 U. S. 721

Exemptions may be designated in advance or granted according to

circumstances, but carrying on war involves the infliction of the
hardships of war, at least to the extent that the seizure or destruction of
enemy's property on sea need not be specifically authorized in order to
be accomplished.

Being of opinion that these vessels were not exempt as matter of law, I
am constrained to dissent from the opinion and judgment of the Court,
and my brothers HARLAN and McKENNA concur in this dissent.

56
File E. c.
Docket XI
Judgment No. 9
 7 September 1927
PERMANENT COURT OF INTERNATIONAL JUSTICE
Twelfth (Ordinary) Session
The Case of the S.S. Lotus
France v. Turkey
Judgment
BEFORE: President: Huber
Vice-
Weiss
President:
Former Presi
Loder
dent
Lord Finlay, Nyholm, Moore, De Bustamante,
Judges:
Altamira, Oda, Anzilotti, Pessoa
National
Feizi-Daim Bey
Judge:
Represen Basdevant, Professor at the Faculty of Law of
France:
ted By: Paris
His Excellency Mahmout Essat Bey, Minister
Turkey:
of Justice
Perm. http://www.worldcourts.com/pcij/eng/decisions/
Link: 1927.09.07_lotus.htm
Citation: S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept.
7)
Publicatio Publications of the Permanent Court of International
n: Justice, Series A - No. 10; Collection of Judgments, A.W.
Sijthoff’s Publishing Company, Leyden, 1927.
[p5] [1] By a special agreement signed at Geneva on October 12th,
1926, between the Governments of the French and Turkish Republics
and filed with the Registry of the Court, in accordance with Article 40
of the Statute and Article 35 of the Rules of Court, on January 4th,
1927, by the diplomatic representatives at The Hague of the aforesaid
Governments, the latter have submitted to the Permanent Court of
International Justice the question of jurisdiction which has arisen
between them following upon the collision which occurred on August
2nd, 1926, between the steamships Boz-Kourt and Lotus.
[2] According to the special agreement, the Court has to decide the
following questions:
"(1) Has Turkey, contrary to Article 15 of the Convention of Lausanne
of July 24th, 1923, respecting conditions of residence and business
and jurisdiction, acted in conflict with the principles of international law
– and if so, what principles - by instituting, following the collision which
occurred on August 2nd, 1926, on the high seas between the French
steamer Lotus and the Turkish steamer Boz-Kourt and upon the
arrival of the French steamer at Constantinople as well as against the
captain of the Turkish steamship-joint criminal proceedings in
pursuance of Turkish law against M. Demons, officer of the watch on
board the Lotus at the time of the collision, in consequence of the loss
of the Boz-Kourt having involved the death of eight Turkish sailors and
passengers?
(2) Should the reply be in the affirmative, what pecuniary reparation is
due to M. Demons, provided, according to the principles of
international law, reparation should be made in similar cases?”
[3] Giving effect to the proposals jointly made by the Parties to the
special agreement in accordance with the terms of Article 32 of the
Rules, the President, under Article 48 of the Statute and Articles 33
and 39 of the Rules, fixed the dates for the filing by each Party of a
Case and Counter-Case as March 1st and May 24th, 1927,
respectively; no time was fixed for the submission of replies, as the
Parties had expressed the wish that there should not be any.
[4] The Cases and Counter-Cases were duly filed with the Registry by
the dates fixed and were communicated to those concerned as
provided in Article 43 of the Statute.
[5] In the course of hearings held on August 2nd, 3rd, 6th, and 8th-
10th, 1927, the Court has heard the oral pleadings, reply and
rejoinder submitted by the above-mentioned Agents for the Parties.
57
[p6]
[6] In support of their respective submissions, the Parties have placed
before the Court, as annexes to the documents of the written
proceedings, certain documents, a list of which is given in the annex.
[7] In the course of the proceedings, the Parties have had occasion to
define the points of view respectively adopted by them in relation to
the questions referred to the Court. They have done so by formulating
more or less developed conclusions summarizing their arguments.
Thus the French Government, in its Case, asks for judgment to the
effect that:
"Under the Convention respecting conditions of residence and
business and jurisdiction signed at Lausanne on July 24th, 1923, and
the principles of international law, jurisdiction to entertain criminal
proceedings against the officer of the watch of a French ship, in
connection with the collision which occurred on the high seas between
that vessel and a Turkish ship, belongs exclusively to the French
Courts;
"Consequently, the Turkish judicial authorities were wrong in
prosecuting, imprisoning and convicting M. Demons, in connection
with the collision which occurred on the high seas between the Lotus
and the Boz-Kourt, and by so doing acted in a manner contrary to the
above-mentioned Convention and to the principles of international
law;
“Accordingly the Court is asked to fix the indemnity in reparation of the
injury thus inflicted upon M. Demons at 6’000 Turkish pounds and to
order this indemnity to be paid by the Government of the Turkish
Republic to the Government of the French Republic."
[8] The Turkish Government, for its part, simply asks the Court in its
Case to "give judgment in favour of the jurisdiction of the Turkish
Courts".
[9] The French Government, however, has, in its Counter-Case, again
formulated the conclusions, already set out in its Case, in a slightly
modified form, introducing certain new points preceded by arguments
which should be cited in full, seeing that they summarize in a brief and
precise manner the point of view taken by the French Government ;
the new arguments and conclusions are as follows:
“Whereas the substitution of the jurisdiction of the Turkish Courts for
that of the foreign consular courts in criminal proceedings taken
against foreigners is the outcome of the consent given by the Powers
to this substitution in the Conventions signed at Lausanne on July
24th, 1923; [p7]
"As this consent, far from having been given as regards criminal
proceedings against foreigners for crimes or offences committed
abroad, has been definitely refused by the Powers and by France in
particular;
"As this refusal follows from the rejection of a Turkish amendment
calculated to establish this jurisdiction and from the statements made
in this connection;
"As, accordingly, the Convention of Lausanne of July 24th, 1923,
construed in the light of these circumstances and intentions, does not
allow the Turkish Courts to take cognizance of criminal proceedings
directed against a French citizen for crimes or offences committed
outside Turkey;
"Furthermore, whereas, according to international law as established
by the practice of civilized nations, in their relations with each other, a
State is not entitled, apart from express or implicit special
agreements, to extend the criminal jurisdiction of its courts to include
a crime or offence committed by a foreigner abroad solely in
consequence of the fact that one of its nationals has been a victim of
the crime or offence;
"Whereas acts performed on the high seas on board a merchant ship
are, in principle and from the point of view of criminal proceedings,
amenable only to the jurisdiction of the courts of the State whose flag
the vessel flies ;
"As that is a consequence of the principle of the freedom of the seas,
and as States, attaching especial importance thereto, have rarely
departed therefrom;
"As, according to existing law, the nationality of the victim is not a
sufficient ground to override this rule, and seeing that this was held in
the case of the Costa Ricca Packet;
"Whereas there are special reasons why the application of this rule
should be maintained in collision cases, which reasons are mainly
connected with the fact that the culpable character of the act causing
the collision must be considered in the light of purely national
regulations which apply to the ship and the carrying out of which must
be controlled by the national authorities;
"As the collision cannot, in order thus to establish the jurisdiction of
the courts of the country to which it belongs, be localized in the vessel
sunk, such a contention being contrary to the facts;
"As the claim to extend the jurisdiction of the courts of the country to
which one vessel belongs, on the ground of the “connexity"
(connexite) of offences, to proceedings against an officer of the other
vessel concerned in the collision, when the two vessels are not of the
same nationality, has no support in international law ;
"Whereas a contrary decision recognizing the jurisdiction of the
Turkish Courts to take cognizance of the criminal proceedings against
the officer of the watch of the French ship involved in the collision
would amount to introducing an innovation entirely at variance with
firmly established precedent; [p8]
"Whereas the special agreement submits to the Court the question of
an indemnity to be awarded to Monsieur Demons as a consequence
of the decision given by it upon the first question;
"As any other consequences involved by this decision, not having
been submitted to the Court, are ipso facto reserved;
"As the arrest, imprisonment and conviction of Monsieur Demons are
the acts of authorities having no jurisdiction under international law,
the principle of an indemnity enuring to the benefit of Monsieur
Demons and chargeable to Turkey, cannot be disputed;
"As his imprisonment lasted for thirty-nine days, there having been
delay in granting his release on bail contrary to the provisions of the
Declaration regarding the administration of justice signed at Lausanne
on July 24th, 1923 ; who, as the result of a collision, has been guilty of manslaughter.
"As his prosecution was followed by a conviction calculated to do
Monsieur Demons at least moral damage;
"As the Turkish authorities, immediately before his conviction, and
when he had undergone detention about equal to one half of the
period to which he was going to be sentenced, made his release
conditional upon ball in 6’000 Turkish pounds;
…………………………………………………………………………
"Asks for judgment, whether the Government of the Turkish Republic
be present or absent, to the effect:
"That, under the rules of international law and the Convention
respecting conditions of residence and business and jurisdiction
signed at Lausanne on July 24th, 1923, jurisdiction to entertain
criminal proceedings against the officer of the watch of a French ship,
in connection with the collision which occurred on the high seas
between that ship and a Turkish ship, belongs exclusively to the
French Courts;
"That, consequently, the Turkish judicial authorities were wrong in
prosecuting, imprisoning and convicting Monsieur Demons, in
connection with the collision which occurred on the high seas between
the Lotus and the Boz-Kourt, and by so doing acted in a manner
contrary to the principles of international law and to the above-
mentioned Convention;
"Accordingly, the Court is asked to fix the indemnity in reparation of
the injury thus inflicted on Monsieur Demons at 6,000 Turkish pounds
and to order this indemnity to be paid by the Government of the
Turkish Republic to the Government of the French Republic within
one month from the date of judgment, without prejudice to the
repayment of the bail deposited by Monsieur Demons.
"The Court is also asked to place on record that any other
consequences which the decision given might have, not having been
submitted to the Court, are ipso facto reserved."
[10] The Turkish Government. in its Counter-Case, confines itself to
repeating the conclusion of its Case, preceding it, however, by [p9] a
short statement of its argument, which statement it will be well to
reproduce, since it corresponds to the arguments preceding the
conclusions of the French Counter-Case:
“1.-Article 15 of the Convention of Lausanne respecting conditions of
residence and business and jurisdiction refers simply and solely, as
regards the jurisdiction of the Turkish Courts, to the principles of
international law, subject only to the provisions of Article 16. Article 15
58
cannot be read as supporting any reservation whatever or any
construction giving it another meaning. Consequently, Turkey, when
exercising jurisdiction in any case concerning foreigners, need, under
this article, only take care not to act in a manner contrary to the
principles of international law.
“2.-Article 6 of the Turkish Penal Code, which is taken word for word
from the Italian Penal Code, is not, as regards the case, contrary to
the principles of international law.
“3.-Vessels on the high seas form part of the territory of the nation
whose flag they fly, and in the case under consideration, the place
where the offence was committed being the S. S. Boz-Kourt flying the
Turkish flag, Turkey's jurisdiction in the proceedings taken is as clear
as if the case had occurred on her territory-as is borne out by
analogous cases.
“4.-The Boz-Kourt-Lotus case being a case involving "connected"
offences (delits connexes), the Code of criminal procedure for trial-
which is borrowed from France-lays down that the French officer
should be prosecuted jointly with and at the same time as the Turkish
officer; this, moreover ' is confirmed by the doctrines and legislation of
all countries. Turkey, therefore, is entitled from this standpoint also to
claim jurisdiction.
"5.-Even if the question be considered solely from the point of view of
the collision, as no principle of international criminal law exists which
would debar Turkey from exercising the jurisdiction which she clearly
possesses to entertain an action for damages, that country has
Jurisdiction to institute criminal proceedings.
"6.-As Turkey is exercising jurisdiction of a fundamental character,
and as States are not, according to the principles of international law,
under an obligation to pay indemnities in such cases, it is clear that
the question of the payment of the indemnity claimed in the French
Case does not arise for the Turkish Government, since that
Government has jurisdiction to prosecute the French citizen Demons
"The Court is asked for judgment in favour of the jurisdiction of the
Turkish Courts." [p10]
[11] During the oral proceedings, the Agent of the French Government
confined himself to referring to the conclusions submitted in the
Counter-Case, simply reiterating his request that the Court should
place on record the reservations made therein as regards any
consequences of the judgment not submitted to the Court's decision
these reservations are now duly recorded.
[12] For his part, the Agent for the Turkish Government abstained
both in his original speech and in his rejoinder from submitting any
conclusion. The one he formulated in the documents filed by him in
the written proceedings must therefore be regarded as having been
maintained unaltered.
The Facts
[13] According to the statements submitted to the Court by the Parties'
Agents in their Cases and in their oral pleadings, the facts in which
the affair originated are agreed to be as follows:
[14] On August 2nd, 1926, just before midnight, a collision occurred
between the French mail steamer Lotus, proceeding to
Constantinople, and the Turkish collier Boz-Kourt, between five and
six nautical miles to the north of Cape Sigri (Mitylene). The Boz-Kourt,
which was cut in two, sank, and eight Turkish nationals who were on
board perished. After having done everything possible to succour the
shipwrecked persons, of whom ten were able to be saved, the Lotus
continued on its course to Constantinople, where it arrived on August
3rd.
[15] At the time of the collision, the officer of the watch on board the
Lotus was Monsieur Demons, a French citizen, lieutenant in the
merchant service and first officer of the ship, whilst the movements of
the Boz-Kourt were directed by its captain, Hassan Bey, who was one
of those saved from the wreck.
[16] As early as August 3rd the Turkish police proceeded to hold an
enquiry into the collision on board the Lotus ; and on the following
day, August 4th, the captain of the Lotus handed in his master's report
at the French Consulate-General, transmitting a copy to the harbour
master.
[17] On August 5th, Lieutenant Demons was requested by the Turkish
authorities to go ashore to give evidence. The examination, the length
of which incidentally resulted in delaying the departure of [p11] the
Lotus, led to the placing under arrest of Lieutenant Demons without
previous notice being given to the French Consul-General - and
Hassan Bey, amongst others. This arrest, which has been
characterized by the Turkish Agent as arrest pending trial (arrestation
preventive), was effected in order to ensure that the criminal
prosecution instituted against the two officers, on a charge of
manslaughter, by the Public Prosecutor of Stamboul, on the complaint
of the families of the victims of the collision, should follow its normal
course.
[18] The case was first heard by the Criminal Court of Stamboul on
August - 28th. On that occasion, Lieutenant Demons submitted that
the Turkish Courts had no jurisdiction; the Court, however, overruled
his objection. When the proceedings were resumed on September
11th, Lieutenant Demons demanded his release on bail: this request
was complied with on September I3th, the bail being fixed at 6’000
Turkish pounds.
[19] On September 15th, the Criminal Court delivered its judgment,
the terms of which have not been communicated to the Court by the
Parties. It is, however, common ground, that it sentenced Lieutenant
Demons to eighty days’ imprisonment and a fine of twenty-two
pounds, Hassan Bey being sentenced to a slightly more severe
penalty.
[20] It is also common ground between the Parties that the Public
Prosecutor of the Turkish Republic entered an appeal against this
decision, which had the effect of suspending its execution until a
decision upon the appeal had been given; that such decision has not
yet been given; but that the special agreement of October 12th, 1926,
did not have the effect of suspending "the criminal proceedings ....
now in progress in Turkey".
[21] The action of the Turkish judicial authorities with regard to
Lieutenant Demons at once gave rise to many diplomatic
representations and other steps on the part of the French Government
or its representatives in Turkey, either protesting against the arrest of
Lieutenant Demons or demanding his release, or with a view to
obtaining the transfer of the case from the Turkish Courts to the
French Courts.
[22] As a result of these representations, the Government of the
Turkish Republic declared on September 2nd, 1926, that "it would
have no objection to the reference of the conflict of jurisdiction to the
Court at The Hague". [p12]
[23] The French Government having, on the 6th of the same month,
given "its full consent to the proposed solution", the two Governments
appointed their plenipotentiaries with a view to the drawing up of the
special agreement to be submitted to the Court; this special
agreement was signed at Geneva on October 12th, 1926, as stated
above, and the ratifications were deposited on December 27th, 1926.
The Law
I. [Position of the Parties Pursuant to the Special Agreement]
[24] Before approaching the consideration of the principles of
international law contrary to which Turkey is alleged to have acted
thereby infringing the terms of Article 15 of the Convention of
Lausanne of July 24th, 1923, respecting conditions of residence and
business and, jurisdiction - , it is necessary to define, in the light of the
written and oral proceedings, the position resulting from the special
agreement. For, the Court having obtained cognizance of the present
case by notification of a special agreement concluded between the
Parties in the case, it is rather to the terms of this agreement than to
the submissions of the Parties that the Court must have recourse in
establishing the precise points which it has to decide. In this respect
the following observations should be made:
59
[25] 1. – The collision which occurred on August 2nd, 1926, between
the S. S. Lotus, flying the French flag, and the S. S. Boz-Kourt, flying
the Turkish flag, took place on the high seas: the territorial jurisdiction
of any State other than France and Turkey therefore does not enter
into account.
[26] 2. – The violation, if any, of the principles of international law
would have consisted in the taking of criminal proceedings against
Lieutenant Demons. It is not therefore a question relating to any
particular step in these proceedings - such as his being put to trial, his
arrest, his detention pending trial or the judgment given by the
Criminal Court of Stamboul - but of the very fact of the Turkish Courts
exercising criminal jurisdiction. That is why the arguments put forward
by the Parties in both phases of [p13] the proceedings relate
exclusively to the question whether Turkey has or has not, according
to the principles of international law, jurisdiction to prosecute in this
case.
[27] The Parties agree that the Court has not to consider whether the
prosecution was in conformity with Turkish law; it need not therefore
consider whether, apart from the actual question of jurisdiction, the
provisions of Turkish law cited by Turkish authorities were really
applicable in this case, or whether the manner in which the
proceedings against Lieutenant Demons were conducted might
constitute a denial of justice, and accordingly, a violation of
international law. The discussions have borne exclusively upon the
question whether criminal jurisdiction does or does not exist in this
case.
[28] 3. – The prosecution was instituted because the loss of the Boz-
Kourt involved the death of eight Turkish sailors and passengers. It is
clear, in the first place, that this result of the collision constitutes a
factor essential for the institution of the criminal proceedings in
question; secondly, it follows from the statements of the two Parties
that no criminal intention has been imputed to either of the officers
responsible for navigating the two vessels; it is therefore a case of
prosecution for involuntary manslaughter. The French Government
maintains that breaches of navigation regulations fall exclusively
within the jurisdiction of the State under whose flag the vessel sails ;
but it does not argue that a collision between two vessels cannot also
bring into operation the sanctions which apply to criminal law in cases
of manslaughter. The precedents cited by it and relating to collision
cases all assume the possibility of criminal proceedings with a view to
the infliction of such sanctions, the dispute being confined to the
question of jurisdiction concurrent or exclusive - which another State
might claim in this respect. As has already been observed, the Court
has not to consider the lawfulness of the prosecution under Turkish
law; questions of criminal law relating to the justification of the
prosecution and consequently to the existence of a nexus causalis
between the actions of Lieutenant Demons and the loss of eight
Turkish nationals are not relevant to the issue so far as the Court is
concerned. Moreover, the exact conditions in which these persons
perished do not appear from the documents submitted to the Court ;
nevertheless, there is no doubt that their death may be regarded as
the direct [p14] outcome of the collision, and the French Government
has not contended that this relation of cause and effect cannot exist.
[29] 4. – Lieutenant Demons and the captain of the Turkish steamship
were prosecuted jointly and simultaneously. In regard to the
conception of "connexity" of offences (connexite), the Turkish Agent in
the submissions of his Counter-Case has referred to the Turkish Code
of criminal procedure for trial, the provisions of which are said to have
been taken from the corresponding French Code. Now in French law,
amongst other factors, coincidence of time and place may give rise to
"connexity" (connexite). In this case, therefore, the Court interprets
this conception as meaning that the proceedings against the captain
of the Turkish vessel in regard to which the jurisdiction of the Turkish
Courts is not disputed, and the proceedings against Lieutenant
Demons, have been regarded by the Turkish authorities, from the
point of view of the investigation of the case, as one and the same
prosecution, since the collision of the two steamers constitutes a
complex of acts the consideration of which should, from the
standpoint of Turkish criminal law, be entrusted to the same court.
[30] 5. – The prosecution was instituted in pursuance of Turkish
legislation. The special agreement does not indicate what clause or
clauses of that legislation apply. No document has been submitted to
the Court indicating on what article of the Turkish Penal Code the
prosecution was based; the French Government however declares
that the Criminal Court claimed jurisdiction under Article 6 of the
Turkish Penal Code, and far from denying this statement, Turkey, in
the submissions of her Counter-Case, contends that that article is in
conformity with the principles of international law. It does not appear
from the proceedings whether the prosecution was instituted solely on
the basis of that article.
[31] Article 6 of the Turkish Penal Code, Law No. 765 of March 1st,
1926 (Official Gazette No. 320 of March 13th, 1926), runs as follows:
[Translation]
"Any foreigner who, apart from the cases contemplated by Article 4,
commits an offence abroad to the prejudice of Turkey or of a Turkish
subject, for which offence Turkish law prescribes a penalty involving
loss of freedom for a [p15] minimum period of not less than one year,
shall be punished in accordance with the Turkish Penal Code
provided that he is arrested in Turkey. The penalty shall however be
reduced by one third and instead of the death penalty, twenty years of
penal servitude shall be awarded.
"Nevertheless, in such cases, the prosecution will only be instituted at
the request of the Minister of Justice or on the complaint of the injured
Party.
"If the offence committed injures another foreigner, the guilty person
shall be punished at the request of the Minister of Justice, in
accordance with the provisions set out in the first paragraph of this
article, provided however that:
"(1) the article in question is one for which Turkish law prescribes a
penalty involving loss of freedom for a minimum period of three years;
"(2) there is no extradition treaty or that extradition has not been
accepted either by the government of the locality where the guilty
person has committed the offence or by the government of his own
country."
[32] Even if the Court must hold that the Turkish authorities had seen
fit to base the prosecution of Lieutenant Demons upon the above-
mentioned Article 6, the question submitted to the Court is not
whether that article is compatible with the principles of international
law; it is more general. The Court is asked to state whether or not the
principles of international law prevent Turkey from instituting criminal
proceedings against Lieutenant Demons under Turkish law. Neither
the conformity of Article 6 in itself with the principles of international
law nor the application of that article by the Turkish authorities
constitutes the point at issue ; it is the very fact of the institution of
proceedings which is held by France to be contrary to those
principles. Thus the French Government at once protested against his
arrest, quite independently of the question as to what clause of her
legislation was relied upon by Turkey to justify it. The arguments put
forward by the French Government in the course of the proceedings
and based on the principles which, in its contention, should govern
navigation on the high seas, show that it would dispute Turkey's
jurisdiction to prosecute Lieutenant Demons, even if that prosecution
were based on a clause of the Turkish Penal Code other than Article
6, assuming for instance that the offence in question should be
regarded, by reason of its consequences, to have been actually
committed on Turkish territory. [p16]
II. [Violated Principles of International Law]
[33] Having determined the position resulting from the terms of the
special agreement, the Court must now ascertain which were the
principles of international law that the prosecution of Lieutenant
Demons could conceivably be said to contravene.
[34] It is Article 15 of the Convention of Lausanne of July 24th, 1923,
respecting conditions of residence and business and jurisdiction,
which refers the contracting Parties to the principles of international
law as regards the delimitation of their respective jurisdiction.
[35] This clause is as follows:
"Subject to the provisions of Article 16, all questions of jurisdiction
60
shall, as between Turkey and the other contracting Powers, be
decided in accordance with the principles of international law."
[36] The French Government maintains that the meaning of the
expression "principles of international law" in this article should be
sought in the light of the evolution of the Convention. Thus it states
that during the preparatory work, the Turkish Government, by means
of an amendment to the relevant article of a draft for the Convention,
sought to extend its jurisdiction to crimes committed in the territory of
a third State, provided that, under Turkish law, such crimes were
within the jurisdiction of Turkish Courts. This amendment, in regard to
which the representatives of France and Italy made reservations, was
definitely rejected by the British representative ; and the question
having been subsequently referred to the Drafting Committee, the
latter confined itself in its version of the draft to a declaration to the
effect that questions of jurisdiction should be decided in accordance
with the principles of international law. The French Government
deduces from these facts that the prosecution of Demons is contrary
to the intention which guided the preparation of the Convention of
Lausanne.
[37] The Court must recall in this connection what it has said in some
of its preceding judgments and opinions, namely, that there is no
occasion to have regard to preparatory work if the text of a convention
is sufficiently clear in itself. Now the Court considers that the words
"principles of international law", as ordinarily used, can only mean
international law as it is applied between all nations belonging to the
community of States. This interpretation [p17] is borne out by the
context of the article itself which says that the principles of
international law are to determine questions of jurisdiction - not only
criminal but also civil - between the contracting Parties, subject only to
the exception provided for in Article 16. Again, the preamble of the
Convention says that the High Contracting Parties are desirous of
effecting a settlement in accordance "with modem international law",
and Article 28 of the Treaty of Peace of Lausanne, to which the
Convention in question is annexed, decrees the complete abolition of
the Capitulations “in every respect". In these circumstances it is
impossible - except in pursuance of a definite stipulation - to construe
the expression "principles of international law" otherwise than as
meaning the principles which are in force between all independent
nations and which therefore apply equally to all the contracting
Parties.
[38] Moreover, the records of the preparation of the Convention
respecting conditions of residence and business and jurisdiction
would not furnish anything calculated to overrule the construction
indicated by the actual terms of Article 15. It is true that the
representatives of France, Great Britain and Italy rejected the Turkish
amendment already mentioned. But only the British delegate - and
this conformably to British municipal law which maintains the territorial
principle in regard to criminal jurisdiction - stated the reasons for his
opposition to the Turkish amendment ; the reasons for the French and
Italian reservations and for the omission from the draft prepared by
the Drafting Committee of any definition of the scope of the criminal
jurisdiction in respect of foreigners, are unknown and might have been
unconnected with the arguments now advanced by France.
[39] It should be added to these observations that the original draft of
the relevant article, which limited Turkish jurisdiction to crimes
committed in Turkey itself, was also discarded by the Drafting
Committee; this circumstance might with equal justification give the
impression that the intention of the framers of the Convention was not
to limit this jurisdiction in any way.
[40] The two opposing proposals designed to determine definitely the
area of application of Turkish criminal law having thus been
discarded, the wording ultimately adopted by common consent for
Article 15 can only refer to the principles of general international law
relating to jurisdiction. [p18]
III. [Fundamental Principles of International Law]
[41] The Court, having to consider whether there are any rules of
international law which may have been violated by the prosecution in
pursuance of Turkish law of Lieutenant Demons, is confronted in the
first place by a question of principle which, in the written and oral
arguments of the two Parties, has proved to be a fundamental one.
The French Government contends that the Turkish Courts, in order to
have jurisdiction, should be able to point to some title to jurisdiction
recognized by international law in favour of Turkey. On the other
hand, the Turkish Government takes the view that Article 15 allows
Turkey jurisdiction whenever such jurisdiction does not come into
conflict with a principle of international law.
[42] The latter view seems to be in conformity with the special
agreement itself, No. I of which asks the Court to say whether Turkey
has acted contrary to the principles of international law and, if so,
what principles. According to the special agreement, therefore, it is
not a question of stating principles which would permit Turkey to take
criminal proceedings, but of formulating the principles, if any, which
might have been violated by such proceedings.
[43] This way of stating the question is also dictated by the very
nature and existing conditions of international law.
[44] International law governs relations between independent States.
The rules of law binding upon States therefore 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.
[45] 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 [p19] except by
virtue of a permissive rule derived from international custom or from a
convention.
[46] 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.
[47] 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, both in Europe and America, 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,
thus making good the existing lacunæ in respect of jurisdiction or
removing the conflicting jurisdictions arising from the diversity of the
principles adopted by the various 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.
[48] It follows from the foregoing that the contention of the French
Government to the effect that Turkey must in each case be able to
cite a rule of international law authorizing her to exercise jurisdiction,
is opposed to the generally accepted international law to which Article
13 of the Convention of Lausanne refers. Having regard to the terms
of Article 15 and to the construction which [p20] the Court has just
61
placed upon it, this contention would apply in regard to civil as well as
to criminal cases, and would be applicable on conditions of absolute
reciprocity as between Turkey and the other contracting Parties; in
practice, it would therefore 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 jurisdiction.
*
[49] Nevertheless, it has to be seen whether the foregoing
considerations really apply as regards criminal jurisdiction, or whether
this jurisdiction is governed by a different principle: this might be the
outcome of the close connection which for a long time existed
between the conception of supreme criminal jurisdiction and that of a
State, and also by the especial importance of criminal jurisdiction from
the point of view of the individual.
[50] 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.
[51] This situation may be considered from two different standpoints
corresponding to the points of view respectively taken up by the
Parties. According to one of these standpoints, the principle of
freedom, in virtue of which each State may regulate its legislation at
its discretion, provided that in so doing it does not come in conflict
with a restriction imposed by international law, would also apply as
regards law governing the scope of jurisdiction in criminal cases.
According to the other standpoint, the exclusively territorial character
of law relating to this domain constitutes a principle which, except as
otherwise expressly provided, would, ipso facto, prevent States from
extending the criminal jurisdiction of their courts beyond their frontiers;
the exceptions in question, which include for instance extraterritorial
jurisdiction over nationals and over crimes directed against public
safety, would therefore rest on special permissive rules forming part of
international law. [p21]
[52] Adopting, for the purpose of the argument, the standpoint of the
latter of these two systems, it must be recognized that, in the absence
of a treaty provision, its correctness depends upon whether there is a
custom having the force of law establishing it. The same is true as
regards the applicability of this system - assuming it to have been
recognized as sound - in the particular case. It follows that, even from
this point of view, before ascertaining whether there may be a rule of
international law expressly allowing Turkey to prosecute a foreigner
for an offence committed by him outside Turkey, it is necessary to
begin by establishing both that the system is well-founded and that it
is applicable in the particular case. Now, in order to establish the first
of these points, one must, as has just been seen, prove the existence
of a principle of international law restricting the discretion of States as
regards criminal legislation.
[53] Consequently, whichever of the two systems described above 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, in the
circumstances of the case before the Court, from prosecuting
Lieutenant Demons. And moreover, on either hypothesis, this must be
ascertained by examining precedents offering a close analogy to the
case under consideration; for it is only from precedents of this nature
that the existence of a general principle applicable to the particular
case may appear. For if it were found, for example, that, according to
the practice of States, the jurisdiction of the State whose flag was,
flown was not established by international law as exclusive with
regard to collision cases on the high seas, it would not be necessary
to ascertain whether there were a more general restriction; since, as
regards that restriction-supposing that it existed-the fact that it had
been established that there was no prohibition in respect of collision
on the high seas would be tantamount to a special permissive rule.

[54] The Court therefore must, in any event ascertain whether or not
there exists a rule of international law limiting the freedom of States to
extend the criminal jurisdiction of their courts to a situation uniting the
circumstances of the present case. [p22]
IV. [Prohibition of Prosecution under International Law]
[55] The Court will now proceed to ascertain whether general
international law, to which Article 15 of the Convention of Lausanne
refers, contains a rule prohibiting Turkey from prosecuting Lieutenant
Demons.
[56] For this purpose, it will in the first place examine the value of the
arguments advanced by the French Government, without however
omitting to take into account other possible aspects of the problem,
which might show the existence of a restrictive rule applicable in this
case.
[57] The arguments advanced by the French Government, other than
those considered above, are, in substance, the three following:
(1) International law does not allow a State to take proceedings with
regard to offences committed by foreigners abroad, simply by reason
of the nationality of the victim ; and such is the situation in the present
case because the offence must be regarded as having been
committed on board the French vessel.
(2) 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.
(3) Lastly, this principle is especially applicable in a collision case.
***
[58] As regards the first argument, the Court feels obliged in the first
place to recall that its examination is strictly confined to the specific
situation in the present case, for it is only in regard to this situation
that its decision is asked for.
[59] As has already been observed, the characteristic features of the
situation of fact are as follows: there has been a collision on the high
seas between two vessels flying different flags, on one of which was
one of the persons alleged to be guilty of the offence, whilst the
victims were on board the other.
[60] This being so, the Court does not think it necessary to consider
the contention that a State cannot punish offences committed abroad
by a foreigner simply by reason of the nationality of the [p23] victim.
For this contention only relates to the case where the nationality of the
victim is the only criterion on which the criminal jurisdiction of the
State is based. Even if that argument were correct generally speaking
- and in regard to this the Court reserves its opinion - it could only be
used in the present case if international law forbade Turkey to take
into consideration the fact 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.
But no such rule of international law exists. No argument has come to
the knowledge of the Court from which it could be deduced that States
recognize themselves to be under an obligation towards each other
only to have regard to the place where the author of the offence
happens to be at the time of the offence. On the contrary, it is certain
that the courts of many countries, even of countries which have given
their criminal legislation a strictly territorial character, interpret criminal
law in the sense that offences, the authors of which at the moment of
commission are in the territory of another State, are nevertheless to
be regarded as having been committed in the national territory, if one
of the constituent elements of the offence, and more especially its
effects, have taken place there. French courts have, in regard to a
variety of situations, given decisions sanctioning this way of
interpreting the territorial principle. Again, the Court does not know of
any cases in which governments have protested against the fact that
the criminal law of some country contained a rule to this effect or that
the courts of a country construed their criminal law in this sense.
Consequently, once it is admitted that the effects of the offence were
62
produced on the Turkish vessel, it becomes impossible to hold that
there is a rule of international law which prohibits Turkey from
prosecuting Lieutenant Demons because of the fact that the author of
the offence was on board the French ship. Since, as has already been
observed, the special agreement does not deal with the provision of
Turkish law under which the prosecution was instituted, but only with
the question whether the prosecution should be regarded as contrary
to the principles of international law, there is no reason preventing the
Court from confining itself to observing that, in this case, a
prosecution may also be justified from the point of view of the so-
called territorial principle. [p24]
[61] Nevertheless, even if the Court had to consider whether Article 6
of the Turkish Penal Code was compatible with international law, and
if it held that the nationality of the victim did not in all circumstances
constitute a sufficient basis for the exercise of criminal jurisdiction by
the State of which the victim was a national, the Court would arrive at
the same conclusion for the reasons just set out. For even were
Article 6 to be held incompatible with the principles of international
law, since the prosecution might have been based on another
provision of Turkish law which would not have been contrary to any
principle of international law, it follows that it would be impossible to
deduce from the mere fact that Article 6 was not in conformity with
those principles, that the prosecution itself was contrary to them. The
fact that the judicial authorities may have committed an error in their
choice of the legal provision applicable to the particular case and
compatible with international law only concerns municipal law and can
only affect international law in so far as a treaty provision enters into
account, or the possibility of a denial of justice arises.
[62] It has been sought to argue that the offence of manslaughter
cannot be localized at the spot where the mortal effect is felt ; for the
effect is not intentional and it cannot be said that there is, in the mind
of the delinquent, any culpable intent directed towards the territory
where the mortal effect is produced. In reply to this argument it might
be observed that the effect is a factor of outstanding importance in
offences such as manslaughter, which are punished precisely in
consideration of their effects rather than of the subjective intention of
the delinquent. But the Court does not feel called upon to consider
this question, which is one of interpretation of Turkish criminal law. It
will suffice to observe that no argument has been put forward and
nothing has been found from which it would follow that international
law has established a rule imposing on States this reading of the
conception of the offence of manslaughter.
***
[63] The second argument put forward by the French Government is
the principle that the State whose flag is flown has exclusive
jurisdiction over everything which occurs on board a merchant ship on
the high seas. [p25]
[64] It is certainly true that – apart from certain special cases which
are defined by international law - vessels on the high seas are subject
to no authority except that of the State whose flag they fly. In virtue of
the principle of the freedom of the seas, that is to say, the absence of
any territorial sovereignty upon the high seas, no State may exercise
any kind of jurisdiction over foreign vessels upon them. Thus, if a war
vessel, happening to be at the spot where a collision occurs between
a vessel flying its flag and a foreign vessel, were to send on board the
latter an officer to make investigations or to take evidence, such an
act would undoubtedly be contrary to international law.
[65] But it by no means follows that a State can never in its own
territory exercise jurisdiction over acts which have occurred on board
a foreign ship on the high seas. A corollary of the principle of the
freedom of the seas is that a ship on the high seas is assimilated to
the territory of the State the flag of which it flies, for, just as in its own
territory, that State exercises its authority, upon it, and no other State
may do so. All that can be said is that by virtue of the principle of the
freedom of the seas, a ship is placed in the same position as national
territory but there is nothing to support the claim according to which
the rights of the State under whose flag the vessel sails may go
farther than the rights which it exercises within its territory properly so
called. It follows that what occurs on board a vessel on the high seas
must be regarded as if it occurred on the territory of the State whose
flag the ship flies. 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.
[66] This conclusion could only be overcome if it were shown that
there was a rule of customary international law which, going further
than the principle stated above, established the exclusive jurisdiction
of the State whose flag was flown. The French Government has
endeavoured to prove the existence of such a rule, having recourse
for this purpose to the teachings of publicists, to decisions [p26] of
municipal and international tribunals, and especially to conventions
which, whilst creating exceptions to the principle of the freedom of the
seas by permitting the war and police vessels of a State to exercise a
more or less extensive control over the merchant vessels of another
State, reserve jurisdiction to the courts of the country whose flag is
flown by the vessel proceeded against.
[67] In the Court's opinion, the existence of such a rule has not been
conclusively proved.
[68] In the first place, as regards teachings of publicists, and apart
from the question as to what their value may be from the point of view
of establishing the existence of a rule of customary law, it is no doubt
true that all or nearly all writers teach that ships on the high seas are
subject exclusively to the jurisdiction of the State whose flag they fly.
But the important point is the significance attached by them to this
principle; now it does not appear that in general, writers bestow upon
this principle a scope differing from or wider than that explained above
and which is equivalent to saying that the jurisdiction of a State over
vessels on the high seas is the same in extent as its jurisdiction in its
own territory. On the other hand, there is no lack of writers who, upon
a close study of the special question whether a State can prosecute
for offences committed on board a foreign ship on the high seas,
definitely come to the conclusion that such offences must be regarded
as if they had been committed in the territory of the State whose flag
the ship flies, and that consequently the general rules of each legal
system in regard to offences committed abroad are applicable.
[69] In regard to precedents, it should first be observed that, leaving
aside the collision cases which will be alluded to later, none of them
relates to offences affecting two ships flying the flags of two different
countries, and that consequently they are not of much importance in
the case before the Court. The case of the Costa Rica Packet is no
exception, for the prauw on which the alleged depredations took place
was adrift without flag or crew, and this circumstance certainly
influenced, perhaps decisively, the conclusion arrived at by the
arbitrator.
[70] On the other hand, there is no lack of cases in which a State has
claimed a right to prosecute for an offence, committed on board a
foreign ship, which it regarded as punishable under its legislation.
Thus Great Britain refused the request of the United [p27] States for
the extradition of John Anderson, a British seaman who had
committed homicide on board an American vessel, stating that she did
not dispute the jurisdiction of the United States but that she was
entitled to exercise hers concurrently. This case, to which others
might be added, is relevant in spite of Anderson's British nationality, in
order to show that the principle of the exclusive jurisdiction of the
country whose flag the vessel flies is not universally accepted.
[71] The cases in which the exclusive jurisdiction of the State whose
flag was flown has been recognized would seem rather to have been
cases in which the foreign State was interested only by reason of the
nationality of the victim, and in which, according to the legislation of
that State itself or the practice of its courts, that ground was not
regarded as sufficient to authorize prosecution for an offence
committed abroad by a foreigner.
[72] Finally, as regards conventions expressly reserving jurisdiction
63
exclusively to the State whose flag is flown, it is not absolutely certain
that this stipulation is to be regarded as expressing a general principle
of law rather than as corresponding to the extraordinary jurisdiction
which these conventions confer on the state-owned ships of a
particular country in respect of ships of another country on the high
seas. Apart from that, it should be observed that these conventions
relate to matters of a particular kind, closely connected with the
policing of the seas, such as the slave trade, damage to submarine
cables, fisheries, etc., and not to common-law offences. Above all it
should be pointed out that the offences contemplated by the
conventions in question only concern a single ship; it is impossible
therefore to make any deduction from them in regard to matters which
concern two ships and consequently the jurisdiction of two different
States.
[73] The Court therefore has arrived at the conclusion that the second
argument put forward by the French Government does not, any more
than the first, establish the existence of a rule of international law
prohibiting Turkey from prosecuting Lieutenant Demons.
***
[74] It only remains to examine the third argument advanced by the
French Government and to ascertain whether a rule specially [p28]
applying to collision cases has grown up, according to which criminal
proceedings regarding such cases come exclusively within the
jurisdiction of the State whose flag is flown.
[75] In this connection, the Agent for the French Government has
drawn the Court's attention to the fact that questions of jurisdiction in
collision cases, which frequently arise before civil courts, are but
rarely encountered in the practice of criminal courts. He deduces from
this that, in practice, prosecutions only occur before the courts of the
State whose flag is flown and that that circumstance is proof of a tacit
consent on the part of States and, consequently, shows what positive
international law is in collision cases.
[76] In the Court's opinion, this conclusion is not warranted. Even if
the rarity of the judicial decisions to be found among the reported
cases were sufficient to prove in point of fact the circumstance alleged
by the Agent for the French Government, it 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.
[77] So far as the Court is aware there are no decisions of
international tribunals in this matter; but some decisions of municipal
courts have been cited. Without pausing to consider the value to be
attributed to the judgments of municipal courts in connection with the
establishment of the existence of a rule of international law, it will
suffice to observe that the decisions quoted sometimes support one
view and sometimes the other. Whilst the French Government have
been able to cite the Ortigia-Oncle-Joseph case before the Court of
Aix and the Franconia-Strathclyde case before the British Court for
Crown Cases Reserved, as being in favour of the exclusive
jurisdiction of the State whose flag is flown, on the other hand the
Ortigia-Oncle-Joseph case before the Italian Courts and the
Ekbatana-West-Hinder case before the Belgian Courts have been
cited in support of the opposing contention.
[78] Lengthy discussions have taken place between the Parties as to
the importance of each of these decisions as regards the details [p29]
of which the Court confines itself to a reference to the Cases and
Counter-Cases of the Parties. The Court does not think it necessary
to stop to consider them. It will suffice to observe that, as municipal
jurisprudence is thus divided, it is hardly possible to see in it an
indication of the existence of the restrictive rule of international law
which alone could serve as a basis for the contention of the French
Government.
[79] On the other hand, the Court feels called upon to lay stress upon
the fact that it does not appear that the States concerned have
objected to criminal proceedings in respect of collision cases before
the courts of a country other than that the flag of which was flown, or
that they have made protests: their conduct does not appear to have
differed appreciably from that observed by them in all cases of
concurrent jurisdiction. This fact is directly opposed to the existence of
a tacit consent on the part of States to the exclusive jurisdiction of the
State whose flag is flown, such as the Agent for the French
Government has thought it possible to deduce from the infrequency of
questions of jurisdiction before criminal courts. It seems hardly
probable, and it would not be in accordance with international practice
that the French Government in the Ortigia-Oncle-Joseph case and the
German Government in the Ekbalana-West-Hinder case would have
omitted to protest against the exercise of criminal jurisdiction have by
the Italian and Belgian Courts, if they had really thought that this was
a violation of international law.
[80] As regards the Franconia case (R. v. Keyn 1877, L.R. 2 Ex. Div.
63) upon which the Agent for the French Government has particularly
relied, it should be observed that the part of the decision which bears
the closest relation to the present case is the part relating to the
localization of the offence on the vessel responsible for the collision.
[81] But, whatever the value of the opinion expressed by the majority
of the judges on this particular point may be in other respects, there
would seem to be no doubt that if, in the minds of these judges, it was
based on a rule of international law, their conception of that law,
peculiar to English jurisprudence, is far from being generally accepted
even in common-law countries. This view seems moreover to be
borne out by the fact that the standpoint taken by the majority of the
judges in regard to the localization of an offence, the author of which
is situated in the territory of one [p30] State whilst its effects are
produced in another State, has been abandoned in more recent
English decisions (R. v. Nillins, 1884, 53 L. J. 157; R. v. Godfrey, L. R.
1923, 1 K. B. 24). This development of English case-law tends to
support the view that international law leaves States a free hand in
this respect.
[82] In support of the theory in accordance with which criminal
jurisdiction in collision cases would exclusively belong to the State of
the flag flown by the ship, it has been contended that it is a question
of the observance of the national regulations of each merchant marine
and that effective punishment does not consist so much in the
infliction of some months' imprisonment upon the captain as in the
cancellation of his certificate as master, that is to say, in depriving him
of the command of his ship.
[83] In regard to this, the Court must observe that in the present case
a prosecution was instituted for an offence at criminal law and not for
a breach of discipline. Neither the necessity of taking administrative
regulations into account (even ignoring the circumstance that it is a
question of uniform regulations adopted by States as a result of an
international conference) nor the impossibility of applying certain
disciplinary penalties can prevent the application of criminal law and
of penal measures of repression.
[84] The conclusion at which the Court has therefore arrived is that
there is no rule of international law in regard to collision cases to the
effect that criminal proceedings are exclusively within the jurisdiction
of the State whose flag is flown.
[85] This conclusion moreover is easily explained if the manner in
which the collision brings the jurisdiction of two different countries into
play be considered.
[86] 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. Neither the exclusive jurisdiction of either State, nor the
limitations of the jurisdiction of each to the occurrences which took
place on the respective ships would appear calculated to satisfy the
requirements of justice and effectively to protect the interests of the
64
two States. It is only natural that each should be able to exercise
jurisdiction and to do so in respect [p31] of the incident as a whole. It
is therefore a case of concurrent jurisdiction.
***
[87] The Court, having arrived at the conclusion that the arguments
advanced by the French Government either are irrelevant to the issue
or do not establish the existence of a principle of international law
precluding Turkey from instituting the prosecution which was in fact
brought against Lieutenant Demons, observes that in the fulfilment of
its task of itself ascertaining what the international law is, it has not
confined itself to a consideration of the arguments put forward, but
has included in its researches all precedents, teachings and facts to
which it had access and which might possibly have revealed the
existence of one of the principles of international law contemplated in
the special agreement. The result of these researches has not been to
establish the existence of any such principle. It must therefore be held
that there is no principle of international law, within the meaning of
Article 15 of the Convention of Lausanne of July 24th, 1923, which
precludes the institution of the criminal proceedings under
consideration. Consequently, Turkey, by instituting, in virtue of the
discretion which international law leaves to every sovereign State, the
criminal proceedings in question, has not, in the absence of such
principles, acted in a manner contrary to the principles of international
law within the meaning of the special agreement.
[88] In the last place the Court observes that there is no need for it to
consider the question whether the fact that the prosecution of
Lieutenant Demons was "joint" (connexe) with that of the captain of
the Boz-Kourt would be calculated to justify an extension of Turkish
jurisdiction. This question would only have arisen if the Court had
arrived at the conclusion that there was a rule of international law
prohibiting Turkey from prosecuting Lieutenant Demons; for only in
that case would it have been necessary to ask whether that rule might
be overridden by the fact of the connexity" (connexite) of the offences.
[p32]
V. [Disposition]
[89] Having thus answered the first question submitted by the special
agreement in the negative, the Court need not consider the second
question, regarding the pecuniary reparation which might have been
due to Lieutenant Demons.
[90] FOR THESE REASONS,
The Court, having heard both Parties,
gives, by the President's casting vote - the votes being equally divided
-, judgment to the effect
(1) that, following the collision which occurred on August 2nd, 1926,
on the high seas between the French steamship Lotus and she
Turkish steamship Boz-Kourt, and upon the arrival of the French ship
at Stamboul, and in consequence of the loss of the Boz-Kourt having
involved the death of eight Turkish nationals, Turkey, by instituting
criminal proceedings in pursuance of Turkish law against Lieutenant
Demons, officer of the watch on board the Lotus at the time of the
collision, has not acted in conflict with the principles of international
law, contrary to Article 15 of the Convention of Lausanne of July 24th,
1923, respecting conditions of residence and business and
jurisdiction;
(2) that, consequently, there is no occasion to give judgment on the
question of the pecuniary reparation which might have been due to
Lieutenant Demons if Turkey, by prosecuting him as above stated,
had acted in a manner contrary to the principles of international law.
[91] This judgment having been drawn up in French in accordance
with the terms of Article 39, paragraph 1, second sentence, of the
Statute of the Court, an English translation is attached thereto. [p33]
[92] Done at the Peace Palace, The Hague, this seventh day of
September, nineteen hundred and twenty-seven, in three copies, one
of which is to be placed in the archives of the Court, and the others to
be transmitted to the Agents of the respective Parties.
(Signed) Max Huber,
President. [107] The criminal law of a State applies in the first place to all
(Signed) A. Hammarskjold, persons within its territory, whether nationals or foreigners, because
Registrar. the right of jurisdiction over its own territory is an attribute of its
sovereignty.
[93] MM. Loder, former President, Weiss, Vice-President, and Lord
Finlay, MM. Nyholm and Altamira, Judges, declaring that they are [108] The criminal law of a State may extend to crimes and offences
unable to concur in the judgment delivered by the Court and availing committed abroad by its nationals, since such nationals are subject to
themselves of the right conferred on them by Article ,of the Statute, the law of their own country; but it cannot extend to offences
have delivered the separate opinions which follow hereafter. committed by a foreigner in foreign territory, without infringing the
sovereign rights of the foreign State concerned, since in that State the
[94] Mr. Moore, dissenting from the judgment of the Court only on the State enacting the law has no jurisdiction.
ground of the connection of the criminal proceedings in the case with
Article 6 of the Turkish Penal Code, also delivered a separate opinion. [109] Nor can such a law extend in the territory of the State enacting it
to an offence committed by a foreigner abroad should the foreigner
(Initialled) M. H. happen to be in this territory after the commission of the offence,
(Initialled) A. H. [p34] because the guilty act has not been committed within the area subject
to the jurisdiction of that State and the subsequent presence of the
Dissenting Opinion by M. Loder guilty person cannot have the effect of extending the jurisdiction of the
State.
[Translation]
[110] It seems to me clear that such is the logical consequence of the
[95] Turkey, having arrested, tried and convicted a foreigner for an fundamental principle above enunciated.
offence which he is alleged to have committed outside her territory,
claims to have been authorized to do so by reason of the absence of [111] It however is also clear that this consequence can be overridden
a prohibitive rule of international law. by some convention to the contrary effect or by some exception
generally and even tacitly recognized by international law.
[96] Her defence is based on the contention that under international
law everything which is not prohibited is permitted. [112] Like all exceptions, however, such an exception must be strictly
construed and cannot be substituted for the well-established rule, to
[97] In other words, on the contention that, under international law, which it is an exception.
every door is open unless it is closed by treaty or by established
Custom. [113] Now, the rule has gradually undergone an important
modification in the legislation of a somewhat large majority of civilized
[98] The Court in its judgment holds that this view is correct, well- States, a modification which does not seem to have encountered
founded, and in accordance with actual facts. objections and which may be regarded as having been accepted. This
modification tends to except from the strict rule governing the
[99] I regret that I am unable to concur with the opinion of the Court. jurisdiction over offences committed by foreigners abroad such
offences, in so far as they are directed against the State itself or [p36]
[100] It seems to me that the contention is at variance with the spirit of against its security or credit. The injured State may try the guilty
international law. This law is for the most part unwritten and lacks persons according to its own law if they happen to be in its territory or,
sanctions; it rests on a general consensus of opinion; on the if necessary, it may ask for their extradition.
acceptance by civilized States, members of the great community, of
nations, of rules, customs and existing conditions which they are [114] Apart from this exception, the rule holds good.
bound to respect in their mutual relations, although neither committed
to writing nor confirmed by conventions. This body of rules is called [115] The so-called system of "protection" which Turkey claims to be
international law. entitled to apply and which is tantamount to the abrogation of the rule
itself, is very far from being accepted by the great majority of States
[101] These rules may be gradually modified, altered or extended, in and is not in my opinion in harmony with positive international law.
accordance with the views of a considerable majority of these States,
as this consensus of opinion develops, but is seems to me incorrect to [116] The alleged offence with which M. Demons is charged by
say that the municipal law of a minority of States suffices to abrogate Turkey, namely, involuntary manslaughter, does not fall within the
or change them. scope of the exception which I have mentioned. Turkey admits that
she is applying the so-called system of "protection" in pursuance of
[102] It also appears to me incorrect to claim that the absence of her municipal law and she holds that she is authorized to do so
international disputes or diplomatic difficulties in regard to certain because she has found nowhere a positive and accepted rule
provisions of the laws of some States, which are at variance with prohibiting her from so doing.
generally accepted ideas, can serve to show the development or
modification of such ideas. [117] It will appear from the foregoing that I am of opinion that for this
reason alone, Turkey must be held to have acted in contravention of
[103] International disputes only arise when a particular application of [p37] the principles of international law.
the laws in question shows them to be at variance with international
law. ***

[104] The family of nations consists of a collection of different [118] The Court has been made cognizant of a definite occurrence; it
sovereign and independent States. [p35] has to give judgment upon a particular case. This case is the collision
between the French ship Lotus and the Turkish ship Boz-Kourt.
[105] The fundamental consequence of their independence and
sovereignty is that no municipal law, in the particular case under [119] Turkey claims that both vessels, owing to faulty navigation, were
consideration no criminal law, can apply or have binding effect outside jointly to blame for this collision.
the national territory.
[120] The result of the collision was that the Boz-Kourt sank, and that
[106] This fundamental truth, which is not a custom but the direct and some members of the crew and passengers were drowned.
inevitable consequence of its premise, is a logical principle of law, and
is a postulate upon which the mutual independence of States rests. [121] Turkey argues from these facts that M. Demons, officer of the
65
watch on board the Lotus, is guilty of manslaughter and that he is examination, provide for the possibility of their joinder by reason of
responsible for the death of the persons above mentioned. their being connected. Proceedings must then have been instituted in
both cases before they can be joined on the ground of connection
[122] She argues that this offence took place on board the Boz-Kourt between them (connexite). And joinder will only be possible if the
because it was there that the effects of the alleged negligence were judge before whom the joined causes are brought has jurisdiction in
felt. respect of each of them separately.

[123] She therefore contends that the wrongful act having taken place
on board the Turkish ship, its author is amenable to the jurisdiction of
the Turkish Courts.
[124] If this argument be sound, in point of fact the deduction made
from it is correct and the accusation of having acted contrary to the
principles of international law at once falls to the ground, because
every State is entitled to prosecute and sentence any foreigner who
commits an offence within its territory. And the vessel Boz-Kourt must
be regarded as Turkish territory.
[125] The question of the localization of the offence is therefore of
capital importance for the purposes of the decision of the dispute
before the Court.
[126] It is clear that the place where an offence has been committed is
necessarily that where the guilty person is when he commits the act.
The assumption that the place where the effect is produced is the
place where the act was committed is in every case a legal fiction. It
is, however justified where the act and its effect are indistinguishable,
when there is a direct relation between them; for instance, a shot fired
at a person on the other side of a frontler; a parcel containing an
infernal machine intended to explode on being opened by the person
to whom it is sent. The author of the crime intends in such cases to
inflict injury at a place other than that where he himself is.
[127] But the case which the Court has to consider bears no
resemblance to these instances. The officer of the Lotus, who had
never set foot on board the Boz-Kourt, had no intention of injuring
anyone, and no such intention is imputed to him. The movements
executed in the navigation of a vessel are only designed to avoid an
accident.
[137] Joinder on the ground of "connexity" is a proceeding under
municipal law; "connexity" doe not create jurisdiction.
***
[138] The general rule that the criminal law of a State loses its
compelling force and its applicability in relation to offences committed
by a foreigner in foreign territory, a rule derived from the basic
principle of the sovereignty and independence of States, has indeed
undergone modifications and has been made subject to exceptions
restricting its scope by the mutual consent of the different Powers in
so far as territory properly so called is concerned.
[139] But according to a generally accepted view, this is not the case
as regards the high seas. There the law of the flag and national
jurisdiction have retained their indisputable authority to the exclusion
of all foreign law or jurisdiction. I lay special stress on the word
"foreign". A guilty person on board a ship flying the flag of a State
other than the one to which he owes allegiance, may of course be
indicted and sentenced by the State of which he is a national. In that
case, but only then, there will be concurrent jurisdiction. [p39]
[140] But that is not M. Demons' case.
[141] A merchant ship being a complete entity, organized and subject
to discipline in conformity with the laws and subject to the control of
the State whose flag it flies, and having regard to the absence of all
territorial sovereignty upon the high seas, it is only natural that as far
as concerns criminal law this entity should come under the jurisdiction
of that State. This applies with especial force to the case now before
the Court. The accusation against Lieutenant Demons is that whilst
navigating his ship he gave an order for a wrong manoeuvre.

[128] Only an investigation by naval experts into the circumstances
can show whether the manner in which the ship was navigated is to
be regarded as contrary to the regulations or negligent in some
respect, or whether some unforeseen movement by the other vessel
contributed to the accident - and this investigation is a matter solely
for the naval authorities of the country of the person responsible for
navigating the ship.
[142] The rules for navigation which he was obliged to follow were
those contained in his national regulations. He was responsible to his
national authorities for the observance of these rules. It was solely for
these authorities to consider whether the officer had observed these
rules, whether he had done his duty, and, if not, whether he had
neglected their observance to such a degree as to have incurred
criminal responsibility.

[129] In these circumstances, it seems to me that the legal fiction [143] It consequently seems to me that Turkey, in arrogating to herself
whereby the act is held to have been committed at the place where jurisdiction over the acts of a foreign officer doing duty on the high
the effect is produced must be discarded. seas on a ship carrying a foreign flag, has acted in contravention of
the principle of international law set out above.
***
[144] On these grounds I regret that I am unable to concur with the
[130] Turkey seeks to base her jurisdiction upon an alleged Court in its present judgment. [p40]
"connexity" between the movements of the two vessels. [p38]
Dissenting Opinion by M. Weiss
[131] She, in fact, claims that the offence of involuntary manslaughter,
imputed to M. Demons, is "connected" (connexe) with the identical [Translation]
charge against the captain of the Boz-Kourt and that the Turkish court [145] I also, to my very keen regret, am unable, in the case now
has jurisdiction on this ground. before the Court, to share the opinion of the majority of my
colleagues.
[132] This argument is also unsound.
[146] The reasons which induce me to adopt this conclusion are
[133] Simultaneousness is not the same as "connexity". briefly as follows:
The Peace Treaty signed at Lausanne, on July 24th, 1923, between
[134] The movements of the two vessels were independent of each Turkey and the Allied Powers, terminated completely and once and
other: the movement of each ship was even unknown to the officer for all the regime established centuries ago known as the
commanding the other. Capitulations which from the days of Francis I and until the conclusion
of this Treaty had governed the legal and judicial relations between
[135] The result of both movements may have been the collision, but the Ottoman Empire and Christendom.
there is no kind of "connexity" between them.
[147] Article 28 of the Treaty is as follows:
[136] A municipal statute, or a code of procedure, may, in order to
simplify the conduct of two or more cases and to facilitate their "Each of the High Contracting Parties hereby accepts, in so far as it is
66
concerned, the complete abolition of the Capitulations in Turkey in
every respect."
[148] The new Turkey therefore finds herself freed from the
hampering servitudes which for so long had placed her in a situation
apart, in an inferior position amongst the nations; she now becomes
their equal, having like them no other sovereign than international law.
And it is precisely this subjection to international law which is laid
down in the Convention respecting conditions of residence and
business and jurisdiction, concluded at Lausanne on the same day as
the Peace Treaty.
[149] The intention of bringing Turkish law into harmony with the
international law, which has hitherto governed intercourse between
the Western States, is in the first place announced in the preamble of
this Convention: "Being desirous of prescribing, in accordance with
modern international law, the. conditions under which nationals of the
other contracting Powers may settle in Turkey and Turkish nationals
may settle in the territory of those Powers, as well as certain
questions relating to jurisdiction," etc.
[150] This preliminary declaration is given full effect and put into
practical application by, amongst others, Articles 15 and 17 of the
Convention, which run as follows: [p41]
Article 15. – “Subject to the provisions of Article 16 [pwhich relates to
questions of personal status], all questions of jurisdiction shall, as
between Turkey and the other contracting Powers, be decided in
accordance with the principles of international law.”
Article 17. – “The Turkish Government declares that the Turkish
Courts will ensure to foreigners in Turkey, both as regards person and
property, protection in accordance with international law and the
principles and methods generally adopted in other countries.”
[151] Of those two clauses of the Convention of Lausanne only the
first- namely Article 15 - is of direct interest for the case before the
Court. It follows from it that in all cases, that is to say, in criminal
cases as well as in cases of civil and commercial law, conflicts of
jurisdiction which may arise between Turkey and the other signatory
States are to be settled in accordance with the principles of
international law.
[152] These principles – and it is quite certain that, as the Court has
not failed to bring out, in this connection, the principles of general
international law and no others are meant - , which are they in the
present case and where are they written?
[153] The clause on which the judgment given against Lieutenant
Demons appears with certainty to have been based, although no
authentic copy of this judgment has been placed before us, belongs to
Turkish municipal law; it is Article 6 of the Criminal Code which has
been taken from the Italian Code and runs as follows:
[Translation.]
"Any foreigner who commits an offence abroad to the prejudice of a
Turkish subject, for which offence Turkish law prescribes a penalty
involving loss of freedom for a minimum period of not less than one
year, shall be punished by the Turkish Courts and in accordance with
the Turkish Penal Code provided that he is arrested in Turkey. In such
cases, the prosecution will only be instituted at the request of the
Minister of justice or on the complaint of the injured Party."
[154] But this Article 6 is not, according to Article 15 of the Convention
of Lausanne, self-contained; it must, as regards relations between
Turks and foreigners, be supplemented by, and read in the light of,
the principles of international law. [p42]
[155] Does international law authorize the application of Turkish law
and the intervention of Turkish Courts for the repression of offences or
crimes committed by a foreign subject outside Turkey, as is possible
under the above-mentioned Article 6? Without attributing to the
records of the preparatory work in such case a weight which might be
disputed, I may well venture to recall that this was the claim put
forward by the Turkish plenipotentiaries from the outset of the
Conference of Lausanne. The amendment submitted by them at the
67
request of Ismet Pasha leaves no room for doubt on this point: In
Turkey – we read in this document – “the Turkish Courts will, in
criminal matters, have jurisdiction over all charges arising in Turkey
against nationals of the other contracting countries, out of crimes,
offences or contraventions committed by them in Turkey, as well as
over charges arising out of acts committed by them in the territory of a
third State, and which, according to Turkish law, fall within the
jurisdiction of those Courts…”
[156] This proposal the terms of which, it should be observed in
passing, leave offences committed by a foreigner upon the high seas
and not upon the territory of a third State outside the limits of the
cases expressly provided for therein, induced the British Delegate, Sir
Horace Rumbold, to make a strong protest: he declared that it could
not be accepted; and his French and Italian colleagues added their
reservations in this regard to his. In view of this opposition Turkey did
not insist, and Article 15 was drafted in its final form. From the
absence of any reference in this article to the jurisdiction of the
Turkish Courts to take cognizance of crimes or offences committed by
foreigners on foreign territory, it therefore follows that no such
jurisdiction was recognized as being a rule of international law.
[157] Being unable to find any support for her claim in treaty law,
Turkey considerably enlarged the field of discussion; she had
recourse to the general principles of international law; she pleaded the
sovereignty of States upon which this law is based.
[158] Every State, she claimed, and Turkey herself from the time of
the annulment of the servitudes which have for so long been a burden
upon her international life, is ipso facto sovereign; this implies that she
can do as she thinks fit as regards persons or things unless a specific
provision in a treaty or an established custom in international relations
prevents her from so doing. This power is thus in its essence
unlimited, and it implies as regards the young Turkish Republic, if no
prohibition prevents its being exercised, [p43] an absolute right of
jurisdiction over the high seas, as well as over such of her nationals
as may be upon foreign territory as residents or as visitors, and even
over foreigners living abroad who may have been guilty of an offence
injurious to Turkey or to one of her subjects.
[159] In support of this contention and of the inferences which she
deduced therefrom especially in reference to the Lotus case,
Turkey .has also, with the aid of numerous quotations from authors
and judicial decisions, taken from the theory and practice of many
countries, brought forward a certain number of considerations or
systems which, in her view, demonstrate that the proceedings
instituted at Stamboul against the French officer Demons, and the
sentence which was rendered against him, not only did not
contravene any prohibition in international law, but were besides
entirely in conformity with the practice universally followed by States.
It was thus that she endeavoured to rest the jurisdiction of the Turkish
Court in this case upon the duty of protection which was alleged to be
incumbent upon every State as regards its nationals in foreign
territory; or upon the localization of the facts constituting the offence of
causing the collision, on the ship that was sunk; or finally upon the
principles followed in the legislation of many countries and by French
legislation in particular, relating to "connected" offences (infractions
connexes).
[160] Without entering at the present moment into the details of this
threefold argument which the Court has, moreover, taken care not to
endorse entirely, it will be sufficient for me to observe that the Turkish
Government, had it been quite certain that its contention was
supported by international law, would no doubt not have thought it
necessary to bring forward in addition more or less disputable reasons
and theories, which could only weaken the force of the contention
pleaded in its name, by revealing its weak points.
[161] The fundamental error of this contention is its endeavour to find
sources of international law in places where they do not exist.
International law is not created by an accumulation of opinions and
systems; neither is its source a sum total of judgments, even if they
agree with each other. Those are only methods of discovering some
of its aspects, of finding some of its principles, and of formulating
these principles satisfactorily.

[162] In reality the only source of international law is the consensus
[p44] omnium. Whenever it appears that all nations constituting the
international community are in agreement as regards the acceptance
or the application in their mutual relations of a specific rule of conduct,
this rule becomes part of international law and becomes one of those
rules the observance of which the Lausanne Convention recommends
to the signatory States.
[163] Among the foremost of these rules there is one which is
paramount and which does not even require to be embodied in a
treaty: that is the rule sanctioning the sovereignty of States. If States
were not sovereign, no international law would be possible, since the
purpose of this law precisely is to harmonize and reconcile the
different sovereignties over which it exercises its sway.
[164] Turkey also admits, as I have just stated, the principle of the
sovereignty of States, but she applies it beyond its due limits making
its action to be felt in a field which is outside its proper scope.
[165] By virtue of sovereignty such as we understand it, every State
has jurisdiction to sentence and punish the perpetrators of offences
committed within its territory; indeed, this is a question of public
security, and of public order, which a State cannot ignore without
neglecting its duty as a State, and one which arises whatever the
nationality of the delinquent may be.
[166] But, outside the territory, the frontier having once been
traversed, the right of States to exercise police duties and jurisdiction
ceases to exist; their sovereignty does not operate, and crimes and
offences, even in the case of those inflicting injury upon the States
themselves, fall normally outside the sanctioning force of their courts.
Extra territorium jus diceni impune non paretur.
[167] That is the principle upon which case-law in the United States is
based (see Cutting case) and which appears to have been sanctioned
by the Treaty of International Penal Law signed at Montevideo on
January 23rd, 1889, between the Argentine Republic, Bolivia,
Paraguay, Peru and Uruguay. Many other States in their international
legislation also admit the principle of the exclusively and absolutely
territorial character of criminal jurisdiction: that is the case in Great
Britain, and it was also the case for a long time in France: the right of
inflicting punishment, the Cour de cassation declares in its judgment
of January 10th, 1873 (Dalloz, 1873, I. 4I), is derived from the right of
sovereignty, which does not extend beyond the territorial limits. [p45]
[168] It is true that of late years new rules have penetrated into the
penal legislation of various countries. It is now, by a noteworthy
extension of territorial jurisdiction, readily recognized that a person
may be prosecuted before the courts of his own country for an offence
committed abroad either against a compatriot or against the
institutions, security or credit of the State of which he is a national.
(See especially Articles 5 and 7 of the French Code of procedure for
trial.) But this extension, which is not even always confined to
nationals, and which has, properly speaking, nothing to do with the
principle of the sovereignty of States in criminal matters, which it may
rather be said to contradict, is explained by special considerations
entirely irrelevant to the Lotus case, and this extension, to obtain its
full force and to become a rule of international law, would require, as
has been pointed out by the United States Department of State in its
report on the Cutting case, “the general consent of the nations or a
special convention”; moreover, the reasons of expediency on which it
is based are themselves very debatable in law.
[169] The criminal jurisdiction of a State therefore is based on and
limited by the territorial area over which it exercises sovereignty. This
is the principle, and it is an indisputable principle of international law.
[170] But what happens to this principle when the offence committed
takes place not on terra firma, which is subject to the sovereignty of
the State occupying it, but on the high seas outside the zone of
territorial waters over which it is generally held that a State exercises
rights of police and jurisdiction ? of August 2nd, 1926, and that it was the passengers and sailors of
[171] Here we come face to face with another and equally definite
68
principle of international law: the principle of the freedom of the high
seas. The high seas are free and res nullius, and, apart from certain
exceptions or restrictions imposed in the interest of the common
safety of States, they are subject to no territorial authority. Since,
however, it is impossible to allow free scope to all the enterprises and
attacks which might be undertaken against the persons and property
of those voyaging upon the seas, it has appeared expedient to extend
to merchant vessels on the high seas the jurisdiction of the authorities
of the State whose flag they fly. These vessels and their crews are
answerable only to the law of the flag, a situation which is often
described by saying, with more or less [p46] accuracy, that these
vessels constitute a detached and floating portion of the national
territory. The effect of this is to exclude, just as much as on the
national territory itself, and apart from certain exceptional cases, the
exercise of any jurisdiction other than that of the flag, and in particular
that of a foreign port at which a vessel may touch after the
commission of some offence on the high seas. (Rules drawn up at
The Hague by the Institute of International Law in 1908.)
[172] This principle has been fairly frequently applied in international
cases, especially in collision cases (see the precedent of the Costa
Rica Packet referred for arbitration to my illustrious colleague,
Frederic de Martens); and it would not appear that there is any reason
for not applying it in the case of the Boz-Kourt and Lotus. Assuming
that the destruction of the former vessel was the result of a wrong
manoeuvre, of an error in navigation, of an offence committed on the
high seas, for which Lieutenant Demons was responsible, it is the
national law, the law of the flag under which he was sailing, which
alone is applicable to him, since there is in this case no territorial law
or territorial sovereignty.
[173] The Turkish Government has not denied the jurisdiction of the
law of the flag as regards the repression of offences committed on the
high seas, especially in the case of collision between two vessels of
different nationality; it has not denied that the French Courts have the
right of convicting and sentencing Lieutenant Demons who was officer
of the watch on board the Lotus at the time of the collision, should his
guilt appear to them established. But the Turkish Government holds
that this jurisdiction is not exclusive. And it alleges various
circumstances arising in the particular case and various theories of
international law, with a view to showing that Turkey and its courts
possess concurrent rights of jurisdiction, in virtue of the general right
of sovereignty which Turkey assumes even outside her own territory.
[174] It has been argued by Turkey – but the judgment which has
been read does not go as far as that – that the jurisdiction claimed by
the courts of Stamboul in the Lotus case was justified by the right of
protection possessed by every State in respect of its nationals even
beyond its frontiers. Turkey contends that the fact that the offence
committed on the high seas by a foreigner should have injured some
of her nationals suffices to give her power and to make it her duty to
punish the offence. And this is precisely what happened in the [p47]
Lotus case. This system, which has found favour in the positive
legislations of some countries, is not in itself contrary to international
law, but it is outside the scope of international law: it does not in itself
constitute a principle of international law capable of overcoming the
principle of the freedom of the seas and that of the law of the flag
which is the corollary of the former. None of the legislative or judicial
evidence cited by Turkey in support of the right of protection of
nationals, establishes the existence of such a principle, and it is
moreover in contradiction with the rules consistently applied by courts
in maritime cases for the repression of crimes and offences committed
on the high seas and especially in collision cases. It will suffice for me
to allude in this respect to the arbitral award given by M. de Martens in
the case of the Costa Rica Packet, to which I have already referred.
[175] Other titles to jurisdiction, intended to support the argument
based on Turkish sovereignty, have been put forward by the
representatives of that country. They endeavoured to localize the
offence, which it was sought to punish, upon the vessel which
sustained the injurious result, that is to say on the vessel run down.
They argued that it was the Boz-Kourt which perished in the collision
that vessel who met their deaths. The offence therefore produced its
effects in the Boz-Kourt, i.e., according to the generally accepted legal
fiction, on Turkish territory. Consequently, it was quite natural that the
Turkish Courts, that is to say the territorial courts, should exercise
jurisdiction. The error here is clear and it has been fully brought out in
the famous decision given in the Franconia case by the British Court
for Crown Cases Reserved. In fixing the place where an offence has
occurred, it is not to the place where the offence, often contrary to any
reasonable anticipation, produces its injurious effects upon persons or
things, that attention must be directed, but solely to the place where
the punishable act has been committed and where the person
responsible for that act was at the time when it was committed; it is
there that the offence has really taken place.
[176] Now, in the case of the running down of the Boz-Kourt by the
Lotus, the errors of navigation, with which Turkey has charged the
officer of the latter vessel, and which may have led to the destruction
of the Turkish collier and to the loss of several lives, could only have
taken place at the spot where Lieutenant Demons exercised [p48] his
command, i.e. in the vessel responsible for the collision. He never set
foot on board the Boz-Kourt, and there is nothing to show that it was
on board the ship and not at the bottom of the sea, into which they
were no doubt immediately thrown by the force of the impact, that the
seamen and passengers perished.
[177] It is therefore on the vessel responsible for the collision and not
on the vessel run down that the disaster should have been localized, if
any importance were attached to such localization from the point of
view of jurisdiction; the law and jurisdiction of the flag under which
Lieutenant Demons sailed would then apply perfectly naturally. But
that is only a secondary consideration, which, in the case before the
Court, tends further to support the jurisdiction of the law of the flag.
[178] What makes the application on the high seas of the law of the
flag in respect of occurrences on board a merchant vessel essential,
is the fact that such a vessel is not directly subject to any territorial
sovereignty, but that on the other hand, regarding it as an extension of
territory, it constitutes an organized entity, subject to the discipline and
control of the State whose flag it flies, which State therefore is both
more qualified and has more interest than any other to ensure the
maintenance of order on board.
[179] The Turkish Government had finally endeavoured to link up the
proceedings taken against the French officer with a theory of
“connexity" (connexité), making these proceedings dependent upon
those taken in pursuance of Turkish law against the Turkish officer of
the Boz-Kourt; does not the close connection existing between these
two sets of proceedings taken as a result of one and the same act in
different countries, require indeed, in the interests of justice, that they
should come before the same judge? It is easy to reply, although the
Court has not seen fit to consider this question., that “connexity”
implying extension of jurisdiction only takes effect in relations between
two or more courts of the same instance, sitting within the boundaries
of the same State and that, according to an opinion unanimously held,
this conception is completely foreign to international relations, by
reason of the modifications which it would involve both as regards the
law applicable to offences alleged to be "connected" (connexes) and
the system of penalties which would be applicable to them.
"Connexity" (connexité) is a rule of internal convenience applicable in
those States which have included it in their codes of procedure ; it is
ineffective outside their frontiers. [p49]
[180] None of the various grounds advanced by Turkey in support of
her claim to jurisdiction – some of which have been held to be well
founded by the Court – therefore remain to authorize the penal
measures takn against the French officer Demons, in consequence of
the loss of the Boz-Kourt.
[181] Two principles of international law clearly emerge from the
controversial doctrine and contradictory judicial decisions which have
been invoked as authority by both Parties in the course of the
hearings:
1. First of all, there is the principles of the sovereignty of States in
criminal matters, not a universal, undefined, unlimited sovereignty
such as Turkey adduced, but a sovereignty founded upon and limited
by the territory over which the State exercises its dominion, that is to
69
say, territorial sovereignty.
2. Secondly, there is the principle of the freedom of the high seas,
including the application of the law of the flag which is its corollary.
[182] The Turkish Government, in proceeding against the French
Lieutenant Demons upon the basis of acts which had taken place
outside Turkish territory on a vessel flying the French flag has
disregarded those two fundamental principles of international law; it
has consequently acted in contravention of Article 15 of the Lausanne
Convention. And my conscience as a jurist and judge does not allow
me to subscribe to the approval bestowed upon its action by the
Court. [p50]
Dissenting Opinion by Lord Finlay
[183] This case arose out of a collision between the Lotus, a French
liner, and the Turkish steamer Boz-Kourt. It took place off Cape Sigri,
in Mitylene, not within territorial waters but on the high seas. The Boz-
Kourt was sunk and eight persons, sailors and passengers, were
drowned. The officer of the watch on board the Lotus was Lieutenant
Demons, and on the arrival of the Lotus at Constantinople, he was
arrested by the Turkish authorities and put on his trial on charge of
having committed an offence under Article 6 of the Turkish Penal
Code.
[184] That article is as follows:
«Quand un étranger commet contre un Turc en pays étranger un acte
susceptible d'entraîner pour son auteur, d'après les dispositions du
Code pénal turc, un emprisonnement de plus d'une année, cet
étranger sera jugé par les tribunaux et conformément aux lois pénales
de Turquie, s'il est trouvé sur le territoire turc.
«En pareil cas, les poursuites ne peuvent avoir lieu que sur la plainte
de la Partie lésée ou sur celle du ministre de la Justice. »
[185] We have not got before us the documents in the proceedings
before the Turkish Courts, but it is clear that Demons was charged
with having brought about the collision by his negligence and thereby
causing the death of the eight Turks who were drowned. He was
convicted and sentenced to fine and imprisonment.
[186] The French Government alleged that the proceedings in the
Turkish Courts were without jurisdiction, and by the compromis dated
October 12th, 1926, made between the French and the Turkish
Governments, the dispute was referred to the Permanent Court of
International Justice. Article 1 of the compromis is as follows:
«La Cour permanente de justice internationale sera priée de statuer
sur les questions suivantes:
«1) La Turquie a-t-elle, contrairement à 1'article 15 de la Convention
de Lausanne du. 24 juillet 1923 relative à 1'etablissement et à la
compétence judiciaire, agi en contradiction des [p51] principes du
droit international – et, si oui, de quels principes – en exerçant, à la
suite de la collision survenue le 2 août 1926 en haute mer entre le
vapeur français Lotus et le vapeur Boz-Kourt et lors de l’arrivée du
navire français à Stamboul, en même temps que contre le capitaine
du vapeur turc, des poursuites pénales connexes en vertu de la
législation turque, contre le sieur Demons, officier de quart à bord du
Lotus au moment de la collision, en raison de la perte de Boz-Kourt
ayant entraîné la mort de huit marins et passagers turcs?
« 2) ……………………………………………… . »
[187] The question for the Court is whether Turkey in this matter acted
in contravention of the principles of international law; in other words,
had the Turkish Courts Jurisdiction to try and convict Demons?
[188] Article 15 of the Convention of Lausanne provides that “in all
matters under reserve of Article 16 questions of judicial competence
shall, in the relations between Turkey and the other contracting
Powers, be regulated conformably to the principles of international
law”.
[189] This clearly refers to the general principles of international law in
the ordinary sense of the term and it applies to criminal as well as to
civil proceedings. Article 16 is for present purposes irrelevant.
[190] The question for the Court is one purely of criminal law. The
practice with regard to crimes committed at sea has been that the
accused should be tried by the courts of the country to which his ship
belongs, with the possible alternative of the courts of the country to
which the offender personally belongs, if his nationality is different
from that of the ship. There has been only one exception: pirates have
been regarded as hostes humai generis and might be tried in the
courts of any country.
[191] In the ordinary course any trial of Demons on a charge of having
by criminal negligence in navigation caused the sinking of the. Turkish
vessel by collision would have been held in a French court, as France
was his country as well as that of the flag of the ship. He was tried
and convicted by a Turkish court and according to Turkish law. [p52]
[192] The first point with which the Court has to deal is this: What is
the exact meaning of the question put in the compromis: La Turquie a-
t-elle agi en contradiction des principes du droit international ?
[193] It has been argued for Turkey that this question implies that
France, in order to succeed, must point to some definite rule of
international law forbidding what Turkey did. I am unable to read the
compromis in this sense. What it asks is simply whether the Turkish
Courts had jurisdiction to try and punish Demons; if international law
authorizes this, the question would be answered in the affirmative,
otherwise in the negative. The compromis. cannot, with any fairness,
be read so as to require France to produce some definite rule
forbidding what was done by Turkey. If the Turkish proceedings were
not authorized by international law, Turkey acted en contradiction des
principes du droit international. There is no mention of any "rule" but
only of "principles".
[194] The question is put in the compromis with perfect fairness as
between the two countries and the attempt to torture it into meaning
that France must produce a rule forbidding what Turkey did arises
from a misconception. The question is whether the principles of
international law authorize what Turkey did in this matter.
I. [Turkish Jurisdiction Argument No. 1]
[195] It was argued for Turkey that the délit committed by Demons
was committed on board the Boz-Kourt when by a faulty manoeuvre
of his she was struck by the Lotus, and as the Boz-Kourt was a
Turkish ship she must, it was said, be regarded as part of Turkish
territory and the délit was therefore committed. on Turkish territory as
much as if it had been committed on shore within the territorial limits
of Turkey.
[196] This is a new and startling application of a metaphor and, if it is
held good, it would mean that if there is a collision on the high seas
between a Turkish vessel and a ship of any other nationality, any of
the officers and crew of that other ship may be arrested in any Turkish
port and put on their trial before a Turkish court on a [p53] criminal
charge of having caused the collision by their negligence. This view
appears to be based on a misconception of the proposition that a ship
on the high seas may be regarded as part of the territory of the
country whose flag she flies.
[197] Turkey's case is that the crime was committed in Turkish
territory, namely, on a Turkish ship on the high seas, and that the
Turkish Courts therefore have a territorial jurisdiction. A ship is a
movable chattel, it is not a place; when on a voyage it shifts its place
from day to day and from hour to hour, and when in dock it is a chattel
which happens at the time to be in a particular place. The jurisdiction
over crimes committed on a ship at sea is not of a territorial nature at
all. It depends upon the law which for convenience and by common
consent is applied to the case of chattels of such a very special nature
as ships. It appears to me to be impossible with any reason to apply
the principle of locality to the case of ships coming. into collision for
the purpose of ascertaining what court has jurisdiction; that depends
on the principles of maritime law. Criminal jurisdiction for negligence
causing a collision is in the courts of the country of the flag, provided
that if the offender is of a nationality different from that of his ship, the
prosecution may alternatively be in the courts of his own country.
70
[198] The case seems to me clear on principle, but there is also
authority which points to the same conclusion.
[198] In the Franconia case (R. v. Keyn, 1877, 2 Ex. Div. 63), it was
argued for the Crown that there was jurisdiction in the English Courts
to try a charge of manslaughter on the very ground which we are now
considering.
[199] Keyn was in command of a German ship and by his negligence
he came into collision with a British vessel, the Strathclyde; the
Strathclyde was sunk and an English passenger on board her was
drowned. Keyn was found guilty of manslaughter at the Central
Criminal Court. The question of jurisdiction was argued in the Court
for Crown Cases Reserved. It was urged that there was jurisdiction in
the English Courts on the ground that Keyn had committed
manslaughter on board a British ship. The collision took place within
the territorial waters but this for present [p54] purposes is immaterial.
As Amphlett, J.A., said (page. 118 of the Report in 2 Ex. Div.), the
ground was quite independent of the three-mile zone and if valid
would justify the conviction of the prisoner, had the offence been
committed in the middle of the ocean. It was decided by eleven out of
the thirteen judges who formed the Court that the conviction could not
be supported on this ground.
[200] The point so decided is exactly the same as that which arises in
the present case. The decision was that the fact that death was
caused on board the British ship by the criminal negligence of the
captain of the foreign ship did not give jurisdiction to the English
Courts to try him on the criminal charge. This was the case of a
collision between a German and a British ship and on the face of it
raised a question of international law. By eleven judges to two it was
held that this did not give jurisdiction to the English Court. I do not
think it is correct to say that this raised only a question of English law.
As the ships were of different nationalities, the decision depended on
the principles of international law. International law, wherever
applicable, is considered as part of the law of England, and our judges
must apply it accordingly. It seems to me that it is not right to treat R.
v. Keyn as if it had been a decision merely on a question of English
municipal law. The judges cannot have overlooked the fact that they
were dealing with vessels of different nationalities and the decision
must have proceeded on the law applicably to such a case. The
decision of course proceeded upon the view which the English Court
took of the international law on the point, but it was international law
which they had to apply. The decision is not binding upon this Court
but it must be regarded as of great weight and cannot be brushed
aside as turning merely on a point of English municipal law. Some
expressions used by one of the two dissentient judges (Denman, J.)
might give rise on a hasty perusal to the idea that the case turned on
English law. These expressions occur on page 100 and page 101 of
the Report (ubi supra). The learned judge was discussing the
meaning of Section 22 of the Statute 4 and 5 William IV, Chapter 36,
giving jurisdiction tot he Central Criminal Court to try offences
committed on the high seas. He said: “This question appears to me to
turn mainly upon the question: where is the offence committed? And
in deciding this question I think we are bound to decide according to
the principles of English law.” He we on to say that one prin[p55]ciple
of English law is that a British ship as regards criminal offences
committed on board of her is to be treated as British territory, and as
much subject to our law as any other part of the Queen's dominions.
These expressions of Mr. Justice Denman do not appear to me to
have any relevance to the question of the law applicable in the case of
a collision between a British and a foreign ship.
II. [Turkish Jurisdiction Argument No. 2]
[201] Turkey however, has another ground upon which she contends
that there was jurisdiction. The judgment of the Permanent Court is
silent with reference to this point; as the Court was in favour of Turkey
upon the first point, - that with which I have been hitherto dealing, - it
was thought unnecessary for them to pronounce upon this further
point. But as I have the misfortune to differ from the conclusion at
which the Court arrived on the first point, it is necessary for me to deal
with this further point. We have had the advantage of very full and
most elaborate arguments upon it.
[202] Turkey asserts that the trial of Demons before the Turkish
Courts was justified by Article 6 of the Turkish Penal Code, above set
out, on the ground that Demons, by his negligent navigation of the
Lotus resulting in the collision and loss of Turkish lives, had been
guilty of an act which, by Turkish law when he came to Turkey,
rendered him liable to prosecution for it in the Turkish Courts
according to that article. It has by consent been assumed for the
purposes of the case that the collision off Cape Sigri was en pays
étranger within the meaning of the article and the question for us is
one of international law only.
[203] The passing of such laws to affect aliens is defended on the
ground that they are necessary for the “protection” of the national.
Every country has the light and the duty to protect its nationals when
out of their own country. If crimes are committed against them when
abroad, it may insist on the offenders being brought to justice, but
[p56] this must be done in the proper way and before tribunals having
jurisdiction. The government of the country of the injured person is
entitled to bring pressure to bear upon the government of the offender
to have him brought to justice, but it has no right to assert for this
purpose in its own courts a jurisdiction which they do not possess.
[204] The Law of Nations does not recognize the assumption of
jurisdiction for “protection”; there never has been any such general
consent by the nations as would be required to make this doctrine a
part of international law. Any State which finds it necessary to acquire
such a power should by convention get the consent of the other
States affected. Such a convention would of course have to define the
limits and conditions affecting the exercise of the power. A country is
no more entitled to assume jurisdiction over foreigners than it would
be to annex a bit of territory which happened to be very convenient for
it. Any such convention affecting the jurisdiction to try crimes by
negligence in navigation would of course require the most careful
consideration as to the definition of what .amounted to criminal
negligence for this. purpose. It would be extraordinary if it should
appear that jurisdiction had been conferred, leaving it to the court of
the country in each case to determine what was criminal negligence
for the purposes of such jurisdiction.
[205] I desire to refer to what was said by Mr. Oppenheim on this
subject of "Protection" (Vol. 1, "Peace", p. 239, paragraph 147):
"Many States claim jurisdiction and threaten punishment for certain
acts committed by a foreigner in foreign countries. States which claim
jurisdiction of this kind threaten punishment for certain acts either
against the State itself, such as high treason, forging bank-notes, and
the like, or against its citizens, such as murder or arson, libel and
slander, and the like. These States cannot, of course, exercise this
jurisdiction as long as the foreigner concerned remains outside their
territory. But if, after the committal of such act, he enters their territory
and comes thereby under their territorial supremacy, they have an
opportunity of inflicting punishment. The question is, therefore,
whether States have a right [p57] to jurisdiction over acts of foreigners
committed in foreign countries, and whether the home State of such
an alien has a duty to acquiesce in the latter's punishment into the
power of these States. The question, which is controversial, ought to
be answered in the negative. For at the time such criminal acts are
committed, the perpetrators are neither under the territorial nor under
personal supremacy of the States concerned. And a State can only
require respect for its laws from such aliens as are permanently or
transiently within its territory. No right for a State to extend its
jurisdiction over acts of foreigners committed in foreign countries can
be said to have grown up according to the Law of Nations, and the
right of protection over citizens abroad held by every State would
justify it in an intervention in case one of its citizens abroad should be
required to stand this trial before the courts of another State for
criminal acts which he did not commit during the time he was under
the territorial supremacy of such State.”
[206] This passage, in my opinion, is an accurate statement of the
international law applicable. Its value is not affected by the fact
referred to in the notes on page 240 that continental publicists have
thought otherwise; we are concerned with the question what
international law is, not what it ought to be.
71
[207] Mr. Oppenheim went on to refer to the case of Cutting, which
arose between Mexico and the United States in 1886, the facts of
which have been already stated in the course of the present
proceedings. Nothing was decided in the Cutting case and the
question of jurisdiction continued to form a subject of discussion
among jurists. In the British Year Book of International Law for 1925
there will be found on page 44 et sqq. an article by Mr. W. E. Beckett
on "The Exercise of Criminal jurisdiction over Foreigners", in which
the history of the controversy up to date is given.
[208] This Court never can have to consider whether “protection” of
this sort is or is not desirable. The question for the Court must always
be, in the absence of convention, simply whether it has been adopted
by the common consent of nations as a part of international law. As a
plain matter of fact, it appears to me [p58] that it has not yet been so
adopted. The Court, of course, could never allow itself to be entangled
in arguments for and against the theory. The question simply is
whether, by general consent, “protection” of this kind has become a
part of international law. If that question is answered in the negative,
as I think it must be, Article 6 of the Turkish Penal Code did not bind
France, and the jurisdiction of the Turkish Court to try Demons could
not be supported on this ground.
[209] Of course, every country has the right to protect the persons and
the property of its citizens. If a wrong is done, the State may demand
redress and enforce it, but the assertion that any State can by any law
of its own assume criminal jurisdiction in respect of alleged crimes
committed abroad or on the high seas is a new one. The government
of the country of the injured person may call, upon the government of
the country where the injury was committed to have the offenders
punished in due course by law, but it cannot make laws for their
punishment in its own courts, except in pursuance of a convention
with the other Power affected.
[210] In my opinion, both the grounds on which Turkey has tried to
support the conviction are unsound and France is entitled to the
judgment of this Court.
(Signed) Finlay. [p59]
Dissenting Opinion by M. Nyholm
[Translation]
[211] In order to reply to the question under consideration, it is
necessary in the first place to ascertain whether Turkey's action falls
within a domain governed by the Law of Nations and whether there
exists not only a principle but a rifle of the Law of Nations which would
thus represent the positive public law applicable to the particular case.
[212] In endeavouring to trace the general lines along which public
international law is formed, two principles will be found to exist the
principle of sovereignty and the territorial principle, accordance to
which each nation has dominion over its territory and – on the other
hand - has no authority to interfere in any way in matters taking place
on the territories of other nations. There exists between countries an
empty space over which no authority extends. In consequence of the
relations which owing to the exigencies of life must necessarily be
formed between nations, this empty space must be filled up by the
creation of rules fixing the method to be followed in order to treat
similarly, on the one hand, the material problems which arise
simultaneously and often in an identical manner in the different
countries, and, on the other, personal problems, namely the treatment
of individuals on foreign territory, which is actually the problem in this
case. As a method of regulating the relations between countries, in
the first place should be mentioned more or less universal
conventions concluded between States and serving to bridge over the
domain not subject to any regulation. Universal laws adopted by all
countries and having as their object the creation or the codification of
international law would constitute a solution of the problem, but they
do not exist and one can only endeavour to establish international law
by custom.
[213] The ascertainment of a rule of international law implies
consequently an investigation of the way in which customs acquire
consistency and thus come to be considered as constituting rules
governing international relations. A series of definitions tend to fix the
elements necessary for the establishment of an international custom.
There must have been acts of State accomplished in the domain of
international relations, whilst mere municipal laws [p60] are
insufficient; moreover, the foundation of a custom must be the united
will of several and even of many States constituting a union of wills, or
a general consensus of opinion among the countries which have
adopted the European system of civilization, or a manifestation of
international legal ethics which takes place through the continual
recurrence of events with an innate consciousness of their being
necessary.
[214] These different theories give a general idea of the necessary
conditions for the existence of an international law and they show the
necessity of some action ("acts", "will", "agreement") on the part of
States, without which a rule of international law cannot be based on
custom. This result is the consequence of the initial principle which
limits every State to its territory as regards the exercise of its right of
sovereignty and of its territorial jurisdiction, principles which have
been definitely recognized in international law. The present case,
which concerns the fact of a nation having extended its jurisdiction to
a foreigner in regard to acts committed by the latter in his own
country, supplies an example of an actual infringement of the principle
of territoriality. This infringement cannot be legalized by mere tacit
acceptance. Among nations consent must not merely be tacit, but, in
most cases, express, if the situation provided by the above example is
to be recognized as being authorized by public international law.
[215] Thenceforward it cannot be maintained - as the judgment sets
out – that, failing a positive restrictive rule, States leave other States
free to edict their legislations as they think fit and to act accordingly,
even when, in contravention of the principle of territoriality, they
assume rights over foreign subjects for acts which the latter have
committed abroad. The reasoning of the judgment appears to be that,
failing a rule of positive law, the relations between States in the matter
under consideration are governed by an absolute freedom. If this
reasoning be followed out, a principle of public international law is set
up that where there is no special rule, absolute freedom must exist.
The basis of this reasoning appears to be that it is vaguely felt that,
even outside the domain of positive public international law, the
situation of fact as regards relations between nations in itself
embodies a principle of public law. But that is a confusion of ideas. In
considering the existing situation of fact, a distinction should be drawn
between that which is merely an inter[p61]national situation of fact
and that which constitutes a rule of international law. The latter can
only be created by a special process and cannot be deduced from a
situation which is merely one of fact.
***
[216] From the application of the principles set out above the following
conclusions can be drawn. In the first place, two preliminary questions
must be dealt with, which would, if answered in the affirmative,
exercise a decisive effect upon the case.
[217] In agreement with the judgment, it must be recognized that
Article 15 of the Convention of Lausanne does not constitute a special
convention between France and Turkey. This provision is merely a
statement of a general application of international law. Another
question is raised by Turkey, who argues that the offence was
committed on Turkish territory, that is to say on the Turkish ship,
which, according to the accepted international law, constitutes a
floating extension of Turkish territory. Without going into the various
theories regarding offences producing their effect at a distance and
regarding the direct and indirect effect of such offences, it will suffice
to observe that this is in the main a question to be decided on the
merits of the particular case: Did the alleged offence really produce
the effects imputed to it, namely the death of a number of persons -
since the loss of the ship and of its cargo do not come into the
question - on board the ship run down? Turkey has produced no
evidence in the form of a maritime enquiry or otherwise, calculated to
establish precisely where death occurred; and in view of this
uncertainty as regards the establishment of the facts, since it is only
the Turkish ship which, by application of a legal fiction, is to be
72
regarded as Turkish territory, the Turkish contention is not made out
and we may pass to the consideration of the other aspects of the
case.
[218] The case concerns a collision on the high seas between a
Turkish ship and a French ship as a consequence of which, after the
arrival of the French ship in a Turkish port, criminal proceedings were
instituted against the French officer. The jurisdiction of the Turkish
Courts, which is disputed by France, seems to have been based on
Article 6 of the Turkish Criminal Code, which extends their jurisdiction
to cover certain acts committed abroad by a foreigner to the injury of a
Turk. [p62]
[219] The jurisdiction claimed by Turkey is an extension of the
fundamental principles of public international law which establish the
territorial system. Is such an extension admissible in collision cases?
To decide this point we must consider (1) the general situation
prevailing between States as regards criminal jurisdiction on land; (2)
the same situation as regards the high seas; (3) the case of collision
in particular.
[220] In so doing our starting point is the territorial principle which is
recognized as forming part of positive international law. Some
exceptions to this principle are also recognized, such as jurisdiction
over nationals for acts committed abroad. Is it possible to hold that an
exception is also made as regards acts which are committed by
foreigners abroad and by which a national is injured?
[221] The criteria for the establishment of a rule of positive law have
been indicated above. It is necessary to examine conventions, judicial
decisions and the teachings of publicists. From this examination, in
the course of which the voluminous data at the Court's disposal have
been considered, the details of which, however, cannot be set down
here, it follows that, as regards inter-State relations on land,
exceptions in respect of criminal law have not been recognized
generally or in a manner sufficient to establish a derogation from the
territorial principle which is strongly upheld by important nations. This
is proved by, amongst other things, the fact that a committee of
experts appointed to codify international law has set aside the
question of the extension of criminal jurisdiction, as not being for the
moment ready for solution.
[222] As regards the relations prevailing between States at sea, the
situation is more or less the same. International law recognizes that a
vessel is to be regarded as a part of the territory and as subject to the
jurisdiction exercised thereon. Cases of concurrent jurisdiction are so
rare that one is led to the conclusion that there is a tendency towards
recognition of exclusive jurisdiction. But, even as regards relations at
sea, this situation cannot be regarded as already established and as
thus constituting a principle of international law.
[223] As regards collision cases, they may be assimilated either to
relations on sea or to relations on land. Exclusive jurisdiction over a
ship is based on the idea that a ship on the high seas, which are, free
to all and are not subject to the authority of any particular [p63] nation,
must retain its exclusively national character. But in the case of a
collision between two vessels of different nationalities, it might
perhaps be said that, as regards relations between these two vessels,
the principle of exclusive jurisdiction at sea falls to the ground and that
a collision should be dealt with in accordance with the principles
applying to relations on land, since it is no longer a question of a
vessel at sea proceeding alone, the extraterritorial character of which
is derived from this circumstance, but of two vessels in contact just
like two nations on land.
[224] The result, however is the same under whichever head the case
of a collision be classified, since under neither is there as yet any
positively established international law. Consequently the same is true
as regards collision cases.
[225] It follows that the exception to the territorial principle which must
be established to provide a legal sanction for the exercise of
jurisdiction by Turkey and which forms the subject of the present
dispute, does not exist. It is impossible to hold with the judgment that,
over and above positive international law, there is a kind of
international law which amounts to this: that the absence of a rule
prohibiting an action suffices to render that action permissible, for not
only is it in most cases inadmissible thus to deduce permission from
the absence of a prohibition, but furthermore in the present case one
is confronted with the territorial principle, which is definitely
established, whilst the possible exception to it – and in particular the
exception which would be required to give Turkey criminal jurisdiction
in this case – are not.
[226] It follows from the foregoing that Turkey, by prosecuting
Lieutenant Demons, acted in contravention of the territorial principle
as established at the present time.
[227] It will, however, be well to remember that international law is
liable to continual variations and that there would seem to be a
tendency towards a relaxation in the strict application of this principle.
[228] Though therefore Turkey's action in this is not at present time
justified in law, on the other hand it cannot be regarded as aggressive
from a moral point of view.
[229] By establishing municipal legislation containing, amongst other
things, Article 6 of the Criminal Code, on which she based her action,
Turkey therefore has after all merely followed a tendency [p64] of
modern legislation, to which tendency, however, an important group of
nations are still opposed.
[230] It must therefore be concluded that Turkey - in this case - has
acted in contravention of the principles of international law. [p65]
Dissenting Opinion by Mr. Moore
[231] On the present judgment as a whole, the vote, as appears by
the judgment itself, stood six to six, and, the Court being equally
divided, the President gave, under Article 55 of the Statute, a casting
vote, thus causing the judgment as it stands to prevail. I was one of
the dissenting six ; but I wish at the outset to state that my dissent
was based solely on the connection of the pending case with Article 6
of the Turkish Penal Code, which I will discuss in due course. In the
judgment of the Court that there is no rule of international law by
virtue of which the penal cognizance of a collision at sea, resulting in
loss of life, belongs exclusively to the country of the ship by or by
means of which the wrong was done, I concur, thus making for the
judgment on that question, as submitted by the compromis, a
definitely ascertained majority of seven to five. But, as I have reached
my conclusions, both on the general question and on the point on
which I dissent, by a somewhat independent course of reasoning, I
deem it to be my duty to deliver a separate opinion.
[232] Under the compromis or special agreement signed at Geneva
on October 12th, 1926, France and Turkey have submitted to the
Permanent Court of International justice the question of "judicial
jurisdiction" (compétence judiciaire) which had arisen between the two
Governments as to whether Turkey had, contrary to Article 15 of the
Convention of Lausanne of July 24th, 1923, respecting her judicial
establishment (établissement) and jurisdiction, violated the principles
of international law - and, if so, what principles - by instituting against
the officer of the watch of the French steamer Lotus on her arrival at
Constantinople, as well as against the commander of the Turkish
steamer Boz-Kourt, criminal proceedings in pursuance of Turkish
legislation in respect of a collision between the two steamers outside
Turkish territorial waters, as the result of which the Boz-Kourt was lost
and eight Turkish sailors and passengers on that vessel lost their
lives. Should the answer be in the [p66] affirmative, the Court is asked
to decide what pecuniary reparation is due to M. Demons, the officer
of the watch, “provided, according to the principles of international
law, reparation should be made in similar cases".
[233] In presenting the case to the Court, neither of the Parties
furnished a copy, authenticated or otherwise, of the decision or
decisions of the Turkish tribunals or of the proceedings, including the
evidence, on which such decision or decisions were based. The Court
is not asked to review the proceedings of the Turkish tribunals or to
examine the question whether they were in conformity with Turkish
law. It is agreed that the collision took place about six miles from
73
Cape Sigri, or perhaps three miles outside Turkish territorial waters,
and the Court is asked to decide whether, by reason of the fact that
the place of the collision was outside such waters, Turkey violated
Article 15 of the Lausanne Convention and the principles of
international law in instituting criminal proceedings in pursuance of
Turkish legislation against the officer of the watch of the ship by which
the Turkish steamer was sunk and lives of Turkish sailors and
passengers were lost.
[234] I will consider, first, the question of the meaning and effect of
Article 15 of the Convention of Lausanne.
I. [Lausanne Convention]
[235] Article 15 of the Lausanne Convention reads as follows:
"En toutes matières, sous réserve de l'article 16, les questions de
compétence judiciaire seront, dans les rapports entre la Turquie et les
autres Puissances contractantes, réglées conformément aux
principes du droit international."
[Translation.]
"In all matters, under reserve of Article 16, questions of judicial
competence shall, in the relations between Turkey and the other
contracting Powers, be regulated conformably to the principles of
international law."
[236] Article 16 of the Convention, to the reservation of which Article
15 is subjected, relates to personal status, and has no bearing upon
the question now before the Court. [p67]
[237] The Preamble of the Lausanne Convention recites that the
contracting States desired to regulate conformably to the modern law
of nations (droit des gens moderne) the conditions of the
establishment of their respective citizens in the territories of the other,
as well as certain questions relative to judicial competence (ainsi que
certaines questions relatives à la compétence judiciaire).
[238] In the Case of the French Government, and in the oral
arguments made in behalf of that Government before the Court, it has
been contended that a limited interpretation should be given to Article
15 of the Lausanne Convention as regards the jurisdictional rights of
Turkey under international law, and this contention has been
supported by citations from the negotiations that led up to the
conclusion of the Treaty, but the passages cited do not in my opinion
have the effect which it is sought to ascribe to them. In so saying I am
not to be understood as expressing an opinion on the question
whether such evidence is admissible for the purpose of throwing light
upon the interpretation of treaties. The language of Article 15 is simple
and plain and does not stand in need of interpretation from any source
outside the terms of the Treaty itself. When Article 15 speaks of "the
principles of international law", it means the principles of international
law as they exist between independent and sovereign States. It
evidently was intended to recognize the right of Turkey to exercise her
judicial jurisdiction as an independent and sovereign State, except so
far as the exercise of national jurisdiction is limited by the mutual
obligations of States under the law of Nations.
II. [Violation of the Principles of International Law]
[239] I will next consider the broad question submitted under the
compromis as to whether Turkey violated the principles of
international law by instituting criminal proceedings in the present
case, and it is obvious that, under the interpretation I have given to
Article 15 of the Lausanne Convention, this question in effect is,
whether an independent State is forbidden by international law to
institute criminal proceedings against the officer of a ship of another
nationality in respect of a collision on the high seas, by which one of
its own ships was sunk and lives of persons on board were lost. [p68]
[240] The French Government maintains the affirmative in the case
before the Court. In the original protest presented by the French
Chargé at Angora on August 11th, 1926, against the criminal
prosecution of M. Demons, the ground was taken that, the collision
having occurred "outside the territorial waters and jurisdiction of
Turkey, the Turkish authorities have no competence to conduct any
penal prosecution whatever against the personnel of a French ship
exclusively justiciable for what takes place on the high seas (pour faits
survenus en haute mer) by the French Courts". The protest, therefore,
declares that M. Demons was "wrongfully arrested, and that he should
be brought before the competent French court for any proceedings
that might eventually be taken against him".
[241] To the broad denial thus made of the right of an independent
State, by means of criminal proceedings against persons voluntarily
within its territory, to protect its ships and the lives of those on board
outside territorial waters, against criminal acts committed and
consummated on such ships by the personnel of a ship of another
nationality, I am unable to give my assent, and in proceeding to
discuss the question, I will refer to certain elementary principles.
[242] 1. It is an admitted principle of international law that a nation
possesses and exercises within its own territory an absolute and
exclusive jurisdiction, and that any exception to this right must be
traced to the consent of the nation, either express or implied
(Schooner Exchange v. McFaddon (1812), 7 Cranch 116, 136). The
benefit of this principle equally enures to all independent and
sovereign States, and is attended with a corresponding responsibility
for what takes place within the national territory.
[243] 2. It is an equally admitted principle that, as municipal courts,
the creatures of municipal law, derive their jurisdiction from that law,
offences committed in the territorial jurisdiction of a nation may be
tried and punished there according to the definitions and penalties of
its municipal law, which, except so far as it may be shown to be
contrary to international law, is accepted by international law as the
law properly governing the case. (Report of Mr. Bayard, Secretary of
State, to the President, case of Antonio Pelletier, January 20th, 1887,
Foreign Relations of the United States, 1887, p. 606, and the
numerous authorities there cited; [p69] Wildenhus' Case, 120, U.S. 1.)
This principle is not contrary, but is correlative, to the principle laid
down in numerous decisions of municipal courts, that international law
is to be considered as forming part of the law of the land, that it is as
such to be judicially administered in all cases to which it is applicable,
and that municipal enactments ought not to be so construed as to
violate international any other construction is possible (Chief justice
Marshall, Murray v. Schooner Charming Betsey (1804), 2 Cranch, 64,
118; Sir William Scott, Le Louis (1817), 2 Dodson, 210, 239).
[244] 3. The principle of absolute and exclusive jurisdiction within the
national territory applies to foreigners as well as to citizens or
inhabitants of the country, and the foreigner can claim no exemption
from the exercise of such jurisdiction, except so far as he may be able
to show either:
(1) that he is, by reason of some special immunity, not subject to the
operation of the local law, or (2) that the local law is not in conformity
with international law. No presumption of immunity arises from the fact
that the person accused is a foreigner.
[245] 4. In conformity with the principle of the equality of independent
States, all nations have an equal right to the uninterrupted use of the
unappropriated parts of the ocean for their navigation, and no State is
authorized to interfere with the navigation of other States on the high
seas in the time of peace except in the case of piracy by law of
nations or in extraordinary cases of self-defence (Le Louis (1817), 2
Dodson, 210, 243-244).
[246] 5. It is universally admitted that a ship on the high seas is, for
jurisdictional purposes, to be considered as a part of the territory of
the country to which it belongs; and there is nothing in the law or in
the reason of the thing to show that, in the case of injury to life and
property on board a ship on the high seas, the operation of this
principle differs from its operation on land.
[247] The operation of the principle of absolute and exclusive
jurisdiction on land does not preclude the punishment by a State of an
act committed within its territory by a person at the time corporeally
present in another State. It may be said that there does not exist to-
day a law-governed state in the jurisprudence of which [p70] such a
74
right of punishment is not recognized. France, by her own Code,
asserts in general and indefinite terms the right to punish foreigners
who, outside France, commit offences against the "safety" of the
French State. This claim might readily be found to go in practice far
beyond the jurisdictional limits of the claim of a country to punish
crimes perpetrated or consummated on board its ships on the high
seas by persons not corporeally on board such ships. Moreover, it is
evident that, if the latter claim is not admitted, the principle of
territoriality, when applied to ships on the high seas, must enure solely
to the benefit of the ship by or by means of which the crime is
committed, and that, if the Court should sanction this view, it not only
would give to the principle of territoriality a one-sided application, but
would impose upon its operation at sea a limitation to which it is not
subject on land.
[248] There is nothing to show that nations have ever taken such a
view. On the contrary, in the case of what is known as piracy by law of
nations, there has been conceded a universal jurisdiction, under
which the person charged with the offence may be tried and punished
by any nation into whose jurisdiction he may come. I say "piracy by
law of nations", because the municipal laws of many States
denominate and punish as "piracy" numerous acts which do not
constitute piracy by law of nations, and which therefore are not of
universal cognizance, so as to be punishable by all nations.
[249] Piracy by law of nations, in its jurisdictional aspects, is sui
generis. Though statutes may provide for its punishment, it is an
offence against the law of nations ; and as the scene of the pirate's
operations is the high seas, which it is not the right or duty of any
nation to police, he is denied the protection of the flag which he may
carry, and is treated as an outlaw, as the enemy of all mankind –
hostis humani generis - whom any nation may in the interest of all
capture and punish. Wheaton defines piracy by law of nations as
murder or robbery committed on the high seas by persons acting in
defiance of all law, and acknowledging obedience to no flag
whatsoever (Wheaton's Elements, Dana's ed., 193 et seq.). Dana,
193, Note 83, commenting on this definition, remarks that, while the
attempted definitions of piracy are unsatisfactory, some being [p71]
too wide and some too narrow, the offence cannot be made to
embrace "all acts of plunder and violence .... simply because done on
the high seas", since as every crime may be committed at sea piracy
"might thus be extended to the whole criminal code". Hall says that all
acts of piracy by law of nations have one thing in common, namely,
that "they are done under conditions which, render it impossible or
unfair to hold any State responsible for their commission"; that a
pirate "either belongs to no State or organized political society, or by
the nature of his act he has shown his intention and his power to
reject the authority of that to which he is properly subject"; that, as the
"distinctive mark" of piracy is “independence or rejection of State or
other equivalent authority", it is not confined to "depredations or acts
of violence done animo furandi”, but that a satisfactory definition
"must expressly exclude all acts by which the authority of the State or
other political society is not openly or by implication repudiated". (Hall,
International Law, 8th ed. (1924), paragraph 81, зз. 310-311.)
[250] It is important to bear in mind the foregoing opinions of eminent
authorities as to the essential nature of piracy by law of nations,
especially for the reason that nations have shown the strongest
repugnance to extending the scope of the offence, because it carried
with it not only the principle of universal jurisdiction but also the right
of visit and search on the high seas in time of peace. For the purpose
of protecting ships on the high seas, we must therefore look to a
reasonable and equal interpretation and application of the principle of
the territoriality of ships.
[251] As affecting this principle, the case of John Anderson has been
cited and discussed in the present proceedings. It appears that
Anderson, an ordinary seaman on the American bark C.O. Whitmore,
in 1870, killed the first officer while the vessel was at sea on a voyage
from New York to Calcutta. On the arrival of the bark at Calcutta, the
American Consul-General sought to have the culprit detained, with a
view to his return to the United States for trial, but the local authorities
claimed jurisdiction of the crime on the ground that Anderson was in
fact a British subject. When advised [p72] of these facts, the Secretary
of State of the United States, in order that the case might not, as he
said, be admitted "as a precedent", instructed the Legation of the
United States at London to call attention to what he declared to be the
"universally recognized" principle that, as merchant vessels on the
high seas were under the jurisdiction of the nation to which they
belonged, their national tribunals had "exclusive jurisdiction" of
common crimes on board such vessels on the high seas, and to
represent that the "nationality of the accused" could "have no more to
do with the question of jurisdiction" than if the crime had been
committed "within the geographical territorial limits" of the nation
whose laws were violated. In the drafting of these statements, or
perhaps rather in the signing of them, the fact evidently was
overlooked that all nations to some extent punish their own citizens for
crimes committed within the geographical limits of other States, and
that the United States itself admits and exercises this right; and it is
not strange that the British Government, in its reply, called attention to
this fact. It turned out, however, that the colonial authorities at
Calcutta, in holding that the High Court of that place had jurisdiction of
the case, misinterpreted the Imperial Statute under which they
essayed to act, with the result that the British Government, on the
strength of an opinion of the Law Officers of the Crown that the trial
was a nullity, expressed regret that the extradition of the offender
should have been improperly refused and stated that there was no
design "to question the jurisdiction of the United States in this or any
similar case". (Foreign Relations of the United States, 1879, pp. 435,
436 ; 1880, p. 481, quoted in Moore, Digest of International Law, I,
932-935. See also Foreign Relations, 1887, pp. 754, 770, 779.) It is
evident that this case merely shows that a diversity of nationality, as
between the offender and the place of the offence, may give rise to a
concurrent jurisdiction. This is fully recognized in international law,
and does not materially affect the question before the Court.
[252] In considering the case before the Court, it should be observed
that the question of the proper jurisdiction of the offence of murder, or
manslaughter, where the injury is inflicted in one place or country, and
the victim dies in another place or country, has been much [p73]
discussed, and that different views of it have been taken at different
times, even in the same country. In England it was once held that
where a blow was struck in one county and death ensued in another
county, the criminal could not be tried in either. This impotent result
was due to the method of procedure, under which the grand jury could
know only what took place in its own county; and in order to remedy
the defect the Statute of 2 and 3 Edw. VI, c. 24, A.D. 1549, was
passed, to enable the criminal to be tried in either county. Whether, in
the case of different countries, where the blow is struck in one and the
death occurs in the other, both or either can try the person accused of
murder or manslaughter, as the case may be, has been decided
differently in different jurisdictions, the decision depending upon the
view taken by the court of the relation of the death to the infliction of
the injury. But it appears to be now universally admitted that, where a
crime is committed in the territorial jurisdiction of one State as the
direct result of the act of a person at the time corporeally present in
another State, international law, by reason of the principle of
constructive presence of the offender at the place where his act took
effect, does not forbid the prosecution of the offender by the former
State, should he come within its territorial jurisdiction.
[253] This question, as applied to ships of different nationality on the
open sea, was much discussed in 1877 by the judges in the case of
The Queen v. Keyn, L.R. 2 Exch. Div. 63, commonly called the case
of the Franconia ; but, before discussing this case and other judicial
decisions bearing on the question at issue, I will make one
observation on the position and effect of the decisions of municipal or
national courts in international jurisprudence. The Statute of the Court
(Article 38), after providing that the Court shall apply (1) international
conventions, whether general or special, establishing rules expressly
recognized by the States in controversy, (2) international custom, as
evidence of a general practice accepted as law and (3) the general
principles of law recognized by civilized nations, further provides that
the Court shall apply (4) "judicial decisions and the teachings of the
most highly qualified publicists of the [p74] various nations", as a
"subsidiary means for the determination of rules of law". These
directions merely conform to the well-settled rule that international
tribunals, whether permanent or temporary, sitting in judgment
between independent States, are not to treat the judgments of the
courts of one State on questions of international law as binding on
75
other States, but, while giving to such judgments the weight due to
judicial expressions of the view taken in the particular country, are to
follow them as authority only so far as they may be found to be in
harmony with international law, the law common to all countries.
[254] In the case of the Franconia, the captain of a German steamer
bearing that name was convicted in an English criminal court of
manslaughter for negligently sinking the British ship Strathclyde in the
open sea, but within the three-mile belt, with the consequent death by
drowning of a number of persons on board the latter ship. The case
was then carried before the Court for Crown Cases Reserved. In this
Court various questions were discussed, but only two need here be
mentioned. One, which may be called the main question, was whether
the offence, committed within the three-mile belt, could be punished
under British Law as it then stood; and to this question the Court,
consisting of thirteen judges, gave, by a bare majority of seven to six,
a negative answer. By this conclusion, it must be admitted that the
long established principle, with which the great names of Holt,
Hardwicke and Mansfield were associated, that international law, in its
full extent, was part of the law of England (Triquet v. Bath (1764), 3
Burrows, 1478; Emperor of Austria v. Day and Kossuth (1861), 2
Giffard, 628), suffered a temporary eclipse, while the rules of
municipal law governing criminal jurisdiction received an evidently
technical application. The sense of surprise, and indeed of
apprehension, with which the judgment was received by the bar and
the public, was expressed by Lord Cairns, then holding the high office
of Lord Chancellor, who, in presenting in the House of Lords the bill
by the enactment of which, under the title of the "Territorial Waters
Jurisdiction Act, 1878", the law as previously understood was
reestablished, declared that, while the question "at first sight"
appeared to be and no doubt was a question of law, [p75] "he rather
thought that it was a question of that which had been described as the
first law of nature - the law of self-preservation"; and, while remarking
that, but for the case of the Franconia, it would "hardly have been
necessary to detain their lordships by offering any observations", said
that it would have been "fortunate for the vindication of the law" if the
fact had been brought to the attention of the Court that by a warrant
published in 1848, under the Customs Regulations Act of that year,
the limits of the Port of Dover were declared to extend three miles out
to sea, thus covering the waters in which the Strathclyde was sunk.
Lord Selborne, a former Lord Chancellor, supporting the view of Lord
Cairns, stated that, until he read the judgment in question, "he had not
supposed that there was any doubt among lawyers" as to the
existence of the right of sovereignty over territorial waters (Hansard,
Parl. Debates, Vol. 237, 3rd series, pp. 1601-1616). Indeed, on a
careful study of the case, it is difficult to avoid the conclusion that the
vote of the majority was in no small measure determined by a
powerful, but composite and somewhat torrential opinion of eighty
pages delivered by Sir Alexander Cockburn, then Chief Justice of the
King's Bench, the disturbing effects of which it was necessary to
remove in order that the majestic stream of the common law, united
with international law, might resume its even and accustomed flow.
This was done by the Act of Parliament above mentioned which
declared that the "rightful jurisdiction" of Her Majesty not only
extended but had "always extended" over her coastal waters, and
made British criminal law applicable to all offences committed on the
open sea within a marine league of the coast measured from low-
water mark.
[255] The negative answer of the majority to the right of jurisdiction
over territorial waters led to the discussion, subsidiarily, of the
question whether, even though British law as such did not operate on
foreign ships within the three-mile belt, the British Courts might not
uphold the conviction on the ground that the offence was to be
considered as having been committed on a British ship and therefore
within British jurisdiction. An examination of the opinions of the judges
on this point, so far as they definitely expressed any, will show that a
mere count of hands would be altogether misleading, and that, taking
together [p76] their reasons and their conclusions, if certain principles
of law, now definitely established in England, had then been applied,
the conclusions would have been different.
[256] On the point subsidiarily discussed, Sir Robert Phillimore took
the view that, as the collision was caused by defendant's
"negligence", the act by which death was caused "was not his act, nor
was it a consequence immediate or direct of his act", and that, as he
"never left the deck of his own ship", or sent "any missile from it to the
other ship, neither in will nor in deed" could he be it “considered to
have been on board the British vessel". Had the offence been wilfully
committed on the British ship, the language and reasoning of the
learned judge lead to the conclusion that he would have voted to
sustain the conviction. Lindley, J., while citing the case of United
States v. Davis, 2 Sumner, 482, in which, in a case of manslaughter,
Mr. Justice Story, of the Supreme Court of the United States, held that
the offence was committed on board the ship on which the fatal act
took effect, said he was “not satisfied on this point” but preferred to
rest his judgment on the "broader ground" of jurisdiction over territorial
waters and the liability to punishment under English law of "all
persons, whether English or foreign, who recklessly navigate those
waters and thereby cause others to lose their lives".
[257] Denman, J., citing as "good sense and sound law", Coombes’s
case, 1 Lea Cr. C. 388, holding that a person standing on shore and
shooting another in the sea who died on board a ship was within the
jurisdiction of the Admiralty, declared that he saw no distinction in
principle between a fatal act committed deliberately and one
committed recklessly; that the defendant in so directing his ship "as to
cause her bow to penetrate the Strathclyde" and make a hole through
which the water rushed in, committed a "negligent act done within
British jurisdiction"; and that he felt bound to make the point clear,
because it was "of vast importance to the security of British seamen
and of persons of all nations sailing on British ships, and therefore
entitled to the protection of our laws, throughout the world". Lord
Coleridge, Chief Justice of the Common [p77] Pleas, declared himself
to be "though with some doubt", of the same opinion. On the strength
of Reg. v. Armstrong,13 Cox Cr. C. 184, the case would, he said, be
clear, if the offence had been murder; but he thought that "the same
rule should apply in manslaughter which applies in murder", and that,
on this point, "the conviction was right and should be affirmed". Grove,
J., having arrived at the conclusion that as the offence, "although
committed by a foreigner in a foreign ship", was "committed dehors
the vessel upon a British subject in the Queen's peace, within the
three-mile belt", the English Court had jurisdiction, said it was
unnecessary for him to give an opinion on the question whether the
offence was "committed on board of a British ship". Amphlett, J., who
also sustained the conviction on the ground of jurisdiction over the
three-mile belt, said that he could "find no authority" for holding that a
State could "punish a foreigner who at the time of the commission of
the offence was not within the territory and consequently not owing it
any allegiance", and that he therefore had, "with some doubt", come
to the conclusion that "a foreigner who committed the offence while he
was de facto outside the English territory", could not "be made
amenable to British law". Brett, J. A., thought that, as between the two
ships, the offence "was not committed on board of either", and that
"there was no jurisdiction therefore given in respect of a complete
offence committed locally within the British ship". Bramwell, J., took
the purely aqueous view that as the death, resulting from a wrongful
act on a Prussian ship, "was in the water", it could not be said to have
taken place on a British ship. Kelly, C. B., declaring that "not one
single instance" could be found "in the history of the world from the
beginning of time" of the exercise by a nation of "criminal jurisdiction
over the ships of other nations.... passing through the high seas
(without casting anchor or stopping) between one foreign port and
another", held that the right to arrest and try the defendant in England
could, in his opinion, no more exist than the right to seize and try in
England any foreigner for an act done in his own country .... which act
may happen to constitute a criminal offence by the law of England".
On the other hand, Sir Alexander Cockbum, in whose judgment
Pollock, B., and Field, J., concurred, broadly taking the ground, as
Bramwell, J., had done, that, unless the defendant, when the offence
was committed, "was on British territory or on board of a British ship,
he could not be properly brought to [p78] trial under English law, in the
absence of express legislation", held that the conviction could not be
sustained. He also questioned the right of the British Government,
under international law, to enact such legislation in respect of the
open sea even within the three-mile belt. Nevertheless, he declared
that, "if the defendant had purposely run into the Strathclyde", he
should, on the principle laid down in Coombes' case, "have been
prepared to hold that the killing of the deceased was his act where the
death took place, and consequently that.... the offence.... had been
76
committed on board a British ship". Whether this applied to "the
running down of another ship through negligence" was, he said, "a
very different thing, and may, indeed, admit of serious doubt". But he
found a greater difficulty in the fact that the defendant, at the time of
the occurrence, was corporeally, not on an English ship, but on a
foreign ship, and that a person who in one jurisdiction begins a
continuous act which extends into another jurisdiction "cannot himself
be at the time in both". Protection and "allegiance" being, as he said,
"correlative", he thought that a foreigner could be made amenable to
British jurisdiction only for acts done when he was corporeally "within
the area over which the authority of British law extends". He therefore
condemned and rejected, as "remarkable for much loose reasoning
and idle talk about the law of nature", the decision in the leading
American case of Adams v. The People, 1 Comstock (N. Y.) 173, in
which a citizen of the State of Ohio who, through the instrumentality of
an innocent agent, obtained money by false pretences in the State of
New York, was held to have committed the offence in the latter State,
and, being found there, was arrested, tried and punished. Mr. Justice
Lush "agreed entirely" in the conclusions and "in the main with the
reasons" of the Lord Chief Justice, but disassociated himself from the
expressions of doubt as to the right of Parliament, without violating
international law, to legislate as it might think fit for territorial waters.
But none of the learned judges questioned, on the contrary they
strongly emphasized, the full and equal applicability of the principle of
national jurisdiction to all ships on the high seas, in determining the
place, where an offence is committed. [p79]
[258] The principle laid down in Adams v. The People is now definitely
recognized and established in English law. The first step in this
direction was taken in 1884 in the case of a person who, by means of
false pretences, contained in letters written and sent by him from
Southampton in England to certain persons carrying on business in
Germany, had by that means induced persons carrying on business in
Germany to part with certain goods, some of which were delivered to
the prisoner's order at places in Germany and some at places in
England. It was contended on the part of the prisoner (1) that the
crime was committed in England by posting the letters there and (2)
that, as the preamble of the extradition treaty between Great Britain
and Germany referred to "fugitives from justice” the prisoner could not
be said to be a fugitive from Germany, as he had committed the crime
in England and had not been in Germany. The Court, however, held
unanimously, although with some doubt on the part of one of the
judges on the second point, that the crime was committed in Germany
and that the prisoner was a fugitive from justice within the definition of
that term given in Section 26 of the Extradition Act of 1870 and in the
treaty (Reg. v. Nillins, 1884, 53, L. J. 157). This decision, perhaps by
reason of its local novelty, was the subject of some adverse criticism
(Clarke, on Extradition, 3rd edition, p. 225), but it was reaffirmed and
followed only four years ago in another case in which the prisoner was
charged with obtaining goods by false pretences in Switzerland, the
pretences having been made in Switzerland by a partner at the
procuration of the prisoner in England. The prisoner was not
physically in Switzerland at the time when the pretences were made,
nor had he been there since. He was arrested in England. The case
decided by Lord Hewart, Lord Chief Justice, and Justices Avory and
Sankey. The Lord Chief Justice, after expressing the opinion that the
words of the treaty and the statute were [p80] “equally satisfied
whether the man had physically been present in that other country or
not, if he committed the crime there", said: "I do not differ in the
smallest degree from the decision in Reg. v. Nillins." Mr. justice Avory
said: "I think we are bound by Reg. v .Nillins, but in any case I am
prepared to follow it, notwithstanding the criticism to which it has been
subjected." Mr. Justice Sankey took the same view, saying: "I think we
are bound by that decision, and moreover, in my view it is correct."
[259] Had the principle laid down in Adams v. The People and since
established in England by Reg. v. Nillins and R. v. Godfrey been
established there prior to 1877, it is to be inferred that there would
have been in the case of The Queen v. Keyn a substantial majority in
favour of the jurisdiction in the case of death resulting from a wilful
collision and probably also in that of death resulting from a collision
caused by criminal negligence. In connection with the doubts
expressed by some of the judges in The Queen v. Keyn as to whether
a ship could properly be regarded as an instrumentality for the
commission of an offence, it will be observed that the Territorial
Waters Jurisdiction Act, in defining an "offence" by a "person",
expressly includes an act "committed on board or by means of a
foreign ship", and defines an "offence" as meaning "an act, neglect or
default of such a description as would, if committed within the body of
a county in England, be punishable on indictment according to the law
of England for the time being in force".
[260] That this principle embraces, not only acts done directly by
means of the ship itself, but also acts done by means of boats
belonging to the ship, was definitely held by the British Government in
the well-known case of the British Columblan schooner Araunah,
seized by the Russian authorities in 1888 outside territorial waters for
the unlicensed taking of seals within such waters. The schooner was
seized, probably six or more miles from the nearest land, by a
steamer belonging to the Alaska Commercial Company, an American
Corporation, but flying the Russian flag and having on board the
superintendent of the Commander Islands, and was taken, with her
officers and crew, to Petropau[p81]lovski, where she was condemned
on the ground that, even if she was not herself within Russian
territorial waters, she was taking seals there by means of her boats,
which were found fishing in such waters. Lord Salisbury, then
Secretary for Foreign Affairs, after consulting the Law Officers of the
Crown, instructed the British Ambassador at St. Petersburg that Her
Majesty's Government were "of the opinion that, even if the Araunah
at the time of the seizure was herself outside the three-mile limit, the
fact that she was by means of her boats carrying on fishing within
Russian waters without the prescribed license warranted her seizure
and confiscation according to the provisions of the municipal law
regulating the use of those waters", and that they did not, as at
present advised, "propose to address any further representation to the
Russian Government in regard to this case". (State Papers, vol. 92
pp. 1043-1059). This precedent was followed In subsequent cases of
a similar kind. (Parl. Paper, Russia, No. 3, 1893.)
[261] Recurring to the jurisdictional limitation sought to be based on
the distinction between murder and manslaughter, I will cite a leading
and pertinent decision which, although given nearly sixty years ago,
has not been internationally contested. I refer to the case of
Commonwealth v. Macloon et al., 101 Mass., 1, decided by the
Supreme Judicial Court of Massachusetts in 1869. In this case the
defendants, one a citizen of the State of Maine and the other a British
subject, were convicted in the Superior Court of Suffolk County,
Massachusetts, of the manslaughter of a man who died in that county,
in consequence of injuries inflicted on him by the defendants in a
British merchant ship on the high seas. The defendants were tried and
convicted under a Massachusetts Statute which provided that "if a
mortal wound is given, or other violence or injury inflicted, or poison
administered on the high seas, or on land either within or without the
limits of this State, by means whereof death ensues in any county
thereof, such offence may be prosecuted and punished in the county
where the death happens". (Gen. Stats., c. 171, par. 19) The decision
of the Supreme Judicial Court was delivered by Gray, J., later a
Justice of the Supreme Court of the United States, who, speaking for
the Court, stated that the principal question in the case was "that of
jurisdiction, which touches the sovereign power of the Commonwealth
to bring [p82] to justice the murderers of those who die within its
borders". It was not, he said, pretended that a foreigner could be
punished in Massachusetts for an act done by him elsewhere; but the
Court held that, where a mortal blow was given outside and death
ensued within the State, the offender committed a crime there. He
further said: "Criminal homicide consists in the unlawful taking by one
human being of the life of another in such a manner that he dies
within a year and a day from the time of the giving of the mortal
wound. If committed with malice, express or implied by law, it is
murder; if without malice, it is manslaughter .... The unlawful intent
with which the wound is made or the poison administered attends and
qualifies the act until its final result. No repentance or change of
purpose, after inflicting the injury or setting in motion the force by
means of which it is inflicted, will excuse the criminal. If his unlawful
act is the efficient cause of the mortal injury, his personal presence at
the time of its beginning, its continuance, or its result is not essential."
[262] In reality. the view that national jurisdiction, in the case of a
foreigner not corporeally present, depends on the will of the criminal
to commit his act within the particular jurisdiction is opposed to
77
authority and is obsolete and obviously fallacious, in the case of
manslaughter as well as in other cases. In the case of criminal
homicide, the element of will affects the question of the degree of the
offence and the penalty to be imposed rather than the question of the
place where the offence is to be considered as having been
committed. Manslaughter, as has been well said, may come within a
hair's breadth of murder; it may be a nice and difficult question to
decide, depending upon the presence or absence of “malice
prepense”, on considerations of recklessness, or of negligence, gross
or slight, all of which affect the quality of the act, but not the place of
its consummation. It is a notorious fact that, at common law, a
defendant indicted for a certain offence may be convicted of a
cognate offence of a less aggravated nature, if the words of the
indictment are wide enough to cover the latter, so that., on an
indictment for murder, a defendant may be convicted of manslaughter.
(Halsbury's Laws of England (1909) Vol. 9, p. 971, citing Mackalley's
case (1611), 9 Coke's Reports, 65 a., 67 b.) [p83] And yet, on the
theory that jurisdiction depends upon the will of the criminal as to the
place at which his act is to take effect, rather than upon the direct
result of his criminal activity, a person who, firing across a boundary,
killed his victim would, though validly indicted for murder in the place
where the shot took effect, be entitled to his discharge on jurisdictional
grounds if the jury should find that the killing was negligent. Such a
theory would lead to other astonishing consequences. For instance, a
person who placed an infernal machine in the pocket or in the
automobile of a person whom he intended to injure would be exempt
from punishment in the place where the injury occurred if his victim
should, before the explosion took place, unexpectedly cross an
international boundary. The fact may be mentioned that the master of
the Araunah alleged, in exculpation of the ship, that the small boats
unintentionally drifted into Russian territorial waters in a fog. It may be
that the British Government did not believe him, but, had his assertion
been credited, it is most improbable that that Government would have
advanced the contention that the schooner was exempt from seizure
because her boats were fishing in Russian waters negligently.
[263] The case of the Costa Rica Packet, so strongly urged in support
of the claim of exclusive jurisdiction of the country to which an
offending ship belongs, will upon examination be found to be
valueless as an authority for that contention. The Costa Rica Packet,
a British whaler, belonging to Sydney, New South Wales, sighted on
January 24th, 1888, when perhaps 30 miles from the nearest land,
what at first appeared to be a log, but was afterwards found to be a
small water-logged derelict prauw (native Malayan boat) of about a
ton's burden. Two boats were put off, which, finding goods aboard the
prauw, towed it alongside the ship, and there were then transferred
from the prauw to the deck of the Costa Rica Packet 10 cases of gin,
3 cases of brandy, and a can of kerosene oil. The prauw was then
cast loose, being of no value. The gin and brandy were damaged by
sea water; but the ship's crew, by indulging in the admixture, soon
became drunk and got to fighting, and the spirits were by order of the
captain thrown overboard, except a small quantity which the crew
secreted. During the next four [p84] years the ship from time to time
visited Dutch East Indian ports; but in November, 1891, at Ternate,
where the ship had put in for provisions, the captain was arrested and
sent to Macassar, 1000 miles away, on a charge of theft, in having
seized the prauw and maliciously appropriated the goods in it. The
warrant charged that the alleged criminal act was committed not more
than three miles from land, but the evidence showed that it was at
least fifteen or twenty. The captain was held in prison at Macassar
until November 28th, 1891, when he was released through the
intercession of the governor of the Straits Settlements. The British
Government preferred a diplomatic claim for damages, and, after a
prolonged discussion, the two Governments signed on May 16th,
i895, a convention of arbitration by which they agreed to invite the
government of a third Power to select the arbitrator. The selection
eventually fell to the Russian Government, which named as arbitrator
M. F. de Martens, counsellor to the Russian Foreign Office. In his
award, dated February 13th (25th), 1897, M. de Martens, after reciting
that the prauw, when taken possession of, not only was "floating
derelict at sea" but was "incontrovertibly outside the territorial waters
of the Dutch Indies"; that "the appropriation of the cargo of the
aforesaid prauw .... having taken place on the high seas, was only
justiciable by the English tribunals, and in nowise by the Dutch
tribunals"; that "even the identity of the above-mentioned derelict" with
the prauw claimed by a Dutch subject was "nowise proved", and that
all the evidence went to prove "the absence of any real cause for
arresting" the captain of the Costa Rica Packet, allowed damages for
his arrest and detention, and for the consequent losses of the ship's
owners, officers and crew. In his recitals the arbitrator also stated that
"the right of sovereignty of the State over territorial waters is
determined by the range of cannon measured from low-water mark",
and that "on the high seas even merchant vessels constitute
detached, portions of the territory of the State whose flag they bear,
and, consequently, are only justiciable by their respective national
authorities for acts committed on the high seas". As to the first recital,
it may be observed that the arbitrator's statement regarding the extent
of territorial waters, if it meant the range of cannon in 1897, was not in
conformity with international law as then or as now existing. The
second recital may be accepted as affirming the general'principle of
the quasi-territorial jurisdiction of [p85] nations over their ships at sea;
but it is also to be taken in connection with the arbitrator's other recital
that the prauw, when found, was "derelict". The word "derelict", in
maritime law, means "a boat or vessel found entirely deserted or
abandoned on the sea, without hope or intention of recovery or return
by the master or crew, whether resulting from wreck, accident,
necessity, or voluntary abandonment". (Black's Law Dictionary, 2nd
ed., 1910, s. v. "Derelict". See, to the same effect, Bouvier's Law
Dictionary and the cases there cited, and the Oxford Dictionary.)
[264] Without regard to any question as to the proper disposition of
goods found derelict at sea, and the right of the owner to claim them
on payment of salvage (The King v. Properly Derelic (1825), 1
Haggard's Adm. 383), it might not be unreasonable to maintain that,
on the facts as the arbitrator declared them to be, the principle of
territoriality and national jurisdiction could no more be invoked for the
protection of the derelict prauw than it could have been for the floating
log which the prauw was at first supposed to be; but, in order to
determine the weight to be given to what the arbitrator said as to the
operation of the principle of territoriality at sea it is not necessary to
decide that question. The prauw either was to be treated as a subject
for the application of the principle of national jurisdiction, or it was not
to be so treated. If the arbitrator considered the principle to be
applicable, he violated it in holding that the persons, no matter from
what quarter they came, who boarded the prauw, took possession of
her and transferred her cargo to the ship, did not in so doing place
themselves under the dominion of Dutch laws, and his ruling on this
point cannot be accepted as law. If, on the other hand, he did not
consider the principle of territoriality to be applicable to the prauw,
there was no room for jurisdictional competition, and his decision has
no bearing on the question now before the Court. [p86]
[265] I will next consider three cases discussed in the documents
before the Court and mentioned in its judgment. The first is that of the
collision between the ships Ange-Schiaffino and Gironde, in 1904,
tried by the French courts in Algiers. The collision took place 7 miles
off the Algerian coast, and the Gironde was sunk with loss of life. The
Correctional Court at Bône, by which the two captains, one of whom
was of Italian origin, were jointly tried for involuntary homicide,
overruled an exception to the jurisdiction of the Court based on the
ground that the collision occurred outside territorial waters and this
decision was affirmed on appeal by the Cour d'Alger. In the Turkish
Mémoire, the case is cited as relating to ships of different nationality,
one French, the other foreign; but in a letter from the procureur
général near the Cour d'Alger of May 6th, 1927, addressed to the
Agent of the French Government, it is stated that both ships were
French. The case therefore need not be further considered in this
place. (See Turkish Mémoire, pp. 15-17, 22-23, citing Clunet, Journal
du Droit international privé, vol. 36 (1909), p. 735 ; French Contre-
Mémoire, pp. 13, 15, 42.)
[266] The second case is that of the ships Ortigia and Oncle-Joseph,
one Italian and the other French, which collided on the high seas in
1880. The 0ncle-Joseph was sunk, with much loss of life. The
survivers from the Oncle-Joseph, including the captain, were taken on
the Ortigia to Leghorn, where the two captains were jointly prosecuted
for want of skill and failure to observe the rules of navigation. The
Court at Leghorn, finding that the collision was due to the fault of the
captain of the French ship, condemned him to four months’
imprisonment, two months' suspension of rank, and payment of
78
damages. This decision was affirmed on appeal by the Court of
Florence in 1882. Subsequently, however, the French Court of Aix
declined to enforce the judgment in France on the ground that, the
offence having been committed on the high seas, the captain of the
0ncle-Joseph was not justiciable by the tribunal at Leghorn, and that,
besides, the article of the Italian Code on which the prosecution was
based was exclusively applicable to Italian ships and sailors. It does
not appear that the case gave rise to diplomatic correspondence.
(See Turkish Mémoire, pp. 16-17, citing Clunet, 1885, p. 287; French
Mémoire, citing Clunet, [p87] 1885, p. 286, and Sirey, 1887, 2, 217;
French Contre- Mémoire, pp. 16, 21, 38.)
[267] In the third case, a tender, in tow of the German steamer
Ekbatana, on the night of December 14th-15th, 1912, ran into the
Belgian lightship West-Hinder, moored on the high seas about 19
miles from the Belgian coast. The West-Hinder was sunk, and her
crew of ten men perished. The Correctional Court at Bruges
entertained a criminal prosecution of the captain of the German ship,
on the charge of having negligently caused the death of the crew of
the West-Hinder. The case does not appear to have given rise to any
diplomatic representations. The Agent of the French Government,
however, lays emphasis upon the fact that the Belgian court in its
judgment refers to the lightship as having been installed by the
Belgian State in the interest of the safety of navigation, with due
notice abroad, and as having been entitled, both as an extension of
Belgian territory and as a ship engaged in the public service of the
State, to special protection and immunities. For this reason the Agent
of the French Government maintains that the case was not altogether
comparable with that of a Belgian commercial vessel from the point of
view of the competence of the Belgian Government to deal with facts
affecting it. (See Turkish Mémoire, pp. 18-21, citing Clunet, 1912, p.
1328; French Contre- Mémoire, pp. 17-21, with additional citations.)
But while it is undoubtedly true that public ships enjoy, not only at sea
but also in foreign ports, jurisdictional immunities to which a merchant
vessel is not entitled, it is necessary to point out that those immunities
are not considered as conferring on such ships, or on the countries to
which they belong, jurisdiction over the vessels, public or private, of
other nations on the high seas.
[268] In the discussion of questions similar to that now before the
Court, considerations of convenience have been invoked on the one
side and on the other. This was so in the case of The Queen v. Keyn,
where those who were against sustaining the conviction strongly
urged the inconveniences that might ensue from holding the entire
body of English penal law to be applicable to foreign ships in territorial
waters; and the force of the argument was recognized in the clause of
the Territorial Waters Jurisdiction Act, requiring, in the case of a
foreign prisoner a certificate by a Principal [p88] Secretary of State
that in his opinion the trial of the prisoner is expedient. Immense
quantities of shipping, bound from one foreign port to another, daily
pass, on their regular course, through, the territorial waters of third
States; and yet international law permits such third States to enforce
their municipal law upon such shipping. On the other hand, in the
case of many countries with long coast lines, a vast tonnage in the
coastwise trade daily passes, in regular course, in and out of the
three-mile belt ; and is it to be said that, save in the extreme and
exceptional case of piracy by law of nations, international law forbids
the country, to which this coastwise shipping belongs, to take
cognizance of criminal acts done in or upon it by or from foreign ships,
when it is temporarily outside territorial waters, should the offenders
afterwards voluntarily come within such waters? A collision may result
from chance, from negligence, or from a wilful act. By the rules of
navigation a ship is required to avoid a collision if it can do so, even
though the other ship is faultily navigated ; and a navigating officer
who, from anger or other cause, violated this rule, would, I assume,
be chargeable with something more than negligence. The importance
of such considerations is not lessened by the increase in the number
and size of the ships and the vast increase in the number of persons
daily transported at sea. Nor is the advantage of a trial near the scene
of a disaster, with witnesses on both sides available, over a
proceeding in a distant place, perhaps with the witnesses on only one
side present, to be overlooked. More than a hundred years ago a
great judge, of unsurpassed experience in Admiralty cases,
commented upon the "great discordance of evidence" frequently
existing in such cases as to the person at fault, and upon the fact that
the testimony of the witnesses was “apt to be discoloured by their
feelings and the interest which they take in the success of the cause".
(Sir William Scott, case of the Woodrop Sims (1815), 2 Dodson, 83.)
[269] It is well settled that a State is bound to use due diligence to
prevent the commission within its dominions of criminal acts against
another nation or its people (United States v. Arjona [p89] (1887), 120
U. S. 479), and if the principle of territorial jurisdiction, as it exists in
respect of ships on the high seas, has a special and one-sided
operation in favour of the nation to which the offending ship belongs,
one might expect to find a corresponding special liability. But this is
not the case. In the negotiation of the Treaty concluded between the
United States and Great Britain on February 29th, 1892, for the
arbitration of the fur-seal question, the United States proposed to
empower the arbitrators to award compensation not only to British
subjects whose vessels should be found to have been unwarrantably
seized, but also to the United States, for any injuries resulting to the
United States, or its lessees of the seal islands, by reason of the
killing of seals in Behring Sea, outside territorial waters, "by persons
acting under the protection of the British flag", if such killing should
"be found to have been an infraction of the rights of the United
States". (Blue Book, "United States, No. 3 (1892)", 72.) To this
proposal the British Government objected on the ground that it
appeared "to imply an admission on their part of a doctrine respecting
the liability of governments for the acts of their nationals or other
persons sailing under their flag on the high seas, which is not
warranted by international law, and to which they cannot subscribe".
The claim was not pressed, the discussion of it ending with the
insertion in the treaty of a stipulation to the effect that, the Parties
having been unable to agree on the point, either Party might submit to
the tribunal "any question of fact involved in said claims, and ask for a
finding thereon, the question of the liability of either Government upon
the fact found to be the subject of further negotiation”.
III. [Turkish Penal Code]
[270] I now come to Article 6 of the Turkish Penal Code. The
judgment of the Court expresses no opinion on the question whether
the provisions of that article are in conformity with the rules of
inter[p90]national law. This abstention appears to be based (1) upon
the fact that the article is not mentioned in the compromis, and (2) on
the view that an error in the choice of the legal provision applicable to
the case was essentially a matter of internal law which could affect
international law only so far as a conventional rule or the possibility of
a denial of justice should enter into account.
[271] The compromis asks the Court to find whether Turkey violated
international law "by instituting .... joint criminal proceedings in
pursuance of Turkish legislation" (en vertu de la Iégislation turque)
against the watch officer of the Lotus. No doubt this may be so
interpreted as to mean that the Court is asked solely to say whether
Turkey was precluded from taking any criminal proceedings whatever
against the officer. But the compromis speaks of proceedings under
Turkish legislation, and, although the Court has not been furnished
with a copy of the actual proceedings, Article 6 is, as an integral part
of them, before the Court in the documents submitted by the Parties,
and forms the subject of much of their arguments. This being so, I am
unable to concur in the view that the question of the international
validity of the article is not before the Court under the terms of the
compromtis.
[272] Article 6 reads as follows:
[Translation.]
"Any foreigner who, apart from the cases contemplated by Article 4,
commits an offence abroad to the prejudice of Turkey or of a Turkish
subject, for which offence Turkish law prescribes a penalty involving
loss of freedom for a minimum period of not less than one year, shall
be punished in accordance with the Turkish Penal Code provided that
he is arrested in Turkey. The penalty shall however be reduced by
one third and instead of the death penalty twenty years of penal
servitude shall be awarded.
"Nevertheless, in such cases, the prosecution will only be instituted at
the request of the Minister of Justice or on the complaint of the injured
Party.
79
"If the offence committed injures another foreigner, the guilty person
shall be punished at the request of the Minister of Justice, in
accordance with the provisions set out in the first paragraph of this
article, provided however that: [p91]
"(1) the article in question is one for which Turkish law prescribes a
penalty involving loss of freedom for a minimum period of three years;
"(2) there is no extradition treaty, or that extradition has not been
accepted either by the government of the locality where the guilty
person has committed the offence or by the government of his own
country."
[273] The Court, not being empowered by the compromis to inquire
into the regularity of the proceedings under Turkish law, or into the
question of the applicability of the terms of Article 6 to the facts in the
case, must take the article and its jurisdictional claim simply as they
stand. The substance of the jurisdictional claim is that Turkey has a
right to try and punish foreigners for acts committed in foreign
countries not only against Turkey herself, but also against Turks,
should such foreigners afterwards be found in Turkish territory. In
saying that Turkey makes this claim, I intend nothing invidious. The
same claim is made by a number of other countries, and it is from the
codes of these countries that Article6 was taken. But, without regard
to the source from which the claim was derived, I cannot escape the
conclusion that it is contrary to well-settled principles of international
law.
[274] Without entering at this time into an elaborate exposition of the
reasons on which this conclusion is based, I will quote from Hall, an
eminent authority on international law, the following passage:
"The municipal law of the larger number of European countries
enables the tribunals of the State to take cognizance of crimes
committed by foreigners in foreign jurisdiction. Sometimes their
competence is limited to cases in which the crime has been directed
against the safety or high prerogatives of the State inflicting the
punishment, but it is sometimes extended over a greater or less
number of crimes directed against individuals ... Whether laws of this
nature are good internationally; whether, in other words, they can be
enforced adversely to a State which may choose to object to their
exercise, appears, to say the least, to be eminently doubtful. It is
indeed difficult to see on what they can be supported. It would seem
that their theoretical justification, as against an objecting country, if
any is alleged at all, must be that the exclusive [p92] territorial
jurisdiction of a State gives complete control over all foreigners, not
protected by special immunities, while they remain on its soil. But to
assert that this right of jurisdiction covers acts done before the arrival
of the foreign subjects in the country is in reality to set up a claim to
concurrent jurisdiction with other States as to acts done within them,
and so to destroy the very principle of exclusive territorial jurisdiction
to which the alleged right must appeal for support." (Hall, International
Law, 8th edition (1924), paragraph 62, pp. 261, 263, citing Westlake
(Peace, 261-263), Appendices (1, paragraph 147), Fauchille,
paragraphs 264, 267.)
[275] It will be observed that Hall founds his disapproval of the claim
mainly on its assertion by one nation of a right of concurrent
jurisdiction over the territory of other nations. This claim is defended
by its advocates, and has accordingly been defended before the
Court, on what is called the "protective" principle; and the countries by
which the claim has been espoused are said to have adopted the
"system of protection".
[276] What, we may ask, is this system? In substance, it means that
the citizen of one country, when he visits another country, takes with
him for his "protection" the law of his own country and subjects those
with whom he comes into contact to the operation of that law. In this
way an inhabitant of a great commercial city, in which foreigners
congregate, may in the course of an hour unconsciously fall under the
operation of a number of foreign criminal codes. This is by no means
a fanciful supposition; it is merely an illustration of what is daily
occurring, if the "protective" principle is admissible. It is evident that
this claim is at variance not only with the principle of the exclusive
jurisdiction of a State over its own territory, but also with the equally
well-settled principle that a person visiting a foreign country, far from
radiating for his protection the jurisdiction of his own country, falls
under the dominion of the local law and, except so far as his
government may diplomatically intervene in case of a denial of justice,
must look to that law for his protection.
[277] No one disputes the right of a State to subject its citizens abroad
to the operations of its own penal laws, if it sees fit to do so. This
concerns simply the citizen and his own government, and no other
[p93] government can properly interfere. But the case is
fundamentally different where a country claims either that its penal
laws apply to other countries and to what takes place wholly within
such countries or, if it does not claim this, that it may punish
foreigners for alleged violations, even in their own country, of laws to
which they were not subject.
[278] In the discussions of the present case, prominence has been
given to the case of the editor Cutting, a citizen of the United States,
whose release was demanded when he was prosecuted in Mexico,
under a statute precisely similar in terms to Article 6 of the Turkish
Penal Code, for a libel published in the United States to the detriment
of a Mexican. It has been intimated that this case was "political", but
an examination of the public record (Foreign Relations of the United
States, 1887, p. 751 ; idem,1888, 11, pp. 1114, 1180) shows that it
was discussed by both Governments on purely legal grounds,
although in the decision an appeal, by which the prisoner was
discharged from custody, his release was justified on grounds of
public interest. In its representations to the Mexican Government, the
Government of the United States, while maintaining that foreigners
could not be "protected in the United States by their national laws",
and that the Mexican courts might not, without violating international
law, "try a citizen of the United States for an offence committed and
consummated in his own country, merely because the person
offended happened to be a Mexican", pointed out that it nowhere
appeared that the alleged libel "was ever circulated in Mexico so as to
constitute the crime of defamation under the Mexican law”, or "that
any copies were actually found .... in Mexico". The United States thus
carefully limited its protest to offences "committed and consummated"
within its territory ; and, in conformity with this view, it was agreed in
the extradition treaty between the two countries of February 22nd,
1889, that except in the case of "embezzlement or criminal
malversation of public funds committed within the jurisdiction of either
Party by public officers or depositaries", neither Party would "assume
jurisdiction in the punishment of crimes committed exclusively within
the territory of the other". (Moore, Digest of International Law, 11, pp.
233, 242.) [p94]
[279] For the reasons which I have stated, I am of opinion that the
criminal proceedings in the case now before the Court, so far as they
rested on Article 6 of the Turkish Penal Code, were in conflict with the
following principles of international law:
(1) that the jurisdiction of a State over the national territory is
exclusive;
(2) that foreigners visiting a country are subject to the local law, and
must look to the courts of that country for their judicial protection;
(3) that a State cannot rightfully assume to punish foreigners for
alleged infractions of laws to which they were not, at the time of the
alleged offence, in any wise subject.
(Signed)
B. Moore. [p95]
Dissenting Opinion by M. Altamira
[Translation]
[280] I regret that I am unable, to agree with the foregoing judgment. I
therefore consider it my duty both to the Court and to my conscience
to state the reasons which prevent me from subscribing not only to the
operative part but also to several of the grounds on which it is based.
I. [Principles of International Law]
[281] It is certain that amongst the most widely recognized principles
of international law are the principles that the jurisdiction of a State is
territorial in character and that in respect of its nationals a State has
preferential, if not sole jurisdiction. It is also certain that, arising out of
80
the very natural combination of these two principles, persistent and
well known efforts have been made to extend their field of application
beyond the purely geographical conception of territorial limits, by
causing them as it were to accompany, as a protecting shadow, the
persons of a State's nationals on their travels, in so far as has been
possible under the material conditions of international intercourse.
[282] Therefore, exceptions to these principles, in so far as they allow
a foreign jurisdiction to be exercised over the citizens of a given State,
have only been recognized in extreme cases where it has been
absolutely necessary or inevitable. This applies for instance to the
case of a general need of mankind or of a common danger (the slave
trade, piracy, etc.), and also to the want of conformity with the
territorial principle itself which would ensue were the jurisdiction of
other States not allowed to operate in the case of foreigners who
having entered the territory of such States in order to reside there for
a certain period and carry on their occupations there commit acts
bringing them within the arm of the law. But directly one of these
fundamental reasons fails to apply, the principle of the territorial
jurisdiction of the country of origin recovers its force. That is why I
should have much difficulty in recognizing as well founded an attempt
for instance on the part of a court, on the basis of a municipal law, to
exercise jurisdiction over a foreigner, who resided [p96] on board a
vessel flying the flag of his own country and did not land with the
intention of remaining ashore, and that for an alleged offence
committed outside the territory of the country which claimed to
exercise jurisdiction over him. Such an extension of the exceptions
hitherto accepted in respect of the principle of territorial and national
jurisdiction appears to me to be altogether unwarranted.
[283] There can be no doubt that exceptions of this nature must
necessarily be exceptions recognized by international law, that is to
say, they must have their origin in relations between sovereign States,
either in the form of a treaty or of international custom. It is not without
interest to observe here that a custom must by its nature be positive in
character and that consequently it is impossible to classify as a
custom the fact that in a certain respect there is a total absence of the
recurrence of more or less numerous precedents which are generally
regarded as necessary to establish a custom. The rule which it is
desired to discover must be positively supported by the acts which
have occurred, and, of course, as regards international law these acts
must also be international in character.
[284] It follows that the municipal legislation of different countries, as it
does not by its nature belong to the domain of international law, is not
capable of creating an international custom, still less a law. Of course
it may touch and in fact does in several respects touch upon legal
questions which affect or may affect other States or foreign subjects,
and thus it encroaches upon a domain which is practically speaking
international. But it cannot simply on this ground be held to possess a
character placing it on the same plane as conventions or international
customs.
[285] It may however be of considerable value in showing what in
actual fact is the opinion of States as concerns certain international
questions in regard to which States have not yet committed
themselves by means of a convention prohibiting them from enacting
a municipal law in conflict with the obligation assumed, or in regard to
which no custom recognized by States has so far been built up. It is
only in this way that it is legitimate to use municipal legislation and to
apply it for the purposes of a question like that under consideration. It
is of no value for any other purpose in connection with international
law, - unless it has been duly ascertained that general agreement
prevails, - because it only expresses the wish or [p97] intention of one
State in the form of a municipal rule representing the opinion of a
greater or smaller majority of the political community constituting a
nation. For these reasons it is of particular interest to ascertain
whether, - in cases where it has been sought, contrary to a general
principle of international law not established by convention or custom,
to impose such legislation in concrete form upon other States,- the
attempt, whether simply intended or actually carried out, has
encountered consent or protest on the part of the consensus of
opinion in the country affected. Leaving aside all difficulties of this kind
which are so general in character as to be too remote from the
category of questions to which the collision case under consideration
belongs and which would therefore be of little value as a basis for the jurisdiction must be exercised and which very much limit its effects. It
solution of the particular question before us, I will begin by saying that, is but seldom that, on this hypothesis, jurisdiction over foreigners in
within the limits of the precedents considered by the Parties, what I respect of offences committed abroad is claimed in general terms
find in general is either that there has been protest against the without even formal limits or with limits such as that represented b a
exercise of any jurisdiction other than that of the nation of the person minimum penalty, which only very remotely correspond to the
alleged to be responsible or of the flag under which he sails, or else question of jurisdiction arising under international law.
that this principle of the flag has been applied.
[292] As regards the categories of disputes contemplated by the
[286] An analysis of these precedents produces the following result: exceptions and to which I alluded just now, it may readily be observed
that for the most part these comprise offences against the State itself.
I. Cases where governments as such have protested Again, it seems to me that even when an exception to the territorial
1. Cutting's case. - 2. Léon XIII. principle has been extended to cover offences against individuals by
II. Cases where the protest has been made by the local courts or application of the principle of the protection of nationals (which is the
authorities of the State of the person convicted. principle which is most likely to come into conflict with the territorial
1. Ortigia- Oncle-Joseph. - 2.Hamburg. principle), the municipal legislation in question has been visibly
III. Cases where a State, through either its government or a tribunal, designed to cover offences properly so-called - i.e. those in which evil
has recognized in the particular case the prior claim of the jurisdiction intent and perversity constitute the outstanding characteristic - and
of the flag of another State. especially more serious offences constituting crimes (as regards
1. Costa Rica Packet. - 2. Franconia. - 3. Créole. - 4. The Bordeaux offences of violence), as well as certain offences of a financial
judgment. - 5. The Santiago de Chile judgment. - 6. The judgment of character in which the circumstances characteristic of the category of
the Court of Appeal of Turin (1903). offences producing their effects at a distance (délits á distance) are
present. I cannot believe that the legislations of which I am now
[287] In spite of the differences in character which these ten cases speaking have ever been really intended to apply to every kind of
represent from other points of view, it will be found that they all agree offence, even the smallest and most unintentional.
in that they invoke, or recognize (which is the same thing), the prior or
exclusive claim of the law of the flag as regards certain acts done on [293] I fully realize that a limit as regards the seriousness of offences
board a ship. It is only for this reason that they are cited here ; and the has been fixed in the case of some of the most advanced legislations,
very diversity of the questions of jurisdiction [p98] which they concern by means of stating the minimum penalty applicable to the offences
only serves to affirm the importance of the principle which unites contemplated. But it is very rare to find in such legislations at the
them. There are certainly cases with a contrary tendency such as the same time a limit fixing the lowest penalty applicable and a complete
Bruges or West-Hinder case, but of all those cited the majority are absence of conditions of form, such as default of extradition or need
certainly in favour of the principle indicated above. for a special order from the Head of the State [p100] or other similar
conditions. In other words, even in the case of the most far-reaching
[288] It must also be admitted that there are only two cases where legislations as regards the extension of jurisdiction to foreigners for
governments themselves have protested; but I do not see that it is offences committed abroad, the States concerned have not ventured
necessary, for the purposes of the present question, that governments in most cases simply to formulate their claim without limiting its scope
should always be the mouthpiece for the expression of a legal opinion in any way.
prevailing in a country. The small number of protests by governments
can in my opinion be easily explained. It is due firstly to the [294] I have prepared a table of the municipal legislation of a number
infrequency of the occasions on which encroachments upon of countries which, subject to the existence of unnoticed errors, would
jurisdiction have actually occurred, judging from the cases known and be as follows:
cited by the Parties. It is due above all to the frequency with which
governments (and especially those of some countries) have shown I. Legislation in general terms of wide scope.
themselves insensible to the injury sustained by their subjects as a
result of occurrences abroad. Almost every country has a long and [295] 1. Italy. - 2. Turkey. - 3. China. - 4. Mexico. It is to be noticed
unhappy experience in this connection. Either from indolence or from that the terms used in these four cases are not equally stringent.
anxiety to avoid diplomatic complications or for other reasons, political Apart from other differences which might be mentioned, there are
rather than legal, governments often refrain from openly protecting differences as regards the minimum penalty necessary to bring
their subjects and only make up their minds to do so when things jurisdiction into play.
have developed into a public scandal, or when the injured persons
have made great and persistent efforts to attract the attention of [296] To the four cases above mentioned might perhaps be added the
political circles in their country. Failing such intervention by legislation of Brazil and Uruguay, subject to certain questions of
governments, sometimes municipal courts have intervened and interpretation raised by the terms used, which there is no object in
certainly no one will refuse to recognize these as officially discussing for the moment. The German draft Of 1913, like the laws of
representing the legal opinion of their country. the four countries above mentioned, employs general terms of wide
scope.
[289] Again, some of the cases cited under No. III, though in a form
other than that of a protest for which there was no occasion, have the II. Legislation defining the categories of offences in the case of which
same essential significance as those set out under No. I. jurisdiction is to be exercised over foreigners for offences against
individuals committed abroad.
[290] In view of the foregoing, I have a very strong hesitation to admit,
as a matter of course, and as subject to no doubt, exceptions to the [297] 1. Argentine, Article 25. The wording appears comprehensive,
territorial principle (in the application of that principle to the present but in reality there is a very definite limitation. - 2. Belgium. - 3. Japan.
case), exceptions which it is sought, simply by the will of one State, to
extend beyond the limits of those hitherto expressly agreed to in III. Legislation making the possibility of Prosecution dependent on
conventions, or tacitly established by means of the recurrence of certain conditions which limit its application.
certain clearly defined and undisputed cases in the majority of
systems of municipal law. [p99] [298] (a) The offence to be one f or which extradition may be
demanded: 1. Switzerland. - 2. Sweden (draft). - 3. The Lima
[291] In regard to criminal law in general, it is easy to observe that in Proposals.
municipal law, with the exception of that of a very small number of
States, jurisdiction over foreigners for offences committed abroad has [299] (b) The prosecution of the offence in question to be ordered by
always been very limited: It has either (1) been confined to certain the Head of the State or by law: 1. Finland. - 2. Norway. - 3. Sweden
categories of offences ; or (2) been limited, when the scope of the (law in force). - 4. Germany (as regards contraventions). - 3. Austria
exception has been wider, by special conditions under which (draft). [p101]
81

[300] (c) Extradition to have been asked for but refused (that is to say,
it must have been possible): Bulgaria (the minimum penalty under
Bulgarian legislation is imprisonment).
IV. Legislation very vague in its terms.
[301] Germany (draft proposal); § 6 contains the apparently
conditional phrase "may be prosecuted".
V. Legislation not conferring jurisdiction over offences against
Individuals.
[302] 1. Germany (as regards crimes and offences as opposed to
simple contraventions). - 2. United States. -3. Spain. - 4. France. - 5.
Great Britain - 6. Netherlands. - Paraguay. - 8. Dominican Republic. –
9. Siam
[303] To these Denmark might be added, subject to the interpretation
of the phrase "port of register" (port d'attache) in § 3. Also Egypt,
subject to the interpretation of Rule 4. I have not included in this list
the legislation of Soviet Russia or Monaco or the Polish draft
proposals because the classification of these in one of the above five
groups is, in my opinion, very much open to doubt and because with
information available to us it would be rash to come to any conclusion
concerning them.
* * * presume the existence of any rule in favour of the unlimited freedom
[304] The examples considered - both those belonging to international
law and those which, whilst being derived from municipal law, relate to
situations concerning foreigners and acts committed abroad - tend to
show the existence of a predominent conception and intention in this
field of criminal law which concerns cases of an international
character. This conception and intention are undoubtedly opposed to
simply allowing the application of municipal law which, by claiming too
wide a scope, comes in conflict with the territorial principle which
protects the rights of the citizens of each State, and seeks to go much
further than the exceptions held to be acceptable by the majority of
States.
[305] Of course, every sovereign State may by virtue of its sovereignty
legislate as it wishes within the limits of its own territory ; but [p102] it
cannot, according to sound principles of law, in so doing impose its
laws upon foreigners in every case and without making any distinction
between the various possible circumstances as regards the place
where the offence has been committed, the nature and seriousness of
the offence, the special conditions under which a foreigner may
happen at a given moment to be within reach of the authorities of a
foreign country on the territory of which the offence of which he has
been accused was not committed, and other conditions besides.
II. [Freedom to Impose Laws]
[306] But even admitting hypothetically the absence of a principle of
international law express or implied, which would have been infringed
by the manner in which the Turkish authorities acted as regards
Lieutenant Demons, I am unable to discover any grounds for altering
my view. And the following is the reason.
[307] The contention of those who held the contrary view - which we
are now going to examine – may, if I am not mistaken, be summarized
as follows : Since no principle exists establishing the exclusive
criminal jurisdiction of the law of the flag in cases of collision upon the
high seas, we are faced with two concurrent jurisdictions.
Consequently, each of these jurisdictions may take effect within the
limits of its natural sphere of operation - namely within its own
territorial area - upon foreigners who are there and may also therefore
apply to them such municipal law as each State may have adopted by
virtue of that freedom which no other principle of international law
prevents them from exercising in this respect.
[308] It is not irrelevant to remark in passing that all or almost all
principles of international law have the common characteristic of not
being invariably exclusive in character. There is no more reason for
82
mentioning or considering this characteristic in reasoning in relation to
the principle of territoriality or of the flag than in relation to the
principle of protection. If one accepts, as is necessary, the exceptions
to the first two, it must also be admitted that the third, like all such
principles, must have exceptions and must undergo restrictions in its
competition with the others. Consequently the fact that, generally
speaking, a principle is not exclusive in character does not involve the
consequence that it can never be so when confronted by another
principle, and still less in relation to a municipal law. [p103]
[309] But, to return to the exception which has been suggested to the
principle of the flag - which is only another aspect of the principle of
territoriality - the question must be put whether it can come into play in
the case now before the Court in the way indicated above according
to the view I am discussing. I do not think so. In my, opinion, the
freedom which, according to the argument put forward, every State
enjoys to impose its own laws relating to jurisdiction upon foreigners is
and must be subject to limitations. In the case of competing claims to
jurisdiction such as those in question (according to those who
recognize the existence of such competition), this freedom is
conditioned by the existence of the express or tacit consent of other
States and particularly of the foreign State directly interested. As soon
as these States protest, the above-mentioned freedom ceases to
exist, and, subject to the result of the investigation of the dispute
which has so arisen, any acts which were done in pursuance of such
freedom lose the legal basis which they might otherwise have
possessed. It is impossible to create an international custom, or to
of each legislation as regards foreigners, and binding on all other
States, except within the same limits and subject to the same
conditions as any other international rule or custom. The necessity for
consent is just as much a fundamental principle of international law,
which is entirely based on the will of States, as the principle of the
protection of nationals or of the freedom to legislate internally.
Consequently, the consent of the interested State must be requisite in
every case belonging to the category I am row considering and a
fortioti, its express dissent must be taken into account. If, as in the
present case, the latter alternative takes place, the competition in the
claims to jurisdiction cannot legitimately have the effect of favouring a
claim which has been protested against and which, moreover, would
not be in harmony with the preponderating opinion of most States in
regard to the kind of cases contemplated according to what has been
shown above. To accept the contrary view would, in my opinion, be to
neglect one of the fundamental conditions of the international
community and would result in opening the door to continual conflicts
which might involve most undesirable consequences.
[310] Such a result being, in my opinion, inadmissible from the point of
view of international law and of its essential aims which are the [p104]
establishment of reciprocal good relations between States, the causes
which would produce that result cannot be sanctioned. Any decision
leading to the establishment of a system of unrestricted freedom in
States which would lead to the consequences I have just outlined,
would therefore be very serious. Even where a very circumscribed
and particular case was concerned, there would, in such a conclusion,
be a risk of giving rise almost inevitably to dangerous constructions
and applications. In spite of all the provisoes that might be added, it
would be very difficult, I think, in view of the shifting ground upon
which the case rests, to prevent the decision being construed in a
manner going beyond its underlying intention.
[311] For all these reasons, I am led to conclude that a State which,
under the circumstances of the Lotus case, acts so as to impose, by
virtue of the principle of the admitted freedom in internal legislation,
and in disregard of the principle whereby consent is requisite, further
exceptions to another principle, in this particular case the principle of
territoriality, will have acted in contravention of international law.
III. [Human Rights]
[312] Outside the particular sphere of this law, but still within the
sphere of human rights (the law of Nature), I find other grounds for
being unable to accept the sanctioning of the rule of absolute
freedom. These grounds are derived from what, in my opinion,
constitutes the basis of the whole social legal system: respect for the
rights of the individual. This respect takes precedence of everything
else. If it is absent, everything else falls to the ground and ceases to
have any juristic foundation. Now, it is undoubtedly true that a failure
to respect such rights takes place in many cases through the fact of
constraint being imposed upon a man, particularly if he is not a
criminal, to submit to the effects of laws which are not those of the
community to which he belongs, of laws which he does not know and
which are applied in his case by entirely foreign judges by whom he
cannot make himself understood, except, in the most favourable
conditions, through a third person, because he does not know their
language, their legal mentality, the forms of procedure they employ,
etc. [p105]
[313] In all periods of history, men have considered the application of
their own laws and of their own national procedure and the
submission of their judicial affairs to judges speaking their own
language and having their own nationality, to be just as important a
pledge of their rights as is in quite another respect the due
appreciation of the particular circumstances surrounding the facts
under consideration, which very often lead to the mitigation of the
punishment prescribed in principle. Those who belong to nations in
which more than one language is spoken and in which more than one
legal system is recognized as valid by the courts, are well aware of
the great weight which is sometimes attached to the fact that they are
amenable to one court rather than to another. On many occasions this
subject has been amongst the most pressing claims of the various
regions and groups of the complex population of the countries to
which I refer.
[314] It goes without saying that I do not mean to allude, as I have
already said, to cases in which an individual has voluntarily changed
his residence in order to go to a country other than his own with the
intention of remaining there for a more or less protracted period, in full
knowledge of the fact that this action will have the effect of subjecting
a great number of his actions to a new law. Nor, again, do I refer to
the cases comprised within the clearly recognized exceptions to the
principle of territoriality, which are well founded upon the requirements
of public order and justice. But I am unable conscientiously to accept
or to lend my support to any action leading to the acceptance of a
constraint of the kind described a little earlier, and in which Lieutenant
Demons' case is included. And do not let us forget that the question
before us is not that of the punishment of an offence which a collision
might result in, but that of the competence of the Turkish tribunal to
hear the case, that is to say, a question relating to jurisdiction. We
have not to solve the problem of the necessity at law for a more or
less severe punishment of the material results of an involuntary
collision, nor the difference in this respect between the offence,
considered subjectively, and its consequences as regards other
persons or other things, but purely a problem of determining
jurisdiction in accordance with the fundamental principles of
international law.
[315] In the same order of thought but from another point of view, I
find equally menacing to the rights of man the claim to apply [p106]
the same rules as might be fair in the case of most true offences, to
an involuntary offence even if its injurious effects went so far as to
cause the death of a man. The incompatibility of such application with
the rights to which I have just referred is still greater when the alleged
act arises from a mistake, which, as is frequently the case in
collisions, has not perhaps been committed by a single person on
board one of the vessels, but by different persons on board both ships
in collision. What I am unable to accept in this case is the application
of jurisdictional rights which would result in the jurisdictional constraint
which I have described. In my view international law in order to be real
law must not be in contradiction with the fundamental principles of
legal order, one of which necessarily is the rights of man taken as a
whole. I am convinced that every time that a result of this nature is
reached, one is faced with something wanting in regularity, which
should be rejected.
IV. [Development of a Customary Rule]
[316] Before concluding, I should like to bring forward some
considerations which deal with a very important matter as regards the
functions of the Court. I am convinced that the problem of the
83
exceptions to the principle of territoriality in regard to criminal
jurisdiction in collision cases as it stands at present - particularly in
regard to collisions with no criminal intent - offers a sufficient number
of elements to enable one to conclude that to act in the manner in
which the Turkish authorities have done in the Lotus case is contrary
to the intention underlying the exceptions to this principle which have
been agreed to, or which the majority of States would apparently be
ready to agree to. But even if the question were raised of the
necessity for a definitely specific custom and of the stage of
development reached by the custom which might be considered
necessary in the present connection, I would point out that the
conditions particular to the general process of the development of a
customary rule must be borne in mind. Often in this process there are
moments in time in which the rule, implicitly discernible, has not as yet
taken shape in the eyes of the world, but is so forcibly suggested by
precedents that it would be rendering good service to the cause of
justice and law to assist its [p107] appearance in a form in which it will
have all the force rightly belonging to rules of positive law appertaining
to that category.
[317] Perhaps the present case offers such a moment and, at the
same time, an opportunity which it would be regrettable to lose. But I
do not think it is necessary to lay stress on this side of the question, in
view of the conclusion at which I have arrived on the particular
grounds on which the question submitted to the Court is based. I will
confine myself to pointing it out as a method which in my opinion
might lead by another path to the same result which has induced me
to dissent from the judgment given by the Court. [p108]
Annex.
Documents Submitted to the Court by the Parties in the Course of the
Proceedings.
[Annexes to the Case filed on behalf of the French Government.]
Annex
1. Special Agreement signed at Geneva on October 12th, 1926.
2. Extract from the Peace Treaty signed at Lausanne on July 24th,
1923.
3. Extract from the Convention respecting conditions of residence and
business and jurisdiction, signed at Lausanne on July 24th, 1923.
4. Letter from the French Chargé d'affaires to H.E. Tewfik Rouchdy
Bey, Minister for Foreign Affairs, dated August 11th, 1926.
5. Letter from the French Chargé d'affaires to H.E. Tewfik Rouchdy
Bey, Minister for Foreign Affairs, dated August 18th, 1926.
6. Note from the French Minister for Foreign Affairs to the Turkish
Embassy, dated August 25th, 1926.
7. Letter from the French Chargé d'affaires to H.E. Tewfik Rouchdy
Bey, Minister for Foreign Affairs, dated August 28th, 1926.
8. Letter from the Turkish Under-Secretary of State for Foreign Affairs
to the French Chargé d'affaires, dated September 2nd, 1926.
9. Letter from the French Chargé d'affaires to H.E. Nousret Bey,
Delegate of the Ministry for Foreign Affairs, dated September 6th,
1926.
10. Note from the Turkish Embassy at Paris, dated September 14th,
1926.
11. Note from the Turkish Embassy at Paris, dated September 16th,
1926.
12. Article 6 of the Turkish Criminal Code.
Annexes to the Counter-Case filed on behalf of the French
Government.
Annex
13. Letter from the Procureur général of the Court of Appeal of Algiers
to M. Basdevant, Legal Adviser to the Ministry for Foreign Affairs at
Paris, dated May 6th, 1927.
14. Extract from a judgment given by the Tribunal correctionnel of
Bône (Algiers), May 6th, 1927.
15. Letter from the French Minister of Public Works to the Directeur de
I'Inscription maritime at Marseilles, dated October 21st, 1926.
Legal Opinions referred to in the Counter-Case filed by the
Government of the Turkish Republic.
84
G.R. No. 104768               July 21, 2003
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
SANDIGANBAYAN, MAJOR GENERAL JOSEPHUS Q. RAMAS and
ELIZABETH DIMAANO, Respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to set
aside the Resolutions of the Sandiganbayan (First Division) 1 dated 18
November 1991 and 25 March 1992 in Civil Case No. 0037. The first
Resolution dismissed petitioner’s Amended Complaint and ordered the
return of the confiscated items to respondent Elizabeth Dimaano, while
the second Resolution denied petitioner’s Motion for Reconsideration.
Petitioner prays for the grant of the reliefs sought in its Amended
Complaint, or in the alternative, for the remand of this case to the
Sandiganbayan (First Division) for further proceedings allowing
petitioner to complete the presentation of its evidence.
Antecedent Facts
Immediately upon her assumption to office following the successful
EDSA Revolution, then President Corazon C. Aquino issued Executive
Order No. 1 ("EO No. 1") creating the Presidential Commission on
Good Government ("PCGG"). EO No. 1 primarily tasked the PCGG to
recover all ill-gotten wealth of former President Ferdinand E. Marcos,
his immediate family, relatives, subordinates and close associates. EO
No. 1 vested the PCGG with the power "(a) to conduct investigation as
may be necessary in order to accomplish and carry out the purposes of
this order" and the power "(h) to promulgate such rules and regulations
as may be necessary to carry out the purpose of this order."
Accordingly, the PCGG, through its then Chairman Jovito R. Salonga,
created an AFP Anti-Graft Board ("AFP Board") tasked to investigate
reports of unexplained wealth and corrupt practices by AFP personnel,
whether in the active service or retired. 2
Based on its mandate, the AFP Board investigated various reports of
alleged unexplained wealth of respondent Major General Josephus Q.
Ramas ("Ramas"). On 27 July 1987, the AFP Board issued a
Resolution on its findings and recommendation on the reported
unexplained wealth of Ramas. The relevant part of the Resolution
reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the owner of a house
and lot located at 15-Yakan St., La Vista, Quezon City. He is also the
owner of a house and lot located in Cebu City. The lot has an area of
3,327 square meters.
The value of the property located in Quezon City may be estimated
modestly at ₱700,000.00.
The equipment/items and communication facilities which were found in
the premises of Elizabeth Dimaano and were confiscated by elements
of the PC Command of Batangas were all covered by invoice receipt in
the name of CAPT. EFREN SALIDO, RSO Command Coy, MSC, PA.
These items could not have been in the possession of Elizabeth
Dimaano if not given for her use by respondent Commanding General
of the Philippine Army.
85
Aside from the military equipment/items and communications
equipment, the raiding team was also able to confiscate money in the
amount of ₱2,870,000.00 and $50,000 US Dollars in the house of
Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security
Command, Philippine Army, stationed at Camp Eldridge, Los Baños,
Laguna, disclosed that Elizabeth Dimaano is the mistress of
respondent. That respondent usually goes and stays and sleeps in the
alleged house of Elizabeth Dimaano in Barangay Tengga, Itaas,
Batangas City and when he arrives, Elizabeth Dimaano embraces and
kisses respondent. That on February 25, 1986, a person who rode in a
car went to the residence of Elizabeth Dimaano with four (4) attache
cases filled with money and owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano
had no visible means of income and is supported by respondent for
she was formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used
the military equipment/items seized in her house on March 3, 1986
without the consent of respondent, he being the Commanding General
of the Philippine Army. It is also impossible for Elizabeth Dimaano to
claim that she owns the ₱2,870,000.00 and $50,000 US Dollars for she
had no visible source of income.
This money was never declared in the Statement of Assets and
Liabilities of respondent. There was an intention to cover the existence
of these money because these are all ill-gotten and unexplained
wealth. Were it not for the affidavits of the members of the Military
Security Unit assigned at Camp Eldridge, Los Baños, Laguna, the
existence and ownership of these money would have never been
known.
The Statement of Assets and Liabilities of respondent were also
submitted for scrutiny and analysis by the Board’s consultant. Although
the amount of ₱2,870,000.00 and $50,000 US Dollars were not
included, still it was disclosed that respondent has an unexplained
wealth of ₱104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case exists
against respondent for ill-gotten and unexplained wealth in the amount
of ₱2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.)
be prosecuted and tried for violation of RA 3019, as amended,
otherwise known as "Anti-Graft and Corrupt Practices Act" and RA
1379, as amended, otherwise known as "The Act for the Forfeiture of
Unlawfully Acquired Property."3
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under
Republic Act No. 1379 ("RA No. 1379") 4 against Ramas.
Before Ramas could answer the petition, then Solicitor General
Francisco I. Chavez filed an Amended Complaint naming the Republic
of the Philippines ("petitioner"), represented by the PCGG, as plaintiff
and Ramas as defendant. The Amended Complaint also impleaded
Elizabeth Dimaano ("Dimaano") as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding
General of the Philippine Army until 1986. On the other hand, Dimaano
was a confidential agent of the Military Security Unit, Philippine Army,
assigned as a clerk-typist at the office of Ramas from 1 January 1978
to February 1979. The Amended Complaint further alleged that Ramas
"acquired funds, assets and properties manifestly out of proportion to
his salary as an army officer and his other income from legitimately
acquired property by taking undue advantage of his public office and/or
using his power, authority and influence as such officer of the Armed
Forces of the Philippines and as a subordinate and close associate of
the deposed President Ferdinand Marcos."5
The Amended Complaint also alleged that the AFP Board, after a
previous inquiry, found reasonable ground to believe that respondents
have violated RA No. 1379. 6 The Amended Complaint prayed for,
among others, the forfeiture of respondents’ properties, funds and
equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses and
Compulsory Counterclaim to the Amended Complaint. In his Answer,
Ramas contended that his property consisted only of a residential
house at La Vista Subdivision, Quezon City, valued at ₱700,000, which
was not out of proportion to his salary and other legitimate income. He
denied ownership of any mansion in Cebu City and the cash,
communications equipment and other items confiscated from the
house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting
her employment as a clerk-typist in the office of Ramas from January-
November 1978 only, Dimaano claimed ownership of the monies,
communications equipment, jewelry and land titles taken from her
house by the Philippine Constabulary raiding team.
After termination of the pre-trial, 7 the court set the case for trial on the
merits on 9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the hearing
due to its lack of preparation for trial and the absence of witnesses and
vital documents to support its case. The court reset the hearing to 17
and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the
complaint in order "to charge the delinquent properties with being
subject to forfeiture as having been unlawfully acquired by defendant
Dimaano alone x x x."8
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan
proceeded with petitioner’s presentation of evidence on the ground that
the motion for leave to amend complaint did not state when petitioner
would file the amended complaint. The Sandiganbayan further stated
that the subject matter of the amended complaint was on its face
vague and not related to the existing complaint. The Sandiganbayan
also held that due to the time that the case had been pending in court,
petitioner should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a
postponement of the trial.
On 28 September 1989, during the continuation of the trial, petitioner
manifested its inability to proceed to trial because of the absence of
other witnesses or lack of further evidence to present. Instead,
petitioner reiterated its motion to amend the complaint to conform to
the evidence already presented or to change the averments to show
that Dimaano alone unlawfully acquired the monies or properties
subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the case
for over a year mainly because of its many postponements. Moreover,
petitioner would want the case to revert to its preliminary stage when in
fact the case had long been ready for trial. The Sandiganbayan
ordered petitioner to prepare for presentation of its additional evidence,
if any.
86
During the trial on 23 March 1990, petitioner again admitted its inability
to present further evidence. Giving petitioner one more chance to
present further evidence or to amend the complaint to conform to its
evidence, the Sandiganbayan reset the trial to 18 May 1990. The
Sandiganbayan, however, hinted that the re-setting was without
prejudice to any action that private respondents might take under the
circumstances.
However, on 18 May 1990, petitioner again expressed its inability to
proceed to trial because it had no further evidence to present. Again, in
the interest of justice, the Sandiganbayan granted petitioner 60 days
within which to file an appropriate pleading. The Sandiganbayan,
however, warned petitioner that failure to act would constrain the court
to take drastic action.
Private respondents then filed their motions to dismiss based on
Republic v. Migrino.9 The Court held in Migrino that the PCGG does not
have jurisdiction to investigate and prosecute military officers by
reason of mere position held without a showing that they are
"subordinates" of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the
dispositive portion of which states:
WHEREFORE, judgment is hereby rendered dismissing the Amended
Complaint, without pronouncement as to costs. The counterclaims are
likewise dismissed for lack of merit, but the confiscated sum of money,
communications equipment, jewelry and land titles are ordered
returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon.
Ombudsman, who has primary jurisdiction over the forfeiture cases
under R.A. No. 1379, for such appropriate action as the evidence
warrants. This case is also referred to the Commissioner of the Bureau
of Internal Revenue for a determination of any tax liability of
respondent Elizabeth Dimaano in connection herewith.
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for Reconsideration.
In answer to the Motion for Reconsideration, private respondents filed
a Joint Comment/Opposition to which petitioner filed its Reply on 10
January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution denying
the Motion for Reconsideration.
Ruling of the Sandiganbayan
The Sandiganbayan dismissed the Amended Complaint on the
following grounds:
(1.) The actions taken by the PCGG are not in accordance
with the rulings of the Supreme Court in Cruz, Jr. v.
Sandiganbayan10 and Republic v. Migrino11 which involve the
same issues.
(2.) No previous inquiry similar to preliminary investigations
in criminal cases was conducted against Ramas and
Dimaano.
(3.) The evidence adduced against Ramas does not
constitute a prima facie case against him.
(4.) There was an illegal search and seizure of the items
confiscated.
The Issues
Petitioner raises the following issues:
A. RESPONDENT COURT SERIOUSLY ERRED IN
CONCLUDING THAT PETITIONER’S EVIDENCE CANNOT
MAKE A CASE FOR FORFEITURE AND THAT THERE
WAS NO SHOWING OF CONSPIRACY, COLLUSION OR
RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY
AND BETWEEN RESPONDENT RAMAS AND
RESPONDENT DIMAANO NOTWITHSTANDING THE
FACT THAT SUCH CONCLUSIONS WERE CLEARLY
UNFOUNDED AND PREMATURE, HAVING BEEN
RENDERED PRIOR TO THE COMPLETION OF THE
PRESENTATION OF THE EVIDENCE OF THE
PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN
HOLDING THAT THE ACTIONS TAKEN BY THE
PETITIONER, INCLUDING THE FILING OF THE ORIGINAL
COMPLAINT AND THE AMENDED COMPLAINT, SHOULD
BE STRUCK OUT IN LINE WITH THE RULINGS OF THE
SUPREME COURT IN CRUZ, JR. v. SANDIGANBAYAN,
194 SCRA 474 AND REPUBLIC v. MIGRINO, 189 SCRA
289, NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra,
and Republic v. Migrino, supra, are clearly not
applicable to this case;
2. Any procedural defect in the institution of the
complaint in Civil Case No. 0037 was cured and/or
waived by respondents with the filing of their
respective answers with counterclaim; and
3. The separate motions to dismiss were evidently
improper considering that they were filed after
commencement of the presentation of the
evidence of the petitioner and even before the
latter was allowed to formally offer its evidence
and rest its case;
C. RESPONDENT COURT SERIOUSLY ERRED IN
HOLDING THAT THE ARTICLES AND THINGS SUCH AS
SUMS OF MONEY, COMMUNICATIONS EQUIPMENT,
JEWELRY AND LAND TITLES CONFISCATED FROM THE
HOUSE OF RESPONDENT DIMAANO WERE ILLEGALLY
SEIZED AND THEREFORE EXCLUDED AS EVIDENCE. 12
The Court’s Ruling
First Issue: PCGG’s Jurisdiction to Investigate Private Respondents
This case involves a revisiting of an old issue already decided by this
Court in Cruz, Jr. v. Sandiganbayan13 and Republic v. Migrino.14
The primary issue for resolution is whether the PCGG has the
jurisdiction to investigate and cause the filing of a forfeiture petition
against Ramas and Dimaano for unexplained wealth under RA No.
1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained
wealth and corrupt practices of AFP personnel, whether in the active
service or retired.15 The PCGG tasked the AFP Board to make the
necessary recommendations to appropriate government agencies on
the action to be taken based on its findings. 16 The PCGG gave this task
87
to the AFP Board pursuant to the PCGG’s power under Section 3 of
EO No. 1 "to conduct investigation as may be necessary in order to
accomplish and to carry out the purposes of this order." EO No. 1 gave
the PCGG specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting
the President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the Philippines
or abroad, including the takeover and sequestration of all business
enterprises and entities owned or controlled by them, during his
administration, directly or through nominees, by taking undue
advantage of their public office and/ or using their powers, authority,
influence, connections or relationship.
(b) The investigation of such cases of graft and corruption as the
President may assign to the Commission from time to time.
x x x.
The PCGG, through the AFP Board, can only investigate the
unexplained wealth and corrupt practices of AFP personnel who fall
under either of the two categories mentioned in Section 2 of EO No. 1.
These are: (1) AFP personnel who have accumulated ill-gotten wealth
during the administration of former President Marcos by being the
latter’s immediate family, relative, subordinate or close associate,
taking undue advantage of their public office or using their powers,
influence x x x;17 or (2) AFP personnel involved in other cases of graft
and corruption provided the President assigns their cases to the
PCGG.18
Petitioner, however, does not claim that the President assigned
Ramas’ case to the PCGG. Therefore, Ramas’ case should fall under
the first category of AFP personnel before the PCGG could exercise its
jurisdiction over him. Petitioner argues that Ramas was undoubtedly a
subordinate of former President Marcos because of his position as the
Commanding General of the Philippine Army. Petitioner claims that
Ramas’ position enabled him to receive orders directly from his
commander-in-chief, undeniably making him a subordinate of former
President Marcos.
We hold that Ramas was not a "subordinate" of former President
Marcos in the sense contemplated under EO No. 1 and its
amendments.
Mere position held by a military officer does not automatically make
him a "subordinate" as this term is used in EO Nos. 1, 2, 14 and 14-A
absent a showing that he enjoyed close association with former
President Marcos. Migrino discussed this issue in this wise:
A close reading of EO No. 1 and related executive orders will readily
show what is contemplated within the term ‘subordinate.’ The Whereas
Clauses of EO No. 1 express the urgent need to recover the ill-gotten
wealth amassed by former President Ferdinand E. Marcos, his
immediate family, relatives, and close associates both here and
abroad.
EO No. 2 freezes ‘all assets and properties in the Philippines in which
former President Marcos and/or his wife, Mrs. Imelda Marcos, their
close relatives, subordinates, business associates, dummies, agents,
or nominees have any interest or participation.’
Applying the rule in statutory construction known as ejusdem generis
that is-
‘[W]here general words follow an enumeration of persons or things by
words of a particular and specific meaning, such general words are not
to be construed in their widest extent, but are to be held as applying
only to persons or things of the same kind or class as those specifically
mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds of Davao, 96
Phil. 53, 58, citing Black on Interpretation of Laws, 2nd Ed., 203].’
[T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one who
enjoys a close association with former President Marcos and/or his
wife, similar to the immediate family member, relative, and close
associate in EO No. 1 and the close relative, business associate,
dummy, agent, or nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a
government official or employee during the administration of former
President Marcos. There must be a prima facie showing that the
respondent unlawfully accumulated wealth by virtue of his close
association or relation with former Pres. Marcos and/or his wife.
(Emphasis supplied)
Ramas’ position alone as Commanding General of the Philippine Army
with the rank of Major General 19 does not suffice to make him a
"subordinate" of former President Marcos for purposes of EO No. 1
and its amendments. The PCGG has to provide a prima facie showing
that Ramas was a close associate of former President Marcos, in the
same manner that business associates, dummies, agents or nominees
of former President Marcos were close to him. Such close association
is manifested either by Ramas’ complicity with former President
Marcos in the accumulation of ill-gotten wealth by the deposed
President or by former President Marcos’ acquiescence in Ramas’ own
accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioner’s attempt to differentiate the instant case from Migrino does
not convince us. Petitioner argues that unlike in Migrino, the AFP
Board Resolution in the instant case states that the AFP Board
conducted the investigation pursuant to EO Nos. 1, 2, 14 and 14-A in
relation to RA No. 1379. Petitioner asserts that there is a presumption
that the PCGG was acting within its jurisdiction of investigating crony-
related cases of graft and corruption and that Ramas was truly a
subordinate of the former President. However, the same AFP Board
Resolution belies this contention. Although the Resolution begins with
such statement, it ends with the following recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.)
be prosecuted and tried for violation of RA 3019, as amended,
otherwise known as "Anti-Graft and Corrupt Practices Act" and RA
1379, as amended, otherwise known as "The Act for the Forfeiture of
Unlawfully Acquired Property."20
Thus, although the PCGG sought to investigate and prosecute private
respondents under EO Nos. 1, 2, 14 and 14-A, the result yielded a
finding of violation of Republic Acts Nos. 3019 and 1379 without any
relation to EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO
No. 1 and its amendments proves fatal to petitioner’s case. EO No. 1
created the PCGG for a specific and limited purpose, and necessarily
its powers must be construed to address such specific and limited
purpose.
Moreover, the resolution of the AFP Board and even the Amended
Complaint do not show that the properties Ramas allegedly owned
were accumulated by him in his capacity as a "subordinate" of his
commander-in-chief. Petitioner merely enumerated the properties
Ramas allegedly owned and suggested that these properties were
disproportionate to his salary and other legitimate income without
showing that Ramas amassed them because of his close association
with former President Marcos. Petitioner, in fact, admits that the AFP
88
Board resolution does not contain a finding that Ramas accumulated
his wealth because of his close association with former President
Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of the
New Armed Forces of the Philippines did not categorically find a
prima facie evidence showing that respondent Ramas unlawfully
accumulated wealth by virtue of his close association or relation
with former President Marcos and/or his wife, it is submitted that
such omission was not fatal. The resolution of the Anti-Graft Board
should be read in the context of the law creating the same and the
objective of the investigation which was, as stated in the above,
pursuant to Republic Act Nos. 3019 and 1379 in relation to Executive
Order Nos. 1, 2, 14 and 14-a;21 (Emphasis supplied)
Such omission is fatal. Petitioner forgets that it is precisely a prima
facie showing that the ill-gotten wealth was accumulated by a
"subordinate" of former President Marcos that vests jurisdiction on
PCGG. EO No. 122 clearly premises the creation of the PCGG on the
urgent need to recover all ill-gotten wealth amassed by former
President Marcos, his immediate family, relatives, subordinates and
close associates. Therefore, to say that such omission was not fatal is
clearly contrary to the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan, 23 the Court outlined the cases that fall
under the jurisdiction of the PCGG pursuant to EO Nos. 1, 2, 24 14,25 14-
A:26
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in
relation with Sections 1, 2 and 3 of Executive Order No. 14, shows
what the authority of the respondent PCGG to investigate and
prosecute covers:
(a) the investigation and prosecution of the civil action for the
recovery of ill-gotten wealth under Republic Act No. 1379,
accumulated by former President Marcos, his immediate
family, relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the take-over
or sequestration of all business enterprises and entities
owned or controlled by them, during his administration,
directly or through his nominees, by taking undue advantage
of their public office and/or using their powers, authority and
influence, connections or relationships; and
(b) the investigation and prosecution of such offenses
committed in the acquisition of said ill-gotten wealth as
contemplated under Section 2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices
Act not otherwise falling under the foregoing categories, require a
previous authority of the President for the respondent PCGG to
investigate and prosecute in accordance with Section 2 (b) of
Executive Order No. 1. Otherwise, jurisdiction over such cases is
vested in the Ombudsman and other duly authorized investigating
agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and the
state prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG, should
investigate and prosecute forfeiture petitions not falling under EO No. 1
and its amendments. The preliminary investigation of unexplained
wealth amassed on or before 25 February 1986 falls under the
jurisdiction of the Ombudsman, while the authority to file the
corresponding forfeiture petition rests with the Solicitor General. 27 The
Ombudsman Act or Republic Act No. 6770 ("RA No. 6770") vests in
the Ombudsman the power to conduct preliminary investigation and to
file forfeiture proceedings involving unexplained wealth amassed after
25 February 1986.28
After the pronouncements of the Court in Cruz, the PCGG still pursued petitioner’s evidence) with being subject to forfeiture as having been
this case despite the absence of a prima facie finding that Ramas was unlawfully acquired by defendant Dimaano alone x x x."
a "subordinate" of former President Marcos. The petition for forfeiture
filed with the Sandiganbayan should be dismissed for lack of authority
The Sandiganbayan, however, refused to defer the presentation of
by the PCGG to investigate respondents since there is no prima facie
petitioner’s evidence since petitioner did not state when it would file the
showing that EO No. 1 and its amendments apply to respondents. The
amended complaint. On 18 April 1989, the Sandiganbayan set the
AFP Board Resolution and even the Amended Complaint state that
continuation of the presentation of evidence on 28-29 September and
there are violations of RA Nos. 3019 and 1379. Thus, the PCGG
9-11 October 1989, giving petitioner ample time to prepare its
should have recommended Ramas’ case to the Ombudsman who has
evidence. Still, on 28 September 1989, petitioner manifested its
jurisdiction to conduct the preliminary investigation of ordinary
inability to proceed with the presentation of its evidence. The
unexplained wealth and graft cases. As stated in Migrino:
Sandiganbayan issued an Order expressing its view on the matter, to
wit:
[But] in view of the patent lack of authority of the PCGG to investigate
and cause the prosecution of private respondent for violation of Rep.
The Court has gone through extended inquiry and a narration of the
Acts Nos. 3019 and 1379, the PCGG must also be enjoined from
above events because this case has been ready for trial for over a year
proceeding with the case, without prejudice to any action that may be
and much of the delay hereon has been due to the inability of the
taken by the proper prosecutory agency. The rule of law mandates that
government to produce on scheduled dates for pre-trial and for trial
an agency of government be allowed to exercise only the powers
documents and witnesses, allegedly upon the failure of the military to
granted to it.
supply them for the preparation of the presentation of evidence
thereon. Of equal interest is the fact that this Court has been held to
Petitioner’s argument that private respondents have waived any defect task in public about its alleged failure to move cases such as this one
in the filing of the forfeiture petition by submitting their respective beyond the preliminary stage, when, in view of the developments such
Answers with counterclaim deserves no merit as well. as those of today, this Court is now faced with a situation where a case
already in progress will revert back to the preliminary stage, despite a
five-month pause where appropriate action could have been
Petitioner has no jurisdiction over private respondents. Thus, there is
undertaken by the plaintiff Republic.35
no jurisdiction to waive in the first place. The PCGG cannot exercise
investigative or prosecutorial powers never granted to it. PCGG’s
powers are specific and limited. Unless given additional assignment by On 9 October 1989, the PCGG manifested in court that it was
the President, PCGG’s sole task is only to recover the ill-gotten wealth conducting a preliminary investigation on the unexplained wealth of
of the Marcoses, their relatives and cronies. 29 Without these elements, private respondents as mandated by RA No. 1379. 36 The PCGG
the PCGG cannot claim jurisdiction over a case. prayed for an additional four months to conduct the preliminary
investigation. The Sandiganbayan granted this request and scheduled
the presentation of evidence on 26-29 March 1990. However, on the
Private respondents questioned the authority and jurisdiction of the
scheduled date, petitioner failed to inform the court of the result of the
PCGG to investigate and prosecute their cases by filing their Motion to
preliminary investigation the PCGG supposedly conducted. Again, the
Dismiss as soon as they learned of the pronouncement of the Court in
Sandiganbayan gave petitioner until 18 May 1990 to continue with the
Migrino. This case was decided on 30 August 1990, which explains
presentation of its evidence and to inform the court of "what lies ahead
why private respondents only filed their Motion to Dismiss on 8 October
insofar as the status of the case is concerned x x x." 37 Still on the date
1990. Nevertheless, we have held that the parties may raise lack of
set, petitioner failed to present its evidence. Finally, on 11 July 1990,
jurisdiction at any stage of the proceeding. 30 Thus, we hold that there
petitioner filed its Re-Amended Complaint. 38 The Sandiganbayan
was no waiver of jurisdiction in this case. Jurisdiction is vested by law
correctly observed that a case already pending for years would revert
and not by the parties to an action.31
to its preliminary stage if the court were to accept the Re-Amended
Complaint.
Consequently, the petition should be dismissed for lack of jurisdiction
by the PCGG to conduct the preliminary investigation. The
Based on these circumstances, obviously petitioner has only itself to
Ombudsman may still conduct the proper preliminary investigation for
blame for failure to complete the presentation of its evidence. The
violation of RA No. 1379, and if warranted, the Solicitor General may
Sandiganbayan gave petitioner more than sufficient time to finish the
file the forfeiture petition with the Sandiganbayan. 32 The right of the
presentation of its evidence. The Sandiganbayan overlooked
State to forfeit unexplained wealth under RA No. 1379 is not subject to
petitioner’s delays and yet petitioner ended the long-string of delays
prescription, laches or estoppel.33
with the filing of a Re-Amended Complaint, which would only prolong
even more the disposition of the case.
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Moreover, the pronouncements of the Court in Migrino and Cruz
prompted the Sandiganbayan to dismiss the case since the PCGG has
Petitioner also contends that the Sandiganbayan erred in dismissing no jurisdiction to investigate and prosecute the case against private
the case before completion of the presentation of petitioner’s evidence. respondents. This alone would have been sufficient legal basis for the
Sandiganbayan to dismiss the forfeiture case against private
respondents.
We disagree.

Thus, we hold that the Sandiganbayan did not err in dismissing the
Based on the findings of the Sandiganbayan and the records of this case before completion of the presentation of petitioner’s evidence.
case, we find that petitioner has only itself to blame for non-completion
of the presentation of its evidence. First, this case has been pending
for four years before the Sandiganbayan dismissed it. Petitioner filed Third Issue: Legality of the Search and Seizure
its Amended Complaint on 11 August 1987, and only began to present
its evidence on 17 April 1989. Petitioner had almost two years to
Petitioner claims that the Sandiganbayan erred in declaring the
prepare its evidence. However, despite this sufficient time, petitioner
properties confiscated from Dimaano’s house as illegally seized and
still delayed the presentation of the rest of its evidence by filing
therefore inadmissible in evidence. This issue bears a significant effect
numerous motions for postponements and extensions. Even before the
on petitioner’s case since these properties comprise most of
date set for the presentation of its evidence, petitioner filed, on 13 April
petitioner’s evidence against private respondents. Petitioner will not
1989, a Motion for Leave to Amend the Complaint. 34 The motion sought
have much evidence to support its case against private respondents if
"to charge the delinquent properties (which comprise most of
these properties are inadmissible in evidence.
89
On 3 March 1986, the Constabulary raiding team served at Dimaano’s
residence a search warrant captioned "Illegal Possession of Firearms
and Ammunition." Dimaano was not present during the raid but
Dimaano’s cousins witnessed the raid. The raiding team seized the
items detailed in the seizure receipt together with other items not
included in the search warrant. The raiding team seized these items:
one baby armalite rifle with two magazines; 40 rounds of 5.56
ammunition; one pistol, caliber .45; communications equipment, cash
consisting of ₱2,870,000 and US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding team
conducted the search and seizure "on March 3, 1986 or five days after
the successful EDSA revolution." 39 Petitioner argues that a
revolutionary government was operative at that time by virtue of
Proclamation No. 1 announcing that President Aquino and Vice
President Laurel were "taking power in the name and by the will of the
Filipino people."40 Petitioner asserts that the revolutionary government
effectively withheld the operation of the 1973 Constitution which
guaranteed private respondents’ exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from an
illegal search applies only beginning 2 February 1987, the date of
ratification of the 1987 Constitution. Petitioner contends that all rights
under the Bill of Rights had already reverted to its embryonic stage at
the time of the search. Therefore, the government may confiscate the
monies and items taken from Dimaano and use the same in evidence
against her since at the time of their seizure, private respondents did
not enjoy any constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As
succinctly stated in President Aquino’s Proclamation No. 3 dated 25
March 1986, the EDSA Revolution was "done in defiance of the
provisions of the 1973 Constitution."41 The resulting government was
indisputably a revolutionary government bound by no constitution or
legal limitations except treaty obligations that the revolutionary
government, as the de jure government in the Philippines, assumed
under international law.
The correct issues are: (1) whether the revolutionary government was
bound by the Bill of Rights of the 1973 Constitution during the
interregnum, that is, after the actual and effective take-over of power
by the revolutionary government following the cessation of resistance
by loyalist forces up to 24 March 1986 (immediately before the
adoption of the Provisional Constitution); and (2) whether the
protection accorded to individuals under the International Covenant on
Civil and Political Rights ("Covenant") and the Universal Declaration of
Human Rights ("Declaration") remained in effect during the
interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not
operative during the interregnum. However, we rule that the protection
accorded to individuals under the Covenant and the Declaration
remained in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary
government were the supreme law because no constitution limited the
extent and scope of such directives and orders. With the abrogation of
the 1973 Constitution by the successful revolution, there was no
municipal law higher than the directives and orders of the revolutionary
government. Thus, during the interregnum, a person could not invoke
any exclusionary right under a Bill of Rights because there was neither
a constitution nor a Bill of Rights during the interregnum. As the Court
explained in Letter of Associate Justice Reynato S. Puno: 42
A revolution has been defined as "the complete overthrow of the
established government in any country or state by those who were
previously subject to it" or as "a sudden, radical and fundamental
change in the government or political system, usually effected with
violence or at least some acts of violence." In Kelsen's book, General
90
Theory of Law and State, it is defined as that which "occurs whenever
the legal order of a community is nullified and replaced by a new
order . . . a way not prescribed by the first order itself."
It was through the February 1986 revolution, a relatively peaceful one,
and more popularly known as the "people power revolution" that the
Filipino people tore themselves away from an existing regime. This
revolution also saw the unprecedented rise to power of the Aquino
government.
From the natural law point of view, the right of revolution has been
defined as "an inherent right of a people to cast out their rulers, change
their policy or effect radical reforms in their system of government or
institutions by force or a general uprising when the legal and
constitutional methods of making such change have proved inadequate
or are so obstructed as to be unavailable." It has been said that "the
locus of positive law-making power lies with the people of the state"
and from there is derived "the right of the people to abolish, to reform
and to alter any existing form of government without regard to the
existing constitution."
xxx
It is widely known that Mrs. Aquino’s rise to the presidency was
not due to constitutional processes; in fact, it was achieved in
violation of the provisions of the 1973 Constitution as a Batasang
Pambansa resolution had earlier declared Mr. Marcos as the
winner in the 1986 presidential election. Thus it can be said that the
organization of Mrs. Aquino’s Government which was met by little
resistance and her control of the state evidenced by the appointment of
the Cabinet and other key officers of the administration, the departure
of the Marcos Cabinet officials, revamp of the Judiciary and the Military
signaled the point where the legal system then in effect, had
ceased to be obeyed by the Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all sequestration
orders issued by the Philippine Commission on Good Government
("PCGG") before the adoption of the Freedom Constitution. The
sequestration orders, which direct the freezing and even the take-over
of private property by mere executive issuance without judicial action,
would violate the due process and search and seizure clauses of the
Bill of Rights.
During the interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could
validly question the sequestration orders as violative of the Bill of
Rights because there was no Bill of Rights during the interregnum.
However, upon the adoption of the Freedom Constitution, the
sequestered companies assailed the sequestration orders as contrary
to the Bill of Rights of the Freedom Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential
Commission on Good Government,43 petitioner Baseco, while
conceding there was no Bill of Rights during the interregnum,
questioned the continued validity of the sequestration orders upon
adoption of the Freedom Constitution in view of the due process clause
in its Bill of Rights. The Court ruled that the Freedom Constitution, and
later the 1987 Constitution, expressly recognized the validity of
sequestration orders, thus:
If any doubt should still persist in the face of the foregoing
considerations as to the validity and propriety of sequestration, freeze
and takeover orders, it should be dispelled by the fact that these
particular remedies and the authority of the PCGG to issue them have
received constitutional approbation and sanction. As already
mentioned, the Provisional or "Freedom" Constitution recognizes the
power and duty of the President to enact "measures to achieve the
mandate of the people to . . . (r)ecover ill-gotten properties amassed by
the leaders and supporters of the previous regime and protect the
interest of the people through orders of sequestration or freezing of
assets or accounts." And as also already adverted to, Section 26,
Article XVIII of the 1987 Constitution treats of, and ratifies the
"authority to issue sequestration or freeze orders under Proclamation
No. 3 dated March 25, 1986."
The framers of both the Freedom Constitution and the 1987
Constitution were fully aware that the sequestration orders would clash
with the Bill of Rights. Thus, the framers of both constitutions had to
include specific language recognizing the validity of the sequestration
orders. The following discourse by Commissioner Joaquin G. Bernas
during the deliberations of the Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic
about the arguments in defense of the present amendment.
For instance, I have carefully studied Minister Salonga’s lecture in the
Gregorio Araneta University Foundation, of which all of us have been
given a copy. On the one hand, he argues that everything the
Commission is doing is traditionally legal. This is repeated by
Commissioner Romulo also. Minister Salonga spends a major portion
of his lecture developing that argument. On the other hand, almost as
an afterthought, he says that in the end what matters are the results
and not the legal niceties, thus suggesting that the PCGG should be
allowed to make some legal shortcuts, another word for niceties or
exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the
CONCOM for special protection? The answer is clear. What they are
doing will not stand the test of ordinary due process, hence they are
asking for protection, for exceptions. Grandes malos, grandes
remedios, fine, as the saying stands, but let us not say grandes malos,
grande y malos remedios. That is not an allowable extrapolation.
Hence, we should not give the exceptions asked for, and let me
elaborate and give three reasons:
First, the whole point of the February Revolution and of the work of the
CONCOM is to hasten constitutional normalization. Very much at the
heart of the constitutional normalization is the full effectivity of the Bill
of Rights. We cannot, in one breath, ask for constitutional
normalization and at the same time ask for a temporary halt to the full
functioning of what is at the heart of constitutionalism. That would be
hypocritical; that would be a repetition of Marcosian protestation of due
process and rule of law. The New Society word for that is "backsliding."
It is tragic when we begin to backslide even before we get there.
Second, this is really a corollary of the first. Habits tend to become
ingrained. The committee report asks for extraordinary exceptions from
the Bill of Rights for six months after the convening of Congress, and
Congress may even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become
vice. What the committee report is asking for is that we should allow
the new government to acquire the vice of disregarding the Bill of
Rights.
Vices, once they become ingrained, become difficult to shed. The
practitioners of the vice begin to think that they have a vested right to
its practice, and they will fight tooth and nail to keep the franchise. That
would be an unhealthy way of consolidating the gains of a democratic
revolution.
Third, the argument that what matters are the results and not the legal
niceties is an argument that is very disturbing. When it comes from a
staunch Christian like Commissioner Salonga, a Minister, and repeated
verbatim by another staunch Christian like Commissioner Tingson, it
becomes doubly disturbing and even discombobulating. The argument
makes the PCGG an auctioneer, placing the Bill of Rights on the
auction block. If the price is right, the search and seizure clause will be
sold. "Open your Swiss bank account to us and we will award you the
search and seizure clause. You can keep it in your private safe."
91
Alternatively, the argument looks on the present government as
hostage to the hoarders of hidden wealth. The hoarders will release the
hidden health if the ransom price is paid and the ransom price is the
Bill of Rights, specifically the due process in the search and seizure
clauses. So, there is something positively revolving about either
argument. The Bill of Rights is not for sale to the highest bidder nor can
it be used to ransom captive dollars. This nation will survive and grow
strong, only if it would become convinced of the values enshrined in
the Constitution of a price that is beyond monetary estimation.
For these reasons, the honorable course for the Constitutional
Commission is to delete all of Section 8 of the committee report and
allow the new Constitution to take effect in full vigor. If Section 8 is
deleted, the PCGG has two options. First, it can pursue the Salonga
and the Romulo argument — that what the PCGG has been doing has
been completely within the pale of the law. If sustained, the PCGG can
go on and should be able to go on, even without the support of Section
8. If not sustained, however, the PCGG has only one honorable option,
it must bow to the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians.
Let me conclude with what another Christian replied when asked to toy
around with the law. From his prison cell, Thomas More said, "I'll give
the devil benefit of law for my nation’s safety sake." I ask the
Commission to give the devil benefit of law for our nation’s sake. And
we should delete Section 8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against the
amendment excepting sequestration orders from the Bill of Rights, the
Constitutional Commission still adopted the amendment as Section
26,44 Article XVIII of the 1987 Constitution. The framers of the
Constitution were fully aware that absent Section 26, sequestration
orders would not stand the test of due process under the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in
force during the interregnum, absent a constitutional provision
excepting sequestration orders from such Bill of Rights, would clearly
render all sequestration orders void during the interregnum.
Nevertheless, even during the interregnum the Filipino people
continued to enjoy, under the Covenant and the Declaration, almost
the same rights found in the Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure
government, assumed responsibility for the State’s good faith
compliance with the Covenant to which the Philippines is a signatory.
Article 2(1) of the Covenant requires each signatory State "to respect
and to ensure to all individuals within its territory and subject to its
jurisdiction the rights 45 recognized in the present Covenant." Under
Article 17(1) of the Covenant, the revolutionary government had the
duty to insure that "[n]o one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence."
The Declaration, to which the Philippines is also a signatory, provides
in its Article 17(2) that "[n]o one shall be arbitrarily deprived of his
property." Although the signatories to the Declaration did not intend it
as a legally binding document, being only a declaration, the Court has
interpreted the Declaration as part of the generally accepted principles
of international law and binding on the State. 46 Thus, the revolutionary
government was also obligated under international law to observe the
rights47 of individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or the
Declaration during the interregnum. Whether the revolutionary
government could have repudiated all its obligations under the
Covenant or the Declaration is another matter and is not the issue
here. Suffice it to say that the Court considers the Declaration as part
of customary international law, and that Filipinos as human beings are
proper subjects of the rules of international law laid down in the
Covenant. The fact is the revolutionary government did not repudiate
the Covenant or the Declaration in the same way it repudiated the Q. Were you present when the search warrant in connection with this
1973 Constitution. As the de jure government, the revolutionary case was applied before the Municipal Trial Court of Batangas, Branch
government could not escape responsibility for the State’s good faith 1?
compliance with its treaty obligations under international law.
A. Yes, sir.
It was only upon the adoption of the Provisional Constitution on 25
March 1986 that the directives and orders of the revolutionary
Q. And the search warrant applied for by you was for the search and
government became subject to a higher municipal law that, if
seizure of five (5) baby armalite rifles M-16 and five (5) boxes of
contravened, rendered such directives and orders void. The
ammunition?
Provisional Constitution adopted verbatim the Bill of Rights of the 1973
Constitution.48 The Provisional Constitution served as a self-limitation
by the revolutionary government to avoid abuses of the absolute A. Yes, sir.
powers entrusted to it by the people.
xxx
During the interregnum when no constitution or Bill of Rights existed,
directives and orders issued by government officers were valid so long
AJ AMORES
as these officers did not exceed the authority granted them by the
revolutionary government. The directives and orders should not have
also violated the Covenant or the Declaration. In this case, the Q. Before you applied for a search warrant, did you conduct
revolutionary government presumptively sanctioned the warrant since surveillance in the house of Miss Elizabeth Dimaano?
the revolutionary government did not repudiate it. The warrant, issued
by a judge upon proper application, specified the items to be searched
and seized. The warrant is thus valid with respect to the items A. The Intelligence Operatives conducted surveillance together with the
specifically described in the warrant. MSU elements, your Honor.

However, the Constabulary raiding team seized items not included in
the warrant. As admitted by petitioner’s witnesses, the raiding team
confiscated items not included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
Q. According to the search warrant, you are supposed to seize only for
weapons. What else, aside from the weapons, were seized from the
house of Miss Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency and
US dollars, some jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized from
the house of Elizabeth Dimaano. Do you know the reason why your
team also seized other properties not mentioned in said search
warrant?
A. During the conversation right after the conduct of said raid, I was
informed that the reason why they also brought the other items not
included in the search warrant was because the money and other
jewelries were contained in attaché cases and cartons with markings
"Sony Trinitron", and I think three (3) vaults or steel safes. Believing
that the attaché cases and the steel safes were containing firearms,
they forced open these containers only to find out that they contained
money.
xxx
Q. You said you found money instead of weapons, do you know the
reason why your team seized this money instead of weapons?
A. I think the overall team leader and the other two officers assisting
him decided to bring along also the money because at that time it was
already dark and they felt most secured if they will bring that because
they might be suspected also of taking money out of those items, your
Honor.49
Q. And this party believed there were weapons deposited in the house
of Miss Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search
warrant, any other properties or contraband which could be found in
the residence of Miss Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some hidden items,
for instance, the communications equipment and money. However, I
did not include that in the application for search warrant considering
that we have not established concrete evidence about that. So when…
Q. So that when you applied for search warrant, you had reason to
believe that only weapons were in the house of Miss Elizabeth
Dimaano?
A. Yes, your Honor.50
xxx
Q. You stated that a .45 caliber pistol was seized along with one
armalite rifle M-16 and how many ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing
Court, with the fiscal’s office who charged Elizabeth Dimaano for Illegal
Possession of Firearms and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?

Cross-examination
A. I think it was dismissed, sir.

Atty. Banaag
92
Q. In the fiscal’s office?

A. Yes, sir.

Q. Because the armalite rifle you seized, as well as the .45 caliber
pistol had a Memorandum Receipt in the name of Felino Melegrito, is
that not correct?

A. I think that was the reason, sir.

Q. There were other articles seized which were not included in the
search warrant, like for instance, jewelries. Why did you seize the
jewelries?

A. I think it was the decision of the overall team leader and his
assistant to bring along also the jewelries and other items, sir. I do not
really know where it was taken but they brought along also these
articles. I do not really know their reason for bringing the same, but I
just learned that these were taken because they might get lost if they
will just leave this behind.

xxx

Q. How about the money seized by your raiding team, they were not
also included in the search warrant?

A. Yes sir, but I believe they were also taken considering that the
money was discovered to be contained in attaché
cases.1âwphi1 These attaché cases were suspected to be containing
pistols or other high powered firearms, but in the course of the search
the contents turned out to be money. So the team leader also decided
to take this considering that they believed that if they will just leave the
money behind, it might get lost also.

Q. That holds true also with respect to the other articles that were
seized by your raiding team, like Transfer Certificates of Title of lands?

A. Yes, sir. I think they were contained in one of the vaults that were
opened.51

It is obvious from the testimony of Captain Sebastian that the warrant

did not include the monies, communications equipment, jewelry and
land titles that the raiding team confiscated. The search warrant did not
particularly describe these items and the raiding team confiscated them
on its own authority. The raiding team had no legal basis to seize these
items without showing that these items could be the subject of
warrantless search and seizure. 52 Clearly, the raiding team exceeded
its authority when it seized these items.

The seizure of these items was therefore void, and unless these items
are contraband per se,53 and they are not, they must be returned to the
person from whom the raiding seized them. However, we do not
declare that such person is the lawful owner of these items, merely that
the search and seizure warrant could not be used as basis to seize and
withhold these items from the possessor. We thus hold that these
items should be returned immediately to Dimaano.

WHEREFORE, the petition for certiorari is DISMISSED. The

questioned Resolutions of the Sandiganbayan dated 18 November
1991 and 25 March 1992 in Civil Case No. 0037, remanding the
records of this case to the Ombudsman for such appropriate action as
the evidence may warrant, and referring this case to the Commissioner
of the Bureau of Internal Revenue for a determination of any tax liability
of respondent Elizabeth Dimaano, are AFFIRMED.

SO ORDERED.

93
G.R. No. 206510               September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa
D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus
of Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA,
JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M.
REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER
COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN,
PH.D., Junk VF A Movement, TERESITA R. PEREZ, PH.D., HON.
RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham,
ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY E.
SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A.
CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON,
PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th
Fleet, MARK A. RICE in his capacity as Commanding Officer of
the USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his
capacity as Commander-in-Chief of the Armed Forces of the
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary,
pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR.,
Executiv~.:Secretary, Office of the President, . HON. VOLTAIRE T.
GAZMIN, Secretary, Department of National Defense, HON.
RAMON JESUS P. P AJE, Secretary, Department of Environment
and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO,
Philippine Navy Flag Officer in Command, Armed Forces of the
Philippines, ADMIRAL RODOLFO D. ISO RENA, Commandant,
Philippine Coast Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN.
VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the
Philippines Command and LT. GEN. TERRY G. ROBLING, US
Marine Corps Forces. Pacific and Balikatan 2013 Exercise Co-
Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with
prayer for the issuance of a Temporary Environmental Protection Order
(TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the
Rules of Procedure for Environmental Cases (Rules), involving
violations of environmental laws and regulations in relation to the
grounding of the US military ship USS Guardian over the Tubbataha
Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of
southern Philippines) language which means "long reef exposed at low
tide." Tubbataha is composed of two huge coral atolls - the north atoll
and the south atoll - and the Jessie Beazley Reef, a smaller coral
structure about 20 kilometers north of the atolls. The reefs of
Tubbataha and Jessie Beazley are considered part of Cagayancillo, a
remote island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of
Proclamation No. 306 issued by President Corazon C. Aquino on
August 11, 1988. Located in the middle of Central Sulu Sea, 150
kilometers southeast of Puerto Princesa City, Tubbataha lies at the
heart of the Coral Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational
Scientific and Cultural Organization (UNESCO) as a World Heritage
Site. It was recognized as one of the Philippines' oldest ecosystems,
containing excellent examples of pristine reefs and a high diversity of
marine life. The 97,030-hectare protected marine park is also an
important habitat for internationally threatened and endangered marine
94
species. UNESCO cited Tubbataha's outstanding universal value as an
important and significant natural habitat for in situ conservation of
biological diversity; an example representing significant on-going
ecological and biological processes; and an area of exceptional natural
beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No.
10067,3 otherwise known as the "Tubbataha Reefs Natural Park
(TRNP) Act of 2009" "to ensure the protection and conservation of the
globally significant economic, biological, sociocultural, educational and
scientific values of the Tubbataha Reefs into perpetuity for the
enjoyment of present and future generations." Under the "no-take"
policy, entry into the waters of TRNP is strictly regulated and many
human activities are prohibited and penalized or fined, including
fishing, gathering, destroying and disturbing the resources within the
TRNP. The law likewise created the Tubbataha Protected Area
Management Board (TPAMB) which shall be the sole policy-making
and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of
the US Navy. In December 2012, the US Embassy in the Philippines
requested diplomatic clearance for the said vessel "to enter and exit
the territorial waters of the Philippines and to arrive at the port of Subic
Bay for the purpose of routine ship replenishment, maintenance, and
crew liberty."4 On January 6, 2013, the ship left Sasebo, Japan for
Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in
Okinawa, Japan.1âwphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its
next port of call in Makassar, Indonesia. On January 17, 2013 at 2:20
a.m. while transiting the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha Reefs, about 80 miles
east-southeast of Palawan. No cine was injured in the incident, and
there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott
Swift, expressed regret for the incident in a press statement. 5 Likewise,
US Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting
at the Department of Foreign Affairs (DFA) on February 4, "reiterated
his regrets over the grounding incident and assured Foreign Affairs
Secretazy Albert F. del Rosario that the United States will provide
appropriate compensation for damage to the reef caused by the
ship."6 By March 30, 2013, the US Navy-led salvage team had finished
removing the last piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in
representation of their respective sector/organization and others,
including minors or generations yet unborn, filed the present petition
agairtst Scott H. Swift in his capacity as Commander of the US 7th
Fleet, Mark A. Rice in his capacity as Commanding Officer of the USS
Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces,
Pacific and Balikatan 2013 Exercises Co-Director ("US respondents");
President Benigno S. Aquino III in his capacity as Commander-in-Chief
of the Armed Forces of the Philippines (AFP), DF A Secretary Albert F.
Del Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary
Voltaire T. Gazmin (Department of National Defense), Secretary Jesus
P. Paje (Department of Environment and Natural Resources), Vice-
Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command,
AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard
Commandant), Commodore Enrico Efren Evangelista (Philippine Coast
Guard-Palawan), and Major General Virgilio 0. Domingo (AFP
Commandant), collectively the "Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging
operations of the USS Guardian cause and continue to cause
environmental damage of such magnitude as to affect the provinces of
Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros
Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which
events violate their constitutional rights to a balanced and healthful States, and damages for personal injury or death, if such had
ecology. They also seek a directive from this Court for the institution of been the case;
civil, administrative and criminal suits for acts committed in violation of
environmental laws and regulations in connection with the grounding
e. Direct Respondents to cooperate in providing for the
incident.
attendance of witnesses and in the collection and production
of evidence, including seizure and delivery of objects
Specifically, petitioners cite the following violations committed by US connected with the offenses related to the grounding of the
respondents under R.A. No. 10067: unauthorized entry (Section 19); Guardian;
non-payment of conservation fees (Section 21 ); obstruction of law
enforcement officer (Section 30); damages to the reef (Section 20);
f. Require the authorities of the Philippines and the United
and destroying and disturbing resources (Section 26[g]). Furthermore,
States to notify each other of the disposition of all cases,
petitioners assail certain provisions of the Visiting Forces Agreement
wherever heard, related to the grounding of the Guardian;
(VFA) which they want this Court to nullify for being unconstitutional.

g. Restrain Respondents from proceeding with any purported

The numerous reliefs sought in this case are set forth in the final prayer
restoration, repair, salvage or post salvage plan or plans,
of the petition, to wit: WHEREFORE, in view of the foregoing,
including cleanup plans covering the damaged area of the
Petitioners respectfully pray that the Honorable Court: 1. Immediately
Tubbataha Reef absent a just settlement approved by the
issue upon the filing of this petition a Temporary Environmental
Honorable Court;
Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in
particular,
h. Require Respondents to engage in stakeholder and LOU
consultations in accordance with the Local Government
a. Order Respondents and any person acting on their behalf,
Code and R.A. 10067;
to cease and desist all operations over the Guardian
grounding incident;
i. Require Respondent US officials and their representatives
to place a deposit to the TRNP Trust Fund defined under
b. Initially demarcating the metes and bounds of the
Section 17 of RA 10067 as a bona .fide gesture towards full
damaged area as well as an additional buffer zone;
reparations;

c. Order Respondents to stop all port calls and war games

j. Direct Respondents to undertake measures to rehabilitate
under 'Balikatan' because of the absence of clear guidelines,
the areas affected by the grounding of the Guardian in light
duties, and liability schemes for breaches of those duties,
of Respondents' experience in the Port Royale grounding in
and require Respondents to assume responsibility for prior
2009, among other similar grounding incidents;
and future environmental damage in general, and
environmental damage under the Visiting Forces Agreement
in particular. k. Require Respondents to regularly publish on a quarterly
basis and in the name of transparency and accountability
such environmental damage assessment, valuation, and
d. Temporarily define and describe allowable activities of
valuation methods, in all stages of negotiation;
ecotourism, diving, recreation, and limited commercial
activities by fisherfolk and indigenous communities near or
around the TRNP but away from the damaged site and an l. Convene a multisectoral technical working group to provide
additional buffer zone; scientific and technical support to the TPAMB;

2. After summary hearing, issue a Resolution extending the m. Order the Department of Foreign Affairs, Department of
TEPO until further orders of the Court; National Defense, and the Department of Environment and
Natural Resources to review the Visiting Forces Agreement
and the Mutual Defense Treaty to consider whether their
3. After due proceedings, render a Decision which shall
provisions allow for the exercise of erga omnes rights to a
include, without limitation:
balanced and healthful ecology and for damages which
follow from any violation of those rights;
a. Order Respondents Secretary of Foreign Affairs, following
the dispositive portion of Nicolas v. Romulo, "to forthwith
n. Narrowly tailor the provisions of the Visiting Forces
negotiate with the United States representatives for the
Agreement for purposes of protecting the damaged areas of
appropriate agreement on [environmental guidelines and
TRNP;
environmental accountability] under Philippine authorities as
provided in Art. V[] of the VFA ... "
o. Declare the grant of immunity found in Article V ("Criminal
Jurisdiction") and Article VI of the Visiting Forces Agreement
b. Direct Respondents and appropriate agencies to
unconstitutional for violating equal protection and/or for
commence administrative, civil, and criminal proceedings
violating the preemptory norm of nondiscrimination
against erring officers and individuals to the full extent of the
incorporated as part of the law of the land under Section 2,
law, and to make such proceedings public;
Article II, of the Philippine Constitution;

c. Declare that Philippine authorities may exercise primary

p. Allow for continuing discovery measures;
and exclusive criminal jurisdiction over erring U.S. personnel
under the circumstances of this case;
q. Supervise marine wildlife rehabilitation in the Tubbataha
Reefs in all other respects; and
d. Require Respondents to pay just and reasonable
compensation in the settlement of all meritorious claims for
damages caused to the Tubbataha Reef on terms and 4. Provide just and equitable environmental rehabilitation
conditions no less severe than those applicable to other measures and such other reliefs as are just and equitable
under the premises.7 (Underscoring supplied.)
95
Since only the Philippine respondents filed their comment 8 to the
petition, petitioners also filed a motion for early resolution and motion
to proceed ex parte against the US respondents. 9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a
TEPO and ocular inspection and production orders, respondents assert
that: ( 1) the grounds relied upon for the issuance of a TEPO or writ of
Kalikasan have become fait accompli as the salvage operations on the
USS Guardian were already completed; (2) the petition is defective in
form and substance; (3) the petition improperly raises issues involving
the VFA between the Republic of the Philippines and the United States
of America; and ( 4) the determination of the extent of responsibility of
the US Government as regards the damage to the Tubbataha Reefs
rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of
petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice on a given
question."10 Specifically, it is "a party's personal and substantial interest
in a case where he has sustained or will sustain direct injury as a
result" of the act being challenged, and "calls for more than just a
generalized grievance."11 However, the rule on standing is a procedural
matter which this Court has relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers and legislators when the public interest so
requires, such as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to society, or
of paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr., 13 we recognized the
"public right" of citizens to "a balanced and healthful ecology which, for
the first time in our constitutional history, is solemnly incorporated in
the fundamental law." We declared that the right to a balanced and
healthful ecology need not be written in the Constitution for it is
assumed, like other civil and polittcal rights guaranteed in the Bill of
Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational
implications.1âwphi1 Such right carries with it the correlative duty to
refrain from impairing the environment. 14
On the novel element in the class suit filed by the petitioners minors in
Oposa, this Court ruled that not only do ordinary citizens have legal
standing to sue for the enforcement of environmental rights, they can
do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter expounded,
considers the "rhythm and harmony of nature." Nature means the
created world in its entirety. Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources to the
end that their exploration, development and utilization be equitably
accessible to the present a:: well as future generations. Needless to
say, every generation has a responsibility to the next to preserve that
rhythm and harmony for the full 1:njoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their right to a
sound environment constitutes, at the same time, the performance of
their obligation to ensure the protection of that right for the generations
to come.15 (Emphasis supplied.)
96
The liberalization of standing first enunciated in Oposa, insofar as it
refers to minors and generations yet unborn, is now enshrined in the
Rules which allows the filing of a citizen suit in environmental cases.
The provision on citizen suits in the Rules "collapses the traditional rule
on personal and direct interest, on the principle that humans are
stewards of nature."16
Having settled the issue of locus standi, we shall address the more
fundamental question of whether this Court has jurisdiction over the US
respondents who did not submit any pleading or manifestation in this
case.
The immunity of the State from suit, known also as the doctrine of
sovereign immunity or non-suability of the State, 17 is expressly
provided in Article XVI of the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto, 18 we discussed the
principle of state immunity from suit, as follows:
The rule that a state may not be sued without its consent, now ·
expressed in Article XVI, Section 3, of the 1987 Constitution, is one of
the generally accepted principles of international law that we have
adopted as part of the law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of
incorporation. Under this doctrine, as accepted by the majority of
states, such principles are deemed incorporated in the law of every
civilized state as a condition and consequence of its membership in the
society of nations. Upon its admission to such society, the state is
automatically obligated to comply with these principles in its relations
with other states.
As applied to the local state, the doctrine of state immunity is based on
the justification given by Justice Holmes that ''there can be no legal
right against the authority which makes the law on which the right
depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other
practical reasons for the enforcement of the doctrine. In the case of the
foreign state sought to be impleaded in the local jurisdiction, the added
inhibition is expressed in the maxim par in parem, non habet imperium.
All states are sovereign equals and cannot assert jurisdiction over one
another. A contrary disposition would, in the language of a celebrated
case, "unduly vex the peace of nations." [De Haber v. Queen of
Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state
without its consent, it is also applicable to complaints filed against
officials of the state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the judgment against such
officials will require the state itself to perform an affirmative act to
satisfy the same,. such as the appropriation of the amount needed to
pay the damages awarded against them, the suit must be regarded as
against the state itself although it has not been formally impleaded.
[Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the state
may move to dismiss the comp.taint on the ground that it has been
filed without its consent. 19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the
Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals, 20 we further expounded on
the immunity of foreign states from the jurisdiction of local courts, as
follows:
The precept that a State cannot be sued in the courts of a foreign state
is a long-standing rule of customary international law then closely
identified with the personal immunity of a foreign sovereign from suit
and, with the emergence of democratic states, made to attach not just
to the person of the head of state, or his representative, but also
distinctly to the state itself in its sovereign capacity. If the acts giving
rise to a suit arc those of a foreign government done by its foreign
agent, although not necessarily a diplomatic personage, but acting in
his official capacity, the complaint could be barred by the immunity of
the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state
itself. The proscription is not accorded for the benefit of an individual
but for the State, in whose service he is, under the maxim -par in
parem, non habet imperium -that all states are soverr~ign equals and
cannot assert jurisdiction over one another. The implication, in broad
terms, is that if the judgment against an official would rec 1uire the
state itself to perform an affirmative act to satisfy the award, such as
the appropriation of the amount needed to pay the damages decreed
against him, the suit must be regarded as being against the state itself,
although it has not been formally impleaded. 21 (Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic
immunity, the privilege is not an immunity from the observance of the
law of the territorial sovereign or from ensuing legal liability; it is, rather,
an immunity from the exercise of territorial jurisdiction. 22
In United States of America v. Judge Guinto, 23 one of the consolidated
cases therein involved a Filipino employed at Clark Air Base who was
arrested following a buy-bust operation conducted by two officers of
the US Air Force, and was eventually dismissed from his employment
when he was charged in court for violation of R.A. No. 6425. In a
complaint for damages filed by the said employee against the military
officers, the latter moved to dismiss the case on the ground that the
suit was against the US Government which had not given its consent.
The RTC denied the motion but on a petition for certiorari and
prohibition filed before this Court, we reversed the RTC and dismissed
the complaint. We held that petitioners US military officers were acting
in the exercise of their official functions when they conducted the buy-
bust operation against the complainant and thereafter testified against
him at his trial. It follows that for discharging their duties as agents of
the United States, they cannot be directly impleaded for acts imputable
to their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from
being sued in the courts of another State without the former's consent
or waiver has evolved into a restrictive doctrine which distinguishes
sovereign and governmental acts (Jure imperil") from private,
commercial and proprietary acts (Jure gestionis). Under the restrictive
rule of State immunity, State immunity extends only to acts Jure
imperii. The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of the
foreign sovereign, its commercial activities or economic affairs.24
In Shauf v. Court of Appeals, 25 we discussed the limitations of the State
immunity principle, thus:
It is a different matter where the public official is made to account in his
capacity as such for acts contrary to law and injurious to the rights of
plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the
Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. :
"Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of government officials or officers are not acts of the
State, and an action against the officials or officers by one whose rights
have been invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of immunity of the
State from suit. In the same tenor, it has been said that an action at law
or suit in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the State, he
97
violates or invades the personal and property rights of the plaintiff,
under an unconstitutional act or under an assumption of authority
which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its
consent." The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state that the
doctrine of immunity from suit will not apply and may not be invoked
where the public official is being sued in his private and personal
capacity as an ordinary citizen. The cloak of protection afforded the
officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers vested
in him. It is a well-settled principle of law that a public official may be
liable in his personal private capacity for whatever damage he may
have caused by his act done with malice and in bad faith, or beyond
the scope of his authority or jurisdiction. 26 (Emphasis supplied.) In this
case, the US respondents were sued in their official capacity as
commanding officers of the US Navy who had control and supervision
over the USS Guardian and its crew. The alleged act or omission
resulting in the unfortunate grounding of the USS Guardian on the
TRNP was committed while they we:re performing official military
duties. Considering that the satisfaction of a judgment against said
officials will require remedial actions and appropriation of funds by the
US government, the suit is deemed to be one against the US itself. The
principle of State immunity therefore bars the exercise of jurisdiction by
this Court over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio
took the position that the conduct of the US in this case, when its
warship entered a restricted area in violation of R.A. No. 10067 and
caused damage to the TRNP reef system, brings the matter within the
ambit of Article 31 of the United Nations Convention on the Law of the
Sea (UNCLOS). He explained that while historically, warships enjoy
sovereign immunity from suit as extensions of their flag State, Art. 31
of the UNCLOS creates an exception to this rule in cases where they
fail to comply with the rules and regulations of the coastal State
regarding passage through the latter's internal waters and the territorial
sea.
According to Justice Carpio, although the US to date has not ratified
the UNCLOS, as a matter of long-standing policy the US considers
itself bound by customary international rules on the "traditional uses of
the oceans" as codified in UNCLOS, as can be gleaned from previous
declarations by former Presidents Reagan and Clinton, and the US
judiciary in the case of United States v. Royal Caribbean Cruise Lines,
Ltd.27
The international law of the sea is generally defined as "a body of
treaty rules arid customary norms governing the uses of the sea, the
exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public international law, regulating
the relations of states with respect to the uses of the oceans." 28 The
UNCLOS is a multilateral treaty which was opened for signature on
December 10, 1982 at Montego Bay, Jamaica. It was ratified by the
Philippines in 1984 but came into force on November 16, 1994 upon
the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to
balance State sovereignty (mare clausum) and the principle of freedom
of the high seas (mare liberum). 29 The freedom to use the world's
marine waters is one of the oldest customary principles of international
law.30 The UNCLOS gives to the coastal State sovereign rights in
varying degrees over the different zones of the sea which are: 1)
internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive
economic zone, and 5) the high seas. It also gives coastal States more
or less jurisdiction over foreign vessels depending on where the vessel
is located.31
Insofar as the internal waters and territorial sea is concerned, the
Coastal State exercises sovereignty, subject to the UNCLOS and other
rules of international law. Such sovereignty extends to the air space
over the territorial sea as well as to its bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they
continue to enjoy sovereign immunity subject to the following
exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the
coastal State
If any warship does not comply with the laws and regulations of the
coastal State concerning passage through the territorial sea and
disregards any request for compliance therewith which is made to it,
the coastal State may require it to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or
damage to the coastal State resulting from the non-compliance by a
warship or other government ship operated for non-commercial
purposes with the laws and regulations of the coastal State concerning
passage through the territorial sea or with the provisions of this
Convention or other rules of international law.
Article 32
Immunities of warships and other government ships operated for non-
commercial purposes
With such exceptions as are contained in subsection A and in articles
30 and 31, nothing in this Convention affects the immunities of
warships and other government ships operated for non-commercial
purposes. (Emphasis supplied.) A foreign warship's unauthorized entry
into our internal waters with resulting damage to marine resources is
one situation in which the above provisions may apply. But what if the
offending warship is a non-party to the UNCLOS, as in this case, the
US?
An overwhelming majority - over 80% -- of nation states are now
members of UNCLOS, but despite this the US, the world's leading
maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS'
negotiation and drafting, the U.S. delegation ultimately voted against
and refrained from signing it due to concerns over deep seabed mining
technology transfer provisions contained in Part XI. In a remarkable,
multilateral effort to induce U.S. membership, the bulk of UNCLOS
member states cooperated over the succeeding decade to revise the
objection.able provisions. The revisions satisfied the Clinton
administration, which signed the revised Part XI implementing
agreement in 1994. In the fall of 1994, President Clinton transmitted
UNCLOS and the Part XI implementing agreement to the Senate
requesting its advice and consent. Despite consistent support from
President Clinton, each of his successors, and an ideologically diverse
array of stakeholders, the Senate has since withheld the consent
required for the President to internationally bind the United States to
UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee
(SFRC) during the 108th and 110th Congresses, its progress continues
to be hamstrung by significant pockets of political ambivalence over
U.S. participation in international institutions. Most recently, 111 th
Congress SFRC Chairman Senator John Kerry included "voting out"
UNCLOS for full Senate consideration among his highest priorities.
98
This did not occur, and no Senate action has been taken on UNCLOS
by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by
President Reagan on March 10, 1983 that the US will "recognize the
rights of the other , states in the waters off their coasts, as reflected in
the convention [UNCLOS], so long as the rights and freedom of the
United States and others under international law are recognized by
such coastal states", and President Clinton's reiteration of the US
policy "to act in a manner consistent with its [UNCLOS] provisions
relating to traditional uses of the oceans and to encourage other
countries to do likewise." Since Article 31 relates to the "traditional
uses of the oceans," and "if under its policy, the US 'recognize[s] the
rights of the other states in the waters off their coasts,"' Justice Carpio
postulates that "there is more reason to expect it to recognize the
rights of other states in their internal waters, such as the Sulu Sea in
this case."
As to the non-ratification by the US, Justice Carpio emphasizes that
"the US' refusal to join the UN CLOS was centered on its disagreement
with UN CLOS' regime of deep seabed mining (Part XI) which
considers the oceans and deep seabed commonly owned by
mankind," pointing out that such "has nothing to do with its [the US']
acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's
Corps publicly endorses the ratification of the UNCLOS, as shown by
the following statement posted on its official website:
The Convention is in the national interest of the United States because
it establishes stable maritime zones, including a maximum outer limit
for territorial seas; codifies innocent passage, transit passage, and
archipelagic sea lanes passage rights; works against "jurisdictiomtl
creep" by preventing coastal nations from expanding their own
maritime zones; and reaffirms sovereign immunity of warships,
auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our national
interests by enhancing the ability of the US to assert its sovereign
rights over the resources of one of the largest continental shelves in
the world. Further, it is the Law of the Sea Convention that first
established the concept of a maritime Exclusive Economic Zone out to
200 nautical miles, and recognized the rights of coastal states to
conserve and manage the natural resources in this Zone.35
We fully concur with Justice Carpio's view that non-membership in the
UNCLOS does not mean that the US will disregard the rights of the
Philippines as a Coastal State over its internal waters and territorial
sea. We thus expect the US to bear "international responsibility" under
Art. 31 in connection with the USS Guardian grounding which
adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine
that our long-time ally and trading partner, which has been actively
supporting the country's efforts to preserve our vital marine resources,
would shirk from its obligation to compensate the damage caused by
its warship while transiting our internal waters. Much less can we
comprehend a Government exercising leadership in international
affairs, unwilling to comply with the UNCLOS directive for all nations to
cooperate in the global task to protect and preserve the marine
environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a
regional basis, directly or through competent international
organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent with
this Convention, for the protection and preservation of the marine
environment, taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy
is beyond dispute. Although the said treaty upholds the immunity of
warships from the jurisdiction of Coastal States while navigating
the.latter's territorial sea, the flag States shall be required to leave the
territorial '::;ea immediately if they flout the laws and regulations of the
Coastal State, and they will be liable for damages caused by their
warships or any other government vessel operated for non-commercial
purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in
the VFA. Likewise, they invoke federal statutes in the US under which
agencies of the US have statutorily waived their immunity to any
action. Even under the common law tort claims, petitioners asseverate
that the US respondents are liable for negligence, trespass and
nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines to promote "common
security interests" between the US and the Philippines in the region. It
provides for the guidelines to govern such visits of military personnel,
and further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel
and aircraft, importation and exportation of equipment, materials and
supplies.36 The invocation of US federal tort laws and even common
law is thus improper considering that it is the VF A which governs
disputes involving US military ships and crew navigating Philippine
waters in pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains only to
criminal jurisdiction and not to special civil actions such as the present
petition for issuance of a writ of Kalikasan. In fact, it can be inferred
from Section 17, Rule 7 of the Rules that a criminal case against a
person charged with a violation of an environmental law is to be filed
separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the
issuance of the writ of kalikasan shall not preclude the filing of separate
civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or
non-application of criminal jurisdiction provisions of the VF A to US
personnel who may be found responsible for the grounding of the USS
Guardian, would be premature and beyond the province of a petition
for a writ of Kalikasan. We also find it unnecessary at this point to
determine whether such waiver of State immunity is indeed absolute.
In the same vein, we cannot grant damages which have resulted from
the violation of environmental laws. The Rules allows the recovery of
damages, including the collection of administrative fines under R.A.
No. 10067, in a separate civil suit or that deemed instituted with the
criminal action charging the same violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a
petition for issuance of a writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is
submitted for decision, the court shall render judgment granting or
denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist
from committing acts or neglecting the performance of a duty
in violation of environmental laws resulting in environmental
destruction or damage;
99
(b) Directing the respondent public official, govemment
agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official, government
agency, private person or entity to monitor strict compliance
with the decision and orders of the court;
(d) Directing the respondent public official, government
agency, or private person or entity to make periodic reports
on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people
to a balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of the environment,
except the award of damages to individual petitioners.
(Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this
petition has become moot in the sense that the salvage operation
sought to be enjoined or restrained had already been accomplished
when petitioners sought recourse from this Court. But insofar as the
directives to Philippine respondents to protect and rehabilitate the coral
reef stn icture and marine habitat adversely affected by the grounding
incident are concerned, petitioners are entitled to these reliefs
notwithstanding the completion of the removal of the USS Guardian
from the coral reef. However, we are mindful of the fact that the US
and Philippine governments both expressed readiness to negotiate and
discuss the matter of compensation for the damage caused by the
USS Guardian. The US Embassy has also declared it is closely
coordinating with local scientists and experts in assessing the extent of
the damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not
proscribed by the Rules. As can be gleaned from the following
provisions, mediation and settlement are available for the consideration
of the parties, and which dispute resolution methods are encouraged
by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial conference,
the court shall inquire from the parties if they have settled the dispute;
otherwise, the court shall immediately refer the parties or their counsel,
if authorized by their clients, to the Philippine Mediation Center (PMC)
unit for purposes of mediation. If not available, the court shall refer the
case to the clerk of court or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty
(30) days from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the
expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will
schedule the continuance of the pre-trial. Before the scheduled date of
continuance, the court may refer the case to the branch clerk of court
for a preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the
parties and their counsels under oath, and they shall remain under
oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a No pronouncement as to costs.
settlement of the dispute. The judge may issue a consent decree
approving the agreement between the parties in accordance with law,
SO ORDERED.
morals, public order and public policy to protect the right of the people
to a balanced and healthful ecology.

xxxx

SEC. 10. Efforts to settle.- The court shall endeavor to make the
parties to agree to compromise or settle in accordance with law at any
stage of the proceedings before rendition of judgment. (Underscoring
supplied.)

The Court takes judicial notice of a similar incident in 2009 when a

guided-missile cruiser, the USS Port Royal, ran aground about half a
mile off the Honolulu Airport Reef Runway and remained stuck for four
days. After spending $6.5 million restoring the coral reef, the US
government was reported to have paid the State of Hawaii $8.5 million
in settlement over coral reef damage caused by the grounding.38

To underscore that the US government is prepared to pay appropriate

compensation for the damage caused by the USS Guardian grounding,
the US Embassy in the Philippines has announced the formation of a
US interdisciplinary scientific team which will "initiate discussions with
the Government of the Philippines to review coral reef rehabilitation
options in Tubbataha, based on assessments by Philippine-based
marine scientists." The US team intends to "help assess damage and
remediation options, in coordination with the Tubbataha Management
Office, appropriate Philippine government entities, non-governmental
organizations, and scientific experts from Philippine universities."39

A rehabilitation or restoration program to be implemented at the cost of

the violator is also a major relief that may be obtained under a
judgment rendered in a citizens' suit under the Rules, viz:

RULES

SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant

to the plaintiff proper reliefs which shall include the protection,
preservation or rehabilitation of the environment and the payment of
attorney's fees, costs of suit and other litigation expenses. It may also
require the violator to submit a program of rehabilitation or restoration
of the environment, the costs of which shall be borne by the violator, or
to contribute to a special trust fund for that purpose subject to the
control of the court.1âwphi1

In the light of the foregoing, the Court defers to the Executive Branch
on the matter of compensation and rehabilitation measures through
diplomatic channels. Resolution of these issues impinges on our
relations with another State in the context of common security interests
under the VFA. It is settled that "[t]he conduct of the foreign relations of
our government is committed by the Constitution to the executive and
legislative-"the political" --departments of the government, and the
propriety of what may be done in the exercise of this political power is
not subject to judicial inquiry or decision." 40

On the other hand, we cannot grant the additional reliefs prayed for in
the petition to order a review of the VFA and to nullify certain immunity
provisions thereof.

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec.

Zamora,41 the VFA was duly concurred in by the Philippine Senate and
has been recognized as a treaty by the United States as attested and
certified by the duly authorized representative of the United States
government. The VF A being a valid and binding agreement, the
parties are required as a matter of international law to abide by its
terms and provisions.42 The present petition under the Rules is not the
proper remedy to assail the constitutionality of its provisions.
WHEREFORE, the petition for the issuance of the privilege of the Writ
of Kalikasan is hereby DENIED.
100
 South-West Africa, "which, as a consequence of the [then] late war
have ceased to be under the sovereignty of the States which formerly
11 July 1950 governed them". The earliest document (or at any rate one of the
earliest documents to contain an exposition of this new policy is the
General List No. 10 Memorandum by General Smuts, called "The League of Nations : A
INTERNATIONAL COURT OF JUSTICE Practical Suggestion", which will be found in Volume II, pages 23-60, of
INTERNATIONAL STATUS OF SOUTH WEST AFRICA Hunter Miller's book, "The Drafting of the Covenant". This
ADVISORY OPINION Memorandum, so far as the Mandates System is concerned, deals with
policy and principles rather than with legal machinery. Its author held
BEFOR President: Basdevant; the view that the "authority, control or administration" of these
E: Vice-President: Guerrero; dependent territories should be vested in the League, but that, as "joint
Judges: Alvarez, Hackworth, Winiarski, Zoricic, De Visscher, international administration in so far as it has been applied to territories
Sir Arnold McNair, KI-aestad, Badawi Pasha, Krylov, Read, or peoples, has been found wanting wherever it has been tried", it
Hsu Mo, Azevedo would be preferable that the League, instead of exercising these
PermaLi http://www.worldcourts.com/icj/eng/decisions/ powers itself, should delegate them to a "mandatory State". Beyond
nk: 1950.07.11_status_of_SW_Africa.htm that the Memorandum does not discuss the legal nature of the relations
International Status of South West Africa, Advisory Opinion, between the League and the Mandatory. From page 508 of Volume 1
Citation:
1950 I.C.J. 128 (July 11) of the same book, it seems probable that, in the course of the
SEPARATE OPINION BY SIR ARNOLD McNAIR preparatory work for the treaties-of peace, the critical resolution
regarding the Mandates System was presented and adopted in English
I concur in the Replies given by the majority of the Court to the General ; in the French text there appear the words "mandat", "mandataire" and
Question and to Questions (b) and (c). As to Question (a), I regret that "tutelle".[p148]
1 differ as to the obligation to make reports and as to the transfer of the
administrative supervision of the Council of the League of Nations What is the duty of an international tribunal when confronted with a
(including its Rules of Procedure in respect of Petitions) to the United new legal institution the object and terminology of which are
Nations. As my approach to the main problems differs somewhat from reminiscent of the rules and institutions of private law? To what extent
that of the majority, I shall give my own reasons for answering each is it useful or necessary to examine what may at first sight appear to be
question, except in regard to Question (b). relevant analogies in private law systems and draw help and inspiration
from them? International law has recruited and continues to recruit
General Question, and Question (a) many of its rules and institutions from private systems of law. Article 38
(1) (c) of the Statute of the Court bears witness that this process is still
The crucial problems raised by Question (a) submitted to the Court active, and it will be noted that this article authorizes the Court to
are : What is the effect of the dissolution of the League of Nations in "apply .... (c) the general principles of law recognized by civilized
April, 1946, upon the Mandate for South-West Africa, and which, if any, nations". The way in which international law borrows from this source
of the obligations arising from it are still binding upon the Union of is not by means of importing private law institutions "lock, stock and
South Africa (which I shall also refer to as "the Union"). barrel", ready-made and fully equipped with a set of rules. It would be
difficult to reconcile such a process with the application of "the general
The solution submitted by Counsel for the Union Government for the principles of law". In my opinion, the true view of the duty of
first of these problems can be .stated very simply : the Mandate is international tribunals in this matter is to regard any features or
based on the analogy of the contract of mandate in private law, the terminology which are reminiscent of the rules and institutions of
League being the Mandator and the Union the Mandatory ; the private law as an indication of policy and principles rather than as
relationship cannot subsist without a Mandator at one end and a directly importing these rules and institutions. I quote a sentence from
Mandatory at the other ; "as between the League and the Union a judgment by Chief Justice Innes in the decision of the Supreme Court
Government, the Mandate therefore came to an end, and that means of South Africa in Rex v. Christian, South African Law Reports [1924],
that, as from the dissolution of the League, there has been no Appellate Division, 101, 112 :
Mandate" ; "the Mandates lapsed and the Covenant itself ceased to be
a legally valid document" ; and "the dissolution of the League had the "Article 22 [of the Covenant] describes the administration of the
effect of extinguishing all international legal rights and obligations territories and peoples with which it deals as a tutelage to be exercised
under the Mandates System". This conclusion left it to be inferred that by the governing Power as mandatory on behalf of the League. Those
the Union Government would thereupon be free to regulate the future terms were probably employed, not in their strict legal sense, but as
status of South-West Africa as a domestic matter. indicating the policy which the governing authority should pursue. The
relationship between the League and the mandatory could not with any
For three separate reasons I have formed the opinion that a Mandate legal accuracy be described as that of principal and agent."
is a more durable and a more complex institution than this solution
suggests, and I cannot accept it. My reasons rest on : [p147] Let us then seek to discover the underlying policy and principles of
Article 22 and of the Mandates. No technical significance can be
1. The legal nature of the Mandates System. attached to the words "sacred trust of civilization", but they are an apt
2. The objective character of Article 22 of the Covenant of the League description of the policy of the authors of the Mandates System, and
of Nations. the words "sacred trust" were not used here for the first time in relation
3. The terms of the Mandate for South-West Africa and their legal to dependent peoples (see Duncan Hall, Mandates, Dependencies and
nature. Trusteeships, pp. 97-100). Any English lawyer who was instructed to
prepare the legal instruments required to give effect to the policy of
*** Article 22 would inevitably be reminded of, and influenced by, the trust
of English and American law, though he would soon realize the need of
I. The legal nature of the Mandates System. The principal documents much adaptation for the purposes of the new international institution.
responsible for the creation of the Mandates System are Article 22 of Professor Brierly's opinion, stated in the British Year Book of
the Covenant of the League of Nations and the several Mandates International Law, 1929, pages 217-219, that the governing principle of
confirmed in pursuance of it by the Council of the League. The main the Mandates [p149]
rule of policy proclaimed by Article 22 of the Covenant is that to certain System is to be found in the trust, and his quotation from an article by
territories "which are inhabited by peoples not yet able to stand by M. Lepaulle, are here very much in point, and it is worth noting that the
themselves under the strenuous conditions of the modern world, there historical basis of the legal enforcement of the English trust is that it
should be applied the principle that the well-being and development of was something which was binding upon the conscience of the trustee;
such peoples form a sacred trust of civilization and that securities for that is why it was legally enforced. It also seems probable that the
the performance of this trust should be embodied in this Covenant". conception of the Mandates System owes something to the French
This policy was applied to certain colonies and territories, including tutelle.
101

Nearly every legal system possesses some institution whereby the
property (and sometimes the persons) of those who are not sui juris,
such as a minor or a lunatic, can be entrusted to some responsible
person as a trustee or tuteur or curateur. The Anglo-American trust
serves this purpose, and another purpose even more closely akin to
the Mandates System, namely, the vesting of property in trustees, and
its management by them in order that the public or some class of the
public may derive benefit or that some public purpose may be served.
The trust has frequently been used to protect the weak and the
dependent, in cases where there is "great might on the one side and
unmight on the other", and the English courts have for many centuries
pursued a vigorous policy in the administration and enforcement of
trusts.
There are three general principles which are common to all these
institutions : populations. In how far the legal principles of these analogous
(a) that the control of the trustee, tuteur or curateur over the property is
limited in one way or another ; he is not in the position of the normal
complete owner, who can do what he likes with his own, because he is
precluded from administering the property for his own personal benefit;
(b) that the trustee, tuteur or curateur is under some kind of legal
obligation, based on confidence and conscience, to carry out the trust
or mission confided to him for the benefit of some other person or for
some public purpose
(c) that any attempt by one of these persons to absorb the property
entrusted to him into his own patrimony would be illegal and would be
prevented by the law.
These are some of the general principles of private law which throw
light upon this new institution, and I am convinced that in its future
development the law governing the trust is a source from which much
can be derived. The importance of the Mandates System is marked by
the fact that, after the experience of a quarter of a century, the Charter
of the United Nations made provision for an "International Trusteeship
System", which was described by a [p150] Resolution of the Assembly
of the League of April 18th, 1946, as embodying "principles
corresponding to those declared in Article 22 of the Covenant of the
League".
Upon sovereignty a very few words will suffice. The Mandates System
(and the "corresponding principles" of the International Trusteeship
System) is a new institution-—a new relationship between territory and
its inhabitants on the one hand and the government which represents
them internationally on the other— a new species of international
government, which does not fit into the old conception of sovereignty
and which is alien to it. The doctrine of sovereignty has no application
to this new system. Sovereignty over a Mandated Territory is in
abeyance ; if and when the inhabitants of the Territory obtain
recognition as an independent State, as has already happened in the
case of some of the Mandates, sovereignty will revive and vest in the
new State. What matters in considering this new institution is not where
sovereignty lies, but what are the rights and duties of the Mandatory in
regard to the area of territory being administered by it. The answer to
that question depends on the international agreements creating the
system and the rules of law which they attract. Its essence is that the
Mandatory acquires only a limited title to the territory entrusted to it,
and that the measure of its powers is what is necessary for the
purpose of carrying out the Mandate. "The Mandatory's rights, like the
trustee's, have their foundation in his obligations ; they are 'tools given
to him in order to achieve the work assigned to him' ; he has 'all the
tools necessary for such end, but only those'." (See Brierly, referred to
above.)
Some practical confirmation of these suggestions of the relevant
principles can be obtained from judgments delivered by the Courts of
two Mandatories—the Union of South Africa and the Common-wealth
of Australia. (As the Reports of these decisions are riot available
everywhere, I must quote extracts from them.) In Rex v. Christian,
already cited, before the Supreme Court of South Africa, the
Honourable J. de Villiers, Judge of ,4ppeal, said : powers of the mandatory. Thus the article quoted, while recognizing
"It is true there is no cession of the territory to the Union Government
as in the case of other possessions which formerly belonged to
102
Germany. By Article 257 South-West Africa is said to be transferred to
the Union Government in its capacity as mandatory. But, as I shall
show, by that is meant that the Union Government is bound by the
terms of the treaty, as well as in honour, scrupulously to carry out the
terms of the Mandate. South-West Africa is transferred to the people of
the Union not by way of absolute property, but in the same way as a
trustee is in possession of the property of the cestui que trust or a
guardian of the property of his [p151] ward. The former has the
administration and control of the property, but the property has to be
administered exclusively in the interests of the latter. The legal terms
employed in Article 22—trust, tutelage, mandate—cannot be taken
literally as expressing the definite conceptions for which they stand in
law. They are to be understood as indicating rather the spirit in which
the advanced nation who is honoured with a mandate should
administer the territory entrusted to its care and discharge its duties to
the inhabitants of the territory, more especially towards the indigenous
municipal institutions should be applied in these international relations I
shall not take upon myself to pronounce. But I may be permitted to say
that in my opinion the use of the term shows that, in so far as those
legal principles are reasonably applicable to these novel institutions,
they should loyally be applied. No doubt most difficult questions will
arise. In municipal law a principal can, e.g., revoke his authority at his
own mere pleasure. Such is the rule. Could this be done in the case of
South-West Africa where the Union Government, if there is a principal
; at all, must be considered as a joint principal together with all the other
high contracting parties ?" (P. 121.)
And Sir J. W. Wessels, Judge of Appeal, said :
"This leaves us with the mandatory power. Now although the term
mandatory power seems to imply that the mandatory acts as the agent
of the League of Nations or of the associated powers, yet in fact that is
not so. Neither by the Treaty of Versailles nor by the mandate of the
League of Nations has the Union of South Africa been appointed as a
mere agent. There is no question here of respondent superior...." (P.
136.)
I share this view that the legal character of the Mandates cannot be
explained by reference to the private law contract of mandate or
agency. The words "Mandate" and "Mandatory" were employed as
non-technical terms to denote that the Mandatory was doing something
"on behalf of the League", and that that is all that can be extracted from
their use. It is primarily from the principles of the trust that help can be
obtained on the side of private law.
In Ffrost v. Stevenson (1937), 58 Commonwealth Law Reports 528,
Annual Digest and Reports of Public International Law Cases, 1935-
1937, Case No. 29, the High Court of Australia, on appeal from the
Supreme Court of New South Wales, had to decide, on a matter of
extradition, whether or not "the Mandated Territory of New Guinea
[also a C Mandate] is a place out of His Majesty's Dominions in which
His Majesty has jurisdiction....". The High Court gave an affirmative
answer. This decision involved a consider-[p152]ation of the nature of
a Mandate and the powers of a Mandatory, and the following extracts
from the judgments of Chief Justice Latham and Mr. Justice Evatt are
of interest. The former said :
"The grant of mandates introduced a new principle into international
law...." (P. 550.)
"The position of a mandatory in relation to a mandated territory must
be regarded as sui generis. The Treaty of Peace, read as a whole,
avoids cession of territory to the mandatory, and, in the absence of
definite evidence to the contrary, it must, I think, be taken that New
Guinea has not become part of the dominions of the Crown." (P. 552.)
"The intention of this provision [Article 257 of the Treaty of Peace] must
be taken to have been to provide for the transfer of the territory to the
mandatory, but only in its capacity as a mandatory. The mandatory, as
a kind of international trustee, receives the territory subject to the
provisions of the mandate which limit the exercise of the governmental
that the territory is actually to be transferred to the mandatory,
emphasizes the conditions and limitations upon governmental power
which constitute the essence of the mandatory system. Thus the title
under which the territory is to be held as a mandated territory is
different from that under which a territory transferred by simple cession
would have been held. The article shows that the intention was to
achieve a transfer of a territory without making that territory in the
ordinary sense a possession of the mandatory. A territory which is a
'possession' can be ceded by a power to another power so that the
latter power will have complete authority in relation to that territory.
Such a cession by a mandatory power would be quite inconsistent with
the whole conception of a mandate. A mandated territory is not a
possession of a power in the ordinary sense." (Pp. 552, 553.)
Mr. Justice Evatt, after referring to a number of British decisions on the
status of protectorates, said : ------------------------------
"It is quite fallacious to infer from the fact that, in pursuance of its
international duties under the mandate, the Commonwealth of Australia
exercises full and complete jurisdiction over the territory as though it
possessed unlimited sovereignty therein, either that the territory (a) is a
British possession, or (b) is within the King's dominions, or (c) has ever
been assimilated or incorporated within the Commonwealth or its
territories...." (P. 551.)
"Therefore, it can be stated that, despite certain differences of opinion
as to such questions as sovereignty in relation to the mandated
territories, every recognized authority in international law accepts the
view that the Mandated Territory of New Guinea is not part of the
King's dominions. Over and over again this fact [p153]has been
recognized by the leading jurists of Europe including many who have
closely analyzed such matters in relation to the organization and
administration of the League of Nations." (P. 582.)
He then adopted Professor Brierly's view, referred to above, as to 'the
governing principle of the Mandates System.
Reference should also be made to Mr. Justice Evatt's judgment in
Jolley v. Mainka (1933), 49 Commonwealth Law Reports 242, at pages
264-292, Annual Digest, 1933-1934, Case No. 17, relating to the same
Mandated Territory.
***
2. The objective character of Article 22 of the Covenant of the League
of Nations
From time to time it happens that a group of great Powers, or a large
number of States both great and small, assume a power to create by a
multipartite treaty some new international régime or status, which soon
acquires a degree of acceptance and durability extending beyond the
limits of the actual contracting parties, and giving it an objective
existence. This power is used when some public interest is involved,
and its exercise often occurs in the course of the peace settlement at
the end of a great war. In 1920 the Council of the League had to deal
with a dispute between Finland and Sweden, Which, inter alia, involved
an examination of the existing condition of a Convention dated March
30, 1856, between France and Great Britain on the one hand and
Russia on the other, whereby Russia, in compliance with the desire of
the other two States, declared "that the Aaland Islands shall not be
fortified, and that no military or naval base shall be maintained or
created there". (This Convention was attached to and became all
integral part of the General Treaty of Peace of the same date, made
between seven States, which brought the Crimean War to an end.)
Sweden claimed that this status of demilitarization was still in force in
1920 in spite of many intervening events, and that she, though not a
party to the Convention or Peace Treaty of 1856, was entitled to the
benefit of it; her claim was based on the allegation of an international
servitude. As the Permanent Court of International Justice had not then
come into existence, the Council of the League set up a Commission of
Jurists; Professor F. Larnaude (President), Professor A. Struycken and
Professor Max Huber, and referred certain legal questions to them.
They received written statements and heard oral arguments on behalf
of Finland and Sweden. The Jurists rejected the argument based on an
alleged servitude and reported that the provisions of the Convention
and Treaty of 1856 for demilitarization were still in force.[p154]
"These provisions [they said] were laid down in European interests.
103
They constituted a special international status. relating to military
considerations, for the Aaland Islands. It follows that until these
provisions are duly replaced by others, every State interested
[including Sweden which was not a party] has the right to insist upon
compliance with them. It also follows that any State in possession of
the Islands must conform to the obligations binding upon it, arising out
of the system of demilitarization established by these provisions."
The Report [FN1] contains many expressions which illuminate this
conclusion, e.g.,
----------------------------------------------------------------------------------------------
[FN1] L. N. Off. Jo. Oct. 1920, Spec. Sup. No. 3.
----------------------------------------------------------------------------------------------
------------------------------
"The Powers have, on many occasions since 1815, and especially at
the conclusion of peace treaties, tried to create true objective law, a
real political status the effects of which are felt outside the immediate
circle of contracting parties",
and again, "the character of a settlement regulating European
interests", "European law", and "the objective nature of the settlement".
It may seem a far cry from the Aaland Islands to South-West Africa, but
reference to this case is demanded by the high standing of the
members of the Commission and by the relevance of their reasoning to
the present problems. I may also refer to the statement by the
Permanent Court in the SS. Wimbledon case (Series A. No. 1, p. 22)
that as a result of Article 380 of the Treaty of Versailles of 1919 the Kiel
Canal "has become an international waterway intended to provide
under treaty guarantee easier access to the Baltic for the benefit of all
nations of the world"-—which was referred to as "its new regime".
The Mandates System seems to me to be an a fortiori case. The
occasion was the end of a world war. The parties to the treaties of
peace incorporating the Covenant of the League and establishing the
system numbered thirty. The public interest extended far beyond
Europe. Article 22 proclaimed "the principle that the well-being and
development of such peoples form a sacred trust of civilization and that
securities for the performance of this trust should be embodied in the
Covenant". A large part of the civilized world concurred in opening a
new chapter in the life of between fifteen and twenty millions of people,
and this article was the instrument adopted to give effect to their
desire. In my opinion, the new régime established in pursuance of this
"principle" has more than a purely contractual basis, and the territories
subjected to it are impressed with a special legal status, designed to
last [p155] until modified in the manner indicated by Article 22. The
dissolution of the League has produced certain difficulties, but, as I
shall explain, they are mechanical difficulties, and the policy and
principles of the new institution have survived the impact of the events
of 1939 to 946, and have indeed been reincarnated by the Charter
under the name of the "International Trusteeship System", with a new
lease of life
3. The terms of the Mandate for South-West Africa and their legal
nature
What obligations and other legal effects were produced by the
Mandate for South-West Africa ? From the first paragraph of Article 22
of the Covenant it appears that German sovereignty had already
disappeared before the Mandate was granted on December 17, 1920.
Nothing more is said about sovereignty. The penultimate paragraph
tells us that the Council of the League will define "the degree of
authority, control or administration to be exercised by the Mandatory":
this is not the language of sovereignty and indicates some new
relationship between a State and the territory for which it is to become
responsible— a title more limited in character than the normal title of
the sovereign State, a title which is possessory rather than proprietary.
The Mandate in this case is a document dated December 17, 1920,
whereby, after a preamble containing important recitals, the Council of
the League : "Confirming the said Mandate, defines its terms as
follows" in seven articles. Article I says that : "The territory over which a
mandate is conferred upon His Britannic Majesty for and on behalf of
the Government of the Union of South Africa .... comprises the territory
which formerly constituted the German Protectorate of South-West
Africa." Article 2 provides that : "The Mandatory shall have full power of
administration and legislation over the Territory subject to the present
Mandate as an integral portion of the Union of South Africa, and may
apply the laws of the Union of South Africa to the territory, subject to
such local modifications as circumstances may require. The Mandatory
shall promote to the utmost the material and moral well-being and the
social progress of the inhabitants subject to the present Mandate." This
language does not make the Territory a part of the territory of the
Union of South Africa, and negatives any such inference. Article 3
relates to the slave trade, forced labour, the traffic in arms and
ammunition, and the supply of intoxicating spirits and beverages to the
natives. Article 4 prohibits the military training of the natives "otherwise
than for purposes of internal police and the local [p156] defence of the
territory", the establishment of military or naval bases and the erection
of fortifications. Article 5 provides for "freedom of conscience and the
free exercise of all forms of worship" and for the admission, travel and
residence of missionaries who are nationals of any State Member of
the League of Nations. Article 6 provides that
"The mandatory shall make to the Council of the League of Nations an
annual report to the satisfaction of the Council, containing full
information with regard to the Territory and indicating the measures
taken to carry out the obligations assumed under Articles 2, 3, 4 and
5."
Article 7 provides that
"The consent of the Council of the League of Nations is required for
any modification of the terms of the present Mandate.
The Mandatory agrees that, if any dispute whatever should arise
between the Mandatory and another Member of the League of Nations
relating to the interpretation or the application of the provisions of the
Mandate, such dispute, if it cannot be settled by negotiation, shall be
submitted to the Permanent Court of International Justice provided for
by Article 14 of the Covenant of the League of Nations...."
These obligations possess two distinct characters. The provisions of
the Mandate are in part contractual 'and in part "dispositive" (upon
which term see Westlake, International Law (2nd edition), ii, pp. 60,
294). In English terminology, it is both a "contract" and a "conveyance",
that is to Say, a document which transfers or creates rights connected
with property or possession. In addition to the personal rights and
obligations referred to above, it also created certain "real" rights and
obligations. Coupled with the effect of the assent of the Principal Allied
and Associated Powers, in whose favour Germany renounced her
rights and titles over South-West Africa and who are expressly
described in the preamble of the Mandate as the proposers of the
Mandate, the Mandate transferred to the Mandatory, or created and
recognized in the hands of the Mandatory, certain rights of possession
and government (administrative and legislative) which are valid in rem
—erga omnes, that is, against the whole world, or at any rate against
every State which was a Member of the League or in any other way
recognized the Mandate ; moreover, there are certain obligations
binding every State that is responsible for the control of territory and
available to other States.
In short, the Mandate created a status for South-West Africa. This fact
is important in assessing the effect of the dissolution of the League.
This status—valid in rem—supplies the element of [p157]
permanence which would enable the legal condition of the Territory to
survive the disappearance of the League, even if there were no
surviving personal obligations between the Union and other former
Members of the League. "Real" rights created by an international
agreement have a greater degree of permanence than personal rights,
because these rights acquire an objective existence which is more
resistant than are personal rights to the dislocating effects of
international events. The importance of this point is that it makes it
unnecessary to determine the respective roles of the Principal Allied
and Associated Powers and the Council of the League in the creation
of the Mandate or to consider whether those Powers became functi
oficio after the allocation and confirmation of the Mandate, as was
104
submitted by counsel for the Union Government, or not. As Chief
Justice Marshall said in Chirac v. Chirac (1817), 2 Wheaton 259, 277
(cited in Moore, Digest of International Law, Section 780), speaking of
a treaty which had expired :
"A right once vested does not require, for its preservation, the
continued existence of the power by which it was acquired. If a treaty,
or any other law, has performed its office by giving a right, the
expiration of the treaty or law can not extinguish that right."
***
I now turn to consider the effect of the dissolution of the League.
The dissolution of the League on April 19, 1946, did not automatically
terminate the Mandates. Each Mandate has to be considered
separately to ascertain the date and the mode of its termination. Take
the case of Palestine. It is instructive to note that on November 29,
1947, the General Assembly of the United Nations adopted a
resolution approving a plan of partition of Palestine, which was firmly
: based on the view that the Palestine Mandate still continued, as is
evident from Articles I and 2 of Part A and Article 12 of Part B of the
Plan. Again, in the Peace Treaty with Italy of February 10, 1947, it was
considered necessary (Article 40) that Italy should renounce all her
rights under the Mandates System and in respect of any mandated
territory.
The Mandate for South-West Africa was never formally terminated, and
: I can find no events which can be said to have brought about its
termination by implication. Paragraph 3 of the Resolution of the
Assembly of the League regarding the Mandates, dated April 18, 1946,
does not Say that the Mandates come to an end but that, "on the
termination of the League's existence, its functions with respect to the
Mandated Territories will come to an end".[p158]
Which then of the obligations and other legal effects resulting from the
Mandate remain to-day ? The Mandatory owed to the League and to its
Members a general obligation to carry out the terms of the Mandate
and also certain specific obligations, such as the obligation of Article 6
to make an annual report to the Council of the League. The obligations
owed to the League itself have come to an end. The obligations owed
to former Members of the League, at any rate, those who were
Members at the date of its dissolution, subsist, except in so far as their
performance involves the actual co-operation of the League, which is
now impossible. (I shall deal with Article G and the first paragraph of
Article 7 later.) Moreover, the international status created for South-
West Africa, namely that of a territory governed by a State in
pursuance of a limited title as defined in a Mandate, subsists.
Although there is no longer any League to supervise the exercise of
the Mandate, it would be an error to think that there is no control over
the Mandatory. Every State which was a Member of the League at the
time of its dissolution still has a legal interest in the proper exercise of
the Mandate. The Mandate provides two kinds of machinery for its
supervision—judicial, by means of the right of any Member of the
League under Article 7 to bring the Mandatory compulsorily before the
Permanent Court, and admin-istrative, by means of annual reports and
their examination by the Permanent Mandates Commission of the
League.
The judicial supervision has been expressly preserved by means of
Article 37 of the Statute of the International Court of Justice adopted in
1945 :
"Whenever a treaty or convention in force provides for reference of a
matter to a tribunal to have been instituted by the League of Nations, or
to the Permanent Court of International Justice, the matter shall, as
between the parties to the present Statute, be referred to the
International Court of Justice."
This article effected a succession by the International Court to the
compulsory jurisdiction conferred upon the Permanent Court by Article
7 of the Mandate ; for there can be no doubt that the Mandate, which
embodies international obligations, belongs to the category of treaty or
convention ; in the judgment of the Permanent Court in the
Mavrommatis Palestine Concessions (Jurisdiction) case, Series A, No.
2, p. 35, the Palestine Mandate was referred to as an "international
agreement" ; and I have endeavoured to show that the agreement
between the Mandatory and other Members of the League embodied in
the Mandate is still "in force". The expression "Member of the League
of Nations"
[p159] is descriptive, in my opinion, not conditional, and does not mean
"so long as the League exists and they are Members of it" ; their
interest in the performance of the obligations of the Mandate did
not ,accrue to them merely from membership of the League, as an
examination of the content of the Mandate makes clear. Moreover, the
Statute of the International Court empowers it to call from the parties
for "any document" or "any explanations" (Article 49) ; and to entrust
any "individual, body, bureau, commission or other organization that it
may select, with the task of carrying out an enquiry..-" (Article 50).
Article 94 of the Charter empowers the Security Council of the United
Nations to "make recommendations or decide upon measures to be
taken to give effect to the judgment" of the Court, in the event of a
party to a case failing to carry out a judgment of the Court. In addition,
the General Assembly or the Security Council of the United Nations
may request the Court to give an advisory opinion on any legal
question (Article 96 of the Charter).
On the other hand, the administrative supervision by the Council of the
League, as advised by the Permanent Mandates Commission, has
lapsed, including the obligation imposed by Article 22 of the Covenant
and Article 6 of the Mandate to make, in the words of the Mandate, "to
the Council of the League of Nations an annual report to the
satisfaction of the Council....". This supervision has lapsed because the
League and its Council and Permanent Mandates Commission—the
organs which were designated (i) to receive the reports, (ii) to be
satisfied with them and (iii) to examine and advise upon them—no
longer exist, so that it has become impossible to perform this
obligation. (When a particular Mandate was under discussion by the
Council, the Mandatory, if not a Member of the Council, was invited to
sit with the Council, with full power of speaking and voting.)
But it was contended on several grounds in the statements submitted
by certain governments to the Court, that the Union of South Africa is
nevertheless under an obligation to accept the administrative
supervision of the Mandate by the United Nations, and in particular to
send annual reports to that Organization.
The first contention was that there had been an automatic succession
by the United Nations to the rights and functions of the Council of the
League in this respect; but this is pure inference, as the Charter
contains no provision for a succession such as Article 37 of the Statute
of the International Court operates in the case of the compulsory
jurisdiction of the Permanent Court in regard to the Mandates. The
succession of the United Nations to the administrative functions of the
League of Nations in regard to the Mandates could have been
expressly preserved and vested in the United Nations in a similar
manner, but this was not done. At the San Francisco Conference in
May, 1945, when the Charter [p160] was being drafted, the Union
Government circulated to the delegations present a statement
intimating that in due course it would claim "that the Mandate should
be terminated and that the Territory should be incorporated as part of
the Union of South Africa" (printed in United Nations General Assembly
Official Records, 1st session, 2nd Part, Fourth Committee, Part 1, p.
201). But either it was hoped that in spite of this intimation the Union
Government would voluntarily elect to convert its Mandate into a
Trusteeship Agreement under Chapters XII and XIII of the Charter, or
the question of preserving the administrative supervision of the
Mandate was overlooked.
A second contention was based on the expression occurring in Article
80, paragraph 1, of the Charter that "nothing in this Chapter [XII] shall
be construed in or of itself to alter in any manner the rights whatsoever
of any States or peoples or the terms of existing international
instruments to which Members of the United Nations may respectively
be parties". But the cause of the lapse of the supervision of the League
and of Article 6 of the Mandate is not anything contained in Chapter XII
of the Charter but is the dissolution of the League, so that it is difficult
to see the relevance of this article.
105
A third contention was based on statements made on behalf of the
Union Government in letters and in the speeches of its delegates
attending meetings of the organs of the United Nations and generally
upon the conduct of that Government since the dissolution of the
League. An example of these passages—one which was received a
considerable degree of prominence—occurs in the following extract
from a speech by Mr. Leif Egeland, delegate of the Union Government,
at a meeting of the Assembly of the League on April 9, 1946 :
"...: it is the intention of the Union Government, at the forthcoming
session of the United Nations General Assembly in New York, to
formulate its case for according South-West Africa a status under
which it would be internationally recognized as an integral part of the
Union. As the Assembly will know, it is already administered under the
terms of the Mandate as an integral part of the Union. In the meantime,
the Union will continue to administer the Territory scrupulously, in
accordance with the obligations of the Mandate, for the advancement
and promotion of the interests of the inhabitants, as she has done
during the past six years when meetings of the Mandates Commission
could not be held.
The disappearance of those organs of the League concerned with the
supervision of Mandates, primarily the Mandates Commission and the
League Council, will necessarily preclude complete com-[p161]pliance
with the letter of the Mandate. The Union Government will nevertheless
regard the dissolution of the League as in no way diminishing its
obligations under the' Mandate, which it will continue to discharge with
the full and proper appreciation of its responsibilities until such time as
other arrangements are agreed upon concerning the future status of
the territory."
There are also many statements to the effect that the Union
Government will continue to administer the Territory "in the spirit of the
Mandate". These statements are in the aggregate contradictory and
inconsistent; and I do not find in them adequate evidence that the
Union Government has either assented to an implied succession by
the United Nations to the administrative supervision exercised by the
League up to the outbreak of the war in 1939, or has entered into a
new obligation towards the United Nations to revive the pre-war system
of supervision.
A fourth contention is based on a Resolution on the Mandates adopted
by the Assembly of the League on April 18, 1946, by virtue of which,
the Assembly
"3. Recognizes that, on the termination of the League's existence, its
functions with respect to the Mandated Territories will come to an end,
but notes that Chapters XI, XII and XIII of the Charter of the United
Nations embody principles corresponding to those declared in Article
22 of the Covenant of the League;
4. Takes note of the expressed intentions of the Members of the
League now administering Territories under Mandate to continue to
administer them for the well-being and development of the peoples
concerned in accordance with the obligations contained in the
respective Mandates, until other arrangements have been agreed
between the United Nations and the respective Man-datory Powers."
By this Resolution the Assembly recognized that the functions of the
League had come to an end ; but it did not purport to transfer them,
with the consent of all States interested therein, to the United Nations. I
do not see how this Resolution can be construed as having created a
legal obligation by the Union to make annual reports to the United
Nations and to transfer to that Organization the pre-war supervision of
its Mandate by the League. At the most it could impose an obligation to
perform those obligations of the Mandate—and there are many—which
did not involve the activity of the League.
In these circumstances, I cannot find any legal ground on which the
Court would be justified in replacing the Council of the League by the
United Nations for the purposes of exercising the administrative
supervision of the Mandate and the receipt and examin-[p162]ation of
reports. It would amount to imposing a new obligation upon the Union
Government and would be a piece of judicial legislation. In saying this,
I do not overlook the competence of the 7General Assembly of the
United Nations, under Article 10 of the Charter, to discuss the Mandate
for South-West Africa and to make recommendations concerning it, but
that competence depends not upon any theory of implied succession
but upon the provisions of the Charter.

For these reasons I am of the opinion that the continuing international

obligations of the Union of South Africa under the Mandate for South-
West Africa do not include the obligation to accept the administrative
supervision of the United Nations and to render annual reports to that
Organization.

***
Question (b)

I concur in the Opinion of the majority of the Court with respect to this
question.

***
Question (c)

There remains to be considered the effect of the dissolution of the

League upon the first paragraph of Article 7 of the Mandate, whereby
"the consent of the Council of, the League of Nations is required for
any modification of the terms of the present Mandate" —a provision
which appears in all the Mandates. The effect of this paragraph is that
thereby the Members of the League, as the States interested in the
Mandate, empowered the Council of the League on their behalf to
consent to any modification of the Mandate which the Council might
consider to be appropriate.

The party who was expected to bring about any modifications which
the passage of years might show to be necessary was the Mandatory
but, as I have endeavoured to show in answering Question (a), the
Mandatory's title is limited and it has no power, acting alone, to modify
the international status of the Territory, either by incorporating it into its
own territory or otherwise.

What then is the effect of the disappearance of the League and the
ensuing impossibility of obtaining the consent of its Council ? In my
opinion, the effect is that the first paragraph of Article 7 of the Mandate
has now lapsed. But this event in no way alters the quality or amount of
the Mandatory's title or enlarges its power to modify the terms of the
Mandate, because the international obligations affecting the Territory
(except those which, as I have stated, have already lapsed) and the
international status of the Territory continue to exist. Moreover, the
Charter provides one [p163] method by which the international status
of the Territory can lawfully be modified by the Mandatory, namely, by
negotiating with the United Nations and placing it under a trusteeship
agreement, as described in Chapters XII and XIII of the Charter.

On the last day of the existence of the League, April 18, 1946, the
Assembly adopted a Resolution on the subject of Mandates of which
paragraphs 3 and 4 have been quoted above on page 112.

My reply to Question (c) is that the effect of this Resolution is that the
League and those States which were Members of it at the date of its
dissolution consented to any arrangements for the modification of the
terms of the Mandate that might be agreed between the United Nations
and the Union Government, and that competence to determine and
modify the international status of the Territory rests with the Union of
South Africa acting with the consent of the United Nations.

{Signed) Arnold D. McNair. [p164]

106
General List No. 69
[3] After a brief statement of the facts and of the grounds on
Judgm which the claim is based, the Application asks the Court:
ent No.
25 “I. To adjudge and declare that:
28 June 1937 (a) the construction by Belgium of works which render it
possible for a canal situated below Maestricht to be supplied
with water taken from the Meuse elsewhere than at that town is
PERMANENT COURT OF INTERNATIONAL JUSTICE contrary to the Treaty of May 12th, 1863 ;
(b) the feeding of the Belgian section of the Zuid-Willems-vaart,
Judicial Year 1937 of the Campine Canal, of the Hasselt branch of that canal and
of the branch leading to Beverloo Camp, as also of the [p6]
Turnhout Canal, through the Neerhaeren Lock with water taken
The Diversion of Water from the Meuse from the Meuse elsewhere than at Maestricht, is contrary to the
said Treaty;
(c) Belgium's project of feeding a section of the Hasselt Canal
Netherlands v. Belgium with water taken from the Meuse elsewhere than at Maestricht
is contrary to the said Treaty ;
(d) Belgium's project of feeding the section of the canal joining
Judgment the Zuid-Willemsvaart to the Scheldt between Herenthals
(Viersel) and Antwerp with water taken from the Meuse
elsewhere than at Maestricht is contrary to the said Treaty.
II. To order Belgium
(a) to discontinue all the works referred to under I (a) and to
BEFORE President restore to a condition consistent with the Treaty of 1863 all
Guerrero
: : works constructed in breach of that Treaty ;
Vice- (b) to discontinue any feeding held to be contrary to the said
President Sir Cecil Hurst Treaty and to refrain from any further such feeding.”
:
Judges: Count Rostworowski, Fromageot, de [4] On August 1st, 1936, notice of the Netherlands
Bustamante, Altamira, Anzilotti, Negulesco, Government's Application was given to the Belgian
Jhr. van Eysinga, Nagaoka, Cheng, Government; on August 7th the communications provided for in
Hudson, de Visscher Article 40 of the Statute and Article 34 of the Rules were
Represe Netherla despatched.
M. B. M. Telders, as Agent
nted By: nds::
Belgium: M. de Ruelle, as Agent [5] As the Court, at the beginning of the proceedings, included
Perm. http://www.worldcourts.com/pcij/eng/decisions/ on the Bench no judge of Belgian nationality, the Belgian
Link: 1937.06.28_meuse.htm Government availed itself of its right under Article 31 of the
Citation: Diversion of Water from Meuse (Neth. v. Belg.), 1937 Statute, and nominated in that capacity Professor Ch. De
P.C.I.J. (ser. A/B) No. 70 (June 28) Visscher, who was subsequently elected, on May "27th, 1937,
Publicati Publications of the Permanent Court of International by the Assembly and Council of the League of Nations to be a
on: Justice Series A/B - No.70 Collection of Judgments, member of the Court.
Orders and Advisory Opinions A.W. Sijthoff’s
Publishing Company, Leyden, 1925 [6] As the Court was not sitting, the acting President, by an
Order made on August 6th, 1936, fixed the time-limits for the
filing of the Memorial, Counter-Memorial, Reply and Rejoinder.
The documents of the written proceedings were duly filed
within the time-limits thus fixed, the last of which, namely that
for the filing of the Rejoinder, expired on April i2th, 1937; the
case thus became ready for hearing on that date.
[p5] The Court, composed as above, delivers the following
judgment: [7] In its Memorial, the Netherlands Government repeated the
submissions made in the Application.
[1] By an Application instituting proceedings filed in the
Registry of the Court on August 1st, 1936, in accordance with [8] In the Counter-Memorial, the Belgian Government
Article 40 of the Statute and Article 32 of the Rules of Court, presented the following submissions :
the Government of the Kingdom of the Netherlands has
instituted before the Court proceedings in regard to the "May it please the Court,
diversion of water from the river Meuse. In order to establish To declare the submissions of the Applicant to be ill-founded,
the jurisdiction of the Court, the Applicant relies on the To adjudge and declare:
declarations made by the Netherlands and by Belgium 1. That the mere possibility of works being used for purposes
recognizing as compulsory the jurisdiction of the Court, in inconsistent with the Treaty of May 12th, 1863, governing the
conformity with Article 36, paragraph 2, of the Statute of the taking of water from the Meuse, does not suffice to justify the
Court. condemnation of such works and to secure their demolition,
since bad faith may not be presumed; [p7]
[2] According to the Application, the subject of the dispute is 2. That the feeding of the Zuid-Willemsvaart and the canal
the question whether, on the one hand, the execution by joining the Meuse and the Scheldt and its branches is not
Belgium of various works in connection with the construction of rendered incompatible with the Treaty mentioned above by the
the Albert Canal and, on the other hand, the manner in which, fact that lockage water arising front the working of the
without the consent of the Netherlands, Belgium at present Neerhaeren Lock–operated bona fide for the passing of boats–
supplies and appears to intend in future to supply with water is added to the water from the Meuse coming from the intake at
existing or projected canals in the north of her territory, are Maestricht–as the Neerhaeren Lock cannot be treated more
consistent with the rights ensuing to the Netherlands from the unfavourably than the Bosscheveld Lock;
Treaty signed at The Hague on May 12th, 1863, establishing 3. No breach of Belgium's engagements under the above-
the regime for taking water from the Meuse. mentioned Treaty will result from the circumstance that after
107
the Albert Canal is brought into use, water derived from the
Meuse near Liege will, between Hasselt and lock IV, pass
along the section of that canal coinciding with a section of the
Hasselt branch of the canal joining the Meuse and the Scheldt;
4. Similarly, no inconsistency with Belgium's engagements will
result from bringing water derived from the same source into
the section of the Albert Canal between Pulle and Antwerp
which coincides with the canal joining the Meuse and the
Scheldt ; situation
May it also please the Court, adjudicating upon a counterclaim
in accordance with Article 63 of the Rules of Court,
To adjuge and declare:
1. That the Borgharen barrage has been constructed in breach
of the stipulations of this same Treaty which is alleged by the
Netherlands Government to have been disregarded by the
Belgian Government as regards certain stipulations ; that is to
say, that the local situation at Maestricht provided for by the
Treaty of 1863 has been altered by the unilateral decision of
the Netherlands Government; that this alteration has rendered
the proper application of the Treaty impossible, because the
level of the Meuse has been raised by the Borgharen barrage
and the water-gauge which had been placed there in
accordance with the Treaty to enable the diversion of water to
be regulated in accordance with the level of the water has been
submerged ; [12] The submissions presented in the documents of the
2. That the Juliana Canal, being a canal below Maestricht,
within the meaning of Article I of the Treaty, is subject, as
regards the supply of water to it, to the same provisions as the
canals on the left bank of the Meuse below Maestricht;
3. To reserve the rights accruing to Belgium from the breaches
so committed."
[9] In its Reply, the Netherlands Government prayed the Court:
"I. Rejecting all submissions to the contrary,
to give judgment in accordance with the submissions
formulated by the Netherlands Government in its Memorial
presented to the Court on October 31st, 1936.
II. To declare that the submissions of the counter-claim
presented by Belgium are ill-founded. [p8]
III. To adjudge and declare,
1. That the establishment and working of the Borgharen
barrage is not inconsistent with the Treaty of May I2th, 1863,
above mentioned and that no right or interest on the part of
Belgium is thereby injured;
2. That the Juliana Canal is not, as regards its water supply,
subject to the same provisions as the Zuid-Willemsvaart and
the other canals on the left bank of the Meuse below
Maastricht ; explanations given by the representatives who had been
3. That in any case the feeding of the Juliana Canal has not
been and is not inconsistent with the Treaty of 1863 and that
the mere fact that it would be possible for the Netherlands to
use certain locks on this canal in a manner contrary to that
Treaty does not in itself constitute a breach of that Treaty."
[10] In its Rejoinder, the Belgian Government prayed the Court:
"Rejecting all submissions to the contrary,
To find in favour of the Respondent's submissions of January
28th, 1937.
Alternatively,
In case the Court should be unable on certain points to find in
accordance with the submissions of the Respondent,
To declare in any case that the Applicant is committing an
abuse of right (abus de droit] in invoking the Treaty of May I2th,
1863, in order to protect new interests (the Juliana Canal and
the canalized Meuse) which were not contemplated at the time
of the conclusion of that Treaty, while the interests which that
Treaty was intended to protect are not in any way threatened ;
As a second alternative,
To declare that, by constructing certain works contrary to the
terms of the Treaty, the Applicant has forfeited the right to
invoke the Treaty against the Respondent;
As a third alternative,
To declare that the works forming part of the Albert Canal,
108
including the Briegden-Neerhaeren section, are merely the
necessary consequences of the works in connection with the
Juliana Canal. By constructing the latter canal, the Netherlands
Government has caused it to be believed that a new situation
has arisen ; that is to say, that the Netherlands Government is
abandoning the use of the [p9] common section of the Meuse
as a waterway; it is not entitled to complain because the
Respondent has taken action in accordance with this new
;
As a fourth alternative,
To declare that the Treaty of 1863 has lapsed as a result of the
action of the Applicant in carrying out works which have altered
the situation on which the Treaty was based, that is to say, in
particular, the raising of the level of the Meuse at Maestricht
and the construction of a new waterway which deprives the
common section of the Meuse of its function as a navigable
waterway."
[11] In the course of public sittings held on May 4th, 5th, 7th,
l0th, 11th, 12th, 18th, 20th and 21st, 1937, the Court heard:
M. Telders, Agent for the Netherlands Government,
and M. de Ruelle, Agent, Maitre Marcq, Counsel, and M.
Delmer, technical adviser for the Belgian Government.
written proceedings were maintained in their entirety on either
side at the oral proceedings.
[13] Numerous documents in support of their contentions have
been produced on behalf of each Party as annexes to the
Application and to the documents of the written proceedings
and in the course of the oral proceedings [FN1].
------------------------------------------------------------------------------------
---------------------------------
[FN1] See list in Annex.
------------------------------------------------------------------------------------
---------------------------------
[14] At the hearing on May 7th, 1937, the Agent for the Belgian
Government suggested that the Court should pay a visit to the
locality in order to see on the spot all the installations, canals
and waterways to which the dispute related. This suggestion
met with no opposition on the part of the Netherlands
Government, and the Court decided, by an Order made on
May 13th, 1937, to comply with it. Adopting the itinerary jointly
proposed by the Agents of the Parties, the Court carried out
this inspection on May 13th, 14th and 15th, 1937. It heard the
designated for the purpose by the Parties and witnessed
practical demonstrations of the operation of locks and of
installations connected therewith.
***
[15] The questions at issue in the present case depend on the
interpretation and application of the Treaty which was
concluded between Belgium and the Netherlands on May 12th,
1863 [FN2], and came into force on July 14th of that year. The
purpose of this Treaty is defined in its Preamble as being "to
settle permanently and definitively the regime governing
diversions of water from the Meuse for the feeding of
navigation canals and irrigation channels" (de regler d'une
maniere stable et definitive le regime des prises d'eau a la
Meuse pour I'alimentation des canaux de navigation et
d'irrigation).
------------------------------------------------------------------------------------
---------------------------------
[FN2] For text of this Treaty, see Annex.
------------------------------------------------------------------------------------
---------------------------------
[16] The Treaty was concluded because for a long time the two
countries had been unable to agree on a variety of questions
connected with the use of the waters of the Meuse.
[17] The Meuse is an international river. It rises in France in the
Department of the Haute-Marne, leaves French territory [p10]
near Givet, crosses Belgium, forms the frontier between the
Netherlands and Belgium below Lixhe and enters Netherlands
territory a few kilometres above Maestricht.. Between Borg-
haren (a few kilometres below Maestricht) and Wessem-Maas-
bracht, the Meuse again forms the frontier between Belgium
and the Netherlands, then below Wessem-Maasbracht both
banks of the river are in Netherlands territory.
[18] Until it reaches Venlo, in the Netherlands, the course of
the river is rapid and, in general, the river is shallow. It is a river
which is fed by rainfall, and not by the melting of readers ;
consequently the flow of water varies greatly. In its natural
condition the Meuse above Venlo is of no great assistance to
navigation. Though for the most part it has been canalized, the
most important function of the Meuse, at any rate in Belgium
and in the Netherlands, is that of a reservoir for other
waterways. As a result of the geological formation, canalization
works between Liege and Venlo are difficult and costly. On the
other hand, the people of the territory through which the Meuse
flows are accustomed to make use of water transport, and
where canals have been constructed for this purpose they
must in the main be supplied with water from the Meuse.
[19] In the XVIIth century, and again during the Napoleonic era,
the construction of a canal from Antwerp via Venlo to the Rhine
was contemplated. Though only a small part of this canal was
actually constructed, the subsequent schemes which were
carried into effect were in part founded on the same plans.
[20] After the constitution in 1815 of the Kingdom of the
Netherlands, William I initiated the construction of a canal from
Maestricht to Bois-le-Duc. This canal, known as the Zuid-
Willemsvaart, was brought into use about the year 1826. The
water to feed the canal was derived from the Meuse at
Maestricht, through an intake known as lock 20.
[21] During the troubled conditions which prevailed between
1830 and 1839, the supply of water to the Zuid-Willernsvaart
was temporarily interrupted by the military authorities at
Maestricht, and in order to secure a supply of water for the
canal a new intake was created at Hocht by the inhabitants.
After the separation of the Netherlands and Belgium, the place
at which the Hocht intake was situated became Belgian
territory.
[22] In 1845, under a treaty concluded between the
Netherlands and Belgium in that year, a new canal was
constructed from Liege to Maestricht. This new canal
constitutes, in effect, a prolongation of the Zuid-Willemsvaart to
Liege, and had formed part of the original plans of King William
I. It connects [p11] with the Zuid-Willemsvaart at a spot inside
the fortifications of Maastricht, close to lock 20.
[23] After the completion of the Liege-Maestricht Canal, the
Zuid-Willemsvaart was fed from three different sources : firstly
by water which came from the Liege-Maestricht Canal;
secondly, by water obtained directly from the Meuse through
lock 20 ; and, thirdly, by water also obtained directly from the
Meuse through the Hocht intake.
[24] At first there seems to have been no trouble with regard to
the supply of water for the Zuid-Willemsvaart. Subsequently,
however, the Belgian Government commenced the
construction of a series of new waterways, running westward
from the northern end of the Belgian section of the Zuid-
Willemsvaart so as to effect a junction with the river Scheldt
and to provide means of communication for the district of the
Campine. This series of canals includes the Canal de la
Campine, the Canal de Turnhout, the Canal de Hasselt, and
the Canal du Camp de Beverloo.
109
[25] The Campine is a heathy, district with a soil of a porous
nature, and owing to this latter circumstance large quantities of
water were required for keeping the Canal de la Campine
supplied. A great deal of water leaked away.
[26] The sandy and unfertile nature of the Campine district led
the Belgian Government to initiate extensive irrigation
schemes. The idea prevailed at the time that if only it could be
supplied with water, this district might be converted into a fertile
and prosperous agricultural area. These irrigation works
caused flooding in the Netherlands district of Brabant and
constituted one of the many sources of disagreement that
prevailed between the two countries at the time when the
Treaty of 1863 was concluded.
[27] As the canals of the Campine area came into use and so
long as the extensive irrigation schemes were still considered
feasible, Belgium desired to obtain large supplies of water. The
only supplies available were derived from the Zuid-
Willemsvaart and, therefore, ultimately from the Meuse. Neither
the supplies drawn from the intake at Hocht, nor the lock-water
which came into the Zuid-Willemsvaart from the Meuse, were
adequate to supply the quantities which Belgium sought to
draw out at the northern end of the canal. She therefore found
herself obliged to construct at the side of the Hocht Lock a
lateral channel so that water could be drawn from the Liege-
Maestricht Canal irrespective of the use of the lock for the
normal purposes of navigation. By so doing she obtained a
sufficient quantity of water but she converted a part of the Zuid-
Willemsvaart into a waterway more like a swiftly flowing river
than a canal. The rapidity of the current m the canal impeded
the navigation, and though efforts were [p12] made to allow
these additional supplies to pass into the canal at night-time,
when the barge traffic was not in progress, the use of the canal
for traffic was gravely inconvenienced.
[28] For some ten years the technical experts of the two
Governments searched for a solution of the problem, the
condition of things which had arisen on the Zuid-Willemsvaart
being equally inconvenient to the barge traffic of both
countries. Two successive Mixed Commissions proved
abortive, and a treaty, which was negotiated and signed in
1861, failed to secure ratification because it was rejected by
the Netherlands Second Chamber. It was not until 1863 that
the two countries were able to conclude a treaty which was
acceptable to both sides. This Treaty, dated May 12th, 1863, is
still in force and constitutes the treaty which has to be applied
by the Court in the present case.
[29] It will be of assistance towards an understanding of the
general economy of the Treaty of 1863 to give a short
description of the unratified agreement of 1861.
[30] Both treaties were worked out upon the footing that
Belgium must have, in order to supply her requirements, a
definite quantity of water and, so far as concerns the
Netherlands, that this quantity of water would not be such as to
injure Netherlands interests. No stable situation could be
achieved as regards the use of the waters of the Meuse unless
these needs and interests were recognized. The mere
provision of the water, however, was not the only element to be
taken into account; there were the interests of navigation in the
canals, particularly in the Belgian section of the Zuid-
Willemsvaart, a waterway which was of common interest to
both Parties ; there were also the interests of the navigability of
the Meuse itself in the sector below Maestricht, where there
was no lateral canal, except in so far as the Zuid-Willemsvaart
itself served that purpose.
[31] The 1861 treaty was drafted on the following basis: the
Netherlands undertook to allow a fixed quantity of water to
pass into the Zuid-Willemsvaart through the lock at Maestricht.
(The actual quantity was 7 cubic metres per second in winter; 5
2/3 per second in summer.) This water was to come from the
Liege-Maestricht Canal and was, therefore, taken from the
Meuse at Liege. Any quantity of water coming from the Liege-
Maestricht Canal over and above the amounts so fixed was to
be turned into the river. Out of the water so passed into the
Zuid-Willemsvaart, the Netherlands were to get 1 ½ cubic
metre per second, which was to be evacuated through the lock
at Weert (in Netherlands territory). There was no provision in
the 1861 treaty which affected the intake at Hocht. Belgium
remained free to take what she could through that [p13] intake.
During the seasons when the Meuse is low, the amount of
water which Belgium could obtain at Hocht was not, in reality,
very great, because the level of the canal was so little below
the level of the river that the amount that could pass was
necessarily restricted.
[32] This treaty appears to have been rejected because,
amongst other reasons, the authorities of the Netherlands
province of Limburg pointed out that it did not solve the
problems which interested them, particularly the excessive
speed of the current in the Zuid-Willemsvaart.
[33] The solution of the difficulties between the two countries
as regards the waters of the Meuse was ultimately found by
approaching them on a much wider basis. By including the
solution of various other problems which were affecting the
relations between the two countries at that date means were
found justifying each Party in making concessions which it
would not have felt justified in making unless it had received
satisfaction in other directions. The treaty with regard to the
Meuse became part of a settlement embracing discontinuance
of the tolls on the Scheldt and the commercial relations
between the two countries.
[34] The three treaties into which the arrangement of 1863 was
divided were concluded on the same day, and the exchange of
ratifications also took place on the same date–July I4th, 1863–
and was recorded in a single instrument, but there is no
juridical connection between the three; each of the three
treaties is entirely independent of the others ; in its application
and interpretation the treaty with regard to the waters of the
Meuse, therefore, stands entirely by itself. The
interdependence is found only in the fact that the concessions
made by one or other of the Governments in one of the treaties
would not have been made without the concessions made by
the other Government in the other treaties.
[35] As regards the treaty relating to the waters of the Meuse,
the acute problem as stated above had been the excessive
speed of the current developed in the Zuid-Willemsvaart owing
to the amount of water which Belgium was taking from it. The
Treaty of 1863 surmounted this difficulty by the combined
effect of three sets of stipulations: by raising the level of the
canal all the way from Maestricht to Bocholt, so as to increase
the transverse section and thereby enable more water to pass
along without increasing the speed of the current; by
concentrating in one new intake the withdrawal of water from
the Meuse, this new intake being situated higher upstream
where it could feed the canal despite the fact that the level of
the canal was raised; and by enlarging the programme of
works to be carried out in the joint section of the Meuse so that
more water could [p14] be withdrawn from the Meuse without
injury to the navigability of the joint section of the river, a
subject which at that time was of interest to both countries.
[36] The new intake was located on Netherlands territory. It
was not without great reluctance that the Belgian Government
accepted the plan that there should be a single intake and that
situated on foreign territory.
[37] For some time after its conclusion, the Treaty of 1863,
subject to some technical modifications introduced in 1873,
must have satisfied the requirements of both Parties. By the
close of the century, however, it was becoming clear that larger
and better canals were required in order to meet the
commercial development which was taking place in the
Netherlands and Belgium, particularly as regards the
110
development of the Netherlands coalfields in the province of
Limburg.
[38] In 1906, a joint commission was appointed, on the
suggestion of the Netherlands Government, to consider works
for the improvement of the navigation of the Meuse. At the time
when the Netherlands Government suggested the appointment
of this Commission, it would appear that they had in view
works which could not be carried out without the concurrence
of both Governments.
[39] When the report of this Commission had been received in
1912, the Netherlands Government proposed that the two
Governments should together undertake the canalization of the
joint section of the Meuse. Negotiations on this subject had not
been completed at the time when the war of 1914-1918 broke
out, as Belgium would only agree to participate in this work if
satisfaction were given to her on certain other points.
[40] In 1921 a project for the construction of a lateral canal on
the right bank of the Meuse from Maestricht to Maasbracht was
submitted to the Chambers by the Netherlands Government.
This was a work to be carried out entirely on Netherlands
territory and at the expense of the Netherlands. It embodied
what is now the Borgharen barrage and the Juliana Canal. It
led to diplomatic correspondence between the Netherlands and
Belgium, in which Belgium maintained that such works would
prejudice the navigation on the joint section of the Meuse and
would interfere with the working of the 1863 Treaty. She
therefore maintained that this scheme could not be carried out
without her consent.
[41] Though the Parties were not able, in the diplomatic
discussions which followed, to come to an agreement as to the
points raised by the Belgian Government, other negotiations
which were already in progress led to the signature in 1925 of
a new and comprehensive treaty which would have enabled
the waterways [p15] desired on either side to be constructed.
This treaty however was rejected by the Netherlands First
Chamber.
[42] After the rejection of the treaty of 1925, the Netherlands
proceeded to construct and complete the Juliana Canal, a
waterway which would enable barges of larger size to reach
Maestricht and from there would make contact with the Liege-
Maestricht Canal. She also constructed a new lock, the
Bossche-veld Lock, situated just below the intake constructed
at Maestricht under the Treaty of 1863 and giving access to the
Zuid-Willemsvaart from the Meuse. This new lock was brought
into use in September 1931. The Borgharen barrage had been
finished in 1929 and the Juliana Canal was opened to
navigation in 1934.
[43] Faced with the prospect of the completion of the Juliana
Canal, the Belgian Government decided that they must
construct a canal from Liege to Antwerp, and laid before the
Belgian Parliament a scheme for the construction of what is
now known as the Albert Canal. The submission of this
scheme to the Belgian Parliament provoked an enquiry from
the Netherlands Government as to the feeding of this great
new waterway. Discussions followed through the diplomatic
channel, but they led to no result, as the Netherlands were
unable to give satisfaction to Belgium as regards the
construction of a new waterway to improve the
communications between Antwerp and the Rhine.
[44] The construction of the Albert Canal was commenced in
1930 ; it is not yet finished.
[45] The Albert Canal is intended to connect Liege with
Antwerp. It will be fed with water obtained from the Meuse
immediately above a barrage constructed at Monsin. For about
sixteen kilometres it practically follows the course of the old
Liege-Maestricht Canal. It then turns north-westward and is
carried in a deep cutting through the hills till it reaches
Briegden. From Briegden a junction canal, which is already in
use, runs to Neerhaeren where connection is established with
the Belgian section of the Zuid-Willemsvaart through the
Neerhaeren Lock.
[46] From Briegden the Albert Canal will be carried by a section
which is not yet completed to a spot near Hasselt. There, just
north of the Curange Lock, it will join the existing Hasselt
branch of the Campine Canal, which will be reconstructed and
considerably [p16] widened and deepened, and will follow the
line of that branch as far as Quaedmechelen. From Quaed-
mechelen the Albert Canal will be carried on via Herenthals to
Viersel, where it takes the place of the existing Canal de la
Campine which has been in the same way reconstructed,
widened and deepened. Through the new Wyneghem Lock it
will connect with the Antwerp waterways. A part of the western
end of this section is already in use.
[47] As no further progress could be made in the settlement of
the points at issue between the two States, the Netherlands
initiated the present proceedings against Belgium in the Court
by an Application dated August 1st, 1936, based on the ground
that some of the works already executed or to be executed by
Belgium in connection with the Albert Canal constituted an
infringement of the Treaty of 1863. Belgium in due course
raised by her counter-claim the question whether the Juliana
Canal and the Borgharen barrage were themselves compatible
with the Treaty of 1863.
***
[48] From the history of the dispute given above, it will be seen
that one of the difficulties in achieving a settlement of the
differences between the two States has been the Belgian
desire to obtain the Netherlands' consent to the construction of
a new canal connecting Antwerp and the Rhine, a point upon
which one may infer that the Netherlands Government have felt
themselves unable to accede to the wishes of the Belgian
Government because of the commercial rivalry between
Antwerp and Rotterdam. With this aspect of the question the
Court is in no way concerned. Its task is limited to a decision
on the legal points submitted to it as to whether or not certain
works constructed by the Belgian Government do or do not
infringe the Treaty of 1863, and, as regards the Belgian
counter-claim, as to whether or not certain works constructed
by the Netherlands Government do or do not constitute an
infringement of the Treaty of 1863.
* Government may be classified under two heads :
[49] In the course of the proceedings, both written and oral,
occasional reference has been made to the application of the
general rules of international law as regards rivers. In the
opinion of the Court, the points submitted to it by the Parties in
the present case do not entitle it to go outside the field covered
by the Treaty of 1863. The points at issue must all be
determined solely by the interpretation and application of that
Treaty.
*
[50] Before proceeding to consider in detail the dispute
submitted to the Court, it will be well to make a brief survey of
the provisions of the Treaty of 1863 which must be applied in
the decision of the case. [p17]
[51] Article I provides for the construction below Maestricht at
the foot of the fortifications of a new intake which will constitute
the feeding conduit for all canals situated below that town and
for irrigation in the Campine and in the Netherlands. Article II
provides that the lock at Hocht (No. 19) is to be suppressed
and replaced by a new lock in the Zuid-Willemsvaart above the
intake provided for in Article I. The part of the canal between
the site of the old lock at Hocht and the site of the new lock
was to be enlarged and deepened so as to be of the same
dimensions and depth as the reach from Hocht to Bocholt.
111
Article III provides that the level of the canal between
Maestricht and Bocholt was to be raised so that the quantity of
water prescribed by the succeeding Articles IV and V could
pass along the canal without raising the average current to a
speed exceeding 25 to 27 centimetres per second. Article IV
fixed the quantity of water to be taken from the Meuse at ten
cubic metres per second when the level of the river was above
the normal low level; when at or below the normal low level it
was fixed at 7½ cubic metres from October to June and 6 cubic
metres from June to October. Normal low level was defined by
reference to the gauge on the bridge at Maestricht and
corresponded to a minimum depth between Maestricht and
Venlo of 70 centimetres. A gauge was to be fixed at the mouth
of the new intake, and no further use was to be made of the
intake at Hocht. Under Article V the Netherlands was to have a
fixed proportion (2 or 1½ cubic metres) out of the total quantity
of water fixed by Article IV as the amount to be withdrawn from
the Meuse by the new intake; the Netherlands share of this
water was to pass through lock 17 at Loozen. The second
paragraph of this Article gives the Netherlands a right to
increase the water to be withdrawn from the Meuse at
Maestricht, provided the speed of the current in the canal was
not raised above that stipulated in Article III.
[52] Article IX provided for the preparation and execution of a
programme of works in the bed of the Meuse between
Maestricht and Venlo over a series of years, Belgium to pay
two-thirds and the Netherlands one-third of the costs.
[53] The remaining articles are of less importance in
connection with the present case.
***
[54] In the first submission I a of the Netherlands' Memorial, the
Agent of the Netherlands Government asks the Court: [p18]
“To adjudge and declare that
(a) the construction by Belgium of works which render it
possible for a canal situated below Maestricht' to be supplied
with water taken from the Meuse elsewhere than at that town is
contrary to the Treaty of 1863.”
[55] The intention of this submission is made clearer by the
explanations which are given in the Memorial :
"The infringements of the regime established by the Treaty in
1863 forming the subject of the complaint of the Netherlands
(A) Infringements of the Netherlands' privilege of control over
diversions of water from the Meuse by means of the Maestricht
intake resulting from the construction of works making it
possible to feed canals situated below Maestricht with water
taken from the Meuse elsewhere than at that town ; (B)
Infringements of the treaty regulations governing the allocation
of Meuse water resulting from the feeding of canals situated
below Maestricht with water taken from the Meuse in excess of
the quantities fixed and allotted to Belgium by the Treaty of
1863."
[56] Submission I a refers to infringements of this so-called
privilege of control claimed by the Netherlands Government.
[57] The nature of this Netherlands claim has not been set out
with great precision, either in the written proceedings or in the
oral arguments. The Court understands it as a claim to a
special privilege going beyond the power of supervision which
the Netherlands necessarily derive from the fact that the intake
is situated in Netherlands territory. There can be no doubt that,
so far as the right of supervision is derived from the position of
the intake on Netherlands territory, the Netherlands, as
territorial sovereign, enjoys a right of supervision which
Belgium cannot possess.
[58] What the Netherlands Agent has claimed on behalf of his
Government is not merely to be able to control what happens
in their own territory, but to control the supply of water drawn
from the Meuse to feed the system of canals referred to in the
Treaty: the important thing for the Netherlands being, not the
ability to supervise the mere working of the Maestricht feeder,
but the power to make sure at any time that the quantities of
water drawn from the Meuse to supply the canals below
Maestricht do not exceed the total quantities fixed in the
Treaty. To this end, and in order to effect that full control of all
supplies from the Meuse for the feeding of these canals, the
right of supervision arising from the position of the intake in
Netherlands territory had to be supplemented, and is
supplemented, by an obligation to refrain from certain action
imposed upon Belgium, an obligation not to construct [p19]
works by means of which she could, apart from the Maestricht
feeder, supply one or more canals situated below that town.
The Netherlands Agent finds in Article I of the Treaty the
justification for that claim when it provides that the Maestricht
feeder should be "the", that is to say, the only, feeder for all
canals situated below Maestricht. It follows, according to his
contention, that the mere fact of constructing in Belgian
territory a second feeder is, in itself, a breach of the Article. It is
of no importance whether actual use is made of this feeder or
whether it is left idle. Once a second feeder exists the
Maestricht feeder is no longer the only one and the Treaty of
1863 is thereby broken.
[59] It was in support of this view that the Netherlands Agent in
his argument laid such stress on the fact that the design of the
Neerhaeren Lock in the Briegden-Neerhaeren junction canal
embodied side-channels for filling and emptying the lock
chamber which by the simple expedient of removing an electric
interlocking device could be converted into a lateral conduit,
enabling water to be conveyed in large quantities from the
upper to the lower reach, irrespective of any use of the lock for
navigational purposes. The Netherlands Agent did not suggest
that the side-channels had been used in the past for this
purpose, or were being so used at present. It was in the fact
that by this simple method the side-channels could be
converted into a lateral conduit and thereby render possible
without the knowledge of the Netherlands Government the
passage of water into the Zuid-Willemsvaart, that the
Netherlands Agent saw a violation of the right of control
conferred upon his Government.
[60] The Netherlands contention necessarily implies that the
Treaty of 1863 intended to place the Parties in a situation of
legal inequality by conferring on the Netherlands a right of
control to which Belgium could not lay claim. The Netherlands
Agent, with regard to the Belgian Government's counter-claim,
stated in his reply that Belgium was not entitled to dispute the
lawfulness of the works constructed by the Netherlands merely
on the ground that such works would make it possible to feed a
canal situated below Maestricht with water diverted' from the
river elsewhere than at the treaty feeder, because Belgium did
not possess any right of control similar to that conferred on the
Netherlands by the Treaty. [p20]
[61] The Court is unable to accept as well-founded a contention
which would alter the character of the Treaty of 1863 and
considerably enlarge the scope of the actual terms used by its
authors; for that Treaty is an agreement freely concluded
between two States seeking to reconcile their practical
interests with a view to improving an existing situation rather
than to settle a legal dispute concerning mutually contested
rights.
[62] It would only be possible to agree with the contention of
the Netherlands Agent that the Treaty had created a position of
inequality between the contracting Parties if that were
expressly indicated by the terms of the Treaty ; but the text of
Article I is not sufficient to justify such an interpretation. The
text of this Article is general; it furnishes no evidence of any
differentiation between the two Parties. Article I is a provision
equally binding on the Netherlands and on Belgium. If,
112
therefore, it is claimed on behalf of the Netherlands
Government that, over and above the rights which necessarily
result from the fact that the new intake is situated on
Netherlands territory, the Netherlands possess certain
privileges in the sense that the Treaty imposes on Belgium,
and not on them, an obligation to abstain from certain acts
connected with the supply to canals below Maestricht of water
taken from the Meuse elsewhere than at the treaty feeder, the
argument goes beyond what the text of the Treaty will support.
[63] The Court finds that none of the documents produced by
the Netherlands Government in support of their claim of control
controverts the conclusion reached by the Court and that, on
the contrary, some of these documents confirm that
conclusion.
[64] For the above reasons, the submission I a of the
Netherlands Memorial must be rejected.
*
[65] The Netherlands Government in its submission formulated
under I b in the Netherlands Memorial prays the Court :
"To adjudge and declare
............
(b) that the feeding of the Belgian section of the Zuid-
Willemsvaart, of the Campine Canal, of the Hasselt branch of
that canal and of the branch leading to Beverloo Camp, as also
of the Turnhout Canal, through the Neerhaeren Lock with water
taken from the Meuse elsewhere than at Maestricht, is contrary
to the said Treaty [Treaty of May I2th, 1863]."
[66] It will be observed that, in this submission, the Netherlands
Government does not specify the particular provision of the
[p21] Treaty alleged to be infringed by the feeding of the Zuid-
Willemsvaart, the Campine Canal, its Hasselt branch, its
branch leading towards Beverloo Camp and the Turnhout
Canal, through the Neerhaeren Lock, with water taken from the
Meuse elsewhere than at Maestricht.
[67] The Treaty brought into existence a certain regime which
results from all of its provisions in conjunction. It forms a
complete whole, the different provisions of which cannot be
dissociated from the others and considered apart by
themselves.
[68] When the Treaty of 1863 is examined in this way it is seen
that, more particularly in Articles I, III, IV and V, it established a
treaty regime governing, to quote the words of the Preamble,
"diversions of water from the Meuse for the feeding of
navigation canals and irrigation channels" ; this regime was
instituted both by the construction at Maestricht in Netherlands
territory of the new intake on the Meuse, which was to
constitute the feeder for all the canals situated below that town,
and by the fixing of the volume of water to be discharged into
the Zuid-Willemsvaart at a quantity which would maintain a
minimum depth in that canal and would ensure that the velocity
of its current did not exceed a maximum of 0.25 metre to 0.27
metre per second. The canals which the Treaty thus had in
view when it referred to "all canals situated below Maestricht",
are the Zuid-Willemsvaart and the canals which branch off from
it and are fed by it.
[69] Any work which disturbs the situation as established by the
Treaty constitutes an infraction of the latter, and this holds
good for works above Maestricht just as much as for works
situated below Maestricht.
[70] It is evident that neither the functioning of the former intake
at Hocht, in Belgian territory, nor of any intake other than the
treaty feeder would have been compatible with the regime thus
established. Accordingly, it was laid down (Art. I) that the intake
at Maestricht would constitute "the" feeder–that is to say, the
only feeder–and that no further use would be made of the
intake at Hocht (Art. IV, last para.).
[71] In this connection, it is necessary to consider whether the
passage of water through a lock, instead of through the new
intake, constitutes an infraction of Article I.
[72] A lock is not, in itself, a feeder. A lock is a construction
designed to retain the water in an upper reach and to enable
barges to pass from this upper reach to a lower reach, and vice
versa. It functions intermittently, with more or less frequency,
according as the traffic is more or less intense. If the waterway
is a canal, it is manifest that if the canal is not to run dry, more
or less rapidly according to its length, the lock cannot function
unless the summit-level reach of the [p22] canal is itself fed by
an intake providing a sufficient supply of water.
[73] It can scarcely be contested that water discharged by a
lock–or lock-water–which passes in this way from reach to
reach, constitutes a means, and no doubt the normal means, of
feeding the successive reaches of a canal.
[74] It has been argued on behalf of the Belgian Government
that it cannot have been the intention of the Treaty that the
existence and functioning of a lock should be considered as an
infraction of the Treaty, for the following reason. The Treaty
itself lays down in Article II that lock No. 19 at Hocht is to be
reconstructed at a different site. This lock 19 is the one which
establishes communication between the Zuid-Willemsvaart and
the Liege-Maestricht Canal. Every time that the lock is
operated–and it is clear that the Treaty intended that shipping
should continue to use this route–a certain quantity of lock-
water, originally derived from the Meuse, though not through
the treaty feeder, is necessarily discharged into the Zuid-
Willemsvaart ; consequently, lock-water–i.e., water passing
through a lock in the course of its normal functioning–cannot
be equivalent to the "feeding" of the canal which is forbidden
by Article I.
[75] On the other hand, it has been contended, on behalf of the
Netherlands Government, that the foregoing argument does
not take sufficiently into account the small dimensions of lock
19, nor the fact that the average total volume of lock-water
discharged by the daily normal functioning of the lock, is less
than the margin of error allowed in measuring the ten cubic
metres per second fixed in Article IV. It is for this reason–it is
contended–that no account was taken in the Treaty of the
water passing through lock No. 19 into the Zuid-Willemsvaart ;
to allow the same rule however to operate in connection with
the Neerhaeren Lock would upset the equilibrium established
by the Treaty. The dimensions of the Neerhaeren Lock are so
much greater than those of lock 19 that 3,900 m3 of water are
discharged into the Zuid-Willemsvaart every time that the lock
is operated, and the average quantity of water passing through
in the course of a day amounts to 1 m3 per second, which
represents a very substantial addition to the ten m3 per second
fixed by Article IV as the maximum quantity to be passed
through the new intake. It is therefore argued on behalf of the
Netherlands Government that, in interpreting the Treaty, no
account should be taken of lock 19 ; but that in the case of the
Neerhaeren Lock the discharge of lock-water should be
regarded as an infraction of Article I. [p23]
[76] The Court considers that neither the Belgian nor the
Netherlands contention can be accepted in its entirety. When it
is remembered that the provisions of the Treaty of 1863 were
adopted in order to overcome certain actual difficulties
connected with the feeding of the canals below Maestricht, it is
seen to be impossible to isolate Article I, and to interpret it
without reference to those difficulties. That Article has indeed
to be interpreted in conjunction with the other articles, with
which it forms a complete whole. To adopt the Belgian
contention, according to which no lock, when used for
navigation, and no volume of water discharged through a lock
when being utilized for that purpose, could constitute an
infraction of Article I, would open the door to the construction of
works and the discharge of water in such quantities that the
113
intentions of the Treaty would be entirely frustrated. On the
other hand, to adopt the Netherlands contention and to hold
that any discharge of water into the Zuid-Willemsvaart through
the Neerhaeren Lock, instead of through the treaty feeder,
must result in an infraction of Article I–irrespective of the
consequences which such discharge of water might produce
on the velocity of the current in the Zuid-Willemsvaart, or on
the navigability of the joint section of the Meuse–would be to
ignore the objects with which the Treaty was concluded.
[77] If any distinction can be drawn between a lock of small
dimensions, such as lock 19, and a large lock, that distinction
must be based not simply on the difference between the
respective dimensions of the two locks, but on the difference
between the effects which they respectively produce. The
Court would be prepared to consider that the use of the
Neerhaeren Lock is contrary to the Treaty, notwithstanding the
existence and functioning of lock 19, if it were shown that the
use of the Neerhaeren Lock contravened the object of the
Treaty, that is to say if it were shown that the use of the
Neerhaeren Lock produced an excessive current in the Zuid-
Willemsvaart or a deficiency of water in the Meuse.
[78] The Court has not found any reason in the documents
submitted to it which would lead it to conclude that the water
discharged through the Neerhaeren Lock has set up an
excessive current in the Zuid-Willemsvaart, or has depleted the
Meuse to such an extent as to prejudice navigation on that
river.
[79] In the foregoing remarks, the question of the utilization of
the side-channels of the Neerhaeren Lock for feeding the reach
below the lock is not taken into consideration. The Court is only
considering the normal use of this lock for purposes of
navigation. There is no doubt that the use of these side-
channels for feeding the lower reach would transform them into
a feeder and would thus be contrary to the Treaty. [p24]
[80] Another circumstance which must be borne in mind in
connection with this submission I b is the construction of the
Bosscheveld Lock by the Netherlands Government. That lock
was completed and brought into use prior to the construction of
the Neerhaeren Lock. Its dimensions are even greater than
those of the Neerhaeren Lock. It is situated a short distance
below the treaty intake of 1863, and it leads directly from the
Meuse into the Zuid-Willemsvaart.
[81] As regards the Bosscheveld Lock, as in the case of the
Neerhaeren Lock, no evidence has been produced, and the
Court finds no reason in the documents that have been
produced, which would lead it to suppose that the use of the
Bosscheveld Lock has caused effects, either in the Zuid-
Willemsvaart or in the Meuse, which are inconsistent with the
object of the Treaty of 1863.
[82] During the oral proceedings before the Court, the
construction of this lock was defended by the Netherlands
Agent on the ground that the Treaty (Art. V, para. 2) entitles the
Netherlands to increase the volume of water "taken from the
Meuse at Maestricht". The Netherlands consider that, in virtue
of these words, they are entitled to take water from the Meuse
elsewhere than at the treaty feeder, and that in consequence
the discharge of water into the Zuid-Willemsvaart through the
Bosscheveld Lock is not contrary to the Treaty. This view
cannot be accepted, for these same words "taken from the
Meuse" are also used in the first paragraph of this same Article
V, and also in Article IV, and they cannot be understood in any
other sense than: the taking of water through the feeder
referred to in Article I, to the exclusion of its withdrawal
elsewhere.
[83] Another reason against the acceptance of the Netherlands
argument that Article V, paragraph 2, justifies the diversion
from the Meuse of water discharged into the Zuid-Willemsvaart
through the Bosscheveld Lock is that the right thus conferred
on the Netherlands was that of taking supplementary water for
their own use; this supplementary water has to be discharged
through the lock at Loozen. The Netherlands Government has
never contended that water flowing through the Bosscheveld
Lock simply in connection with the passage of boats was to
constitute this additional water intended to increase the share
allotted to it by Article V of the Treaty, and that this water
should consequently be restored to the Netherlands at Loozen.
In reality this water is merged in the whole body of water in the
Zuid-Willemsvaart system ; it is of common benefit to the
navigation of both countries, and it increases the Belgian quota
for irrigation and for the feeding of the Belgian canals. [p25]
[84] The Court cannot refrain from comparing the case of the
Belgian lock with that of the Netherlands lock at Bosscheveld.
Neither of these locks constitutes a feeder, yet both of them
discharge their lock-water into the canal, and thus take part in
feeding it with water otherwise than through the treaty feeder,
though without producing an excessive current in the Zuid-
Willemsvaart. In these circumstances, the Court finds it difficult
to admit that the Netherlands are now warranted in
complaining of the construction and operation of a lock of
which they themselves set an example in the past.
[85] Accordingly, as has been explained above, in the absence
of evidence as to the effects which the use of the Neerhaeren
Lock produces on the current in the Zuid-Willemsvaart, or on
the Meuse itself, the Court does not consider that the normal
use of this lock is inconsistent with the Treaty. The Court is
also of opinion that there is no ground for treating this lock less
favourably than the Netherlands lock at Bosscheveld. It is thus
unable to accord to the Netherlands Government the benefit of
its submission.
[86] Submission I b must, therefore, be rejected.
*
[87] The third claim of the Netherlands Government which is
formulated in submission I c of the Netherlands Memorial prays
the Court
"To adjudge and declare that:
............
(c) Belgium's project of feeding a section of the Hasselt Canal
with water taken from the Meuse elsewhere than at Maestricht
is contrary to the said Treaty."
[88] This claim of the Netherlands Government is
fundamentally concerned with the construction and putting into
operation of the Albert Canal from Liege to Antwerp, though
that canal is not mentioned by name. For the line of the Albert
Canal, a broad and deep canal of a total length of 125
kilometres, makes use for a certain distance in its course
towards Antwerp, between the so-called Curange Lock and the
so-called Quaed-mechelen Lock, of the bed of the old Hasselt
Canal which branches off the Canal de la Campine.
[89] The Netherlands do not contend that the intake at Liege-
Monsin which feeds the Albert Canal, is in itself contrary to the
said Treaty, or that the Treaty applies to the whole of the Albert
Canal. [p26]
[90] The line of argument of the Netherlands Government is
that when the Albert Canal is brought into operation, the old
Hasselt Canal, i.e. that part of it henceforward comprised in the
Albert Canal, will be fed, like the latter, with water taken from
the Meuse at Liege-Monsin, that is to say elsewhere than at
the treaty feeder. The situation resulting from the bringing into
use of this section of the Albert Canal would be contrary to the
Treaty.
[91] The Court finds nothing either in the arguments of the
Netherlands or in the text of the Treaty of 1863 which would
prevent either the Netherlands or Belgium from making such
114
use as they may see fit of the canals covered by the Treaty in
so far as concerns canals which are situated in Netherlands or
Belgian territory, as the case may be, and do not leave that
territory. As regards such canals, each of the two States is at
liberty, in its own territory, to modify them, to enlarge them, to
transform them, to fill them in and even to increase the volume
of water in them from new sources, provided that the diversion
of water at the treaty feeder and the volume of water to be
discharged therefrom to maintain the normal level and flow in
the Zuid-Willemsvaart is not affected.
[92] The question whether in fact it is true that, between
Hasselt and Quaedmechelen, the old canal is only fed with
water from the River Demer, as maintained by Belgium, or also
with water coming from the Canal de la Campine which comes
in turn from the Zuid-Willemsvaart, as maintained by the
Netherlands, is in reality irrelevant.
[93] No matter whence the water supplying the old Hasselt
Canal is obtained, Belgium is not prohibited from using that
canal as she may see fit, from transforming it or from in effect
abolishing a portion of it by more or less merging it in the new
Albert Canal which has its own water supply.
[94] The contention of the Netherlands Government is
invalidated by the singular result to which it would lead in
practice. For it would amount to criticizing Belgium for having
made the new canal follow the line of the old canal. She need
only have sited the new canal a few yards to one side and
have abandoned this section of the old canal and then,
according to the contention of the Netherlands, she would not
have contravened the Treaty. No such effect can have been
intended by the contracting Parties, nor can it result from a
proper interpretation of the terms of the Treaty.
[95] Submission I c must therefore be rejected. [p27]
*
[96] The fourth claim of the Netherlands Government which is
formulated in submission I d of the Netherlands Memorial prays
the Court:
"To adjudge and declare that:
............
(d) Belgium's project of feeding the section of the canal joining
the Zuid-Willemsvaart to the Scheldt between Heren-thals
(Viersel) and Antwerp with water taken from the Meuse
elsewhere than at Maestricht, is contrary to the said Treaty."
[97] This claim is similar to the preceding one in regard to the
Hasselt Canal.
[98] From Viersel to Antwerp, the course of the Albert Canal
coincides with the latter part of the old Canal de la Campine
which branches off the Zuid-Willemsvaart and is therefore
comprised in the system of canals situated below Maestricht
and fed from the treaty feeder.
[99] The grounds on which the Belgian Government is criticized
in the Netherlands Memorial in this connection are the same as
in the case of the Hasselt-Quaedmechelen section of the Albert
Canal which coincides with a portion of the old Hasselt Canal.
[100] The reasons which have led the Court to reject the
contention of the Netherlands Government in the latter case
also apply in this case.
[101] It is true that it is not denied that this section of the old
Canal de la Campine which is joined at Wyneghem near
Antwerp by the Turnhout Canal, is fed with water originally
coming from the Zuid-Willemsvaart. But, as has been stated,
the origin of the water feeding the canals comprised in the
system contemplated by the Treaty has no bearing on the right
of Belgium, or of the Netherlands, to make such use as they
may see fit of these canals when situated exclusively in their
own territory, provided that the regime governing the diversion
of water at the treaty feeder and the volume of water to be
discharged by that feeder to secure at all times the normal
level and flow of water in the Zuid-Willemsvaart is not thereby
affected.
[102] The Court accordingly considers that the criticism made
in the Netherlands Memorial is no more justified in the case of
the Herenthals (Viersel) Canal than in the case of the Hasselt
Canal. The submission made in the Netherlands Memorial
must therefore be rejected. [p28]
* been altered by the Netherlands Government without previous
[103] In a second series of submissions at the end of" their
Memorial, the Netherlands Government pray the Court :
"To order Belgium
(a) to discontinue all the works referred to under I (a) and to
restore to a condition consistent with the Treaty of 1863 all
works executed in breach of that Treaty;
(b) to discontinue any feeding held to be contrary to the said
Treaty and to refrain from any further such feeding."
[104] Since the Court has arrived at the conclusion that there is
no justification for the various complaints made by the
Netherlands Government against the Belgian Government in
the submissions of the former Government which have been
examined above, it can only reject the claim presented by the
Netherlands Government in respect of penalties to be imposed
upon the Belgian Government and is not called upon to
examine this claim.
* maximum fixed is discharged from the feeder. What it does
[105] Having rejected the four submissions made by the
Netherlands as Applicant in the principal suit, the Court
considers that there is no occasion for it to pass upon the four
alternative submissions presented by the Belgian Government
in its Rejoinder. These submissions were only presented "in
case the Court should be unable to find in accordance with the
submissions of the Respondent". The submissions of the
Netherlands having been rejected, the Court considers that
these alternative submissions have ceased to have any object,
and this view is confirmed by what was said by the Belgian
Agent at the hearing on May I2th, 1937.
***
[106] The Belgian Government, for its part, formulates in its
Counter-Memorial a counter-claim alleging : (i) that the
Netherlands Government has committed a breach of the Treaty
of 1863 by constructing the Borgharen barrage on the Meuse
below Maestricht ; (2) that the Juliana Canal constructed by the
Netherlands alongside to the Meuse below Maestricht from
Limmel to Maasbracht, is subject, as regards its water supply,
to the same Treaty.
[107] As this claim is directly connected with the principal
claim, it was permissible to present it in the Counter-Memorial.
[p29]
* argument, if not in its submissions, has contended that the
[108] In its first submission, regarding the Borgharen barrage,
the Belgian Government prays the Court,
"To adjudge and declare that:
I° The Borgharen barrage has been constructed in breach of
the stipulations of this same Treaty which is alleged by the
Netherlands Government to have been disregarded by the
Belgian Government as regards certain stipulations ; that is to
say, that the local situation at Maestricht provided for by the
Treaty of 1863 has been altered by the unilateral decision of
the Netherlands Government; that this alteration has rendered
115
the proper application of the Treaty impossible, because the
level of the Meuse has been raised by the Borgharen barrage
and the water-gauge which had been placed there in
accordance with the Treaty to enable the diversion of water to
be regulated in accordance with the level of the water has been
submerged".
[109] This submission formulated by the Belgian Government
contains both the claim itself and the grounds adduced in
support of it.
[110] In the first place, according to the Belgian Government,
the local situation at Maestricht has, contrary to the Treaty,
agreement with the Belgian Government.
[111] Article IV, paragraph 2, of the Treaty runs as follows :
"The normal low level, which at present varies between the 30
and 40 centimetre marks above zero on the gauge at the
Maestricht bridge, corresponds to a minimum depth of water of
seventy (70) centimetres between Maestricht and Venlo."
[112] It is clear that the construction of the Borgharen barrage
had the effect–it could scarcely have been otherwise–of raising
the level of the Meuse above the barrage, with the result that
no matter what may have been the low level of the river, as
actually determined in 1863, the volume of water discharged by
the feeder, according to the height of the Meuse, is always the
maximum volume.
[113] The Belgian Government does not contend that, by the
raising of the level of the Meuse resulting from the construction
of the Borgharen barrage, a volume of water greater than the
contend is that the situation has been altered without its
consent.
[114] Nowhere in the Treaty, however, is to be found a
provision forbidding the Netherlands from changing the depth
of water in the Meuse at Maestricht without the consent of
Belgium, provided that neither the discharge of water through
the feeder nor the volume which it must or can supply, nor
again the [p30] current in the Zuid-Willemsvaart are thereby
affected. It is subject to this condition, and not at their arbitrary
discretion, that the Netherlands are entitled, under the Treaty
of 1863, to dispose of the waters of the Meuse at Maestricht.
[115] The Belgian Government alleges that the raising of the
level of the Meuse at Maestricht has submerged the gauge
placed, in accordance with Article IV, paragraph 3, at the
entrance to the feeder in order to enable the volume of water to
be passed through the feeder to be checked, in accordance
with the height of the low water level. But the submerging of
the mark on this gauge would only be subject to criticism if,
because it was no longer possible to verify the volume of water
discharged by the feeder, this volume in fact exceeded the
maximum fixed by the Treaty. This however does not appear to
be the case, nor does the Belgian Government contend that it
is so.
[116] Lastly, the Belgian Government, in the course of its
Netherlands Government, by means of the Borgharen barrage,
has interfered with the navigability of the Meuse below
Maestricht, that is to say, that part of the river common to both
States.
[117] The Netherlands allege in reply on this contention that it
followed from Article V, paragraph 2, and Article XI of the
Treaty of 1863, that Belgium had relinquished her interest in
the navigation of the common section of the Meuse and that
the interests of navigation in that section were left to the
discretion of the Netherlands. On the contrary, Article IX of the
Treaty affords proof that Belgium did not relinquish her interest
in the joint section of the Meuse. For that Article expressly necessarily be rejected. [p32]
provides for the carrying out of works for the improvement of
the navigability of the Meuse between Maestricht and Venlo [125] As is stated in the Netherlands Government's
and for the financial participation of Belgium in the carrying out submission, the Juliana Canal is not therefore, as regards its
of these works. water supply, subject to the same provisions as the Zuid-
Willemsvaart and the other canals on the left bank of the
[118] On the other hand, in alleging that the navigability of the Meuse below Maestricht. But it in no way follows from this that
common section of the Meuse had suffered, the Belgium the Treaty authorizes the Netherlands Government to use the
Government should, in support of its contention, have water of the Meuse at Maestricht as it pleases for feeding the
produced evidence regarding the intensity of the traffic and of Juliana Canal. This argument, based on the theory that
the injurious effect upon it of the barrage. Belgium has not Belgium had relinquished interest in the navigation of the joint
produced this evidence. It would probably have been section of the Meuse, is, as has already been explained,
somewhat difficult for her to do so, because in actual fact, from inconsistent with the general plan of the Treaty.
the point of view of navigability, the joint section of the Meuse
is no longer of much importance save for small local vessels [126] The question of how the Juliana Canal is, in fact, at
and these only require a small depth of water. Barge traffic, present supplied with water would only require to be
under whatever flag, now has at its disposal the waterway considered if it were alleged that the method by which it is fed
provided by the Juliana Canal which is much better adapted to was detrimental to the regime instituted by the Treaty for the
its needs. canals situated on the left bank. Belgium does not however
allege that this is the case, and, moreover, the navigability of
[119] The submission of the Belgian Government in regard to the joint section of the Meuse cannot be considered in this
this question must therefore be rejected. [p31] connection otherwise "than it was regarded above, in
connection with the Borgharen barrage.
*
*
[120] The second submission in the counter-claim of the
Belgian Government relates to the Juliana Canal and asks the [127] The Belgian Government has added to its two
Court submissions, referred to above, a third submission praying the
Court :
"To adjudge and declare that:
............ "3. To reserve the rights accruing to Belgium from the
2. The Juliana Canal, being a canal below Maestricht, within breaches so committed".
the meaning of Article I of the Treaty, is subject, as regards its
water supply, to the same provisions as the canals on the left [128] As no violation of the Treaty of 1863 has been found by
bank of the Meuse below Maestricht". the Court to have been committed by the Netherlands
Government, the reservation of rights requested by Belgium
[121] The entrance of the Juliana Canal, a lateral canal of the cannot be accorded.
Meuse, is on the river, in Netherlands territory a little below
Maestricht, and the canal debouches at Maasbracht, also in [129] FOR THESE REASONS,
Netherlands territory, a little below the point at which the In regard to the principal claim:
Belgian frontier leaves the Meuse and the river ceases to be The Court, by ten votes to three,
common to both countries. It is therefore beyond dispute, from Rejects the various submissions of the Memorial presented by
a geographical point of view, that the Juliana Canal is situated the Netherlands Government in pursuance of its Application
below Maestricht. But it does not follow that it is, as the Belgian dated August 1st, 1936.
Government contends, "a canal below Maestricht within the As regards the counter-claim presented in the Belgian Counter-
meaning of Article I of the Treaty". Memorial, dated January 28th, 1937 :
The Court, by ten votes to three,
[122] The provision in Article I which stipulates that the new Rejects the submissions of the aforesaid counter-claim. [p33]
intake at Maestricht shall be "the feeder" for all "canals situated The present Judgment has been drawn up in French in
below that town", and the consequential provision in Article IV, accordance with the provisions of Article 39, paragraph i, of the
last paragraph, to the effect that "no further use shall be made Court's Statute, the Parties having declared themselves agreed
of the intake at Hocht" imply by their very terms, if any that the whole case should be conducted in French.
indication were needed, that the feeder is situated on the left
bank of the Meuse and that, in consequence, the canals which [130] Done at the Peace Palace, The Hague, this twenty-eighth
it has to feed are also on the left bank of the river. Moreover, day of June, one thousand nine hundred and thirty-seven, in
the canals the feeding of which had occasioned difficulties, and three copies, one of which will be deposited in the archives of
which are referred to in the Treaty, are the Zuid-Willemsvaart the Court while the others will be transmitted to the
itself and the canals which branch off from it and thus derive Government of the Netherlands and to the Government of
their supply of water from it. It is manifest that an intake Belgium, respectively.
situated on the left bank of the river cannot be regarded as
intended to feed canals situated on the right bank. The latter (Signed) J. G. Guerrero,
cannot therefore come under the regime of water supply President.
instituted by the Treaty. (Signed) J. Lopez On van,
Registrar.
[123] The Juliana Canal, which is below Maestricht but is
situated on the right bank, cannot therefore be considered or [131] M. Anzilotti declares that he is unable to concur in the
treated as "a canal below Maestricht within the meaning of judgment given by the Court and, availing himself of the right
Article I of the Treaty" according to the terms of the Belgian conferred upon him by Article 57 of the Statute, has appended
submission. to the judgment the separate opinion which follows.

[124] As the situation of the Treaty feeder on the left bank of
the Meuse makes it impossible in practice to regard the Juliana
Canal, situated on the right bank, as being subject to the same
rules regarding its water supply as the canals on the left bank,
the submission in- the Belgian Counter-Memorial must
116
[132] M. Altamira and Jonkheer van Eysinga declare that they
are unable to concur in all the findings of the Court's judgment
and have appended to the judgment the separate opinions
which follow.
[133] Sir Cecil Hurst, Vice-President of the Court, declares that that reason the first submission in the Belgian counter-claim
he is unable to concur in the findings of the Court's judgment in should be admitted.
regard to the counter-claim of the Belgian Government and has
appended to the judgment the separate opinion which follows. [143] The provision in the second paragraph of Article V
enabling the Netherlands Government to increase its share of
[134] Mr. Hudson, whilst concurring in the judgment, has the water withdrawn from the Meuse at Maestricht affords no
appended certain observations. justification for the construction of the Borgharen barrage.
There is nothing to show that it was with a view to the exercise
[135] M. de Visscher declares that he is unable to concur in the of its rights under that Article that the barrage was constructed.
findings of the Court's judgment in regard to the counter-claim
of the Belgian Government. [144] The second submission in the Belgian counter-claim
relates to the Juliana Canal.
(Initialled) J. G. G.
(Initialled) J. L. O. [p34] [145] It is to the effect that the canal being a canal below
Maestricht within the meaning of Article I of the Treaty is
subject as regards the supply of water to it to the same
provisions as the canals on the left bank.
Dissenting Opinion of Sir Cecil Hurst.
[146] From the wording of the second and third submissions in
[136] I am unable to agree with the decision of the Court on the the Reply of the Netherlands Government, one may infer that it
Belgian counter-claim. is not disputed by that Government that the Juliana Canal is a
canal below Maestricht within the meaning of that Article. It is
[137] The first submission of that counter-claim relates to the merely submitted that the canal is not as regards its water
Borgharen barrage. I am not able to regard the construction of supply subject to the same provisions as the canals on the left
this barrage by the Netherlands Government otherwise than as bank, and that the feeding of the canal is not and has not been
a violation of the Treaty of 1863. inconsistent with the Treaty of 1863, as also that the mere fact
that it would be possible for the Netherlands to use certain
[138] Article IV of the Treaty provided that a certain quantity of locks on this canal in a manner inconsistent with the Treaty
water was to be withdrawn by the new intake constructed does not in itself involve a breach of the Treaty.
under the provisions of Article I. The quantity varied according
to the level of the river. When the level of the water in the river [147] The questions how the Juliana Canal has been supplied
stood at or below a certain point on the gauge at the bridge at with water in the past and how it is being supplied at present
Maestricht, the ten cubic metres per second was to be reduced are questions of fact. If it is maintained on behalf of the Belgian
to 7 ½ cubic metres, or to 6 cubic metres, according to the Government that the Juliana Canal has been and is being
season of the year. supplied with water from the Meuse in breach of the Treaty of
1863, the burden of proof lies on that Government. No
[139] The level of the Meuse so fixed as the determining factor sufficient evidence has been submitted on behalf of the Belgian
in deciding whether the larger or the smaller quantity of water Government that the Juliana Canal is or has been fed with
was to be withdrawn from the Meuse is stated in the Treaty water from the Meuse. On the contrary the evidence submitted
itself (Art. IV, para. 2) to correspond to a minimum depth of by the Netherlands Government shows that it was not with
water between Maestricht and Venlo. This shows that the Meuse water that the Juliana Canal was gradually filled as
purpose which the Treaty had in view was that the quantity of soon as its construction was completed, and that it is not fed
water to be withdrawn from the Meuse should depend on the with water [p36] from the Meuse at present. A finding to that
depth of water in the sections of the river below Maestricht. It is effect would in my opinion have been sufficient to dispose of
therefore permissible to draw the deduction that the intention of the case as regards the Juliana Canal, and to justify the
the framers of the Treaty was that the maximum of ten cubic rejection of the Belgian submission. The question whether or
metres per second should only be withdrawn from the river not the Juliana Canal is a canal below Maestricht within the
when there was a certain depth of water in the river below meaning of Article I need not in that case have been
Maestricht and down to Venlo. considered.

[140] The effect of the construction of the Borgharen barrage is
twofold :–firstly, the level of the water at the mouth of the intake
and at the bridge at Maestricht stands permanently so high that
the ten cubic metres per second is at all times being withdrawn
by the new intake; secondly, the level of the water at the gauge
at the bridge at Maestricht has ceased to correspond with a
particular depth of water in the Meuse between Maestricht and
Venlo. The depth of water in the river between Maestricht and
Venlo has in fact ceased to be the factor upon which depended
ultimately the amount of water to be withdrawn from the Meuse
under the Treaty of 1863.
[141] The Treaty does not make express mention of the fact,
but it seems clear that this provision as to the depth of water in
[p35] the river between Maestricht and Venlo had reference to
the interests of navigation. It was only in connection with
navigation that the depth of water in the river between
Maestricht and Venlo was of importance.
[142] The action of the Netherlands Government in
constructing the Borgharen barrage has had the effect of
excluding altogether the application of a provision in the Treaty
which must be regarded as having been intended to safeguard
the interests of navigation on the Meuse between Maestricht
and Venlo. Such action is incompatible with the Treaty, and for
117
[148] The judgment of the Court proceeds upon the basis that,
as the new intake constructed in accordance with Article I of
the Treaty was situated on the left bank of the river, and
therefore cannot have been intended to feed canals on the
right bank, canals on the right bank cannot come under the
regime of water supply instituted by the Treaty.
[149] There is no doubt that in 1863 the canals situated below
Maestricht were all situated on the left bank of the river, and
there is nothing to show that at that date any such canal as the
Juliana Canal had been thought of. It does not follow, however,
that it was the intention of the Treaty that the prohibition
contained in Article I of the Treaty was not intended to apply to
a canal on the right bank.
[150] The Treaty was certainly intended to introduce a
limitation on the withdrawal of water from the Meuse for
feeding canals. In 1863 navigation on the river below
Maestricht was of importance, and such navigation was bound
to suffer if the withdrawals of water were excessive. Despite
the fact therefore that the new intake was situated on the left
bank, and that the canals as to which difficulties had arisen
before 1863 were also situated on the left bank, there can be
no sufficient reason for reading into the Treaty of 1863 a
supposed intention to restrict its operation to the left bank if the
plain language of the text is broad enough to cover canals on
the right bank.
[151] The phrase used in Article I "pour tous les canaux situes
en aval de cette ville" is quite general: it covers canals on the
right bank as much as canals on the left bank, and it is in that
sense in my view that it must be interpreted.
[152] It is unnecessary to attempt a precise definition of the
term "en aval de Maestricht". The Parties are in agreement that
the prohibition in Article I extended not only to canals which
existed in 1863, but to canals which might be constructed at a
later date. Though they were not agreed as to the exact
meaning of the term, it is impossible to conceive any
interpretation of the term which would not cover a great
waterway such as the Juliana Canal, which is in direct
connection with the Meuse and is situated only a few
kilometres below Maestricht. [p37]
[153] For these reasons, the Juliana Canal would in my opinion
fall within the prohibition prescribed by Article I of the Treaty if it
was fed with water from the Meuse. It is merely because of
lack of proof as to this point that the Belgian submission should
be rejected.
(Signed) Cecil J. B. Hurst. [p38]
Separate Opinion by M. Altamira.
[Translation.]
[154] My dissent from the foregoing judgment is mainly in
respect of the two following points: the interpretation of the
Treaty of 1863 and the findings upon the submissions of the
Applicant.
[155] I will confine myself to indicating my interpretation of the
Treaty in so far as is necessary to explain why I cannot accept
all the grounds on which the judgment is based, though this
does not prevent me from arriving for different legal reasons at
the same conclusions as the findings of the judgment, with the
sole exception of the finding in regard to the Neerhaeren Lock.
I.
[156] The Treaty of May 12th, 1863, constitutes, in my view, a
well constructed and complete system in which the various
articles are interconnected, each serving to explain and
complete the others, thus achieving the objects which are fully
and reasonably set out in the Preamble itself.
[157] Regarding the Treaty as a whole, it is possible to discern
three groups of provisions : one comprising Articles I, II, III, IV,
V, VI, VII, VIII and XI, which deal with the feeding of and
navigation upon certain canals referred to in Article I ; another
comprising Articles X and XIII which relate to the carrying out
of works made necessary by the provisions of the first group,
and a third comprising Articles IX and XII, which concern
navigation on the Meuse at different points. This structure of
the Treaty, which is due to the needs with which the Parties
were concerned in 1863, serves to explain the import of the
Preamble.
[158] Before analyzing the articles of the Treaty, I find it
necessary to make two general observations.
[159] First of all, I would say that, in my view, every one of the
obligations, whether common to the two contracting Parties or
peculiar to one of them, contained in the Treaty, is essential in
respect of the type of interests to which it relates ; but it follows
that none of them takes precedence over the others and still
less can render them superfluous. On the contrary, each article
of the Treaty requires the precise fulfilment of that part of the
agreement between the contracting States which it represents ;
118
the interdependence which may exist between that part and
the provisions of other articles (e.g. Art. IV and Arts. Ill, V and
XI) merely places conditions or limits upon the exercise of each
right or the fulfilment of each obligation ; but, subject to these
conditions or limits, where they exist, the [p39] provisions of
each article remain intact and nothing should prevent their
application. For otherwise the Treaty would cease to be a
harmonious whole and would fail to fulfil one or more of its
objects instead of serving them all in accordance with the plan
jointly adopted by the Parties.
[160] Besides this general consideration which, in my view,
governs the Treaty as a whole and each of its articles, there is
the fact–entirely natural since we are dealing with a treaty–that
the Treaty of May 12th, 1863, involves obligations and that
these obligations must be fulfilled. The fact that the Treaty is
chiefly concerned with the adjustment of the Parties' interests
and not with differences of a really legal nature does not mean
that no legal relationship is established as regards the
fulfilment of the agreement in regard to interests. These
interests may have been the reason for the conclusion of the
Treaty, but once the Treaty has come into existence, the rights
and obligations which it expressly or implicitly creates take
precedence. The interests remain in the background and can
only be taken into account in so far as is permitted by the legal
provisions embodied in the agreement between the Parties.
They can never take the place of these provisions or impede
their execution.
[161] Having made these general observations, I now come to
the interpretation of the articles of the Treaty.
[162] Article I is for many reasons of considerable importance
for a proper understanding of the Treaty. It has been very
much discussed by the Parties in this case. It is connected with
all the other articles relating to the diversion and allocation of
water, and more especially with Article II and Article IV.
[163] An analysis of its terms gives the following results: an
obligation to construct at Maestricht a work for the diversion of
water from the Meuse ; the definition of this work as "the
feeder", i.e. the only feeding conduit for certain canals and
irrigation channels ; the qualification of these canals by the
words "situated below" Maestricht, and of the irrigation
channels as those "of Campine and of the Netherlands". The
character of the new feeding conduit as the only feeder which
is expressed by the wording of the Article, is confirmed by the
terms of the last paragraph of Article IV, which stipulates that
the intake of Meuse water previously existing at Hocht is not to
be used, that is to say its abolition in practice, since no other
source for the feeding of the canals referred to in Article I may
exist once the feeding conduit through which is discharged the
volume of water taken from the Meuse at Maestricht has been
constructed.
[164] Two obligations naturally ensue from this circumstance.
One– common to both Parties–is the obligation not to make–or
[p40] not to retain–another intake having the same purpose or
the same result in practice as that which the Maestricht feeder
is henceforward alone to serve. To my mind, it is obvious that
the obligation covers the two following points : the intention to
supply water and the actual fact of the supply of water to
canals "below Maestricht", since though it is impossible to
imagine that an intake would be made with the express object
of feeding these canals unless that object were fulfilled–for
otherwise the intention would not be carried out–there is the
possibility that though the object were lacking, the feeding
might nevertheless take place. It is clear that, in Article I, the
actual feeding of the canals and not the construction of the
intake with its feeding conduit is the essential point. Unless the
feeding actually takes place, the intake would be of no use for
the fulfilment of the object of the agreement between the
Parties.
[165] The other obligation, likewise common to both Parties, is
the obligation to do nothing which–apart from a supplying of
water from a source forbidden by the first obligation–would
make it impossible to execute Article I completely and
consequently also the other articles which constitute its
complement or corollary. This second obligation, so far as
Belgium is concerned, relates to the volume of water to be
assigned to the Maestricht intake which naturally depends on
the total volume of water in the Meuse above Maestricht in
Belgium territory. Thus, if intakes intended for the supply of
water for some object other than canals referred to in Article I,
were made above Maestricht to carry off quantities of water
which would make it impossible for the Maestricht feeder to
fulfil its function under the conditions laid down by the Treaty, it
is clear that this would be contrary to Article I, as well as– as
we shall see–to Articles IV and V. Of course, though this
obligation appears particularly to concern Belgium, it also
concerns the Netherlands in so far as it may be possible for
action taken in their territory to interfere with the fulfilment of
the function of the treaty feeder. In my opinion, this is all that is
to be found or can be deduced from the terms of Article I–
which is very clear–without going beyond its scope. Any further
obligation or right on the part of the Netherlands Government
or the Belgian Government is only to be found in the following
articles of the Treaty.
[166] As regards what canals were referred to by the words in
the Article "below Maestricht", everyone knew quite well in
1863 which canals were meant, and the Treaty did not need to
enumerate them. It is fair to assume that the authors of the
Treaty thought it unnecessary to mention them by name.
Moreover, the judgment does so in more than one passage in
its grounds, and there is nothing further to add. [p41]
[167] The first paragraph of Article II simply draws a conclusion
from Article I. If the new intake was thenceforth to be the sole
"feeder" for the canals–a service hitherto performed by the
intake at Hocht, about to be abolished–the lock connected with
the Hocht intake became useless where it was. But since the
function it performed was still required for purposes of
navigation, it had to be transferred to the place where the new
intake was to be built. We shall see later that this paragraph of
Article II has also a special significance in connection with the
finding concerning Neerhaeren.
[168] The second paragraph of this Article II is only important in
the present case as emphasizing the importance of navigation
on the canals. It anticipates a consequence following from the
execution of Article I, the first paragraph of Article II and the
last paragraph of Article IV and, to remedy the resulting
inconvenience, orders the execution of certain hydraulic works.
Article III pursues the same aim on another part of the canal.
[169] Paragraphs 1 and 2 of Article IV fix the quantity of water
which can be taken from the Meuse by the Maestricht intake,
varying with the level of water in the river. Thus they determine
the flow of the intake provided for in Article I. The two
paragraphs mark the limits of this flow and thereby impose an
obligation upon the Netherlands, in whose territory the new
feeder operates, not to exceed these limits, subject to a right in
favour of the Netherlands Government, which is not expressed
in Article IV, but in paragraph 2 of Article V.
[170] The third paragraph of Article IV prescribes the placing at
the mouth of the new intake of a gauge indicating the low water
level fixed in the preceding paragraph.
Finally, the last paragraph of Article IV formulates expressly, as
already said in reference to Article I, one of the main
consequences ensuing from that Article: viz., the
discontinuance of the Hocht intake, already mentioned in
Article II–an intake which was situated in Belgian territory
above Maestricht.
[171] Article V, paragraph 1, fixes, on the basis of the
maximum volume which can be taken from the Meuse by the
Maestricht feeder, the distribution of this water between the two
119
interested countries. The allocation is not made on terms of
equality, Belgium being the more favoured Party, but the
reasons for this inequality of treatment are of no importance to
the questions now at issue. We need only note the obligation
which this paragraph imposes upon the Netherlands to
discharge the [p42] two cubic metres per second allotted them
(ij when bound by the minimum as provided in Art. IV) through
lock 17 at Loozen in the direction of Netherlands territory,
these two metres being intended for "the canals and irrigation
channels of the Netherlands".
[172] On the other hand, paragraph 2 of Article V grants
permission to the Netherlands Government to "increase the
volume of water taken at Maestricht" (i.e. the total maximum
volume fixed in Art. IV and requiring to be passed through the
new feeder). This increase will in practice affect the quantity of
water allowed to the Netherlands by paragraph i of Article V, as
is clearly shown by the words in this same paragraph 2 : "this
surplus water will also be discharged through lock 17 at
Loozen" (as well as the two cubic metres of para. 1).
[173] The right thus to increase the volume of water especially
assigned to the Netherlands is not restricted to a certain
number of cubic metres, but is limited in this same paragraph
by the fact that the increase may not be of such amount as to
cause "the speed of the current in the canal .... to exceed the
limits fixed in Article III". This "average" speed shall not exceed
"a maximum of 25 to 27 centimetres per second".
[174] Within these limits therefore, the right granted to the
Netherlands is purely discretionary.
[175] Article VI deals particularly with irrigation, which,
according to the Preamble, is the second aim of the Treaty. I
need not analyze this Article, as it is of little importance to our
case. The same applies to Article VII, which imposes a further
obligation upon Belgium, and to Article VIII.
[176] Article IX introduces the second group of treaty
provisions to which I referred at the beginning. It concerns the
improvement of navigation, not on the canals mentioned in
Article I, .but on the Meuse in the part of the river between
Maestricht and Venlo, which in 1863 presented serious
obstacles to safe navigation. It has no connection with the
Maestricht feeder nor with the supply of the canals referred to
in Article I.
[177] Article X is again concerned with the intake of Article I,
but only from the technical point of view of works to be
constructed there and of the works mentioned in Article II. It
adds nothing essential in regard to the questions now at issue.
The same is true of Articles XII and XIII. Article XIV deals only
with ratification of the Treaty.
[178] Article XI, on the other hand, supplements paragraph 2 of
Article V in case the exercise of its right by the Netherlands
[p43] Government should require the execution by it of certain
hydraulic works. In this event, but only in this event, "the
question of the co-operation of the Belgian Government.... will
be settled between the two Governments", in regard to the
"measures necessary to secure discharge of the water through
the Zuid-Willemsvaart". It appears to me clear that, as long as
the increased volume granted to the Netherlands Government
is furnished by the Maestricht feeder, the water is bound to be
discharged into the Zuid-Willemsvaart, since the feeder
communicates only with that canal. Article XI seems to me to
provide for the possibility of new hydraulic works being
constructed between the feeder and the said canal or in some
other way allowing the surplus water permitted by Article V to
be discharged in some other direction. The possible effect of
this surplus water on the current of the canal is already
provided for in Article V.
[179] In this interpretation of the 1863 Treaty, I have been at
pains to state by an analysis of its articles the express or
implied obligations contained in each of them. The Treaty does
not seem to me to impose any other obligation upon either
Party. In my view, however, each of these obligations must be
observed irrespective of the others, and the fulfilment of the
others cannot excuse the non-fulfilment of one.
[180] Before concluding this part of the present opinion, I would
point out, among the practical consequences to be drawn from
an interpretation of the 1863 Treaty–thus passing beyond the
sphere of law–the fact that the obligations under this Treaty are
perhaps somewhat restrictive, having regard to circumstances
that have since developed. This is certainly not a question for
the Court or for a judge to examine, but it arises quite naturally
from a study of the legal elements contained in the Treaty and
from knowledge of present-day conditions. As long as the
Treaty remains in force, it must be observed as it stands. It is
not for the Treaty to adapt itself to conditions. But if the latter
are of a compelling nature, compliance with them would
necessitate another legal instrument.
II.
[181] To explain the grounds of my dissent from the finding
concerning the Neerhaeren Lock, as contained in the reasons
for the present judgment, I need only apply my interpretation
[p44] of Article I of the Treaty of 1863 and my general remarks
on the Treaty system.
[182] The canals referred to in Article I may not be fed
otherwise than from the Maestricht intake and its feeding
conduit, firstly because that is the only place where feeding is
permitted and secondly because the quantity of water to be
diverted for this purpose may not exceed the maximum volume
fixed by Article IV, and, as regards the surplus allowed to the
Netherlands by Article IV, paragraph 2, only the Netherlands
Government may supply it within the limits fixed in that
paragraph.
[183] The case of lock 19 cannot, in my view, be invoked to
refute the foregoing argument. This lock was created by the
Treaty, and this fact confers upon it a legal status which
renders it consistent with the rest of the convention, a status
which no other lock not recognized by the Treaty and
discharging water into the canals by conduits other than the
Maestricht feeder, would possess. Nor is there anything in
Article II which, in my view, would justify the deduction that the
Treaty recognizes the general principle that water discharged
by locks, of which water the principal and normal purpose is
not that of feeding the canals referred to in Article I but which in
fact does constitute a feeding of such canals with water not
taken from Maestricht, may be assimilated to water from the
new lock 19, and still less to water passing into the Zuid-
Willemsvaart by the Maestricht conduit. The fact that the water
hitherto discharged by the Neerhaeren Lock has not increased
the speed of the current does not seem to me to alter the
character of the supply of water discharged by that lock. The
provisions of Articles I, IV and V are in my view contrary to this
conclusion.
(Signed) Rafael Altamira. [p45]
Dissenting Opinion of M. Anzilotti.
[Translation]
[184] I.–There are two points in the judgment in regard to which
I am unable to agree with the opinion of the Court: these are
the rejection of submission I b of the Application (the
Neerhaeren Lock) and the rejection of submission i° of the
Counter-claim (the Borgharen barrage). In my opinion, the
Court should have accepted both these submissions.
[185] As my dissent is based on an interpretation of the Treaty
of May I2th, 1863, differing from that adopted by the Court, it is
fitting that I should state the reasons for it in a few words.
120
[186] Before giving my individual opinion on the two points in
question, I must however make a general observation.
[187] The operative clause of the judgment merely rejects the
submissions of the principal claim and of the Counter-claim. In
my opinion, in a suit the main object of which was to obtain the
interpretation of a treaty with reference to certain concrete
facts, and in which both the Applicant and the Respondent
presented submissions indicating, in regard to each point, the
interpretation which they respectively wished to see adopted by
the Court, the latter should not have confined itself to a mere
rejection of the submissions of the Applicant : it should also
have expressed its opinion on the submissions of the
Respondent ; and, in any case, it should have declared what it
considered to be the correct interpretation of the Treaty.
[188] It is from the standpoint of this conception of the functions
of the Court in the present suit that the following observations
have been drawn up.
[189] 2. – The question whether the functioning of the
Neerhaeren Lock, the effect of which is to discharge into the
Zuid-Willemsvaart water diverted from the Meuse elsewhere
than at the feeder prescribed, by Article I, is or is not contrary
to the Treaty, depends, mainly, on the scope of the obligation
which the two Parties contracted when they laid down in this
Article that the new intake on the Meuse "shall constitute the
feeder for all canals situated below that town", etc. Is this an
obligation merely to refrain from constructing other intakes on
the Meuse constituting feeders for the aforesaid canals ? or is
it an obligation to refrain from feeding these canals with water
diverted from the Meuse elsewhere than at the treaty feeder,
no matter by what method such feeding may be effected (by a
conduit, by lockage, by pumping, etc.) ? [p46]
[190] If the text is taken literally, it seems only to refer to
"feeders" of the same sort as the one which the Treaty ordered
to be constructed.
[191] But it is always dangerous to be guided by the literal
sense of the words before one is clear as to the object and
intent of the Treaty ; for it is only in this Treaty, and with
reference to this Treaty, that these words–which have no value
except in so far as they express the intention of the Parties–
assume their true significance.
[192] The Treaty of May I2th, 1863, is based, in my opinion, on
the fundamental principle that a certain quantity of water, and
no more, will be taken from the Meuse to supply the needs of
the canals situated below Maestricht and for the irrigation
works in the Campine and the Netherlands. The quantity of
water to be withdrawn from the Meuse is fixed with reference to
the level of the river (Art. IV) ; and this provision is closely
connected with the other object of the Treaty, which is to
institute a regime on the Meuse, by means of a programme of
works that would maintain and improve the navigability of that
river in spite of the relatively large quantity of water which it
was proposed to withdraw from it (Art. IX).
[193] If that is really the system of the Treaty–and I do not see
how it can be questioned–it follows that the essential purpose
of Article I is not to exclude other feeders. Its object is rather to
exclude any feeding of the canals in question with water
withdrawn from the Meuse elsewhere than at the treaty feeder;
for it is only at that feeder that the water can be measured, and
it is only if its volume remains within the limits laid down, that
the Treaty is being regularly executed. That is the reason, and
that is the significance, of the single feeder which is sanctioned
by Article
I.
[194] It follows that the obligation which the Parties assumed
when they laid down that the new intake would "constitute the
feeder for all canals...." is not merely an obligation to refrain
from constructing other feeders, but is an obligation to refrain
from supplying these canals with water taken from the Meuse
elsewhere than at the treaty feeder, no matter by what method
it is taken or by what method it is discharged into the canals in
question. Moreover, it cannot be disputed that engineers
regard lockwater as an important, in some cases the most
important, factor in the feeding of canals.
[195] Founding myself on this interpretation of the Treaty, I am
led to the conclusion that the functioning of the Neerhaeren
Lock, the effect of which is to discharge into the Zuid-
Willemsvaart a certain quantity of Meuse water diverted at
Monsin in excess of the quantity laid down in Article IV, is
contrary to this Treaty. [p47]
[196] It matters little that this surplus water discharged into the
Zuid-Willemsvaart has not increased the velocity of the current
in this canal beyond the maximum limit laid down in Article III.
That maximum constitutes a limit for the volume of water which
may lawfully be withdrawn at the treaty feeder, in virtue of
Article V, paragraph 2 ; the fact that it is not exceeded could
not have the effect of legalizing a withdrawal of water from the
Meuse which is, in itself, contrary to the Treaty.
[197] It is true that this Treaty provides (Art. II) for the
construction of a lock, the result of which would be to discharge
into the Zuid-Willemsvaart Meuse water conveyed from Liege
by the Liege-Maestricht Canal. It must however be pointed out
that the construction of that lock was a necessary
consequence of the works prescribed by the Treaty (Arts. II
and III) in order to enable the Zuid-Willemsvaart to discharge
the water received through the new intake. The only argument
which can be drawn from it, in support of the opposite view, is,
therefore, that the water discharged through this lock is not
included in the quantity laid down in Article IV. But it is
admitted–and both Parties are agreed on this point–that the
total average quantity of lock-water discharged by this lock is
very small, and is less than the margin of error allowed in
measuring the volume of water prescribed in Article IV. It was
therefore quite natural that the authors of the Treaty should not
have taken this water into account.
[198] But it would be going beyond the reasonable intentions of
the Parties to seek to infer from this fact that, because lock 19,
in affording passage to barges, discharges into the Zuid-
Willemsvaart a volume of water which supplements that taken
from the Meuse by the treaty feeder, it is lawful to construct
other locks, performing the same function and producing the
same effects. This would subvert the whole system of the
Treaty.
[199] 3.–Submission I & of the Application must however be
considered also from another point of view.
[200] Before Belgium had constructed the Neerhaeren Lock,
the Netherlands had constructed and brought into use the
Bosscheveld Lock, which also had the effect of conveying into
the Zuid-Willemsvaart a certain quantity of water drawn from
the Meuse elsewhere than at the treaty feeder, and,
consequently, in excess of the volume laid down in Article IV of
the Treaty. The Netherlands allege that they were entitled to
construct the Bosscheveld Lock because in virtue of Article V,
paragraph 2, they were authorized to withdraw water from the
Meuse elsewhere than at the treaty feeder, and to discharge it
into the Zuid-Willemsvaart, subject only to the condition [p48]
that the speed of the current of that canal was not caused to
exceed the maximum limit laid down in Article III. Belgium
disputes that interpretation, and maintains that, subject to the
possibility of increasing the volume of water that may be
diverted through the treaty feeder, the rights and obligations of
the two States were identical.
[201] Having regard to the foregoing, it is clear that the first
thing to. do is to ascertain what is the attitude of the
121
respondent Party in regard to the claim concerning the
Neerhaeren Lock.
[202] The Belgian Government, in opposing submission I b of
the Application–in addition to its general request that the
submission of the applicant Party shall be declared to be ill-
founded –asks the Court to adjudge and declare that "the
feeding of the Zuid-Willemsvaart and the canal joining the
Meuse and the Scheldt and its branches is not rendered
incompatible with the Treaty mentioned above by the fact that
lockage water arising from the working of the Neerhaeren
Lock–operated bona fide for the passing of boats–is added to
the water from the Meuse coming from the intake at Maestricht,
as the Neerhaeren Lock cannot be treated less favourably than
the Bos-scheveld Lock" (submission 2° of the Counter-
Memorial).
[203] Disregarding for the moment the last phrase "which
cannot be treated less favourably", etc., it is clear that what
Belgium is asking the Court to do is to give an interpretation of
the Treaty on the point of law raised by submission I & of the
Application. It is therefore evident that both Parties were
agreed in asking the Court for this interpretation.
[204] Is this view controverted by the last sentence of the
submission in which the Belgian Government brings the
Bossche-veld Lock into consideration ? My answer is definitely
in the negative ; I see nothing more in these words than an
allusion to the Belgian contention of the equality of the two
States in regard to the Treaty of 1863, and consequently an
argument in support of the interpretation which the Court is
asked to give. For it is manifest that the Belgian Government
could scarcely suppose that the Court, having reached the
conclusion that the Treaty prohibits the feeding of canals
situated below Maestricht by lock-water taken from the Meuse
elsewhere than at the treaty feeder, would subsequently
change its opinion and alter its interpretation in consequence of
the existence of the Bosscheveld Lock. For either the Court
would consider that this lock is justified by Article V, paragraph
2, as the Netherlands contend, so that its existence could in no
way affect the Neerhaeren Lock ; or the Court would consider
that Article V, paragraph 2, does not possess the meaning
attributed to it by the Netherlands, and then it could only
conclude that the Bosscheveld Lock is also contrary to the
Treaty. [p49]
[205] No doubt the Belgian Government might have asked the
Court, in case the latter should not accept its interpretation of
the Treaty, to declare that the Bosscheveld Lock is itself
contrary to the said Treaty; it would only have needed to
present an alternative submission to submission 2° of the
Counter-Memorial. But the Belgian Government did not present
any such submission ; that is its own affair and the Court did
not need to concern itself with the matter. It is none the less
true that the Belgian Government asked for the interpretation of
the Treaty with reference to the Neerhaeren Lock just in the
same way as this had been requested by the Netherlands
Government : this circumstance suffices in my opinion to oblige
the Court to give a decision on submission I b of the
Application and on submission 2° of the Counter-Memorial,
without concerning itself in any way with the existence of the
Bosscheveld Lock; I have already mentioned the grounds on
which the Court should have admitted submission I b of the
Application and rejected submission 2° of the Counter-
Memorial.
[206] But there is another aspect of the question. Submission I
b of the Application is not the only one which relates to the
Neerhaeren Lock. In submission II b, the Netherlands asked
the Court to condemn (condamner) Belgium "to discontinue
any feeding held to be contrary to the said Treaty and to refrain
from any further such feeding" ; there can be no doubt that this
submission has primarily in view the functioning of the
Neerhaeren Lock.
[207] In my opinion the word condemn ("condamner") is not
entirely appropriate in international proceedings; in any case, it
is employed in a sense which is only remotely connected with
that of condemnation in national law. What the Netherlands ask
in submission II b is, in fact, that the Court should declare that
Belgium is bound to carry out the Treaty and to discontinue
effecting certain supplies of water. While submission I b seeks
for an interpretation of the Treaty, submission II b seeks for its
execution.
[208] In its Rejoinder, the Belgian Government presented
certain alternative submissions, the second of which is worded
as follows : "To find that, by constructing certain works contrary
to the terms of the Treaty, the Applicant has forfeited the right
to invoke the Treaty against the Respondent".
[209] This was an alternative submission "in case the Court
should be unable on certain points to find in accordance with
the submissions of the Respondent" ; in fact, it is a submission
which only arises, so far as concerns the Neerhaeren Lock, in
case the Court, in deciding on submission I b of the Application
and on submission 2° of the Counter-Memorial, should [p50]
reject the interpretation maintained by the Belgian
Government. In my view, the Court should therefore have
given a decision on the alternative submission.
[210] The admissibility of this submission depends on two
conditions, namely, whether the legal rule on which it founds
itself is applicable in relations between States, and whether the
Netherlands, by constructing the Bosscheveld Lock, were
failing to execute the obligation imposed on them by the
Treaty.
[211] As regards the first point, I am convinced that the
principle underlying this submission (inadimplenti non est
adimplendum) is so just, so equitable, so universally
recognized, that it must be applied in international relations
also. In any case, it is one of these "general principles of law
recognized by civilized nations" which the Court applies in
virtue of Article 38 of its Statute.
[212] As regards the second point, I am also of opinion that the
Belgian Government's objection is well founded. If it is true that
the Netherlands, in virtue of Article V, paragraph 2, have the
right, which Belgium does not possess, to "increase the volume
of water taken from the Meuse", it is none the less true that this
water has to be withdrawn through the treaty feeder : the text
of this paragraph is perfectly clear and allows of no doubt on
that point. It follows that the obligation imposed by Article I, the
scope of which has been explained above, applies to the
Netherlands as well as to Belgium: the feeding of the Zuid-
Willemsvaart by the Bosscheveld Lock with water diverted from
the Meuse elsewhere than at the treaty feeder is therefore
contrary to the Treaty.
[213] To sum up my point of view, I consider that the Court
should have proceeded as follows : damages, but she has simply asked for the interpretation of the
in passing upon submissions I & of the Application and 2° of
the Counter-Memorial, the Court should have allowed the
former and rejected the latter, and it should have adjudged and
declared that the feeding of the canals referred to in Article I of
the Treaty, through the Neerhaeren Lock, with water taken
from the Meuse elsewhere than at the treaty feeder, is contrary
to the Treaty;
in passing upon submission II b of the Application and on the
alternative submission of the Rejoinder, the Court should have
allowed the latter and rejected the former, in so far as either of
the said submissions relates to the lock at Neerhaeren ; it
should have adjudged and declared that, as a result of the
construction of the Bosscheveld Lock, the Netherlands have
placed themselves in a position which precludes them from
invoking the Treaty to obtain a cessation of the feeding of the
aforesaid canals through the Neerhaeren Lock. [p51]
122
[214] 4. – The interpretation of the Treaty of 1863 which leads
me to conclude that the Neerhaeren and Bosscheveld Locks
are contrary to the Treaty has led me to a like conclusion in
regard to the Borgharen barrage.
[215] I have already said that the fundamental idea of the
Treaty was to reconcile the satisfying of certain interests
relating to the canals and irrigation works referred to in Article I
with the interests of navigation on the Meuse ; I have also said
that this reconciliation was effected, on the one hand, by fixing
the quantity of water which might be taken from the Meuse,
and, on the other hand, by laying down a programme of works
calculated to conserve the navigability of the river, in spite of
the reduction in its volume of water.
[216] It was precisely with this object that the quantity of water
which might lawfully be taken from the Meuse was fixed in
Article IV in relation to the depth of water in the river. The
variations prescribed in that Article, according as the surface of
the Meuse is above the low level of that river, or at the low
level, or below it, and also according to the different months of
the year, are consequently an essential part of the settlement
agreed upon between the two States. A structure which
abolishes these variations as is done by the barrage at
Borgharen is consequently, by reason of that very fact,
contrary to the Treaty.
[217] Though it is true that the Netherlands are entitled to
increase the quantity of water to be withdrawn by the treaty
feeder in virtue of Article V, paragraph 2, and Article XI, it is
equally true that this right is itself conditioned by the natural
flow of the river: there is nothing in the Treaty which authorizes
the Netherlands to modify that flow for their own benefit. Article
XI provides for works "necessitating an increase in the volume
of water to be withdrawn from the Meuse", not for works having
as their purpose and effect an increase in the volume of water
discharged through the treaty feeder. The works provided for in
Article XI are, therefore, works relating to navigation canals or
to irrigation works beyond Loozen. It has not been alleged, and
it could not be contended, that the Netherlands made the
Borgharen barrage with the object of increasing the quantity of
water to be withdrawn through the treaty feeder ; the fact is that
the volume of water has been increased, so that it stands at
the maximum limit throughout the whole year, and the Meuse
has been proportionately depleted, owing to the construction of
this barrage by the Netherlands with a totally different object.
[218] As, in my opinion, the Borgharen barrage constitutes an
infraction, in particular, of Article IV of the Treaty, the purpose
of which was to establish a certain proportion between the
volume of water allotted to the canals referred to in Article I
[p52] and the volume of water which was to be left in the
Meuse, I am unable to attribute importance to the argument
that Belgium has suffered no injury by the construction of the
barrage, but that she has rather benefited by it. The existence
of an injury would be relevant if Belgium had made a claim for
Treaty. Moreover, it is quite possible that the interests of
navigation on the Meuse have altered considerably since 1863,
and that the decrease in the quantity of water left in the river
may now be of far less importance than it would have been in
the past ; but it is none the less true that the Treaty says what it
does say, and that one of the Parties to it is not entitled,
without the consent of the other Party, to render certain of its
provisions incapable of execution, in particular a provision so
fundamental as Article IV.
[219] For these reasons, I consider that the Court should have
accepted submission i° of the Counter-claim, should have
rejected submission III (i) of the Reply, and should have
adjudged and declared that the fact of making it impossible, by
the construction of the Borgharen barrage, for the quantity of
Meuse water discharged through the treaty feeder to vary
according to the level of the Meuse, as provided in Article IV of
the Treaty, and of constantly maintaining that quantity at its
maximum amount, is an infraction of the
(Signed) D. Anzilotti.
Separate Opinion by Jonkheer Van
[Translation]
[220] The Judgment does not entirely express my opinion; in
these circumstances, I would subjoin to it a statement of my
separate opinion on certain parts of the case.
***
[221] In each of the two actions which have been brought
before the Court in the present case–in the main Netherlands
action and in the Belgian counter-claim–the applicant Party
alleges that certain hydraulic works are inconsistent with the
Treaty of May I2th, 1863, concerning the regime for the
diversion of water from the Meuse. Neither the Netherlands in
the principal action, nor Belgium in the counter-claim, alleges
that the hydraulic works in question are contrary to general
international law. Such an assertion had been made inter alia
by Belgium in regard to the feeding of the Juliana Canal with
Meuse water, as appears from the Belgian note transmitted to
the Netherlands Government on April 28th, 1921 (Belgian
Counter-Memorial, p. 27). That note declared that this "regime
would be in conflict with the general principles of international
law governing the utilization of international rivers by the
riparian States". But, in the present case, general international
law, to which Belgium has alluded on several occasions, must
be left on one side ; we are here only concerned with the
Treaty of 1863.
[222] What the two States are asking the Court to give them is
an interpretation of that Treaty with special reference to certain
hydraulic works, the compatibility of which with the Treaty is a
subject of dispute. It is therefore one of those cases which,
according to Article 13 of the Covenant of the League of
Nations, is primarily suitable for judicial settlement. Each of the
Parties is entitled to ask the Court for an interpretation of the
Treaty, and the Court is not entitled to refuse to give this
interpretation.
***
[223] It will be seen from the foregoing observations that the
first thing to do is to ascertain the character, the scope and the
interpretation of the Treaty of 1863.
[224] The Treaty of 1863 put an end, by means of a
compromise, to a dispute which had existed between the two
countries for several years. [p54]
[225] The Netherlands alleged that Belgium was wrongfully
diverting (aftappen) Meuse water in order to feed her new
system of canals in the Campine and her irrigation works in the
Cam-pine ; this water, which was withdrawn from the Meuse,
was to a considerable extent conveyed to the Scheldt. Liege,
an ancient port on the Meuse, and the Belgian basin of the
Meuse in general, had used the Meuse from the earliest times
as a natural navigable waterway, terminating in Holland.
However, after the dissolution of the Kingdom of 1815, which
comprised Belgium, Luxemburg and the present territory of the
Netherlands, Belgium endeavoured to direct the traffic of her
Meuse basin towards Antwerp; she did this in particular with
the help of her canals in the Campine which were designed to
link the Zuid-Willemsvaart, and thereby the Meuse, to the great
Belgian maritime port–as indeed is indicated by the name :
Meuse-Scheldt Junction Canal. My reason for mentioning this
fact is to show that the Netherlands Government did not, in the
dispute which was regulated by the Treaty of 1863, any more
than in the suit now under consideration, oppose the diversion
of the traffic of the Belgian Meuse basin towards Antwerp.
Neither in the dispute in the XlXth century, nor in that in the
123
Treaty. XXth century has there been any question of an objection to
the diversion of traffic ; in both cases the disputes were solely
[p53] concerned with objections to the withdrawal (aftapping) of
Meuse water effected by Belgium.
Eysinga.
[226] It is not superfluous to point out that when the
Netherlands, in the dispute in the middle of the XIXth century,
alleged that Belgium was arbitrarily withdrawing water from the
Meuse, the objection in no way concerned the quantity of water
necessary for navigation in the Zuid-Willemsvaart, or, later on,
in the prolongation of that canal as far as Liege. There may be
different opinions as to whether the Zuid-Willemsvaart is, or is
not, a lateral canal of the Meuse–the Belgian Counsel, M.
Delmer, says that it is (Oral Pleadings, p. 86) ; the Belgian
Counsel, Me. Marcq, says that it is not (Oral Pleadings, p. 189)
; but one thing is certain, namely that when King William I, as
early as 1819, ordered an investigation of the problem, the
initial step which led to the construction of the Zuid-
Willemsvaart, the object in view was to provide the important
industrial and mining districts of the present Belgian Meuse
basin with a better navigable waterway. The results of the
investigations carried out by the Waterstaat showed that a
canal could be made which would be much shorter than the
Meuse and would offer a navigable waterway, practically
always available, unlike the Meuse which suffered at times
from an insufficiency and at times from a superabundance of
water, either of which conditions were an obstacle to navigation
during considerable parts of the year. The Zuid-Willemsvaart
was [p55] ready for use in 1826, and its prolongation as far as
Liege was ready in 1850, or at the beginning of 1851. It was
known beforehand that these canals would use a certain
quantity of Meuse water, but that inevitable consequence of an
improvement in the communications by water was all the more
easy of acceptance because the quantity required was
inconsiderable. It should be noted, in this connection, that
Article V, paragraph i, of the Treaty of 1863 allots a volume of
two cubic metres, or even as little as 1.50 cubic metre, per
second to the Zuid-Willemsvaart below Loozen and to the
canals branching off from this part of the Zuid-Willemsvaart,
and to the Netherlands irrigation channels. And, in the case of
the Liege-Maestricht Canal, neither the Convention of 1845,
which provided for its construction, nor the Treaty of 1863 said
anything on the subject of its lock-water, which was very
natural because the volume of such water is extremely small,
viz., one-tenth of a cubic metre per second, a quantity less
than the margin of error which occurs in measuring the
discharge through the feeder at Maestricht, as is pointed out on
page 15 of the Belgian Rejoinder.
[227] In point of fact, the Netherlands never made any
complaint in regard to the small quantities of water requisite to
enable the Zuid-Willemsvaart and the canal prolonging it to
Liege to be utilized as a waterway.
[228] But the situation was very different when Belgium began
to use the two navigable canals to convey the large quantities
of water which she found that she required for her system of
canals in the Campine, then in course of construction, and for
her projected irrigation works in the Campine. Belgium began
to take the supplementary water required for her canals and
irrigation works in the Campine at three different intakes. All of
them were situated in Belgian territory.
[229] First, there was the intake at Hocht, quite close to the
spot where the Zuid-Willemsvaart leaves Netherlands territory.
A feeder drawing its water from the Meuse, which at that point
runs close alongside the canal, was constructed in 1837 on the
right bank of the canal.
[230] Secondly, as soon as the Liege-Maestricht Canal was
completed, Belgium began to use it also as a feeder for the
system of canals and irrigation channels in the Campine. For
this purpose, large quantities of Meuse water were diverted at
Liege into the lateral canal at Maestricht ; this process was
facilitated, subsequently, by the construction of a barrage
which raised the level of the Meuse at the place where the
lateral canal branched off. In order not to hamper navigation
unduly in the lateral canal, the large quantities of water were
introduced into the canal during the night, with the result that
[p56] on the following day, at a particular time, the level of the
Meuse in Netherlands Limburg fell considerably, so that it was
described there as being subject to a flux and reflux, like that of
the sea, only more regular.
[231] In order that the Zuid-Willemsvaart should afford a rapid
passage to the large quantities of Meuse water diverted at
Liege, it was necessary to increase the velocity of its current.
This was done at the very time when the Liege-Maestricht
Canal was taken into use, namely, about the beginning of
1851. For this purpose, a third intake, or rather a cascade, was
constructed in Belgian territory to the left of the old lock 19,
near Hocht, where "the lateral derivation" was deepened and
enlarged.
[232] The statement pf reasons which was drawn up by M.
Rogier, the Belgian Prime Minister, and is dated on the day
after the signature of the Treaty (Netherlands Memorial, p. 21),
makes repeated mention of the intakes at Liege and at Hocht ;
and in his statement on May loth, the Belgian Counsel, M.
Delmer, clearly described the situation of which the
Netherlands Government had complained prior to 1863.
[233] In fact, Belgium, in order to feed her new system of
Campine canals and her Campine irrigation works, took water
wherever she could find it, and the three intakes on the Meuse
were supplemented by water drawn off from several of the
streams and water-courses which flowed towards Netherlands
North Brabant ; at the same time, the water which had been
used for irrigation was discharged, in part, into Netherlands
territory, where it caused inundations, which were very
mischievous, especially in the hay-making season.
[234] The withdrawal of water for the needs of the Campine
caused the Netherlands to make repeated representations to
the Cabinet at Brussels. Two international commissions
studied the problem in 1856 and in 1858, but without success.
In 1860, the Second Chamber of the States-General appointed
a commission of enquiry, and in the following year a
convention was signed at Brussels which maintained the
situation as it was in the neighbourhood of Hocht ; this
convention was rejected by the Second Chamber of the States-
General. Further negotiations followed, in conjunction with the
discussions concerning the redemption of the Scheldt tolls and
commercial arrangements; until finally the Treaty of May 12th,
1863, reconciled the divergent standpoints and put an end to
the dispute.
***
[235] What are the provisions of the Treaty of 1863?
[236] The essential feature of the Treaty was that a
considerable portion of the discharge of the international river
was assigned [p57] to Belgium, even at periods of the year
when the Meuse is very low. The Treaty, therefore, derogated
from the normal state of affairs, according to which the
discharge of an international river belongs to that river. The
quantity of water to be withdrawn for Belgium, as laid down in
Articles IV and V of the Treaty, is fixed, and is therefore both a
maximum and a minimum quantity. The Netherlands have also
to receive a certain quantity of water, which, however, is far
less than that allotted to Belgium; on the other hand, it is liable
to be increased, within certain limits and subject to certain
conditions (Art. V, para. 2, and Art. XI).
[237] The considerable withdrawals of Meuse water for the
canals and irrigation works of the Campine were rendered
feasible by means of a variety of measures designed to
neutralize the undesirable consequences of these diversions of
water. The water was henceforward to be withdrawn solely at
124
Maestricht (Art. I) ; the Zuid-Willemsvaart was to undergo
certain alterations (Arts. II and III) ; measures were to be taken
to prevent inundations in the Netherlands as a result of
irrigation in Belgium (Art. VI) ; certain works were to be carried
out on the Meuse between Maestricht and Venlo (Art. IX). It
should be 'added that Article VII prohibits the withdrawal of
water, in the future, from certain water-courses flowing towards
the Netherlands.
[238] It was the withdrawal of large quantities of water from the
Meuse, on the one hand, and the measures to offset the
undesirable consequences of that withdrawal, on the other
hand, that constituted the compromise established by the
Treaty, which, as its Preamble states, regulated, permanently
and definitively, the regime of diversions of water from the
Meuse. The withdrawal of water from the Meuse comes first,
and the other provisions of the Treaty, though also important,
are the effect of that withdrawal.
[239] For the supply of water to all the canals situated below
Maestricht, and to the irrigation channels in the Campine and
the Netherlands, Article I of the Treaty of 1863 substitutes a
single .intake, which is to be established in Netherlands
territory in place of the existing intakes, which were all in
Belgian territory.
[240] Belgium has maintained that the monopoly accorded to
the intake at Maestricht only applied in the sector of that river
below Maestricht, as far down as Venlo. This contention, which
implies that, above Maestricht, it would be lawful to divert water
from the Meuse in order to feed canals situated below
Maestricht, does not appear to me to be justified.
[241] It should be pointed out, in this connection, that Article I,
which speaks of the establishment of the feeder for all the
canals situated below Maestricht and for the irrigation works in
the [p58] Campine and the Netherlands, is drawn up in entirely
general terms, so far as concerns the places at which the
obligation to refrain from installing a new intake on the Meuse
applies. This obligation applies at every place where it would
be possible to construct an intake for feeding any canal
whatsoever situated below Maestricht, or for feeding irrigation
works in the Campine and the Netherlands. As is known, the
principal intake existing prior to 1863 was situated above
Maestricht. This was the important intake which Belgium
operated at Liege, and which is repeatedly mentioned in the
statement of reasons by the Prime Minister, M. Rogier.
[242] The Belgian argument endeavours to interpret Article I of
the Treaty by means of Article IX. In this way it brings the
Maestricht-Venlo sector, which is mentioned in the latter
Article, within the compass of Article I. But in so doing, it
restricts, unjustifiably, the very general scope of Article I, and it
forgets that the only link between the two Articles is that
between cause (Art. I) and effect (Art. IX). I am well aware that
the Belgian argument avers that the principal aim of the Treaty
was the improvement of the Meuse, which would appear to
justify the interpretation of Article I from the standpoint of
Article IX. But it is clear from the Preamble of the Treaty, inter
alia, that the aim of the Treaty is to regulate "the system of
diversions of water from the Meuse" ; and the essential feature
of the Treaty, as has already been pointed out, consists of the
ten cubic metres per second that are to be taken from the
Meuse, out of which amount eight cubic metres per second are
assigned to Belgium [FN1]. The deterioration of the Meuse
which results from this diversion of Meuse water constitutes, as
is said in M. Rogier's statement of reasons, a disturbance of
the equilibrium which must, in fairness, be re-established by
the carrying out of certain works on the Meuse. Article IX is
indeed an effect of Article I, and seeks to neutralize its
consequences. Article IX should properly be interpreted in the
light of Article I, whereas an interpretation in the inverse order
runs directly counter to the very general import of Article I.
------------------------------------------------------------------------------------
---------------------------------
[FN1] Except in regard to the barrage of Borgharen, the
present Opinion disregards, in general, the case in which the
river is at or below the low
------------------------------------------------------------------------------------
---------------------------------
[243] To the foregoing I would add a practical observation.
[244] It has been suggested that Article I of the Treaty of 1863
only prohibits the establishment of intakes on the Meuse below
Maestricht, as far down as Venlo. But is it realized that, if that
were so, the practical men, the engineers, who according to
the Belgian statements were responsible for framing the treaty,
would have strayed very far from the sphere of realities ? I will
explain. [p59]
[245] It has been pointed out that even the Hocht intake–which
was however situated very close to the spot where the Zuid-
Willemsvaart leaves Netherlands territory–did not always give
satisfaction, for the reason that, even at Hocht, the surface of
the Meuse sometimes fell to the level of the Zuid-Willemsvaart
and even lower, so that the feeding of the Zuid-Willemsvaart
from the Meuse became impracticable. Now, if it is realized, in
the first place, that the level of the Zuid-Willemsvaart was
raised in pursuance of Article III of the Treaty, and that the
reach thus raised extends as far as lock 18–in other words,
almost as far as the frontier of Netherlands North .Brabant–
and that, in the second place, the Meuse between Hocht and
Kessenich or Maasbracht–places which are almost in line with
lock 18–has a fall of more than twenty metres, whereas the
Zuid-Willemsvaart does not begin to fall rapidly before lock No.
12, which is in line with Venlo, it is manifest that the Meuse
below Maastricht is descending a valley, whereas the Zuid-
Willemsvaart, as far as lock 18, continues its course entirely on
the western plateau, and only falls gradually till it reaches lock
12 in line with Venlo.
[246] That, it appears, suffices to show that the idea of
supplying the Zuid-Willemsvaart below Maestricht with Meuse
water would not be very practical, except in the immediate
vicinity of the feeder.
[247] Belgium was henceforward to receive a very satisfactory
allowance of Meuse water for her requirements in the
Campine, through the new and only lawful intake at
Maestricht–as was pointed out by M. Rogier in his statement of
reasons. It has already been mentioned that the volume of
water which the new feeder at Maestricht was to supply was
normally ten cubic metres per second, of which eight cubic
metres were the fixed quantity guaranteed to Belgium (Art. V).
[248] The specification of the precise amount of water to be
taken from the Meuse–a provision which was in itself unusual–
points to the conclusion that, when it was laid down that the
intake at Maestricht was to be henceforward the only feeder for
the supply of Meuse water to canals situated below that town,
the granting of this monopoly to the new intake carried with it a
prohibition of all feeding at other places, whether by conduits,
by discharging culverts, by lock-water or by any other means
by which Meuse water might be introduced into canals situated
below Maestricht.
[249] This conclusion has been disputed in regard to a single
method of introducing Meuse water into canals situated below
Maestricht, namely the discharge of water by lockage. I
consider that this exception should not be allowed. [p60]
[250] A justification of the exception has been sought in the
fact, already mentioned, that the Treaty of 1863 makes no
mention of the quantities of water entering the Zuid-
Willemsvaart by the functioning of lock 19, which discharges
into the Zuid-Willemsvaart a certain quantity of Meuse water
that has been conveyed from Liege by the Liege-Maestricht
Canal; it has been inferred from this fact that any quantity of
125
water supplied to canals situated below Maestricht by lockage,
for instance by the functioning of the Neerhaeren or
Bosscheveld Locks, would consequently be consistent with the
level. Treaty of 1863.
[251] I do not believe that this interpretation of the Treaty is
correct. For the silence of the Treaty concerning the
introduction of the very small quantity of Meuse water which
finds its way into the canals below [p61] Maestricht by the
functioning of lock 19 can be easily explained. As has been
pointed out, the feeding of the Zuid-Willemsvaart itself with
Meuse water had not occasioned any difficulty. Why should it
have been otherwise when the canal was prolonged to Liege ?
The silence of the texts concerning the small quantities of
Meuse water required for navigation in the canal which linked
Liege to the Meuse below Bois-le-Duc is therefore quite
comprehensible, both in the case of the Treaty of 1845,
concerning the prolongation of the Zuid-Willemsvaart to Liege,
and in the case of the Treaty of 1863, which has restored the
Liege-Maestricht Canal to its exclusive role as a navigable
waterway.
[252] On the other hand, the immense quantities of Meuse
water which now enter the canals below Maestricht through the
modern locks at Neerhaeren and Bosscheveld, though the
discharge of the river has not altered, disturb the system of the
Treaty of 1863. That Treaty aimed at providing Belgium with
eight cubic metres of Meuse water per second, neither more
nor less. But by the functioning of the locks at Neerhaeren and
Bosscheveld, Belgium receives a far larger quantity. Moreover,
every cubic metre per second passing through the lock at
Neerhaeren diminishes the quantity of supplementary water
which the Netherlands have a right to introduce through the
feeder at Maestricht, in virtue of Article V, paragraph 2, of the
Treaty; that right is limited by the maximum velocity of the
current specified in that Article, a velocity which is enhanced by
the lock-water discharged at Neerhaeren. Nay, more : the
Treaty of 1863 seeks to ensure that the Meuse water used for
supplying canals situated below Maestricht shall be taken
solely through the feeder at Maestricht, which is operated by
the Netherlands Waterstaat. It is easy to verify the quantities of
water diverted at a single intake, whereas it is difficult to make
such measurements when the water is drawn off at different
places, as used to happen before 1863. The introduction of
great quantities of water into the canals below Maestricht by
the functioning of large modern locks consequently destroys
the system of the Treaty of 1863 in another sense also, for it
puts an end to the monopoly of the intake at Maestricht, and
makes it very difficult to check the amount of water diverted
from the river by the Neerhaeren Lock, which is not under the
same administration as the intake at Maestricht. It should be
added that engineers agree in recognizing that the principal
method of supplying water to canals is, precisely, by the
functioning of the locks.
[253] The expression "canals situated below Maestricht" is
clear. It refers, in addition to the Zuid-Willemsvaart and its
branch canals in Netherlands territory, to the Meuse-Scheldt
Junction Canal, which branches off at Bocholt on the Zuid-
Willemsvaart and terminates at Antwerp, and to its branches,
and also to the Turnhout Canal which runs via Saint Job to
Antwerp. The statement of reasons submitted by the Prime
Minister, M. Rogier, clearly alludes to this Campine system of
canals when he says that "the [Belgian] State obtains, for its
part, the possibility of feeding, not only the existing canals in
the Campine, but also the canal, the construction of which has
been decreed, from Turnhout via Saint Job to Antwerp".
[254] It does not follow from the monopoly accorded to the
intake at Maestricht that the canals situated below that town
and the irrigation works in the Campine and the Netherlands
may not be fed from water-courses other than the Meuse. Such
a means of supply–as, for instance, by the river Demer–is
perfectly compatible with the Treaty, and the only exception, in
this respect, is constituted by Article VII of the Treaty, which
lays down that the Belgian Government will leave undisturbed,
or will restore to their natural courses, the streams and water-
courses which rise in Belgium and flow towards the
Netherlands territory. The fact that these canals or sectors of
canals are fed by other water-courses does not deprive them of
their character as canals situated below Maestricht, within the
meaning of Article I.
[255] The intakes on the Meuse which are to be replaced, in
pursuance of Article I, by the feeder at Maestricht (statement of
reasons by M. Rogier), are the three intakes which I have
referred to above. The intake, or rather the cascade, to the left
of lock 19 was, of course, to disappear with the disappearance
of that lock, which was abolished by Article II of the Treaty. As
regards the important intake at Liege, the Belgian Government
made no difficulty on that point (Netherlands Reply, pp. 42 and
43), and once the new system had been instituted, only the
quantities of water necessary to offset lockage, leakage and
evaporation were diverted at Liege. The dismantling of the
intake at Hocht, to the right of lock 19, was not accepted so
easily by Belgium. On the contrary, the [p62] Belgian
Government made a strong stand for the maintenance of this
intake in Belgian territory below Maestricht, and it is quite
comprehensible that, when it at last consented to its being put
out of operation, this point should have been recorded in the
Treaty. But the words "in consequence of the foregoing", at the
beginning of the last paragraph of Article IV, show clearly that
the elimination of the Hocht intake was also the logical
consequence of the fact that, under Article I, the feeder at
Maestricht was henceforward to be the only installation for
supplying Meuse water to all the canals situated below
Maestricht and to the irrigation works in the Campine and in the
Netherlands.
[256] The new regime for the diversion of water from the
Meuse necessitated certain changes in the Zuid-Willemsvaart,
among others the transfer, as already mentioned, of lock 19 to
a situation above the new feeder. These changes are set out in
Articles II and III. Moreover, the maintenance of a constant
depth in the Meuse, which had been disturbed by the
considerable diversions of water at the Liege and Hocht
intakes (see .statement of reasons by M. Rogier)–which
intakes were now to be replaced by the feeder at Maestricht–
made it necessary to undertake certain works in the Meuse;
these works are indicated in Article IX and its Annexes.
The replacement of the different intakes which Belgium had
operated on the Meuse, by a single intake, namely, that of
Maestricht, which was henceforward to be the only "tap", would
have the great technical advantage, among others, of making it
possible to measure, at a single place, the volume of Meuse
water laid down in Article IV of the Treaty. That was an
advantage to which the attention of Belgium had been drawn,
inter alia, by the Minister of the Netherlands at Brussels in
1862 (Netherlands Memorial, p. 45).
[257] It is clear that the substitution of a single intake, in
Netherlands territory, for the different intakes on the Meuse
which were in Belgian territory constitutes a very real "de facto
advantage" (see the oral statement of M. de Ruelle, the
Belgian Agent, p. 134) for the Netherlands. For "the country in
which the intake is situated enjoys, in practice, better
opportunities of supervision than the other country" (Belgian
Rejoinder, p. 6). That advantage is illustrated by the very
strong resistance offered by Belgium to the dismantling of the
intake–that of Hocht to the right of the old lock 19. This
opposition is constantly referred to in the despatches
addressed to The Hague in October 1862 by the Netherlands
Minister at Brussels (see Netherlands Memorial, pp. 43-48) ;
and it is also apparent in the Belgian proposals of February
19th, 1863 (Netherlands Reply, pp. 42-43). [p63]
[258] The very tangible de facto advantage which the
Netherlands gained by the substitution of a single intake in
Netherlands territory for the different intakes on the Meuse in
Belgian territory–a substitution which was effected in virtue of
126
Article I of the Treaty of 1863–has been described by the
Netherlands as a right of "ascertaining (controler) at any
moment that the quantities of water taken from the Meuse do
not exceed the quantities specified in the Treaty, so that the
complaints and discussions of the past might be avoided"
(Netherlands Memorial, p. 8).
[259] The question of control calls for the following
observations.
[260] Every international convention, unless it expressly
excludes it, implies a control by the contracting parties to see
whether the convention is being strictly applied. This control
may lead among other things to diplomatic representations
and, if necessary, to legal proceedings.
[261] Thus, Belgium, when she thought that the Netherlands
draft law submitted to the States-General on February 7th,
1921, and providing inter alia for the Borgharen barrage,
involved consequences at variance with the Treaties of May
I2th, 1863, and January nth, 1873, addressed a note on the
matter to the Netherlands Government dated April 28th, 1921
(Belgian Counter-Memorial, p. 27). Belgium was by this means
exercising her right of control over the Netherlands in regard to
a projected hydraulic installation on Netherlands territory, a
right of control which in the present case found concrete
expression in proceedings instituted against the Netherlands
before the Permanent Court of International Justice.
[262] The right of control is in principle mutual or, more strictly
speaking, it is mutual wherever the convention is mutual. Thus
Belgium may and, as explained to the Court, does effectively
control the discharge by the Netherlands through the
Maestricht feeder of the quantities of water prescribed by the
1863 Treaty. But the Netherlands cannot exercise the same
control over Belgium, because the Treaty provides for no
intake in Belgium.
[263] On the other hand, each country may control the other
when it finds that the latter has constructed in its territory
hydraulic works whereby the canals situated below Maestricht
will receive more water than the Treaty prescribed. In this way,
Belgium exercised control over the Borgharen barrage and the
Netherlands over the lock at Neerhaeren.
[264] The Netherlands undoubtedly have the right of control
regarding the culverts at the Neerhaeren Lock. The question
whether such culverts are in accordance with a treaty which
abolished [p64] all the intakes in Belgian territory existing in
1863 and replaced them by a single intake on Netherlands
territory, is certainly worth the attention of the Netherlands
Government, especially as hydraulic works of this kind are not
built unless it is intended that they should be used.
[265] I consider, however, that the Netherlands argument goes
too far when it claims that, while the construction by Belgium of
works making it possible to feed a canal below Maestricht with
water taken from the Meuse elsewhere than at that town is
contrary to the 1863 Treaty, Belgium has no right to complain
of the construction of such works by the Netherlands. I do not
consider that the Netherlands Agent succeeded in proving that
the Netherlands here possess a right not possessed by
Belgium. I would add that this is the only point respecting which
the Netherlands have claimed a unilateral right of control.
[266] The fact that the Netherlands Agent stressed at length
this special right of control by the Netherlands has not helped
to clarify matters.
[267] Nor did it help towards a better understanding of the case
when the Belgian defence ascribed to this Netherlands right of
control an extent which the Netherlands did not claim for it.
[268] I notice in this connection that the Netherlands
Government stated that, by the transfer of the intake to
Netherlands territory, it was thenceforth in a position to satisfy
itself (controler) at any moment that the volume of water
diverted from the Meuse did not exceed the amounts
prescribed in the Treaty, so that the complaints and
discussions which took place in the past could be avoided (see
above). It is therefore a question of check on the quantities of
water, and nothing more. But the Belgian Government thinks
that it involves a great deal more than that.
[269] Thus Belgium deduces from the indisputable fact that the
negotiations concerning the diversion of water from the Meuse
had been combined with those concerning the redemption of
the Scheldt tolls, the following argument, which appears on
page 6 of the Belgian Counter-Memorial: "The Netherlands
possessed, in virtue of the Scheldt tolls, control of navigation
on the maritime part of the Scheldt. It was an important
prerogative; they were only willing to relinquish it– such is the
argument–in return for the control of navigation on the canals
which are now under discussion." That is not the correct way of
stating the question. The Netherlands certainly do not claim
that Article I of the Treaty of 1863 invested them with the
control of navigation on the canals situated below Maestricht.
What the Netherlands say that [p65] they acquired in virtue of
Article I is simply the control over the volume of water.
Furthermore, if the Scheldt tolls really conferred a right of
control over navigation in the maritime part of the Scheldt, as
the Belgian Government seems to believe, the navigation dues
levied by Belgium on the Meuse (in the case of the
Netherlands these dues were abolished in 1851) would
constitute a Belgian right of control over navigation on the
Meuse. Would that really be in line with the Belgian
Government's ideas ? do if they wish to remain within the law. I cannot answer this
[270] The Netherlands Government stated in its Application (p.
8) that "The equilibrium established by the Treaty of 1863
between the interests affected has been disturbed by the
undertaking of these works, by the uses to which they are
being put and by the uses for which they are intended." It is
clear from the manner in which this statement is developed
under (a), (b) and (c), that what was complained of was a
disturbance of the equilibrium in regard to the distribution of the
Meuse water as regulated once and for all in 1863. But the
Belgian Government interprets this statement in the
Netherlands Application, although it is quite clear, as if it
referred to the economic equilibrium between Antwerp and
Rotterdam (see Belgian Counter-Memorial, p. 7).
[271] I might quote other extracts from the Belgian documents
and oral statements, but these two passages are sufficient to
show that Belgium regarded the control over the volume of
water as a control over navigation and traffic such as the
Netherlands have not claimed.
[272] Before dealing with the Netherlands submission I a, I
would repeat that this is the only submission which the
Netherlands base upon this right of control and that, in
particular, the Netherlands defence against the Belgian
counter-claim is not founded upon this special right of control.
***
[273] In this submission I a the Netherlands ask the Court to
declare that the construction by Belgium of works enabling a
canal situated below Maestricht to be supplied with water taken
from the Meuse elsewhere than at that town is contrary to the
Treaty of May 12th, 1863.
[274] What is envisaged in this submission are works which,
though they do not at present feed a canal situated below
Maestricht, nevertheless enable this supply to be effected. In
order to confine our consideration to the kind of hydraulic
works which come into question in the present case, we should
note that what is envisaged is not longitudinal culverts in locks
which it is admitted will be utilized in addition to locking
operations [p66] (as is the case with the five locks of the Albert
Canal between the first lock near Herstal (Liege) and the last
127
lock at Wyneghem). Nor are we here envisaging locks which,
as the Parties are also agreed, will be utilized and
consequently will discharge lock-water.
[275] We are solely concerned with works which might supply
feed water if they were utilized, as, for example, the
longitudinal culverts in the lock at Neerhaeren.
[276] What attitude did Belgium adopt towards the Netherlands
submission I a ?
[277] I should have understood it if Belgium, on the basis of her
interpretation of the 1863 Treaty, had said that, since the
Treaty does not apply above Maestricht, she was entitled to
discharge Meuse water through the Neerhaeren culverts into
the canals situated below Maestricht, and that she would make
such use of that right as she thought necessary.
[278] That however was not her attitude. The culverts having
been constructed, the Counter-Memorial on pages 10 and n
denies their existence, and when the Netherlands had
demonstrated that the Neerhaeren Lock was indeed provided
with culverts, Belgium fell back on the assertion that the
electric installations of the lock would only allow these culverts
to be used for filling the lock chamber (Oral Pleadings, p. in).
However, when the Netherlands Agent stated that this
electrical installation could be altered in five minutes (Oral
Pleadings, p. 171), that statement was not contradicted.
[279] The question arises whether such an attitude stops short
of the line dividing what States may do from what they may not
question in the affirmative, and the submission under I a
appears therefore to be justified.
[280] I would add that the Belgian Counsels ended by admitting
that in certain eventualities the culverts at the Neerhaeren Lock
would be used for some other purpose than lockage, which
indeed is not surprising, since culverts are not built except to
be used. It was rather a question of economic or military
necessity which would compel Belgium to keep intact the water
supply of the Zuid-Willemsvaart and of the inundation zones
which might be created north of Neerhaeren (Oral Pleadings,
pp. 91 and 210-211).
[281] In its submission under I b, the Netherlands Government
asks the Court to declare that the feeding of the Belgian
section of the Zuid-Willemsvaart, of the Campine Canal, of the
Hasselt branch of that canal, and of the branch leading to
Beverloo Camp, as also of the Turnhout Canal, through the
[p67] Neerhaeren Lock, with water taken from the Meuse
elsewhere than at Maestricht, is contrary to the 1863 Treaty.
[282] After what has already been said in the present note, not
much need be added.
[283] It is common ground that the Treaty of 1863 defines and
limits the quantity of Meuse water to be used for feeding the
Belgian system of Campine canals, and it is also common
ground that the feeder at Maestricht is to be the only feeder.
The cubic metre per second which is added by the lockage at
Neerhaeren is therefore contrary to the Treaty of 1863.
[284] As already mentioned above, there is another reason
why the discharge of lock-water, which goes to feed the Zuid-
Willemsvaart, is contrary to the Treaty of 1863. This discharge
restricts the right reserved to the Netherlands by paragraph 2
of Article V to increase the volume of water drawn from the
Meuse at Maestricht. The lockage at Neerhaeren diminishes
the right to increase the two cubic metres per second allowed
to the Netherlands under paragraph I of Article V, by about one
cubic metre per second.
[285] In its submissions I c and I d, the Netherlands
Government asks the Court to declare that Belgium's project of
feeding a section of the Hasselt Canal with water taken from
the Meuse elsewhere than at Maestricht is contrary to the
Treaty of 1863, and that Belgium's project of feeding the
section of the canal joining the Zuid-Willemsvaart and the
Scheldt between Heren-thals (Viersel) and Antwerp with water
taken from the Meuse elsewhere than at Maestricht, is also
contrary to the said Treaty.
[286] These two submissions can be examined in conjunction,
as they are very similar.
[287] The Netherlands do not allege that Belgium would not be
entitled to enlarge the canals situated below Maestricht or to
change their names. In point of fact, Belgium has considerably
enlarged, not only the Zuid-Willemsvaart, but also parts of the
system of the Belgian Campine canals, in particular the Meuse-
Scheldt Junction Canal and the Hasselt branch. But, in
enlarging these canals, Belgium is not entitled to exempt them
from the rules governing their supply with Meuse water, which
are laid down in the Treaty of 1863. It is common ground that
the Treaty of 1863 lays down eight cubic metres per second as
the volume to be taken through the feeder at Maestricht for this
purpose. It is also agreed that the sector of the canal linking
the Zuid-Willemsvaart with the Scheldt between Herenthals
(Viersel) and Antwerp will also receive Meuse water through
the Albert Canal, which, as far as lock No. I, stands at a level of
60 and then falls more than 50 metres by locks I to V before
reaching Herenthals, and all these locks are provided with
discharging culverts which, it is admitted, [p68] will be utilized
for feeding the different reaches of the canal. It follows from the
above that the feeding of this sector in the manner projected
will be contrary to the Treaty of 1863.
[288] The same applies to the section of the Hasselt Canal
which is now being enlarged and will also form part of the
Albert Canal. The Netherlands do not contest Belgium's right to
feed this section of the Hasselt Canal with water from the
Demer. The question of fact on which the two Governments
differ is whether this section, in addition to the water which it
receives from the Demer, is also fed by Meuse water coming
from the feeder at Maestricht and conveyed beyond
Ouaedmechelen by the northern section of the Hasselt Canal.
It appears that this question of fact can be left on one side. But
it seems clear to me that this is a case of a canal situated
below Maestricht, one of the already existing canals in the
Campine mentioned in the statement of reasons drawn up by
the Prime Minister, M. Rogier, and that in consequence this
canal may only receive Meuse water derived through the
feeder at Maestricht. It is also common ground that this
enlarged portion of the canals situated below Maestricht will
henceforward receive Meuse water derived from Monsin ;
hence the projected feeding of this section with water diverted
from the Meuse elsewhere than at Maestricht will be contrary
to the Treaty of 1863.
[289] The Belgian Agent said on page 14 of the Counter-
Memorial that, if the Albert Canal from Pulle onwards, instead
of being linked with the canal uniting the Meuse and the
Scheldt, had been placed alongside it, separated from it by a
dyke which prevented the waters from mixing, the charge
made by the Netherlands would never have been brought. That
is true, but it is true also that this hypothetical contingency did
not arise and that, once the Albert Canal were completed, the
canals situated below Maestricht, apart from the Neerhaeren
Lock, will be fed with Meuse water not coming from the
Maestricht feeder. I would add that the Netherlands Agent,
replying to the above-mentioned remark of his Belgian
colleague, said that if Belgium had constructed other works
than she has, the Netherlands complaints would certainly have
taken another form and been furnished with a very different
legal basis (Netherlands Reply, p. 24).
***
[290] With regard to the counter-claim, I need only make the
128
following observations :
[291] It is clear from pages 26, 27 and 29 of the Netherlands
Reply that, as regards both the Borgharen barrage and the
Bossche-veld Lock and Juliana Canal, the Netherlands
defence rests upon Article V, paragraph 2, of the 1863 Treaty.
[p69]
[292] And the oral statement of the Netherlands Agent (Oral
Pleadings, pp. 52-69) has the same foundation.
[293] The Netherlands defence begins on page 52 with the
following sentence : "The points at issue in the case submitted
to the Court through the Belgian counter-claim are three in
number ; but they have a common basis, or rather our defence
is based upon a single point of law. I want first to discuss this
common point of law : it is the question of the distribution of
water and of Article V, paragraph 2, of the Treaty." Pages 52-
62 are almost entirely devoted to the interpretation of Article V,
paragraph 2, and pages 62-69 then apply this interpretation to
the three hydraulic installations impugned in the counter-claim.
On pages 62 and 67 the Netherlands Agent again says that his
defence against the counter-claim rests upon Article V,
paragraph 2, of the Treaty of 1863.
[294] One would search the Netherlands defence against the
counterclaim in vain to find any allusion to the right of control,
which, as already mentioned above, serves as the basis of the
Netherlands submission I a only.
[295] The Netherlands interpretation of paragraph 2 of Article V
of the 1863 Treaty may, I think, be summarized as follows.
[296] This provision allows, or rather it presupposes, that the
Netherlands are free to withdraw water from the Meuse below
Maestricht. Any interpretation which restricted this freedom
would be vexatious and therefore inadmissible. Article V,
paragraph 2, deals only with the case in which the Netherlands
should decide to divert quantities of water from the Meuse into
the Maestricht feeder in addition to the quantity laid down in
Article IV and Article V, paragraph I : only in this case is the
additional water to pass into the Netherlands through lock No.
17 at Loozen.
[297] The mere right to divert additional water into the Zuid-
Willemsvaart allows the Netherlands to put the Meuse
constantly out of use for an average of more than a hundred
days in the year. This implies that Belgium, by accepting the
Treaty of 1863, left the navigability of the frontier section of the
Meuse to the discretion of the Netherlands, Belgium, so to
speak, abandoning the interests of navigation over that part of
the Meuse to the care of the Netherlands.
[298] The freedom enjoyed by the Netherlands of taking water
from the Meuse below Maestricht, a right which Belgium
admitted when she disclaimed interest in navigation over the
frontier section of the Meuse through her acceptance of Article
V, paragraph 2, allows the Netherlands, on the one hand, to
feed the Juliana Canal with Meuse water and, on the other, to
make a present to Belgium of certain quantities of water from
the Meuse, [p70] which they do through the operation both of
the Borgharen barrage and of the Bosscheveld Lock.
[299] It follows from the above that the feeding of the Zuid-
Willemsvaart as the result of the Borgharen barrage and the
functioning of the Bosscheveld Lock, and also the feeding of
the Juliana Canal with water from the Meuse, are, according to
the Netherlands case, permissible under Article V, paragraph
2, of the Treaty of 1863.
[300] I am of opinion that Article V, paragraph 2, does not
possess the very wide scope given to it by the Netherlands
case, and that some of the consequences which that argument
seeks to deduce therefrom are not justified.
[301] The Treaty of 1863 confines itself to regulating the supply
with Meuse water of the canals situated below Maestricht and
of the irrigation channels of the Campine and the Netherlands
(Art. I). The waterways in question are therefore the Zuid-
Willemsvaart and the canals and irrigation channels branching
from it. Though, under Article V, paragraph 2, the Netherlands
are entitled to increase the volume of water assigned to them
by the first paragraph of Article V, that additional water must be
necessary for canals situated below Maestricht or for irrigation
in the Netherlands. The water must also pass through the
Maestricht feeder, the exclusive use of which is incumbent both
upon Belgium and upon the Netherlands, although, as
mentioned above, its practical value below Maestricht is limited
to the immediate neighbourhood of that town ; the very general
wording of Article I is clear on this point. The last phrase in
paragraph 2 of Article V imposes upon Belgium the duty of
delivering to the Netherlands the additional water taken at
Maestricht in virtue of the first phrase in that paragraph.
[302] Applying my interpretation to the points at issue in the
counter-claim, I reach the following result.
[303] The feeding of the Zuid-Willemsvaart with water from the
working of the Bosscheveld Lock remains within the limits fixed
by paragraph 2 of Article V, so far as concerns the speed of the
current in the Zuid-Willemsvaart. There is however a departure
from the Treaty in the fact that the additional water, lawful in
itself, if needed for the Netherlands canals below Maestricht or
for Netherlands irrigation, does not pass through the treaty
feeder. The departure is certainly of smaller extent than
between the Treaty and the use of the lock-water at
Neerhaeren, which, unlawful in itself, diminishes the right
possessed by the Netherlands under paragraph 2 of Article V,
while the measurement of the volume of water withdrawn from
the Meuse is rendered difficult since it cannot be effected by
the same administration. [p71]
[304] As we know, the lock-water discharged by the
Bosscheveld Lock is not the subject of a submission in the
Belgian counterclaim.
[305] The additional water which at certain seasons of the year
passes through the Maestricht feeder as the result of the
raising of the level of the Meuse–itself the consequence of the
Borgharen barrage–has nothing to do with Article V, paragraph
2, of the Treaty.
[306] This water is part of the quantities laid down in Article IV
and secures for the Zuid-Willemsvaart a permanent flow of ten
cubic metres per second, which the Belgian Minister for
Foreign Affairs, in his note of January 22nd, 1912 (Netherlands
Reply, p. 72), thought indispensable to feed the canals from
Liege to Antwerp. I do not see why this state of affairs should
have made it impossible to apply the Treaty regularly, as
Belgium .asserts it has, all the less so because, even in 1863,
the Meuse regime was characterized by a number of barrages
with locks, constructed both by France and by Belgium in the
absence of any international agreement. Had it been intended
to deny to the Netherlands a right which the other riparian
States of the Meuse claimed to possess, the Treaty of 1863
would have made it clear. For my part, I hold that the
Borgharen barrage was not constructed contrary to the terms
of this Treaty.
[307] As stated above, the Treaty of 1863 confines itself to
regulating the supply of the Zuid-Willemsvaart and of a number
of navigation and irrigation channels, all of which are situated
on the left bank of the river. The Juliana Canal, on the right
bank of the Meuse, below the Maestricht feeder, the working of
which it cannot affect, accordingly lies outside the sphere of the
Treaty of 1863. That Treaty cannot therefore either allow the
Juliana Canal to be fed with Meuse water, as maintained by
the Netherlands, or forbid it so to be fed, as maintained by
Belgium. The question of the feeding of the Juliana Canal with
water from the Meuse is thus not touched upon by the Treaty
129
of 1863.
[308] Lastly, the Netherlands seek to deduce from paragraph 2
of Article V that Belgium by that Article disclaimed all interest in
navigation over the frontier section of the Meuse, this
navigation being left to the discretion of the Netherlands. This
deduction is not I think justified.
[309] It is true that, when the flow of the river is at its minimum,
the joint section of the Meuse may almost run dry for the
reason that the Maestricht feeder must function at all times. But
if there were no intakes on the Meuse, the river, even if it were
not completely dry, would for considerable periods have so
little water that navigation would then too be out of [p72] the
question. Nevertheless, Belgian interest in that navigation
would remain the same. That interest is the direct result of the
fact that Belgium is a riparian State, and it is not limited to the
joint section of the Meuse only, but extends to the whole river.
[310] The fact that Belgium is a riparian State furnishes a much
stronger ground for Belgium's interest in navigation over the
whole Meuse than does Article IX of the Treaty, quite apart
from the fact that this Article is limited to the part of the river
between Maestricht and Venlo. Under Article IX, Belgium
undertook to pay two-thirds of the cost of regularizing the
Meuse between Maestricht and Venlo, since this work was
necessary to counteract the mischievous consequences to
river navigation of withdrawing large quantities of water for
Belgium. It is compensation which Belgium would have had to
pay even if she had really disclaimed all interest in Meuse
navigation below Maestricht. The Counter-Memorial describes
the situation very well when it says on page 5 that Belgium to a
certain extent purchased the water taken at Maestricht for the
canals of the Campine. Article IX of the 1863 Treaty does not
prove the interest of Belgium in navigation on the joint section
of the Meuse. That interest, whether great or small, exists by
the mere fact that Belgium is a riparian State.
(Signed) V. Eysinga. [p73]
Individual Opinion by Mr. Hudson.
[311] While I concur in the judgment of the Court, I should
prefer a fuller statement of the reasons for the result reached in
regard to one point in this case, and it seems incumbent upon
me to add the following observations.
[312] The Netherlands Government has asked the Court to say
that the alimentation of certain canals by the Neerhaeren Lock
with water taken from the Meuse elsewhere than at Maestricht
is contrary to the Treaty of 1863, and to order that Belgium
should discontinue that alimentation. On the other hand, the
Belgian Government has asked the Court to say that the
alimentation of these canals has not become contrary to the
Treaty of 1863 by reason of the fact that lock-water discharged
by the bona fide operation for the passage of boats of the
Neerhaeren Lock, which cannot be treated more unfavourably
than the Bosscheveld Lock, is confused with water of the
Meuse taken by the prise d'eau at Maestricht. In its
submissions the Belgian Government does not ask the Court to
say that the operation of the Bosscheveld Lock results in an
alimentation of the canals which constitutes a violation of the
Treaty; but the Belgian Agent contends (Counter-Memorial, p.
17) that if the Court should decide that the functioning of the
Belgian lock at Neerhaeren is in opposition to the Treaty of
1863, it ought to admit a fortiori that the functioning of the
Netherlands lock of Bosscheveld is not more regular (n'est pas
non plus regulier). A further submission of the Belgian
Government, offered alternatively (tres subsidiairement), asks
the Court to say that by the construction of works contrary to
the provisions of the Treaty the Netherlands has lost the right
to invoke the Treaty against Belgium.
[313] On this presentation of the case, the Court must consider
the functioning of the Bosscheveld Lock in connection with that
of the Neerhaeren Lock. The first question is, therefore,
whether the two locks are to be placed on the same footing.
[314] The Bosscheveld Lock is situated in a short canal which
may be referred to as the Bosscheveld canal. This canal leads
from the Meuse, at a point below Maestricht and one hundred
metres below the prise d'eau constructed in execution of Article
I of the Treaty of 1863, into the Zuid-Willemsvaart Canal. It is
entirely in Netherlands territory. It was opened for the passage
of boats in 1931, without any previous agreement with the
Belgian Government. As the level of the Zuid-Willemsvaart is
lower than that of the Meuse, the Bosscheveld Canal contains
[p74] a lock which is used for the passage of boats. There are
no lateral aqueducts beside this lock, however, and the canal
supplies water to the Zuid-Willemsvaart only as a result of the
operation of the lock for the passage of boats. With each
operation of the Bosscheveld Lock, a considerable quantity of
water is discharged from the upper to the lower reach of the
canal and thence into the Zuid-Willemsvaart. Many of the boats
which would formerly have passed through lock No. 19 at
Maestricht in entering the Zuid-Willemsvaart now avoid the use
of that lock and pass through the Bosscheveld Canal, thus
using the Bosscheveld Lock.
[315] The Neerhaeren Lock is situated in a canal which
connects the new Albert Canal with the Zuid-Willemsvaart at
Neerhaeren, in what may be referred to as the Briegden-
Neerhaeren branch of the Albert Canal. This branch, which is
entirely in Belgian territory, was opened to service in 1934. It is
supplied with water taken from the Meuse at Monsin in Belgian
territory, some twenty-four kilometres above Maestricht. The
level of the branch canal being higher than that of the Zuid-
Willemsvaart, a lock at Neerhaeren must serve for the passage
of boats. This lock is equipped with lateral aqueducts, but they
have not been and are not being employed for the supply of
water to the Zuid-Willemsvaart apart from the operation of the
lock for the passage of boats. While the lock at Neerhaeren is
of smaller dimensions than the lock at Bosscheveld, its
operation results in the discharge of a considerable quantity of
water into the Zuid-Willemsvaart. As the Briegden-Neerhaeren
canal serves for the passage of boats going from Liege into the
Zuid-Willemsvaart, it may reduce the number of boats using
the Bosscheveld Canal.
[316] The Bosscheveld Lock and the Neerhaeren Lock are thus
alike, in that the operation of each of them results in supplying
to the Zuid-Willemsvaart a considerable quantity of lock-water
taken from the Meuse but not by the conventional prise d'eau.
On the facts, there is no basis for a distinction between them,
so long as the lateral aqueducts in the Neerhaeren Lock are
used only in connection with the functioning of the lock for the
passage of boats.
[317] Is any distinction to be made between the legal positions
of the two locks ? The action of the Netherlands Government in
establishing the Bosscheveld Lock is defended only on the
basis of the provision in paragraph 2 of Article V of the Treaty
of 1863, which authorizes the Netherlands to increase the
amount of water taken from the Meuse at Maestricht. Even if
the taking of water into the Bosscheveld Canal can be said to
be a taking at Maestricht, it is in no sense an increase [p75] of
the amount of water taken by the conventional prise d'eau at
Maestricht. The words a puiser a la Meuse a Maastricht in
paragraph 2 of Article V are the equivalent of the words puise a
la Meuse a Maastricht and pulse d Maastricht in paragraph i of
the same Article, and of the words d puiser d la Meuse in
paragraph I of Article IV. Hence, paragraph 2 of Article V
authorizes the taking of water in excess of the fixed quantity
only if the water is taken by the conventional prise d'eau. Since
the lock-water discharged by the Bosscheveld Lock is not thus
taken, paragraph 2 of Article V does not apply, and it affords no
reason for distinguishing the legal basis of the Bosscheveld
Lock from that of the Neerhaeren Lock.
130
[318] It must be concluded that, in law as well as in fact, the
Bosscheveld Lock and the Neerhaeren Lock are in the same
position. The latter cannot be treated more unfavourably than
the former. If the discharge of lock-water into the Zuid-Wil-
lemsvaart by one of these locks is in accordance with the
Treaty, it is equally so with respect to the other lock ; if such
discharge is a violation of the Treaty as to one lock, it is a
violation also as to the other lock.
[319] The question arises, therefore, whether in this case the
Court must pronounce upon the legality or the illegality of the
alimentation which results from the operation of either the
Neerhaeren Lock or the Bosscheveld Lock. If the operation of
both locks were thought to be in conformity with the Treaty of
1863, the submissions of the Netherlands Government as to
the Neerhaeren Lock would of course be rejected. It remains to
be considered whether that result would be reached if the
operation of both locks were thought to be in violation of the
Treaty of 1863.
[320] There can be no question here as to the good faith of
either Party. Each Party has proceeded on its own view of the
Treaty of 1863. Each has taken action which has led to the
same result, in fact and in law. If the Court were called upon to
give judgment on the action of both of the Parties, it could do
so with due regard to the equal positions of the Parties ; but
here it is asked by one Party to condemn the action taken by
the other. Aside from the fact that the moving Party is the one
whose action preceded that of the other, that the Bosscheveld
Lock was put into service in 1931 and the Neerhaeren Lock
only in 1934, is this a case in which affirmative relief should be
given by the Court ? Or should it be said, in the terms of the
alternative Belgian submission, that the Netherlands has in
some measure perdu le droit d'invoquer the Treaty against
Belgium ? [p76]
[321] What are widely known as principles of equity have long
been considered to constitute a part of international law, and
as such they have often been applied by international tribunals.
Merignhac, Traite theorique et pratique de I'Arbitrage
internanational (1895), p. 295 ; Ralston, Law and Procedure of
International Tribunals (new ed., 1926), pp. 53-57. A sharp
division between law and equity, such as prevails in the
administration of justice in some States, should find no place in
international jurisprudence ; even in some national legal
systems, there has been a strong tendency towards the fusion
of law and equity. Some international tribunals are expressly
directed by the compromis which control them to apply "law
and equity". See the Cayuga Indians Case, Nielsen's Report of
the United States– British Claims Arbitration (1926), p. 307. Of
such a provision, a special tribunal of the Permanent Court of
Arbitration said in 1922 that "the majority of international
lawyers seem to agree that these words are to be understood
to mean general principles of justice as distinguished from any
particular systems of jurisprudence". Proceedings of the United
States–Norwegian Tribunal (1922), p. 141. Numerous
arbitration treaties have been concluded in recent years which
apply to differences "which are justiciable in their nature by
reason of being susceptible of decision by the application of
the principles of law or equity". Whether the reference in an
arbitration treaty is to the application of "law and equity" or to
justiciability dependent on the possibility of applying "law or
equity", it would seem to envisage equity as a part of law.
[322] The Court has not been expressly authorized by its
Statute to apply equity as distinguished from law. Nor, indeed,
does the Statute expressly direct its application of international
law, though as has been said on several occasions the Court is
"a tribunal of international law". Series A, No. 7, p. 19 ; Series
A, Nos. 20/21, p. 124. Article 38 of the Statute expressly
directs the application of "general principles of law recognized
by civilized nations", and in more than one nation principles of
equity have an established place in the legal system. The
Court's recognition of equity as a part of international law is in
no way restricted by the special power conferred upon it "to
decide a case ex cequo et bono, if the parties agree thereto".
Anzilotti, Corso di Diritto internazionale (3rd ed., 1928), p. 108 ;
Habicht, Power of the International Judge to give a Decision ex
sequo et bono (1935), pp. 61 et sqq.; Lauterpacht, Private Law
Sources and Analogies of International Law (1927), pp. 63 et
sqq. Cf., Monskheli, "L'equite en droit international moderne",
40 Revue generate de Droit international public (1933), p. 347;
[p77] Strupp, "Le droit du juge international de statuer selon
1'equite", 33 Recueil des Cours (1930), pp. 357 et sqq. It must
be concluded, therefore, that under Article 38 of the Statute, if
not independently of that Article, the Court has some freedom
to consider principles of equity as part of the international law
which it must apply.
[323] It would seem to be an important principle of equity that
where two parties have assumed an identical or a reciprocal
obligation, one party which is engaged in a continuing non-
performance of that obligation should not be permitted to take
advantage of a similar non-performance of that obligation by
the other party. The principle finds expression in the so-called
maxims of equity which exercised great influence in the
creative period of the development of the Anglo-American law.
Some of these maxims are, "Equality is equity" ; "He who
seeks equity must do equity". It is in line with such maxims that
"a court of equity refuses relief to a plaintiff whose conduct in
regard to the subject-matter of the litigation has been
improper". 13 Halsbury's Laws of England (2nd ed., 1934), p.
87. A very similar principle was received into Roman Law. The
obligations of a vendor and a vendee being concurrent,
"neither could compel the other to perform unless he had done,
or tendered, his own part". Buckland, Text Book of Roman Law
(2nd ed., 1932), p. 493. The exceptio non adimpleti contractus
required a claimant to prove that he had performed or offered
to perform his obligation. Girard, Droit romain (8th ed., 1929),
p. 567 ; Saleilles, in 6 Annales de Droit commercial, (1892), p.
287, and 7 id. (1893), pp. 24, 97 and 175. This conception was
the basis of Articles 320 and 322 of the German Civil Code,
and even where a code is silent on the point Planiol states the
general principle that "dans tout rapport synallagmatique,
chacune des deux parties ne peut exiger la prestation qui lui
est due que si elle offre elle-meme d'executer son obligation".
Planiol, Droit civil, Vol. 2 (6th ed., 1912), p. 320.
[324] The general principle is one of which an international
tribunal should make a very sparing application. It is certainly
not to be thought that a complete fulfilment of all its obligations
under a treaty must be proved as a condition precedent to a
State's appearing before an international tribunal to seek an
interpretation of that treaty. Yet, in a proper case, and with
scrupulous regard for the limitations which are necessary, a
tribunal bound by international law ought not to shrink from
applying a principle of such obvious fairness. [p78]
[325] On the assumption that the alimentation of canals by the
functioning of the Neerhaeren Lock and the Bosscheveld Lock
is contrary to the Treaty of 1863, is this a case in which the
Court ought to apply the principle referred to ? Here the Parties
are not before the Court under a special agreement in which
they have mutually agreed to seek the Court's interpretation of
the Treaty of 1863. This proceeding was instituted by the
Netherlands. The jurisdiction of the Court rests on the
declarations made by the Parties under paragraph 2 of Article
36 of the Statute. It is the Court's obligatory jurisdiction which is
invoked, without challenge by Belgium. If it is important that
this jurisdiction should not be attenuated by the action of the
Court itself, it is no less important that it be exercised within the
limitations which equity imposes. As the moving Party, the
Netherlands asks that the Belgian action with respect to the
operation of the Neerhaeren Lock be declared contrary to the
Treaty of 1863, and that Belgium be ordered to discontinue that
action. Yet, in its operation of the Bosscheveld Lock, the
Netherlands itself is now engaged in taking precisely similar
action, similar in fact and similar in law. This seems to call for
an application of the principle of equity stated above.
131
[326] One result of applying the principle will be that even if the
Court should be of the opinion that the Belgian action with
regard to the functioning of the Neerhaeren Lock is contrary to
the Treaty of 1863, it should nevertheless refuse in this case to
order Belgium to discontinue that action. In equity, the
Netherlands is not in a position to have such relief decreed to
her. Belgium cannot be ordered to discontinue the operation of
the Neerhaeren Lock when the Netherlands is left free to
continue the operation of the Bosscheveld Lock. The general
principle is a sound one that reparation is "the corollary of the
violation of the obligations resulting from an engagement
between States" ; and "it is a principle of international law, and
even a general conception of law, that any breach of an
engagement involves an obligation to make reparation". Series
A, No. 17, pp. 27, 29. Yet, in a particular case in which it is
asked to enforce the obligation to make reparation, a court of
international law cannot ignore special circumstances which
may call for the consideration of equitable principles. Here the
Netherlands asks, not for reparation for a past violation of the
Treaty of 1863, but for protection against a continuance of that
violation in the future. The Court is asked to decree a kind of
specific performance of a reciprocal obligation which the
demandant itself is not performing. It must clearly refuse to do
so. [p79]
[327] Is the principle of equity less applicable to the
Netherlands' request that the Court declare that the Belgian
action is contrary to the Treaty of 1863, when that request is
divorced from the prayer for an injunction ? There can be no
doubt as to the competence of the Court to render declaratory
judgments. Series A, No. 7, p. 19 ; Series A, No. 13, pp. 20,
21. In this respect, it possesses a power analogous to recently-
developed powers of national tribunals. In some countries the
conditions under which declaratory judgments will be given are
carefully formulated. Borchard, Declaratory Judgments (1934),
ch. 6. The Statute does not prescribe any analogous conditions
for the declaratory judgments of the Court.
[328] In some systems of national jurisprudence where the
process of sanction is highly developed, a line might be drawn
between requests for injunctions and requests for declaratory
judgments, the principle of equity being applied to the former
but not to the latter. Cf., Lodge v. National Union Investment
Company, Limited [1907] I Ch. 300 ; Chapman v. Michaelson
[1909] i Ch. 238. In international jurisprudence, however,
sanctions are of a different nature and they play a different
role, with the result that a declaratory judgment will frequently
have the same compulsive force as a mandatory judgment;
States are disposed to respect the one not less than the other.
Hence, as a general rule, it would seem that a principle of
equity applicable to a request for an injunction should be
applied also to a request for a declaratory judgment. Neither
request should be granted where the circumstances are such
that the judgment would disturb that equality which is equity. In
the circumstances of this case, on the assumption that the
operation of both the Neerhaeren Lock and the Bosscheveld
Lock is contrary to the Treaty of 1863, the Netherlands would
not be entitled to a declaratory judgment for the same reasons
that it is not entitled to a mandatory judgment.
[329] Less hesitance need be felt in reaching this result
because of facts of which the Court has been apprized in the
course of this proceeding. By their action over a period of
years, the Parties to the Treaty of 1863 have indicated that
they are not satisfied with the situation as it exists under that
Treaty. So many changes have taken place–not merely in the
regions served by the Meuse and its dependent canals and in
the technology for the control of that service, but also as a
result of the recent construction of new canals–that the
essentially technical arrangement concluded seventy-four
years ago seems to have been recognized to be no longer an
adequate protection for the Parties' mutual interests. Repeated
efforts have been [p80] made by the Parties to negotiate a
treaty to replace that of 1863, and according to statements
made to the Court, hopes of such a result have not been
abandoned. The judgment in this case may better serve to
facilitate their future negotiations if it preserves the equality
between the Parties.

(Signed) Manley O. Hudson. [p81]

132
Argued October 16, 1979.
Decided June 30, 1980. 
Peter Weiss, New York City (Rhonda Copelon, John Corwin and Jose
Antonio Lugo, Center for Constitutional Rights, New York City, and
Michael Maggio, Goren Maggio, Washington, D.C., of counsel), for
plaintiffs-appellants.
Murry D. Brochin, Newark, N. J. (Lowenstein, Sandler, Brochin, Kohl,
Fisher Boylan, P. C., Newark, N. J., of counsel), for defendant-
appellee.
Irving Gornstein, Atty., Dept. of Justice, Washington, D.C. (Drew S.
Days, III, Asst. Atty. Gen., John E. Huerta, Deputy Asst. Atty. Gen.,
Roberts B. Owen, Legal Advisor, William T. Lake, Deputy Legal
Advisor, Stefan A. Riesenfeld, Charles Runyon and Linda A. Baumann,
Attys., Dept. of State, Washington, D.C.), for the U.S. as amicus
curiae.
Donald L. Doernberg, New York City, and David S. Weissbrodt,
Minneapolis, Minn., for Amnesty International-U.S. A., Intern. League
for Human Rights, and the Lawyers' Committee for Intern. Human
Rights as amici curiae.
Allan Abbot Tuttle, and Steven M. Schneebaum, Washington, D. C., for
The Intern. Human Rights Law Group, The Council on Hemispheric
Affairs and the Washington Office on Latin America as amici curiae.
Appeal from the United States District Court for the Eastern District of
New York.
Before FEINBERG, Chief Judge, KAUFMAN and KEARSE, Circuit
Judges.
The late Judge Smith was a member of the original panel in this case.
After his unfortunate death, Judge Kearse was designated to fill his
place pursuant to Local Rule § 0.14(b).
Red flags, copy-with-cite, case summaries, annotated statutes and
more.
Compare with Lexis
IRVING R. KAUFMAN, Circuit Judge:
Upon ratification of the Constitution, the thirteen former colonies were
fused into a single nation, one which, in its relations with foreign states,
is bound both to observe and construe the accepted norms of
international law, formerly known as the law of nations. Under the
Articles of Confederation, the several states had interpreted and
applied this body of doctrine as a  part of their common law, but with
the founding of the "more perfect Union" of 1789, the law of nations
became preeminently a federal concern.
Implementing the constitutional mandate for national control over
foreign relations, the First Congress established original district court
jurisdiction over "all causes where an alien sues for a tort only
[committed] in violation of the law of nations." Judiciary Act of 1789, ch.
20, § 9(b), 1 Stat. 73, 77 (1789), codified at 28 U.S.C. § 1350.
Construing this rarely-invoked provision, we hold that deliberate torture
perpetrated under color of official authority violates universally
accepted norms of the international law of human rights, regardless of
133
the nationality of the parties. Thus, whenever an alleged torturer is
found and served with process by an alien within our borders, § 1350
provides federal jurisdiction. Accordingly, we reverse the judgment of
the district court dismissing the complaint for want of federal
jurisdiction.
I
The appellants, plaintiffs below, are citizens of the Republic of
Paraguay. Dr. Joel Filartiga, a physician, describes himself as a
longstanding opponent of the government of President Alfredo
Stroessner, which has held power in Paraguay since 1954. His
daughter, Dolly Filartiga, arrived in the United States in 1978 under a
visitor's visa, and has since applied for permanent political asylum. The
Filartigas brought this action in the Eastern District of New York against
Americo Norberto Pena-Irala (Pena), also a citizen of Paraguay, for
wrongfully causing the death of Dr. Filartiga's seventeen-year old son,
Joelito. Because the district court dismissed the action for want of
subject matter jurisdiction, we must accept as true the allegations
contained in the Filartigas' complaint and affidavits for purposes of this
appeal.
The appellants contend that on March 29, 1976, Joelito Filartiga was
kidnapped and tortured to death by Pena, who was then Inspector
General of Police in Asuncion, Paraguay. Later that day, the police
brought Dolly Filartiga to Pena's home where she was confronted with
the body of her brother, which evidenced marks of severe torture. As
she fled, horrified, from the house, Pena followed after her shouting,
"Here you have what you have been looking for for so long and what
you deserve. Now shut up." The Filartigas claim that Joelito was
tortured and killed in retaliation for his father's political activities and
beliefs.
Shortly thereafter, Dr. Filartiga commenced a criminal action in the
Paraguayan courts against Pena and the police for the murder of his
son. As a result, Dr. Filartiga's attorney was arrested and brought to
police headquarters where, shackled to a wall, Pena threatened him
with death. This attorney, it is alleged, has since been disbarred
without just cause.
During the course of the Paraguayan criminal proceeding, which is
apparently still pending after four years, another man, Hugo Duarte,
confessed to the murder. Duarte, who was a member of the Pena
household, claimed that he had discovered his wife and Joelito in
flagrante delicto, and that the crime was one of passion. The Filartigas
have submitted a photograph of Joelito's corpse showing injuries they
believe refute this claim. Dolly Filartiga, moreover, has stated that she
will offer evidence of three independent autopsies demonstrating that
her brother's death "was the result of professional methods of torture."
Despite his confession, Duarte, we are told, has never been convicted
or sentenced in connection with the crime.
Duarte is the son of Pena's companion, Juana Bautista Fernandez
Villalba, who later accompanied Pena to the United States.
In July of 1978, Pena sold his house in Paraguay and entered the
United States under a visitor's visa. He was accompanied by Juana
Bautista Fernandez Villalba, who had lived with him in Paraguay. The
couple remained in the United States beyond the term of their visas,
and were living in  Brooklyn, New York, when Dolly Filartiga, who was
then living in Washington, D.C., learned of their presence. Acting on
information provided by Dolly the Immigration and Naturalization
Service arrested Pena and his companion, both of whom were
subsequently ordered deported on April 5, 1979 following a hearing.
They had then resided in the United States for more than nine months.
Almost immediately, Dolly caused Pena to be served with a summons
and civil complaint at the Brooklyn Navy Yard, where he was being
held pending deportation. The complaint alleged that Pena had
wrongfully caused Joelito's death by torture and sought compensatory
and punitive damages of $10,000,000. The Filartigas also sought to
enjoin Pena's deportation to ensure his availability for testimony at
trial. The cause of action is stated as arising under "wrongful death
statutes; the U. N. Charter; the Universal Declaration on Human
Rights; the U. N. Declaration Against Torture; the American
Declaration of the Rights and Duties of Man; and other pertinent
declarations, documents and practices constituting the customary
international law of human rights and the law of nations," as well as 28
U.S.C. § 1350, Article II, sec. 2 and the Supremacy Clause of the U.S.
Constitution. Jurisdiction is claimed under the general federal question
provision, 28 U.S.C. § 1331 and, principally on this appeal, under the
Alien Tort Statute, 28 U.S.C. § 1350.
Several officials of the Immigration and Naturalization Service were
named as defendants in connection with this portion of the action.
Because Pena has now been deported, the federal defendants are no
longer parties to this suit, and the claims against them are not before
us on this appeal.
Jurisdiction was also invoked pursuant to 28 U.S.C. §§ 1651, 2201
2202, presumably in connection with appellants' attempt to delay
Pena's return to Paraguay.
Judge Nickerson stayed the order of deportation, and Pena
immediately moved to dismiss the complaint on the grounds that
subject matter jurisdiction was absent and for forum non
conveniens. On the jurisdictional issue, there has been no suggestion
that Pena claims diplomatic immunity from suit. The Filartigas
submitted the affidavits of a number of distinguished international legal
scholars, who stated unanimously that the law of nations prohibits
absolutely the use of torture as alleged in the complaint. Pena, in
support of his motion to dismiss on the ground of forum non
conveniens, submitted the affidavit of his Paraguayan counsel, Jose
Emilio Gorostiaga, who averred that Paraguayan law provides a full
and adequate civil remedy for the wrong alleged. Dr. Filartiga has
not  commenced such an action, however, believing that further resort
to the courts of his own country would be futile.
Richard Falk, the Albert G. Milbank Professor of International Law and
Practice at Princeton University, and a former Vice President of the
American Society of International Law, avers that, in his judgment, "it is
now beyond reasonable doubt that torture of a person held in detention
that results in severe harm or death is a violation of the law of nations."
Thomas Franck, professor of international law at New York University
and Director of the New York University Center for International
Studies offers his opinion that torture has now been rejected by
virtually all nations, although it was once commonly used to extract
confessions. Richard Lillich, the Howard W. Smith Professor of Law at
the University of Virginia School of Law, concludes, after a lengthy
review of the authorities, that officially perpetrated torture is "a violation
of international law (formerly called the law of nations)." Finally, Myres
MacDougal, a former Sterling Professor of Law at the Yale Law
School, and a past President of the American Society of International
Law, states that torture is an offense against the law of nations, and
that "it has long been recognized that such offenses vitally affect
relations between states."
The Gorostiaga affidavit states that
a father whose son has been wrongfully killed may in addition to
commencing a criminal proceeding bring a civil action for damages
against the person responsible. Accordingly, Mr. Filartiga has the right
to commence a civil action against Mr. Duarte and Mr. Pena-Irala since
he accuses them both of responsibility for his son's death. He may
commence such a civil action either simultaneously with the
commencement of the criminal proceeding, during the time that the
criminal proceeding lasts, or within a year after the criminal proceeding
has terminated. In either event, however, the civil action may not
proceed to judgment until the criminal proceeding has been disposed
of. If the defendant is found not guilty because he was not the author of
the case under investigation in the criminal proceeding, no civil action
for indemnity for damages based upon the same deed investigated in
the criminal proceeding, can prosper or succeed.
134
Judge Nickerson heard argument on the motion to dismiss on May 14,
1979, and on May 15 dismissed the complaint on jurisdictional
grounds. The district judge recognized the strength of appellants'
argument that official torture violates an emerging norm of customary
international law. Nonetheless, he felt constrained by dicta contained in
two recent opinions of this Court, Dreyfus v. von Finck, 534 F.2d 24 (2d
Cir.), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101
(1976); IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975), to construe
narrowly "the law of nations," as employed in § 1350, as excluding that
law which governs a state's treatment of its own citizens.
The court below accordingly did not consider the motion to dismiss
on forum non conveniens grounds, which is not before us on this
appeal.
The district court continued the stay of deportation for forty-eight hours
while appellants applied for further stays. These applications were
denied by a panel of this Court on May 22, 1979, and by the Supreme
Court two days later. Shortly thereafter, Pena and his companion
returned to Paraguay.
II
Appellants rest their principal argument in support of federal jurisdiction
upon the Alien Tort Statute, 28 U.S.C. § 1350, which provides: "The
district courts shall have original jurisdiction of any civil action by an
alien for a tort only, committed in violation of the law of nations or a
treaty of the United States." Since appellants do not contend that their
action arises directly under a treaty of the United States, a threshold
question on the jurisdictional issue is whether the conduct alleged
violates the law of nations. In light of the universal condemnation of
torture in numerous international agreements, and the renunciation of
torture as an instrument of official policy by virtually all of the nations of
the world (in principle if not in practice), we find 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.
Appellants "associate themselves with" the argument of some of
the amici curiae that their claim arises directly under a treaty of the
United States, Brief for Appellants at 23 n.[*], but nonetheless primarily
rely upon treaties and other international instruments as evidence of an
emerging norm of customary international law, rather then independent
sources of law.
The Supreme Court has enumerated the appropriate sources of
international law. The law of nations "may be ascertained by consulting
the works of jurists, writing professedly on public law; or by the general
usage and practice of nations; or by judicial decisions recognizing and
enforcing that law." United States v. Smith, 18 U.S. (5 Wheat.) 153,
160-61, 5 L.Ed. 57 (1820); Lopes v. Reederei Richard Schroder, 225
F.Supp. 292, 295 (E.D.Pa. 1963). In Smith, a statute proscribing "the
crime of piracy [on the high seas] as defined by the law of nations," 3
Stat. 510(a) (1819), was held sufficiently determinate in meaning to
afford the basis for a death sentence. The Smith Court discovered
among the works of Lord Bacon, Grotius, Bochard and other
commentators a genuine consensus that rendered the crime
"sufficiently and constitutionally defined." Smith, supra, 18 U.S. (5
Wheat.) at 162, 5 L.Ed. 57.
The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed.
320 (1900), reaffirmed that
where there is no treaty, and no controlling executive or legislative act
or judicial decision, resort must be had to the customs and usages of
civilized nations; and, as evidence of these, to the works of jurists and
commentators, who by years of labor, research and experience, have
made themselves peculiarly well acquainted with the subjects of which
they  treat. Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but
for trustworthy evidence of what the law really is.
Id. at 700, 20 S.Ct. at 299. Modern international sources confirm the
propriety of this approach.
Art. 38
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as
law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of the rules of law.
2. This provision shall not prejudice the power of the Court to decide a
case ex aequo et bono, if the parties agree thereto.
Art. 59 The decision of the Court has no binding force except between
the parties and in respect of that particular case.
Habana is particularly instructive for present purposes, for it held that
the traditional prohibition against seizure of an enemy's coastal fishing
vessels during wartime, a standard that began as one of comity only,
had ripened over the preceding century into "a settled rule of
international law" by "the general assent of civilized nations." Id. at
694, 20 S.Ct. at 297; accord, id. at 686, 20 S.Ct. at 297. Thus it is clear
that courts must interpret international law not as it was in 1789, but as
it has evolved and exists among the nations of the world today. See
Ware v. Hylton, 3 U.S. (3 Dall.) 198, 1 L.Ed. 568 (1796) (distinguishing
between "ancient" and "modern" law of nations).
The requirement that a rule command the "general assent of civilized
nations" to become binding upon them all is a stringent one. Were this
not so, the courts of one nation might feel free to impose idiosyncratic
legal rules upon others, in the name of applying international law.
Thus, in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct.
923, 11 L.Ed.2d 804 (1964), the Court declined to pass on the validity
of the Cuban government's expropriation of a foreign-owned
corporation's assets, noting the sharply conflicting views on the issue
propounded by the capital-exporting, capital-importing, socialist and
capitalist nations. Id. at 428-30, 84 S.Ct. at 940-41.
The case at bar presents us with a situation diametrically opposed to
the conflicted state of law that confronted the Sabbatino Court. Indeed,
to paraphrase that Court's statement, id. at 428, 84 S.Ct. at 940, there
are few, if any, issues in international law today on which opinion
seems to be so united as the limitations on a state's power to torture
persons held in its custody.
The United Nations Charter (a treaty of the United States, see 59 Stat.
1033 (1945)) makes it clear that in this modern age a state's treatment
of its own citizens is a matter of international concern. It provides:
With a view to the creation of conditions of stability and well-being
which are necessary for peaceful and friendly relations among nations .
135
. . the United Nations shall promote . . . universal respect for, and
observance of, human rights and fundamental freedoms for all without
distinctions as to race, sex, language or religion.
Id. Art. 55. And further:
All members pledge themselves to take joint and separate action in
cooperation with the Organization for the achievement of the purposes
set forth in Article 55.
Id. Art. 56.
While this broad mandate has been held not to be wholly self-
executing, Hitai v. Immigration and Naturalization Service, 343 F.2d
466, 468 (2d Cir. 1965), this observation  alone does not end our
inquiry. For although there is no universal agreement as to the precise
extent of the "human rights and fundamental freedoms" guaranteed to
all by the Charter, there is at present no dissent from the view that the
guaranties include, at a bare minimum, the right to be free from torture.
This prohibition has become part of customary international law, as
evidenced and defined by the Universal Declaration of Human Rights,
General Assembly Resolution 217 (III)(A) (Dec. 10, 1948) which states,
in the plainest of terms, "no one shall be subjected to torture." The
General Assembly has declared that the Charter precepts embodied in
this Universal Declaration "constitute basic principles of international
law." G.A.Res. 2625 (XXV) (Oct. 24, 1970).
We observe that this Court has previously utilized the U.N. Charter and
the Charter of the Organization of American States, another nonself-
executing agreement, as evidence of binding principles of international
law. United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). In that
case, our government's duty under international law to refrain from
kidnapping a criminal defendant from within the borders of another
nation, where formal extradition procedures existed, infringed the
personal rights of the defendant, whose international law claims were
thereupon remanded for a hearing in the district court.
Eighteen nations have incorporated the Universal Declaration into their
own constitutions. 48 Revue Internationale de Droit Penal Nos. 3 4, at
211 (1977).
Particularly relevant is the Declaration on the Protection of All Persons
from Being Subjected to Torture, General Assembly Resolution 3452,
30 U.N. GAOR Supp. (No. 34) 91, U.N.Doc. A/1034 (1975), which is
set out in full in the margin. 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. Nayar, "Human Rights: The United Nations
and United States Foreign Policy," 19 Harv.Int'l L.J. 813, 816 n. 18
(1978).
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."
Sohn, "A Short History of United Nations Documents on Human
Rights," in The United Nations and Human Rights, 18th Report of the
Commission (Commission to Study the Organization of Peace ed.
1968). 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."
34 U.N. ESCOR, Supp. (No. 8) 15, U.N. Doc. E/cn.4/1/610 (1962)
(memorandum of Office of Legal Affairs, U.N. Secretariat). Accordingly,
it has been observed that the Universal Declaration of Human Rights
"no longer fits into the dichotomy of `binding treaty' against `nonbinding
pronouncement,' but is rather an authoritative statement of the
international community." E. Schwelb, Human Rights and the
International Community 70 (1964). 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." 34 U.N.
ESCOR, supra. Indeed, several commentators have concluded that the
Universal Declaration has become, in toto, a part of binding, customary
international law. Nayar, supra, at 816-17; Waldlock, "Human Rights in
Contemporary International Law and the Significance of the European
Convention," Int'l Comp. L.Q., Supp. Publ. No. 11 at 15 (1965).
Turning to the act of torture, we have little difficulty discerning its
universal renunciation in the modern usage and practice of
nations. Smith, supra, 18 U.S. (5 Wheat.) at 160-61, 5 L.Ed. 57. The
international consensus surrounding torture has found expression in
numerous international treaties and accords. E. g., American
Convention on Human Rights, Art. 5, OAS  Treaty Series No. 36 at 1,
OAS Off. Rec. OEA/Ser 4 v/II 23, doc. 21, rev. 2 (English ed., 1975)
("No one shall be subjected to torture or to cruel, inhuman or degrading
punishment or treatment"); International Covenant on Civil and Political
Rights, U.N. General Assembly Res. 2200 (XXI)A, U.N. Doc. A/6316
(Dec. 16, 1966) (identical language); European Convention for the
Protection of Human Rights and Fundamental Freedoms, Art. 3,
Council of Europe, European Treaty Series No. 5 (1968), 213 U.N.T.S.
211 ( semble). 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, including both the United States and Paraguay. Our State
Department reports a general recognition of this principle:
48 Revue Internationale de Droit Penal Nos. 3 4 at 208 (1977).
U.S.Const., Amend. VIII ("cruel and unusual punishments"
prohibited); id. Amend. XIV.
Constitution of Paraguay, Art. 45 (prohibiting torture and other cruel
treatment).
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.
Department of State, Country Reports on Human Rights for
1979, published as Joint Comm. Print, House Comm. on Foreign
Affairs, and Senate Comm. on Foreign Relations, 96th Cong. 2d Sess.
(Feb. 4, 1980), Introduction at 1. We have been directed to no
assertion by any contemporary state of a right to torture its own or
another nation's citizens. Indeed, United States diplomatic contacts
confirm the universal abhorrence with which torture is viewed:
In exchanges between United States embassies and all foreign states
with which the United States maintains relations, it has been the
Department of State's general experience that no government has
asserted a right to torture its own nationals. Where reports of torture
elicit some credence, a state usually responds by denial or, less
frequently, by asserting that the conduct was unauthorized or
constituted rough treatment short of torture.
The fact that the prohibition of torture is often honored in the breach
does not diminish its binding effect as a norm of international law. As
one commentator has put it, "The best evidence for the existence of
international law is that every actual State recognizes that it does exist
and that it is itself under an obligation to observe it. States often violate
international law, just as individuals often violate municipal law; but no
more than individuals do States defend their violations by claiming that
they are above the law." J. Brierly, The Outlook for International Law 4-
5 (Oxford 1944).
136
Memorandum of the United States as Amicus Curiae at 16 n. 34.
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. Accordingly, we
must conclude that the dictum in Dreyfus v. von Finck, supra, 534 F.2d
at 31, to the effect that "violations of international law do not occur
when the aggrieved parties are nationals of the acting state," is clearly
out of tune with the current usage and practice of international law. The
treaties and accords cited above, as well as the express foreign
policy  of our own government, all make it clear that international law
confers fundamental rights upon all people vis-a-vis their own
governments. While the ultimate scope of those rights will be a subject
for continuing refinement and elaboration, we hold that the right to be
free from torture is now among them. We therefore turn to the question
whether the other requirements for jurisdiction are met.
See note 4, supra: see also Ireland v. United Kingdom, Judgment of
Jan. 18, 1978 (European Court of Human Rights), summarized
in [1978] Yearbook, European Convention on Human Rights 602
(Council of Europe) (holding that Britain's subjection of prisoners to
sleep deprivation, hooding, exposure to hissing noise, reduced diet and
standing against a wall for hours was "inhuman and degrading," but not
"torture" within meaning of European Convention on Human Rights).
E. g., 22 U.S.C. § 2304(a)(2) ("Except under circumstances specified
in this section, no security assistance may be provided to any country
the government of which engages in a consistent pattern of gross
violations of internationally recognized human rights."); 22 U.S.C. §
2151(a) ("The Congress finds that fundamental political, economic, and
technological changes have resulted in the interdependence of nations.
The Congress declares that the individual liberties, economic
prosperity, and security of the people of the United States are best
sustained and enhanced in a community of nations which respect
individual civil and economic rights and freedoms").
III
Appellee submits that even if the tort alleged is a violation of modern
international law, federal jurisdiction may not be exercised consistent
with the dictates of Article III of the Constitution. The claim is without
merit. Common law courts of general jurisdiction regularly adjudicate
transitory tort claims between individuals over whom they exercise
personal jurisdiction, wherever the tort occurred. Moreover, as part of
an articulated scheme of federal control over external affairs, Congress
provided, in the first Judiciary Act, § 9(b), 1 Stat. 73, 77 (1789), for
federal jurisdiction over suits by aliens where principles of international
law are in issue. The constitutional basis for the Alien Tort Statute is
the law of nations, which has always been part of the federal common
law.
It is not extraordinary for a court to adjudicate a tort claim arising
outside of its territorial jurisdiction. A state or nation has a legitimate
interest in the orderly resolution of disputes among those within its
borders, and where the lex loci delicti commissi is applied, it is an
expression of comity to give effect to the laws of the state where the
wrong occurred. Thus, Lord Mansfield in Mostyn v. Fabrigas, 1 Cowp.
161 (1774), quoted in McKenna v. Fisk, 42 U.S. (1 How.) 241, 248, 11
L.Ed. 117 (1843) said:
[I]f A becomes indebted to B, or commits a tort upon his person or
upon his personal property in Paris, an action in either case may be
maintained against A in England, if he is there found . . . . [A]s to
transitory actions, there is not a colour of doubt but that any action
which is transitory may be laid in any county in England, though the
matter arises beyond the seas.
Mostyn came into our law as the original basis for state court
jurisdiction over out-of-state torts, McKenna v. Fisk, supra, 42 U.S. (1
How.) 241, 11 L.Ed. 117 (personal injury suits held transitory); Dennick
v. Railroad Co., 103 U.S. 11, 26 L.Ed. 439 (1880) (wrongful death
action held transitory), and it has not lost its force in suits to recover for
a wrongful death occurring upon foreign soil, Slater v. Mexican
National Railroad Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed.
900 (1904), as long as the conduct complained of was unlawful where
performed. Restatement (Second) of Foreign Relations Law of the
United States § 19 (1965). Here, where in personam jurisdiction has
been obtained over the defendant, the parties agree that the acts
alleged would violate Paraguayan law, and the policies of the forum
are consistent with the foreign law, state court jurisdiction would be
proper. Indeed, appellees conceded as much at oral argument.
Conduct of the type alleged here would be actionable under 42 U.S.C.
§ 1983 or, undoubtedly, the Constitution, if performed by a government
official.
Recalling that Mostyn was freshly decided at the time the Constitution
was ratified, we proceed to consider whether the First Congress acted
constitutionally in vesting jurisdiction over "foreign suits," Slater,
supra, 194 U.S. at 124, 24 S.Ct. at 582, alleging torts committed in
violation of  the law of nations. A case properly "aris[es] under the . . .
laws of the United States" for Article III purposes if grounded upon
statutes enacted by Congress or upon the common law of the United
States. See Illinois v. City of Milwaukee, 406 U.S. 91, 99-100, 92 S.Ct.
1385, 1390-91, 31 L.Ed.2d 712 (1972); Ivy Broadcasting Co., Inc. v.
American Tel. Tel. Co., 391 F.2d 486, 492 (2d Cir. 1968). The law of
nations forms an integral part of the common law, and a review of the
history surrounding the adoption of the Constitution demonstrates that
it became a part of the common law of the United States upon the
adoption of the Constitution. Therefore, the enactment of the Alien Tort
Statute was authorized by Article III.
During the eighteenth century, it was taken for granted on both sides of
the Atlantic that the law of nations forms a part of the common law. 1
Blackstone, Commentaries 263-64 (1st Ed. 1765-69); 4 id. at
67. Under the Articles of Confederation, the Pennsylvania Court of
Oyer and Terminer at Philadelphia, per McKean, Chief Justice, applied
the law of nations to the criminal prosecution of the Chevalier de
Longchamps for his assault upon the person of the French Consul-
General to the United States, noting that "[t]his law, in its full extent, is
a part of the law of this state . . . ." Respublica v. DeLongchamps, 1
U.S. (1 Dall.) 113, 119, 1 L.Ed. 59 (1784). Thus, a leading
commentator has written:
As Lord Stowell said in The Maria, 165 Eng. Rep. 955, 958 (Adm.
1807): "In the first place it is to be recollected, that this is a Court of the
Law of Nations, though sitting here under the authority of the King of
Great Britain. It belongs to other nations as well as to our own; and
what foreigners have a right to demand from it, is the administration of
the law of nations, simply, and exclusively of the introduction of
principles borrowed from our own municipal jurisprudence, to which it
is well known, they have at all times expressed no inconsiderable
repugnance."
It is an ancient and a salutary feature of the Anglo-American legal
tradition that the Law of Nations is a part of the law of the land to be
ascertained and administered, like any other, in the appropriate case.
This doctrine was originally conceived and formulated in England in
response to the demands of an expanding commerce and under the
influence of theories widely accepted in the late sixteenth, the
seventeenth and the eighteenth centuries. It was brought to America in
the colonial years as part of the legal heritage from England. It was
well understood by men of legal learning in America in the eighteenth
century when the United Colonies broke away from England to unite
effectively, a little later, in the United States of America.
Dickenson, "The Law of Nations as Part of the National Law of the
United States," 101 U.Pa.L.Rev. 26, 27 (1952).
Indeed, Dickenson goes on to demonstrate, id. at 34-41, that one of
the principal defects of the Confederation that our Constitution was
intended to remedy was the central government's inability to "cause
infractions of treaties or of the law of nations, to be punished." 1
137
Farrand, Records of the Federal Convention 19 (Rev. ed. 1937) (Notes
of James Madison). And, in Jefferson's words, the very purpose of the
proposed Union was "[t]o make us one nation as to foreign concerns,
and keep us distinct in domestic ones." Dickenson, supra, at 36 n. 28.
As ratified, the judiciary article contained no express reference to
cases arising under the law of nations. Indeed, the only express
reference to that body of law is contained in Article I, sec. 8, cl. 10,
which grants to the Congress the power to "define and punish . . .
offenses against the law of nations." Appellees seize upon this
circumstance and advance the proposition that the law of nations forms
a part of the laws of the United States only to the extent that Congress
has acted to define it. This extravagant claim is amply refuted by the
numerous decisions applying rules of international law uncodified in
any act of Congress. E. g., Ware v. Hylton, 3 U.S. (3 Dall.) 198, 1 L.Ed.
568 (1796); The Paquete Habana, supra, 175 U.S. 677, 20 S.Ct.
290, 44 L.Ed. 320; Sabbatino, supra,  376 U.S. 398, 84 S.Ct. 923, 11
L.Ed.2d 804 (1964). A similar argument was offered to and rejected by
the Supreme Court in United States v. Smith, supra, 18 U.S. (5
Wheat.) 153, 158-60, 5 L.Ed. 57 and we reject it today. As John Jay
wrote in The Federalist No. 3, at 22 (1 Bourne ed. 1901), "Under the
national government, treaties and articles of treaties, as well as the
laws of nations, will always be expounded in one sense and executed
in the same manner, whereas adjudications on the same points and
questions in the thirteen states will not always accord or be consistent."
Federal jurisdiction over cases involving international law is clear.
Thus, it was hardly a radical initiative for Chief Justice Marshall to state
in The Nereide, 13 U.S. (9 Cranch) 388, 422, 3 L.Ed. 769 (1815), that
in the absence of a congressional enactment, United States courts are
"bound by the law of nations, which is a part of the law of the land."
These words were echoed in The Paquete Habana, supra, 175 U.S. at
700, 20 S.Ct. at 299: "[i]nternational law is part of our law, and must be
ascertained and administered by the courts of justice of appropriate
jurisdiction, as often as questions of right depending upon it are duly
presented for their determination."
The plainest evidence that international law has an existence in the
federal courts independent of acts of Congress is the long-standing
rule of construction first enunciated by Chief Justice Marshall: "an act
of congress ought never to be construed to violate the law of nations, if
any other possible construction remains . . .." The Charming Betsy, 6
U.S. (2 Cranch), 34, 67, 2 L.Ed. 208 (1804), quoted in Lauritzen v.
Larsen, 345 U.S. 571, 578, 73 S.Ct. 921, 926, 97 L.Ed. 1254 (1953).
The Filartigas urge that 28 U.S.C. § 1350 be treated as an exercise of
Congress's power to define offenses against the law of nations. While
such a reading is possible, see Lincoln Mills v. Textile Workers, 353
U.S. 488, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957) (jurisdictional statute
authorizes judicial explication of federal common law), we believe it is
sufficient here to construe the Alien Tort Statute, not as granting new
rights to aliens, but simply as opening the federal courts for
adjudication of the rights already recognized by international law. The
statute nonetheless does inform our analysis of Article III, for we
recognize that questions of jurisdiction "must be considered part of an
organic growth — part of an evolutionary process," and that the history
of the judiciary article gives meaning to its pithy phrases. Romero v.
International Terminal Operating Co., 358 U.S. 354, 360, 79 S.Ct. 468,
473, 3 L.Ed.2d 368 (1959). The Framers' overarching concern that
control over international affairs be vested in the new national
government to safeguard the standing of the United States among the
nations of the world therefore reinforces the result we reach today.
Although the Alien Tort Statute has rarely been the basis for jurisdiction
during its long history, in light of the foregoing discussion, there can be
little doubt that this action is properly brought in federal court. This is
undeniably an action by an alien, for a tort only, committed in violation
of the law of nations. The paucity of suits successfully maintained
under the section is readily attributable to the statute's requirement of
alleging a " violation of the law of nations" (emphasis supplied) at the
jurisdictional threshold. Courts have, accordingly, engaged in a more
searching preliminary review of the merits than is required, for
example, under the more flexible "arising under" formulation.  Compare
O'Reilly de Camara v. Brooke, 209 U.S. 45, 52, 28 S.Ct. 439, 441, 52
L.Ed. 676 (1907) (question of Alien Tort Statute jurisdiction disposed of
"on the merits") (Holmes, J.), with Bell v. Hood, 327 U.S. 678, 66 S.Ct.
773, 90 L.Ed. 939 (1946) (general federal question jurisdiction not
defeated by the possibility that the averments in the complaint may fail
to state a cause of action). Thus, the narrowing construction that the
Alien Tort Statute has previously received reflects the fact that earlier
cases did not involve such well-established, universally recognized
norms of international law that are here at issue.
Section 1350 afforded the basis for jurisdiction over a child custody suit
between aliens in Adra v. Clift, 195 F.Supp. 857 (D.Md. 1961), with a
falsified passport supplying the requisite international law violation.
In Bolchos v. Darrell, 3 Fed.Cas. 810 (D.S.C. 1795), the Alien Tort
Statute provided an alternative basis of jurisdiction over a suit to
determine title to slaves on board an enemy vessel taken on the high
seas.
We recognize that our reasoning might also sustain jurisdiction under
the general federal question provision, 28 U.S.C. § 1331. We prefer,
however, to rest our decision upon the Alien Tort Statute, in light of that
provision's close coincidence with the jurisdictional facts presented in
this case. See Romero v. International Terminal Operating Co., 358
U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959).
For example, the statute does not confer jurisdiction over an action by
a Luxembourgeois international investment trust's suit for fraud,
conversion and corporate waste. IIT v. Vencap, 519 F.2d 1001,
1015 (1975). In IIT, Judge Friendly astutely noted that the mere fact
that every nation's municipal law may prohibit theft does not
incorporate "the Eighth Commandment, `Thou Shalt not steal' . . . [into]
the law of nations." It is only where the nations of the world have
demonstrated that the wrong is of mutual, and not merely several,
concern, by means of express international accords, that a wrong
generally recognized becomes an international law violation within the
meaning of the statute. other recent § 1350 cases are similarly
distinguishable.
Dreyfus v. von Finck, 534 F.2d 24 (2d Cir.), cert. denied, 429 U.S. 835,
97 S.Ct. 102, 50 L.Ed.2d 101 (1976), concerned a forced sale of
property, and thus sought to invoke international law in an area in
which no consensus view existed. See Sabbatino, supra, 376 U.S. at
428, 84 S.Ct. at 940. Similarly, Benjamins v. British European
Airways, 572 F.2d 913 (2d Cir. 1978), cert. denied, 439 U.S. 1114, 99
S.Ct. 1016, 59 L.Ed.2d 72 (1979), held only that an air disaster, even if
caused by "wilful" negligence, does not constitute a law of nations
violation. Id. at 916. In Khedivial Line, S. A. E. v. Seafarers'
International Union, 278 F.2d 49 (2d Cir. 1960), we found that the
"right" to free access to the ports of a foreign nation was at best a rule
of comity, and not a binding rule of international law.
The cases from other circuits are distinguishable in like manner. The
court in Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1978), was
unable to discern from the traditional sources of the law of nations "a
universal or generally accepted substantive rule or principle" governing
child custody, id. at 629, and therefore held jurisdiction to be
lacking. Cf. Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1201 n. 13
(9th Cir. 1975) ("the illegal seizure, removal and detention of an alien
against his will in a foreign country would appear to be a tort . . . and it
may well be a tort in violation of the `law of nations'") (§ 1350 question
not reached due to inadequate briefing). Finally, the district court
in Lopes v. Reederei Richard Schroder, 225 F.Supp. 292 (E.D.Pa.
1963) simply found that the doctrine of seaworthiness, upon which the
plaintiff relied, was a uniquely American concept, and therefore not a
part of the law of nations.
IIT adopted a dictum from Lopes v. Reederei Richard Schroder, 225
F.Supp. 292 (E.D.Pa. 1963) to the effect that "a violation of the law of
nations arises only when there has been `a violation by one or more
individuals of those standards, rules or customs (a) affecting the
relationship between states or between an individual and a foreign
state and (b) used by those states for their common good and/or in
138
dealings inter se.'" ITT, supra, 519 F.2d at 1015, quoting Lopes,
supra, 225 F.Supp. at 297. We have no quarrel with this formulation so
long as it be understood that the courts are not to prejudge the scope
of the issues that the nations of the world may deem important to their
interrelationships, and thus to their common good. As one
commentator has noted:
the sphere of domestic jurisdiction is not an irreducible sphere of rights
which are somehow inherent, natural, or fundamental. It does not
create an impenetrable barrier to the development of international law.
Matters of domestic jurisdiction are not those which are unregulated by
international law, but those which are left by international law for
regulation by States. There are, therefore, no matters which are
domestic by their `nature.' All are susceptible of international legal
regulation and may become the subjects of new rules of customary law
of treaty obligations.
Preuss, "Article 2, Paragraph 7 of the Charter of the United Nations
and Matters of Domestic Jurisdiction," Hague Receuil (Extract, 149) at
8, reprinted in H. Briggs, The Law of Nations 24 (1952). Here, the
nations have made it their business, both through international accords
and unilateral action, to be concerned with domestic human rights
violations of this magnitude. The case before us therefore falls within
the Lopes/ITT rule.
As President Carter stated in his address to the United Nations on
March 17, 1977:
All the signatories of the United Nations Charter have pledged
themselves to observe and to respect basic human rights. Thus, no
member of the United Nations can claim that mistreatment of the
citizens is solely its own business. Equally, no member can avoid its
responsibilities to review and to speak when torture or unwarranted
deprivation occurs in any part of the world.
Reprinted in 78 Department of State Bull. 322 (1977); see note
17, supra.
Since federal jurisdiction may properly be exercised over the Filartigas'
claim, the action must be remanded for further proceedings. Appellee
Pena, however, advances several additional points that lie beyond the
scope of our holding on jurisdiction. Both to emphasize the boundaries
of our holding, and to clarify some of the issues reserved for the district
court on remand, we will address these contentions briefly.
IV
Pena argues that the customary law of nations, as reflected in treaties
and declarations that are not self-executing, should not be applied as
rules of decision in this case. In doing so, he confuses the question of
federal jurisdiction under the Alien Tort Statute, which requires
consideration of the law of nations, with the issue of the choice of law
to be applied, which will be addressed at a later stage in the
proceedings. The two issues are distinct. Our holding on subject matter
jurisdiction decides only whether Congress intended to confer judicial
power, and whether it is authorized to do so by Article III. The choice of
law inquiry is a much broader one, primarily concerned with
fairness, see Home Insurance Co. v. Dick, 281 U.S. 397, 50 S.Ct.
338, 74 L.Ed. 926 (1930); consequently, it looks to wholly different
considerations. See Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct.
921, 97 L.Ed. 1254 (1954). Should the district court decide that
the Lauritzen analysis requires it to apply Paraguayan law, our courts
will not have occasion to consider what law would govern a suit under
the Alien Tort Statute where the challenged conduct is actionable
under the law of the forum and the law of nations, but not the law of the
jurisdiction in which the tort occurred.
In taking that broad range of factors into account, the district court may
well decide that fairness requires it to apply Paraguayan law to the
instant case. See Slater v. Mexican National Railway Co., 194 U.S.
120, 24 S.Ct. 581, 48 L.Ed. 900 (1904). Such a decision would not
retroactively oust the federal court of subject matter jurisdiction, even
though plaintiff's cause of action would no longer properly be "created"
by a law of the United States. See American Well Works Co. v. Layne
Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916) lawful sanctions to the extent consistent with the Standard Minimum
(Holmes, J.). Once federal jurisdiction is established by a colorable Rules for the Treatment of Prisoners.
claim under federal law at a preliminary stage of the proceeding,
subsequent dismissal of that claim (here, the claim under the general
international proscription of torture) does not deprive the court of
jurisdiction previously established. See Hagans v. Lavine, 415 U.S. 2. Torture constitutes an aggravated and deliberate form of cruel,
528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Romero v. International inhuman or degrading treatment or punishment.
Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d
368 (1959); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed.
939 (1946). Cf. Huynh Thi Ahn, supra, 586 F.2d at 633 (choice of Article 2
municipal law ousts § 1350 jurisdiction when no international norms
exist).
Any act of torture or other cruel, inhuman or degrading treatment or
punishment is an offense to human dignity and shall be condemned as
Pena also argues that "[i]f the conduct complained of is alleged to be a denial of the purposes of the Charter of the United Nations and as a
the act of the Paraguayan government, the suit is barred by the Act of violation of human rights and fundamental freedoms proclaimed in the
State doctrine." This argument was not advanced below, and is Universal Declaration of Human Rights.
therefore not before us on this appeal. We note in passing, however,
that we doubt whether action by a state official in violation of the
Constitution and laws of the Republic of Paraguay, and wholly
unratified by that nation's government, could properly be characterized Article 3
as an act of state. See Banco Nacionale de Cuba v. Sabbatino,
supra, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d  804; Underhill v. No state may permit or tolerate torture or other cruel, inhuman or
Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456 (1897). degrading treatment or punishment. Exceptional circumstances such
Paraguay's renunciation of torture as a legitimate instrument of state as a state of war or a threat of war, internal political instability or any
policy, however, does not strip the tort of its character as an other public emergency may not be invoked as a justification of torture
international law violation, if it in fact occurred under color of or other cruel, inhuman or degrading treatment or punishment.
government authority. See Declaration on the Protection of All Persons
from Being Subjected to Torture, supra note 11; cf. Ex parte
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (state official
subject to suit for constitutional violations despite immunity of state). Article 4

Finally, we have already stated that we do not reach the critical Each state shall, in accordance with the provisions of this Declaration,
question of forum non conveniens, since it was not considered below. take effective measures to prevent torture and other cruel, inhuman or
In closing, however, we note that the foreign relations implications of degrading treatment or punishment from being practiced within its
this and other issues the district court will be required to adjudicate on jurisdiction.
remand underscores the wisdom of the First Congress in vesting
jurisdiction over such claims in the federal district courts through the
Alien Tort Statute. Questions of this nature are fraught with implications
Article 5
for the nation as a whole, and therefore should not be left to the
potentially varying adjudications of the courts of the fifty states.
The training of law enforcement personnel and of other public officials
who may be responsible for persons deprived of their liberty shall
In the twentieth century the international community has come to
ensure that full account is taken of the prohibition against torture and
recognize the common danger posed by the flagrant disregard of basic
other cruel, inhuman or degrading treatment or punishment. This
human rights and particularly the right to be free of torture. Spurred first
prohibition shall also, where appropriate, be included in such general
by the Great War, and then the Second, civilized nations have banded
rules or instructions as are issued in regard to the duties and functions
together to prescribe acceptable norms of international behavior. From
of anyone who may be involved in the custody or treatment of such
the ashes of the Second World War arose the United Nations
persons.
Organization, amid hopes that an era of peace and cooperation had at
last begun. Though many of these aspirations have remained elusive
goals, that circumstance cannot diminish the true progress that has
been made. In the modern age, humanitarian and practical Article 6
considerations have combined to lead the nations of the world to
recognize that respect for fundamental human rights is in their
individual and collective interest. Among the rights universally Each state shall keep under systematic review interrogation methods
proclaimed by all nations, as we have noted, is the right to be free of and practices as well as arrangements for the custody and treatment of
physical torture. Indeed, for purposes of civil liability, the torturer has persons deprived of their liberty in its territory, with a view to preventing
become — like the pirate and slave trader before him — hostis humani any cases of torture or other cruel, inhuman or degrading treatment or
generis, an enemy of all mankind. Our holding today, giving effect to a punishment.
jurisdictional provision enacted by our First Congress, is a small but
important step in the fulfillment of the ageless dream to free all people
from brutal violence. Article 7

Article 1 Each state shall ensure that all acts of torture as defined in Article I are
offenses under its criminal law. The same shall apply in regard to acts
1. For the purpose of this Declaration, torture means any act by which which constitute participation in, complicity in, incitement to or an
severe pain or suffering, whether physical or mental, is intentionally attempt to commit torture.
inflicted by or at the instigation of a public official on a person for such
purposes as obtaining from him or a third person information or
confession, punishing him for an act he has committed or is suspected Article 8
of having committed, or intimidating him or other persons. It does not
include pain or suffering arising only from, inherent or incidental to
Any person who alleges he has been subjected to torture or other
cruel, inhuman or degrading treatment or punishment by or at the
139
instigation of a public official shall have the right to complain to, and to
have his case impartially examined by, the competent authorities of the
state concerned.

Article 9

Wherever there is reasonable ground to believe that an act of torture

as defined in Article I has been committed, the competent authorities of
the state concerned shall promptly proceed to an impartial investigation
even if there has been no formal complaint.

Article 10

If an investigation under Article 8 or Article 9 establishes that an act of

torture as defined in Article I appears to have been committed, criminal
proceedings shall be instituted against the alleged offender or
offenders in accordance with national law. If an allegation of other
forms of cruel, inhuman or degrading treatment or punishment is
considered to be well founded, the alleged offender or offenders shall
be subject to criminal, disciplinary or other appropriate proceedings.

Article 11

Where 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.

Article 12

Any statement which is established to have been made as a result of

torture or other cruel, inhuman or degrading treatment or punishment
may not be invoked as evidence against the person concerned or
against any other person in any proceeding.

140
 OPINION OF THE COURT
SOSA V. ALVAREZ-MACHAIN
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NOS. 03-339 AND 03-485
JOSE FRANCISCO SOSA, PETITIONER
03–339    v.
HUMBERTO ALVAREZ-MACHAIN et al.
UNITED STATES, PETITIONER
03–485   v.
HUMBERTO ALVAREZ-MACHAIN et al.
on writs of certiorari to the united states court of appeals for the ninth
circuit
[June 29, 2004]
   Justice Souter delivered the opinion of the Court.
   The two issues are whether respondent Alvarez-Machain’s allegation
that the Drug Enforcement Administration instigated his abduction from
Mexico for criminal trial in the United States supports a claim against
the Government under the Federal Tort Claims Act (FTCA or Act), 28
U. S. C. §1346(b)(1), §§2671–2680, and whether he may recover
under the Alien Tort Statute (ATS), 28 U. S. C. §1350. We hold that he
is not entitled to a remedy under either statute.
I
   We have considered the underlying facts before, United
States v. Alvarez-Machain, 504 U. S. 655 (1992). In 1985, an agent of
the Drug Enforcement Administration (DEA), Enrique Camarena-
Salazar, was captured on assignment in Mexico and taken to a house
in Guadalajara, where he was tortured over the course of a 2-day
interrogation, then murdered. Based in part on eyewitness testimony,
DEA officials in the United States came to believe that respondent
Humberto Alvarez-Machain (Alvarez), a Mexican physician, was
present at the house and acted to prolong the agent’s life in order to
extend the interrogation and torture. Id., at 657.
   In 1990, a federal grand jury indicted Alvarez for the torture and
murder of Camarena-Salazar, and the United States District Court for
the Central District of California issued a warrant for his arrest. 331
F. 3d 604, 609 (CA9 2003) (en banc). The DEA asked the Mexican
Government for help in getting Alvarez into the United States, but when
the requests and negotiations proved fruitless, the DEA approved a
plan to hire Mexican nationals to seize Alvarez and bring him to the
United States for trial. As so planned, a group of Mexicans, including
petitioner Jose Francisco Sosa, abducted Alvarez from his house, held
him overnight in a motel, and brought him by private plane to El Paso,
Texas, where he was arrested by federal officers. Ibid.
   Once in American custody, Alvarez moved to dismiss the indictment
on the ground that his seizure was “outrageous governmental
conduct,” Alvarez-Machain, 504 U. S., at 658, and violated the
extradition treaty between the United States and Mexico. The District
Court agreed, the Ninth Circuit affirmed, and we reversed, id., at 670,
holding that the fact of Alvarez’s forcible seizure did not affect the
141
jurisdiction of a federal court. The case was tried in 1992, and ended at
the close of the Government’s case, when the District Court granted
Alvarez’s motion for a judgment of acquittal.
   In 1993, after returning to Mexico, Alvarez began the civil action
before us here. He sued Sosa, Mexican citizen and DEA operative
Antonio Garate-Bustamante, five unnamed Mexican civilians, the
United States, and four DEA agents. 331 F. 3d, at 610. So far as it
matters here, Alvarez sought damages from the United States under
the FTCA, alleging false arrest, and from Sosa under the ATS, for a
violation of the law of nations. The former statute authorizes suit “for …
personal injury … caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his
office or employment.” 28 U. S. C. §1346(b)(1). The latter provides in
its entirety that “[t]he district courts shall have original jurisdiction of any
civil action by an alien for a tort only, committed in violation of the law
of nations or a treaty of the United States.” §1350.
   The District Court granted the Government’s motion to dismiss the
FTCA claim, but awarded summary judgment and $25,000 in damages
to Alvarez on the ATS claim. A three-judge panel of the Ninth Circuit
then affirmed the ATS judgment, but reversed the dismissal of the
FTCA claim. 266 F. 3d 1045 (2001).
   A divided en banc court came to the same conclusion. 331 F. 3d, at
641. As for the ATS claim, the court called on its own precedent, “that
[the ATS] not only provides federal courts with subject matter
jurisdiction, but also creates a cause of action for an alleged violation
of the law of nations.” Id., at 612. The Circuit then relied upon what it
called the “clear and universally recognized norm prohibiting arbitrary
arrest and detention,” id., at 620, to support the conclusion that
Alvarez’s arrest amounted to a tort in violation of international law. On
the FTCA claim, the Ninth Circuit held that, because “the DEA had no
authority to effect Alvarez’s arrest and detention in Mexico,” id., at 608,
the United States was liable to him under California law for the tort of
false arrest, id., at 640–641.
   We granted certiorari in these companion cases to clarify the scope
of both the FTCA and the ATS. 540 U. S. 1045 (2003). We now
reverse in each.
II
   The Government seeks reversal of the judgment of liability under the
FTCA on two principal grounds. It argues that the arrest could not have
been tortious, because it was authorized by 21 U. S. C. §878, setting
out the arrest authority of the DEA, and it says that in any event the
liability asserted here falls within the FTCA exception to waiver of
sovereign immunity for claims “arising in a foreign country,” 28 U. S. C.
§2680(k). We think the exception applies and decide on that ground.
A
   The FTCA “was designed primarily to remove the sovereign immunity
of the United States from suits in tort and, with certain specific
exceptions, to render the Government liable in tort as a private
individual would be under like circumstances.” Richards v. United
States, 369 U. S. 1, 6 (1962); see also 28 U. S. C. §2674. The Act
accordingly gives federal district courts jurisdiction over claims against
the United States for injury “caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the
scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.” §1346(b)(1). But the Act also limits its waiver of sovereign
immunity in a number of ways. See §2680 (no waiver as to, e.g., “[a]ny
claim arising out of the loss, miscarriage, or negligent transmission of
letters or postal matter,” “[a]ny claim for damages caused by the
imposition or establishment of a quarantine by the United States,” or
“[a]ny claim arising from the activities of the Panama Canal
Company”).
   Here the significant limitation on the waiver of immunity is the Act’s
exception for “[a]ny claim arising in a foreign country,” §2680(k), a
provision that on its face seems plainly applicable to the facts of this
case. In the Ninth Circuit’s view, once Alvarez was within the borders
of the United States, his detention was not tortious, see 331 F. 3d, at
636–637; the appellate court suggested that the Government’s liability
to Alvarez rested solely upon a false arrest claim. Id., at 640–641.
Alvarez’s arrest, however, was said to be “false,” and thus tortious,
only because, and only to the extent that, it took place and endured in
Mexico.[Footnote 1] The actions in Mexico are thus most naturally
understood as the kernel of a “claim arising in a foreign country,” and
barred from suit under the exception to the waiver of immunity.
   Notwithstanding the straightforward language of the foreign country
exception, the Ninth Circuit allowed the action to proceed under what
has come to be known as the “headquarters doctrine.” Some Courts of
Appeals, reasoning that “[t]he entire scheme of the FTCA focuses on
the place where the negligent or wrongful act or omission of the
government employee occurred,” Sami v. United States, 617 F. 2d
755, 761 (CADC 1979), have concluded that the foreign country
exception does not exempt the United States from suit “for acts or
omissions occurring here which have their operative effect in another
country.” Id., at 762 (refusing to apply §2680(k) where a communiqué
sent from the United States by a federal law enforcement officer
resulted in plaintiff’s wrongful detention in Germany).[Footnote 2]
Headquarters claims “typically involve allegations of negligent
guidance in an office within the United States of employees who cause
damage while in a foreign country, or of activities which take place
within a foreign country.” Cominotto v. United States, 802 F. 2d 1127,
1130 (CA9 1986). In such instances, these courts have concluded that
§2680(k) does not bar suit.
   The reasoning of the Ninth Circuit here was that, since Alvarez’s
abduction in Mexico was the direct result of wrongful acts of planning
and direction by DEA agents located in California, “Alvarez’s abduction
fits the headquarters doctrine like a glove.” 331 F. 3d, at 638.
“Working out of DEA offices in Los Angeles, [DEA agents] made the
decision to kidnap Alvarez and … gave [their Mexican intermediary]
precise instructions on whom to recruit, how to seize Alvarez, and how
he should be treated during the trip to the United States. DEA officials
in Washington, D. C., approved the details of the operation. After
Alvarez was abducted according to plan, DEA agents supervised his
transportation into the United States, telling the arrest team where to
land the plane and obtaining clearance in El Paso for landing. The
United States, and California in particular, served as command central
for the operation carried out in Mexico.” Id., at 638–639.
Thus, the Ninth Circuit held that Alvarez’s claim did not “aris[e] in” a
foreign country.
   The potential effect of this sort of headquarters analysis flashes the
yellow caution light. “[I]t will virtually always be possible to assert that
the negligent activity that injured the plaintiff [abroad] was the
consequence of faulty training, selection or supervision—or even less
than that, lack of careful training, selection or supervision—in the
United States.” Beattie v. United States, 756 F. 2d 91, 119 (CADC
1984) (Scalia, J., dissenting). Legal malpractice
claims, Knisley v. United States, 817 F. Supp. 680, 691– 693 (SD Ohio
1993), allegations of negligent medical care, Newborn v. United States,
238 F. Supp. 2d 145, 148–149 (DC 2002), and even slip-and-fall
cases, Eaglin v. United States, Dept. of Army, 794 F. 2d 981, 983–984
(CA5 1986), can all be repackaged as headquarters claims based on a
failure to train, a failure to warn, the offering of bad advice, or the
adoption of a negligent policy. If we were to approve the headquarters
exception to the foreign country exception, the “ ‘headquarters claim’
[would] become a standard part of FTCA litigation” in cases potentially
implicating the foreign country exception. Beattie, supra, at 119 (Scalia,
J., dissenting). The headquarters doctrine threatens to swallow the
foreign country exception whole, certainly at the pleadings stage.
142
   The need for skepticism is borne out by two considerations. One of
them is pertinent to cases like this one, where harm was arguably
caused both by individual action in a foreign country as well as by
planning in the United States; the other is suggested simply because
the harm occurred on foreign soil.
B
   Although not every headquarters case is rested on an explicit
analysis of proximate causation, this notion of cause is necessary to
connect the domestic breach of duty (at headquarters) with the action
in the foreign country (in a case like this) producing the foreign harm or
injury. It is necessary, in other words, to conclude that the act or
omission at home headquarters was sufficiently close to the ultimate
injury, and sufficiently important in producing it, to make it reasonable
to follow liability back to the headquarters behavior. Only in this way
could the behavior at headquarters properly be seen as the act or
omission on which all FTCA liability must rest under §2675.
See, e.g., Cominotto, supra, at 1130 (“[A] headquarters claim exists
where negligent acts in the United States proximately cause harm in a
foreign country”); Eaglin, supra, at 983 (noting that headquarters cases
require “a plausible proximate nexus or connection between acts or
omissions in the United States and the resulting damage or injury in a
foreign country”).
   Recognizing this connection of proximate cause between domestic
behavior and foreign harm or injury is not, however, sufficient of itself
to bar application of the foreign country exception to a claim resting on
that same foreign consequence. Proximate cause is causation
substantial enough and close enough to the harm to be recognized by
law, but a given proximate cause need not be, and frequently is not,
the exclusive proximate cause of harm. See, e.g., 57A Am. Jur. 2d
§529 (2004) (discussing proper jury instructions in cases involving
multiple proximate causes); Beattie, supra, at 121 (Scalia, J.,
dissenting) (“[I]n the ordinary case there may be several points along
the chain of causality” pertinent to the enquiry). Here, for example,
assuming that the direction by DEA officials in California was a
proximate cause of the abduction, the actions of Sosa and others in
Mexico were just as surely proximate causes, as well. Thus,
understanding that California planning was a legal cause of the harm in
no way eliminates the conclusion that the claim here arose from harm
proximately caused by acts in Mexico. At most, recognition of
additional domestic causation under the headquarters doctrine leaves
an open question whether the exception applies to the claim.
C
   Not only does domestic proximate causation under the headquarters
doctrine fail to eliminate application of the foreign country exception,
but there is good reason to think that Congress understood a claim
“arising in” a foreign country in such a way as to bar application of the
headquarters doctrine. There is good reason, that is, to conclude that
Congress understood a claim “arising in a foreign country” to be a
claim for injury or harm occurring in a foreign country. 28 U. S. C.
§2680(k). This sense of “arising in” was the common usage in state
borrowing statutes contemporary with the Act, which operated to
determine which State’s statute of limitations should apply in cases
involving transjurisdictional facts. When the FTCA was passed, the
general rule, as set out in various state statutes, was that “a cause of
action arising in another jurisdiction, which is barred by the laws of that
jurisdiction, will [also] be barred in the domestic courts.” 41 A. L. R. 4th
1025, 1029, §2 (1985). These borrowing statutes were typically
restricted by express terms to situations where a cause of action was
time barred in the State “where [the] cause of action arose, or accrued,
or originated.” 75 A. L. R. 203, 211 (1931) (emphasis in original).
Critically for present purposes, these variations on the theme of
“arising in” were interpreted in tort cases in just the same way that we
read the FTCA today. A commentator noted in 1962 that, for the
purposes of these borrowing statutes, “[t]he courts unanimously hold
that a cause of action sounding in tort arises in the jurisdiction where
the last act necessary to establish liability occurred”; i.e., “the
jurisdiction in which injury was received.” Ester, Borrowing Statutes of
Limitation and Conflict of Laws, 15 U. Fla. L. Rev. 33, 47.
   There is, moreover, specific reason to believe that using “arising in”
as referring to place of harm was central to the object of the foreign
country exception. Any tort action in a court of the United States based
on the acts of a Government employee causing harm outside the State
of the district court in which the action is filed requires a determination
of the source of the substantive law that will govern liability. When the
FTCA was passed, the dominant principle in choice of law analysis for
tort cases was lex loci delicti: courts generally applied the law of the
place where the injury occurred. See Richards v. United States, 369 U.
S., at 11–12 (“The general conflict-of-laws rule, followed by a vast
majority of the States, is to apply the law of the place of injury to the
substantive rights of the parties” (footnote omitted)); see also
Restatement (First) of Conflict of Laws §379 (1934) (defendant’s
liability determined by “the law of the place of wrong”);[Footnote 3] id.,
§377, Note 1 (place of wrong for torts involving bodily harm is “the
place where the harmful force takes effect upon the body” (emphasis in
original)); ibid. (same principle for torts of fraud and torts involving
harm to property).[Footnote 4] For a plaintiff injured in a foreign
country, then, the presumptive choice in American courts under the
traditional rule would have been to apply foreign law to determine the
tortfeasor’s liability. See, e.g., Day & Zimmermann,
Inc. v. Challoner, 423 U. S. 3 (1975) (per curiam) (noting that Texas
would apply Cambodian law to wrongful-death action involving
explosion in Cambodia of an artillery round manufactured in United
States); Thomas v. FMC Corp., 610 F. Supp. 912 (MD Ala. 1985)
(applying German law to determine American manufacturer’s liability
for negligently designing and manufacturing a Howitzer that killed
decedent in Germany); Quandt v. Beech Aircraft Corp., 317 F. Supp.
1009 (Del. 1970) (noting that Italian law applies to allegations of
negligent manufacture in Kansas that resulted in an airplane crash in
Italy); Manos v. Trans World Airlines, 295 F. Supp. 1170 (ND Ill. 1969)
(applying Italian law to determine American corporation’s liability for
negligent manufacture of a plane that crashed in Italy); see
also, e.g., Dallas v. Whitney, 118 W. Va. 106, 188 S. E. 766 (1936)
(Ohio law applied where blasting operations on a West Virginia
highway caused property damage in Ohio); Cameron v. Vandergriff, 53
Ark. 381, 13 S. W. 1092 (1890) (Arkansas law applied where a blasting
of a rock in Indian territory inflicted injury on plaintiff in Arkansas).
   The application of foreign substantive law exemplified in these cases
was, however, what Congress intended to avoid by the foreign country
exception. In 1942, the House Committee on the Judiciary considered
an early draft of the FTCA that would have exempted all claims “arising
in a foreign country in behalf of an alien.” H. R. 5373, 77th Cong., 2d
Sess., §303(12). The bill was then revised, at the suggestion of the
Attorney General, to omit the last five words. In explaining the
amendment to the House Committee on the Judiciary, Assistant
Attorney General Shea said that
“[c]laims arising in a foreign country have been exempted from this bill,
H. R. 6463, whether or not the claimant is an alien. Since liability is to
be determined by the law of the situs of the wrongful act or omission it
is wise to restrict the bill to claims arising in this country. This seems
desirable because the law of the particular State is being applied.
Otherwise, it will lead I think to a good deal of difficulty.” Hearings on
H. R. 5373 et al. before the House Committee on the Judiciary, 77th
Cong., 2d Sess., 35 (1942).
The amended version, which was enacted into law and constitutes the
current text of the foreign country exception, 28 U. S. C. §2680(k), thus
codified Congress’s “unwilling[ness] to subject the United States to
liabilities depending upon the laws of a foreign power.” United
States v. Spelar, 338 U. S. 217, 221 (1949). See also Sami v. United
States, 617 F. 2d, at 762 (noting Spelar’s explanation but attempting to
recast the object behind the foreign country exception); Leaf v. United
States, 588 F. 2d 733, 736, n. 3 (CA9 1978).
   The object being to avoid application of substantive foreign law,
Congress evidently used the modifier “arising in a foreign country” to
143
refer to claims based on foreign harm or injury, the fact that would
trigger application of foreign law to determine liability. That object,
addressed by the quoted phrase, would obviously have been thwarted,
however, by applying the headquarters doctrine, for that doctrine would
have displaced the exception by recasting claims of foreign injury as
claims not arising in a foreign country because some planning or
negligence at domestic headquarters was their cause.[Footnote 5] And
that, in turn, would have resulted in applying foreign law of the place of
injury, in accordance with the choice-of-law rule of the headquarters
jurisdiction.
   Nor, as a practical matter, can it be said that the headquarters
doctrine has outgrown its tension with the exception. It is true that the
traditional approach to choice of substantive tort law has lost favor,
Simson, The Choice-of-Law Revolution in the United States: Notes on
Rereading Von Mehren, 36 Cornell Int’l L. J. 125, 125 (2003) (“The
traditional methodology of place of wrong … has receded in
importance, and new approaches and concepts such as governmental
interest analysis, most significant relationship, and better rule of law
have taken center stage” (footnotes omitted)).[Footnote 6] But a good
many States still employ essentially the same choice of law analysis in
tort cases that the First Restatement exemplified. Symeonides, Choice
of Law in the American Courts, 51 Am. J. Comp. L. 1, 4–5 (2003) (“Ten
states continue to adhere to the traditional method in tort conflicts”);
see, e.g., Raskin v. Allison, 30 Kan. App. 2d 1240, 1242, 1241, 57
P. 3d 30, 32 (2002) (under “traditional choice of law principles largely
reflected in the original Restatement,” Mexican law applied to boating
accident in Mexican waters because “the injuries were sustained in
Mexican waters”).
   Equally to the point is that in at least some cases that the Court of
Appeals’s approach would treat as arising at headquarters, not the
foreign country, even the later methodologies of choice point to the
application of foreign law. The Second Restatement itself, encouraging
the general shift towards using flexible balancing analysis to inform
choice of law,[Footnote 7] includes a default rule for tort cases rooted
in the traditional approach: “[i]n an action for a personal injury, the local
law of the state where the injury occurred determines the rights and
liabilities of the parties, unless … some other state has a more
significant relationship … to the occurrence and the parties.”
Restatement (Second) of Conflict of Laws §146 (1969); see also id.,
Comment e (“On occasion, conduct and personal injury will occur in
different states. In such instances, the local law of the state of injury
will usually be applied to determine most issues involving the tort”). In
practice, then, the new dispensation frequently leads to the traditional
application of the law of the jurisdiction of injury.
See, e.g., Dorman v. Emerson Elec. Co., 23 F. 3d 1354 (CA8 1994)
(applying Canadian law where negligent saw design in Missouri
caused injury in Canada); Bing v. Halstead, 495 F. Supp. 517 (SDNY
1980) (applying Costa Rican law where letter written and mailed in
Arizona caused mental distress in Costa Rica); McKinnon v. F. H.
Morgan & Co., 170 Vt. 422, 750 A. 2d 1026 (2000) (applying Canadian
law where a defective bicycle sold in Vermont caused injuries in
Quebec).
   In sum, current flexibility in choice of law methodology gives no
assurance against applying foreign substantive law if federal courts
follow headquarters doctrine to assume jurisdiction over tort claims
against the Government for foreign harm. Based on the experience just
noted, the expectation is that application of the headquarters doctrine
would in fact result in a substantial number of cases applying the very
foreign law the foreign country exception was meant to avoid.[Footnote
8]
   Before concluding that headquarters analysis should have no part in
applying the foreign country exception, however, a word is needed to
answer an argument for selective application of headquarters doctrine,
that it ought to be permitted when a State’s choice of law approach
would not apply the foreign law of place of injury. See In re “Agent
Orange” Product Liability Litigation, 580 F. Supp. 1242, 1254 (EDNY
1984) (noting that the purpose of the exception did not apply to the
litigation at hand because foreign law was not implicated). The point
would be well taken, of course, if Congress had written the exception to
apply when foreign law would be applied. But that is not what
Congress said. Its provision of an exception when a claim arises in a
foreign country was written at a time when the phrase “arising in” was
used in state statutes to express the position that a claim arises where
the harm occurs; and the odds are that Congress meant simply this
when it used the “arising in” language.[Footnote 9] Finally, even if it
were not a stretch to equate “arising in a foreign country” with
“implicating foreign law,” the result of accepting headquarters analysis
for foreign injury cases in which no application of foreign law would
ensue would be a scheme of federal jurisdiction that would vary from
State to State, benefiting or penalizing plaintiffs accordingly. The idea
that Congress would have intended any such jurisdictional variety is
too implausible to drive the analysis to the point of grafting even a
selective headquarters exception onto the foreign country exception
itself. We therefore hold that the FTCA’s foreign country exception bars
all claims based on any injury suffered in a foreign country, regardless
of where the tortious act or omission occurred.
III
   Alvarez has also brought an action under the ATS against petitioner,
Sosa, who argues (as does the United States supporting him) that
there is no relief under the ATS because the statute does no more than
vest federal courts with jurisdiction, neither creating nor authorizing the
courts to recognize any particular right of action without further
congressional action. Although we agree the statute is in terms only
jurisdictional, we think that at the time of enactment the jurisdiction
enabled federal courts to hear claims in a very limited category defined
by the law of nations and recognized at common law. We do not
believe, however, that the limited, implicit sanction to entertain the
handful of international law cum common law claims understood in
1789 should be taken as authority to recognize the right of action
asserted by Alvarez here.
A
   Judge Friendly called the ATS a “legal Lohengrin,” IIT v. Vencap,
Ltd., 519 F.2d 1001, 1015 (CA2 1975); “no one seems to know whence
it came,” ibid., and for over 170 years after its enactment it provided
jurisdiction in only one case. The first Congress passed it as part of the
Judiciary Act of 1789, in providing that the new federal district courts
“shall also have cognizance, concurrent with the courts of the several
States, or the circuit courts, as the case may be, of all causes where
an alien sues for a tort only in violation of the law of nations or a treaty
of the United States.” Act of Sept. 24, 1789, ch. 20, §9(b), 1 Stat. 79.
[Footnote 10]
   The parties and amici here advance radically different historical
interpretations of this terse provision. Alvarez says that the ATS was
intended not simply as a jurisdictional grant, but as authority for the
creation of a new cause of action for torts in violation of international
law. We think that reading is implausible. As enacted in 1789, the ATS
gave the district courts “cognizance” of certain causes of action, and
the term bespoke a grant of jurisdiction, not power to mold substantive
law. See, e.g., The Federalist No. 81, pp. 447, 451 (J. Cooke ed. 1961)
(A. Hamilton) (using “jurisdiction” interchangeably with “cognizance”).
The fact that the ATS was placed in §9 of the Judiciary Act, a statute
otherwise exclusively concerned with federal-court jurisdiction, is itself
support for its strictly jurisdictional nature. Nor would the distinction
between jurisdiction and cause of action have been elided by the
drafters of the Act or those who voted on it. As Fisher Ames put it,
“there is a substantial difference between the jurisdiction of courts and
rules of decision.” 1 Annals of Cong. 807 (Gales ed. 1834). It is
unsurprising, then, that an authority on the historical origins of the ATS
has written that “section 1350 clearly does not create a statutory cause
of action,” and that the contrary suggestion is “simply frivolous.” Casto,
The Federal Courts’ Protective Jurisdiction Over Torts Committed in
Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479, 480 (1986)
(hereinafter Casto, Law of Nations); Cf. Dodge, The Constitutionality of
the Alien Tort Statute: Some Observations on Text and Context, 42 Va.
J. Int’l L. 687, 689 (2002). In sum, we think the statute was intended as
144
jurisdictional in the sense of addressing the power of the courts to
entertain cases concerned with a certain subject.
   But holding the ATS jurisdictional raises a new question, this one
about the interaction between the ATS at the time of its enactment and
the ambient law of the era. Sosa would have it that the ATS was
stillborn because there could be no claim for relief without a further
statute expressly authorizing adoption of causes of
action. Amici professors of federal jurisdiction and legal history take a
different tack, that federal courts could entertain claims once the
jurisdictional grant was on the books, because torts in violation of the
law of nations would have been recognized within the common law of
the time. Brief for Vikram Amar et al. as Amici Curiae. We think history
and practice give the edge to this latter position.
1
   “When the United States declared their independence, they were
bound to receive the law of nations, in its modern state of purity and
refinement.” Ware v. Hylton, 3 Dall. 199, 281 (1796) (Wilson, J.). In the
years of the early Republic, this law of nations comprised two principal
elements, the first covering the general norms governing the behavior
of national states with each other: “the science which teaches the
rights subsisting between nations or states, and the obligations
correspondent to those rights,” E. de Vattel, The Law of Nations,
Preliminaries §3 (J. Chitty et al. transl. and ed. 1883) (hereinafter
Vattel) (footnote omitted), or “that code of public instruction which
defines the rights and prescribes the duties of nations, in their
intercourse with each other,” 1 James Kent Commentaries *1. This
aspect of the law of nations thus occupied the executive and legislative
domains, not the judicial. See 4 W. Blackstone, Commentaries on the
Laws of England 68 (1769) (hereinafter Commentaries) (“[O]ffenses
against” the law of nations are “principally incident to whole states or
nations”).
   The law of nations included a second, more pedestrian element,
however, that did fall within the judicial sphere, as a body of judge-
made law regulating the conduct of individuals situated outside
domestic boundaries and consequently carrying an international savor.
To Blackstone, the law of nations in this sense was implicated “in
mercantile questions, such as bills of exchange and the like; in all
marine causes, relating to freight, average, demurrage, insurances,
bottomry … ; [and] in all disputes relating to prizes, to shipwrecks, to
hostages, and ransom bills.” Id., at 67. The law merchant emerged
from the customary practices of international traders and admiralty
required its own transnational regulation. And it was the law of nations
in this sense that our precursors spoke about when the Court
explained the status of coast fishing vessels in wartime grew from
“ancient usage among civilized nations, beginning centuries ago, and
gradually ripening into a rule of international law … .” The Paquete
Habana, 175 U. S. 677, 686 (1900).
   There was, finally, a sphere in which these rules binding individuals
for the benefit of other individuals overlapped with the norms of state
relationships. Blackstone referred to it when he mentioned three
specific offenses against the law of nations addressed by the criminal
law of England: violation of safe conducts, infringement of the rights of
ambassadors, and piracy. 4 Commentaries 68. An assault against an
ambassador, for example, impinged upon the sovereignty of the
foreign nation and if not adequately redressed could rise to an issue of
war. See Vattel 463–464. It was this narrow set of violations of the law
of nations, admitting of a judicial remedy and at the same time
threatening serious consequences in international affairs, that was
probably on minds of the men who drafted the ATS with its reference to
tort.
2
   Before there was any ATS, a distinctly American preoccupation with
these hybrid international norms had taken shape owing to the
distribution of political power from independence through the period of
confederation. The Continental Congress was hamstrung by its inability
to “cause infractions of treaties, or of the law of nations to be
punished,” J. Madison, Journal of the Constitutional Convention 60 (E.
Scott ed. 1893), and in 1781 the Congress implored the States to
vindicate rights under the law of nations. In words that echo
Blackstone, the congressional resolution called upon state legislatures
to “provide expeditious, exemplary, and adequate punishment” for “the
violation of safe conducts or passports, … of hostility against such as
are in amity, … with the United States, … infractions of the immunities
of ambassadors and other public ministers … [and] “infractions of
treaties and conventions to which the United States are a party.” 21
Journals of the Continental Congress 1136–1137 (G. Hunt ed. 1912)
(hereinafter Journals of the Continental Congress). The resolution
recommended that the States “authorise suits … for damages by the
party injured, and for compensation to the United States for damage
sustained by them from an injury done to a foreign power by a
citizen.” Id., at 1137; cf. Vattel 463–464 (“Whoever offends … a public
minister … should be punished … , and … the state should, at the
expense of the delinquent, give full satisfaction to the sovereign who
has been offended in the person of his minister”). Apparently only one
State acted upon the recommendation, see First Laws of the State of
Connecticut 82, 83 (J. Cushing ed. 1982) (1784 compilation; exact date
of Act unknown), but Congress had done what it could to signal a
commitment to enforce the law of nations.
   Appreciation of the Continental Congress’s incapacity to deal with
this class of cases was intensified by the so-called Marbois incident of
May 1784, in which a French adventurer, Longchamps, verbally and
physically assaulted the Secretary of the French Legion in
Philadelphia. See Respublica v. De Longchamps, 1 Dall. 111 (O. T.
Phila. 1784).[Footnote 11] Congress called again for state legislation
addressing such matters, and concern over the inadequate vindication
of the law of nations persisted through the time of the constitutional
convention. See 1 Records of the Federal Convention of 1787, p. 25
(M. Farrand ed. 1911) (speech of J. Randolph). During the Convention
itself, in fact, a New York City constable produced a reprise of the
Marbois affair and Secretary Jay reported to Congress on the Dutch
Ambassador’s protest, with the explanation that “the federal
government does not appear … to be vested with any judicial Powers
competent to the Cognizance and Judgment of such Cases.” Casto,
Law of Nations 494, and n. 152.
   The Framers responded by vesting the Supreme Court with original
jurisdiction over “all Cases affecting Ambassadors, other public
ministers and Consuls.” U. S. Const., Art. III, §2, and the First
Congress followed through. The Judiciary Act reinforced this Court’s
original jurisdiction over suits brought by diplomats, see 1 Stat. 80, ch.
20, §13, created alienage jurisdiction, §11 and, of course, included the
ATS, §9. See generally Randall, Federal Jurisdiction over International
Law Claims: Inquiries into the Alien Tort Statute, 18 N. Y. U. J. Int’l L. &
Pol. 1, 15–21 (1985) (discussing foreign affairs implications of the
Judiciary Act); W. Casto, The Supreme Court in the Early Republic 27–
53 (1995).
3
   Although Congress modified the draft of what became the Judiciary
Act, see generally Warren, New Light on the History of the Federal
Judiciary Act of 1789, 37 Harv. L. Rev. 49 (1923), it made hardly any
changes to the provisions on aliens, including what became the ATS,
see Casto, Law of Nations 498. There is no record of congressional
discussion about private actions that might be subject to the
jurisdictional provision, or about any need for further legislation to
create private remedies; there is no record even of debate on the
section. Given the poverty of drafting history, modern commentators
have necessarily concentrated on the text, remarking on the innovative
use of the word “tort,” see, e.g., Sweeney, A Tort only in Violation of
the Law of Nations, 18 Hastings Int’l & Comp. L. Rev. 445 (1995)
(arguing that “tort” refers to the law of prize), and the statute’s mixture
of terms expansive (“all suits”), see, e.g., Casto, Law of Nations 500,
and restrictive (“for a tort only”), see, e.g., Randall, supra, at 28–31
(limiting suits to torts, as opposed to commercial actions, especially by
British plaintiffs).[Footnote 12] The historical scholarship has also
145
placed the ATS within the competition between federalist and
antifederalist forces over the national role in foreign relations. Id., at
22–23 (nonexclusiveness of federal jurisdiction under the ATS may
reflect compromise). But despite considerable scholarly attention, it is
fair to say that a consensus understanding of what Congress intended
has proven elusive.
   Still, the history does tend to support two propositions. First, there is
every reason to suppose that the First Congress did not pass the ATS
as a jurisdictional convenience to be placed on the shelf for use by a
future Congress or state legislature that might, some day, authorize the
creation of causes of action or itself decide to make some element of
the law of nations actionable for the benefit of foreigners. The anxieties
of the preconstitutional period cannot be ignored easily enough to think
that the statute was not meant to have a practical effect. Consider that
the principal draftsman of the ATS was apparently Oliver Ellsworth,
[Footnote 13] previously a member of the Continental Congress that
had passed the 1781 resolution and a member of the Connecticut
Legislature that made good on that congressional request. See
generally W. Brown, The Life of Oliver Ellsworth (1905). Consider, too,
that the First Congress was attentive enough to the law of nations to
recognize certain offenses expressly as criminal, including the three
mentioned by Blackstone. See An Act for the Punishment of Certain
Crimes Against the United States, §8, 1 Stat. 113–114 (murder or
robbery, or other capital crimes, punishable as piracy if committed on
the high seas), and §28, id., at 118 (violation of safe conducts and
assaults against ambassadors punished by imprisonment and fines
described as “infract[ions of] the law of nations”). It would have been
passing strange for Ellsworth and this very Congress to vest federal
courts expressly with jurisdiction to entertain civil causes brought by
aliens alleging violations of the law of nations, but to no effect whatever
until the Congress should take further action. There is too much in the
historical record to believe that Congress would have enacted the ATS
only to leave it lying fallow indefinitely.
   The second inference to be drawn from the history is that Congress
intended the ATS to furnish jurisdiction for a relatively modest set of
actions alleging violations of the law of nations. Uppermost in the
legislative mind appears to have been offenses against ambassadors,
see id., at 118; violations of safe conduct were probably understood to
be actionable, ibid., and individual actions arising out of prize captures
and piracy may well have also been contemplated. Id., at 113–114. But
the common law appears to have understood only those three of the
hybrid variety as definite and actionable, or at any rate, to have
assumed only a very limited set of claims. As Blackstone had put it,
“offences against this law [of nations] are principally incident to whole
states or nations,” and not individuals seeking relief in court. 4
Commentaries 68.
4
   The sparse contemporaneous cases and legal materials referring to
the ATS tend to confirm both inferences, that some, but few, torts in
violation of the law of nations were understood to be within the
common law. In Bolchos v. Darrel, 3 F. Cas. 810 (No. 1,607) (S. C.
1795), the District Court’s doubt about admiralty jurisdiction over a suit
for damages brought by a French privateer against the mortgagee of a
British slave ship was assuaged by assuming that the ATS was a
jurisdictional basis for the court’s action. Nor is Moxon v. The Fanny,
17 F. Cas. 942 (No. 9, 895) (Pa. 1793), to the contrary, a case in which
the owners of a British ship sought damages for its seizure in United
States waters by a French privateer. The District Court said in dictum
that the ATS was not the proper vehicle for suit because “[i]t cannot be
called a suit for a tort only, when the property, as well as damages for
the supposed trespass, are sought for.” Id., at 948. But the judge gave
no intimation that further legislation would have been needed to give
the District Court jurisdiction over a suit limited to damages.
   Then there was the 1795 opinion of Attorney General William
Bradford, who was asked whether criminal prosecution was available
against Americans who had taken part in the French plunder of a
British slave colony in Sierra Leone. 1 Op. Atty. Gen. 57. Bradford was
uncertain, but he made it clear that a federal court was open for the
prosecution of a tort action growing out of the episode:
“But there can be no doubt that the company or individuals who have
been injured by these acts of hostility have a remedy by a civil suit in
the courts of the United States; jurisdiction being expressly given to
these courts in all cases where an alien sues for a tort only, in violation
of the laws of nations, or a treaty of the United States … .” Id., at 59.
   Although it is conceivable that Bradford (who had prosecuted in the
Marbois incident, see Casto, Law of Nations 503, n. 201) assumed that
there had been a violation of a treaty, 1 Op. Atty. Gen., at 58, that is
certainly not obvious, and it appears likely that Bradford understood the
ATS to provide jurisdiction over what must have amounted to common
law causes of action.
B    We think it is correct, then, to assume that the First Congress
   Against these indications that the ATS was meant to underwrite
litigation of a narrow set of common law actions derived from the law of
nations, Sosa raises two main objections. First, he claims that this
conclusion makes no sense in view of the Continental Congress’s 1781
recommendation to state legislatures to pass laws authorizing such
suits. Sosa thinks state legislation would have been “absurd,” Reply
Brief for Petitioner Sosa 5, if common law remedies had been
available. Second, Sosa juxtaposes Blackstone’s treatise mentioning
violations of the law of nations as occasions for criminal remedies,
against the statute’s innovative reference to “tort,” as evidence that
there was no familiar set of legal actions for exercise of jurisdiction
under the ATS. Neither argument is convincing.
   The notion that it would have been absurd for the Continental
Congress to recommend that States pass positive law to duplicate
remedies already available at common law rests on a
misunderstanding of the relationship between common law and
positive law in the late 18th century, when positive law was frequently
relied upon to reinforce and give standard expression to the “brooding
omnipresence”[Footnote 14] of the common law then thought
discoverable by reason. As Blackstone clarified the relation between
positive law and the law of nations, “those acts of parliament, which
have from time to time been made to enforce this universal law, or to
facilitate the execution of [its] decisions, are not to be considered as
introductive of any new rule, but merely as declaratory of the old
fundamental constitutions of the kingdom; without which it must cease
to be a part of the civilized world.” 4 Commentaries 67. Indeed, Sosa’s
argument is undermined by the 1781 resolution on which he principally
relies. Notwithstanding the undisputed fact (per Blackstone) that the
common law afforded criminal law remedies for violations of the law of
nations, the Continental Congress encouraged state legislatures to
pass criminal statutes to the same effect, and the first Congress did the
same, supra, at 23.[Footnote 15]
   Nor are we convinced by Sosa’s argument that legislation conferring
a right of action is needed because Blackstone treated international
law offenses under the rubric of “public wrongs,” whereas the ATS
uses a word, “tort,” that was relatively uncommon in the legal
vernacular of the day. It is true that Blackstone did refer to what he
deemed the three principal offenses against the law of nations in the
course of discussing criminal sanctions, observing that it was in the
interest of sovereigns “to animadvert upon them with a becoming
severity, that the peace of the world may be maintained,” 4
Commentaries 68.[Footnote 16] But Vattel explicitly linked the criminal
sanction for offenses against ambassadors with the requirement that
the state, “at the expense of the delinquent, give full satisfaction to the
sovereign who has been offended in the person of his minister.” Vattel
463–464. Cf. Stephens, Individuals Enforcing International Law: The
Comparative and Historical Context, 52 DePaul L. Rev. 433, 444
(2002) (observing that a “mixed approach to international law
violations, encompassing both criminal prosecution … and
compensation to those injured through a civil suit, would have been
familiar to the founding generation”). The 1781 resolution goes a step
further in showing that a private remedy was thought necessary for
146
diplomatic offenses under the law of nations. And the Attorney
General’s Letter of 1795, as well as the two early federal precedents
discussing the ATS, point to a prevalent assumption that Congress did
not intend the ATS to sit on the shelf until some future time when it
might enact further legislation.
   In sum, although the ATS is a jurisdictional statute creating no new
causes of action, the reasonable inference from the historical materials
is that the statute was intended to have practical effect the moment it
became law. The jurisdictional grant is best read as having been
enacted on the understanding that the common law would provide a
cause of action for the modest number of international law violations
with a potential for personal liability at the time.
IV
understood that the district courts would recognize private causes of
action for certain torts in violation of the law of nations, though we have
found no basis to suspect Congress had any examples in mind beyond
those torts corresponding to Blackstone’s three primary offenses:
violation of safe conducts, infringement of the rights of ambassadors,
and piracy. We assume, too, that no development in the two centuries
from the enactment of §1350 to the birth of the modern line of cases
beginning with Filartiga v. Pena-Irala, 630 F. 2d 876 (CA2 1980), has
categorically precluded federal courts from recognizing a claim under
the law of nations as an element of common law; Congress has not in
any relevant way amended §1350 or limited civil common law power by
another statute. Still, there are good reasons for a restrained
conception of the discretion a federal court should exercise in
considering a new cause of action of this kind. Accordingly, we think
courts should require any claim based on the present-day law of
nations to rest on a norm of international character accepted by the
civilized world and defined with a specificity comparable to the features
of the 18th-century paradigms we have recognized. This requirement is
fatal to Alvarez’s claim.
A
   A series of reasons argue for judicial caution when considering the
kinds of individual claims that might implement the jurisdiction
conferred by the early statute. First, the prevailing conception of the
common law has changed since 1789 in a way that counsels restraint
in judicially applying internationally generated norms. When §1350 was
enacted, the accepted conception was of the common law as “a
transcendental body of law outside of any particular State but
obligatory within it unless and until changed by statute.” Black and
White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer
Co., 276 U. S. 518, 533 (1928) (Holmes, J., dissenting). Now, however,
in most cases where a court is asked to state or formulate a common
law principle in a new context, there is a general understanding that the
law is not so much found or discovered as it is either made or created.
Holmes explained famously in 1881 that
“in substance the growth of the law is legislative … [because t]he very
considerations which judges most rarely mention, and always with an
apology, are the secret root from which the law draws all the juices of
life. I mean, of course, considerations of what is expedient for the
community concerned.” The Common Law 31–32 (Howe ed. 1963).
One need not accept the Holmesian view as far as its ultimate
implications to acknowledge that a judge deciding in reliance on an
international norm will find a substantial element of discretionary
judgment in the decision.
   Second, along with, and in part driven by, that conceptual
development in understanding common law has come an equally
significant rethinking of the role of the federal courts in making it. Erie
R. Co. v. Tompkins, 304 U. S. 64 (1938), was the watershed in which
we denied the existence of any federal “general” common law, id., at
78, which largely withdrew to havens of specialty, some of them
defined by express congressional authorization to devise a body of law Rights declared that the substantive provisions of the document were
directly, e.g., Textile Workers v. Lincoln Mills of Ala., 353 U. S. not self-executing. 138 Cong. Rec. 8071 (1992).
448 (1957) (interpretation of collective-bargaining agreements); Fed.
Rule Evid. 501 (evidentiary privileges in federal-question cases).
B
Elsewhere, this Court has thought it was in order to create federal
common law rules in interstitial areas of particular federal
interest. E.g., United States v. Kimbell Foods, Inc., 440 U. S. 715, 726–    These reasons argue for great caution in adapting the law of nations
727 (1979).[Footnote 17] And although we have even assumed to private rights. Justice Scalia, post, p. 1 (opinion concurring in part
competence to make judicial rules of decision of particular importance and concurring in judgment) concludes that caution is too hospitable,
to foreign relations, such as the act of state doctrine, see Banco and a word is in order to summarize where we have come so far and to
Nacional de Cuba v. Sabbatino, 376 U. S. 398, 427 (1964), the general focus our difference with him on whether some norms of today’s law of
practice has been to look for legislative guidance before exercising nations may ever be recognized legitimately by federal courts in the
innovative authority over substantive law. It would be remarkable to absence of congressional action beyond §1350. All Members of the
take a more aggressive role in exercising a jurisdiction that remained Court agree that §1350 is only jurisdictional. We also agree, or at least
largely in shadow for much of the prior two centuries. Justice Scalia does not dispute, post, at 2, 7, that the jurisdiction was
originally understood to be available to enforce a small number of
international norms that a federal court could properly recognize as
   Third, this Court has recently and repeatedly said that a decision to
within the common law enforceable without further statutory authority.
create a private right of action is one better left to legislative judgment
Justice Scalia concludes, however, that two subsequent developments
in the great majority of cases. Correctional Services
should be understood to preclude federal courts from recognizing any
Corp. v. Malesko, 534 U. S. 61, 68 (2001); Alexander v. Sandoval, 532
further international norms as judicially enforceable today, absent
U. S. 275, 286–287 (2001). The creation of a private right of action
further congressional action. As described before, we now tend to
raises issues beyond the mere consideration whether underlying
understand common law not as a discoverable reflection of universal
primary conduct should be allowed or not, entailing, for example, a
reason but, in a positivistic way, as a product of human choice. And we
decision to permit enforcement without the check imposed by
now adhere to a conception of limited judicial power first expressed in
prosecutorial discretion. Accordingly, even when Congress has made it
reorienting federal diversity jurisdiction, see Erie R. Co. v.
clear by statute that a rule applies to purely domestic conduct, we are
Tompkins, 304 U. S. 64 (1938), that federal courts have no authority to
reluctant to infer intent to provide a private cause of action where the
derive “general” common law.
statute does not supply one expressly. While the absence of
congressional action addressing private rights of action under an
international norm is more equivocal than its failure to provide such a    Whereas Justice Scalia sees these developments as sufficient to
right when it creates a statute, the possible collateral consequences of close the door to further independent judicial recognition of actionable
making international rules privately actionable argue for judicial international norms, other considerations persuade us that the judicial
caution. power should be exercised on the understanding that the door is still
ajar subject to vigilant doorkeeping, and thus open to a narrow class of
international norms today. Erie did not in terms bar any judicial
   Fourth, the subject of those collateral consequences is itself a reason
recognition of new substantive rules, no matter what the
for a high bar to new private causes of action for violating international
circumstances, and post-Erie understanding has identified limited
law, for the potential implications for the foreign relations of the United
enclaves in which federal courts may derive some substantive law in a
States of recognizing such causes should make courts particularly
common law way. For two centuries we have affirmed that the
wary of impinging on the discretion of the Legislative and Executive
domestic law of the United States recognizes the law of nations.
Branches in managing foreign affairs. It is one thing for American
See, e.g., Sabbatino, 376 U. S., at 423 (“[I]t is, of course, true that
courts to enforce constitutional limits on our own State and Federal
United States courts apply international law as a part of our own in
Governments’ power, but quite another to consider suits under rules
appropriate circumstances”);[Footnote 18] The Paquete Habana, 175
that would go so far as to claim a limit on the power of foreign
U. S., at 700 (“International law is part of our law, and must be
governments over their own citizens, and to hold that a foreign
ascertained and administered by the courts of justice of appropriate
government or its agent has transgressed those limits.
jurisdiction, as often as questions of right depending upon it are duly
Cf. Sabbatino, supra, at 431–432. Yet modern international law is very
presented for their determination”); The Nereide, 9 Cranch 388, 423
much concerned with just such questions, and apt to stimulate calls for
(1815) (Marshall, C. J.) (“[T]he Court is bound by the law of nations
vindicating private interests in §1350 cases. Since many attempts by
which is a part of the law of the land”); see also Texas Industries,
federal courts to craft remedies for the violation of new norms of
Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 641 (1981) (recognizing
international law would raise risks of adverse foreign policy
that “international disputes implicating … our relations with foreign
consequences, they should be undertaken, if at all, with great caution.
nations” are one of the “narrow areas” in which “federal common law”
Cf. Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 813 (CADC
continues to exist). It would take some explaining to say now that
1984) (Bork, J., concurring) (expressing doubt that §1350 should be
federal courts must avert their gaze entirely from any international
read to require “our courts [to] sit in judgment of the conduct of foreign
norm intended to protect individuals.
officials in their own countries with respect to their own citizens”).

   We think an attempt to justify such a position would be particularly

   The fifth reason is particularly important in light of the first four. We
unconvincing in light of what we know about congressional
have no congressional mandate to seek out and define new and
understanding bearing on this issue lying at the intersection of the
debatable violations of the law of nations, and modern indications of
judicial and legislative powers. The First Congress, which reflected the
congressional understanding of the judicial role in the field have not
understanding of the framing generation and included some of the
affirmatively encouraged greater judicial creativity. It is true that a clear
Framers, assumed that federal courts could properly identify some
mandate appears in the Torture Victim Protection Act of 1991, 106
international norms as enforceable in the exercise of §1350 jurisdiction.
Stat. 73, providing authority that “establish[es] an unambiguous and
We think it would be unreasonable to assume that the First Congress
modern basis for” federal claims of torture and extrajudicial killing,
would have expected federal courts to lose all capacity to recognize
H. R. Rep. No. 102–367, pt. 1, p. 3 (1991). But that affirmative
enforceable international norms simply because the common law might
authority is confined to specific subject matter, and although the
lose some metaphysical cachet on the road to modern realism. Later
legislative history includes the remark that §1350 should “remain intact
Congresses seem to have shared our view. The position we take today
to permit suits based on other norms that already exist or may ripen in
has been assumed by some federal courts for 24 years, ever since the
the future into rules of customary international law,” id., at 4, Congress
Second Circuit decided Filartiga v. Pena-Irala, 630 F. 2d 876 (CA2
as a body has done nothing to promote such suits. Several times,
1980), and for practical purposes the point of today’s disagreement has
indeed, the Senate has expressly declined to give the federal courts
been focused since the exchange between Judge Edwards and Judge
the task of interpreting and applying international human rights law, as
Bork in Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774 (CADC 1984),
when its ratification of the International Covenant on Civil and Political
Congress, however, has not only expressed no disagreement with our
147
view of the proper exercise of the judicial power, but has responded to
its most notable instance by enacting legislation supplementing the
judicial determination in some detail. See supra, at 34 (discussing the
Torture Victim Protection Act).
   While we agree with Justice Scalia to the point that we would
welcome any congressional guidance in exercising jurisdiction with
such obvious potential to affect foreign relations, nothing Congress has
done is a reason for us to shut the door to the law of nations entirely. It
is enough to say that Congress may do that at any time (explicitly, or
implicitly by treaties or statutes that occupy the field) just as it may
modify or cancel any judicial decision so far as it rests on recognizing
an international norm as such.[Footnote 19]
C
   We must still, however, derive a standard or set of standards for
assessing the particular claim Alvarez raises, and for this case it
suffices to look to the historical antecedents. Whatever the ultimate
criteria for accepting a cause of action subject to jurisdiction under
§1350, we are persuaded that federal courts should not recognize
private claims under federal common law for violations of any
international law norm with less definite content and acceptance
among civilized nations than the historical paradigms familiar when
§1350 was enacted. See, e.g., United States v. Smith, 5 Wheat. 153,
163–180, n. a (1820) (illustrating the specificity with which the law of
nations defined piracy). This limit upon judicial recognition is generally
consistent with the reasoning of many of the courts and judges who
faced the issue before it reached this Court. See Filartiga, supra, at
890 (“[F]or purposes of civil liability, the torturer has become—like the
pirate and slave trader before him—hostis humani generis, an enemy
of all mankind”); Tel-Oren, supra, at 781 (Edwards, J., concurring)
(suggesting that the “limits of section 1350’s reach” be defined by “a
handful of heinous actions—each of which violates definable, universal
and obligatory norms”); see also In re Estate of Marcos Human Rights
Litigation, 25 F. 3d 1467, 1475 (CA9 1994) (“Actionable violations of
international law must be of a norm that is specific, universal, and
obligatory”). And the determination whether a norm is sufficiently
definite to support a cause of action[Footnote 20] should (and, indeed,
inevitably must) involve an element of judgment about the practical
consequences of making that cause available to litigants in the federal
courts.[Footnote 21]
   Thus, Alvarez’s detention claim must be gauged against the current
state of international law, looking to those sources we have long, albeit
cautiously, recognized.
“[W]here there is no treaty, and no controlling executive or legislative
act or judicial decision, resort must be had to the customs and usages
of civilized nations; and, as evidence of these, to the works of jurists
and commentators, who by years of labor, research and experience,
have made themselves peculiarly well acquainted with the subjects of
which they treat. Such works are resorted to by judicial tribunals, not
for the speculations of their authors concerning what the law ought to
be, but for trustworthy evidence of what the law really is.” The Paquete
Habana, 175 U. S., at 700.
   To begin with, Alvarez cites two well-known international agreements
that, despite their moral authority, have little utility under the standard
set out in this opinion. He says that his abduction by Sosa was an
“arbitrary arrest” within the meaning of the Universal Declaration of
Human Rights (Declaration), G. A. Res. 217A (III), U. N. Doc. A/810
(1948). And he traces the rule against arbitrary arrest not only to the
Declaration, but also to article nine of the International Covenant on
Civil and Political Rights (Covenant), Dec. 19, 1996, 999 U. N. T. S.
171,[Footnote 22] to which the United States is a party, and to various
other conventions to which it is not. But the Declaration does not of its
own force impose obligations as a matter of international law. See
Humphrey, The UN Charter and the Universal Declaration of Human
Rights, in The International Protection of Human Rights 39, 50 (E.
Luard ed. 1967) (quoting Eleanor Roosevelt calling the Declaration “ ‘a
statement of principles … setting up a common standard of
148
achievement for all peoples and all nations’ ” and “ ‘not a treaty or
international agreement … impos[ing] legal obligations’ ”).[Footnote 23]
And, although the Covenant does bind the United States as a matter of
international law, the United States ratified the Covenant on the
express understanding that it was not self-executing and so did not
itself create obligations enforceable in the federal courts. See supra, at
33. Accordingly, Alvarez cannot say that the Declaration and Covenant
themselves establish the relevant and applicable rule of international
law. He instead attempts to show that prohibition of arbitrary arrest has
attained the status of binding customary international law.
   Here, it is useful to examine Alvarez’s complaint in greater detail. As
he presently argues it, the claim does not rest on the cross-border
feature of his abduction.[Footnote 24] Although the District Court
granted relief in part on finding a violation of international law in taking
Alvarez across the border from Mexico to the United States, the Court
of Appeals rejected that ground of liability for failure to identify a norm
of requisite force prohibiting a forcible abduction across a border.
Instead, it relied on the conclusion that the law of the United States did
not authorize Alvarez’s arrest, because the DEA lacked extraterritorial
authority under 21 U. S. C. §878, and because Federal Rule of
Criminal Procedure 4(d)(2) limited the warrant for Alvarez’s arrest to
“the jurisdiction of the United States.”[Footnote 25] It is this position
that Alvarez takes now: that his arrest was arbitrary and as such
forbidden by international law not because it infringed the prerogatives
of Mexico, but because no applicable law authorized it.[Footnote 26]
   Alvarez thus invokes a general prohibition of “arbitrary” detention
defined as officially sanctioned action exceeding positive authorization
to detain under the domestic law of some government, regardless of
the circumstances. Whether or not this is an accurate reading of the
Covenant, Alvarez cites little authority that a rule so broad has the
status of a binding customary norm today.[Footnote 27] He certainly
cites nothing to justify the federal courts in taking his broad rule as the
predicate for a federal lawsuit, for its implications would be
breathtaking. His rule would support a cause of action in federal court
for any arrest, anywhere in the world, unauthorized by the law of the
jurisdiction in which it took place, and would create a cause of action
for any seizure of an alien in violation of the Fourth Amendment,
supplanting the actions under Rev. Stat. §1979, 42 U. S. C. §1983
and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S.
388 (1971), that now provide damages remedies for such violations. It
would create an action in federal court for arrests by state officers who
simply exceed their authority; and for the violation of any limit that the
law of any country might place on the authority of its own officers to
arrest. And all of this assumes that Alvarez could establish that Sosa
was acting on behalf of a government when he made the arrest, for
otherwise he would need a rule broader still.
   Alvarez’s failure to marshal support for his proposed rule is
underscored by the Restatement (Third) of Foreign Relations Law of
the United States (1987), which says in its discussion of customary
international human rights law that a “state violates international law if,
as a matter of state policy, it practices, encourages, or condones …
prolonged arbitrary detention.” Id., §702. Although the Restatement
does not explain its requirements of a “state policy” and of “prolonged”
detention, the implication is clear. Any credible invocation of a principle
against arbitrary detention that the civilized world accepts as binding
customary international law requires a factual basis beyond relatively
brief detention in excess of positive authority. Even the Restatement’s
limits are only the beginning of the enquiry, because although it is easy
to say that some policies of prolonged arbitrary detentions are so bad
that those who enforce them become enemies of the human race, it
may be harder to say which policies cross that line with the certainty
afforded by Blackstone’s three common law offenses. In any event, the
label would never fit the reckless policeman who botches his warrant,
even though that same officer might pay damages under municipal
law. E.g., Groh v. Ramirez, 540 U. S. ___ (2004).[Footnote 28]
   Whatever may be said for the broad principle Alvarez advances, in
the present, imperfect world, it expresses an aspiration that exceeds
any binding customary rule having the specificity we require.[Footnote
29] Creating a private cause of action to further that aspiration would
go beyond any residual common law discretion we think it appropriate
to exercise.[Footnote 30] It is enough to hold that a single illegal
detention of less than a day, followed by the transfer of custody to
lawful authorities and a prompt arraignment, violates no norm of
customary international law so well defined as to support the creation
of a federal remedy.

***

   The judgment of the Court of Appeals is Reversed.

149
 SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1491
_________________
ESTHER KIOBEL, individually and on behalf of her late husband, Dr.
BARINEM KIOBEL, et al., PETI- TIONERS v. ROYAL DUTCH
PETROLEUM CO. et al.
on writ of certiorari to the united states court of appeals for the second
circuit
[April 17, 2013]
     Chief Justice Roberts delivered the opinion of the Court.
     Petitioners, a group of Nigerian nationals residing in the United
States, filed suit in federal court against certain Dutch, British, and
Nigerian corporations. Petitioners sued under the Alien Tort Statute, 28
U. S. C. §1350, alleging that the corporations aided and abetted the
Nigerian Government in committing violations of the law of nations in
Nigeria. The question presented is whether and under what
circumstances courts may recognize a cause of action under the Alien
Tort Statute, for violations of the law of nations occurring within the
territory of a sovereign other than the United States.
I plaintiff’s claim in that case for “arbitrary arrest and detention,” on the
     Petitioners were residents of Ogoniland, an area of 250 square
miles located in the Niger delta area of Nigeria and populated by
roughly half a million people. When the complaint was filed,
respondents Royal Dutch Petroleum Company and Shell Transport
and Trading Company, p.l.c., were holding companies incorporated in
the Netherlands and England, respectively. Their joint subsidiary,
respondent Shell Petroleum Development Company of Nigeria, Ltd.
(SPDC), was incorporated in Nigeria, and engaged in oil exploration
and production in Ogoniland. According to the complaint, after
concerned residents of Ogoniland began protesting the environmental
effects of SPDC’s practices, respondents enlisted the Nigerian
Government to violently suppress the burgeoning demonstrations.
Throughout the early 1990’s, the complaint alleges, Nigerian military
and police forces attacked Ogoni vil- lages, beating, raping, killing, and
arresting residents and destroying or looting property. Petitioners
further allege that respondents aided and abetted these atrocities by,
among other things, providing the Nigerian forces with food,
transportation, and compensation, as well as by al- lowing the Nigerian
military to use respondents’ property as a staging ground for attacks.
     Following the alleged atrocities, petitioners moved to the United
States where they have been granted political asylum and now reside
as legal residents. See Supp. Brief for Petitioners 3, and n. 2. They
filed suit in the United States District Court for the Southern District of
New York, alleging jurisdiction under the Alien Tort Statute and
requesting relief under customary international law. The ATS provides,
in full, that “[t]he district courts shall have original jurisdiction of any civil
action by an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States.” 28 U. S. C. §1350. According
to petitioners, respondents violated the law of nations by aiding and
abetting the Nigerian Government in committing (1) extrajudicial
killings; (2) crimes against humanity; (3) torture and cruel treatment; (4)
arbitrary arrest and detention; (5) violations of the rights to life, liberty,
security, and association; (6) forced exile; and (7) property destruction.
The District Court dismissed the first, fifth, sixth, and seventh claims,
reasoning that the facts alleged to support those claims did not give
rise to a violation of the law of nations. The court denied respondents’
150
motion to dismiss with respect to the remaining claims, but certified its
order for interlocutory appeal pursuant to §1292(b).
     The Second Circuit dismissed the entire complaint, rea- soning that
the law of nations does not recognize corpo- rate liability. 621 F. 3d
111 (2010). We granted certiorari to consider that question. 565 U. S.
___ (2011). After oral argument, we directed the parties to file
supplemen- tal briefs addressing an additional question: “Whether and
under what circumstances the [ATS] allows courts to recognize a
cause of action for violations of the law of nations occurring within the
territory of a sovereign other than the United States.” 565 U. S. ___
(2012). We heard oral argument again and now affirm the judgment
below, based on our answer to the second question.
II
     Passed as part of the Judiciary Act of 1789, the ATS was invoked
twice in the late 18th century, but then only once more over the next
167 years. Act of Sept. 24, 1789, §9, 1 Stat 77; see Moxon v. The
Fanny, 17 F. Cas. 942 (No. 9,895) (DC Pa. 1793); Bolchos v. Darrel, 3
F. Cas. 810 (No. 1,607) (DC SC 1795); O’Reilly de Camara v. Brooke,
209 U. S. 45 (1908) ; Khedivial Line, S.A.E. v. Seafarers’ Int’l Union,
278 F. 2d 49, 51–52 (CA2 1960) (per curiam). The statute provides
district courts with jurisdiction to hear certain claims, but does not
expressly provide any causes of action. We held in Sosa v. Alvarez-
Machain, 542 U. S. 692, 714 (2004) , however, that the First Congress
did not intend the provision to be “stillborn.” The grant of jurisdiction is
instead “best read as having been enacted on the understanding that
the common law would provide a cause of action for [a] modest
number of international law violations.” Id., at 724. We thus held that
federal courts may “recognize private claims [for such violations] under
federal common law.” Id., at 732. The Court in Sosa rejected the
ground that it failed to state a violation of the law of nations with the
requisite “definite content and acceptance among civilized nations.” Id.,
at 699, 732.
     The question here is not whether petitioners have stated a proper
claim under the ATS, but whether a claim may reach conduct occurring
in the territory of a foreign sovereign. Respondents contend that claims
under the ATS do not, relying primarily on a canon of statutory
interpretation known as the presumption against extraterritorial
application. That canon provides that “[w]hen a statute gives no clear
indication of an extraterritorial application, it has none,” Morrison v.
National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 6),
and reflects the “presumption that United States law governs
domestically but does not rule the world,” Microsoft Corp. v. AT&T
Corp., 550 U. S. 437, 454 (2007) .
     This presumption “serves to protect against unintended clashes
between our laws and those of other nations which could result in
international discord.” EEOC v. Arabian American Oil Co., 499 U. S.
244, 248 (1991) (Aramco). As this Court has explained:
“For us to run interference in . . . a delicate field of international
relations there must be present the affirmative intention of the
Congress clearly expressed. It alone has the facilities necessary to
make fairly such an important policy decision where the possibilities of
international discord are so evident and retaliative action so certain.”
Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138, 147 (1957) .
The presumption against extraterritorial application helps ensure that
the Judiciary does not erroneously adopt an interpretation of U. S. law
that carries foreign pol- icy consequences not clearly intended by the
political branches.
     We typically apply the presumption to discern whether an Act of
Congress regulating conduct applies abroad. See, e.g., Aramco, supra,
at 246 (“These cases present the issue whether Title VII applies
extraterritorially to regulate the employment practices of United States
employers who employ United States citizens abroad”); Morrison,
supra, at ___ (slip op., at 4) (noting that the question of extraterritorial
application was a “merits question,” not a question of jurisdiction). The
ATS, on the other hand, is “strictly jurisdictional.” Sosa, 542 U. S., at
713. It does not directly regulate conduct or afford relief. It instead
allows federal courts to recognize certain causes of action based on
sufficiently definite norms of international law. But we think the
principles underlying the canon of interpretation similarly constrain
courts considering causes of action that may be brought under the
ATS.
     Indeed, the danger of unwarranted judicial interference in the
conduct of foreign policy is magnified in the context of the ATS,
because the question is not what Congress has done but instead what
courts may do. This Court in Sosa repeatedly stressed the need for
judicial caution in considering which claims could be brought under the
ATS, in light of foreign policy concerns. As the Court explained, “the
potential [foreign policy] implications . . . of recog- nizing . . . . causes
[under the ATS] should make courts particularly wary of impinging on
the discretion of the Legislative and Executive Branches in managing
foreign affairs.” Id., at 727; see also id., at 727–728 (“Since many
attempts by federal courts to craft remedies for the violation of new
norms of international law would raise risks of adverse foreign policy
consequences, they should be undertaken, if at all, with great
caution”); id., at 727 (“[T]he possible collateral consequences of
making international rules privately actionable argue for judicial
caution”). These concerns, which are implicated in any case arising
under the ATS, are all the more pressing when the question is whether
a cause of action under the ATS reaches conduct within the territory of
another sovereign.
     These concerns are not diminished by the fact that Sosa limited
federal courts to recognizing causes of action only for alleged
violations of international law norms that are “ ‘specific, universal, and
obligatory.’ ” Id., at 732 (quoting In re Estate of Marcos, Human Rights
Litigation, 25 F. 3d 1467, 1475 (CA9 1994)). As demonstrated by
Congress’s enactment of the Torture Victim Protection Act of 1991,
106Stat. 73, note following 28 U. S. C. §1350, identifying such a norm
is only the beginning of defining a cause of action. See id., §3
(providing detailed definitions for extrajudicial killing and torture); id., §2
(specifying who may be liable, creating a rule of exhaustion, and
establishing a statute of limitations). Each of these decisions carries
with it significant foreign policy implications.
     The principles underlying the presumption against ex- traterritoriality
thus constrain courts exercising their power under the ATS.
III
     Petitioners contend that even if the presumption applies, the text,
history, and purposes of the ATS rebut it for causes of action brought
under that statute. It is true that Congress, even in a jurisdictional
provision, can indicate that it intends federal law to apply to conduct
occurring abroad. See, e.g., 18 U. S. C. §1091(e) (2006 ed., Supp. V)
(providing jurisdiction over the offense of genocide “regardless of
where the offense is committed” if the alleged offender is, among other
things, “present in the United States”). But to rebut the presumption,
the ATS would need to evince a “clear indication of extraterritoriality.”
Morrison, 561 U. S., at ___ (slip op., at 16). It does not.
     To begin, nothing in the text of the statute suggests that Congress
intended causes of action recognized under it to have extraterritorial
reach. The ATS covers actions by aliens for violations of the law of
nations, but that does not imply extraterritorial reach—such violations
affect- ing aliens can occur either within or outside the United States.
Nor does the fact that the text reaches “any civil action” suggest
application to torts committed abroad; it is well established that generic
terms like “any” or “every” do not rebut the presumption against
extraterritoriality. See, e.g., id., at ___ (slip op., at 13–14); Small v.
United States, 544 U. S. 385, 388 (2005) ; Aramco, 499 U. S., at 248–
250; Foley Bros., Inc. v. Filardo, 336 U. S. 281, 287 (1949) .
151
     Petitioners make much of the fact that the ATS provides jurisdiction
over civil actions for “torts” in violation of the law of nations. They claim
that in using that word, the First Congress “necessarily meant to
provide for jurisdiction over extraterritorial transitory torts that could
arise on foreign soil.” Supp. Brief for Petitioners 18. For support, they
cite the common-law doctrine that allowed courts to assume jurisdiction
over such “transitory torts,” including actions for personal injury, arising
abroad. See Mostyn v. Fabrigas, 1 Cowp. 161, 177, 98 Eng. Rep.
1021, 1030 (1774) (Mansfield, L.) (“[A]ll actions of a transitory nature
that arise abroad may be laid as happening in an English county”);
Dennick v. Railroad Co., 103 U. S. 11, 18 (1881) (“Wherever, by either
the common law or the statute law of a State, a right of action has
become fixed and a legal liability incurred, that liability may be enforced
and the right of action pursued in any court which has jurisdiction of
such matters and can obtain jurisdiction of the parties”).
     Under the transitory torts doctrine, however, “the only justification
for allowing a party to recover when the cause of action arose in
another civilized jurisdiction is a well founded belief that it was a cause
of action in that place.” Cuba R. Co. v. Crosby, 222 U. S. 473, 479
(1912) (majority opinion of Holmes, J.). The question under Sosa is not
whether a federal court has jurisdiction to entertain a cause of action
provided by foreign or even international law. The question is instead
whether the court has authority to recognize a cause of action under
U. S. law to enforce a norm of international law. The reference to “tort”
does not demonstrate that the First Congress “necessarily meant” for
those causes of action to reach conduct in the territory of a foreign
sovereign. In the end, nothing in the text of the ATS evinces the
requisite clear indication of extraterritoriality.
     Nor does the historical background against which the ATS was
enacted overcome the presumption against ap- plication to conduct in
the territory of another sovereign. See Morrison, supra, at ___ (slip op.,
at 16) (noting that “[a]ssuredly context can be consulted” in determining
whether a cause of action applies abroad). We explained in Sosa that
when Congress passed the ATS, “three principal offenses against the
law of nations” had been identified by Blackstone: violation of safe
conducts, infringement of the rights of ambassadors, and piracy. 542
U. S., at 723, 724; see 4 W. Blackstone, Commentaries on the Laws of
England 68 (1769). The first two offenses have no necessary
extraterritorial application. Indeed, Blackstone—in describing them—
did so in terms of conduct occur- ring within the forum nation. See ibid.
(describing the right of safe conducts for those “who are here”); 1 id., at
251 (1765) (explaining that safe conducts grant a member of one
society “a right to intrude into another”); id., at 245–248 (recognizing
the king’s power to “receiv[e] ambassadors at home” and detailing their
rights in the state “wherein they are appointed to reside”); see also E.
De Vattel, Law of Nations 465 (J. Chitty et al. transl. and ed. 1883)
(“[O]n his entering the country to which he is sent, and making himself
known, [the ambassador] is under the protection of the law of
nations . . .”).
     Two notorious episodes involving violations of the law of nations
occurred in the United States shortly before passage of the ATS. Each
concerned the rights of ambas- sadors, and each involved conduct
within the Union. In 1784, a French adventurer verbally and physically
assaulted Francis Barbe Marbois—the Secretary of the French Legion
—in Philadelphia. The assault led the French Minister Plenipotentiary
to lodge a formal protest with the Continental Congress and threaten to
leave the country unless an adequate remedy were provided.
Respublica v. De Longschamps, 1 Dall. 111 (O. T. Phila. 1784); Sosa,
supra, at 716–717, and n. 11. And in 1787, a New York constable
entered the Dutch Ambassador’s house and arrested one of his
domestic servants. See Casto, The Federal Courts’ Protective
Jurisdiction over Torts Committed in Violation of the Law of Nations, 18
Conn. L. Rev. 467, 494 (1986). At the request of Secretary of Foreign
Affairs John Jay, the Mayor of New York City arrested the constable in
turn, but cautioned that because “ ‘neither Congress nor our [State]
Legislature have yet passed any act respecting a breach of the
privileges of Ambassadors,’ ” the extent of any available relief would
depend on the common law. See Bradley, The Alien Tort Statute and
Article III, 42 Va. J. Int’l L. 587, 641–642 (2002) (quoting 3 Dept. of
State, The Diplomatic Correspondence of the United States of America
447 (1837)). The two cases in which the ATS was invoked shortly after
its passage also concerned conduct within the territory of the United
States. See Bolchos, 3 F. Cas. 810 (wrongful seizure of slaves from a
vessel while in port in the United States); Moxon, 17 F. Cas. 942
(wrongful seizure in United States territorial waters).
     These prominent contemporary examples—immediately before and
after passage of the ATS—provide no support for the proposition that
Congress expected causes of action to be brought under the statute for
violations of the law of nations occurring abroad.
     The third example of a violation of the law of nations familiar to the
Congress that enacted the ATS was piracy. Piracy typically occurs on
the high seas, beyond the territorial jurisdiction of the United States or
any other country. See 4 Blackstone, supra, at 72 (“The offence of
piracy, by common law, consists of committing those acts of robbery
and depredation upon the high seas, which, if committed upon land,
would have amounted to felony there”). This Court has generally
treated the high seas the same as foreign soil for purposes of the
presumption against extraterritorial application. See, e.g., Sale v.
Haitian Centers Council, Inc., 509 U. S. 155 –174 (1993) (declining to
apply a provision of the Immigration and Nationality Act to conduct
occurring on the high seas); Argentine Republic v. Amerada Hess
Shipping Corp., 488 U. S. 428, 440 (1989) (declining to apply a
provision of the Foreign Sovereign Immunities Act of 1976 to the high
seas). Petitioners contend that because Congress surely intended the
ATS to provide jurisdiction for actions against pirates, it necessarily
anticipated the statute would apply to conduct occurring abroad.
     Applying U. S. law to pirates, however, does not typi- cally impose
the sovereign will of the United States onto conduct occurring within
the territorial jurisdiction of another sovereign, and therefore carries
less direct foreign policy consequences. Pirates were fair game
wherever found, by any nation, because they generally did not operate
within any jurisdiction. See 4 Blackstone, supra, at 71. We do not think
that the existence of a cause of action against them is a sufficient basis
for concluding that other causes of action under the ATS reach conduct
that does occur within the territory of another sovereign; pirates may
well be a category unto themselves. See Morrison, 561 U. S., at ___
(slip op., at 16) (“[W]hen a statute provides for some extraterritorial
application, the presumption against extraterritoriality operates to limit
that provision to its terms”); see also Microsoft Corp., 550 U. S., at
455–456.
     Petitioners also point to a 1795 opinion authored by Attorney
General William Bradford. See Breach of Neutrality, 1 Op. Atty. Gen.
57. In 1794, in the midst of war between France and Great Britain, and
notwithstanding the American official policy of neutrality, several U. S.
citizens joined a French privateer fleet and attacked and plundered the
British colony of Sierra Leone. In response to a protest from the British
Ambassador, Attorney General Bradford responded as follows:
     So far . . . as the transactions complained of originated or took
place in a foreign country, they are not within the cognizance of our
courts; nor can the actors be legally prosecuted or punished for them
by the United States. But crimes committed on the high seas are within
the jurisdiction of the . . . courts of the United States; and, so far as the
offence was committed thereon, I am inclined to think that it may be
legally prosecuted in . . . those courts . . . . But some doubt rests on
this point, in consequence of the terms in which the [applicable criminal
law] is expressed. But there can be no doubt that the company or
individuals who have been injured by these acts of hostil- ity have a
remedy by a civil suit in the courts of the United States; jurisdiction
being expressly given to these courts in all cases where an alien sues
for a tort only, in violation of the laws of nations, or a treaty of the
United States . . . .” Id., at 58–59.
     Petitioners read the last sentence as confirming that “the Founding
generation understood the ATS to apply to law of nations violations
committed on the territory of a foreign sovereign.” Supp. Brief for
Petitioners 33. Respondents counter that when Attorney General
Bradford referred to “these acts of hostility,” he meant the acts only
152
insofar as they took place on the high seas, and even if his conclusion
were broader, it was only because the applicable treaty had
extraterritorial reach. See Supp. Brief for Respondents 28–30. The
Solicitor General, having once read the opinion to stand for the
proposition that an “ATS suit could be brought against American
citizens for breaching neutrality with Britain only if acts did not take
place in a foreign country,” Supp. Brief for United States as Amicus
Curiae 8, n. 1 (internal quotation marks and brackets omitted), now
suggests the opinion “could have been meant to encompass . . .
conduct [occurring within the foreign territory],” id., at 8.
     Attorney General Bradford’s opinion defies a definitive reading and
we need not adopt one here. Whatever its pre- cise meaning, it deals
with U. S. citizens who, by partic- ipating in an attack taking place both
on the high seas and on a foreign shore, violated a treaty between the
United States and Great Britain. The opinion hardly suffices to counter
the weighty concerns underlying the presumption against
extraterritoriality.
     Finally, there is no indication that the ATS was passed to make the
United States a uniquely hospitable forum for the enforcement of
international norms. As Justice Story put it, “No nation has ever yet
pretended to be the custos morum of the whole world . . . .” United
States v. The La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551)
(CC. Mass. 1822). It is implausible to suppose that the First Congress
wanted their fledgling Republic—struggling to receive international
recognition—to be the first. Indeed, the parties offer no evidence that
any nation, meek or mighty, presumed to do such a thing.
     The United States was, however, embarrassed by its potential
inability to provide judicial relief to foreign officials injured in the United
States. Bradley, 42 Va. J. Int’l L., at 641. Such offenses against
ambassadors vio- lated the law of nations, “and if not adequately
redressed could rise to an issue of war.” Sosa, 542 U. S., at 715; cf.
The Federalist No. 80, p. 536 (J. Cooke ed. 1961) (A. Hamilton) (“As
the denial or perversion of justice . . . is with reason classed among the
just causes of war, it will follow that the federal judiciary ought to have
cognizance of all causes in which the citizens of other countries are
concerned”). The ATS ensured that the United States could provide a
forum for adjudicating such incidents. See Sosa, supra, at 715–718,
and n. 11. Nothing about this historical context suggests that Congress
also intended federal common law under the ATS to provide a cause of
action for conduct occurring in the territory of another sovereign.
     Indeed, far from avoiding diplomatic strife, providing such a cause
of action could have generated it. Recent experience bears this out.
See Doe v. Exxon Mobil Corp., 654 F. 3d 11, 77–78 (CADC 2011)
(Kavanaugh, J., dissenting in part) (listing recent objections to
extraterritorial applications of the ATS by Canada, Germany,
Indonesia, Papua New Guinea, South Africa, Switzerland, and the
United Kingdom).      Moreover, accepting petitioners’ view would imply
that other nations, also applying the law of nations, could hale our
citizens into their courts for alleged violations of the law of nations
occurring in the United States, or anywhere else in the world. The
presumption against extraterritoriality guards against our courts
triggering such serious foreign policy consequences, and instead
defers such decisions, quite appropriately, to the political branches.
     We therefore conclude that the presumption against
extraterritoriality applies to claims under the ATS, and that nothing in
the statute rebuts that presumption. “[T]here is no clear indication of
extraterritoriality here,” Morrison, 561 U. S., at ___ (slip op., at 16), and
petitioners’ case seeking relief for violations of the law of nations
occurring outside the United States is barred.
IV
     On these facts, all the relevant conduct took place outside the
United States. And even where the claims touch and concern the
territory of the United States, they must do so with sufficient force to
displace the presumption against extraterritorial application. See
Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often
present in many countries, and it would reach too far to say that mere
corporate presence suffices. If Congress were to determine otherwise,
a statute more specific than the ATS would be required.

     The judgment of the Court of Appeals is affirmed.

It is so ordered.

153
G.R. No. 118295 May 2, 1997 — the General Agreement on Tariffs and Trade. GATT was a collection
of treaties governing access to the economies of treaty adherents with
no institutionalized body administering the agreements or dependable
WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as
system of dispute settlement.
members of the Philippine Senate and as taxpayers; GREGORIO
ANDOLANA and JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P. PERLAS and After half a century and several dizzying rounds of negotiations,
HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES principally the Kennedy Round, the Tokyo Round and the Uruguay
UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, Round, the world finally gave birth to that administering body — the
CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, World Trade Organization — with the signing of the "Final Act" in
LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE Marrakesh, Morocco and the ratification of the WTO Agreement by its
RURAL RECONSTRUCTION MOVEMENT, DEMOKRATIKONG members.1
KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE
PEASANT INSTITUTE, in representation of various taxpayers and
Like many other developing countries, the Philippines joined WTO as a
as non-governmental organizations, petitioners,
founding member with the goal, as articulated by President Fidel V.
vs.
Ramos in two letters to the Senate (infra), of improving "Philippine
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-
access to foreign markets, especially its major trading partners,
SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO
through the reduction of tariffs on its exports, particularly agricultural
BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA,
and industrial products." The President also saw in the WTO the
GLORIA. MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS
opening of "new opportunities for the services sector . . . , (the
OPLE, JOHN OSMEÑA, SANTANINA RASUL, RAMON REVILLA,
reduction of) costs and uncertainty associated with exporting . . . , and
RAUL ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their
(the attraction of) more investments into the country." Although the
respective capacities as members of the Philippine Senate who
Chief Executive did not expressly mention it in his letter, the Philippines
concurred in the ratification by the President of the Philippines of
— and this is of special interest to the legal profession — will benefit
the Agreement Establishing the World Trade Organization;
from the WTO system of dispute settlement by judicial adjudication
SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget
through the independent WTO settlement bodies called (1) Dispute
and Management; CARIDAD VALDEHUESA, in her capacity as
Settlement Panels and (2) Appellate Tribunal. Heretofore, trade
National Treasurer; RIZALINO NAVARRO, in his capacity as
disputes were settled mainly through negotiations where solutions
Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his
were arrived at frequently on the basis of relative bargaining strengths,
capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in
and where naturally, weak and underdeveloped countries were at a
his capacity as Secretary of Finance; ROBERTO ROMULO, in his
disadvantage.
capacity as Secretary of Foreign Affairs; and TEOFISTO T.
GUINGONA, in his capacity as Executive Secretary, respondents.
The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines "to place
nationals and products of member-countries on the same footing as
PANGANIBAN, J.:
Filipinos and local products" and (2) that the WTO "intrudes, limits
and/or impairs" the constitutional powers of both Congress and the
The emergence on January 1, 1995 of the World Trade Organization, Supreme Court, the instant petition before this Court assails the WTO
abetted by the membership thereto of the vast majority of countries has Agreement for violating the mandate of the 1987 Constitution to
revolutionized international business and economic relations amongst "develop a self-reliant and independent national economy effectively
states. It has irreversibly propelled the world towards trade controlled by Filipinos . . . (to) give preference to qualified Filipinos
liberalization and economic globalization. Liberalization, globalization, (and to) promote the preferential use of Filipino labor, domestic
deregulation and privatization, the third-millennium buzz words, are materials and locally produced goods."
ushering in a new borderless world of business by sweeping away as
mere historical relics the heretofore traditional modes of promoting and
Simply stated, does the Philippine Constitution prohibit Philippine
protecting national economies like tariffs, export subsidies, import
participation in worldwide trade liberalization and economic
quotas, quantitative restrictions, tax exemptions and currency controls.
globalization? Does it proscribe Philippine integration into a global
Finding market niches and becoming the best in specific industries in a
economy that is liberalized, deregulated and privatized? These are the
market-driven and export-oriented global scenario are replacing age-
main questions raised in this petition for certiorari, prohibition
old "beggar-thy-neighbor" policies that unilaterally protect weak and
and mandamus under Rule 65 of the Rules of Court praying (1) for the
inefficient domestic producers of goods and services. In the words of
nullification, on constitutional grounds, of the concurrence of the
Peter Drucker, the well-known management guru, "Increased
Philippine Senate in the ratification by the President of the Philippines
participation in the world economy has become the key to domestic
of the Agreement Establishing the World Trade Organization (WTO
economic growth and prosperity."
Agreement, for brevity) and (2) for the prohibition of its implementation
and enforcement through the release and utilization of public funds, the
Brief Historical Background assignment of public officials and employees, as well as the use of
government properties and resources by respondent-heads of various
executive offices concerned therewith. This concurrence is embodied
To hasten worldwide recovery from the devastation wrought by the
in Senate Resolution No. 97, dated December 14, 1994.
Second World War, plans for the establishment of three multilateral
institutions — inspired by that grand political body, the United Nations
— were discussed at Dumbarton Oaks and Bretton Woods. The Facts
The first was the World Bank (WB) which was to address the
rehabilitation and reconstruction of war-ravaged and later developing
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
countries; the second, the International Monetary Fund (IMF) which
The Department of Trade and Industry (Secretary Navarro, for brevity),
was to deal with currency problems; and the third, the International
representing the Government of the Republic of the Philippines, signed
Trade Organization (ITO), which was to foster order and predictability
in Marrakesh, Morocco, the Final Act Embodying the Results of the
in world trade and to minimize unilateral protectionist policies that invite
Uruguay Round of Multilateral Negotiations (Final Act, for brevity).
challenge, even retaliation, from other states. However, for a variety of
reasons, including its non-ratification by the United States, the ITO,
unlike the IMF and WB, never took off. What remained was only GATT

154
By signing the Final Act,2 Secretary Navarro on behalf of the Republic
of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement
for the consideration of their respective competent
authorities, with a view to seeking approval of the
Agreement in accordance with their procedures;
and
(b) to adopt the Ministerial Declarations and
Decisions.
On August 12, 1994, the members of the Philippine Senate received a
letter dated August 11, 1994 from the President of the
Philippines,3 stating among others that "the Uruguay Round Final Act is
hereby submitted to the Senate for its concurrence pursuant to Section
21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received
another letter from the President of the Philippines 4 likewise dated
August 11, 1994, which stated among others that "the Uruguay Round
Final Act, the Agreement Establishing the World Trade Organization,
the Ministerial Declarations and Decisions, and the Understanding on
Commitments in Financial Services are hereby submitted to the Senate
for its concurrence pursuant to Section 21, Article VII of the
Constitution."
On December 9, 1994, the President of the Philippines certified the
necessity of the immediate adoption of P.S. 1083, a resolution entitled
"Concurring in the Ratification of the Agreement Establishing the World
Trade Organization."5
On December 14, 1994, the Philippine Senate adopted Resolution No.
97 which "Resolved, as it is hereby resolved, that the Senate concur,
as it hereby concurs, in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade
Organization."6 The text of the WTO Agreement is written on pages
137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral
Trade Negotiations and includes various agreements and associated
legal instruments (identified in the said Agreement as Annexes 1, 2
and 3 thereto and collectively referred to as Multilateral Trade
Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in
Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment
Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in
Services and Annexes
155
Annex 1C: Agreement on Trade-Related Aspects
of Intellectual
Property Rights
ANNEX 2
Understanding on Rules and
Procedures Governing
the Settlement of Disputes
ANNEX 3
Trade Policy Review
Mechanism
On December 16, 1994, the President of the Philippines signed 7 the
Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V.
RAMOS, President of the Republic of the
Philippines, after having seen and considered the
aforementioned Agreement Establishing the World
Trade Organization and the agreements and
associated legal instruments included in Annexes
one (1), two (2) and three (3) of that Agreement
which are integral parts thereof, signed at
Marrakesh, Morocco on 15 April 1994, do hereby
ratify and confirm the same and every Article and
Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the
Philippines is composed of the Agreement Proper and "the associated
legal instruments included in Annexes one (1), two (2) and three (3) of
that Agreement which are integral parts thereof."
On the other hand, the Final Act signed by Secretary Navarro
embodies not only the WTO Agreement (and its integral annexes
aforementioned) but also (1) the Ministerial Declarations and Decisions
and (2) the Understanding on Commitments in Financial Services. In
his Memorandum dated May 13, 1996,8 the Solicitor General describes
these two latter documents as follows:
The Ministerial Decisions and Declarations are
twenty-five declarations and decisions on a wide
range of matters, such as measures in favor of
least developed countries, notification procedures,
relationship of WTO with the International
Monetary Fund (IMF), and agreements on
technical barriers to trade and on dispute
settlement.
The Understanding on Commitments in Financial
Services dwell on, among other things, standstill or
limitations and qualifications of commitments to
existing non-conforming measures, market
access, national treatment, and definitions of non-
resident supplier of financial services, commercial
presence and new financial service.
On December 29, 1994, the present petition was filed. After careful
deliberation on respondents' comment and petitioners' reply thereto,
the Court resolved on December 12, 1995, to give due course to the
petition, and the parties thereafter filed their respective memoranda.
The court also requested the Honorable Lilia R. Bautista, the Philippine
Ambassador to the United Nations stationed in Geneva, Switzerland, to
submit a paper, hereafter referred to as "Bautista Paper," 9 for brevity,
(1) providing a historical background of and (2) summarizing the said
agreements.
During the Oral Argument held on August 27, 1996, the Court directed: Organization, and not with the Presidential
submission which included the Final Act,
Ministerial Declaration and Decisions, and the
(a) the petitioners to submit the (1) Senate
Understanding on Commitments in Financial
Committee Report on the matter in controversy
Services.
and (2) the transcript of proceedings/hearings in
the Senate; and
On the other hand, the Solicitor General as counsel for respondents
"synthesized the several issues raised by petitioners into the
(b) the Solicitor General, as counsel for
following": 10
respondents, to file (1) a list of Philippine treaties
signed prior to the Philippine adherence to the
WTO Agreement, which derogate from Philippine 1. Whether or not the provisions of the "Agreement
sovereignty and (2) copies of the multi-volume Establishing the World Trade Organization and the
WTO Agreement and other documents mentioned Agreements and Associated Legal Instruments
in the Final Act, as soon as possible. included in Annexes one (1), two (2) and three (3)
of that agreement" cited by petitioners directly
contravene or undermine the letter, spirit and
After receipt of the foregoing documents, the Court said it would
intent of Section 19, Article II and Sections 10 and
consider the case submitted for resolution. In a Compliance dated
12, Article XII of the 1987 Constitution.
September 16, 1996, the Solicitor General submitted a printed copy of
the 36-volume Uruguay Round of Multilateral Trade Negotiations, and
in another Compliance dated October 24, 1996, he listed the various 2. Whether or not certain provisions of the
"bilateral or multilateral treaties or international instruments involving Agreement unduly limit, restrict or impair the
derogation of Philippine sovereignty." Petitioners, on the other hand, exercise of legislative power by Congress.
submitted their Compliance dated January 28, 1997, on January 30,
1997.
3. Whether or not certain provisions of the
Agreement impair the exercise of judicial power by
The Issues this Honorable Court in promulgating the rules of
evidence.
In their Memorandum dated March 11, 1996, petitioners summarized
the issues as follows: 4. Whether or not the concurrence of the Senate
"in the ratification by the President of the
Philippines of the Agreement establishing the
A. Whether the petition presents a political
World Trade Organization" implied rejection of the
question or is otherwise not justiciable.
treaty embodied in the Final Act.

B. Whether the petitioner members of the Senate

By raising and arguing only four issues against the seven presented by
who participated in the deliberations and voting
petitioners, the Solicitor General has effectively ignored three, namely:
leading to the concurrence are estopped from
(1) whether the petition presents a political question or is otherwise not
impugning the validity of the Agreement
justiciable; (2) whether petitioner-members of the Senate (Wigberto E.
Establishing the World Trade Organization or of
Tañada and Anna Dominique Coseteng) are estopped from joining this
the validity of the concurrence.
suit; and (3) whether the respondent-members of the Senate acted in
grave abuse of discretion when they voted for concurrence in the
C. Whether the provisions of the Agreement ratification of the WTO Agreement. The foregoing notwithstanding, this
Establishing the World Trade Organization Court resolved to deal with these three issues thus:
contravene the provisions of Sec. 19, Article II,
and Secs. 10 and 12, Article XII, all of the 1987
(1) The "political question" issue — being very fundamental and vital,
Philippine Constitution.
and being a matter that probes into the very jurisdiction of this Court to
hear and decide this case — was deliberated upon by the Court and
D. Whether provisions of the Agreement will thus be ruled upon as the first issue;
Establishing the World Trade Organization unduly
limit, restrict and impair Philippine sovereignty
(2) The matter of estoppel will not be taken up because this defense is
specifically the legislative power which, under Sec.
waivable and the respondents have effectively waived it by not
2, Article VI, 1987 Philippine Constitution is
pursuing it in any of their pleadings; in any event, this issue, even if
"vested in the Congress of the Philippines";
ruled in respondents' favor, will not cause the petition's dismissal as
there are petitioners other than the two senators, who are not
E. Whether provisions of the Agreement vulnerable to the defense of estoppel; and
Establishing the World Trade Organization
interfere with the exercise of judicial power.
(3) The issue of alleged grave abuse of discretion on the part of the
respondent senators will be taken up as an integral part of the
F. Whether the respondent members of the disposition of the four issues raised by the Solicitor General.
Senate acted in grave abuse of discretion
amounting to lack or excess of jurisdiction when
During its deliberations on the case, the Court noted that the
they voted for concurrence in the ratification of the
respondents did not question the locus standi of petitioners. Hence,
constitutionally-infirm Agreement Establishing the
they are also deemed to have waived the benefit of such issue. They
World Trade Organization.
probably realized that grave constitutional issues, expenditures of
public funds and serious international commitments of the nation are
G. Whether the respondent members of the involved here, and that transcendental public interest requires that the
Senate acted in grave abuse of discretion substantive issues be met head on and decided on the merits, rather
amounting to lack or excess of jurisdiction when than skirted or deflected by procedural matters. 11
they concurred only in the ratification of the
Agreement Establishing the World Trade
156
To recapitulate, the issues that will be ruled upon shortly are: As this Court has repeatedly and firmly emphasized in many cases, 18 it
will not shirk, digress from or abandon its sacred duty and authority to
uphold the Constitution in matters that involve grave abuse of
(1) DOES THE PETITION PRESENT A
discretion brought before it in appropriate cases, committed by any
JUSTICIABLE CONTROVERSY? OTHERWISE
officer, agency, instrumentality or department of the government.
STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS
COURT HAS NO JURISDICTION? As the petition alleges grave abuse of discretion and as there is no
other plain, speedy or adequate remedy in the ordinary course of law,
we have no hesitation at all in holding that this petition should be given
(2) DO THE PROVISIONS OF THE WTO
due course and the vital questions raised therein ruled upon under
AGREEMENT AND ITS THREE ANNEXES
Rule 65 of the Rules of Court. Indeed, certiorari, prohibition
CONTRAVENE SEC. 19, ARTICLE II, AND SECS.
and mandamus are appropriate remedies to raise constitutional issues
10 AND 12, ARTICLE XII, OF THE PHILIPPINE
and to review and/or prohibit/nullify, when proper, acts of legislative
CONSTITUTION?
and executive officials. On this, we have no equivocation.

(3) DO THE PROVISIONS OF SAID

AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF
LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR
INTERFERE WITH THE EXERCISE OF JUDICIAL
POWER BY THIS COURT IN PROMULGATING
RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE
IN THE WTO AGREEMENT AND ITS ANNEXES
SUFFICIENT AND/OR VALID, CONSIDERING
THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND
DECISIONS, AND THE UNDERSTANDING ON
COMMITMENTS IN FINANCIAL SERVICES?
We should stress that, in deciding to take jurisdiction over this petition,
this Court will not review the wisdom of the decision of the President
and the Senate in enlisting the country into the WTO, or pass upon
the merits of trade liberalization as a policy espoused by said
international body. Neither will it rule on the propriety of the
government's economic policy of reducing/removing tariffs, taxes,
subsidies, quantitative restrictions, and other import/trade barriers.
Rather, it will only exercise its constitutional duty "to determine whether
or not there had been a grave abuse of discretion amounting to lack or
excess of jurisdiction" on the part of the Senate in ratifying the WTO
Agreement and its three annexes.
Second Issue: The WTO Agreement
and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.

Petitioners vigorously argue that the "letter, spirit and intent" of the
The First Issue: Does the Court
Constitution mandating "economic nationalism" are violated by the so-
Have Jurisdiction Over the Controversy?
called "parity provisions" and "national treatment" clauses scattered in
various parts not only of the WTO Agreement and its annexes but also
In seeking to nullify an act of the Philippine Senate on the ground that it in the Ministerial Decisions and Declarations and in the Understanding
contravenes the Constitution, the petition no doubt raises a justiciable on Commitments in Financial Services.
controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right
Specifically, the "flagship" constitutional provisions referred to are Sec
but in fact the duty of the judiciary to settle the dispute. "The question
19, Article II, and Secs. 10 and 12, Article XII, of the Constitution,
thus posed is judicial rather than political. The duty (to adjudicate)
which are worded as follows:
remains to assure that the supremacy of the Constitution is
upheld." 12 Once a "controversy as to the application or interpretation of
a constitutional provision is raised before this Court (as in the instant Article II
case), it becomes a legal issue which the Court is bound by
constitutional mandate to decide." 13
DECLARATION OF PRINCIPLES
AND STATE POLICIES
The jurisdiction of this Court to adjudicate the matters 14 raised in the
petition is clearly set out in the 1987 Constitution, 15 as follows:
x x x           x x x          x x x

Judicial power includes the duty of the courts of

Sec. 19. The State shall develop a self-reliant and
justice to settle actual controversies involving
independent national economy effectively
rights which are legally demandable and
controlled by Filipinos.
enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any x x x           x x x          x x x
branch or instrumentality of the government.
Article XII
The foregoing text emphasizes the judicial department's duty and
power to strike down grave abuse of discretion on the part of any
NATIONAL ECONOMY AND PATRIMONY
branch or instrumentality of government including Congress. It is an
innovation in our political law. 16 As explained by former Chief Justice
Roberto Concepcion, 17 "the judiciary is the final arbiter on the question x x x           x x x          x x x
of whether or not a branch of government or any of its officials has
acted without jurisdiction or in excess of jurisdiction or so capriciously
as to constitute an abuse of discretion amounting to excess of Sec. 10. . . . The Congress shall enact measures
jurisdiction. This is not only a judicial power but a duty to pass that will encourage the formation and operation of
judgment on matters of this nature." enterprises whose capital is wholly owned by
Filipinos.

157
 In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
x x x           x x x          x x x
Sec. 12. The State shall promote the preferential
use of Filipino labor, domestic materials and
locally produced goods, and adopt measures that
help make them competitive.
Petitioners aver that these sacred constitutional principles are
desecrated by the following WTO provisions quoted in their
memorandum: 19
a) In the area of investment measures related to
trade in goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other
rights and obligations under
GATT 1994, no Member shall
apply any TRIM that is
inconsistent with the
provisions of Article II or
Article XI of GATT 1994.
2. An illustrative list of TRIMS
that are inconsistent with the
obligations of general
elimination of quantitative
restrictions provided for in
paragraph I of Article XI of
GATT 1994 is contained in the
Annex to this Agreement."
(Agreement on Trade-Related
Investment Measures, Vol. 27,
Uruguay Round, Legal
Instruments, p. 22121,
emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation
of national treatment provided for in paragraph 4 of
Article III of GATT 1994 include those which are
mandatory or enforceable under domestic law or
under administrative rulings, or compliance with
which is necessary to obtain an advantage, and
which require:
(a) the purchase or use by an
enterprise of products of
domestic origin or from any
domestic source, whether
specified in terms of particular
products, in terms of volume
or value of products, or in
terms of proportion of volume
or value of its local production;
or
158
(b) that an enterprise's
purchases or use of imported
products be limited to an
amount related to the volume
or value of local products that
it exports.
2. TRIMS that are inconsistent with the obligations
of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of GATT
1994 include those which are mandatory or
enforceable under domestic laws or under
administrative rulings, or compliance with which is
necessary to obtain an advantage, and which
restrict:
(a) the importation by an
enterprise of products used in
or related to the local
production that it exports;
(b) the importation by an
enterprise of products used in
or related to its local
production by restricting its
access to foreign exchange
inflows attributable to the
enterprise; or
(c) the exportation or sale for
export specified in terms of
particular products, in terms of
volume or value of products,
or in terms of a preparation of
volume or value of its local
production. (Annex to the
Agreement on Trade-Related
Investment Measures, Vol. 27,
Uruguay Round Legal
Documents, p. 22125,
emphasis supplied).
The paragraph 4 of Article III of GATT 1994
referred to is quoted as follows:
The products of the territory of
any contracting party imported
into the territory of any other
contracting party shall be
accorded treatment no less
favorable than that accorded
to like products of national
origin in respect of laws,
regulations and requirements
affecting their internal sale,
offering for sale, purchase,
transportation, distribution or
use, the provisions of this
paragraph shall not prevent
the application of differential
internal transportation charges
which are based exclusively
on the economic operation of
the means of transport and
not on the nationality of the
product." (Article III, GATT
1947, as amended by the
Protocol Modifying Part II, and
Article XXVI of GATT, 14
September 1948, 62 UMTS
82-84 in relation to paragraph
1(a) of the General
 Agreement on Tariffs and
Trade 1994, Vol. 1, Uruguay
Round, Legal Instruments p.
177, emphasis supplied).
(b) In the area of trade related aspects of
intellectual property rights (TRIPS, for brevity):
Each Member shall accord to
the nationals of other
Members treatment no less
favourable than that it accords
to its own nationals with
regard to the protection of
intellectual property. . . (par. 1
Article 3, Agreement on
Trade-Related Aspect
Intellectual Property rights,
Vol. 31, Uruguay Round,
Legal Instruments, p. 25432
(emphasis supplied)
(c) In the area of the General Agreement on Trade
in Services:
National Treatment
1. In the sectors inscribed in
its schedule, and subject to
any conditions and
qualifications set out therein,
each Member shall accord to
services and service suppliers
of any other Member, in
respect of all measures
affecting the supply of
services, treatment no less
favourable than it accords to
its own like services and
service suppliers.
2. A Member may meet the
requirement of paragraph I by
according to services and
service suppliers of any other
Member, either formally
suppliers of any other
Member, either formally
identical treatment or formally
different treatment to that it
accords to its own like
services and service
suppliers.
3. Formally identical or
formally different treatment
shall be considered to be less
favourable if it modifies the
conditions of completion in
favour of services or service
suppliers of the Member
compared to like services or
service suppliers of any other
Member. (Article XVII,
General Agreement on Trade
in Services, Vol. 28, Uruguay
Round Legal Instruments, p.
22610 emphasis supplied).
It is petitioners' position that the foregoing "national treatment" and
"parity provisions" of the WTO Agreement "place nationals and
159
products of member countries on the same footing as Filipinos and
local products," in contravention of the "Filipino First" policy of the
Constitution. They allegedly render meaningless the phrase "effectively
controlled by Filipinos." The constitutional conflict becomes more
manifest when viewed in the context of the clear duty imposed on the
Philippines as a WTO member to ensure the conformity of its laws,
regulations and administrative procedures with its obligations as
provided in the annexed agreements. 20 Petitioners further argue that
these provisions contravene constitutional limitations on the role
exports play in national development and negate the preferential
treatment accorded to Filipino labor, domestic materials and locally
produced goods.
On the other hand, respondents through the Solicitor General counter
(1) that such Charter provisions are not self-executing and merely set
out general policies; (2) that these nationalistic portions of the
Constitution invoked by petitioners should not be read in isolation but
of
should be related to other relevant provisions of Art. XII, particularly
Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses
do not conflict with Constitution; and (4) that the WTO Agreement
contains sufficient provisions to protect developing countries like the
Philippines from the harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles
Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of
principles and state policies." The counterpart of this article in the 1935
Constitution 21 is called the "basic political creed of the nation" by Dean
Vicente Sinco. 22 These principles in Article II are not intended to be
self-executing principles ready for enforcement through the
courts. 23 They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its
enactment of laws. As held in the leading case of Kilosbayan,
Incorporated vs. Morato, 24 the principles and state policies
enumerated in Article II and some sections of Article XII are not "self-
executing provisions, the disregard of which can give rise to a cause of
action in the courts. They do not embody judicially enforceable
constitutional rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad
constitutional principles need legislative enactments to implement the,
thus:
On petitioners' allegation that P.D. 1869 violates
Sections 11 (Personal Dignity) 12 (Family) and 13
(Role of Youth) of Article II; Section 13 (Social
Justice) of Article XIII and Section 2 (Educational
Values) of Article XIV of the 1987 Constitution,
suffice it to state also that these are merely
statements of principles and policies. As such,
they are basically not self-executing, meaning a
law should be passed by Congress to clearly
define and effectuate such principles.
In general, therefore, the 1935
provisions were not intended
to be self-executing principles
ready for enforcement through
the courts. They were rather
directives addressed to the
executive and to the
legislature. If the executive
and the legislature failed to
heed the directives of the
article, the available remedy
was not judicial but political.
The electorate could express
their displeasure with the
 failure of the executive and submitted, to propel courts into the uncharted
the legislature through the ocean of social and economic policy making. At
language of the ballot. least in respect of the vast area of environmental
(Bernas, Vol. II, p. 2). protection and management, our courts have no
claim to special technical competence and
experience and professional qualification. Where
The reasons for denying a cause of action to an alleged infringement of
no specific, operable norms and standards are
board constitutional principles are sourced from basic considerations of
shown to exist, then the policy making
due process and the lack of judicial authority to wade "into the
departments — the legislative and executive
uncharted ocean of social and economic policy making." Mr. Justice
departments — must be given a real and effective
Florentino P. Feliciano in his concurring opinion in Oposa vs. Factoran,
opportunity to fashion and promulgate those
Jr., 26 explained these reasons as follows:
norms and standards, and to implement them
before the courts should intervene.
My suggestion is simply that petitioners must,
before the trial court, show a more specific legal
Economic Nationalism Should Be Read with
right — a right cast in language of a significantly
Other Constitutional Mandates to Attain
lower order of generality than Article II (15) of the
Balanced Development of Economy
Constitution — that is or may be violated by the
actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can On the other hand, Secs. 10 and 12 of Article XII, apart from merely
validly render judgment grating all or part of the laying down general principles relating to the national economy and
relief prayed for. To my mind, the court should be patrimony, should be read and understood in relation to the other
understood as simply saying that such a more sections in said article, especially Secs. 1 and 13 thereof which read:
specific legal right or rights may well exist in our
corpus of law, considering the general policy
Sec. 1. The goals of the national economy are a
principles found in the Constitution and the
more equitable distribution of opportunities,
existence of the Philippine Environment Code, and
income, and wealth; a sustained increase in the
that the trial court should have given petitioners an
amount of goods and services produced by the
effective opportunity so to demonstrate, instead of
nation for the benefit of the people; and an
aborting the proceedings on a motion to dismiss.
expanding productivity as the key to raising the
quality of life for all especially the underprivileged.
It seems to me important that the legal right which
is an essential component of a cause of action be
The State shall promote industrialization and full
a specific, operable legal right, rather than a
employment based on sound agricultural
constitutional or statutory policy, for at least two (2)
development and agrarian reform, through
reasons. One is that unless the legal right claimed
industries that make full and efficient use of human
to have been violated or disregarded is given
and natural resources, and which are competitive
specification in operational terms, defendants may
in both domestic and foreign markets. However,
well be unable to defend themselves intelligently
the State shall protect Filipino enterprises against
and effectively; in other words, there are due
unfair foreign competition and trade practices.
process dimensions to this matter.

In the pursuit of these goals, all sectors of the

The second is a broader-gauge consideration —
economy and all regions of the country shall be
where a specific violation of law or applicable
given optimum opportunity to develop. . . .
regulation is not alleged or proved, petitioners can
be expected to fall back on the expanded
conception of judicial power in the second xxx xxx xxx
paragraph of Section 1 of Article VIII of the
Constitution which reads:
Sec. 13. The State shall pursue a trade policy that
serves the general welfare and utilizes all forms
Sec. 1. . . . and arrangements of exchange on the basis of
equality and reciprocity.
Judicial power includes the
duty of the courts of justice to As pointed out by the Solicitor General, Sec. 1 lays down the basic
settle actual controversies goals of national economic development, as follows:
involving rights which are
legally demandable and
1. A more equitable distribution of opportunities, income and wealth;
enforceable, and to determine
whether or not there has been
a grave abuse of discretion 2. A sustained increase in the amount of goods and services provided
amounting to lack or excess of by the nation for the benefit of the people; and
jurisdiction on the part of any
branch or instrumentality of
the Government. (Emphasis 3. An expanding productivity as the key to raising the quality of life for
supplied) all especially the underprivileged.

When substantive standards as general as "the
right to a balanced and healthy ecology" and "the
right to health" are combined with remedial
standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of
jurisdiction," the result will be, it is respectfully
160
With these goals in context, the Constitution then ordains the ideals of
economic nationalism (1) by expressing preference in favor of qualified
Filipinos "in the grant of rights, privileges and concessions covering the
national economy and patrimony" 27 and in the use of "Filipino labor,
domestic materials and locally-produced goods"; (2) by mandating the
State to "adopt measures that help make them competitive; 28 and (3)
by requiring the State to "develop a self-reliant and independent
national economy effectively controlled by Filipinos." 29 In similar
language, the Constitution takes into account the realities of the
outside world as it requires the pursuit of "a trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange
on the basis of equality ad reciprocity"; 30 and speaks of industries
"which are competitive in both domestic and foreign markets" as well
as of the protection of "Filipino enterprises against unfair foreign
competition and trade practices."
It is true that in the recent case of Manila Prince Hotel vs. Government
Service Insurance System, et al., 31 this Court held that "Sec. 10,
second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further
guidelines or implementing laws or rule for its enforcement. From its
very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable." However, as the
constitutional provision itself states, it is enforceable only in regard to
"the grants of rights, privileges and concessions covering national
economy and patrimony" and not to every aspect of trade and
commerce. It refers to exceptions rather than the rule. The issue here
is not whether this paragraph of Sec. 10 of Art. XII is self-executing or
not. Rather, the issue is whether, as a rule, there are enough balancing
provisions in the Constitution to allow the Senate to ratify the Philippine
concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises, at the same time, it
recognizes the need for business exchange with the rest of the world
on the bases of equality and reciprocity and limits protection of Filipino
enterprises only against foreign competition and trade practices that
are unfair. 32 In other words, the Constitution did not intend to pursue
an isolationist policy. It did not shut out foreign investments, goods and
services in the development of the Philippine economy. While the
Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition that is unfair.
WTO Recognizes Need to
Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has
some built-in advantages to protect weak and developing economies,
which comprise the vast majority of its members. Unlike in the UN
where major states have permanent seats and veto powers in the
Security Council, in the WTO, decisions are made on the basis of
sovereign equality, with each member's vote equal in weight to that of
any other. There is no WTO equivalent of the UN Security Council.
development." These basic principles are found in the preamble 34 of
the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade
and economic endeavour should be conducted
with a view to raising standards of living, ensuring
full employment and a large and steadily growing
volume of real income and effective demand, and
expanding the production of and trade in goods
and services, while allowing for the optimal use of
the world's resources in accordance with the
objective of sustainable development, seeking
both to protect and preserve the environment and
to enhance the means for doing so in a manner
consistent with their respective needs and
concerns at different levels of economic
development,
Recognizing further that there is need for positive
efforts designed to ensure that developing
countries, and especially the least developed
among them, secure a share in the growth in
international trade commensurate with the needs
of their economic development,
Being desirous of contributing to these objectives
by entering into reciprocal and mutually
advantageous arrangements directed to the
substantial reduction of tariffs and other barriers to
trade and to the elimination of discriminatory
treatment in international trade relations,
Resolved, therefore, to develop an integrated,
more viable and durable multilateral trading
system encompassing the General Agreement on
Tariffs and Trade, the results of past trade
liberalization efforts, and all of the results of the
Uruguay Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to
further the objectives underlying this multilateral
trading system, . . . (emphasis supplied.)
Specific WTO Provisos
Protect Developing Countries

WTO decides by consensus whenever possible,

So too, the Solicitor General points out that pursuant to and consistent
otherwise, decisions of the Ministerial Conference
with the foregoing basic principles, the WTO Agreement grants
and the General Council shall be taken by the
developing countries a more lenient treatment, giving their domestic
majority of the votes cast, except in cases of
industries some protection from the rush of foreign competition. Thus,
interpretation of the Agreement or waiver of the
with respect to tariffs in general, preferential treatment is given to
obligation of a member which would require three
developing countries in terms of the amount of tariff reduction and
fourths vote. Amendments would require two thirds
the period within which the reduction is to be spread out. Specifically,
vote in general. Amendments to MFN provisions
GATT requires an average tariff reduction rate of 36% for developed
and the Amendments provision will require assent
countries to be effected within a period of six (6) years while
of all members. Any member may withdraw from
developing countries — including the Philippines — are required to
the Agreement upon the expiration of six months
effect an average tariff reduction of only 24% within ten (10) years.
from the date of notice of withdrawals. 33

In respect to domestic subsidy, GATT requires developed countries to

Hence, poor countries can protect their common interests more
reduce domestic support to agricultural products by 20% over six (6)
effectively through the WTO than through one-on-one negotiations with
years, as compared to only 13% for developing countries to be effected
developed countries. Within the WTO, developing countries can form
within ten (10) years.
powerful blocs to push their economic agenda more decisively than
outside the Organization. This is not merely a matter of practical
alliances but a negotiating strategy rooted in law. Thus, the basic In regard to export subsidy for agricultural products, GATT requires
principles underlying the WTO Agreement recognize the need of developed countries to reduce their budgetary outlays for export
developing countries like the Philippines to "share in the growth in subsidy by 36% and export volumes receiving export subsidy by 21%
international trade commensurate with the needs of their economic within a period of six (6) years. For developing countries, however, the
reduction rate is only two-thirds of that prescribed for developed
161
countries and a longer period of ten (10) years within which to effect boils down to whether WTO/GATT will favor the general welfare of the
such reduction. public at large.

Moreover, GATT itself has provided built-in protection from unfair Will adherence to the WTO treaty bring this ideal (of favoring the
foreign competition and trade practices including anti-dumping general welfare) to reality?
measures, countervailing measures and safeguards against import
surges. Where local businesses are jeopardized by unfair foreign
Will WTO/GATT succeed in promoting the Filipinos' general welfare
competition, the Philippines can avail of these measures. There is
because it will — as promised by its promoters — expand the country's
hardly therefore any basis for the statement that under the WTO, local
exports and generate more employment?
industries and enterprises will all be wiped out and that Filipinos will be
deprived of control of the economy. Quite the contrary, the weaker
situations of developing nations like the Philippines have been taken Will it bring more prosperity, employment, purchasing power and
into account; thus, there would be no basis to say that in joining the quality products at the most reasonable rates to the Filipino public?
WTO, the respondents have gravely abused their discretion. True, they
have made a bold decision to steer the ship of state into the yet
The responses to these questions involve "judgment calls" by our
uncharted sea of economic liberalization. But such decision cannot be
policy makers, for which they are answerable to our people during
set aside on the ground of grave abuse of discretion, simply because
appropriate electoral exercises. Such questions and the answers
we disagree with it or simply because we believe only in other
thereto are not subject to judicial pronouncements based on grave
economic policies. As earlier stated, the Court in taking jurisdiction of
abuse of discretion.
this case will not pass upon the advantages and disadvantages of
trade liberalization as an economic policy. It will only perform its
constitutional duty of determining whether the Senate committed grave Constitution Designed to Meet
abuse of discretion. Future Events and Contingencies

Constitution Does Not No doubt, the WTO Agreement was not yet in existence when the
Rule Out Foreign Competition Constitution was drafted and ratified in 1987. That does not mean
however that the Charter is necessarily flawed in the sense that its
framers might not have anticipated the advent of a borderless world of
Furthermore, the constitutional policy of a "self-reliant and independent
business. By the same token, the United Nations was not yet in
national economy" 35 does not necessarily rule out the entry of foreign
existence when the 1935 Constitution became effective. Did that
investments, goods and services. It contemplates neither "economic
necessarily mean that the then Constitution might not have
seclusion" nor "mendicancy in the international community." As
contemplated a diminution of the absoluteness of sovereignty when the
explained by Constitutional Commissioner Bernardo Villegas, sponsor
Philippines signed the UN Charter, thereby effectively surrendering
of this constitutional policy:
part of its control over its foreign relations to the decisions of various
UN organs like the Security Council?
Economic self-reliance is a primary objective of a
developing country that is keenly aware of
It is not difficult to answer this question. Constitutions are designed to
overdependence on external assistance for even
meet not only the vagaries of contemporary events. They should be
its most basic needs. It does not mean autarky or
interpreted to cover even future and unknown circumstances. It is to
economic seclusion; rather, it means avoiding
the credit of its drafters that a Constitution can withstand the assaults
mendicancy in the international community.
of bigots and infidels but at the same time bend with the refreshing
Independence refers to the freedom from undue
winds of change necessitated by unfolding events. As one eminent
foreign control of the national economy, especially
political law writer and respected jurist 38 explains:
in such strategic industries as in the development
of natural resources and public utilities. 36
The Constitution must be quintessential rather
than superficial, the root and not the blossom, the
The WTO reliance on "most favored nation," "national treatment," and
base and frame-work only of the edifice that is yet
"trade without discrimination" cannot be struck down as
to rise. It is but the core of the dream that must
unconstitutional as in fact they are rules of equality and reciprocity that
take shape, not in a twinkling by mandate of our
apply to all WTO members. Aside from envisioning a trade policy
delegates, but slowly "in the crucible of Filipino
based on "equality and reciprocity," 37 the fundamental law encourages
minds and hearts," where it will in time develop its
industries that are "competitive in both domestic and foreign markets,"
sinews and gradually gather its strength and finally
thereby demonstrating a clear policy against a sheltered domestic
achieve its substance. In fine, the Constitution
trade environment, but one in favor of the gradual development of
cannot, like the goddess Athena, rise full-grown
robust industries that can compete with the best in the foreign markets.
from the brow of the Constitutional Convention,
Indeed, Filipino managers and Filipino enterprises have shown
nor can it conjure by mere fiat an instant Utopia. It
capability and tenacity to compete internationally. And given a free
must grow with the society it seeks to re-structure
trade environment, Filipino entrepreneurs and managers in Hongkong
and march apace with the progress of the race,
have demonstrated the Filipino capacity to grow and to prosper against
drawing from the vicissitudes of history the
the best offered under a policy of laissez faire.
dynamism and vitality that will keep it, far from
becoming a petrified rule, a pulsing, living law
Constitution Favors Consumers, attuned to the heartbeat of the nation.
Not Industries or Enterprises
Third Issue: The WTO Agreement and Legislative Power
The Constitution has not really shown any unbalanced bias in favor of
any business or enterprise, nor does it contain any specific
The WTO Agreement provides that "(e)ach Member shall ensure the
pronouncement that Filipino companies should be pampered with a
conformity of its laws, regulations and administrative procedures with
total proscription of foreign competition. On the other hand,
its obligations as provided in the annexed Agreements." 39 Petitioners
respondents claim that WTO/GATT aims to make available to the
maintain that this undertaking "unduly limits, restricts and impairs
Filipino consumer the best goods and services obtainable anywhere in
Philippine sovereignty, specifically the legislative power which under
the world at the most reasonable prices. Consequently, the question
Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the
Congress of the Philippines. It is an assault on the sovereign powers of
162
the Philippines because this means that Congress could not pass
legislation that will be good for our national interest and general welfare
if such legislation will not conform with the WTO Agreement, which not
only relates to the trade in goods . . . but also to the flow of investments
and money . . . as well as to a whole slew of agreements on socio-
cultural matters . . . 40
More specifically, petitioners claim that said WTO proviso derogates
from the power to tax, which is lodged in the Congress. 41 And while
the Constitution allows Congress to authorize the President to fix tariff
rates, import and export quotas, tonnage and wharfage dues, and
other duties or imposts, such authority is subject to "specified limits
and . . . such limitations and restrictions" as Congress may
provide, 42 as in fact it did under Sec. 401 of the Tariff and Customs
Code.
Sovereignty Limited by
International Law and Treaties
This Court notes and appreciates the ferocity and passion by which
petitioners stressed their arguments on this issue. However, while
sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to
restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations.
Unquestionably, the Constitution did not envision a hermit-type
isolation of the country from the rest of the world. In its Declaration of
Principles and State Policies, the Constitution "adopts the generally
accepted principles of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity, with all nations." 43 By the doctrine of
incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our
own laws. 44 One of the oldest and most fundamental rules in
international law is pacta sunt servanda — international agreements
must be performed in good faith. "A treaty engagement is not a mere
moral obligation but creates a legally binding obligation on the
parties . . . A state which has contracted valid international obligations
is bound to make in its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations undertaken." 45
By their inherent nature, treaties really limit or restrict the absoluteness
of sovereignty. By their voluntary act, nations may surrender some
aspects of their state power in exchange for greater benefits granted
by or derived from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of mutually covenanted
objectives and benefits, they also commonly agree to limit the exercise
of their otherwise absolute rights. Thus, treaties have been used to
record agreements between States concerning such widely diverse
matters as, for example, the lease of naval bases, the sale or cession
of territory, the termination of war, the regulation of conduct of
hostilities, the formation of alliances, the regulation of commercial
relations, the settling of claims, the laying down of rules governing
conduct in peace and the establishment of international
organizations. 46 The sovereignty of a state therefore cannot in fact and
in reality be considered absolute. Certain restrictions enter into the
picture: (1) limitations imposed by the very nature of membership in the
family of nations and (2) limitations imposed by treaty stipulations. As
aptly put by John F. Kennedy, "Today, no nation can build its destiny
alone. The age of self-sufficient nationalism is over. The age of
interdependence is here." 47
UN Charter and Other Treaties
Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51
charter members, it consented to restrict its sovereign rights under the
"concept of sovereignty as auto-limitation." 47-A Under Article 2 of the
UN Charter, "(a)ll members shall give the United Nations every
assistance in any action it takes in accordance with the present
Charter, and shall refrain from giving assistance to any state against
which the United Nations is taking preventive or enforcement action."
163
Such assistance includes payment of its corresponding share not
merely in administrative expenses but also in expenditures for the
peace-keeping operations of the organization. In its advisory opinion of
July 20, 1961, the International Court of Justice held that money used
by the United Nations Emergency Force in the Middle East and in the
Congo were "expenses of the United Nations" under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It is compelled to
appropriate funds whether it agrees with such peace-keeping
expenses or not. So too, under Article 105 of the said Charter, the UN
and its representatives enjoy diplomatic privileges and immunities,
thereby limiting again the exercise of sovereignty of members within
their own territory. Another example: although "sovereign equality" and
"domestic jurisdiction" of all members are set forth as underlying
principles in the UN Charter, such provisos are however subject to
enforcement measures decided by the Security Council for the
maintenance of international peace and security under Chapter VII of
the Charter. A final example: under Article 103, "(i)n the event of a
conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other
international agreement, their obligation under the present charter shall
prevail," thus unquestionably denying the Philippines — as a member
— the sovereign power to make a choice as to which of conflicting
obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other
international pacts — both bilateral and multilateral — that involve
limitations on Philippine sovereignty. These are enumerated by the
Solicitor General in his Compliance dated October 24, 1996, as
follows:
(a) Bilateral convention with the United States
regarding taxes on income, where the Philippines
agreed, among others, to exempt from tax, income
received in the Philippines by, among others, the
Federal Reserve Bank of the United States, the
Export/Import Bank of the United States, the
Overseas Private Investment Corporation of the
United States. Likewise, in said convention,
wages, salaries and similar remunerations paid by
the United States to its citizens for labor and
personal services performed by them as
employees or officials of the United States are
exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing,
among others, for the avoidance of double taxation
with respect to taxes on income.
(c) Bilateral convention with the Kingdom of
Sweden for the avoidance of double taxation.
(d) Bilateral convention with the French Republic
for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea
where the Philippines agreed to exempt from all
customs duties, inspection fees and other duties or
taxes aircrafts of South Korea and the regular
equipment, spare parts and supplies arriving with
said aircrafts.
(f) Bilateral air service agreement with Japan,
where the Philippines agreed to exempt from
customs duties, excise taxes, inspection fees and
other similar duties, taxes or charges fuel,
lubricating oils, spare parts, regular equipment,
stores on board Japanese aircrafts while on
Philippine soil.
 (g) Bilateral air service agreement with Belgium
where the Philippines granted Belgian air carriers
the same privileges as those granted to Japanese
and Korean air carriers under separate air service
agreements.
(h) Bilateral notes with Israel for the abolition of
transit and visitor visas where the Philippines
exempted Israeli nationals from the requirement of
obtaining transit or visitor visas for a sojourn in the
Philippines not exceeding 59 days.
(i) Bilateral agreement with France exempting
French nationals from the requirement of obtaining
transit and visitor visa for a sojourn not exceeding
59 days.
(j) Multilateral Convention on Special Missions,
where the Philippines agreed that premises of
Special Missions in the Philippines are inviolable
and its agents can not enter said premises without
consent of the Head of Mission concerned. Special
Missions are also exempted from customs duties,
taxes and related charges.
(k) Multilateral convention on the Law of Treaties.
In this convention, the Philippines agreed to be
governed by the Vienna Convention on the Law of
Treaties.
(l) Declaration of the President of the Philippines
accepting compulsory jurisdiction of the
International Court of Justice. The International
Court of Justice has jurisdiction in all legal
disputes concerning the interpretation of a treaty,
any question of international law, the existence of
any fact which, if established, would constitute a
breach "of international obligation."
In the foregoing treaties, the Philippines has effectively agreed to limit
the exercise of its sovereign powers of taxation, eminent domain and
police power. The underlying consideration in this partial surrender of
sovereignty is the reciprocal commitment of the other contracting
states in granting the same privilege and immunities to the Philippines,
its officials and its citizens. The same reciprocity characterizes the
Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear
disarmament, human rights, the environment, the
law of the sea, or trade, constrain domestic
political sovereignty through the assumption of
external obligations. But unless anarchy in
international relations is preferred as an
alternative, in most cases we accept that the
benefits of the reciprocal obligations involved
outweigh the costs associated with any loss of
political sovereignty. (T)rade treaties that structure
relations by reference to durable, well-defined
substantive norms and objective dispute resolution
procedures reduce the risks of larger countries
exploiting raw economic power to bully smaller
countries, by subjecting power relations to some
form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately
from trade liberalization. This is due to the simple
fact that liberalization will provide access to a
larger set of potential new trading relationship than
in case of the larger country gaining enhanced
success to the smaller country's market. 48
164
The point is that, as shown by the foregoing treaties, a portion of
sovereignty may be waived without violating the Constitution, based on
the rationale that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres
to the policy of . . . cooperation and amity with all nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions
and Basic Principles of the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) 49 intrudes on the power of the
Supreme Court to promulgate rules concerning pleading, practice and
procedures. 50
To understand the scope and meaning of Article 34, TRIPS, 51 it will be
fruitful to restate its full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect
of the infringement of the rights of the owner
referred to in paragraph 1 (b) of Article 28, if the
subject matter of a patent is a process for
obtaining a product, the judicial authorities shall
have the authority to order the defendant to prove
that the process to obtain an identical product is
different from the patented process. Therefore,
Members shall provide, in at least one of the
following circumstances, that any identical product
when produced without the consent of the patent
owner shall, in the absence of proof to the
contrary, be deemed to have been obtained by the
patented process:
(a) if the product obtained by
the patented process is new;
(b) if there is a substantial
likelihood that the identical
product was made by the
process and the owner of the
patent has been unable
through reasonable efforts to
determine the process
actually used.
2. Any Member shall be free to provide that the
burden of proof indicated in paragraph 1 shall be
on the alleged infringer only if the condition
referred to in subparagraph (a) is fulfilled or only if
the condition referred to in subparagraph (b) is
fulfilled.
3. In the adduction of proof to the contrary, the
legitimate interests of defendants in protecting
their manufacturing and business secrets shall be
taken into account.
From the above, a WTO Member is required to provide a rule of
disputable (not the words "in the absence of proof to the contrary")
presumption that a product shown to be identical to one produced with
the use of a patented process shall be deemed to have been obtained
by the (illegal) use of the said patented process, (1) where such
product obtained by the patented product is new, or (2) where there is
"substantial likelihood" that the identical product was made with the
use of the said patented process but the owner of the patent could not
determine the exact process used in obtaining such identical product.
Hence, the "burden of proof" contemplated by Article 34 should
actually be understood as the duty of the alleged patent infringer to
overthrow such presumption. Such burden, properly understood,
actually refers to the "burden of evidence" (burden of going forward)
placed on the producer of the identical (or fake) product to show that
his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the "burden
of proof" since, regardless of the presumption provided under
paragraph 1 of Article 34, such owner still has to introduce evidence of
the existence of the alleged identical product, the fact that it is
"identical" to the genuine one produced by the patented process and
the fact of "newness" of the genuine product or the fact of "substantial
likelihood" that the identical product was made by the patented
process.
The foregoing should really present no problem in changing the rules
of evidence as the present law on the subject, Republic Act No. 165,
as amended, otherwise known as the Patent Law, provides a similar
presumption in cases of infringement of patented design or utility
model, thus:
"A final act, sometimes called protocol de cloture, is an instrument
which records the winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed upon and signed
by the plenipotentiaries attending the conference." 54 It is not the treaty
itself. It is rather a summary of the proceedings of a protracted
conference which may have taken place over several years. The text of
the "Final Act Embodying the Results of the Uruguay Round of
Multilateral Trade Negotiations" is contained in just one page 55 in Vol. I
of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By
signing said Final Act, Secretary Navarro as representative of the
Republic of the Philippines undertook:
(a) to submit, as appropriate, the WTO Agreement
for the consideration of their respective competent
authorities with a view to seeking approval of the
Agreement in accordance with their procedures;
and
(b) to adopt the Ministerial Declarations and
Decisions.

Sec. 60. Infringement. — Infringement of a design The assailed Senate Resolution No. 97 expressed concurrence in
patent or of a patent for utility model shall consist exactly what the Final Act required from its signatories, namely,
in unauthorized copying of the patented design or concurrence of the Senate in the WTO Agreement.
utility model for the purpose of trade or industry in
the article or product and in the making, using or
The Ministerial Declarations and Decisions were deemed adopted
selling of the article or product copying the
without need for ratification. They were approved by the ministers by
patented design or utility model. Identity or
virtue of Article XXV: 1 of GATT which provides that representatives of
substantial identity with the patented design or
the members can meet "to give effect to those provisions of this
utility model shall constitute evidence of copying.
Agreement which invoke joint action, and generally with a view to
(emphasis supplied)
facilitating the operation and furthering the objectives of this
Agreement." 56
Moreover, it should be noted that the requirement of Article 34 to
provide a disputable presumption applies only if (1) the product
The Understanding on Commitments in Financial Services also
obtained by the patented process in NEW or (2) there is a substantial
approved in Marrakesh does not apply to the Philippines. It applies
likelihood that the identical product was made by the process and the
only to those 27 Members which "have indicated in their respective
process owner has not been able through reasonable effort to
schedules of commitments on standstill, elimination of monopoly,
determine the process used. Where either of these two provisos does
expansion of operation of existing financial service suppliers,
not obtain, members shall be free to determine the appropriate method
temporary entry of personnel, free transfer and processing of
of implementing the provisions of TRIPS within their own internal
information, and national treatment with respect to access to payment,
systems and processes.
clearing systems and refinancing available in the normal course of
business."57
By and large, the arguments adduced in connection with our
disposition of the third issue — derogation of legislative power — will
On the other hand, the WTO Agreement itself expresses what
apply to this fourth issue also. Suffice it to say that the reciprocity
multilateral agreements are deemed included as its integral parts, 58 as
clause more than justifies such intrusion, if any actually exists.
follows:
Besides, Article 34 does not contain an unreasonable burden,
consistent as it is with due process and the concept of adversarial
dispute settlement inherent in our judicial system. Article II

So too, since the Philippine is a signatory to most international Scope of the WTO
conventions on patents, trademarks and copyrights, the adjustment in
legislation and rules of procedure will not be substantial. 52
1. The WTO shall provide the common institutional
frame-work for the conduct of trade relations
Fifth Issue: Concurrence Only in the WTO Agreement and among its Members in matters to the agreements
Not in Other Documents Contained in the Final Act and associated legal instruments included in the
Annexes to this Agreement.
Petitioners allege that the Senate concurrence in the WTO Agreement
and its annexes — but not in the other documents referred to in the 2. The Agreements and associated legal
Final Act, namely the Ministerial Declaration and Decisions and the instruments included in Annexes 1, 2, and 3,
Understanding on Commitments in Financial Services — is defective (hereinafter referred to as "Multilateral
and insufficient and thus constitutes abuse of discretion. They submit Agreements") are integral parts of this Agreement,
that such concurrence in the WTO Agreement alone is flawed because binding on all Members.
it is in effect a rejection of the Final Act, which in turn was the
document signed by Secretary Navarro, in representation of the
3. The Agreements and associated legal
Republic upon authority of the President. They contend that the second
instruments included in Annex 4 (hereinafter
letter of the President to the Senate 53 which enumerated what
referred to as "Plurilateral Trade Agreements") are
constitutes the Final Act should have been the subject of concurrence
also part of this Agreement for those Members that
of the Senate.
have accepted them, and are binding on those

165
 Members. The Plurilateral Trade Agreements do I am now satisfied with the wording of the new
not create either obligation or rights for Members submission of President Ramos.
that have not accepted them.
SEN. TAÑADA. . . . of President Ramos, Mr.
4. The General Agreement on Tariffs and Trade Chairman.
1994 as specified in annex 1A (hereinafter referred
to as "GATT 1994") is legally distinct from the
THE CHAIRMAN. Thank you, Senator Tañada.
General Agreement on Tariffs and Trade, dated 30
Can we hear from Senator Tolentino? And after
October 1947, annexed to the Final Act adopted at
him Senator Neptali Gonzales and Senator Lina.
the conclusion of the Second Session of the
Preparatory Committee of the United Nations
Conference on Trade and Employment, as SEN. TOLENTINO, Mr. Chairman, I have not seen
subsequently rectified, amended or modified the new submission actually transmitted to us but I
(hereinafter referred to as "GATT 1947"). saw the draft of his earlier, and I think it now
complies with the provisions of the Constitution,
and with the Final Act itself . The Constitution does
It should be added that the Senate was well-aware of what it was
not require us to ratify the Final Act. It requires us
concurring in as shown by the members' deliberation on August 25,
to ratify the Agreement which is now being
1994. After reading the letter of President Ramos dated August 11,
submitted. The Final Act itself specifies what is
1994, 59 the senators
going to be submitted to with the governments of
of the Republic minutely dissected what the Senate was concurring in,
the participants.
as follows: 60

In paragraph 2 of the Final Act, we read and I

THE CHAIRMAN: Yes. Now, the question of the
quote:
validity of the submission came up in the first day
hearing of this Committee yesterday. Was the
observation made by Senator Tañada that what By signing the present Final Act, the
was submitted to the Senate was not the representatives agree: (a) to submit as appropriate
agreement on establishing the World Trade the WTO Agreement for the consideration of the
Organization by the final act of the Uruguay Round respective competent authorities with a view to
which is not the same as the agreement seeking approval of the Agreement in accordance
establishing the World Trade Organization? And with their procedures.
on that basis, Senator Tolentino raised a point of
order which, however, he agreed to withdraw upon
In other words, it is not the Final Act that was
understanding that his suggestion for an
agreed to be submitted to the governments for
alternative solution at that time was acceptable.
ratification or acceptance as whatever their
That suggestion was to treat the proceedings of
constitutional procedures may provide but it is the
the Committee as being in the nature of briefings
World Trade Organization Agreement. And if that
for Senators until the question of the submission
is the one that is being submitted now, I think it
could be clarified.
satisfies both the Constitution and the Final Act
itself .
And so, Secretary Romulo, in effect, is the
President submitting a new . . . is he making a new
Thank you, Mr. Chairman.
submission which improves on the clarity of the
first submission?
THE CHAIRMAN. Thank you, Senator Tolentino,
May I call on Senator Gonzales.
MR. ROMULO: Mr. Chairman, to make sure that it
is clear cut and there should be no
misunderstanding, it was his intention to clarify all SEN. GONZALES. Mr. Chairman, my views on
matters by giving this letter. this matter are already a matter of record. And
they had been adequately reflected in the journal
of yesterday's session and I don't see any need for
THE CHAIRMAN: Thank you.
repeating the same.

Can this Committee hear from Senator Tañada

Now, I would consider the new submission as an
and later on Senator Tolentino since they were the
act ex abudante cautela.
ones that raised this question yesterday?

THE CHAIRMAN. Thank you, Senator Gonzales.

Senator Tañada, please.
Senator Lina, do you want to make any comment
on this?
SEN. TAÑADA: Thank you, Mr. Chairman.
SEN. LINA. Mr. President, I agree with the
Based on what Secretary Romulo has read, it observation just made by Senator Gonzales out of
would now clearly appear that what is being the abundance of question. Then the new
submitted to the Senate for ratification is not the submission is, I believe, stating the obvious and
Final Act of the Uruguay Round, but rather the therefore I have no further comment to make.
Agreement on the World Trade Organization as
well as the Ministerial Declarations and Decisions,
Epilogue
and the Understanding and Commitments in
Financial Services.
In praying for the nullification of the Philippine ratification of the WTO
Agreement, petitioners are invoking this Court's constitutionally
166
imposed duty "to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction" on the
part of the Senate in giving its concurrence therein via Senate
Resolution No. 97. Procedurally, a writ of certiorari grounded on grave
abuse of discretion may be issued by the Court under Rule 65 of the
Rules of Court when it is amply shown that petitioners have no other
plain, speedy and adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction. 61 Mere
abuse of discretion is not enough. It must be grave abuse of discretion
as when the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and must be so patent and so
gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of
law. 62 Failure on the part of the petitioner to show grave abuse of
discretion will result in the dismissal of the petition. 63
will become the dominant region of the world economically, politically
and culturally in the next century." He refers to the "free market"
espoused by WTO as the "catalyst" in this coming Asian ascendancy.
There are at present about 31 countries including China, Russia and
Saudi Arabia negotiating for membership in the WTO. Notwithstanding
objections against possible limitations on national sovereignty, the
WTO remains as the only viable structure for multilateral trading and
the veritable forum for the development of international trade law. The
alternative to WTO is isolation, stagnation, if not economic self-
destruction. Duly enriched with original membership, keenly aware of
the advantages and disadvantages of globalization with its on-line
experience, and endowed with a vision of the future, the Philippines
now straddles the crossroads of an international strategy for economic
prosperity and stability in the new millennium. Let the people, through
their duly authorized elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.

In rendering this Decision, this Court never forgets that the Senate, SO ORDERED.
whose act is under review, is one of two sovereign houses of Congress
and is thus entitled to great respect in its actions. It is itself a
constitutional body independent and coordinate, and thus its actions
are presumed regular and done in good faith. Unless convincing proof
and persuasive arguments are presented to overthrow such
presumptions, this Court will resolve every doubt in its favor. Using the
foregoing well-accepted definition of grave abuse of discretion and the
presumption of regularity in the Senate's processes, this Court cannot
find any cogent reason to impute grave abuse of discretion to the
Senate's exercise of its power of concurrence in the WTO Agreement
granted it by Sec. 21 of Article VII of the Constitution. 64

It is true, as alleged by petitioners, that broad constitutional principles

require the State to develop an independent national economy
effectively controlled by Filipinos; and to protect and/or prefer Filipino
labor, products, domestic materials and locally produced goods. But it
is equally true that such principles — while serving as judicial and
legislative guides — are not in themselves sources of causes of action.
Moreover, there are other equally fundamental constitutional principles
relied upon by the Senate which mandate the pursuit of a "trade policy
that serves the general welfare and utilizes all forms and arrangements
of exchange on the basis of equality and reciprocity" and the promotion
of industries "which are competitive in both domestic and foreign
markets," thereby justifying its acceptance of said treaty. So too, the
alleged impairment of sovereignty in the exercise of legislative and
judicial powers is balanced by the adoption of the generally accepted
principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity
with all nations.

That the Senate, after deliberation and voting, voluntarily and

overwhelmingly gave its consent to the WTO Agreement thereby
making it "a part of the law of the land" is a legitimate exercise of its
sovereign duty and power. We find no "patent and gross" arbitrariness
or despotism "by reason of passion or personal hostility" in such
exercise. It is not impossible to surmise that this Court, or at least
some of its members, may even agree with petitioners that it is more
advantageous to the national interest to strike down Senate Resolution
No. 97. But that is not a legal reason to attribute grave abuse of
discretion to the Senate and to nullify its decision. To do so would
constitute grave abuse in the exercise of our own judicial power and
duty. Ineludably, what the Senate did was a valid exercise of its
authority. As to whether such exercise was wise, beneficial or viable is
outside the realm of judicial inquiry and review. That is a matter
between the elected policy makers and the people. As to whether the
nation should join the worldwide march toward trade liberalization and
economic globalization is a matter that our people should determine in
electing their policy makers. After all, the WTO Agreement allows
withdrawal of membership, should this be the political desire of a
member.

The eminent futurist John Naisbitt, author of the best

seller Megatrends, predicts an Asian Renaissance 65 where "the East

167
G.R. No. 139325             April 12, 2005
PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B.
NARCISO, SR. MARIANI DIMARANAN, SFIC, and JOEL C.
LAMANGAN in their behalf and on behalf of the Class Plaintiffs in
Class Action No. MDL 840, United States District Court of
Hawaii, Petitioner,
vs.
HON. SANTIAGO JAVIER RANADA, in his capacity as Presiding
Judge of Branch 137, Regional Trial Court, Makati City, and the
ESTATE OF FERDINAND E. MARCOS, through its court appointed
legal representatives in Class Action MDL 840, United States
District Court of Hawaii, namely: Imelda R. Marcos and Ferdinand
Marcos, Jr., Respondents.
DECISION
TINGA, J.:
Our martial law experience bore strange unwanted fruits, and we have
yet to finish weeding out its bitter crop. While the restoration of freedom
and the fundamental structures and processes of democracy have
been much lauded, according to a significant number, the changes,
however, have not sufficiently healed the colossal damage wrought
under the oppressive conditions of the martial law period. The cries of
justice for the tortured, the murdered, and the desaparecidos arouse
outrage and sympathy in the hearts of the fair-minded, yet the
dispensation of the appropriate relief due them cannot be extended
through the same caprice or whim that characterized the ill-wind of
martial rule. The damage done was not merely personal but
institutional, and the proper rebuke to the iniquitous past has to involve
the award of reparations due within the confines of the restored rule of
law.
The petitioners in this case are prominent victims of human rights
violations1 who, deprived of the opportunity to directly confront the man
who once held absolute rule over this country, have chosen to do battle
instead with the earthly representative, his estate. The clash has been
for now interrupted by a trial court ruling, seemingly comported to legal
logic, that required the petitioners to pay a whopping filing fee of over
Four Hundred Seventy-Two Million Pesos (P472,000,000.00) in order
that they be able to enforce a judgment awarded them by a foreign
court.  There is an understandable temptation to cast the struggle
within the simplistic confines of a morality tale, and to employ short-
cuts to arrive at what might seem the desirable solution. But easy,
reflexive resort to the equity principle all too often leads to a result that
may be morally correct, but legally wrong.
Nonetheless, the application of the legal principles involved in this case
will comfort those who maintain that our substantive and procedural
laws, for all their perceived ambiguity and susceptibility to myriad
interpretations, are inherently fair and just. The relief sought by the
petitioners is expressly mandated by our laws and conforms to
established legal principles. The granting of this petition for certiorari is
warranted in order to correct the legally infirm and unabashedly unjust
ruling of the respondent judge.
The essential facts bear little elaboration. On 9 May 1991, a complaint
was filed with the United States District Court (US District Court),
District of Hawaii, against the Estate of former Philippine President
Ferdinand E. Marcos (Marcos Estate). The action was brought forth by
ten Filipino citizens2 who each alleged having suffered human rights
abuses such as arbitrary detention, torture and rape in the hands of
police or military forces during the Marcos regime. 3 The Alien Tort Act
was invoked as basis for the US District Court's jurisdiction over the
complaint, as it involved a suit by aliens for tortious violations of
international law.4 These plaintiffs brought the action on their own
behalf and on behalf of a class of similarly situated individuals,
particularly consisting of all current civilian citizens of the Philippines,
their heirs and beneficiaries, who between 1972 and 1987 were
168
tortured, summarily executed or had disappeared while in the custody
of military or paramilitary groups. Plaintiffs alleged that the class
consisted of approximately ten thousand (10,000) members; hence,
joinder of all these persons was impracticable.
The institution of a class action suit was warranted under Rule 23(a)
and (b)(1)(B) of the US Federal Rules of Civil Procedure, the
provisions of which were invoked by the plaintiffs. Subsequently, the
US District Court certified the case as a class action and created three
(3) sub-classes of torture, summary execution and disappearance
victims.5 Trial ensued, and subsequently a jury rendered a verdict and
an award of compensatory and exemplary damages in favor of the
plaintiff class.  Then, on 3 February 1995, the US District Court,
presided by Judge Manuel L. Real, rendered a Final Judgment (Final
Judgment) awarding the plaintiff class a total of One Billion Nine
Hundred Sixty Four Million Five Thousand Eight Hundred Fifty Nine
Dollars and Ninety Cents ($1,964,005,859.90). The Final
Judgment was eventually affirmed by the US Court of Appeals for the
Ninth Circuit, in a decision rendered on 17 December 1996.6
On 20 May 1997, the present petitioners filed Complaint with the
Regional Trial Court, City of Makati (Makati RTC) for the enforcement
of the Final Judgment.  They alleged that they are members of the
plaintiff class in whose favor the US District Court awarded
damages.7 They argued that since the Marcos Estate failed to file a
petition for certiorari with the US Supreme Court after the Ninth Circuit
Court of Appeals had affirmed the Final Judgment, the decision of the
US District Court had become final and executory, and hence should
be recognized and enforced in the Philippines, pursuant to Section 50,
Rule 39 of the Rules of Court then in force.8
On 5 February 1998, the Marcos Estate filed a motion to dismiss,
raising, among others, the non-payment of the correct filing fees.  It
alleged that petitioners had only paid Four Hundred Ten Pesos
(P410.00) as docket and filing fees, notwithstanding the fact that they
sought to enforce a monetary amount of damages in the amount of
over Two and a Quarter Billion US Dollars (US$2.25 Billion).  The
Marcos Estate cited Supreme Court Circular No. 7, pertaining to the
proper computation and payment of docket fees.  In response, the
petitioners claimed that an action for the enforcement of a foreign
judgment is not capable of pecuniary estimation; hence, a filing fee of
only Four Hundred Ten Pesos (P410.00) was proper, pursuant to
Section 7(c) of Rule 141.9
On 9 September 1998, respondent Judge Santiago Javier Ranada 10 of
the Makati RTC issued the subject Order dismissing the complaint
without prejudice. Respondent judge opined that contrary to the
petitioners' submission, the subject matter of the complaint was indeed
capable of pecuniary estimation, as it involved a judgment rendered by
a foreign court ordering the payment of definite sums of money,
allowing for easy determination of the value of the foreign judgment.
On that score, Section 7(a) of Rule 141 of the Rules of Civil Procedure
would find application, and the RTC estimated the proper amount of
filing fees was approximately Four Hundred Seventy Two Million
Pesos, which obviously had not been paid.
Not surprisingly, petitioners filed a Motion for Reconsideration, which
Judge Ranada denied in an Order dated 28 July 1999. From this
denial, petitioners filed a Petition for Certiorari under Rule 65 assailing
the twin orders of respondent judge. 11 They prayed for the annulment of
the questioned orders, and an order directing the reinstatement of Civil
Case No. 97-1052 and the conduct of appropriate proceedings
thereon.
Petitioners submit that their action is incapable of pecuniary estimation
as the subject matter of the suit is the enforcement of a foreign
judgment, and not an action for the collection of a sum of money or
recovery of damages.  They also point out that to require the class
plaintiffs to pay Four Hundred Seventy Two Million Pesos
(P472,000,000.00) in filing fees would negate and render inutile the
liberal construction ordained by the Rules of Court, as required by
Section 6, Rule 1 of the Rules of Civil Procedure, particularly the
inexpensive disposition of every action.
Petitioners invoke Section 11, Article III of the Bill of Rights of the
Constitution, which provides that "Free access to the courts and quasi-
judicial bodies and adequate legal assistance shall not be denied to
any person by reason of poverty," a mandate which is essentially
defeated by the required exorbitant filing fee. The adjudicated amount
of the filing fee, as arrived at by the RTC, was characterized as
indisputably unfair, inequitable, and unjust.
The Commission on Human Rights (CHR) was permitted to intervene
in this case.12 It urged that the petition be granted and a judgment
rendered, ordering the enforcement and execution of the District Court
judgment in accordance with Section 48, Rule 39 of the 1997 Rules of
Civil Procedure. For the CHR, the Makati RTC erred in interpreting the
action for the execution of a foreign judgment as a new case, in
violation of the principle that once a case has been decided between
the same parties in one country on the same issue with finality, it can
no longer be relitigated again in another country. 13 The CHR likewise
invokes the principle of comity, and of vested rights.
The Court's disposition on the issue of filing fees will prove a useful
jurisprudential guidepost for courts confronted with actions enforcing
foreign judgments, particularly those lodged against an estate. There is
no basis for the issuance a limited pro hac vice ruling based on the
special circumstances of the petitioners as victims of martial law, or on
the emotionally-charged allegation of human rights abuses.
(Emphasis supplied)
Obviously, the above-quoted provision covers, on one hand, ordinary
actions, permissive counterclaims, third-party, etc. complaints and
complaints-in-interventions, and on the other, money claims against
estates which are not based on judgment.  Thus, the relevant question
for purposes of the present petition is whether the action filed with the
lower court is a "money claim against an estate not based on
judgment."
Petitioners' complaint may have been lodged against an estate, but it is
clearly based on a judgment, the Final Judgment of the US District
Court. The provision does not make any distinction between a local
judgment and a foreign judgment, and where the law does not
distinguish, we shall not distinguish.
A reading of Section 7 in its entirety reveals several instances wherein
the filing fee is computed on the basis of the amount of the relief
sought, or on the value of the property in litigation. The filing fee for
requests for extrajudicial foreclosure of mortgage is based on the
amount of indebtedness or the mortgagee's claim. 14 In special
proceedings involving properties such as for the allowance of wills, the
filing fee is again based on the value of the property. 15 The aforecited
rules evidently have no application to petitioners' complaint.
Petitioners rely on Section 7(b), particularly the proviso on actions
where the value of the subject matter cannot be estimated. The
provision reads in full:

SEC. 7. Clerk of Regional Trial Court.-

An examination of Rule 141 of the Rules of Court readily evinces that
the respondent judge ignored the clear letter of the law when he
concluded that the filing fee be computed based on the total sum (b) For filing
claimed or the stated value of the property in litigation.
1.          Actions where the value
In dismissing the complaint, the respondent judge relied on Section
7(a), Rule 141 as basis for the computation of the filing fee of
of the subject matter
over P472 Million.  The provision states:

cannot be estimated             ---           P 600.00

SEC. 7. Clerk of Regional Trial Court.-

2.          Special civil actions except

(a) For filing an action or a permissive
counterclaim or money claim against an estate
not based on judgment, or for filing with leave of judicial foreclosure which
court a third-party, fourth-party, etc., complaint, or
a complaint in intervention, and for all clerical
services in the same time, if the total sum claimed, shall be governed by
exclusive of interest, or the started value of the
property in litigation, is: paragraph (a) above          ---           P 600.00

3.          All other actions not

1. Less than P 100,00.00

involving property           ---           P 600.00

2. P 100,000.00 or more but less than P 150,000.00

In a real action, the assessed value of the property, or if there is none,

3. P 150,000.00 or more but less than P 200,000.00
the estimated value, thereof shall be alleged by the claimant and shall
be the basis in computing the fees.
4. P 200,000.00 or more but less than P 250,000.00
It is worth noting that the provision also provides that in real actions,
5. P 250,000.00 or more but less than P 300,00.00 the assessed value or estimated value of the property shall be alleged
by the claimant and shall be the basis in computing the fees. Yet again,
this provision does not apply in the case at bar. A real action is one
6. P 300,000.00 or more but not more than P 400,000.00
where the plaintiff seeks the recovery of real property or an action
affecting title to or recovery of possession of real property. 16 Neither the
complaint nor the award of damages adjudicated by the US District
7. P 350,000.00 or more but not more than P400,000.00
Court involves any real property of the Marcos Estate.
8. For each P 1,000.00 in excess of P 400,000.00
Thus, respondent judge was in clear and serious error when he
concluded that the filing fees should be computed on the basis of the
169
schematic table of Section 7(a), as the action involved pertains to a
claim against an estate based on judgment. What provision, if any,
then should apply in determining the filing fees for an action to enforce
a foreign judgment?
To resolve this question, a proper understanding is required on the
nature and effects of a foreign judgment in this jurisdiction.
The rules of comity, utility and convenience of nations have established
a usage among civilized states by which final judgments of foreign
courts of competent jurisdiction are reciprocally respected and
rendered efficacious under certain conditions that may vary in different
countries.17 This principle was prominently affirmed in the leading
American case of Hilton v. Guyot18 and expressly recognized in our
jurisprudence beginning with Ingenholl v. Walter E. Olsen & Co.19 The
conditions required by the Philippines for recognition and enforcement
of a foreign judgment were originally contained in Section 311 of the
Code of Civil Procedure, which was taken from the California Code of
Civil Procedure which, in turn, was derived from the California Act of
March 11, 1872.20 Remarkably, the procedural rule now outlined in
Section 48, Rule 39 of the Rules of Civil Procedure has remained
unchanged down to the last word in nearly a century. Section 48
states:
SEC. 48.          Effect of foreign judgments. — The effect of a
judgment of a tribunal of a foreign country, having jurisdiction
to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the
judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the
judgment is presumptive evidence of a right as
between the parties and their successors in
interest by a subsequent title;
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
There is an evident distinction between a foreign judgment in an
action in rem and one in personam. For an action in rem, the foreign
judgment is deemed conclusive upon the title to the thing, while in an
action in personam, the foreign judgment is presumptive, and not
conclusive, of a right as between the parties and their successors in
interest by a subsequent title. 21 However, in both cases, the foreign
judgment is susceptible to impeachment in our local courts on the
grounds of want of jurisdiction or notice to the party, 22 collusion,
fraud,23 or clear mistake of law or fact. 24 Thus, the party aggrieved by
the foreign judgment is entitled to defend against the enforcement of
such decision in the local forum. It is essential that there should be an
opportunity to challenge the foreign judgment, in order for the court in
this jurisdiction to properly determine its efficacy.25
It is clear then that it is usually necessary for an action to be filed in
order to enforce a foreign judgment 26 , even if such judgment has
conclusive effect as in the case of in rem actions, if only for the
purpose of allowing the losing party an opportunity to challenge the
foreign judgment, and in order for the court to properly determine its
efficacy.27 Consequently, the party attacking a foreign judgment has the
burden of overcoming the presumption of its validity.28
The rules are silent as to what initiatory procedure must be undertaken
in order to enforce a foreign judgment in the Philippines. But there is no
question that the filing of a civil complaint is an appropriate measure for
such purpose. A civil action is one by which a party sues another for
the enforcement or protection of a right, 29 and clearly an action to
enforce a foreign judgment is in essence a vindication of a right
prescinding either from a "conclusive judgment upon title" or the
"presumptive evidence of a right."30 Absent perhaps a statutory grant of
170
jurisdiction to a quasi-judicial body, the claim for enforcement of
judgment must be brought before the regular courts.31
There are distinctions, nuanced but discernible, between the cause of
action arising from the enforcement of a foreign judgment, and that
arising from the facts or allegations that occasioned the foreign
judgment.  They may pertain to the same set of facts, but there is an
essential difference in the right-duty correlatives that are sought to be
vindicated. For example, in a complaint for damages against a
tortfeasor, the cause of action emanates from the violation of the right
of the complainant through the act or omission of the respondent. On
the other hand, in a complaint for the enforcement of a foreign
judgment awarding damages from the same tortfeasor, for the violation
of the same right through the same manner of action, the cause of
action derives not from the tortious act but from the foreign judgment
itself.
More importantly, the matters for proof are different. Using the above
example, the complainant will have to establish before the court the
tortious act or omission committed by the tortfeasor, who in turn is
allowed to rebut these factual allegations or prove extenuating
circumstances.  Extensive litigation is thus conducted on the facts, and
from there the right to and amount of damages are assessed. On the
other hand, in an action to enforce a foreign judgment, the matter left
for proof is the foreign judgment itself, and not the facts from which it
prescinds.
As stated in Section 48, Rule 39, the actionable issues are generally
restricted to a review of jurisdiction of the foreign court, the service of
personal notice, collusion, fraud, or mistake of fact or law.  The
limitations on review is in consonance with a strong and pervasive
policy in all legal systems to limit repetitive litigation on claims and
issues.32 Otherwise known as the policy of preclusion, it seeks to
protect party expectations resulting from previous litigation, to
safeguard against the harassment of defendants, to insure that the
task of courts not be increased by never-ending litigation of the same
disputes, and – in a larger sense – to promote what Lord Coke in
the Ferrer's Case of 1599 stated to be the goal of all law: "rest and
quietness."33 If every judgment of a foreign court were reviewable on
the merits, the plaintiff would be forced back on his/her original cause
of action, rendering immaterial the previously concluded litigation. 34
Petitioners appreciate this distinction, and rely upon it to support the
proposition that the subject matter of the complaintthe enforcement
of a foreign judgmentis incapable of pecuniary estimation. Admittedly
the proposition, as it applies in this case, is counter-intuitive, and thus
deserves strict scrutiny. For in all practical intents and purposes, the
matter at hand is capable of pecuniary estimation, down to the last
cent. In the assailed Order, the respondent judge pounced upon this
point without equivocation:
The Rules use the term "where the value of the subject
matter cannot be estimated." The subject matter of the
present case is the judgment rendered by the foreign court
ordering defendant to pay plaintiffs definite sums of money,
as and for compensatory damages. The Court finds that the
value of the foreign judgment can be estimated; indeed, it
can even be easily determined. The Court is not minded to
distinguish between the enforcement of a judgment and the
amount of said judgment, and separate the two, for purposes
of determining the correct filing fees. Similarly, a plaintiff
suing on promissory note for P1 million cannot be allowed to
pay only P400 filing fees (sic), on the reasoning that the
subject matter of his suit is not the P1 million, but the
enforcement of the promissory note, and that the value of
such "enforcement" cannot be estimated.35
The jurisprudential standard in gauging whether the subject matter of
an action is capable of pecuniary estimation is well-entrenched. The
Marcos Estate cites Singsong v. Isabela Sawmill and Raymundo v.
Court of Appeals, which ruled:
 [I]n determining whether an action is one the subject matter
of which is not capable of pecuniary estimation this Court
has adopted the criterion of first ascertaining the nature of
the principal action or remedy sought.  If it is primarily for the
recovery of a sum of money, the claim is considered capable
of pecuniary estimation, and whether jurisdiction is in the
municipal courts or in the courts of first instance would
depend on the amount of the claim.  However, where the
basic issue is something other than the right to recover a
sum of money, where the money claim is purely incidental to,
or a consequence of, the principal relief sought, this Court
has considered such actions as cases where the subject of
the litigation may not be estimated in terms of money, and
are cognizable exclusively by courts of first instance (now
Regional Trial Courts).
On the other hand, petitioners cite the ponencia of Justice JBL Reyes
in Lapitan v. Scandia,36 from which the rule
in Singsong and Raymundo actually derives, but which incorporates
this additional nuance omitted in the latter cases:
xxx However, where the basic issue is something other than
the right to recover a sum of money, where the money claim
is purely incidental to, or a consequence of, the principal
relief sought, like in suits to have the defendant perform
his part of the contract (specific performance) and in
actions for support, or for annulment of judgment or to
foreclose a mortgage, this Court has considered such
actions as cases where the subject of the litigation may not
be estimated in terms of money, and are cognizable
exclusively by courts of first instance. 37
Petitioners go on to add that among the actions the Court has
recognized as being incapable of pecuniary estimation include legality
of conveyances and money deposits, 38 validity of a mortgage, 39 the right
to support,40 validity of documents,41 rescission of contracts,42 specific
performance,43 and validity or annulment of judgments.44 It is urged that
an action for enforcement of a foreign judgment belongs to the same
class.
This is an intriguing argument, but ultimately it is self-evident that while
the subject matter of the action is undoubtedly the enforcement of a
foreign judgment, the effect of a providential award would be the
adjudication of a sum of money. Perhaps in theory, such an action is
primarily for "the enforcement of the foreign judgment," but there is a
certain obtuseness to that sort of argument since there is no denying
that the enforcement of the foreign judgment will necessarily result in
the award of a definite sum of money.
But before we insist upon this conclusion past beyond the point of
reckoning, we must examine its possible ramifications. Petitioners raise
the point that a declaration that an action for enforcement of foreign
judgment may be capable of pecuniary estimation might lead to an
instance wherein a first level court such as the Municipal Trial Court
would have jurisdiction to enforce a foreign judgment. But under the
statute defining the jurisdiction of first level courts, B.P. 129, such
courts are not vested with jurisdiction over actions for the enforcement
of foreign judgments.
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts in civil
cases. — Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and
probate proceedings, testate and intestate, including the
grant of provisional remedies in proper cases, where the
value of the personal property, estate, or amount of the
demand does not exceed One hundred thousand pesos
(P100,000.00) or, in Metro Manila where such personal
property, estate, or amount of the demand does not exceed
171
Two hundred thousand pesos (P200,000.00) exclusive of
interest damages of whatever kind, attorney's fees, litigation
expenses, and costs, the amount of which must be
specifically alleged: Provided, That  where there are several
claims or causes of action between the same or different
parties, embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of
action, irrespective of whether the causes of action arose out
of the same or different transactions;
(2) Exclusive original jurisdiction over cases of forcible entry
and unlawful detainer: Provided, That when, in such cases,
the defendant raises the question of ownership in his
pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue
of ownership shall be resolved only to determine the issue of
possession.
(3) Exclusive original jurisdiction in all civil actions which
involve title to, or possession of, real property, or any interest
therein where the assessed value of the property or interest
therein does not exceed Twenty thousand pesos
(P20,000.00) or, in civil actions in Metro Manila, where such
assessed value does not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest, damages of whatever
kind, attorney's fees, litigation expenses and costs: Provided,
That value of such property shall be determined by the
assessed value of the adjacent lots.45
Section 33 of B.P. 129 refers to instances wherein the cause of action
or subject matter pertains to an assertion of rights and interests over
property or a sum of money. But as earlier pointed out, the subject
matter of an action to enforce a foreign judgment is the foreign
judgment itself, and the cause of action arising from the adjudication of
such judgment.
An examination of Section 19(6), B.P. 129 reveals that the instant
complaint for enforcement of a foreign judgment, even if capable of
pecuniary estimation, would fall under the jurisdiction of the Regional
Trial Courts, thus negating the fears of the petitioners. Indeed, an
examination of the provision indicates that it can be relied upon as
jurisdictional basis with respect to actions for enforcement of foreign
judgments, provided that no other court or office is vested jurisdiction
over such complaint:
Sec. 19. Jurisdiction in civil cases. — Regional Trial Courts
shall exercise exclusive original jurisdiction:
xxx
(6) In all cases not within the exclusive jurisdiction of any
court, tribunal, person or body exercising jurisdiction or any
court, tribunal, person or body exercising judicial or quasi-
judicial functions.
Thus, we are comfortable in asserting the obvious, that the complaint
to enforce the US District Court judgment is one capable of pecuniary
estimation. But at the same time, it is also an action based on
judgment against an estate, thus placing it beyond the ambit of Section
7(a) of Rule 141. What provision then governs the proper computation
of the filing fees over the instant complaint? For this case and other
similarly situated instances, we find that it is covered by Section 7(b)
(3), involving as it does, "other actions not involving property."
Notably, the amount paid as docket fees by the petitioners on the
premise that it was an action incapable of pecuniary estimation
corresponds to the same amount required for "other actions not
involving property." The petitioners thus paid the correct amount of
filing fees, and it was a grave abuse of discretion for respondent judge
to have applied instead a clearly inapplicable rule and dismissed the
complaint.
There is another consideration of supreme relevance in this case, one
which should disabuse the notion that the doctrine affirmed in this
decision is grounded solely on the letter of the procedural rule.  We
earlier adverted to the the internationally recognized policy of
preclusion,46 as well as the principles of comity, utility and convenience
of nations47 as the basis for the evolution of the rule calling for the
recognition and enforcement of foreign judgments. The US Supreme
Court in Hilton v. Guyot48 relied heavily on the concept of comity, as
especially derived from the landmark treatise of Justice Story in his
Commentaries on the Conflict of Laws of 1834. 49 Yet the notion of
"comity" has since been criticized as one "of dim contours" 50 or
suffering from a number of fallacies. 51 Other conceptual bases for the
recognition of foreign judgments have evolved such as the vested
rights theory or the modern doctrine of obligation.52
There have been attempts to codify through treaties or multilateral
agreements the standards for the recognition and enforcement of
foreign judgments, but these have not borne fruition. The members of
the European Common Market accede to the Judgments
Convention, signed in 1978, which eliminates as to participating
countries all of such obstacles to recognition such as reciprocity
and révision au fond.53 The most ambitious of these attempts is
the Convention on the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matters, prepared in 1966 by the
Hague Conference of International Law. 54 While it has not received the
ratifications needed to have it take effect, 55 it is recognized as
representing current scholarly thought on the topic.56 Neither the
Philippines nor the United States are signatories to the Convention.
Yet even if there is no unanimity as to the applicable theory behind the
recognition and enforcement of foreign judgments or a universal treaty
rendering it obligatory force, there is consensus that the viability of
such recognition and enforcement is essential. Steiner and Vagts note:
.  .  . The notion of unconnected bodies of national law on
private international law, each following a quite separate
path, is not one conducive to the growth of a transnational
community encouraging travel and commerce among its
members. There is a contemporary resurgence of writing
stressing the identity or similarity of the values that systems
of public and private international law seek to further – a
community interest in common, or at least reasonable, rules
on these matters in national legal systems. And such generic
principles as reciprocity play an important role in both
fields.57
Salonga, whose treatise on private international law is of worldwide
renown, points out:
Whatever be the theory as to the basis for recognizing
foreign judgments, there can be little dispute that the end is
to protect the reasonable expectations and demands of the
parties. Where the parties have submitted a matter for
adjudication in the court of one state, and proceedings there
are not tainted with irregularity, they may fairly be expected
to submit, within the state or elsewhere, to the enforcement
of the judgment issued by the court.58
There is also consensus as to the requisites for recognition of a foreign
judgment and the defenses against the enforcement thereof. As earlier
discussed, the exceptions enumerated in Section 48, Rule 39 have
remain unchanged since the time they were adapted in this jurisdiction
from long standing American rules. The requisites and exceptions as
delineated under Section 48 are but a restatement of generally
accepted principles of international law. Section 98 of The
Restatement, Second, Conflict of Laws, states that "a valid judgment
rendered in a foreign nation after a fair trial in a contested proceeding
will be recognized in the United States," and on its face, the term
172
"valid" brings into play requirements such notions as valid jurisdiction
over the subject matter and parties. 59 Similarly, the notion that fraud or
collusion may preclude the enforcement of a foreign judgment finds
affirmation with foreign jurisprudence and commentators, 60 as well as
the doctrine that the foreign judgment must not constitute "a clear
mistake of law or fact."61 And finally, it has been recognized that "public
policy" as a defense to the recognition of judgments serves as an
umbrella for a variety of concerns in international practice which may
lead to a denial of recognition. 62
The viability of the public policy defense against the enforcement of a
foreign judgment has been recognized in this jurisdiction. 63 This
defense allows for the application of local standards in reviewing the
foreign judgment, especially when such judgment creates only a
presumptive right, as it does in cases wherein the judgment is against
a person.64 The defense is also recognized within the international
sphere, as many civil law nations adhere to a broad public policy
exception which may result in a denial of recognition when the foreign
court, in the light of the choice-of-law rules of the recognizing court,
applied the wrong law to the case.65 The public policy defense can
safeguard against possible abuses to the easy resort to offshore
litigation if it can be demonstrated that the original claim is noxious to
our constitutional values.
There is no obligatory rule derived from treaties or conventions that
requires the Philippines to recognize foreign judgments, or allow a
procedure for the enforcement thereof.  However, generally accepted
principles of international law, by virtue of the incorporation clause of
the Constitution, form part of the laws of the land even if they do not
derive from treaty obligations. 66 The classical formulation in
international law sees those customary rules accepted as binding
result from the combination two elements: the established, widespread,
and consistent practice on the part of States; and a psychological
element known as the opinion juris sive necessitates (opinion as to law
or necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law
requiring it.67
While the definite conceptual parameters of the recognition and
enforcement of foreign judgments have not been authoritatively
established, the Court can assert with certainty that such an
undertaking is among those generally accepted principles of
international law.68 As earlier demonstrated, there is a widespread
practice among states accepting in principle the need for such
recognition and enforcement, albeit subject to limitations of varying
degrees. The fact that there is no binding universal treaty governing
the practice is not indicative of a widespread rejection of the principle,
but only a disagreement as to the imposable specific rules governing
the procedure for recognition and enforcement.
Aside from the widespread practice, it is indubitable that the procedure
for recognition and enforcement is embodied in the rules of law,
whether statutory or jurisprudential, adopted in various foreign
jurisdictions. In the Philippines, this is evidenced primarily by Section
48, Rule 39 of the Rules of Court which has existed in its current form
since the early 1900s. Certainly, the Philippine legal system has long
ago accepted into its jurisprudence and procedural rules the viability of
an action for enforcement of foreign judgment, as well as the requisites
for such valid enforcement, as derived from internationally accepted
doctrines.  Again, there may be distinctions as to the rules adopted by
each particular state,69 but they all prescind from the premise that there
is a rule of law obliging states to allow for, however generally, the
recognition and enforcement of a foreign judgment. The bare principle,
to our mind, has attained the status of opinio juris in international
practice.
This is a significant proposition, as it acknowledges that the procedure
and requisites outlined in Section 48, Rule 39 derive their efficacy not
merely from the procedural rule, but by virtue of the incorporation
clause of the Constitution.  Rules of procedure are promulgated by the
Supreme Court,70 and could very well be abrogated or revised by the
high court itself. Yet the Supreme Court is obliged, as are all State
components, to obey the laws of the land, including generally accepted WHEREFORE, the petition is GRANTED. The assailed orders are
principles of international law which form part thereof, such as those NULLIFIED and SET ASIDE, and a new order REINSTATING Civil
ensuring the qualified recognition and enforcement of foreign Case No. 97-1052 is hereby issued. No costs.
judgments.71
SO ORDERED.
Thus, relative to the enforcement of foreign judgments in the
Philippines, it emerges that there is a general right recognized within
our body of laws, and affirmed by the Constitution, to seek recognition
and enforcement of foreign judgments, as well as a right to defend
against such enforcement on the grounds of want of jurisdiction, want
of notice to the party, collusion, fraud, or clear mistake of law or fact.

The preclusion of an action for enforcement of a foreign judgment in

this country merely due to an exhorbitant assessment of docket fees is
alien to generally accepted practices and principles in international law.
Indeed, there are grave concerns in conditioning the amount of the
filing fee on the pecuniary award or the value of the property subject of
the foreign decision. Such pecuniary award will almost certainly be in
foreign denomination, computed in accordance with the applicable
laws and standards of the forum. 72 The vagaries of inflation, as well as
the relative low-income capacity of the Filipino, to date may very well
translate into an award virtually unenforceable in this country, despite
its integral validity, if the docket fees for the enforcement thereof were
predicated on the amount of the award sought to be enforced. The
theory adopted by respondent judge and the Marcos Estate may even
lead to absurdities, such as if applied to an award involving real
property situated in places such as the United States or Scandinavia
where real property values are inexorably high. We cannot very well
require that the filing fee be computed based on the value of the
foreign property as determined by the standards of the country where it
is located.

As crafted, Rule 141 of the Rules of Civil Procedure avoids

unreasonableness, as it recognizes that the subject matter of an action
for enforcement of a foreign judgment is the foreign judgment itself,
and not the right-duty correlatives that resulted in the foreign
judgment.  In this particular circumstance, given that the complaint is
lodged against an estate and is based on the US District Court's Final
Judgment, this foreign judgment may, for purposes of classification
under the governing procedural rule, be deemed as subsumed under
Section 7(b)(3) of Rule 141, i.e., within the class of "all other actions
not involving property." Thus, only the blanket filing fee of minimal
amount is required.

Finally, petitioners also invoke Section 11, Article III of the Constitution,
which states that "[F]ree access to the courts and quasi-judicial bodies
and adequate legal assistance shall not be denied to any person by
reason of poverty." Since the provision is among the guarantees
ensured by the Bill of Rights, it certainly gives rise to a demandable
right. However, now is not the occasion to elaborate on the parameters
of this constitutional right. Given our preceding discussion, it is not
necessary to utilize this provision in order to grant the relief sought by
the petitioners. It is axiomatic that the constitutionality of an act will not
be resolved by the courts if the controversy can be settled on other
grounds73 or unless the resolution thereof is indispensable for the
determination of the case.74

One more word.  It bears noting that Section 48, Rule 39

acknowledges that the Final Judgment is not conclusive yet, but
presumptive evidence of a right of the petitioners against the Marcos
Estate. Moreover, the Marcos Estate is not precluded to present
evidence, if any, of want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. This ruling, decisive as
it is on the question of filing fees and no other, does not render verdict
on the enforceability of the Final Judgment before the courts under the
jurisdiction of the Philippines, or for that matter any other issue which
may legitimately be presented before the trial court.  Such issues are to
be litigated before the trial court, but within the confines of the matters
for proof as laid down in Section 48, Rule 39. On the other hand, the
speedy resolution of this claim by the trial court is encouraged, and
contumacious delay of the decision on the merits will not be brooked
by this Court.

173
 OPINION OF THE COURT
MEDELLIN V. TEXAS
552 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NO. 06-984
JOSE ERNESTO MEDELLIN, PETITIONER v. TEXAS
on writ of certiorari to the court of criminal appeals of texas
[March 25, 2008]
   Chief Justice Roberts delivered the opinion of the Court.
   The International Court of Justice (ICJ), located in the Hague, is a
tribunal established pursuant to the United Nations Charter to
adjudicate disputes between member states. In the Case Concerning
Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12
(Judgment of Mar. 31) (Avena), that tribunal considered a claim
brought by Mexico against the United States. The ICJ held that, based
on violations of the Vienna Convention, 51 named Mexican nationals
were entitled to review and reconsideration of their state-court
convictions and sentences in the United States. This was so regardless
of any forfeiture of the right to raise Vienna Convention claims because
of a failure to comply with generally applicable state rules governing
challenges to criminal convictions.
   In Sanchez-Llamas v. Oregon, 548 U. S. 331 (2006)—issued
after Avena but involving individuals who were not named in
the Avena judgment—we held that, contrary to the ICJ’s determination,
the Vienna Convention did not preclude the application of state default
rules. After the Avena decision, President George W. Bush
determined, through a Memorandum to the Attorney General (Feb. 28,
2005), App. to Pet. for Cert. 187a (Memorandum or President’s
Memorandum), that the United States would “discharge its international
obligations” under Avena “by having State courts give effect to the
decision.”
   Petitioner José Ernesto Medellín, who had been convicted and
sentenced in Texas state court for murder, is one of the 51 Mexican
nationals named in the Avena decision. Relying on the ICJ’s decision
and the President’s Memorandum, Medellín filed an application for a
writ of habeas corpus in state court. The Texas Court of Criminal
Appeals dismissed Medellín’s application as an abuse of the writ under
state law, given Medellín’s failure to raise his Vienna Convention claim
in a timely manner under state law. We granted certiorari to decide two
questions. First, is the ICJ’s judgment in Avena directly enforceable as
domestic law in a state court in the United States? Second, does the
President’s Memorandum independently require the States to provide
review and reconsideration of the claims of the 51 Mexican nationals
named in Avena without regard to state procedural default rules? We
conclude that neither Avena nor the President’s Memorandum
constitutes directly enforceable federal law that pre-empts state
limitations on the filing of successive habeas petitions. We therefore
affirm the decision below.
I Elizabeth in conversation. When she tried to run, petitioner threw her to
A in response to her friend’s cries, ran back to help. The gang members
   In 1969, the United States, upon the advice and consent of the
Senate, ratified the Vienna Convention on Consular Relations (Vienna
Convention or Convention), Apr. 24, 1963, [1970] 21 U. S. T. 77,
T. I. A. S. No. 6820, and the Optional Protocol Concerning the
Compulsory Settlement of Disputes to the Vienna Convention (Optional
Protocol or Protocol), Apr. 24, 1963, [1970] 21 U. S. T. 325, T. I. A. S.
174
No. 6820. The preamble to the Convention provides that its purpose is
to “contribute to the development of friendly relations among nations.”
21 U. S. T., at 79; Sanchez-Llamas, supra, at 337. Toward that end,
Article 36 of the Convention was drafted to “facilitat[e] the exercise of
consular functions.” Art. 36(1), 21 U. S. T., at 100. It provides that if a
person detained by a foreign country “so requests, the competent
authorities of the receiving State shall, without delay, inform the
consular post of the sending State” of such detention, and “inform the
[detainee] of his righ[t]” to request assistance from the consul of his
own state. Art. 36(1)(b), id., at 101.
   The Optional Protocol provides a venue for the resolution of disputes
arising out of the interpretation or application of the Vienna
Convention. Art. I, 21 U. S. T., at 326. Under the Protocol, such
disputes “shall lie within the compulsory jurisdiction of the International
Court of Justice” and “may accordingly be brought before the [ICJ] …
by any party to the dispute being a Party to the present Protocol.” Ibid.
   The ICJ is “the principal judicial organ of the United Nations.” United
Nations Charter, Art. 92, 59 Stat. 1051, T. S. No. 993 (1945). It was
established in 1945 pursuant to the United Nations Charter. The ICJ
Statute—annexed to the U. N. Charter—provides the organizational
framework and governing procedures for cases brought before the ICJ.
Statute of the International Court of Justice (ICJ Statute), 59 Stat.
1055, T. S. No. 993 (1945).
   Under Article 94(1) of the U. N. Charter, “[e]ach Member of the
United Nations undertakes to comply with the decision of the [ICJ] in
any case to which it is a party.” 59 Stat. 1051. The ICJ’s jurisdiction in
any particular case, however, is dependent upon the consent of the
parties. See Art. 36, 59 Stat. 1060. The ICJ Statute delineates two
ways in which a nation may consent to ICJ jurisdiction: It may consent
generally to jurisdiction on any question arising under a treaty or
general international law, Art. 36(2), ibid., or it may consent specifically
to jurisdiction over a particular category of cases or disputes pursuant
to a separate treaty, Art. 36(1), ibid. The United States originally
consented to the general jurisdiction of the ICJ when it filed a
declaration recognizing compulsory jurisdiction under Art. 36(2) in
1946. The United States withdrew from general ICJ jurisdiction in 1985.
See U. S. Dept. of State Letter and Statement Concerning Termination
of Acceptance of ICJ Compulsory Jurisdiction (Oct. 7, 1985), reprinted
in 24 I. L. M. 1742 (1985). By ratifying the Optional Protocol to the
Vienna Convention, the United States consented to the specific
jurisdiction of the ICJ with respect to claims arising out of the Vienna
Convention. On March 7, 2005, subsequent to the ICJ’s judgment
in Avena, the United States gave notice of withdrawal from the
Optional Protocol to the Vienna Convention. Letter from Condoleezza
Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the
United Nations.
B
   Petitioner José Ernesto Medellín, a Mexican national, has lived in the
United States since preschool. A member of the “Black and Whites”
gang, Medellín was convicted of capital murder and sentenced to
death in Texas for the gang rape and brutal murders of two Houston
teenagers.
   On June 24, 1993, 14-year-old Jennifer Ertman and 16-year-old
Elizabeth Pena were walking home when they encountered Medellín
and several fellow gang members. Medellín attempted to engage
the ground. Jennifer was grabbed by other gang members when she,
raped both girls for over an hour. Then, to prevent their victims from
identifying them, Medellín and his fellow gang members murdered the
girls and discarded their bodies in a wooded area. Medellín was
personally responsible for strangling at least one of the girls with her
own shoelace.
   Medellín was arrested at approximately 4 a.m. on June 29, 1993. A    The Texas Court of Criminal Appeals subsequently dismissed
few hours later, between 5:54 and 7:23 a.m., Medellín was Medellín’s second state habeas application as an abuse of the writ.
given Miranda warnings; he then signed a written waiver and gave a 223 S. W. 3d, at 352. In the court’s view, neither the Avena decision
detailed written confession. App. to Brief for Respondent 32–36. Local nor the President’s Memorandum was “binding federal law” that could
law enforcement officers did not, however, inform Medellín of his displace the State’s limitations on the filing of successive habeas
Vienna Convention right to notify the Mexican consulate of his applications. Ibid. We again granted certiorari. 550 U. S. ___ (2007).
detention. Brief for Petitioner 6–7. Medellín was convicted of capital
murder and sentenced to death; his conviction and sentence were
II
affirmed on appeal. Medellín v. State, No. 71,997 (Tex. Crim. App.,
May 16, 1997), App. to Brief for Respondent 2–31.
   Medellín first contends that the ICJ’s judgment in Avena constitutes a
“binding” obligation on the state and federal courts of the United
   Medellín first raised his Vienna Convention claim in his first
States. He argues that “by virtue of the Supremacy Clause, the treaties
application for state postconviction relief. The state trial court held that
requiring compliance with the Avena judgment are already the ‘Law of
the claim was procedurally defaulted because Medellín had failed to
the Land’ by which all state and federal courts in this country are
raise it at trial or on direct review. The trial court also rejected the
‘bound.’ ” Reply Brief for Petitioner 1. Accordingly, Medellín
Vienna Convention claim on the merits, finding that Medellín had
argues, Avena is a binding federal rule of decision that pre-empts
“fail[ed] to show that any non-notification of the Mexican authorities
contrary state limitations on successive habeas petitions.
impacted on the validity of his conviction or punishment.” Id., at 62.
[Footnote 1] The Texas Court of Criminal Appeals affirmed. Id., at 64–
65.    No one disputes that the Avena decision—a decision that flows from
the treaties through which the United States submitted to ICJ
jurisdiction with respect to Vienna Convention disputes—constitutes
   Medellín then filed a habeas petition in Federal District Court. The
an international law obligation on the part of the United States. But not
District Court denied relief, holding that Medellín’s Vienna Convention
all international law obligations automatically constitute binding federal
claim was procedurally defaulted and that Medellín had failed to show
law enforceable in United States courts. The question we confront here
prejudice arising from the Vienna Convention violation.
is whether the Avena judgment has automatic domestic legal effect
See Medellín v. Cockrell, Civ. Action No. H–01–4078 (SD Tex., June
such that the judgment of its own force applies in state and federal
26, 2003), App. to Brief for Respondent 86–92.
courts.

   While Medellín’s application for a certificate of appealability was

pending in the Fifth Circuit, the ICJ issued its decision in Avena. The
ICJ held that the United States had violated Article 36(1)(b) of the
Vienna Convention by failing to inform the 51 named Mexican
nationals, including Medellín, of their Vienna Convention rights. 2004
I. C. J., at 53–55. In the ICJ’s determination, the United States was
obligated “to provide, by means of its own choosing, review and
reconsideration of the convictions and sentences of the [affected]
Mexican nationals.” Id., at 72. The ICJ indicated that such review was
required without regard to state procedural default rules. Id., at 56–57.
   The Fifth Circuit denied a certificate of
appealability. Medellín v. Dretke, 371 F. 3d 270, 281 (2004). The court
concluded that the Vienna Convention did not confer individually
enforceable rights. Id., at 280. The court further ruled that it was in any
event bound by this Court’s decision in Breard v. Greene, 523 U. S.
371, 375 (1998) (per curiam), which held that Vienna Convention
claims are subject to procedural default rules, rather than by the ICJ’s
contrary decision in Avena. 371 F. 3d, at 280.
   This Court granted certiorari. Medellín v. Dretke, 544 U. S. 660, 661
(2005) (per curiam) (Medellín I). Before we heard oral argument,
however, President George W. Bush issued his Memorandum to the
United States Attorney General, providing:
I have determined, pursuant to the authority vested in me as President
by the Constitution and the laws of the United States of America, that
the United States will discharge its international obligations under the
decision of the International Court of Justice in [Avena], by having
State courts give effect to the decision in accordance with general
principles of comity in cases filed by the 51 Mexican nationals
addressed in that decision. App. to Pet. for Cert. 187a.
   This Court has long recognized the distinction between treaties that
automatically have effect as domestic law, and those that—while they
constitute international law commitments—do not by themselves
function as binding federal law. The distinction was well explained by
Chief Justice Marshall’s opinion in Foster v. Neilson, 2 Pet. 253, 315
(1829), overruled on other grounds, United States v. Percheman, 7
Pet. 51 (1833), which held that a treaty is “equivalent to an act of the
legislature,” and hence self-executing, when it “operates of itself
without the aid of any legislative provision.” Foster, supra, at 314.
When, in contrast, “[treaty] stipulations are not self-executing they can
only be enforced pursuant to legislation to carry them into
effect.” Whitney v. Robertson, 124 U. S. 190, 194 (1888). In sum, while
treaties “may comprise international commitments . . . they are not
domestic law unless Congress has either enacted implementing
statutes or the treaty itself conveys an intention that it be ‘self-
executing’ and is ratified on these terms.” Igartúa-De La Rosa v. United
States, 417 F. 3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).
[Footnote 2]
   A treaty is, of course, “primarily a compact between independent
nations.” Head Money Cases, 112 U. S. 580, 598 (1884). It ordinarily
“depends for the enforcement of its provisions on the interest and the
honor of the governments which are parties to it.” Ibid.; see also The
Federalist No. 33, p. 207 (J. Cooke ed. 1961) (A. Hamilton) (comparing
laws that individuals are “bound to observe” as “the supreme law of the
land” with “a mere treaty, dependent on the good faith of the parties”).
“If these [interests] fail, its infraction becomes the subject of
international negotiations and reclamations … . It is obvious that with
all this the judicial courts have nothing to do and can give no
redress.” Head Money Cases, supra, at 598. Only “[i]f the treaty
contains stipulations which are self-executing, that is, require no
legislation to make them operative, [will] they have the force and effect
of a legislative enactment.” Whitney, supra, at 194.[Footnote 3]

   Medellín, relying on the President’s Memorandum and the ICJ’s

   Medellín and his amici nonetheless contend that the Optional
decision in Avena, filed a second application for habeas relief in state
Protocol, United Nations Charter, and ICJ Statute supply the “relevant
court. Ex parte Medellín, 223 S. W. 3d 315, 322–323 (Tex. Crim. App.
obligation” to give the Avena judgment binding effect in the domestic
2006). Because the state-court proceedings might have provided
courts of the United States. Reply Brief for Petitioner 5–6.[Footnote 4]
Medellín with the review and reconsideration he requested, and
Because none of these treaty sources creates binding federal law in
because his claim for federal relief might otherwise have been barred,
the absence of implementing legislation, and because it is uncontested
we dismissed his petition for certiorari as improvidently
that no such legislation exists, we conclude that the Avena judgment is
granted. Medellín I, supra, at 664.
not automatically binding domestic law.

175
A    The remainder of Article 94 confirms that the U. N. Charter does not
   The interpretation of a treaty, like the interpretation of a statute,
begins with its text. Air France v. Saks, 470 U. S. 392, 396–397 (1985).
Because a treaty ratified by the United States is “an agreement among
sovereign powers,” we have also considered as “aids to its
interpretation” the negotiation and drafting history of the treaty as well
as “the postratification understanding” of signatory
nations. Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996);
see also United States v. Stuart, 489 U. S. 353, 365–366
(1989); Choctaw Nation v. United States, 318 U. S. 423, 431–432
(1943).
   As a signatory to the Optional Protocol, the United States agreed to
submit disputes arising out of the Vienna Convention to the ICJ. The
Protocol provides: “Disputes arising out of the interpretation or
application of the [Vienna] Convention shall lie within the compulsory
jurisdiction of the International Court of Justice.” Art. I, 21 U. S. T., at
326. Of course, submitting to jurisdiction and agreeing to be bound are
two different things. A party could, for example, agree to compulsory
nonbinding arbitration. Such an agreement would require the party to
appear before the arbitral tribunal without obligating the party to treat
the tribunal’s decision as binding. See, e.g., North American Free
Trade Agreement, U. S.-Can.-Mex., Art. 2018(1), Dec. 17, 1992, 32
I. L. M. 605, 697 (1993) (“On receipt of the final report of [the arbitral
panel requested by a Party to the agreement], the disputing Parties
shall agree on the resolution of the dispute, which normally shall
conform with the determinations and recommendations of the panel”).
   The most natural reading of the Optional Protocol is as a bare grant
of jurisdiction. It provides only that “[d]isputes arising out of the
interpretation or application of the [Vienna] Convention shall lie within
the compulsory jurisdiction of the International Court of Justice” and
“may accordingly be brought before the [ICJ] . . . by any party to the
dispute being a Party to the present Protocol.” Art. I, 21 U. S. T., at
326. The Protocol says nothing about the effect of an ICJ decision and
does not itself commit signatories to comply with an ICJ judgment. The
Protocol is similarly silent as to any enforcement mechanism.
contemplate the automatic enforceability of ICJ decisions in domestic
courts.[Footnote 6] Article 94(2)—the enforcement provision—provides
the sole remedy for noncompliance: referral to the United Nations
Security Council by an aggrieved state. 59 Stat. 1051.
   The U. N. Charter’s provision of an express diplomatic—that is,
nonjudicial—remedy is itself evidence that ICJ judgments were not
meant to be enforceable in domestic courts. See Sanchez-Llamas, 548
U. S., at 347. And even this
“quintessentially international remed[y],” id., at 355, is not absolute.
First, the Security Council must “dee[m] necessary” the issuance of a
recommendation or measure to effectuate the judgment. Art. 94(2), 59
Stat. 1051. Second, as the President and Senate were undoubtedly
aware in subscribing to the U. N. Charter and Optional Protocol, the
United States retained the unqualified right to exercise its veto of any
Security Council resolution.
   This was the understanding of the Executive Branch when the
President agreed to the U. N. Charter and the declaration accepting
general compulsory ICJ jurisdiction. See, e.g., The Charter of the
United Nations for the Maintenance of International Peace and
Security: Hearings before the Senate Committee on Foreign Relations,
79th Cong., 1st Sess., 124–125 (1945) (“[I]f a state fails to perform its
obligations under a judgment of the [ICJ], the other party may have
recourse to the Security Council”); id., at 286 (statement of Leo
Paslovsky, Special Assistant to the Secretary of State for International
Organizations and Security Affairs) (“[W]hen the Court has rendered a
judgment and one of the parties refuses to accept it, then the dispute
becomes political rather than legal. It is as a political dispute that the
matter is referred to the Security Council”); A Resolution Proposing
Acceptance of Compulsory Jurisdiction of International Court of
Justice: Hearings on S. Res. 196 before the Subcommittee of the
Senate Committee on Foreign Relations, 79th Cong., 2d Sess., 142
(1946) (statement of Charles Fahy, State Dept. Legal Adviser) (while
parties that accept ICJ jurisdiction have “a moral obligation” to comply
with ICJ decisions, Article 94(2) provides the exclusive means of
enforcement).

   If ICJ judgments were instead regarded as automatically enforceable

   The obligation on the part of signatory nations to comply with ICJ
domestic law, they would be immediately and directly binding on state
judgments derives not from the Optional Protocol, but rather from
and federal courts pursuant to the Supremacy Clause. Mexico or the
Article 94 of the United Nations Charter—the provision that specifically
ICJ would have no need to proceed to the Security Council to enforce
addresses the effect of ICJ decisions. Article 94(1) provides that
the judgment in this case. Noncompliance with an ICJ judgment
“[e]ach Member of the United Nations undertakes to comply with the
through exercise of the Security Council veto—always regarded as an
decision of the [ICJ] in any case to which it is a party.” 59 Stat. 1051
option by the Executive and ratifying Senate during and after
(emphasis added). The Executive Branch contends that the phrase
consideration of the U. N. Charter, Optional Protocol, and ICJ Statute
“undertakes to comply” is not “an acknowledgement that an ICJ
—would no longer be a viable alternative. There would be nothing to
decision will have immediate legal effect in the courts of U. N.
veto. In light of the U. N. Charter’s remedial scheme, there is no reason
members,” but rather “a commitment on the part of U. N. Members to
to believe that the President and Senate signed up for such a result.
take future action through their political branches to comply with an ICJ
decision.” Brief for United States as Amicus Curiae in Medellín I, O. T.
2004, No. 04–5928, p. 34.    In sum, Medellín’s view that ICJ decisions are automatically
enforceable as domestic law is fatally undermined by the enforcement
structure established by Article 94. His construction would eliminate the
   We agree with this construction of Article 94. The Article is not a
option of noncompliance contemplated by Article 94(2), undermining
directive to domestic courts. It does not provide that the United States
the ability of the political branches to determine whether and how to
“shall” or “must” comply with an ICJ decision, nor indicate that the
comply with an ICJ judgment. Those sensitive foreign policy decisions
Senate that ratified the U. N. Charter intended to vest ICJ decisions
would instead be transferred to state and federal courts charged with
with immediate legal effect in domestic courts. Instead, “[t]he words of
applying an ICJ judgment directly as domestic law. And those courts
Article 94 . . . call upon governments to take certain action.” Committee
would not be empowered to decide whether to comply with the
of United States Citizens Living in Nicaragua v. Reagan, 859 F. 2d
judgment—again, always regarded as an option by the political
929, 938 (CADC 1988) (quoting Diggs v. Richardson, 555 F. 2d 848,
branches—any more than courts may consider whether to comply with
851 (CADC 1976); internal quotation marks omitted). See also Foster,
any other species of domestic law. This result would be particularly
2 Pet., at 314, 315 (holding a treaty non-self-executing because its text
anomalous in light of the principle that “[t]he conduct of the foreign
—“ ‘all . . . grants of land . . . shall be ratified and confirmed’ ”—did not
relations of our Government is committed by the Constitution to the
“act directly on the grants” but rather “pledge[d] the faith of the United
Executive and Legislative—‘the political’—
States to pass acts which shall ratify and confirm them”). In other
Departments.” Oetjen v. Central Leather Co., 246 U. S. 297, 302
words, the U. N. Charter reads like “a compact between independent
(1918).
nations” that “depends for the enforcement of its provisions on the
interest and the honor of the governments which are parties to
it.” Head Money Cases, 112 U. S., at 598.[Footnote 5]    The ICJ Statute, incorporated into the U. N. Charter, provides further
evidence that the ICJ’s judgment in Avena does not automatically
constitute federal law judicially enforceable in United States courts. Art.

176
59, 59 Stat. 1062. To begin with, the ICJ’s “principal purpose” is said to
be to “arbitrate particular disputes between national
governments.” Sanchez-Llamas, supra, at 355 (citing 59 Stat. 1055).
Accordingly, the ICJ can hear disputes only between nations, not
individuals. Art. 34(1), 59 Stat. 1059 (“Only states [i.e., countries] may
be parties in cases before the [ICJ]”). More important, Article 59 of the
statute provides that “[t]he decision of the [ICJ] has no binding
force except between the parties and in respect of that particular
case.” Id., at 1062 (emphasis added).[Footnote 7] The dissent does not
explain how Medellín, an individual, can be a party to the ICJ
proceeding.
   Medellín argues that because the Avena case involves him, it is clear
that he—and the 50 other Mexican nationals named in
the Avena decision—should be regarded as parties to
the Avena judgment. Brief for Petitioner 21–22. But cases before the
ICJ are often precipitated by disputes involving particular persons or
entities, disputes that a nation elects to take up as its own.
See, e.g., Case Concerning the Barcelona Traction, Light & Power
Co. (Belg. v. Spain), 1970 I. C. J. 3 (Judgment of Feb. 5) (claim
brought by Belgium on behalf of Belgian nationals and
shareholders); Case Concerning the Protection of French Nationals
and Protected Persons in Egypt (Fr. v. Egypt), 1950 I. C. J. 59 (Order
of Mar. 29) (claim brought by France on behalf of French nationals and
protected persons in Egypt); Anglo-Iranian Oil Co. Case (U. K. v. Iran),
1952 I. C. J. 93, 112 (Judgment of July 22) (claim brought by the
United Kingdom on behalf of the Anglo-Iranian Oil Company). That has
never been understood to alter the express and established rules that
only nation-states may be parties before the ICJ, Art. 34, 59 Stat. 1059,
and—contrary to the position of the dissent, post, at 23—that ICJ
judgments are binding only between those parties, Art. 59, id., at 1062.
[Footnote 8]
indicated the parties’ intent to ratify and confirm the land-grant “by
force of the instrument itself.” Id., at 89.
   As against this time-honored textual approach, the dissent proposes
a multifactor, judgment-by-judgment analysis that would “jettiso[n]
relative predictability for the open-ended rough-and-tumble of
factors.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock
Co., 513 U. S. 527, 547 (1995). The dissent’s novel approach to
deciding which (or, more accurately, when) treaties give rise to directly
enforceable federal law is arrestingly indeterminate. Treaty language is
barely probative. Post, at 12–13 (“[T]he absence or presence of
language in a treaty about a provision’s self-execution proves nothing
at all”). Determining whether treaties themselves create federal law is
sometimes committed to the political branches and sometimes to the
judiciary. Post, at 13. Of those committed to the judiciary, the courts
pick and choose which shall be binding United States law—trumping
not only state but other federal law as well—and which shall
not. Post, at 13–27. They do this on the basis of a multifactor, “context-
specific” inquiry. Post, at 13. Even then, the same treaty sometimes
gives rise to United States law and sometimes does not, again
depending on an ad hoc judicial assessment. Post, at 13–27.
   Our Framers established a careful set of procedures that must be
followed before federal law can be created under the Constitution—
vesting that decision in the political branches, subject to checks and
balances. U. S. Const., Art. I, §7. They also recognized that treaties
could create federal law, but again through the political branches, with
the President making the treaty and the Senate approving it. Art. II, §2.
The dissent’s understanding of the treaty route, depending on an ad
hoc judgment of the judiciary without looking to the treaty language—
the very language negotiated by the President and approved by the
Senate—cannot readily be ascribed to those same Framers.

   It is, moreover, well settled that the United States’ interpretation of a
   The dissent’s approach risks the United States’ involvement in
treaty “is entitled to great weight.” Sumitomo Shoji America,
international agreements. It is hard to believe that the United States
Inc. v. Avagliano, 457 U. S. 176, 184–185 (1982); see also El Al Israel
would enter into treaties that are sometimes enforceable and
Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 168 (1999). The
sometimes not. Such a treaty would be the equivalent of writing a blank
Executive Branch has unfailingly adhered to its view that the relevant
check to the judiciary. Senators could never be quite sure what the
treaties do not create domestically enforceable federal law. See Brief
treaties on which they were voting meant. Only a judge could say for
for United States as Amicus Curiae 4, 27–29.[Footnote 9]
sure and only at some future date. This uncertainty could hobble the
United States’ efforts to negotiate and sign international agreements.
   The pertinent international agreements, therefore, do not provide for
implementation of ICJ judgments through direct enforcement in
   In this case, the dissent—for a grab bag of no less than seven
domestic courts, and “where a treaty does not provide a particular
reasons—would tell us that this particular ICJ judgment is federal
remedy, either expressly or implicitly, it is not for the federal courts to
law. Post, at 13–27. That is no sort of guidance.    Nor is it any answer
impose one on the States through lawmaking of their own.” Sanchez-
to say that the federal courts will diligently police international
Llamas, 548 U. S., at 347.
agreements and enforce the decisions of international tribunals only
when they should be enforced. Ibid. The point of a non-self-executing
B treaty is that it “addresses itself to the political, not the judicial
department; and the legislature must execute the contract before it can
become a rule for the Court.” Foster, supra, at 314 (emphasis
   The dissent faults our analysis because it “looks for the wrong thing
added); Whitney, 124 U. S., at 195. See also Foster, supra, at 307
(explicit textual expression about self-execution) using the wrong
(“The judiciary is not that department of the government, to which the
standard (clarity) in the wrong place (the treaty language).” Post, at 26.
assertion of its interests against foreign powers is confided”). The
Given our obligation to interpret treaty provisions to determine whether
dissent’s contrary approach would assign to the courts—not the
they are self-executing, we have to confess that we do think it rather
political branches—the primary role in deciding when and how
important to look to the treaty language to see what it has to say about
international agreements will be enforced. To read a treaty so that it
the issue. That is after all what the Senate looks to in deciding whether
sometimes has the effect of domestic law and sometimes does not is
to approve the treaty.
tantamount to vesting with the judiciary the power not only to interpret
but also to create the law.
   The interpretive approach employed by the Court today—resorting to
the text—is hardly novel. In two early cases involving an 1819 land-
C
grant treaty between Spain and the United States, Chief Justice
Marshall found the language of the treaty dispositive. In Foster, after
distinguishing between self-executing treaties (those “equivalent to an    Our conclusion that Avena does not by itself constitute binding
act of the legislature”) and non-self-executing treaties (those “the federal law is confirmed by the “postratification understanding” of
legislature must execute”), Chief Justice Marshall held that the 1819 signatory nations. See Zicherman, 516 U. S., at 226. There are
treaty was non-self-executing. 2 Pet., at 314. Four years later, the currently 47 nations that are parties to the Optional Protocol and 171
Supreme Court considered another claim under the same treaty, but nations that are parties to the Vienna Convention. Yet neither Medellín
concluded that the treaty was self-executing. See Percheman, 7 Pet., nor his amici have identified a single nation that treats ICJ judgments
at 87. The reason was not because the treaty was sometimes self- as binding in domestic courts.[Footnote 10] In determining that the
executing and sometimes not, but because “the language of” the Vienna Convention did not require certain relief in United States courts
Spanish translation (brought to the Court’s attention for the first time) in Sanchez-Llamas, we found it pertinent that the requested relief
177
would not be available under the treaty in any other signatory country. so. And whether the treaties underlying a judgment are self-executing
See 548 U. S., at 343–344, and n. 3. So too here the lack of any basis so that the judgment is directly enforceable as domestic law in our
for supposing that any other country would treat ICJ judgments as courts is, of course, a matter for this Court to decide. See Sanchez-
directly enforceable as a matter of their domestic law strongly suggests Llamas, supra, at 353–354.
that the treaty should not be so viewed in our courts.
D
   Our conclusion is further supported by general principles of
interpretation. To begin with, we reiterated in Sanchez-Llamas what we
   Our holding does not call into question the ordinary enforcement of
held in Breard, that “ ‘absent a clear and express statement to the
foreign judgments or international arbitral agreements. Indeed, we
contrary, the procedural rules of the forum State govern the
agree with Medellín that, as a general matter, “an agreement to abide
implementation of the treaty in that State.’ ” 548 U. S., at 351
by the result” of an international adjudication—or what he really means,
(quoting Breard, 523 U. S., at 375). Given that ICJ judgments may
an agreement to give the result of such adjudication domestic legal
interfere with state procedural rules, one would expect the ratifying
effect—can be a treaty obligation like any other, so long as the
parties to the relevant treaties to have clearly stated their intent to give
agreement is consistent with the Constitution. See Brief for Petitioner
those judgments domestic effect, if they had so intended. Here there is
20. The point is that the particular treaty obligations on which Medellín
no statement in the Optional Protocol, the U. N. Charter, or the ICJ
relies do not of their own force create domestic law.
Statute that supports the notion that ICJ judgments displace state
procedural rules.
   The dissent worries that our decision casts doubt on some 70-odd
treaties under which the United States has agreed to submit disputes
   Moreover, the consequences of Medellín’s argument give pause. An
to the ICJ according to “roughly similar” provisions. See post, at 4, 16–
ICJ judgment, the argument goes, is not only binding domestic law but
17. Again, under our established precedent, some treaties are self-
is also unassailable. As a result, neither Texas nor this Court may look
executing and some are not, depending on the treaty. That the
behind a judgment and quarrel with its reasoning or result. (We already
judgment of an international tribunal might not automatically become
know, from Sanchez-Llamas, that this Court disagrees with both the
domestic law hardly means the underlying treaty is “useless.” See post,
reasoning and result in Avena.) Medellín’s interpretation would allow
at 17; cf. post, at 11 (describing the British system in which treaties
ICJ judgments to override otherwise binding state law; there is nothing
“virtually always requir[e] parliamentary legislation”). Such judgments
in his logic that would exempt contrary federal law from the same fate.
would still constitute international obligations, the proper subject of
See, e.g., Cook v. United States, 288 U. S. 102, 119 (1933) (later-in-
political and diplomatic negotiations. See Head Money Cases, 112 U.
time self-executing treaty supersedes a federal statue if there is a
S., at 598. And Congress could elect to give them wholesale effect
conflict). And there is nothing to prevent the ICJ from ordering state
(rather than the judgment-by-judgment approach hypothesized by the
courts to annul criminal convictions and sentences, for any reason
dissent, post, at 24) through implementing legislation, as it regularly
deemed sufficient by the ICJ. Indeed, that is precisely the relief Mexico
has. See, e.g., Foreign Affairs Reform and Restructuring Act of 1998,
requested. Avena, 2004 I. C. J., at 58–59.
Pub. L. 105–277, div. G, §2242, 112 Stat. 2681–822, note following 8
U. S. C. §1231 (directing the “appropriate agencies” to “prescribe
   Even the dissent flinches at reading the relevant treaties to give rise regulations to implement the obligations of the United States under
to self-executing ICJ judgments in all cases. It admits that “Congress is Article 3” of the Convention Against Torture and Other Forms of Cruel,
unlikely to authorize automatic judicial enforceability of all ICJ Inhuman or Degrading Treatment or Punishment); see also infra, at
judgments, for that could include some politically sensitive judgments 25–26 (listing examples of legislation implementing international
and others better suited for enforcement by other branches.” Post, at obligations).
24. Our point precisely. But the lesson to draw from that insight is
hardly that the judiciary should decide which judgments are politically
   Further, that an ICJ judgment may not be automatically enforceable
sensitive and which are not.
in domestic courts does not mean the particular underlying treaty is
not. Indeed, we have held that a number of the “Friendship,
   In short, and as we observed in Sanchez-Llamas, “[n]othing in the Commerce, and Navigation” Treaties cited by the dissent,
structure or purpose of the ICJ suggests that its interpretations were see post, Appendix B, are self-executing—based on “the language of
intended to be conclusive on our courts.” 548 U. S., at 354. Given that the[se] Treat[ies].” See Sumitomo Shoji America, Inc., supra, at 180,
holding, it is difficult to see how that same structure and purpose can 189–190. In Kolovrat v. Oregon, 366 U. S. 187, 191, 196 (1961), for
establish, as Medellín argues, that judgments of the ICJ nonetheless example, the Court found that Yugoslavian claimants denied
were intended to be conclusive on our courts. A judgment is binding inheritance under Oregon law were entitled to inherit personal property
only if there is a rule of law that makes it so. And the question whether pursuant to an 1881 Treaty of Friendship, Navigation, and Commerce
ICJ judgments can bind domestic courts depends upon the same between the United States and Serbia. See also Clark v. Allen, 331 U.
analysis undertaken in Sanchez-Llamas and set forth above. S. 503, 507–511, 517–518 (1947) (finding that the right to inherit real
property granted German aliens under the Treaty of Friendship,
Commerce, and Consular Rights with Germany prevailed over
   Our prior decisions identified by the dissent as holding a number of
California law). Contrary to the dissent’s suggestion, see post, at 11,
treaties to be self-executing, see post, at 8–9, Appendix A, stand only
neither our approach nor our cases require that a treaty provide for
for the unremarkable proposition that some international agreements
self-execution in so many talismanic words; that is a caricature of the
are self-executing and others are not.  It is well settled that the
Court’s opinion. Our cases simply require courts to decide whether a
“[i]nterpretation of [a treaty] . . . must, of course, begin with the
treaty’s terms reflect a determination by the President who negotiated it
language of the Treaty itself.”  Sumitomo Shoji America, Inc., 457 U.
and the Senate that confirmed it that the treaty has domestic effect.
S., at 180. As a result, we have held treaties to be self-executing when
the textual provisions indicate that the President and Senate intended
for the agreement to have domestic effect.    In addition, Congress is up to the task of implementing non-self-
executing treaties, even those involving complex commercial disputes.
Cf. post, at 24 (Breyer, J., dissenting). The judgments of a number of
   Medellín and the dissent cite Comegys v. Vasse, 1 Pet. 193 (1828),
international tribunals enjoy a different status because of implementing
for the proposition that the judgments of international tribunals are
legislation enacted by Congress. See, e.g., 22 U. S. C. §1650a(a) (“An
automatically binding on domestic courts. See post, at 9; Reply Brief
award of an arbitral tribunal rendered pursuant to chapter IV of the
for Petitioner 2; Brief for Petitioner 19–20. That case, of course,
[Convention on the Settlement of Investment Disputes] shall create a
involved a different treaty than the ones at issue here; it stands only for
right arising under a treaty of the United States. The pecuniary
the modest principle that the terms of a treaty control the outcome of a
obligations imposed by such an award shall be enforced and shall be
case.[Footnote 11] We do not suggest that treaties can never afford
given the same full faith and credit as if the award were a final
binding domestic effect to international tribunal judgments—only that
judgment of a court of general jurisdiction of one of the several
the U. N. Charter, the Optional Protocol, and the ICJ Statute do not do
178
States”); 9 U. S.C. §§201–208 (“The [U. N.] Convention on the
Recognition and Enforcement of Foreign Arbitral Awards of June 10,
1958, shall be enforced in United States courts in accordance with this
chapter,” §201). Such language demonstrates that Congress knows
how to accord domestic effect to international obligations when it
desires such a result.[Footnote 12]
   Further, Medellín frames his argument as though giving
the Avena judgment binding effect in domestic courts simply conforms
to the proposition that domestic courts generally give effect to foreign
judgments. But Medellín does not ask us to enforce a foreign-court
judgment settling a typical commercial or property dispute.
See, e.g., Hilton v. Guyot, 159 U. S. 113 (1895); United
States v. Arredondo, 6 Pet. 691 (1832); see also Uniform Foreign
Money-Judgments Recognition Act §1(2), 13 U. L. A., pt. 2, p. 44
(2002) (“ ‘[F]oreign judgment’ means any judgment of a foreign state
granting or denying recovery of a sum of money”). Rather, Medellín
argues that the Avena judgment has the effect of enjoining the
operation of state law. What is more, on Medellín’s view, the judgment
would force the State to take action to “review and reconside[r]” his
case. The general rule, however, is that judgments of foreign courts
awarding injunctive relief, even as to private parties, let alone
sovereign States, “are not generally entitled to enforcement.” See 2
Restatement §481, Comment b, at 595.
   In sum, while the ICJ’s judgment in Avena creates an international
law obligation on the part of the United States, it does not of its own
force constitute binding federal law that pre-empts state restrictions on
the filing of successive habeas petitions. As we noted in Sanchez-
Llamas, a contrary conclusion would be extraordinary, given that basic
rights guaranteed by our own Constitution do not have the effect of
displacing state procedural rules. See 548 U. S., at 360. Nothing in the
text, background, negotiating and drafting history, or practice among
signatory nations suggests that the President or Senate intended the
improbable result of giving the judgments of an international tribunal a
higher status than that enjoyed by “many of our most fundamental
constitutional protections.” Ibid.
III
   Medellín next argues that the ICJ’s judgment in Avena is binding on
state courts by virtue of the President’s February 28, 2005
Memorandum. The United States contends that while
the Avena judgment does not of its own force require domestic courts
to set aside ordinary rules of procedural default, that judgment became
the law of the land with precisely that effect pursuant to the President’s
Memorandum and his power “to establish binding rules of decision that
preempt contrary state law.” Brief for United States as Amicus
Curiae 5. Accordingly, we must decide whether the President’s
declaration alters our conclusion that the Avena judgment is not a rule
of domestic law binding in state and federal courts.[Footnote 13]
A
   The United States maintains that the President’s constitutional role
“uniquely qualifies” him to resolve the sensitive foreign policy decisions
that bear on compliance with an ICJ decision and “to do so
expeditiously.” Brief for United States as Amicus Curiae 11, 12. We do
not question these propositions. See, e.g., First Nat. City
Bank v. Banco Nacional de Cuba, 406 U. S. 759, 767 (1972) (plurality
opinion) (The President has “the lead role . . . in foreign
policy”); American Ins. Assn. v. Garamendi, 539 U. S. 396, 414 (2003)
(Article II of the Constitution places with the President the “ ‘vast share
of responsibility for the conduct of our foreign relations’ ”
(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579,
610–611 (1952) (Frankfurter, J., concurring)). In this case, the
President seeks to vindicate United States interests in ensuring the
reciprocal observance of the Vienna Convention, protecting relations
with foreign governments, and demonstrating commitment to the role
of international law. These interests are plainly compelling.
179
   Such considerations, however, do not allow us to set aside first
principles. The President’s authority to act, as with the exercise of any
governmental power, “must stem either from an act of Congress or
from the Constitution itself.” Youngstown, supra, at 585; Dames &
Moore v. Regan, 453 U. S. 654, 668 (1981).
   Justice Jackson’s familiar tripartite scheme provides the accepted
framework for evaluating executive action in this area. First, “[w]hen
the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he
possesses in his own right plus all that Congress can
delegate.” Youngstown, 343 U. S., at 635 (Jackson, J., concurring).
Second, “[w]hen the President acts in absence of either a
congressional grant or denial of authority, he can only rely upon his
own independent powers, but there is a zone of twilight in which he
and Congress may have concurrent authority, or in which its
distribution is uncertain.” Id., at 637. In this circumstance, Presidential
authority can derive support from “congressional inertia, indifference or
quiescence.” Ibid. Finally, “[w]hen the President takes measures
incompatible with the expressed or implied will of Congress, his power
is at its lowest ebb,” and the Court can sustain his actions “only by
disabling the Congress from acting upon the subject.” Id., at 637–638.
B
   The United States marshals two principal arguments in favor of the
President’s authority “to establish binding rules of decision that
preempt contrary state law.” Brief for United States as Amicus
Curiae 5. The Solicitor General first argues that the relevant treaties
give the President the authority to implement the Avena judgment and
that Congress has acquiesced in the exercise of such authority. The
United States also relies upon an “independent” international dispute-
resolution power wholly apart from the asserted authority based on the
pertinent treaties. Medellín adds the additional argument that the
President’s Memorandum is a valid exercise of his power to take care
that the laws be faithfully executed.
1
   The United States maintains that the President’s Memorandum is
authorized by the Optional Protocol and the U. N. Charter. Brief for
United States as Amicus Curiae 9. That is, because the relevant
treaties “create an obligation to comply with Avena,” they
“implicitly give the President authority to implement that treaty-based
obligation.” Id., at 11 (emphasis added). As a result, the President’s
Memorandum is well grounded in the first category of
the Youngstown framework.
   We disagree. The President has an array of political and diplomatic
means available to enforce international obligations, but unilaterally
converting a non-self-executing treaty into a self-executing one is not
among them. The responsibility for transforming an international
obligation arising from a non-self-executing treaty into domestic law
falls to Congress. Foster, 2 Pet., at 315; Whitney, 124 U. S., at
194; Igartúa-De La Rosa, 417 F. 3d, at 150. As this Court has
explained, when treaty stipulations are “not self-executing they can
only be enforced pursuant to legislation to carry them into
effect.” Whitney, supra, at 194. Moreover, “[u]ntil such act shall be
passed, the Court is not at liberty to disregard the existing laws on the
subject.” Foster, supra, at 315.
   The requirement that Congress, rather than the President, implement
a non-self-executing treaty derives from the text of the Constitution,
which divides the treaty-making power between the President and the
Senate. The Constitution vests the President with the authority to
“make” a treaty. Art. II, §2. If the Executive determines that a treaty
should have domestic effect of its own force, that determination may be
implemented “in mak[ing]” the treaty, by ensuring that it contains
language plainly providing for domestic enforceability. If the treaty is to
be self-executing in this respect, the Senate must consent to the treaty
by the requisite two-thirds vote, ibid., consistent with all other
constitutional restraints.
   Once a treaty is ratified without provisions clearly according it
domestic effect, however, whether the treaty will ever have such effect
is governed by the fundamental constitutional principle that “ ‘[t]he
power to make the necessary laws is in Congress; the power to
execute in the President.’ ” Hamdan v. Rumsfeld, 548 U. S. 557, 591
(2006) (quoting Ex parte Milligan, 4 Wall. 2, 139 (1866) (opinion of
Chase, C. J.)); see U. S. Const., Art. I, §1 (“All legislative Powers
herein granted shall be vested in a Congress of the United States”). As
already noted, the terms of a non-self-executing treaty can become
domestic law only in the same way as any other law—through passage
of legislation by both Houses of Congress, combined with either the
President’s signature or a congressional override of a Presidential
veto. See Art. I, §7. Indeed, “the President’s power to see that the laws
are faithfully executed refutes the idea that he is to be a
lawmaker.” Youngstown, 343 U. S., at 587.
   A non-self-executing treaty, by definition, is one that was ratified with
the understanding that it is not to have domestic effect of its own force.
That understanding precludes the assertion that Congress has
implicitly authorized the President—acting on his own—to achieve
precisely the same result. We therefore conclude, given the absence of
congressional legislation, that the non-self-executing treaties at issue
here did not “express[ly] or implied[ly]” vest the President with the
unilateral authority to make them self-executing. See id., at 635
(Jackson, J., concurring). Accordingly, the President’s Memorandum
does not fall within the first category of the Youngstown framework.
   Indeed, the preceding discussion should make clear that the non-
self-executing character of the relevant treaties not only refutes the
notion that the ratifying parties vested the President with the authority
to unilaterally make treaty obligations binding on domestic courts, but
also implicitly prohibits him from doing so. When the President asserts
the power to “enforce” a non-self-executing treaty by unilaterally
creating domestic law, he acts in conflict with the implicit understanding
of the ratifying Senate. His assertion of authority, insofar as it is based
on the pertinent non-self-executing treaties, is therefore within Justice
Jackson’s third category, not the first or even the second. See id., at
637–638.
   Each of the two means described above for giving domestic effect to
an international treaty obligation under the Constitution—for making
law—requires joint action by the Executive and Legislative Branches:
The Senate can ratify a self-executing treaty “ma[de]” by the Executive,
or, if the ratified treaty is not self-executing, Congress can enact
implementing legislation approved by the President. It should not be
surprising that our Constitution does not contemplate vesting such
power in the Executive alone. As Madison explained in The Federalist
No. 47, under our constitutional system of checks and balances, “[t]he
magistrate in whom the whole executive power resides cannot of
himself make a law.” J. Cooke ed., p. 326 (1961). That would,
however, seem an apt description of the asserted executive authority
unilaterally to give the effect of domestic law to obligations under a
non-self-executing treaty.
   The United States nonetheless maintains that the President’s
Memorandum should be given effect as domestic law because “this
case involves a valid Presidential action in the context of
Congressional ‘acquiescence’.” Brief for United States as Amicus
Curiae 11, n. 2. Under the Youngstown tripartite framework,
congressional acquiescence is pertinent when the President’s action
falls within the second category—that is, when he “acts in absence of
either a congressional grant or denial of authority.” 343 U. S., at 637
(Jackson, J., concurring). Here, however, as we have explained, the
President’s effort to accord domestic effect to the Avena judgment
does not meet that prerequisite.
   In any event, even if we were persuaded that congressional
acquiescence could support the President’s asserted authority to
create domestic law pursuant to a non-self-executing treaty, such
180
acquiescence does not exist here. The United States first locates
congressional acquiescence in Congress’s failure to act following the
President’s resolution of prior ICJ controversies. A review of the
Executive’s actions in those prior cases, however, cannot support the
claim that Congress acquiesced in this particular exercise of
Presidential authority, for none of them remotely involved transforming
an international obligation into domestic law and thereby displacing
state law.[Footnote 14]
   The United States also directs us to the President’s “related”
statutory responsibilities and to his “established role” in litigating
foreign policy concerns as support for the President’s asserted
authority to give the ICJ’s decision in Avena the force of domestic law.
Brief for United States as Amicus Curiae 16–19. Congress has indeed
authorized the President to represent the United States before the
United Nations, the ICJ, and the Security Council, 22 U. S. C. §287,
but the authority of the President to represent the United States before
such bodies speaks to the President’s international responsibilities, not
any unilateral authority to create domestic law. The authority expressly
conferred by Congress in the international realm cannot be said to
“invite” the Presidential action at issue here. See Youngstown, supra,
at 637 (Jackson, J., concurring). At bottom, none of the sources of
authority identified by the United States supports the President’s claim
that Congress has acquiesced in his asserted power to establish on his
own federal law or to override state law.
   None of this is to say, however, that the combination of a non-self-
executing treaty and the lack of implementing legislation precludes the
President from acting to comply with an international treaty obligation.
It is only to say that the Executive cannot unilaterally execute a non-
self-executing treaty by giving it domestic effect. That is, the non-self-
executing character of a treaty constrains the President’s ability to
comply with treaty commitments by unilaterally making the treaty
binding on domestic courts. The President may comply with the treaty’s
obligations by some other means, so long as they are consistent with
the Constitution. But he may not rely upon a non-self-executing treaty
to “establish binding rules of decision that preempt contrary state law.”
Brief for United States as Amicus Curiae 5.
2
   We thus turn to the United States’ claim that—independent of the
United States’ treaty obligations—the Memorandum is a valid exercise
of the President’s foreign affairs authority to resolve claims disputes
with foreign nations. Id., at 12–16. The United States relies on a series
of cases in which this Court has upheld the authority of the President to
settle foreign claims pursuant to an executive agreement.
See Garamendi, 539 U. S., at 415; Dames & Moore, 453 U. S., at 679–
680; United States v. Pink, 315 U. S. 203, 229 (1942); United
States v. Belmont, 301 U. S. 324, 330 (1937). In these cases this Court
has explained that, if pervasive enough, a history of congressional
acquiescence can be treated as a “gloss on ‘Executive Power’ vested
in the President by §1 of Art. II.” Dames & Moore, supra, at 686 (some
internal quotation marks omitted).
   This argument is of a different nature than the one rejected above.
Rather than relying on the United States’ treaty obligations, the
President relies on an independent source of authority in ordering
Texas to put aside its procedural bar to successive habeas petitions.
Nevertheless, we find that our claims-settlement cases do not support
the authority that the President asserts in this case.
   The claims-settlement cases involve a narrow set of circumstances:
the making of executive agreements to settle civil claims between
American citizens and foreign governments or foreign nationals.
See, e.g., Belmont, supra, at 327. They are based on the view that “a
systematic, unbroken, executive practice, long pursued to the
knowledge of the Congress and never before questioned,” can “raise a
presumption that the [action] had been [taken] in pursuance of its
consent.” Dames & Moore, supra, at 686 (some internal quotation
marks omitted). As this Court explained in Garamendi,
Making executive agreements to settle claims of American nationals
against foreign governments is a particularly longstanding practice … .
Given the fact that the practice goes back over 200 years, and has
received congressional acquiescence throughout its history, the
conclusion that the President’s control of foreign relations includes the
settlement of claims is indisputable. 539 U. S., at 415 (internal
quotation marks and brackets omitted).

Even still, the limitations on this source of executive power are clearly
set forth and the Court has been careful to note that “[p]ast practice
does not, by itself, create power.” Dames & Moore, supra, at 686.

   The President’s Memorandum is not supported by a “particularly

longstanding practice” of congressional acquiescence, see Garamendi,
supra, at 415, but rather is what the United States itself has described
as “unprecedented action,” Brief for United States as Amicus
Curiae in Sanchez-Llamas, O. T. 2005, Nos. 05–51 and 04–10566,
pp. 29–30. Indeed, the Government has not identified a single instance
in which the President has attempted (or Congress has acquiesced in)
a Presidential directive issued to state courts, much less one that
reaches deep into the heart of the State’s police powers and compels
state courts to reopen final criminal judgments and set aside neutrally
applicable state laws. Cf. Brecht v. Abrahamson, 507 U. S. 619, 635
(1993) (“States possess primary authority for defining and enforcing
the criminal law” (quoting Engle v. Isaac, 456 U. S. 107, 128 (1982);
internal quotation marks omitted). The Executive’s narrow and strictly
limited authority to settle international claims disputes pursuant to an
executive agreement cannot stretch so far as to support the current
Presidential Memorandum.

   Medellín argues that the President’s Memorandum is a valid exercise

of his “Take Care” power. Brief for Petitioner 28. The United States,
however, does not rely upon the President’s responsibility to “take
Care that the Laws be faithfully executed.” U. S. Const., Art. II, §3. We
think this a wise concession. This authority allows the President to
execute the laws, not make them. For the reasons we have stated,
the Avena judgment is not domestic law; accordingly, the President
cannot rely on his Take Care powers here.

   The judgment of the Texas Court of Criminal Appeals is affirmed.

It is so ordered.

181
General List No.43 before the Court, including the United States of America.
Judgment No. 20
5 September 1933 [9] As the Court included upon the Bench no judge of the nationality of
PERMANENT COURT OF INTERNATIONAL JUSTICE the Parties, the Danish and Norwegian Governments availed
Twenty-Sixth Session themselves of their right, under Article 31 of the Statute, each to
Legal Status of Eastern Greenland appoint a judge ad hoc.
Denmark v. Norway
Judgment [10] By an Order made on August 6th, 1931, the Court fixed the times
Preside for the presentation of the Case, Counter-Case, Reply and Rejoinder in
BEFORE: Adatci
nt: the suit, in accordance with a proposal made jointly by the Parties'
Vice- Agents on August 4th, 1931. By an Order made on June 18th, 1932, at
Preside Guerrero the request of the Danish Government, the time-limit originally fixed for
nt: the presentation of the Reply was extended, and the Norwegian
Baron Rolin-Jaequemyns, Count Rostworowski, Government was given the right to ask for a corresponding extension
Judges: Fromageot, Anzilotti, Urrutia, Sir Cecil Hurst, of the time-limit fixed for the Rejoinder; the latter Government availed
Schücking, Negulesco, Jhr. Van Eysinga, Wang, itself of this right, and accordingly the time-limit last mentioned expired
Deputy on October 14th, 1932. The various documents of the written
Judge( Vogt, Zahle proceedings having been duly filed within the time-limits as finally
s): fixed, the suit thus became ready for hearing on October 14th, 1932.

[11] In the Danish Case, the Danish Government, in conformity with

M. de Scavenius, Danish Minister at The Hague,  Article 40 of the Rules of Court, asks, as stated in the Application, for
REPRESEN Denma
M. K. Steglich-Petersen, Advocate at the judgment to the effect that
TED BY: rk:
Supreme Court of Denmark, as Agents
M. Jens Bull, Counsellor of Legation, as Agent, "the promulgation of the declaration of occupation above mentioned
Norway and by MM. Arne Sunde , Per Rygh, Advocates and any steps taken in this connection by the Norwegian Government
: at the Supreme Court of Norway, as Agents and constitute a violation of the existing legal situation and are accordingly
Counsel unlawful and invalid".

[12] Under the same Article of the Rules of Court, the Norwegian
http://www.worldcourts.com/pcij/eng/decisions/ Government, in its Counter-Case, asks for judgment to the effect that
Perm. Link:
1933.04.05_greenland.htm
Citation: Legal Status of Eastern Greenland (Den. v. Nor.), 1933 "Denmark has no sovereignty over Eirik Raudes Land;
P.C.I.J. (ser. A/B) No. 53 (Apr. 5) Norway has acquired the sovereignty over Eirik Raudes Land; The
Publication: Publications of the Permanent Court of International Danish Government should bear the costs incurred by the Norwegian
Justice Series A./B. No. 53; Collection of Judgments, Government in this case".
Orders and Advisory Opinions A.W. Sijthoff’s Publishing
Company, Leyden, 1933 [7] The Danish Government, in its Reply, repeats the sub-missions
made in its Case, but also prays the Court to reject the submission
made in the Norwegian Counter-Case and to adjudge
[p23] The Court,
composed as above, "that the Norwegian. Government shall bear the costs incurred by the
delivers the following judgment: Danish Government in this case". [p25]
[1] By an Application instituting proceedings, filed with the Registry of [8] The Norwegian Government repeats in its Rejoinder the
the Court on July 12th, 1931, in accordance with Article 40 of the submissions made in its Counter-Case.
Statute and Article 35 of the Rules of Court, the Royal Danish
Government, relying on the optional clause of Article 36, paragraph 2, [9] In the course of a series of public sittings held between November
of the Statute, brought before the Permanent Court of International 21st, 1932, and February 7th, 1933, the Court heard the statements,
Justice a suit against the Royal Norwegian Government on the ground replies, rejoinders and observations presented by:
that the latter Government had, on July 10th, 1931, published a
proclamation declaring that it had proceeded to occupy certain MM. Bœg, as Advocate, Gustav Rasmussen, as Deputy-Advocate, M.
territories in Eastern Greenland, which, in the contention of the Danish Steglich-Petersen, Agent, and by M. Charles de Visscher, as Advocate
Government, were subject to the sovereignty of the Crown of and Counsel, on behalf of Denmark,
Denmark. The Application, after thus indicating the subject of the and MM. Per Rygh and Arne Sunde, Agents and Counsel, and by M.
dispute, proceeds, subject to the subsequent presentation of any Gilbert Gidel, as Counsel and Advocate, on behalf of Norway.
cases, counter-cases and any other documents or evidence, to
formulate the claim by asking the Court for judgment to the effect that [10] At the conclusion of the respective statements, the Parties Agents
"the promulgation of the above-mentioned declaration of occupation presented the submissions of the Governments represented by them
and any steps taken in this respect by the Norwegian Government as follows :
constitute a violation of the existing legal situation and are accordingly
unlawful and invalid". M. de Scavenius, on behalf of the Danish Government:
[7] Further, the Danish Government, in the Application, reserves the "May it please the Court,
right, in the first place, to apply to the Court, should circumstances To reject as unfounded the three submissions in the Norwegian
require it, for the indication of interim measures for the protection of its Counter-Case of March 12th and 15th, 1932;
rights and, in the second place, to ask the Court to decide as to the To give judgment to the effect that the declaration of occupation
nature of the reparation due to the Danish Government in promulgated by the Norwegian Government on July 10th, 1931, and
consequence of the Norwegian Government's act of which it any steps taken in this connection by that Government, constitute a
complains. violation of the existing legal situation and are, accordingly, unlawful
and invalid;
[8] On July 13th, 1931, notice of the Application was given to the To decide that the Norwegian Government shall bear the costs
Norwegian Government; on July 14th, the communications [p24] incurred by the Danish Government in this case."
provided for in Article 40 of the Statute and Article 36 of the Rules of
Court were despatched and were sent to all States entitled to appear [11] M. Bull, on behalf of the Norwegian Government:
182
 country was colonized about a century later. The best known of the
"May it please the Court, colonists was Eric the Red, who was an inhabitant of Iceland of
To reject the submissions presented by the Danish Government; Norwegian origin ; it was at that time that two settlements called
To adjudge and declare that Denmark has no sovereignty over Eirik Eystribygd and Vestribygd were founded towards the southern end of
Raudes Land; the western coast. These settlements appear to have existed as an
That Norway has acquired the sovereignty over Eirik Raudes Land; independent State for some time, but became tributary to the kingdom
That the Danish Government shall bear the costs incurred by the of Norway in the XIIIth century. These settlements had disappeared
Norwegian Government in this case." before 1500.

[12] A large number of documents, including memorials or opinions on
special points, and maps were filed on behalf of each of the Parties,
either as annexes to the documents of the written proceedings or in the
course of the hearings.
[13] The Agent and Counsel for the Norwegian Government, in the
course of his oral rejoinder, adduced certain new documents,
whereupon the Agent for the Danish Government, invoking Articles 48
and 52 of the Statute, prayed the Court to refuse to accept "the fresh
facts adduced in the rejoinder". The point having thus been raised, and
having regard also to certain reservations made on behalf of Norway
respecting fresh documents used in the Danish oral reply, the Court
[p26] reserved the right to refuse the fresh documents produced on
either side in the oral reply and rejoinder and to give the Danish Agent
an opportunity of presenting observations on the fresh documents
produced in the rejoinder. M. Steglich-Petersen was in fact permitted to
comment on the documents in question and thereupon withdrew his
Government's objection to this admission. Accordingly, the Court
declares that, in so far as the terms of Article 52 of the Statute are
applicable to the evidence produced by one of the Parties to the case,
the consent of the other Party, which is required under that Article, may
be regarded as having been obtained.
[14] The submission of the case being in all respects regular, these are
the circumstances in which the Court is now called upon to give
judgment.
[21] Information as to these early Nordic settlements and as to the
extent to which the settlers dominated the remainder of the country is
very scanty. It seems clear that the settlers made hunting journeys far
to the North on the western coast, and records exist of at least one
expedition to places on the East coast. The historian, or saga writer,
Sturla Thordarson tells (about 1261) how the men of Greenland
undertook to pay tribute, and how, for every man murdered, a fine
should be payable to the King whether the dead man was a Norwegian
or a Greenlander and whether killed in the settlements or in the
districts to which people went for the summer even as far North as
under the Pole Star.
[22] In 1380, the kingdoms of Norway and Denmark were united under
the same Crown; the character of this union, which lasted until 1814,
changed to some extent in the course of time, more particularly as a
result of the centralization at Copenhagen of the administration of the
various countries which were under the sovereignty of the Dano-
Norwegian Crown. This evolution seems to have obliterated to some
extent the separation which had existed between them from a
constitutional standpoint. On the other hand, there is nothing to show
that during this period Greenland, in so far as it constituted a
dependency of the Crown, should not be regarded as a Norwegian
possession.
[23] The disappearance of the Nordic colonies did not put an end to the
King's pretensions to the sovereignty over Greenland.

*** [24] The Norwegian Counter-Case describes the succeeding period as

an era of unsuccessful efforts on the part of the Catholic Church, of the
[15] According to the royal Norwegian proclamation of July 10th, 1931, Kings of Norway and Denmark and of their subjects, to renew relations
which gave rise to the present dispute, the "country" the "taking with the Norwegian colonies of [p28] Western Greenland. The
possession" of which "is officially confirmed" and which is "placed passports delivered by the King to the leader of two such expeditions -
under Norwegian sovereignty" is "situated between Carlsberg Fjord on Godske Lindenow, a Danish subject - at the beginning of the XVIIth
the South and Bessel Fjord on the North, in Eastern Greenland", and century indicate the voyage as "ad terram nostram Grunlandiam".
extends from latitude 71° 30' to 75° 40' N. Some Eskimos brought back from Greenland in 1605 are described by
the King as "Our subjects". In 1635, in a letter addressed to the King of
[16] By "Eastern Greenland" is meant the eastern coast of Greenland. France, Christian IV describes Greenland as "a divis nostris
antecessoribus Regibus Norvegice ad Nos devoluta". In 1636, the King
[17] It must have been intended that on the eastern side the sea and gives a concession to the Burgomaster and certain citizens of
on the western side the "Inland Ice" should constitute the limits of the Copenhagen for a monopoly of the navigation and trading in
area occupied under the proclamation of July 10th, though the Greenland and gives directions as to their dealing with "Notre pauvre
proclamation itself is silent on the subject. Indeed, Counsel for the peuple, Nos sujets et habitants dudit pays [FN1]". In 1666, Frederick III
Danish Government was disposed to criticize the validity of the is said to have added a bear to the arms of the Danish Monarchy as
proclamation because of the absence of any western limit of the the emblem of Greenland.
occupation. This is a point, however, which in view of the conclusions
reached by the Court need not be pursued. ----------------------------------------------------------------------------------------------
-----------------------
[18] Greenland, which extends from latitude 59° 46' to 83° 39' N. and [FN1] Translation supplied by the Danish Government
from longitude 73° to 10° 33' W., and the southernmost point of which ----------------------------------------------------------------------------------------------
is in about longitude 630 W. of Greenwich, has a total area of about -----------------------
2,200,000 square kilometres; five sixths of this area are covered by the
"Inland Ice", so that only a narrow strip of varying width along the [25] Similarly, foreign countries appear to have acquiesced in the
coasts is free of permanent ice. It should be added that only in the last claims of the King of Denmark. Both the States-General of the United
years of the XIXth century was it definitely established that Greenland Provinces in 1631 and the King of France in 1636 intimated that they
is not connected by land with the other parts of the continent of did not dispute the claims; and, by the Treaty of Lund of September
America, i.e. that Greenland is an island. [p27] 27th, 1679 (7th Secret Article), Sweden recognized the ancient rights
and claims of the King of Denmark over Greenland and the adjacent
[19] The climate and character of Greenland are those of an Arctic seas and coasts.
country. The "Inland Ice" is difficult to traverse, and parts of the coast -
particularly of the East coast - are for months together difficult of [26] It is alleged on behalf of Norway that at this time the word
access owing to the influence of the Polar current and the stormy "Greenland" was used to denote all the countries bordering on the
winds on the icebergs and the floe ice and owing to the frequent spells seas to the North, including Spitzbergen and Nova Zembla, as well as
of bad weather. what is now called Greenland. It appears that at this date there were in
Spitzbergen no native inhabitants, so that when mention is made of
[20] According to the information supplied to the Court by the Parties, it Eskimos brought back from Greenland, as happened in 1605, it must
was about the year 900 A. D. that Greenland was discovered. The be the Greenland in the narrower sense that is referred to.
183

[27] Though at this time no colonies or settlements existed in
Greenland, contact with it was not entirely lost, because the waters
surrounding it, especially on the East coast, were regularly visited by
whalers, and the maps of the period show that the existence and the
general configuration of Greenland, including the East coast, were by
no means unknown.
[28] At the beginning of the XVIIIth century, closer relations were once
more established between Greenland and the countries whence the
former European settlements on its coasts had originated. In 1721, the
pastor Hans Egede, of Bergen in Norway, formed a "Greenland
Company", went to Greenland as a missionary and founded a new
colony there, which was soon followed by other settlements. In 1723,
this Company was granted a concession placing at its disposal for
twenty-five years "the whole country of Greenland" - the King simply
reserving his "sovereignty, absolutum dominium and hereditary [p29]
rights". The Company was, however, dissolved and, after an interval
during which the State itself took over the conduct of Greenland affairs
by means of a "Greenland Department" attached to the Royal
Chancellory, a fresh concession was granted in 1734 to a certain
Jacob Severin. In 1740, just before the renewal of this concession -
which comprised a prohibition, applicable both to the King's subjects
and to foreigners, of trading and navigation in Greenland contrary to
the terms of the concession - the King formed a "Greenland
Commission" to which he entrusted matters arising out of the
concession. Furthermore, on the occasion of the renewal of the
concession, the King issued an Ordinance on April 9th, 1740,
prohibiting any person, whether a subject or a foreigner, from doing
business in breach of Severin's concession in the colonies already
established in Greenland or to be established thereafter, provided that
the situation and limits of the colonies (which were in general to extend
to fifteen miles on either side of each colony) were first published. The
Ordinance also prohibited all persons from robbing the Greenlanders
or committing any acts of violence against them in any place in
Greenland, whether by land or sea.
[29] Severin's concession finally expired in 1750. In the following year,
a concession was granted to the already existing "General Trading
Company" of Copenhagen. The exclusive privileges to be enjoyed by
the Company were enforced by an Ordinance of March 26th, 1751,
enacting penalties against persons acting in breach of the concession
in terms very similar to those of the Ordinance of 1740. Another
Ordinance of April 22nd, 1758, confirmed the previous one, but
extended its scope by including, in addition to the "Colonies and
factories already established or subsequently to be established", "other
ports and localities in general without differentiation or exception".
[30] In 1774, the State itself once more took over the Greenland trade,
which it administered by means of an autonomous "Board", and the
King, on March 18th, 1776, issued an Ordinance, which is still in force
and which repeats the provisions of the previous instruments in very
similar terms. The concessions previously granted to private persons
were bestowed upon a privileged Trading Administration. Since then
the Greenland trade has been a monopoly of the State of Denmark. In
1781, "Regulations" were made dividing "the country" into a northern
and a southern district; the "inspectors" set over these districts were
not only entrusted with the supervision of the monopoly's trade, but
were also given powers of general administration.
[31] During this period, settlements were established described as
colonies, factories or stations, along the West coast between [p30]
latitude 60° 42' and 72° 47' N. ; according to the Ordinance of March
18th, 1776, the "Colonies and factories" then existing extended from
latitude 60° to 73º N. Attempts to reach the East coast and effect a
landing there were made from the West coast of the island, but led to
no results.
[32] In the contention of Norway, the above-mentioned instruments,
when they speak of Greenland in general, mean the colonized part of
the West coast referred to above; Denmark, on the contrary, maintains
that the expressions in question relate to Greenland in the
geographical sense of the word, i.e. to the whole island of Greenland.
[33] The Napoleonic era profoundly affected the international status of
184
the Scandinavian countries, and also that of Greenland. After Sweden
had ceded Finland to Russia (1809), the policy of the Allies against
France made it possible for Sweden to obtain the cession of the
kingdom of Norway which until then had been united to Denmark, who
had supported France. By a series of conventions concluded in 1812
and 1813, Russia, Great Britain and Prussia supported Sweden's
aspirations. After the Franco-Danish alliance had been renewed on
July 10th, 1813, and war had broken out between Denmark, on the
one hand, and Sweden and her allies, on the other, the battle of
Leipzig (October 1813) led to the triumph of the Allied cause and the
Swedish army compelled Denmark to sign the Peace Treaty of Kiel,
dated January 14th, 1814, the fourth Article of which provided for the
cession to Sweden of the kingdom of Norway, excluding however
Greenland, the Fœroe Isles and Iceland.
[34] The two relevant paragraphs of Article 4 of the Treaty of Kiel run
as follows [FN1]:
"Article IV. - His Majesty the King of Denmark, for himself and his
successors, renounces for ever and irrevocably all his rights and
claims on the kingdom of Norway, together with possession of the
Bishopricks and Dioceses of Christians and, Bergenhuus, Aggerhuus,
and Drontheim, besides Nordland and Finmark, as far as the frontiers
of the Russian empire.
These bishopricks, dioceses, and provinces, constituting the kingdom
of Norway, with their inhabitants, towns, harbours, fortresses, villages,
and islands, along the whole coast of that kingdom, together with their
dependencies (Greenland, the Ferroe Isles, and Iceland, excepted) ;
as well as all privileges, rights, and emoluments there belonging, shall
belong in full and sovereign property to the King of Sweden, and make
one with his united kingdom." [p31]
----------------------------------------------------------------------------------------------
-----------------------
[FN1] Translation as printed in the "Annual Register" for 1814.
----------------------------------------------------------------------------------------------
-----------------------
[35] At the end of 1814, the necessary steps were taken with a view to
the complete liquidation of all matters arising out of the Union between
Denmark and Norway. After protracted negotiations, this liquidation
was effected by a Convention signed at Stockholm on September 1st,
1819, between Denmark of the one part and the United Kingdoms of
Sweden and Norway of the other part. It will be necessary, in the later
part of the present judgment, to revert to the events of 1814 to 1819,
as they are of special importance in regard to the dispute concerning
Greenland.
[36] In the course of the XIXth century and the early years of the XXth,
the coasts of Greenland were entirely explored. For the purposes of
the present case, it is only necessary to note two dates: first, in 1822
the Scottish whaler Scoresby made the first landing by a European in
the territory covered by the Norwegian declaration of occupation;
secondly, about 1900, thanks to the voyages of the American Peary,
the insular character of Greenland was established. It is admitted by
Norway that from the time of Scoresby's landing the East coast forms
part of the known portion of Greenland.
[37] Several Danish expeditions explored portions of the non-colonized
part of Greenland during the XIXth century; first in 1829-1830, the
Graah expedition explored the East coast south of Angmagssalik.
Approximately the same part of the East coast was again explored in
1883-1885 by the Holm expedition which led, after some years, to the
colonization, in 1894, of Angmagssalik. The Ryder expedition in 1891-
1892 explored Scoresby Sound and the coast to the north of this fjord,
i.e. a part of the coast occupied by Norway in 1931. In 1898-1900, the
Amdrup expedition explored the very inaccessible coast between
Angmagssalik and a point near the southern limit of the territory
occupied in 1931. In 1906-1908, the "Danmark Expedition" explored
the whole of the equally difficult East coast north of a point near the
northern end of the territory occupied in 1931 and north-wards to the
point reached by Peary when he explored the coast from the western
side. In 1926-1927, the Lauge Koch expedition explored the coast
between Scoresby Sound and Danmarkshavn comprising the whole of
the territory occupied in 1931. It results from this short summary that
the whole East coast has been explored by Danish expeditions. There
were, in addition, many non-Danish expeditions.
[38] In 1863, the Danish Government granted to Mr. J. W. Tayler, an
Englishman, an exclusive concession for thirty years to enable him to
establish on the East coast of [p32] Greenland "stations for the
purpose of trading with the natives, hunting, fishing, or working any
metalliferous or other mineral-bearing mines there discovered, or
engaging in any other business which he may consider to his
advantage"; any station of this kind which might thus be
established ."to the north or south of the 65th degree of latitude North"
was to be placed "under the sovereignty of the Danish Crown". All the
papers with regard to the granting of the Tayler concession have been
submitted to the Court at the request of the Norwegian Agent.
[39] The Tayler concession led to no practical result.; The
concessionnaire was not able to establish any stations on the East
coast.
[40] Between 1854 and 1886, applications were made to the Danish
Government for the grant of several other concessions for the erection
of telegraph-lines in or across Greenland, or for the grant of mining
concessions. Some of these were granted, some were refused. They
all use the term "Greenland" without qualification, and one at least
provides for a survey for a telegraph-line across Greenland from the
eastern to the western coast. These concessions also led to no
practical result.
[41] In 1894, at Angmagssalik, in latitude 65° 36' N., the first Danish
settlement on the East coast was established. In accordance with the
provisions of the Ordinance of 1776, mention of which has already
been made, the foundation of this "mission and trading station" was
"made public" by a Decree of October 10th, 1894, notice of which was
given to the Minister for Foreign Affairs of Sweden and Norway by a
note from the Danish Minister at Stockholm; notice of the Decree was
also given to the governments of some other States. The papers in
connection with the establishment of this settlement have also been
laid before the Court and are of some importance, as will subsequently
appear.
[42] As regards the limits of the colonized territory on the West coast of
Greenland, these were already in 1814 held to extend from latitude 60°
to latitude 73° N. These limits, which had already been established by
the Ordinance of March 18th, 1776, were confirmed by a Proclamation
("Notice to Mariners") of May 8th, 1884. On March 8th, 1905, however,
a fresh Proclamation was published to the effect that "the Danish
colonies on the West coast of Greenland .... extend from latitude 60° to
latitude 74° 30' N.". Notice of the Proclamation was given on
November 29th, 1905, to the Norwegian Minister [p33] for Foreign
Affairs by the Danish Minister at Christiania [FN1]; it was observed, in
the Danish note, that this involved an extension by a degree and a half
of the limit fixed in the "Proclamation of 1884".
----------------------------------------------------------------------------------------------
-----------------------
[FN1] The name of the capital of Norway was altered to Oslo on
January 1st, 1925. It is so described in the judgment in connection with
events subsequent to that
----------------------------------------------------------------------------------------------
-----------------------
[43] In 1909, a private Danish society established a mission station on
the Northwest coast of Greenland, at Cape York, in latitude 76° 32' N. ;
in the following year, a trading and research station known as "Thule"
was founded in the same locality by Danish explorers. Apparently, no
notice of the foundation of these stations was given to the Powers.
Finally, in 1925, another Danish trading and mission station was
established on the East coast at Scoresby Sound, in about latitude 70°
30' N. No special notice was given of the establishment of this station.
[44] In 1905, a Decree was issued by the Danish Minister of the
Interior, fixing the limits of the territorial waters round Greenland. The
limits within which the fishing was stated to be reserved for Danish
subjects were to be drawn at a distance of three marine miles along
185
the whole coast of Greenland.
[45] In 1908, a law was promulgated by Denmark relating to the
administration of Greenland. The colonies on the West coast were
divided into two districts, a northern and a southern.
[46] In 1921, a Decree was issued, running as follows [FN2]:
"In pursuance of His Majesty's authority dated the 6th instant, and with
reference to the Royal Ordinance of March 18th, 1776, know all men
that Danish Trading, Mission and Hunting Stations have been
established on the East and West coasts of Greenland, with the result
that the whole of that country is henceforth linked up with Danish
colonies and stations under the authority of the Danish Administration
of Greenland.
Done at the Ministry of the Interior, May 10th, 1921."
----------------------------------------------------------------------------------------------
-----------------------
[FN2] Translation from the French text supplied by the Danish
Government. The translation supplied by the Norwegian Government
reads as follows:
"In terms of His Majesty's authority dated the 6th instant, and with
reference to the Royal Ordinance of March 18th, 1776, know all men
that Danish Trading, Mission and Hunting stations have been
established on the East and West coasts of Greenland, so that the
whole of that country is henceforth linked up with Danish colonies and
stations and with the Danish Administration of Greenland.
Done at the Ministry of the Interior, May 10th, 1921."
----------------------------------------------------------------------------------------------
-----------------------
[p34]
[47] This Decree was notified to the Powers during June and July. It
was followed on June 16th, 1921, by a Proclamation (Notice to
Mariners) concerning navigation in the seas around Greenland, to the
effect that the closing of the island to Danish and foreign ships
extended to "the whole of the coasts and islands pertaining to
Greenland".
[48] Reference to these Decrees must again be made later.
[49] Throughout this period and up to the present time, the practice of
the Danish Government in concluding bilateral commercial conventions
or when participating in multilateral conventions relating to economic
questions - such as those concluded since 1921 under the auspices of
the League of Nations - has been to secure the insertion of a
stipulation excepting Greenland from the operation of the convention.
Only in one case - that of the conventions concluded with Japan on
February 12th, 1912 - is the exception or the reservation otherwise
than in favour of "Greenland" or the "territory of Greenland" without
qualification; in the conventions with Japan, the exception is in favour
of "the Danish colonies in Greenland".
[50] With particular regard to the territory covered by the Norwegian
declaration of occupation of July 10th, 1931, certain circumstances
invoked by the Parties concerning the exploitation of the country are to
date. be noted.
[51] In 1919, the "Eastern Greenland Company" was founded at
Copenhagen; this was a limited company with extensive . resources at
its disposal, and its aim was to conduct hunting operations in the zone
between Scoresby Sound and Germaniahavn (latitude 70° 30' to 77°
N.). The resources of this company, which built a number of houses
and hunting cabins in the district in order that its hunters might winter
there, were exhausted by 1924 and its operations ceased. The Danish
Government, which had taken over the company's stations, conceded
the use of them to a new hunting company founded in 1929, the Nanok
Company, which carried on the operations of the former company. The
Nanok Company's principal station is equipped with wireless.
[52] As regards Norwegian activities, in addition to visits to the East
coast paid periodically during the summer from 1889 onwards,
expeditions wintered in the territory in question in 1908 and 1909, and
again in 1922 and in 1926 and the ensuing years. The expedition of
1922 established a provisional wireless station at Mygg-Bukta
(Mackenzie Bay), but the Danish Government made a protest
immediately against its erection. Owing to the loss of a ship, this
station ceased [p35] working in the following year. It began to function
again in 1926, and since then this Mygg-Bukta station has been
working regularly. Since 1929 both hunting operations and the wireless
service have been carried on by a Norwegian company, the Arktis
nœringsdrift. The various Norwegian expeditions also have built a
large number of houses and cabins in the disputed territory.
[53] During the XIXth century, while the Danish Government made a
practice of excluding "Greenland", without qualification, from the
commercial conventions it concluded and in other ways acted upon the
assumption that Danish sovereignty extended to the whole of
Greenland, opinions were occasionally expressed by private persons
in Denmark interested in Greenland to the effect that the absence of
effective occupation of the uncolonized parts exposed the territory to
the risk of permanent occupation by some foreign State. Thus, in 1823,
after the landing of Scoresby on the East coast, a M. Wormskjöld - who
was a naturalist and an expert in Greenland affairs - was consulted by
the Danish Minister of State and addressed to him a letter indicating
the weakness of the Danish position and the contentions which a
foreign Power might adduce in favour of a right to occupy the eastern
coast. It was, perhaps, as a result of this communication from M.
Wormskjöld that in 1829 the expedition mentioned above under a
naval officer named Graah was sent to visit the East coast; but no
policy of colonization was then initiated.
[54] Interest in Greenland, however, was gradually increasing in
Denmark, and in 1878 the Danish Government set up a Commission
for the study of the natural and ethnographic phenomena of
Greenland. This Commission has published a large number of volumes
containing reports on many questions connected with Greenland,
including the results of the scientific and exploring and cartographic
expeditions to the country.
[55] At the beginning of the present century, opinion again began to be
manifested in favour of the more effective occupation of the
uncolonized areas in Greenland, in order that the risk of foreign
settlement might be obviated.
[56] During the Great War of 1914 to 1918, Denmark by treaty ceded
to the United States of America her West Indian Islands - the Danish
Antilles - and, during the negotiations for the conclusion of the treaty,
broached to the American Secretary of State - [p36] at first in
conversation and subsequently, on December 27th, 1915, by a written
communication - the question of the extension of Danish activities
throughout all Greenland. As the result, the United States signed on
August 4th, 1916, the same day as the treaty for the cession of the
Antilles, a declaration to the effect that the United States would not
object to the Danish Government extending their political and
economic interests to the whole of Greenland.
[57] On July 12th, 1919, the Danish Minister for Foreign Affairs
instructed the Danish Minister at Christiania that a Committee had just
been constituted at the Peace Conference "for the purpose of
considering the claims that may be put forward by different countries to
Spitzbergen", and that the Danish Government would be prepared to
renew before this Committee the unofficial assurance already given
(on April 2nd, 1919) to the Norwegian Government, according to which
Denmark, having no special interests at stake in Spitzbergen, would
raise no objection to Norway's claims upon that archipelago. In making
this statement to the Norwegian Minister for Foreign Affairs, the Danish
Minister was to point out "that the Danish Government had been
anxious for some years past to obtain the recognition by all the
interested Powers of Denmark's sovereignty over the whole of
Greenland, and that she intended to place that question before the
above-mentioned Committee" ; and, further, that the Danish
Government felt confident that the extension of its political and
economic interests to the whole of Greenland "would not encounter
any difficulties on the part of the Norwegian Government".
[58] On July 14th, 1919, the Danish Minister saw M. Ihlen, the
Norwegian Minister for Foreign Affairs, who merely replied on this
186
occasion "that the question would be considered". The Norwegian
Minister recorded his conversation with the Danish representative in a
minute, the accuracy of which has not been disputed by the Danish
Government. On July 22nd following, M. Ihlen made a statement to the
Danish Minister to the effect "that the Norwegian Government would
not make any difficulties in the settlement of this question" (i.e. the
question raised on July 14th by the Danish Government). These are
the words recorded in the minute by M. Ihlen himself. According to the
report made by the Danish Minister to his own Government, M. Ihlen's
words were that "the plans of the Royal [Danish] Government
respecting Danish sovereignty over the whole of Greenland .... would
meet with no difficulties on the part of Norway". It is this [p37]
statement by the Norwegian Minister for Foreign Affairs which is
described in this judgment as the "Ihlen declaration".
[59] In 1920, the Danish Government approached the Governments in
London, Paris, Rome and Tokyo with a view to obtaining assurances
from these Governments on the subject of the recognition of
Denmark's sovereignty over the whole of Greenland. Each of those
Governments replied in terms which satisfied the Danish Government -
which thereupon, in 1921, approached the Swedish and Norwegian
Governments as the only other Governments interested. The
communication to the Swedish Government was dated January 13th,
and that to the Norwegian Government January 18th.
[60] The Swedish Government made no difficulty. The Norwegian
Government was not prepared to adopt the same attitude unless it
received an undertaking from the Danish Government that the liberty of
hunting and fishing on the East coast (outside the limits of the colony
of Angmagssalik), which Norwegians had hitherto enjoyed, should not
be interfered with. This undertaking the Danish Government was
unwilling to give, as it alleges that it would have involved a reversal of
the policy which Denmark had hitherto followed of endeavouring to
shield the Eskimo people of Greenland on grounds of health from
uncontrolled contact with white races; such a policy could not be
maintained unless control could be exercised over those having
access to the territory.
[61] The terms of the correspondence in which the Danish Government
sought and received assurances from the interested Powers as to
Denmark's position in Greenland, are so important that they will be
discussed in detail later.
[62] As regards the discussion with the Norwegian Government: as
soon as it became clear that the Norwegian Government was unwilling
to give the desired assurances, the Danish Government, in May 1921,
instructed its Minister at Christiania that no further application was to
be made and said that it would rest content with the verbal undertaking
given by M. Ihlen in 1919. The Decree of May 10th, 1921, referred to
above, was then issued. The reason given for acting somewhat hastily
was that May 12th was the 200th anniversary of the day when Hans
Egede sailed from Bergen to found his colonies in Greenland and the
occasion was to be marked by suitable solemnities.
[63] During the latter half of the year 1921 and during the two
succeeding years, diplomatic correspondence continued [p38]."
between the Danish and Norwegian Governments. This
correspondence need not be described in detail. The general effect of
it is to show the points on which the two Governments were at issue.
[64] On the Danish side there was evinced willingness to make every
effort to satisfy the desire of the Norwegian Government that
Norwegians should be able to continue to fish and hunt on the East
coast of Greenland but a determination not to give way on the claim to
sovereignty. On the Norwegian side it was gradually made clear that,
in the opinion of the Norwegian Government, the uncolonized part of
the East coast of Greenland was a terra nullius, and that Denmark's
political aspirations could only be met if it involved no sacrifice of
Norwegian economic interests. This disagreement, however, on the
point of principle as to the status of the territory did not exclude a
mutual desire to find a practical solution of the fishing and hunting
questions.
[65] On July 13th, 1923, the Norwegian Minister for Foreign Affairs
informed the Danish Minister at Christiania that, on the 7th of that
month, the Storting had passed a resolution calling on the Norwegian
Government "to invite the Danish Government to enter into
negotiations on the question of Greenland, the said negotiations to be
conducted on a free basis between representatives specially appointed
for that purpose by the two countries". The Danish Government
accepted the invitation (note of July 30th, 1923); the two Governments
agreed that the negotiations would have the effect of suspending the
exchange of views through diplomatic channels, but that, in case they
proved unsuccessful, the legal situation would remain unaffected.
[66] Negotiations began in September 1923. In their early stages, they
covered the Greenland question generally, but as they progressed,
points on which no agreement could be reached were eliminated. On
January 28th, 1924, the negotiations resulted in the approval of a draft
agreement, which the delegations recommended for adoption by their
respective Governments. On July 9th, 1924, the latter signed a
Convention applicable to the whole eastern coast of Greenland,
excepting the district of Angmagssalik (and, in a certain eventuality,
that of Scoresby Sound); the Convention was to come into force as
from July 10th, 1924, for a first period of twenty years.
[67] Under Article 2, ships were to have free access to the East coast,
and their crews and persons on board were given the right to land, to
winter in the territory and [p39] to hunt and fish. Under Article 5, the
erection of meteorological, telegraphic and telephonic stations was
authorized.
[68] Simultaneously with the Convention, notes were signed by each
Government to the effect that it signed the Convention in order to avoid
disputes and to strengthen friendly relations between the two Powers,
and that it reserved its opinion on questions concerning Greenland not
dealt with in the Convention, so that by the Convention nothing was
prejudged, abandoned or lost.
[69] It is apparent from the documents filed with the Court, in particular
from the Protocol signed at the twelfth and last meeting of the
delegations held at Christiania on January 28th, 1924, that the chief
points that these notes had in view were: the Danish contention that
Denmark possessed full and entire sovereignty over the whole of
Greenland and that Norway had recognized that sovereignty, and the
Norwegian contention that all the parts of Greenland which had not
been occupied in such a manner as to bring them effectively under the
administration of the Danish Government were in the condition of terra
nullius, and that if they ceased to be terrce nullius they must pass
under Norwegian sovereignty.
[70] On July 8th, 1924, the Danish Directorate of the Greenland
Colonies issued a Decree dated July 5th, adverting to the Proclamation
of June 16th, 1921, referred to above, and announcing that the Danish
Government would permit Danish vessels and persons on board of
them to navigate "until further notice" to the territory (which was
subsequently specified in detail by the Convention of July 9th), subject
to conditions which were identical with those laid down later in the
Convention; the Decree added that the permission granted would be
applicable also to nationals, vessels and companies of Iceland and of
foreign nations with which the Danish Government should conclude an
agreement. This act occasioned reservations on the part of the
Norwegian Government.
[71] On April 1st, 1925, the Danish Government promulgated a law "on
fishing and hunting in Greenland waters", etc.; this was followed, on
April r8th, by a law "concerning the administration of Greenland". The
former law - which served as the basis for a Proclamation ("Notice to
Mariners") dated May 22nd, 1925, by the Greenland Directorate "on
navigation in the seas around Greenland" - reserved this hunting and
fishing in Greenland waters exclusively for Danish subjects (including
Eskimos) settled in Greenland, and for persons obtaining special
licences, subject to the terms of the above-mentioned Decree of July
5th, 1924 (which contains in substance the provisions of the
Convention of the 9th of that [p40] month). The second law divided
Greenland, from an administrative point of view, into three provinces,
and laid down that "all commercial activities in Greenland are reserved
to the Danish State under the direction of the Ministry of the Interior".
On August 8th, 1925, Norway made "categorical reservations" against
the latter law, "in so far as it applies to regions where the sovereignty
187
of Denmark has not hitherto been demonstrated".
[72] During the year 1925, the British and French Governments
requested the Danish Government to grant most-favoured-nation
treatment i.e. the treatment accorded to Norwegian subjects by the
Convention of July 9th, 1924 to their respective subjects in Eastern
Greenland. Denmark granted these requests, and the arrangements
concluded on the subject took the form of two exchanges of notes
(notes of April 23rd and June 4th, 1925, and of October 12th and 19th,
1925). When Norway learned of these exchanges of notes, she drew
the attention of Great Britain and France, on September 25th and
November 2nd, 1925, to the fact that "she had not recognized Danish
sovereignty over the whole of Greenland"; the Norwegian Government
caused the Danish Government to be informed of this step. Similar
communications were also made by the Norwegian Government to all
the other Powers whom it regarded as being interested.
[73] Subsequently, the question of Danish sovereignty over the eastern
coast of Greenland appears not to have been raised for nearly five
years. But, in the summer of 1930, the Norwegian Government
conferred police powers on certain Norwegian nationals "for the
inspection of the Norwegian hunting stations in Eastern Greenland".
Denmark became uneasy at this action, and intimated to the
Norwegian Government, at first verbally, and afterwards - on
December 26th, 1930 - in writing, that she could not countenance the
granting of regular police powers to Norwegian nationals in territories
situated in Greenland, seeing that these territories were, in the Danish
view, subject to Danish sovereignty. On January 6th, 1931, the
Norwegian Government replied that, in accordance with the standpoint
which it had reserved in its note of July 9th, 1924, Eastern Greenland
constituted a terra nullius, and that, consequently, it was "fully entitled"
to invest Norwegian nationals in this territory with police powers in
respect of Norwegian nationals and other persons domiciled in
Norway.
[74] The year 1930 also witnessed the inauguration by Denmark of a
"three years plan" for scientific research in "the central part of Eastern
Greenland, i.e. the district between Scoresby [p41] Sound and
Danmarkshavn". In a note dated February 20th, 1931, from the
Norwegian Minister at Copenhagen to the Danish Minister for Foreign
Affairs, the Norwegian Government pointed out that "this important
enterprise, whose object was not purely scientific but also had a
practical aim of colonization, would be operating in the portion of
Eastern Greenland which has been frequented for many years past by
Norwegian hunters .... and where there are Norwegian interests of
particular importance". The note further "strongly urged the Danish
Government, in the interests of both countries, to do everything in its
power to ensure that the Danish 'three years' plan .... should not be
carried out in such a way as to conflict with the provisions of the
Convention concerning Eastern Greenland, or with the legitimate
interests of the Norwegian hunters in that country".
[75] It is in these events of 1930, and in the reactions which they
provoked, that the immediate origin of the present dispute is to be
sought.
[76] On March 11th, 1931, the Danish Government replied to the
Norwegian observations on the "three years plan", and on March 14th
it informed the Norwegian Government, linking the question of police
powers to that of the "three years" expedition, "that it thought it
necessary, in accordance with the point of view expressed by the
Danish Government in its note of July 9th, 1924, in connection with this
expedition to provide for police supervision, with powers extending to
all persons in the territory in question in Eastern Greenland". A
prolonged diplomatic discussion ensued, during which it seemed as if
the Governments were inclining towards an agreement to refrain from
raising during the life of the Convention of 1924 questions concerning
the differences on matters of principle which had not been settled by
that Convention, in order to ensure a peaceful development of the
situation in Eastern Greenland. On June 30th, the Norwegian
Government requested the Danish Minister at Oslo to confirm that the
Danish Government was agreed that, during the life of the Convention,
no police authority, whether Norwegian or Danish, should be
established in Eastern Greenland, and that no other act of sovereignty
should be accomplished therein by Norway or by Denmark.
 opposite contention is maintained.
[77] The Danish reply, which was given on July 3rd, was in the
negative. The Danish Government held that the proposed arrangement [82] Finally, on July 10th, 1931, in a note verbale addressed by the
would go beyond the limits of the Convention of 1924, and would Norwegian Minister for Foreign Affairs to the Danish Minister at Oslo,
moreover constitute a recognition of the contention upheld by Norway the Norwegian Government stated that, "having regard to the legal
in 1924 (the terra nullius theory) and would be inconsistent with the position of Norway in the proceedings before the Court", it "had felt
fundamental standpoint maintained at that time by Denmark (theory of obliged to proceed, in virtue of a Royal Resolution of the same date, to
Danish [p42] sovereignty over the whole of Greenland). In these the occupation of the territories in Eastern Greenland situated between
circumstances, the Danish Government preferred to seek a solution for latitude 71° 30' and 75º 40' N." The Royal Resolution in question was
the existing differences in conciliation or in judicial settlement by the worded as follows:
Permanent Court of International Justice. The Norwegian Government
consented to submit the question to the Court by a Special Agreement; "1. The occupation of the country in Eastern Greenland between
it suggested, however, on July 7th, that the Court should be asked "to Carlsberg Fjord on the south and Bessel Fjord on the north, carried out
adjudicate on the basis of the situation, in fact and in law, as existing on June 27th, 1931, is officially confirmed, so far as concerns the
on July 1st, 1931", and that in case the Court should find that territory extending from latitude 71º 30' to latitude 75º 40' N., and the
"Denmark had not acquired sovereignty over Greenland or over part said territory is placed under Norwegian sovereignty.
thereof", the Danish Government would not oppose "the acquisition by 2. Messrs. Hallvard Devoid and Herman Andresen are invested with
Norway of sovereignty over the regions in question". police powers in the aforesaid territory, viz., M. Devoid in respect of the
district south of Clavering Fjord and M. Andresen in respect of the
[78] The Danish Government replied to this suggestion by a note of district to the north of the said fjord [FN1]."
July 10th, which contains the following passage:
----------------------------------------------------------------------------------------------
"The Danish Government does not intend, in the course of the -----------------------
examination of the case, to take any surprise action, or any step [FN1] Translation by the Registry from the French translation filed by
calculated to modify the existing situation at law, provided always that the Norwegian Government
Norway refrains from any step which would necessitate action on the ----------------------------------------------------------------------------------------------
part of Denmark. The Danish Government naturally presumes that the -----------------------
Norwegian Government, for its part, likewise intends to refrain from
any such action. The Danish Government is, however, of opinion that [83] The territory covered by this Resolution was denominated by
the judgment should be given on the basis of the general situation, as Norway "Eirik Raudes Land".
it has evolved during a long period of time, and is unable to believe
that action taken by either side, in the present preparatory stage of the [84] The contents of the Resolution were notified to the Powers whom
case, or during its examination, could in any way influence the Norway regarded as being interested. [p44]
judgment. It regards the Norwegian Government's declaration, that the
situation existing on July 1st should form the basis of the decision, as [85] On the following day - July 11th, 1931 - the Danish Government
evidence that the said Government concurs that no action taken during informed the Norwegian Government that it had "submitted the
the examination of the case could possess decisive importance. For question" on the same day "to the Permanent Court of International
the rest, the Danish Government holds that it must be left to the Court Justice". The Danish Application instituting proceedings was filed with
to decide what considerations of law or of fact must be taken into the Registry, as already stated, on July 12th, 1931.
account for a decision of the case [FN1]."
***
----------------------------------------------------------------------------------------------
----------------------- [86] The Danish submission in the written pleading, that the Norwegian
[FN1] Translation by the Registry from the French translation filed by occupation of July 10th, 1931, is invalid, is founded upon the
the Danish Government contention that the area occupied was at the time of the occupation
---------------------------------------------------------------------------------------------- subject to Danish sovereignty; that the area is part of Greenland, and
----------------------- at the time of the occupation Danish sovereignty existed over all
Greenland; consequently it could not be occupied by another Power.
[79] The Danish Government further proposed in the same note that
the Special Agreement should be drawn up "by direct negotiations [87] In support of this contention, the Danish Government advances
between representatives appointed for that purpose". two propositions. The first is that the sovereignty which Denmark now
enjoys over Greenland has existed for a long time, has been
[80] In the meanwhile, on June 28th, 1931, certain Norwegian hunters continuously and peacefully exercised and, until the present dispute,
had hoisted the flag of Norway in Mackenzie Bay in Eastern has not been contested by any Power. This proposition Denmark sets
Greenland, and announced that they had occupied the territory lying out to establish as a fact. The second proposition is that Norway has
between Carlsberg Fjord, to the South, and Bessel Fjord, to the North, by treaty or otherwise herself recognized Danish sovereignty over
in the name of the King of Norway. In reply to a Danish enquiry, Greenland as a whole and therefore cannot now dispute it.
occasioned by this [p43] news, the Norwegian Minister for Foreign
Affairs stated, on July 1st, that more detailed information would be [88] The Norwegian submissions are that Denmark possessed no
obtained from the persons who had carried out the occupation; that the sovereignty over the area which Norway occupied on July 10th, 1931,
Government would then decide on its future attitude; but that the and that at the time of the occupation the area was terra nullius. Her
occupation in question was "an entirely private act, which will not contention is that the area lay outside the limits of the Danish colonies
influence our policy". In its note of July 3rd, referred to above, the in Greenland and that Danish sovereignty extended no further than the
Danish Government observed that it had taken due note of this part of limits of these colonies.
the Norwegian Minister's statement.
[89] Other contentions were also developed in the course of the
[81] The Danish note of July 10th, already mentioned, had been proceedings.
preceded on July 5th and 6th by an exchange of views between the
Danish Minister at Oslo and the Norwegian Minister for Foreign Affairs [90] On the Danish side it was maintained that the promise which in
in reference to a Danish suggestion that, during the negotiations for the 1919 the Norwegian Minister for Foreign Affairs, speaking on behalf of
proposed Special Agreement, Denmark would not take any surprise his Government, gave to the diplomatic representative of the Danish
action capable of modifying the existing situation at law, or resort to Government at Christiania debarred Norway from proceeding to any
any tactical measures. It is argued, on behalf of Denmark, that this occupation of territory in Greenland, even if she had not by other acts
offer was manifestly made subject to reciprocity, and that an recognized an existing Danish sovereignty there.
agreement was reached in that sense. On behalf of Norway, the
188
[91] In this connection Denmark has adduced certain other
undertakings by Norway, e.g. the international undertakings entered
into by that country for the pacific settlement of her disputes with other
countries in general, and with Denmark in particular. [p45] On the
Norwegian side it was maintained that the attitude which Denmark
adopted between 1915 and 1921, when she addressed herself to
various Powers in order to obtain a recognition of her position in
Greenland, was inconsistent with a claim to be already in possession
of the sovereignty-over all Greenland, and that in the circumstances
she is now estopped from alleging a long established sovereignty over
the whole country.
[92] The two principal propositions advanced by the Danish
Government will each be considered in turn.
I voluntary abandonment are the grounds on which this view is put
[93] The first Danish argument is that the Norwegian occupation of part
of the East coast of Greenland is invalid because Denmark has
claimed and exercised sovereign rights over Greenland as a whole for
a long time and has obtained thereby a valid title to sovereignty. The
date at which such Danish sovereignty must have existed in order to
render the Norwegian occupation invalid is the date at which the
occupation took place, viz., July 10th, 1931.
[94] The Danish claim is not founded upon any particular act of
occupation but alleges - to use the phrase employed in the Palmas
Island decision of the Permanent Court of Arbitration, April 4th, 1928 -
a title "founded on the peaceful and continuous display of State
authority over the island". It is based upon the view that Denmark now
enjoys all the rights which the King of Denmark and Norway enjoyed
over Greenland up till 1814. Both the existence and the extent of these
rights must therefore be considered, as well as the Danish claim to
sovereignty since that date.
[95] It must be borne in mind, however, that as the critical date is July
10th, 1931, it is not necessary that sovereignty over Greenland should
have existed throughout the period during which the Danish
Government maintains that it was in being. Even if the material
submitted to the Court might be thought insufficient to establish the
existence of that sovereignty during the earlier periods, this would not
exclude a finding that it is sufficient to establish a valid title in the
period immediately preceding the occupation.
[96] Before proceeding to consider in detail the evidence submitted to
the Court, it may be well to state that a claim to sovereignty based not
upon some particular act or title such as a treaty of cession but merely
upon continued display of authority, involves two elements each of
which must be shown [p46] to exist: the intention and will to act as
sovereign, and some actual exercise or display of such authority.
[97] Another circumstance which must be taken into account by any
tribunal which has to adjudicate upon a claim to sovereignty over a
particular territory, is the extent to which the sovereignty is also
claimed by some other Power. In most of the cases involving claims to
territorial sovereignty which have come before an international tribunal,
there have been two competing claims to the sovereignty, and the
tribunal has had to decide which of the two is the stronger. One of the
peculiar features of the present case is that up to 1931 there was no
claim by any Power other than Denmark to the sovereignty over
Greenland. Indeed, up till 1921, no Power disputed the Danish claim to
sovereignty.
[98] It is impossible to read the records of the decisions in cases as to
territorial sovereignty without observing that in many cases the tribunal
has been satisfied with very little in the way of the actual exercise of
sovereign rights, provided that the other State could not make out a
superior claim. This is particularly true in the case of claims to
sovereignty over areas in thinly populated or unsettled countries.
[99] In the period when the early Nordic colonies founded by Eric the
Red in the Xth century in Greenland were in existence, the modern
notions as to territorial sovereignty had not come into being. It is
unlikely that either the chiefs or the settlers in these colonies drew any
sharp distinction between territory which was and territory which was
189
not subject to them. On the other hand, the undertaking (1261)
recorded by Sturla Thordarson that fines should be paid to the King of
Norway by the men of Greenland in respect of murders whether the
dead man was a Norwegian or a Greenlander and whether killed in the
settlement or even as far to the North as under the Pole Star, shows
that the King of Norway's jurisdiction was not restricted to the confines
of the two settlements of Eystribygd and Vestribygd. So far as it is
possible to apply modern terminology to the rights and pretensions of
the kings of Norway in Greenland in the XIIIth and XIVth centuries, the
Court holds that at that date these rights amounted to sovereignty and
that they were not limited to the two settlements.
[100] It has been argued on behalf of Norway that after the
disappearance of the two Nordic settlements, Norwegian sovereignty
was lost and Greenland became a terra nullius. [p47] Conquest and
forward.
[101] The word "conquest" is not an appropriate phrase, even if it is
assumed that it was fighting with the Eskimos which led to the downfall
of the settlements. Conquest only operates as a cause of loss of
sovereignty when there is war between two States and by reason of
the defeat of one of them sovereignty over territory passes from the
loser to the victorious State. The principle does not apply in a case
where a settlement has been established in a distant country and its
inhabitants are massacred by the aboriginal population. Nor is the fact
of "conquest" established. It is known now that the settlements must
have disappeared at an early date, but at the time there seems to have
been a belief that despite the loss of contact and the loss of knowledge
of the whereabouts of the settlements one or both of them would again
be discovered and found to contain the descendants of the early
settlers.
[102] As regards voluntary abandonment, there is nothing to show any
definite renunciation on the part of the kings of Norway or Denmark.
[103] During the first two centuries or so after the settlements perished,
there seems to have been no intercourse with Greenland, and
knowledge of it diminished; but the tradition of the King's rights lived
on, and in the early part of the XVIIth century a revival of interest in
Greenland on the part both of the King and of his people took place.
[104] That period was an era of adventure and exploration. The
example set by the navigators of foreign countries was inspiring, and a
desire arose in Norway and Denmark to recover the territory which had
been subject to the sovereignty of the King's ancestors in the past. The
expeditions sent out in 1605 and 1606 under Lindenow to "Our
Country of Greenland", the efforts to assure respect on the part of
foreign Powers for the King's rights there and the claim to exclude
foreigners from the Greenland trade all show that the King considered
that in his dealings with Greenland he was dealing with a country with
respect to which he had a special position superior to that of any other
Power. This special position can only have been derived from the
sovereign rights which accrued to the King of Norway from the
submission made to him by the early Nordic settlers and which
descended to the Danish-Norwegian kings. It must have covered the
territory which is known as Greenland today, because the country was
inhabited. The expedition in 1605 brought back some of the
inhabitants, whereas Spitzbergen was admittedly uninhabited. Lastly,
as there were at this date no colonies or [p48] settlements in
Greenland, the King's claims cannot have been limited to any
particular places in the country.
[105] That the King's claims amounted merely to pretensions is clear,
for he had no permanent contact with the country, he was exercising
no authority there. The claims, however, were not disputed. No other
Power was putting forward any claim to territorial sovereignty in
Greenland, and in the absence of any competing claim the King's
pretensions to be the sovereign of Greenland subsisted.
[106] After the founding of Hans Egede's colonies in 1721, there is in
part at least of Greenland a manifestation and exercise of sovereign
rights. Consequently, both the elements necessary to establish a valid
title to sovereignty - the intention and the exercise - were present, but
the question arises as to how far the operation of these elements
extended.
[107] The King's pretensions to sovereignty which existed at the time
of the foundation of the colonies are sufficient to demonstrate the
intention, and, as said above, these were not limited to any particular
part of the country.
[108] Was the exercise of sovereign rights such as to confer a valid
title to sovereignty over the whole country? The founding of the
colonies was accompanied by the grant of a monopoly of the trade,
and before long legislation was found to be necessary to protect and
enforce the monopoly. In the earlier Ordinances of 1740-1751, issued
at the time when Jacob Severin was the grantee of the monopoly, the
prohibition of trading was restricted to the colonies, but those
Ordinances also contained a prohibition of injurious treatment of the
Greenlanders, and this was not limited to the colonies but operated in
Greenland as a whole. Furthermore, the prohibition of trading was to
apply not only in the existing colonies but in any future colonies which
might be established. Legislation is one of the most obvious forms of
the exercise of sovereign power, and it is clear that the operation of
these enactments was not restricted to the limits of the colonies. It
therefore follows that the sovereign right in virtue of which the
enactments were issued cannot have been restricted to the limits of
the colonies.
[109] The Ordinance of 1758 and that of 1776 (which is still in force)
also operated beyond the limits of the colonies: under these
Ordinances, the prohibition on trading is no longer restricted to the
colonies but is to apply "in all places whatever". This extension in the
area of the monopoly is reflected in the terms of the commercial
treaties of the period. The [p49] treaties before 1758 (those of 1742
between Denmark and France, of 1748 between Denmark and the
Two Sicilies and of 1756 between Denmark and the Republic of
Genoa) make an exception for the trade "with His Majesty's colonies in
Greenland". The notes exchanged with Russia in 1782 relate to
"Greenland" in general.
[110] Norway has argued that in the legislative and administrative acts
of the XYIIIth century on which Denmark relies as proof of the exercise
of her sovereignty, the word "Greenland" is not used in the
geographical sense, but means only the colonies or the colonized area
on the West coast.
[111] This is a point as to which the burden of proof lies on Norway.
The geographical meaning of the word "Greenland", i.e. the name
which is habitually used in the maps to denominate the whole island,
must be regarded as the ordinary meaning of the word. If it is alleged
by one of the Parties that some unusual or exceptional meaning is to
be attributed to it, it lies on that Party to establish its contention. In the
opinion of the Court, Norway has not succeeded in establishing her
contention. It is not sufficient for her to show that in many of these
legislative and administrative acts action was only to be taken in the
colonies. Most of them dealt with things which only happened in the
colonies and not in the rest of the country. The fact that most of these
acts were concerned with what happened in the colonies and that the
colonies were all situated on the West coast is not by itself sufficient
ground for holding that the authority in virtue of which the act was
taken - whether legislative or administrative - was also restricted to the
colonized area. Unless it was so restricted, it affords no ground for
interpreting the word "Greenland" in this restricted sense.
[112] The terms of some of these documents give no support to the
Norwegian view. As shown above, the Ordinances of 1740, 1751, 1758
and 1776 purport to operate in Greenland generally. If the terms of
these Ordinances are examined closely, they do not bear out the view
that "Greenland" means only the colonized area. In the Ordinance of
1758, for instance, the word "Greenland" is used three times. First, the
Ordinance recites the concession held by the Company "de naviguer
et commercer seule dans les colonies par Nous etablies dans Notre
pays de lllGroe'nland...." ; then it recites that the King has learned with
great displeasure that certain foreigners repair annually to Greenland
".... оù, par un commerce illicite auquel Us se livrent tant dans les ports
qu'en dehors, Us .... exercent toutes sortes de violences contre [p50]
les habitants....", and then the King, "comme souverain seigneur
héréditaire du lllGroenland et des îles en dépendant....", proceeds to
190
re-enact and to extend the prohibitions contained in the previous
Ordinances [FN1].
----------------------------------------------------------------------------------------------
-----------------------
[FN1] The texts in question have been officially submitted to the Court
in a French translation only
----------------------------------------------------------------------------------------------
-----------------------
[113] There is nothing to show that the word "Greenland" is not used
all through the Ordinance in the same sense. The Ordinance is issued
by the King as Hereditary Sovereign of Greenland. It has been shown
above that the rights and pretensions which the King derived from his
ancestors as kings of Norway were not limited to any particular part of
Greenland, because no colonies existed at the time, but extended to
the whole country. Again, the colonies are described as colonies
established in Greenland, so that the colonies and Greenland cannot
have coincided. Lastly, the trading prohibition which the Ordinance
enacts is no longer, as in 1740 and 1751, limited to the colonies, but
extends to every place on land or sea within four miles of the coast,
and is now grouped with the prohibition against violence to the
Greenlanders which in the previous Ordinances operated throughout
Greenland and was not limited to the colonies. An examination of this
Ordinance alone is enough to disprove the contention that the word
"Greenland" in these legislative and administrative acts of the XVIIIth
century means only the colonized area.
[114] It has also been argued on behalf of Norway that "Greenland" as
used in documents of this period cannot have been intended to include
the East coast because at the time the East coast was unknown. An
examination however of the maps of the XVIIth and XVIIIth centuries
shows that the general features and configuration of the East coast of
Greenland were known to the cartographers. Even if no evidence of
any landings on the coast have been produced, the ships which hunted
whales in the waters to the East of Greenland sighted the land at
intervals and gave names to the prominent features which were
observed. Indeed, "Greenland" as a geographical term was even more
used in connection with the East coast than with the West coast, as the
term "Straat Davis" was often used to describe the West coast, or
colonized area, of Greenland.
[115] The conclusion to which the Court is led is that, bearing in mind
the absence of any claim to sovereignty by another Power, and the
Arctic and inaccessible character of the uncolonized [p51] parts of the
country, the King of Denmark and Norway displayed during the period
from the founding of the colonies by Hans Egede in 1721 up to 1814
his authority to an extent sufficient to give his country a valid claim to
sovereignty, and that his rights over Greenland were not limited to the
colonized area.
[116] Up to the date of the Treaty of Kiel of 1814, the rights which the
King possessed over Greenland were enjoyed by him as King of
Norway. It was as a Norwegian possession that Greenland was dealt
with in Article 4 of that Treaty, whereby the King ceded to the King of
Sweden the Kingdom of Norway, "la Groënlande .... поп comprise....".
The result of the Treaty was that what had been a Norwegian
possession remained with the King of Denmark and became for the
future a Danish possession. Except in this respect, the Treaty of Kiel
did not affect or extend the King's rights over Greenland.
[117] In order to establish the Danish contention that Denmark has
exercised in fact sovereignty over all Greenland for a long time,
Counsel for Denmark have laid stress on the long series of
conventions - mostly commercial in character - which have been
concluded by Denmark and in which, with the concurrence of the other
contracting Party, a stipulation has been inserted to the effect that the
convention shall not apply to Greenland. In the case of multilateral
treaties, the stipulation usually takes the form of a Danish reserve at
the time of signature. In date, these conventions cover the period from
1782 onwards. As pointed out in the earlier part of the judgment, the
exclusion of Greenland is, with one exception, made without
qualification. In that case alone it is "the Danish colonies in Greenland"
to which the treaty is not to apply. In many of these cases, the wording
is quite specific; for instance, Article 6 of the Treaty of 1826 with the
United States of America : "The present Convention shall not apply to
the Northern possessions of His Majesty the King of Denmark, that is
to say Iceland, the Færö Islands and Greenland...."
[118] The importance of these treaties is that they show a willingness
on the part of the States with which Denmark has contracted to admit
her right to exclude Greenland. To some of these treaties, Norway has
herself been a Party, and these must be dealt with later because they
are relied on by Denmark as constituting binding admissions by
Norway that Greenland is subject to Danish sovereignty. For the
purpose of the present argument, the importance of these conventions,
with whatever States they have been concluded, is due to the [p52]
support which they lend to the Danish argument that Denmark
possesses sovereignty over Greenland as a whole.
[119] It has been contended on behalf of Norway that no importance
should be attached to these conventions because, when they were
concluded, the Parties had no such question in mind as whether
Danish sovereignty was limited or not to the colonies, and whether in
consequence "Greenland" meant more than the colonized area. Both
as to these conventions, and also as to the Treaty of Kiel, Counsel for
Norway adhere to the contention that the word "Greenland" is used in
the sense of the area comprised within the colonies.
[120] It is true that when they conclude a commercial convention,
States are not dealing with such questions as the extent of their
respective territories, but the usual object of a commercial convention
is to give to each of the Parties facilities for trade and navigation in the
territories of the other; consequently, the area within which such
facilities are, or are not, accorded is a point of some importance. It is a
question on which disputes may arise if there is any uncertainty. If the
Parties were agreed that the treaty was not to. apply in a particular
area and the area is only designated by name, the natural conclusion
is that no difference existed between them as to the extent of the area
which that name covered. The Court is therefore once more led back
to the question as to what the contracting Parties meant when they
excluded "Greenland". The natural meaning of the term is its
geographical meaning as shown in the maps. If it is argued on behalf
of Norway that these treaties use the term "Greenland" in some special
sense, it is for her to establish it, and it is not decisive in this respect
that the northern part of Greenland was still unknown. She has not
succeeded in showing that in these treaties the word "Greenland"
means only the colonized area.
[121] To the extent that these treaties constitute evidence of
recognition of her sovereignty over Greenland in general, Denmark is
entitled to rely upon them.
[122] These treaties may also be regarded as demonstrating
sufficiently Denmark's will and intention to exercise sovereignty over
Greenland. There remains the question whether during this period, i.e.
1814 to 1915, she exercised authority in the uncolonized area
sufficiently to give her a valid claim to sovereignty therein. In their
arguments, Counsel for Denmark have relied chiefly on the concession
granted in 1863 to Tayler of exclusive rights on the East coast for
trading, hunting, [p53] mining, etc. The result of all the documents
connected with the grant of the concession is to show that, on the one
side, it was granted upon the footing that the King of Denmark was in a
position to grant a valid monopoly on the East coast and that his
sovereign rights entitled him to do so, and, on the other, that the
concessionnaires in England regarded the grant of a monopoly as
essential to the success of their projects and had no doubt as to the
validity of the rights conferred.
[123] Among the documents connected with the grant of this
concession which have been submitted to the Court is the report
submitted to the King for his approval by the Minister of the Interior,
and it is interesting to note that it states as a matter free from all doubt
that Danish sovereignty exists over the East coast of Greenland:
"En tout cas, les résultats auxquels cette tentative pourrait conduire
présenteraient un intérêt scientifique assez important, et, pourvu que
Ton prenne les garanties nécessaires tant en ce qui concerne la
souveraineté de Votre Majesté sur cette partie du Groënland - que
personne ne conteste - et pour la protection des Groënlandais qui у
191
habitent et qui, par suite, doivent être considérés comme les sujets de
Votre Majesté, l'octroi d'une autorisation de ce genre à ceux qui
possèdent les qualités et l'énergie nécessaires pour tenter la
réalisation d'une pareille entreprise pourra certainement être accordé
sans aucune hesitation [FN1]."
----------------------------------------------------------------------------------------------
-----------------------
[FN1] French translation supplied by the Danish Government.
----------------------------------------------------------------------------------------------
-----------------------
[124] Counsel for Norway have pointed to Article 2 in the concession,
which provides that the establishments created by the
concessionnaires were to be placed under the sovereignty of the
Crown of Denmark and to be subject to Danish law - and have argued
that the grant of a concession in these terms is itself evidence that the
Danish Government realized that Danish sovereignty did not extend to
this part of Greenland. The explanation however is simple. Tayler was
an Englishman. The Danish Government were aware that people in
Denmark, such as M. Wormskjold, had been afraid that foreign Powers
would attempt to make settlements on the East coast, and Article 2
was intended to make sure that the settlements established by Tayler
should not be made the basis of a claim of occupation and sovereignty
by the King of England.
[125] The concessions granted for the erection of telegraph lines and
the legislation fixing the limits of territorial waters in [p54] 1905 are also
manifestations of the exercise of sovereign authority.
[126] In view of the above facts, when taken in conjunction with the
legislation she had enacted applicable to Greenland generally, the
numerous treaties in which Denmark, with the concurrence of the other
contracting Party, provided for the non-application of the treaty to
Greenland in general, and the absence of all claim to sovereignty over
Greenland by any other Power, Denmark must be regarded as having
displayed during this period of 1814 to 1915 her authority over the
uncolonized part of the country to a degree sufficient to confer a valid
title to the sovereignty.
[127] The applications which the Danish Government addressed to
foreign governments between 1915 and 1921, seeking the recognition
of Denmark's position in Greenland, have played so large a part in the
arguments addressed to the Court that it is necessary to deal with
them in some detail. The point at issue between the Parties is whether
Denmark was seeking a recognition of an existing sovereignty
extending over all Greenland, as has been urged by her Counsel, or,
as maintained by Counsel on behalf of Norway, whether she was trying
to persuade the Powers to agree to an extension of her sovereignty to
territory which did not as yet belong to her:
[128] The terms used in the correspondence between the Danish
Government and the foreign governments concerned relating to these
applications are not always clear; sometimes a particular phrase or
expression seems to afford a strong argument in favour of the view
held by one Party in the dispute and another phrase or expression,
emanating from the same side and perhaps even in the same note,
may be consistent only with the opposite view.
[129] The Court has come to the conclusion that in judging the effect of
these notes too much importance must not be attached to particular
expressions here and there. The correspondence must be judged as a
whole. One reason for this is that in some cases the notes were written
by individual Danish diplomatic representatives, and, though no doubt
they were based on the instructions these Ministers received, some
variation must be expected and allowed for in the terms they used.
[130] There can be no doubt that an expression such as "extension of
sovereignty", which figures in two or three of the most important
documents on the Danish side, if taken by [p55] itself, is very difficult to
reconcile with the view now upheld by the Danish Government, that
what that Government was seeking in these applications was
recognition of existing sovereignty and not consent to the acquisition of
new sovereignty. Nevertheless, the conclusion which the Court has
reached is that the view upheld by the Danish Government in the
present case is right and that the object which that Government was
endeavouring to secure was an assurance from each of the foreign
governments concerned that it accepted the Danish point of view that
all Greenland was already subject to Danish sovereignty and was
therefore content to see an extension of Denmark's activities to the
uncolonized parts of Greenland.
[131] Before analysing the important documents in this
correspondence, it is well to repeat what has been said above as to the
existence in Denmark of opinions held by well-qualified persons, such
as M. Wormskjöld, that owing to the absence of any effective
occupation on the eastern coast of Greenland, some foreign Power
might attempt to establish a settlement and might thereby acquire the
sovereignty over the territory for itself.
[132] While this was the opinion which had been expressed by private
persons, the Government had, whenever it was necessary for it to
express an opinion, enunciated the view that there was no doubt as to
the existence of the Danish sovereignty over the East coast of
Greenland.
[133] A sentence has already been quoted from the report to the King
in 1863, asking for approval of the Tayler concession. Similarly, in the
report submitted to the King in connection with the founding of the
colony of Angmagssalik in 1894, the Minister of the Interior says:
"Bien que, jusqu'à présent, il n'ait été établi des colonies danoises que
sur la côte occidentale du Groënland, la souveraineté de l'Etat danois
n'est pas restreinte à cette partie du pays, et le Gouvernement danois
a, lorsque l'occasion s'en est présentée, exercé et affirmé sa
souveraineté sur la côte orientale du pays [FN1]."
----------------------------------------------------------------------------------------------
-----------------------
[FN1] French translation supplied by the Danish Government.
----------------------------------------------------------------------------------------------
-----------------------
[134] Given this divergence of view between the Government opinion
on the one side, and the opinion of private persons on the other, it is
quite natural that at a time such as that of the Great War and the
Peace Conference which followed it, when many territorial changes
were taking place, the Danish Government should think the moment
favourable for endeavouring to [p56] secure general recognition of its
sovereignty over all Greenland. If it took action for this purpose,
however, it is most unlikely that on the eve of doing so it would
completely change the point of view which it had previously enunciated
and proceed upon the footing that it had no right to sovereignty over
the uncolonized area and that it had now to acquire sovereignty there
for the first time. The Danish Government stood to gain nothing by
making any such change of opinion and would seriously prejudice its
position if it failed to secure the acknowledgements it desired from
foreign States.
[135] The first country to be approached was the United States of
America, and the moment chosen was that of the negotiation of the
treaty for the cession of the Danish Antilles. It seems probable that the
negotiations about Greenland were in part conducted verbally, but the
memorandum addressed to the United States Government on
December 27th, 1915, by the Danish Minister at Washington is not
helpful to the Danish case. It is by no means clear, and it uses the
phrase "extension of the care and suzerainty of Denmark to the whole
of Greenland [FN1]". On the other hand, if what the Parties had in mind
was consent by the United States Government to Denmark's acquiring
sovereignty over parts of Greenland which had hitherto been terrœ
nullius, it seems incredible that any competent draughtsman would use
so complicated a phrase as that proposed by the United States
Government for insertion in the Antilles Treaty: ".... The United States
will not object to the claim of Denmark to take such measures of
control and protection in Greenland as she may deem proper and
necessary to safeguard and advance these interests" (i.e. the political
and economic interests of Denmark in Greenland).
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192
[FN1] English text supplied by the Danish Government.
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-----------------------
[136] The phrase used in the American declaration as ultimately signed
was that the United States Government ".... will not object to the
Danish Government extending their political and economic interests to
the whole of Greenland", a phrase which is not inconsistent with either
thesis. On the other hand, when submitting the Antilles Treaty,
together with the above declaration as to Greenland, for the royal
ratification, the Danish Minister for Foreign Affairs treats the
declaration as involving American consent to an extension of
sovereignty. [p57]
[137] The next government to be approached was the Norwegian. That
Government had already manifested a desire to acquire Spitzbergen,
and in April 1919 the Danish Government had given the Norwegian
Government to understand that, as there were no Danish interests in
Spitzbergen which ran counter to those of Norway, Denmark would not
oppose the Norwegian aspirations.
[138] Early in July 1919, the Danish Minister for Foreign Affairs learned
from the Danish Minister in Paris that the Spitzbergen question was to
come before a Committee of the Peace Conference.
[139] Instructions were thereupon issued, on July 12th, 1919, to the
Danish Minister at Christiania to make to the Norwegian Minister for
Foreign Affairs a communication to the effect that a Committee had
just been constituted at the Peace Conference "for the purpose of
considering the claims that may be put forward by different countries to
Spitzbergen", and that the Danish Government would be prepared to
renew before this Committee the unofficial assurance already given to
the Norwegian Government, according to which Denmark, having no
special interests at stake in Spitzbergen, would raise no objection to
Norway's claims upon that archipelago. In making this statement to the
Norwegian Minister for Foreign Affairs, the Danish Minister was to
point out "that the Danish Government had been anxious for some
years past to obtain the recognition by all the interested Powers of
Denmark's sovereignty over the whole of Greenland and that it
intended to place that question before the above-mentioned
Committee"; that the Government of the U.S.A. had made a
declaration that that Government would not oppose the extension of
Danish political and economic interests over all Greenland; and further
that the Danish Government counted on the Norwegian Government
not making any difficulties with regard to such an extension.
[140] When, on July 14th, 1919, the Danish Minister saw the
Norwegian Minister for Foreign Affairs, M. Ihlen, the latter merely
replied "that the question would be considered". The Norwegian
Minister for Foreign Affairs recorded his conversation with the Danish
representative in a minute, the accuracy of which has not been
disputed by the Danish Government. On July 22nd following, the
Minister for Foreign Affairs, after informing his colleagues of the
Norwegian Cabinet, made a statement to the Danish Minister to the
effect "that the Norwegian Government would not make any difficulties
[p58] in the settlement of this question" (i.e. the question raised on July
14th by the Danish Government). These are the words recorded in the
minute by M. Ihlen himself. According to the report made by the Danish
Minister to his own Government, M. Ihlen's words were that "the plans
of the Royal [Danish] Government respecting Danish sovereignty over
the whole of Greenland .... would meet with no difficulties on the part of
Norway".
[141] The Danish Government were not able to bring the question
before the Peace Conference in 1919. The matter was therefore taken
up with the governments individually, instructions being sent to the
Danish Ministers in London, Paris, Rome and Tokyo on March 2nd,
1920, to address communications to the Governments to which they
were accredited. These instructions described at length the work which
Denmark had accomplished in Greenland and mentioned the colonies
she had founded. Then follows an admission that no formal "prise de
possession" had been taken of all Greenland and a statement is made
that it is desirable that Denmark should extend its "sollicitude par sa
souveraineté sur le Groënland tout entier". The text of the American
declaration is set out and the instructions go on to say that, having got
the American declaration, Denmark proposes also to obtain recognition
by other Powers of Danish sovereignty over all Greenland, and the
Minister concerned is therefore to ask for official recognition of Danish
sovereignty over all Greenland. It is suggested that the form in which
such recognition might be given would be a declaration corresponding
to that made by the United States Government. It will be seen that, in
these instructions, the Danish Minister for Foreign Affairs treats
recognition of Danish sovereignty over all Greenland and a statement
that there is no objection to the Danish Government extending its
political and economic interests to the whole of Greenland as meaning
the same thing.
[142] Each of the Ministers concerned thereupon addressed himself to
the Government to which he was accredited, following in his own way
the tenour of the instructions he had received.
[143] In reply, the French Government sent a note to the effect that it
would make no objection to the Danish Government extending its
sovereignty to all Greenland, as contemplated in the American
declaration.
[144] The Italian Government says that they will have no difficulty in
recognizing Danish sovereignty over Greenland. [p59]
[145] The Japanese Government says that they have no objection to
the Danish Government extending their political and economic
interests to the whole of Greenland.
[146] The British Government (after some preliminary correspondence
with a view to securing a right of preemption over the country),
recognizes Danish sovereignty over Greenland.
[147] These notes all appear to have been written upon the
assumption that they were complying with what the Danish
Government had asked for, despite the diversity of their contents.
[148] The British note, it is true, was written in slightly more favourable
circumstances, because the Foreign Office had had the advantage of a
further communication from the Danish Government in which the
Danish view had been explained more clearly. The British Government
had at first tried to secure a right of preemption over Greenland as a
condition of its recognition of Danish sovereignty. This the Danish
Government refused in a note on July 20th, 1920, in which it makes its
point of view clear. The note says that the Danish occupation of
Greenland dated back to 1721, since when Greenland had been
treated uninterruptedly as a Danish colony, and that the Danish
"suzerainty" had never been questioned by any other foreign Power.
The note went on to say that the request which had been made by the
Danish Government must therefore be regarded as dictated by a
desire to obtain "formal recognition of an existing status sanctioned by
prescriptive right".
[149] Thus it will be seen that as soon as one of the Powers to whom
application had been made indicates a desire to obtain some return for
the grant of what had been asked, the Danish Government replies with
a note setting out the legal basis of its claim to sovereignty in
Greenland on lines similar to those which it has followed in the present
case. With the legal position thus made clear, the British Government
gave the desired recognition to Danish sovereignty and only asked
that, in view of the proximity of Greenland to Canada, the British
Government should be consulted if the Danish Government ever
contemplated the alienation of the territory.
[150] Early in 1921 the Danish Government approached the Swedish
and Norwegian Governments with similar requests for recognition of
Danish sovereignty.
[151] The note addressed to the Swedish Government on January
13th, 1921, follows the lines of those addressed to the four [p60]
Powers in 1920, but adds that those Powers have recognized Danish
sovereignty over all Greenland.
[152] The memorandum addressed to the Norwegian Government by
the Danish Legation at Christiania on January 18th, 1921, was
conceived on somewhat different lines. It repeats the Danish desire to
193
obtain recognition by the Powers concerned of Danish sovereignty
over the whole of that country, and the fact that it had not been
possible to bring the question before the Peace Conference in Paris.
The communication then refers to the declaration made by the United
States Government, the successful applications to the four Powers and
the Danish decision to address corresponding requests to the
Norwegian and Swedish Governments. Mention is made of
Spitzbergen and of how Denmark had said, in 1919, that she would not
oppose the Norwegian claims there and that she reckoned on an
extension of Danish sovereignty in Greenland not meeting with
difficulties on the part of Norway. Reference is then made to the Ihlen
declaration, and it is said that as this had only been verbal Denmark
would now like to have a written confirmation of it. The memorandum
concludes by asking for a written statement that the Norwegian
Government recognized Danish sovereignty over all Greenland.
[153] This memorandum has been analysed in some detail because it
is the document chiefly relied on by the Norwegian Counsel in
maintaining that what Denmark sought to obtain was an extension of
her sovereignty to the non-colonized part of Greenland in the sense
that it implied that no such sovereignty existed at the moment. It is true
that, as stated in the memorandum itself, the word "extension" is used,
but it is used in connection with the attitude which Denmark had
adopted in 1919. If however the communication made in 1919 to the
Norwegian Government is examined, it will be found to be more
consistent with the view that the Danish desire was to obtain the
recognition of an existing sovereignty. As said above, too much
importance must not be attached to some of these individual phrases
and expressions when taken apart from their context. Words such as
"reconnaissance expresse de la souveraineté du Groënland dans son
entier" are more applicable to an existing sovereignty than to describe
an agreement to an extension. Nor must it be forgotten that the date of
this communication was six months later than the note of July 20th,
1920, to the Foreign Office in London, which sets out the Danish
position with reasonable precision. [p61]
[154] Nevertheless, it would seem that the Norwegian Government
must have understood the Danish communication as implying an
extension of sovereignty in the proper sense of the term, and it was
just this "extension", i.e. agreement to something which did not yet
exist, to which Norway was unwilling to agree except on terms which
would safeguard the opportunities for hunting and fishing which
Norwegians then enjoyed in Eastern Greenland. The Norwegian
Government therefore felt unable to give the recognition which was
asked for.
[155] After a certain time, during which the communication of January
18th remained unanswered officially, but during which some unofficial
communications passed, a note from the Norwegian Government,
dated November 2nd, 1921, dealing with the Decrees of May 10th and
June 16th of that year, stated that the Norwegian Government had not
recognized, and could not recognize, an extension of Danish
sovereignty which would involve a corresponding extension of the
monopoly and result in the suppression of the hunting and fishing
activities of the Norwegians in the parts of Greenland in question.
[156] Confronted with an attitude which did not satisfy it, the Danish
Government expounded - as it had done to the British Government in
July 1920 - its view of the situation in law, and in its note of December
19th, 1921, affirms that Danish sovereignty has no need of any
renewed recognition by the Norwegian Government and asserts that
this sovereignty has for a long time found expression in a series of
international documents and legislative enactments, of which the
contents have been brought to the knowledge of the countries
concerned and to which no objection has ever been made.
[157] The Danish Government thus enunciates once more the view
expressed in 1863 and in 1894, and in the note to the Foreign Office in
July 1920, that it already possessed sovereignty over all Greenland. If
that was the view which the Danish Government held before, during
and at the close of these applications to the Powers, its action in
approaching them in the way it did must certainly have been intended
to ensure that those Powers should accept the point of view
maintained by the Danish Government, namely, that sovereignty
already existed over all Greenland, and not to persuade them to agree
that a part of Greenland not previously under Danish sovereignty
should now be brought thereunder. Their object was to ensure that
those Powers would not attempt themselves to take possession of any
[p62] non-colonized part of Greenland. The method of achieving this
object was to get the Powers to recognize an existing state of fact.
[158] In these circumstances, there can be no ground for holding that,
by the attitude which the Danish Government adopted, it admitted that
it possessed no sovereignty over the uncolonized part of Greenland,
nor for holding that it is estopped from claiming, as it claims in the
present case, that Denmark possesses an old established sovereignty
over all Greenland.
* possessing sovereignty over all Greenland and displayed and
[159] The period subsequent to the date when the Danish Government
issued the Decree of May 10th, 1921, referred to above, witnessed a
considerable increase in the activity of the Danish Government on the
eastern coast of Greenland.
[160] That Decree was followed by the Decree of June 16th of the
same year concerning navigation in the seas round Greenland and
declaring that the whole of the coasts and islands were closed to
Danish and to foreign ships. Though the stringency of this measure
was relaxed when the Convention of 1924 was concluded, the
exclusion of all shipping remains the rule except in so far as access is
authorized by treaty or decree or special authorization.
[161] In 1925, legislation was enacted regulating the hunting and
fishing, and in the same year Greenland was divided into provinces by
a law which declared that all commercial activity was reserved to the
Danish State.
[162] This legislation with regard to hunting and fishing, and the law
dividing the country into provinces, are noteworthy, as are also the
admission of French and British nationals to most-favoured-nation
treatment in Eastern Greenland, under notes exchanged between
Denmark and the British and French Governments in 1925.
[163] These were all cases in which the Danish Government was
exercising governmental functions in connection with the territory now
under dispute.
[164] The character of these Danish acts is not altered by the protests
or reserves which, from time to time, were made by the Norwegian
Government.
[165] These acts, coupled with the activities of the Danish hunting
expeditions which were supported by the Danish Government, the
increase in the number of scientific expeditions [p63] engaged in
mapping and exploring the country with the authorization and
encouragement of the Government, even though the expeditions may
have been organized by non-official institutions, the occasions on
which the Godthaab, a vessel belonging to the State and placed at one
time under the command of a naval officer, was sent to the East coast
on inspection duty, the issue of permits by the Danish authorities,
under regulations issued in 1930, to persons visiting the eastern coast
of Greenland, show to a sufficient extent - even when separated from
the history of the preceding periods - the two elements necessary to
establish a valid title to sovereignty, namely : the intention and will to
exercise such sovereignty and the manifestation of State activity.
[166] The conclusion of the 1924 Convention with Norway, to which
reference must again be made later, though signed by that State on
the footing that she maintained her point of view as to the territorial
status of Eastern Greenland (terra nullius) and that the conclusion of
the Convention did not prejudice her point of view, does not exclude
the right of Denmark to maintain her point of view that she was entitled
to and was in fact enjoying sovereignty over all Greenland, nor does it
exclude her right to show that the elements which go to establish a
valid claim to sovereignty were both present.
[167] Except for the verbal change that the phrase "territoire de
Groënland" is more often employed than " Groënland", the commercial
arrangements concluded by Denmark during this period continue to
194
provide that, on the Danish side, the agreement is not to apply to
Greenland, showing thereby that the States with which Denmark was
concluding these agreements were not disposed to dispute her claim
to be sovereign over the area which the agreement denominates as
Greenland. As also is the case with regard to the previous periods, it
lies on Norway to show that the word "Greenland" in these agreements
is used in some special sense which does not include the uncolonized
part of the East coast, and in the opinion of the Court Norway has not
shown that this is so.
[168] Even if the period from 1921 to July 10th, 1931, is taken by itself
and without reference to the preceding periods, the conclusion reached
by the Court is that during this time Denmark regarded herself as
exercised her sovereign rights to an extent sufficient to constitute a
valid title to sovereignty. When considered in conjunction with the facts
of the [p64] preceding periods, the case in favour of Denmark is
confirmed and strengthened.
[169] It follows from the above that the Court is satisfied that Denmark
has succeeded in establishing her contention that at the critical date,
namely, July 10th, 1931, she possessed a valid title to the sovereignty
over all Greenland.
[170] This finding constitutes by itself sufficient reason for holding that
the occupation of July 10th, 1931, and any steps taken in this
connection by the Norwegian Government, were illegal and invalid.
II.
[171] The Court will now consider the second Danish proposition that
Norway had given certain undertakings which recognized Danish
sovereignty over all Greenland. These undertakings have been fully
discussed by the two Parties, and in three cases the Court considers
that undertakings were given.
*
[172] 1. In the first place, the Court holds that, at the time of the
termination of the Union between Denmark and Norway (1814 to
1819), Norway undertook not to dispute Danish sovereignty over
Greenland.
[173] In the early part of this judgment, it has been recalled that when
the King of Denmark was obliged to renounce, in favour of the King of
Sweden, his kingdom of Norway, Article 4 of the Treaty of Kiel of
January 14th, 1814, excepted from that renunciation Greenland, the
Faroes and Iceland.
[174] In order to effect the settlement - which was mainly of a financial
character - rendered necessary by the separation of Norway from
Denmark, Norwegian commissioners were appointed at the end of
1814 to confer with Danish commissioners. The solution of the
questions to which the separation of the two countries gave rise was
not easy. When, as early as 1816, Denmark began to fear that the
conferences held at Copenhagen between the Danish and Norwegian
commissioners would prove fruitless, the Danish Cabinet approached
the Allied Powers. This step led to a Conference between these
Powers which held its first meetings in London in July and August
1818. On the basis of a report of this Conference, the Congress of Aix-
la-Chapelle decided, on November 13th, 1818, to make
representations to the King of Sweden and Norway in order to ensure
that the terms of the Treaty of Kiel were [p65] complied with so far as
regards the portion of the debt of the Danish-Norwegian monarchy for
which Norway was to be responsible.
[175] It was then that the King of Sweden and Norway reverted to the
question of the former Norwegian possessions of which Greenland
was one.
[176] The Norwegian commissioner at Copenhagen - M. Hoist - was
instructed on January 7th, 1819, formally to claim the restitution of the
Faroes, Iceland and Greenland "as being possessions which had
formerly belonged to the Kingdom of Norway". The instructions given
to M. Hoist referred to the fact that the "extraordinary Storting of 1814
had, in a most humble address, petitioned His Majesty to take the
necessary steps to secure the restitution to the Kingdom of Norway of
the Faroe Islands, Iceland and Greenland, pos-sessions which for
centuries were an integral part of that kingdom". This claim was
presented to the Conference at Copenhagen on February 5th, 1819,
and met with a point blank refusal on the Danish side. On learning of
this refusal, the Minister for Foreign Affairs of Sweden and Norway, on
February 23rd, 1819, authorized the Norwegian commissioner at
Copenhagen to withdraw the claim. M. Hoist did so in a declaration
which he made on March 27th, 1819, and the original French text of
which should be given here:
"II est notoire que le Prince Chrétien Frédéric [FN1] a provoqué de la
part de la Représentation Nationale de la Norvége assemblée à
Eidsvold, une protestation formelle contre le. Traité de Kiel, qui
assurait au Roi [FN2] la Souveraineté sur la Norvége. Une constitution
des plus libérales étant intervenue, la Représentation Rationale ayant,
par une élection libre et spontanée, offert au Roi la Couronne de
Norvége sous la condition expresse d'accepter la nouvelle constitution;
et le Roi у ayant donné Son assentiment, et étant par là devenu Roi
constitutionnel, au lieu de Souverain absolu, comme II devait l'être
conformément au Traité de Kiel, il en est résulté pour S. M. l'obligation
d'avoir égard aux adresses que Lui présente le Stor-Thing dans les
formes prescrites par la Loi. Or, le Stor-Thing s'étant adressé au Roi
mon Auguste Souverain - l'effet d'engager S. M. à faire les démarches
nécessaires pour que les îles de Faeroe, l'Islande et la Groenlande
fussent restituées par le Dannemarc pour être réunies au Royaume de
Norvége: le Roi n'a pu Se dispenser de satisfaire, sur ce point, aux
vœux exprimés par l'assemblée nationale. En remplissant ce devoir
selon la teneur littérale de l'adresse du Stor-Thing, l'intention n'a
jamais été de lier cette question à celle de la liquidation en général, ni
d'entraver en aucune manière la marche régulière d'une négociation
que S. M. désire sincèrement de voir terminée à la satisfaction
commune des [p66] deux parties intéressées. Lorsqu'il est question de
la séparation politique de deux Etats, dont les intérêts se sont trouvés
amalgamés par une union de plusieurs siècles, il serait impossible
d'éviter des sacrifices de part et d'autre, et le Roi Se borne ,en cette
occasion d'énoncer Sa conviction certaine que, dans le cours de cette
liquidation et lorsqu'il s'agira de balancer les ressources respectives
des deux Etats, on pourra facilement tomber d'accord sur les moyens
de compenser la perte qu'a faite en cette occasion la Norvège de ses
colonies dans la mer du Nord."
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[FN1] The Governor of Norway.
[FN2] The King of Sweden.
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-----------------------
[177] The last sentence of this declaration brings out not only the
financial element in the claim for the restitution of the possessions in
question but also, and above all, the fact that the claim was definitely
withdrawn.
[178] Moreover, in March 1819, the Minister for Foreign Affairs of
Sweden and Norway communicated to the British Minister at
Stockholm a request for the mediation of the Prince Regent of Great
Britain in the matter in regard to which the Cabinets of Stockholm and
Copenhagen were still at variance, and said that the King of Sweden
and Norway abandoned on behalf of Norway all claim to the Faroe
Islands, Iceland and Greenland.
[179] In a note dated May 28th, 1819, the Minister for Foreign Affairs of
Sweden and Norway once more wrote to the British Minister at
Stockholm that the King of Sweden and Norway agreed to "renounce
in favour of the Crown of Denmark .... the claims of this country
[Norway] in respect of Iceland, Greenland and the Faroe Islands".
[180] This renunciation found expression in the conclusions reached by
a conference at Stockholm. With the British Minister in that capital
acting as mediator, the conference prepared for signature by the King
of Denmark and by the King of Sweden and Norway, in his capacity as
King of Norway, the Convention of September 1st, 1819, which finally
settled the difficulties.
195
[181] Article 9 of this Convention [FN1] states that "everything in
connection with the Treaty of Kiel in general and with its [p67] sixth
article [FN1] [the financial article] in particular" is completely settled.
There can be no doubt that the words "everything in connection with
the Treaty of Kiel in general" cover also Article 4 of the Treaty which
mentions Greenland and that they are incompatible with the Norwegian
argument to the effect that the Convention of September 1st, 1819,
only relates to the financial settlement between Denmark and Norway.
In this connection, it may be observed that it is true that the first draft
convention drawn up by the Danish Commissioners at Copenhagen on
July 16th, 1819, including Article VI of that draft, which corresponds to
Article 9 of the Convention of September 1st, 1819, only related to
financial matters. Article VI of this draft ran as follows: "Everything in
connection with the execution of Article 6 [the financial article] of the
Treaty of Kiel being regarded as settled by the above points...." Article
VI of the Danish draft was however amended on August 23rd, 1819,
when a new draft was submitted to the Stockholm Conference by the
Danish plenipotentiary and the British mediator. This second draft
extended the scope of Article VI of the original Danish draft of July
16th, 1819, so that it now said that not only Article 6 of the Treaty of
Kiel was to be regarded as completely settled, but "Everything in
connection with the Treaty of Kiel in general and with its sixth article in
particular". This change, which was maintained in Article 9 of the
Convention, finally disposes not only of [p68] the financial questions
dealt with in Article 6 of the Treaty of Kiel but of all questions
mentioned in the Treaty, and therefore also of the territorial questions
in Article 4, which leaves Greenland to Denmark. As has already been
explained, "Greenland" in Article 4 of the Treaty of Kiel means the
whole of Greenland.
----------------------------------------------------------------------------------------------
-----------------------
[FN1] This Article runs as follows :
"Article neuf. - Tout ce qui concerne le Traité de Kiel en général, et
nommément Son Sixiéme Article, étant ainsi envisagé comme entiére-
ment réglé, Sa Majesté le Roi de Suéde et de Norvége, et Sa Majesté
le Roi de Dannemarc déclarent qu'aucun payment ultérieur, hormis ce
qui est stipulé actuellement, ne sera soit à titre dudit Traité, soit pour
cause de l'ancienne Union entre la Norvége et le Dannemarc, exigé de
part et d'autre; ni par le Gouvernement Norvégien du Gouverne-ment
Danois ou des Sujets Danois; ni par le Gouvernement Danois du
Gouvernement Norvégien ou des Sujets Norvégiens; de même qu'au-
cune prétention, qui, à ce titre, ou pour cette cause, a pu être avancée
jusqu'à présent des deux côtés, ne sera désormais prise en considéra-
. tion ou mise en discussion, qu'en tant qu'elle s'accorde avec les
termes, et les principes de cette Convention, qui annulle de fait et de
droit toute redevance ultérieure de part et d'autre."
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-----------------------
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[FN1] Translation as printed in the "Annual Register" for 1814:
"Article VI. As the whole debt of the Danish Monarchy is contracted, as
well upon Norway as the other parts of the kingdom, so his Majesty the
King of Sweden binds himself, as Sovereign of Norway, to be
responsible for a part of that debt, proportioned to the population and
revenue of Norway.
By public debt is to be understood that which has been contracted by
the Danish Government, both at home and abroad. The latter consists
of Royal and State obligations, bankbills, and paper money formerly
issued under Royal authority, and now circulating in both kingdoms.
An exact account of this debt, such as it was on the 1st of January
1814, shall be taken by Commissioners appointed to that effect by both
Crowns, and shall be calculated upon a just division of the population
and revenues of the kingdoms of Norway and Denmark. These
Commissioners shall meet at Copenhagen, within one month after the
exchange of the ratification of this treaty, and shall bring this affair to a
conclusion as speedily as possible, and at least before the expiration
of the present year; with this understanding, however, that the King of
Sweden, as Sovereign of Norway, shall be responsible for no other
portion of the debt contracted by Denmark, than that for which Norway
was liable before its separation."
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-----------------------
[182] The Court holds that, in consequence of the various undertakings
resulting from the separation of Norway and Denmark and culminating
in Article 9 of the Convention of September 1st, 1819, Norway has
recognized Danish sovereignty over the whole of Greenland and
consequently cannot proceed to the occupation of any part thereof.
* a Commission of four members (American, British, French, Italian). If
[183] 2. A second series of undertakings by Norway, recognizing
Danish sovereignty over Greenland, is afforded by various bilateral
agreements concluded by Norway with Denmark, and by various
multilateral agreements to which both Denmark and Norway were
contracting Parties, in which Greenland has been described as a
Danish colony or as forming part of Denmark or in which Denmark has
been allowed to exclude Greenland from the operation of the
agreement.
[184] The first of these agreements is the Commercial Treaty
concluded between Denmark and the United Kingdoms of Sweden and
Norway on November 2nd, 1826, a Treaty for which provision was
made in Article 23 of the Treaty of Kiel. Article 5 of that Treaty reads as
follows: "The respective colonies of the two High Contracting Parties,
including in the case of Denmark, Greenland, Iceland, and the Faroe
Isles, shall be specially excepted from the provisions of the four
preceding articles, which shall only be applicable to the Kingdom of
Denmark, the Duchies of Slesvig, Holstein and Lauenbourg of the one
part, and to the Kingdoms of Sweden and Norway, of the other part."
[185] Among more modern agreements may be quoted, as examples,
the stipulations in the Universal Postal Conventions of 1920, 1924 and
1929, which say that : "The following shall be considered as belonging
to the Universal Postal Union: .... (c) the Faroe Isles and Greenland, as
being part of Denmark."
[186] It has already been said that when the Treaty of 1826 speaks of
"Greenland", this can only denote Greenland in the sense, for
example, of Article 4 of the Treaty of Kiel, i.e. the whole of Greenland.
The same applies to the Danish-Norwegian Agreements, referred to
above, which followed the Treaty of 1826. In accepting these bilateral
and multilateral agreements as binding upon herself, Norway
reaffirmed [p69] that she recognized the whole of Greenland as
Danish; and thereby she has debarred herself from contesting Danish
sovereignty over the whole of Greenland, and, in consequence, from
proceeding to occupy any part of it.
* over Spitzbergen. Secondly, the request showed that "the Danish
[187] 3. In addition to the engagements dealt with above, the Ihlen
declaration, viz. the reply given by M. Ihlen, the Norwegian Minister for
Foreign Affairs, to the Danish Minister on July 22nd, 1919, must also
be considered.
[188] This declaration by M. Ihlen has been relied on by Counsel for
Denmark as a recognition of an existing Danish sovereignty in
Greenland. The Court is unable to accept this point of view. A careful
examination of the words used and of the circumstances in which they
were used, as well as of the subsequent developments, shows that M.
Ihlen cannot have meant to be giving then and there a definitive
recognition of Danish sovereignty over Greenland, and shows also that
he cannot have been understood by the Danish Government at the
time as having done so. In the text of M. Ihlen's minute, submitted by
the Norwegian Government, which has not been disputed by the
Danish Government, the phrase used by M. Ihlen is couched in the
future tense: "ne fera pas de difficultés" ; he had been informed that it
was at the Peace Conference that the Danish Government intended to
bring up the question: and two years later - when assurances had been
received from the Principal Allied Powers - the Danish Government
made a further application to the Norwegian Government to obtain the
recognition which they desired of Danish sovereignty over all
Greenland.
[189] Nevertheless, the point which must now be considered is
whether the Ihlen declaration - even if not constituting a definitive
196
recognition of Danish sovereignty - did not constitute an engagement
obliging Norway to refrain from occupying any part of Greenland.
[190] The Danish request and M. Ihlen's reply were recorded by him in
a minute, worded as follows [FN1]:
"I. The Danish Minister informed me today that his Government has
heard from Paris that the question of Spitzbergen will be examined by
the Danish Government is questioned by this Commission, it is
prepared to reply that Denmark has no interests in Spitzbergen, and
that it has no reason to oppose the [p70] wishes of Norway in regard to
the settlement of this question.
Furthermore, the Danish Minister made the following statement:
The Danish Government has for some years past been anxious to
obtain the recognition of all the interested Powers of Denmark's
sovereignty over the whole of Greenland, and it proposes to place this
question before the above-mentioned Committee at the same time.
During the negotiations with the U.S.A. over the cession of the Danish
West Indies, the Danish Government raised this question in so far as
concerns recognition by the Government of the U.S.A., and it
succeeded in inducing the latter to agree that, concurrently with the
conclusion of a convention regarding the cession of the said islands, it
would make a declaration to the effect that the Government of the
U.S.A. would not object to the Danish Government extending their
political and economic interests to the whole of Greenland.
The Danish Government is confident (he added) that the Nor¬wegian
Government will not make any difficulties in the settlement of this
question.
I replied that the question would be examined.
14/7 - 19 Ih."
"II. To-day I informed the Danish Minister that the Norwegian
Government would not make any difficulties in the settlement of this
question.
22/7 - 19 Ih."
----------------------------------------------------------------------------------------------
-----------------------
[FN1] Translation from a French text supplied by Norway.
----------------------------------------------------------------------------------------------
-----------------------
[191] The incident has, therefore, reference, first to the attitude to be
observed by Denmark before the Committee of the Peace Conference
at Paris in regard to Spitzbergen, this attitude being that Denmark
would not "oppose the wishes of Norway in regard to the settlement of
this question"; as is known, these wishes related to the sovereignty
Government was confident that the Norwegian Government would not
make any difficulty" in the settlement of the Greenland question; the
aims that Denmark had in view in regard to the last-named island were
to secure the "recognition by all the Powers concerned of Danish
sovereignty over the whole of Greenland", and that there should be no
opposition "to the Danish Government extending their political and
economic interests to the whole of Greenland". It is clear from the
relevant Danish documents which preceded the Danish Minister's
demarche at Christiania on July 14th, 1919, that the Danish attitude in
the Spitzbergen question and the Norwegian attitude in the Greenland
question were regarded in Denmark as interdependent, and this
interdependence appears to be reflected also in M. Ihlen's minute of
the interview. Even if this interdependence-which, in view of the
affirmative reply of the Norwegian Government, in whose name the
Minister for Foreign Affairs was speaking, would have created a
bilateral engagement - is not held to have been established, it can
hardly [p71] be denied that what Denmark was asking of Norway ("not
to make any difficulties in the settlement of the [Greenland] question")
was equivalent to what she was indicating her readiness to concede in
the Spitzbergen question (to refrain from opposing "the wishes of
Norway in regard to the settlement of this question"). What Denmark
desired to obtain from Norway was that the latter should do nothing to
obstruct the Danish plans in regard to Greenland. The declaration
which the Minister for Foreign Affairs gave on July 22nd, 1919, on
behalf of the Norwegian Government, was definitely affirmative : "I told
the Danish Minister today that the Norwegian Government would not
make any difficulty in the settlement of this question."

[192] The Court considers it beyond all dispute that a reply of this
nature given by the Minister for Foreign Affairs on behalf of his
Government in response to a request by the diplomatic representative
of a foreign Power, in regard to a question falling within his province, is
binding upon the country to which the Minister belongs.
[193] Norway has objected that the Danish Government's intention to
extend the monopoly régime to the whole of Greenland was not
mentioned in the Danish request of July 14th, 1919, as is alleged to
have been done at a later date in the communications addressed to
the interested Powers in 1920 and 1921; and it is argued that if the
Norwegian Government had been warned of this intention, the
declaration of the Minister for Foreign Affairs would have been in the
negative; and that, in consequence, the declaration, though
unconditional and definitive in form, cannot be relied on against
Norway.
[194] The Court cannot admit this objection. It seems difficult to believe
that Norway could not have foreseen the extension of the monopoly, in
view of the fact that the United States of America, which had received
in 1915 a request similar to that made to Norway on July 14th, 1919,
had understood perfectly well that the Danish plans in regard to the
uncolonized parts of Greenland involved an extension of the monopoly
régime - although this was not mentioned in the Danish request at
Washington - and had for that very reason at first demanded the
maintenance of the "open door". It is all the more difficult for the Court
to accept the Norwegian argument on this point because the
monopoly, in Greenland, is an institution which traces its origin to the
Dano-Norwegian administration in the XVIIIth century. It is also
noteworthy that Norway has adduced a document of an official
character, dated November 3rd, 1916 (viz., the letter from the Danish
Minister of the Interior (Directorate of Greenland Colonies) to the
Parliamentary Committee for the Danish West Indies), from which it
appears that the Danish administration was at that time [p72]
contemplating the application of the régime of exclusion to the whole
area of Greenland. The word "exclusion" is more correct in this context
than "monopoly", but this in no way affects the argument.
[195] From the foregoing, it results that the Court is unable to regard
the Ihlen declaration of July 22nd, 1919, otherwise than as
unconditional and definitive.
[196] The standpoint adopted by Norway led her in 1921 to refuse a
written confirmation of the Ihlen declaration, when such confirmation
was requested by Denmark in the note from her Minister at Christiania
on January 18th, 1921.
[197] Thus, after the issue by Denmark of the Decree of May 10th,
1921, which introduced the régime of exclusion for the whole of
Greenland, M. Ræstad, the Minister for Foreign Affairs, informed the
Danish Minister at Christiania, unofficially, on July 20th, 1921, that "the
Norwegian Government has not recognized and cannot consent to
recognize an extension of Danish sovereignty over Greenland which
would involve a corresponding extension of the Danish monopoly,
since the result would be the extinction of the economic activities, and
particularly the hunting and fishing operations hitherto pursued without
hindrance by Norwegians in the parts of Greenland and in the
Greenland waters in question"; this was confirmed in the official
Norwegian note of November 2nd, 1921, which has been referred to
earlier in this judgment. The régime of exclusion, which - according to
the Norwegian Government's argument - could not have been
foreseen by it, was sufficient to justify - according to such argument -
the change in its attitude.
[198] It follows from what has already been said that the Court is
unable to adopt this reasoning.
[199] The Court readily understands that Norway should feel concern
for the interests of the Norwegian hunters and fishermen on the East
coast of Greenland ; but it cannot forget, in this connection, that as
early as December 1921, Denmark announced her willingness to do
everything in her power to make arrangements to safeguard
Norwegian subjects against any loss they might incur as a result of the
Decree of May 10th, 1921 (letter from the Danish Minister at
197
Christiania dated December 19th, 1921, to the Norwegian Minister for
Foreign Affairs). The Convention of July 9th, 1924, was a confirmation
of Denmark's friendly disposition in respect of these Norwegian hunting
and fishing interests.
[200] What the Court cannot regard as being in accordance with the
undertaking of July 22nd, 1919, is the endeavour to replace an
unconditional and definitive undertaking by one which was subject to
reservations : and what it is even more difficult for the Court to admit is
that, notwithstanding the undertaking of July 22nd, 1919, by which she
promised to refrain [p73] from making difficulties in the settlement of
the Greenland question, Norway should have stipulated that "Eastern
Greenland must be Norwegian". This pretension was already apparent
at the end of a letter of January 12th, 1923, from the Norwegian
Minister at Copenhagen to the Danish Minister for Foreign Affairs; and
it was enunciated very definitely on September 28th, 1923, in the
minutes of the sixth meeting of the Conference which drew up the
Convention of July 9th, 1924, and again in the Protocol signed on
January 28th, 1924, referred to above.
[201] The Court is unable to read into the words of the Ihlen
declaration "in the settlement of this question" (i.e. the Greenland
question) a condition which would render the promise to refrain from
making any difficulties inoperative should a settlement not be reached.
The promise was unconditional and definitive. It was so understood by
the Norwegian Minister for Foreign Affairs when he told the Danish
Minister at Christiania - on November 7th, 1919, that "it was a pleasure
to Norway to recognize Danish sovereignty over Greenland" (dispatch
from the Danish Minister at Christiania to the Danish Minister for
Foreign Affairs of November 8th, 1919). It was also in the same sense
that the Danish Minister at Christiania had understood the Ihlen
declaration, when he informed the Danish Minister for Foreign Affairs
on July 22nd, 1919, that M. Ihlen had told him "that the plans of the
Royal Government in regard to the sovereignty of Denmark over the
whole of Greenland would not encounter any difficulties on the part of
Norway".
[202] It follows that, as a result of the undertaking involved in the Ihlen
declaration of July 22nd, 1919, Norway is under an obligation to refrain
from contesting Danish sovereignty over Greenland as a whole, and a
fortiori to refrain from occupying a part of Greenland.
*
[203] Denmark has maintained that the Convention of July 9th, 1924,
already referred to above, excludes any right on the part of Norway to
occupy a part of Greenland.
[204] In this connection it should be noted that when Norway initiated
negotiations in 1923, on the question of Greenland, the negotiations
were intended to cover the whole problem of Greenland, and primarily
the legal status of the eastern coast. But when it was found impossible
to reconcile the Danish theory of sovereignty and the Norwegian theory
of a terra nullius, it became necessary to confine the negotiations to an
arrangement on certain matters which it was possible to regulate, while
leaving the legal status of the uncolonized [p74] part of the island
undefined. The matters in question were the right of sojourn, of taking
possession of land for user, the right of hunting and fishing and of
establishing telegraph stations and other installations in Eastern
Greenland. These were interests which Norway was, as is known,
much concerned to uphold. In order to make it quite clear that the
Convention only covered a limited part of the whole question of
Greenland, the Parties exchanged identic notes, on the same day as
the signature of the Convention, declaring that each reserved its
fundamental standpoint on questions concerning Greenland not dealt
with in the Convention, so that nothing was prejudged, nothing
abandoned or lost thereby. The question of the sovereignty and that of
the terra nullius - to mention that point alone - were thus left entirely
outside the Convention of July 9th, 1924, and the Court finds that
neither Denmark nor Norway can derive support from the Convention
for their fundamental standpoints on the legal status of the territory
covered by the Convention: viz., Danish sovereignty, or terra nullius,
respectively. And, in truth, Norway has never argued that she was
entitled to derive any such argument from the Convention.
[205] Finally, Denmark has maintained that, under certain provisions of was to decide whether this constituted a valid agreement between the
the Covenant of the League of Nations, of the General Act of two Governments; if so, the rule to be applied for the solution of the
conciliation, judicial settlement and arbitration of 1928 and of dispute should first and foremost have been sought in this agreement.
conventions between Denmark and Norway for the pacific settlement
of disputes, Norway is likewise bound to abstain from occupying any [215] I am quite aware that this was not the line taken by the Parties,
part of Greenland; it is also maintained that the same result ensues one of whom desired to take advantage of the present proceedings in
from two agreements said to have been arrived at by the two Parties at order to attempt to establish his sovereignty over all Greenland, and,
the beginning of July 1931, in the course of the exchange of views accordingly, had every interest in presenting the request addressed to
which preceded the occupation of July 10th, and of which an account the Norwegian Government, and other similar overtures, in the light of
has been given in the early part of this judgment. a preconceived theory, whilst it was to the other's interest to show that
the declaration made on his behalf in 1919 was devoid of any
[206] In view of the conclusion reached by the Court, there is no need importance. That, however, should not have prevented the Court from
for these questions to be considered. rectifying the position in accordance with the principles of law and the
rules of its own Statute.
*
[216] I speak only of the Danish request in 1919 and of the declaration
[207] Each Party has prayed the Court to order the other Party to pay made in response thereto because, in my view, that is the only
the costs in the present case. The Court, however, holds that there is agreement between the two countries - assuming, of course, that there
no need in the present case to deviate from the general rule laid down was an agreement - which concerns the question submitted to the
in Article 64 of the Statute, namely, that each Party will bear its own Court. As regards the Convention of July 9th, 1924, concerning
costs. [p75] Eastern Greenland, I hold, with the judgment, that the notes
exchanged the same day between the Danish and Norwegian
[208] FOR THESE REASONS, Governments render it impossible to adduce any argument from that
The Court, Convention in support of the contentions of either Party. [p77]
by twelve votes to two,
[217] 2. - The important point in the present proceedings is, of course,
(1) decides that the declaration of occupation promulgated by the the request made to the Norwegian Government by the Danish
Norwegian Government on July 10th, 1931, and any steps taken in this Government and the former's declaration.
respect by that Government, constitute a violation of the existing legal
situation and are accordingly unlawful and invalid; [218] The request addressed to the Norwegian Government was,
(2) rejects the opposing submissions of the Norwegian Government; however, only one of several similar overtures on the part of the
(3) declares that there is no need to deviate from the general rule laid Danish Government addressed, from the end of 1915 onwards, to a
down in Article 64 of the Statute that each Party will bear its own costs. number of States with a view to defining and securing its position in
Greenland. It is scarcely possible rightly to appreciate the request with
[209] Done in French and English, the English text being authoritative, which we are concerned unless we consider it in conjunction with the
at the Peace Palace, The Hague, this fifth day of April, one thousand whole series of overtures of which it formed part, more especially
nine hundred and thirty-three, in three copies, one of which shall be since, as we shall presently see, the request addressed to the
placed in the archives of the Court and the others delivered to the Norwegian Government, as a result of which the declaration was
Agents of the Government of His Majesty the King of Denmark and of made, reproduced the terms of a declaration obtained by the Danish
the Government of His Majesty the King of Norway respectively. Government from another State.

(Signed) M. Adatci, [219] This is the point of view from which I shall briefly consider the
President. overtures in question, in regard to which I am definitely at variance with
(Signed) Å. Hammarskjöld, the Court. In order to avoid repetition, I shall leave aside for the
Registrar. moment the request addressed to the Norwegian Government : I shall
devote special attention to that, after I have defined the meaning and
[210] M. Anzilotti, Judge, and M. Vogt, Judge ad hoc, declare that they effect of the overtures made by the Danish Government to other
are unable to concur in the judgment given by the Court and, availing States.
themselves of the right conferred on them by Article 57 of the Statute,
append to the judgment the dissenting opinions which follow. [220] 3. - The best way of appreciating these overtures is, in my view,
to allow the documents relating to them to speak for themselves.
[211] MM. Schücking and Wang, Judges, whilst concurring in the Though the attitude adopted by the Danish Government is, in a sense,
judgment, have appended thereto the observations which follow. the most important factor, the answer given by the foreign
governments must also be noted, either because it shows how the
(Initialled) M. A. Danish request was understood, or because the Danish Government,
(Initialled) A. H. [p76] in accepting these answers without observations or reservations,
showed that it accepted the interpretation placed by the other
Dissenting Opinion of M. Anzilotti. Government upon its request.

[Translation.]
[212] Being unable wholly to concur in the present judgment, and
having regard to the importance of the case and of the principles of law
involved, I feel it my duty to avail myself of my right under the Court's
Statute and to indicate as briefly as possible my standpoint in regard to
this dispute.
[213] 1.- In the first place, I dissent with regard to the manner in which
the question referred to the Court has been approached.
[214] The dispute is one between Denmark and Norway regarding the
sovereignty over a territory in Eastern Greenland. Denmark's position
in Greenland formed the subject of a request addressed by the Danish
Government to the Norwegian Government in July 1919, and of a
declaration on the part of the latter Government accepted by the
Danish Government. Accordingly, in my view, the first thing to be done
198
[221] It seems that the Danish Government raised the question of its
sovereignty over all Greenland for the first time in connection with the
negotiations regarding the cession of the Danish West Indies to the
United States of America. We do not know how the Danish
Government first approached the American Government: a proposal
was made by the latter Government (see Danish Government's Case)
which was solely concerned with securing the principle of the open
door and was not accepted by the Danish Government.
[222] But in the memorandum handed to the Secretary of State on
December 27th, 1915, the Danish Minister in Washington, after stating
that "it was desirable that the Danish Government should extend its
care by the suzerainty of the State to include the whole of Greenland",
added that he had been [p78] "instructed" by his Government "to say
that the Danish Government would very much desire to receive the
binding promise of the American Government that no objection would
be raised to the said extension of the care and suzerainty of Denmark
to the whole of Greenland" (Annexes to Norwegian Government's
Counter-Case, No. 38).
[223] The American Government's declaration of August 4th, 1916, is
to the effect that "the Government of the United States of America will
not object to the Danish Government extending their political and
economic interest to the whole of Greenland" (Annexes to the Danish
Government's Reply, No. 170). The terms of this declaration deviate
from those of the request; but it is certain that the declaration was
construed by the Danish Government as a promise not to object to the
extension of Danish sovereignty. This emerges from several
documents; but the report of the Minister for Foreign Affairs to the
King, dated August 1st, 1916 - reproduced under №.165 of the
Annexes to the Danish Government's Reply - appears to me to be
absolutely decisive in this respect. In his report, the Foreign Minister
says:
"Finally, it appears to me most important that the United States of
America have offered to make, simultaneously with the signature of a
convention, an official declaration to the effect that the Government of
the United States of America will not object to the Danish Government
extending their sovereignty to include the whole of Greenland...."
[224] This is especially worthy of note because, in all the overtures
successively undertaken by it, the Danish Government expressly
referred to the request made to the United States of America; the
American declaration was submitted to the other governments as a
model for the declaration asked of them.
[225] The overtures to the other Powers - as I have said, I am leaving
aside for the moment the request addressed to the Norwegian
Government - were only made later and when it was no longer
possible for the question to be brought before the Peace Conference.
On March 2nd, 1920, the Danish Minister for Foreign Affairs sent to the
Danish Ministers in London, Paris, Tokyo and Rome, instructions
which were to serve as a basis for overtures to the respective
governments.
[226] In these instructions (Annexes to the Danish Government's
Reply, No. 170), after outlining Danish activities in Greenland since
1721, and after observing that several parts of that country had been
effectively occupied on behalf of Denmark, but [p79] that "formal
possession of Greenland as a whole had not been taken", the Minister
for Foreign Affairs goes on to say that, "having regard to Danish
sentiment in this matter and in the interest of the Eskimos, it would be
desirable that the Danish Government should be enabled to extend its
care, by means of its sovereignty, over the whole of Greenland".
[227] The instructions next describe the request made to the United
States of America and reproduce the terms of the declaration made by
the American Government. They conclude by requesting the Danish
representative "to endeavour to obtain .... the Government's .... official
recognition of Danish sovereignty over all Greenland", and they add
that "the best way of obtaining such recognition from .... would, in the
Foreign Minister's opinion, be for the .... Government to make a
declaration corresponding to that made by the American Government".
The import attached to that declaration by the Danish Government has
already been seen.
[228] In the note transmitted on March 16th, 1920, to the British
Secretary of State for Foreign Affairs (Annexes to the Danish
Government's Reply, No. 171), we read: "I have accordingly been
instructed to submit to His Britannic Majesty's Government a request
for the official recognition of His Danish Majesty's sovereignty over the
whole of Greenland. In view of my Government's opinion, such
recognition might be given in the same way as the Government of the
United States of America recognized in 1916...."
[229] To this note was attached a memorandum which, pursuant to the
instructions received, gave an account of the historical relations
between Denmark and Greenland and set out the other considerations
militating in favour of the request. The memorandum concluded with
the following paragraph:
199
"Danish explorers have visited practically the whole of uninhabited
Greenland and made maps of the country , but no formal occupation of
the whole of Greenland has actually taken place. In view of Danish
sentiments in this matter as well as the interest of the Esquimau
population, it would be desirable if the Danish Government could
extend its activity by proclaiming its sovereignty over the entire territory
of Greenland."
[230] The notes to the Italian Government, on March 17th, 1920
(Annexes to the Danish Government's Reply, №. 173), to the French
Government, on March 20th, 1920 (ib., №. 174), to the Japanese
Government, on May 12th, 1920 (ib., №. 175), and to the Swedish
Government, on January 13th, 1921 (ib., №. 177), together with the
documents annexed to them, though containing some differences in
wording, all reproduce the same essential ideas, that is to say that,
ever since the beginning [p80] of the XVIIIth century, Denmark has
been founding colonies in Greenland, but that formal possession has
not been taken of the whole of Greenland in the name of the Crown of
Denmark ; that it is desirable that Denmark should be enabled to
extend her sovereignty and, thereby, her care to the whole of
Greenland; finally, that the recognition of Danish sovereignty might
take the form of a declaration similar to that made by the United States
of America, the terms of which are given in each case.
[231] On two occasions, however, the Danish Government deviated
from this standpoint and contended that the recognition sought was in
respect of a situation already existing and long since established: this it
did, first, in the note which the Danish Minister in London, on the basis
of the instructions received by him from the Foreign Minister (Annexes
to the Danish Government's Reply, №. 176), addressed to the British
Government on July 20th, 1920 (Danish Government's Case), and
secondly, in the note addressed by the Danish Minister at Christiania
to the Norwegian Government on December 19th, 1921 (Annexes to
Danish Government's Case, №. 91). It is therefore necessary to see in
what circumstances this attitude was adopted.
[232] The note of July 20th, 1920, to the British Government is a reply
to that Government's note of May 19th (Danish Government's Case): in
the latter note, the Foreign Office stated that they were prepared
officially to recognize Danish sovereignty over Greenland, provided
that Denmark gave the British Empire a right of preemption in the
event of the sale of the island. It was to avoid this condition, which had
met with determined opposition from the United States of America, that
the Danish Government adopted the attitude expressed in the note in
question.
[233] As regards the note of December 19th, 1921, that document was
in reply to the note of November 2nd, in which the Norwegian Minister
for Foreign Affairs informed the Danish Government that the
Norwegian Government had not recognized, and could not consent to
recognize, an extension of Danish sovereignty over Greenland,
involving a corresponding extension of the Monopoly, and the resulting
extinction of the fishing and hunting operations hitherto conducted by
Norwegians in the parts of Greenland in question and in the adjacent
waters.
[234] It should be observed that the Danish Government affirmed the
preexistence of its sovereignty over all Greenland when it was
necessary to do this in order to refute claims which it was unable or
unwilling to admit; apart from such cases, it confined itself to asking for
a recognition of an extension of its [p81] sovereignty. It is therefore
difficult to consider the two notes of July 20th, 1920, and December
19th, 1921, as representing the standpoint adopted by the Danish
Government in approaching foreign governments in regard to its
position in Greenland ; to do so would indeed set these two documents
in manifest contradiction with the direct, definite, and concordant
statements which appear in all the other documents.
[235] The only conclusion which I find it possible to derive from the two
notes in question is that, at that moment, the Danish Government was
perfectly aware of the possibility of adopting either attitude: viz. that of
affirming an already existing sovereignty, and requesting its
recognition, or that of urging reasons in support of an extension of its
sovereignty, and requesting the recognition of this extension. It elected
to adopt the latter attitude and only resorted to the former in the course
of a discussion and to avoid conditions or limitations which it felt
unable to accept.
[236] The majority of the replies from the interested States show that it
was, in truth, in that sense that the governments understood the
request made to them by the Danish Government, and that what they
agreed to recognize was the extension of Danish sovereignty over the
whole of Greenland.
[237] Thus, the French reply, dated March 31st, 1920, says that "the
Government of the Republic will not object to the Danish Government
extending its sovereignty over the whole of Greenland in the manner
indicated in the American note of August 4th, 1916" (Danish Case).
[238] The Japanese reply, dated June 24th, 1920, is worded as
follows: "I have the further honour to declare herewith on behalf of the
Imperial Government that they have no objection to the Danish
Government extending their political and economic interests to the
whole of Greenland." (ib.)
[239] The Italian Government's reply, dated June 29th, 1920, states
that "the Royal Government will have no difficulty in recognizing the
sovereignty of Denmark over Greenland" (ib.). In my opinion, it is
beyond all doubt that what is contemplated here is a future recognition,
i.e. a recognition which will not be refused whenever Danish
sovereignty has been extended to the whole of Greenland.
[240] The British and Swedish replies alone - the former, no doubt, as
a result of the Danish note of July 20th, 1920 - appear to contemplate
a recognition independent of any future events : the British reply, dated
September 6th, 1920, states that "His Majesty's Government recognize
His Danish Majesty's [p82] sovereignty over Greenland" (Danish Case)
; and the Swedish reply, dated January 28th, 1921, declares that "....
His Majesty's Government, as from this date, has recognized the
sovereignty of Denmark over the whole of Greenland" (ib.). But there is
nothing in these replies to indicate that these Governments believed
that they were confirming an already existing sovereignty. The fact that
the British Government felt justified in appending to its recognition a
reservation in regard to its right to be consulted in case the Danish
Government should contemplate alienating this territory, appears
rather to point to an opposite conclusion.
[241] I am therefore of opinion that, if one reads the documents as they
stand, giving the words the sense which they naturally bear in the
context, one is inevitably led to the conclusion that the Danish
Government was making a distinction between the colonized districts
of Greenland and the other parts of the country, and that what it was
requesting from the States whom it approached was, not the
recognition of an already existing sovereignty, but the recognition of
the right to extend its sovereignty to the whole of Greenland.
[242] 4. - Such, in my opinion, is the conclusion which emerges from
the text of the documents.
[243] It remains to be seen whether this conclusion is inexplicable or
inconsistent, having regard to the position of Denmark in Greenland at
the moment when the overtures were made. It is in this connection that
the historical question of Danish sovereignty in Greenland arises in the
present suit; a literal interpretation fails where it would lead to absurd
or inconsistent results.
[244] Two facts in particular merit attention.
[245] First, the existence of an ancient claim to sovereignty over the
country known as Greenland, a claim unconnected either with the
extent of the colonization of the country, or even with a more or less
accurate geographical demarcation thereof.
[246] It is agreed that the origin of this claim resides in the authority
which the ancient kings of Norway had acquired over the political
organization which inhabitants of Iceland, of Norwegian origin, had
founded at the end of the Xth century in South-West Greenland and
which, at first independent, did homage to the King of Norway in 1261
and became tributary to the Kingdom of Norway. This species of
suzerainty fitted in with the notion of an exclusive dominion of the kings
200
of Norway over the seas and lands of the North and afforded the basis
for a claim which was neither limited to the territory occupied by the
tributary State nor subject to the condition that that State should
continue to exist. [p83]
[247] It was, no doubt, as a consequence of this claim that, some two
centuries after the political organization in Greenland had been
destroyed by the Eskimos, and practically all communication with
Greenland had ceased, the kings of the Danish-Norwegian Union
announced the intention of re-establishing the old relations with "the
Country of Greenland belonging to Our Kingdom of Norway"; or
described themselves as "hereditary sovereigns of Greenland"; or
spoke of "Our Country of Greenland", etc.
[248] Again, this historic claim manifests itself in legislation or in
treaties relating to1 Greenland as a whole. The animus possidendi, of
which so much has been said in these proceedings, is, at bottom,
nothing else than the old claim on the basis of which, first the kings of
Denmark and Norway and later the kings of Denmark, did not hesitate
to act as sovereigns of Greenland when opportunity offered itself.
[249] The other fact deserving of attention is the disproportion between
the claim to sovereignty over all Greenland and the effective exercise
of that sovereignty.
[250] I am prepared to admit that the Danish Government has proved
that, on some occasions, laws have been promulgated which,
according to their meaning and tenour, were not limited to the
colonized parts of Greenland; I also concede that frequently the
Danish-Norwegian Union or Denmark have acted, in relation to foreign
States, as though their sovereignty covered all parts of Greenland
alike.
[251] But that is all that can be conceded to the Danish stand-point. It
is undeniable and it has not been denied - and that in my view is the
essential point - that in this respect there was a profound difference
between the colonized regions of Greenland and the remainder
thereof; for, whereas in the colonies there was a regular administration
and a judicial organization, in the remainder of Greenland there were
perhaps laws in force but no authority to enforce them: in fact - and this
is a circumstance as exceptional as it is significant - no officials had
even been appointed competent to decide disputes or to apply and
ensure respect for the law.
[252] For a long time, the disproportion to which I have referred was
not of much importance. This was the case not merely because the
requirements of international law were then smaller, but also, and
above all, because the title to sovereignty existed independently of its
exercise: the Danish-Norwegian or Danish kings did not claim to be
sovereigns of Greenland because they exercised authority over that
country ; they exercised authority over it because they claimed to be
the hereditary sovereigns of the country. From this point of view, and
having regard to the natural conditions [p84] prevailing in Greenland, I
unhesitatingly admit that Danish-Norwegian or Danish sovereignty was
manifested in a manner satisfying to requirements of international law,
in the sense that sovereignty over all Greenland was neither
compromised nor lost. It is however obvious that this position is only
tenable if one postulates the existence of a title to sovereignty
antecedent to the so-called second colonization and if the validity of
that title is established.
[253] The situation however evolved in an entirely contrary direction.
[254] Historic claims to dominion over whole regions - claims which
had, formerly, played an important part in the allocation of territorial
sovereignty: - lost weight and were gradually abandoned even by the
States which had relied upon them. International law established an
ever closer connection between the existence of sovereignty and the
effective exercise thereof, and States successfully disputed any claim
not accompanied by such exercise.
[255] Furthermore, the natural conditions prevailing in Greenland and
their importance changed appreciably as a result of technical
improvements in navigation which opened up to human activities a part
of that country, especially the East coast, which previously, although
known, had been practically inaccessible.
[256] Accordingly, the question of Danish sovereignty over Greenland
presented itself in a new light.
[257] For, if the notion of a historical sovereignty arising from the old
Norwegian claims be discarded, Denmark's title to sovereignty over
Greenland must necessarily be sought in a taking of possession
effected since 1721. But in that case it is a question of the occupation
of a terra nullius. To say that the title resides in possession and not in
occupation is a verbal quibble, for possession of a territory which
formerly belonged neither to the State possessing it nor to any other
State is nothing else than occupation considered at a moment
subsequent to the original act of occupying.
[258] In short, either the so-called second colonization is the
manifestation of a preexisting sovereignty and the title to this
sovereignty must be established and shown to be valid; or else
Greenland, in 1721, was a terra nullius and we have before us an
occupation which must be appraised in accordance with the rules
governing occupation.
[259] The historical development of Denmark's position in Greenland in
the XIXth century was bound to give rise to this problem. Accordingly,
it is easy to understand the anxiety which became evident with respect
to parts of Greenland which [p85] had not yet been effectively
occupied. The attention of the Danish Government was repeatedly
drawn from different sides to the possibility of disputes and to the
danger of uncolonized territories in Greenland being occupied by other
States. Of course these were private opinions, though in some cases
they emanated from particularly competent sources ; it is not to be
expected that the Government itself should cast doubt upon its
sovereignty before having decided what it ought to do. It should
however be noted that the Government itself was not altogether free
from anxiety on the point. I find a striking proof of this in Article 2 of the
concession granted to Mr. J. W. Tayler on June 7th, 1863, in which it is
expressly stipulated that any settlement - colony, post, mine, or similar
establishment - which the concessionnaire might create north or south
of latitude 65°, is to come under the sovereignty of the Danish Crown
and to be subject to the Danish laws; it is difficult to understand that in
granting a concession to a foreigner in a territory which it regards as
indisputably subject to its sovereignty, a State should concern itself
with the possibility of the concessionaire taking possession of the
territory in the name of his own sovereign.
[260] Again, the fact that the Danish Government had doubts as to the
soundness of its claim to sovereignty over certain parts of Greenland is
proved by the very overtures which it made. A proceeding of this kind
is explicable only when the government which resorts to it thinks it
necessary to safeguard a doubtful or unsettled position. Accordingly it
is a proceeding which, so far as I am aware, has not been often
resorted to. A single precedent has been cited: the recognition of
Swiss neutrality by Article 435 of the Treaty of Versailles. But it has
been forgotten that the purpose of that Article was not to recognize
Switzerland's neutrality which no one disputed, but something quite
different: the intention was on the one hand to secure approval of the
abrogation of certain provisions affecting Swiss neutrality, and on the
other hand to place on record that the guarantees stipulated in favour
of Switzerland in 1815 constituted "international obligations for the
maintenance of peace", in order to make it possible for that country to
enter the League of Nations.
[261] Denmark's historical position in Greenland had thus been
reconsidered in the light of the principles of international law now in
force and of the new situation existing in fact, and there was a demand
for action which would eliminate any danger by means of the taking of
effective possession of the territories not yet occupied.
[262] Accordingly, when, in 1915, the Danish Government considered
that the time had come to settle the question, it definitely took up the
attitude suggested to it by the present [p86] state of international law.
Historical claims were abandoned; all the documents point to the year
1721 as the commencement of Danish dominion in Greenland. A
definite distinction is made between the parts of Greenland of which
effective possession has been taken - in regard to which no question
201
arises - and the other parts of which possession has not been formally
taken but over which it would nevertheless be just and desirable that
Denmark should be enabled to extend her sovereignty. And it was in
order to obtain recognition of this extension that the Danish
Government approached the governments of the States which it
regarded as specially interested.
[263] Everything fits and forms a coherent whole in the overtures made
by the Danish Government; and the conclusion which emerges from
the text of the documents, far from being inexplicable or inconsistent
with the historical development of Denmark's position in Greenland, is
the clear and natural outcome thereof.
[264] 5. - Of all the overtures made by the Danish Government, the
only one which directly concerns us and with which I intend to deal
hereafter is that made in July 1919 to the Norwegian Government.
[265] First and foremost, this overture differs from the others by reason
of the circumstances in which it was made. The request to the United
States of America was made in connection with the cession of the
Danish West Indies, and its aim was to obtain a declaration which
would accompany the signature of the Convention. The overtures to
the other Powers were made when it was impossible for the Greenland
question to be settled by the Peace Conference; their object was to
secure declarations which would take the place of a settlement by the
Conference and would close the question as between Denmark and
the State approached.
[266] On the other hand, it was precisely with a view to submitting this
question to the Peace Conference, and having it settled by the
Committee which was dealing with Spitzbergen, that the Danish
Government approached the Norwegian Government .
[267] In a letter dated at Copenhagen July 12th, 1919 (see Annexes to
the Danish Case, No. 84), the Minister for Foreign Affairs instructed the
Danish Minister at Christiania to inform the Norwegian Minister for
Foreign Affairs that the question of Spitzbergen was shortly to be
examined by a Committee of the Peace Conference, composed of one
American, one British, one French and one Italian delegate, and that
there was every reason to believe that the Danish Government would
in the near future receive an invitation to bring its point of view on [p87]
this question to the notice of the Committee. "The Danish Government"
- says the letter - "will be prepared to renew before this Committee the
unofficial assurance already given to the Norwegian Government
regarding the attitude of Denmark in the question of Spitzbergen,
namely, that Denmark, having no special interests at stake in
Spitzbergen, would raise no objection to the claims of Norway."
[268] Then come two paragraphs in which the object of the request to
be made to the Norwegian Minister for Foreign Affairs is set forth in the
following terms:
"Nevertheless, I would ask you in the course of the conversation to
bring out clearly that the Danish Government has, for a certain number
of years, been anxious to obtain the recognition by all the interested
Powers of Denmark's sovereignty over the whole of Greenland, and
that it intends to place that question before the above-mentioned
Committee. In the course of the negotiations with the United States of
America concerning the cession of the Danish West Indies, the Danish
Government has already raised the question of such a recognition by
the United States, and had succeeded in obtaining from the latter,
simultaneously with the conclusion of the Convention for the cession of
the islands in question, a declaration to the effect that the United
States of America would not object to the Danish Government
extending its political and economic interests to the whole of
Greenland.
I would ask you to explain to the Norwegian Minister for Foreign Affairs
that the Danish Government is confident that it will meet with no
difficulties on the part of the Norwegian Government with regard to
such an extension."
[269] Two days later, the Danish Minister at Christiania had the
conversation, which he had been instructed to seek, with the
Norwegian Minister for Foreign Affairs, M. Ihlen. The subject of this
conversation was recorded by M. Ihlen in a minute, a French
translation of which is given under No. 205 of the Annexes to the
Norwegian Government's Rejoinder: neither the accuracy of the
minute, nor that of the translation, has been challenged.
[270] The minute was to the following effect:
"The Danish Minister today informed me that his Government had
heard from Paris that the Spitzbergen question would be dealt with by
a Committee of four members (American, British, French, and Italian).
Should this Committee question the Danish Government, the latter
would be prepared to answer that Denmark had no interests in
Spitzbergen and that Denmark had no reason to oppose Norway's
wishes in regard to the settlement of the question.
Further, the Danish Minister informed me of the following:
The Danish Government has for several years been concerned with
the question of obtaining recognition of Danish sovereignty over all
Greenland from all the Powers concerned, and they intend [p88]
simultaneously to submit this question to the Committee. In the course
of the negotiations with the United States of America concerning the
cession of the Danish West Indies, the Danish Government raised this
question in so far as concerned recognition by the United States
Government, and it obtained from the latter, simultaneously with the
conclusion of the Convention regarding the cession of the islands
referred to, a declaration to the effect that the United States would not
raise any objection to the extension by the Danish Government of its
political and economic interests to the whole of Greenland.
The Danish Government confidently expected that the Norwegian
Government would make no difficulty in connection with the settlement
of this matter. I replied that the question would be considered."
[271] The reply was given on July 22nd, eight days later; it is recorded
as follows in a further minute by M. Ihlen:
"I today informed the Danish Minister that the Norwegian Government
would make no difficulty in connection with the settlement of this
matter."
[272] The Danish Minister informed his Government of the reply in a
despatch, of the same date, in which he stated that M. Ihlen, Minister
for Foreign Affairs, had informed him on that day that "the plans of the
Royal Government concerning Danish sovereignty over the whole of
Greenland - mentioned in your despatch of 12th instant - will meet with
no difficulty on the part of Norway" (Annexes to the Danish Case, №.
85).
[273] The above are the principal documents relating to the Danish
Government's request to the Norwegian Government, and to the
latter's reply.
[274] In this connection two questions arise:
(a) Did the two Governments agree upon anything ? and upon what?
(b) If so, was the agreement valid ? extension of sovereignty". There is no reason to doubt that this was
[275] 6. - There appears no doubt that, in the opinion of the Danish
Government, there was a connection between the attitude which that
Government was prepared to adopt in the Spitzbergen question, and
that which it was asking the Norwegian Government to adopt in the
Greenland question.
[276] I do not, however, think one can go so far as to say - as is now
contended by the Danish Government - that there was a regular
reciprocal do ut des contract, in which the declaration that the last-
named Government was prepared to make-and which it actually made
before the Committee of the Peace Conference - was to constitute the
counter-part of the undertaking which it was asking Norway to give.
[p89]
[277] That was it is true, the idea suggested by the Danish Minister at
Paris, in his note of July 11th, 1919 (Danish Case). But the instructions
which the Danish Minister for Foreign Affairs sent on July 12th to the
Danish Minister at Christiania (see above), and which resulted in his
conversation with the Norwegian Minister for Foreign Affairs, appear to
have been conceived and drawn up in rather a different spirit. The
reason probably lies in the fact - which was recalled in the instructions
202
- that the Danish Government had already given the Norwegian
Government an unofficial assurance that, as Denmark had no interests
contrary to those of Norway in the Spitzbergen question, she would
raise no objection to the latter's demands. There is nothing in these
instructions that suggests the idea of asking the Norwegian
Government for a counter-concession; the declaration concerning
Spitzbergen, which the Danish Government was proposing to "repeat"
before the Committee, is indicated rather as an opportunity for making
an equivalent request to the Norwegian Government. The words
"nevertheless, I would ask you, in the course of the conversation, to
bring out...." convey just that idea.
[278] Everything points to the conclusion that it was in that sense that
the Danish Minister at Christiania interpreted his instructions. The
minute drawn up by M. Ihlen certainly does not convey the idea of an
alleged do ut des contract; on the other hand, if one compares this
minute with the Danish instructions of July 12th, the two documents
are seen to be in complete accord with one another. I have little doubt
that the word "further" which, in M. Ihlen's minute, separates the part of
the conversation concerning Spitzbergen from the part concerning
Greenland, represents exactly what took place; for what the Danish
Minister had been instructed to do was "to bring out, in the course of
the conversation", the aspirations which his Government entertained
with regard to Greenland.
[279] I therefore hold that no do ut des contract was proposed by the
Danish Government. But even were it otherwise, there is nothing to
show that M. Ihlen realized that the statement which the Norwegian
Government was being asked to give was to be the counter-part of the
declaration which the Danish Government was promising to make in
regard to Spitzbergen. The request made to the Norwegian
Government is therefore, in this respect, on the same plane as those
addressed to the other Powers.
[280] This request was that the Norwegian Government should not
make any difficulties in the settlement of the Greenland question -
which the Danish Government was proposing to submit, together with
that of Spitzbergen, to the Committee of the [p90] Peace Conference.
The settlement contemplated by the Danish Government was clearly
not just any settlement: it was a settlement on the lines indicated in the
Danish Minister's communication, namely, that no opposition would be
made "to the Danish Government extending its political and economic
interests to the whole of Greenland".
[281] It follows that when the Norwegian Minister for Foreign Affairs
informed the Danish Minister, on July 22nd, that "the Norwegian
Government would make no difficulty in the settlement of this matter",
that signified that the Norwegian Government would not object to the
Danish Government extending its political and economic interests to
the whole of Greenland. It has already been shown (see No. 3 above)
that, in the eyes of the Danish Government, "the extension of political
and economic interests" signified, at any rate in the first place, "the
also the sense in which the Norwegian Minister for Foreign Affairs
understood the Danish request. That view is, indeed, confirmed by the
subsequent documents, which show that the Norwegian objections
were not aimed at the extension of Danish sovereignty, but at an
extension of sovereignty involving a corresponding extension of the
monopoly; the extension of sovereignty was, therefore, common
ground: I would refer in particular to the private letter from M. Ræstad,
Norwegian Minister for Foreign Affairs, to M. Kruse, Danish Minister at
Christiania, dated July 20th, 1921 (Annexes to the Norwegian
Government's Rejoinder, №. 209), and to the Norwegian note of
November 2nd of the same year (Annexes to the Danish Government's
Case, №. 89).
[282] The question whether the so-called Ihlen declaration was merely
a provisional indication (Norwegian contention) or a definitive
undertaking (Danish contention) has been debated at length. In my
view there has been a good deal of exaggeration on both sides.
[283] There is no doubt that the declaration was requested, and
granted, with a future settlement in view. The Norwegian Government
could, therefore, well be under the impression that the possibility of
upholding its interests, and ensuring adequate safeguards for them,
still remained open to it. It would be going beyond the intention of the
Parties - or, at any rate, of one of them - if the agreement resulting
from the Ihlen declaration were to be regarded as a complete and final
settlement of the Greenland question between Denmark and Norway.
In this respect, the Norwegian declaration differs unmistakeably from
those which the Danish Government obtained from other Powers, and
which are complete in themselves. [p91]
[284] There was nevertheless, one point on which agreement had
been reached between the Parties, and which may definitively be
regarded as common ground for the future settlement. That point was
not the recognition of an already-existing Danish sovereignty: that
contention of the Danish Government is refuted by all the documents.
The point on which the Danish Government's request and the
Norwegian Government's reply are in accord is that the latter
Government shall not make any difficulties in a settlement of the
question which would enable the Danish Government to extend its
political and economic interests, that is to say, its sovereignty, to the
whole of Greenland. In regard to this point, the Norwegian declaration
is of the same nature as those of the other Powers. Norway doubtless
retained the possibility of upholding her interests, provided always
that . she refrained from opposing the extension of Danish sovereignty
to the whole of Greenland.
[285] 7. - The outcome of all this is therefore an agreement, concluded
between the Danish Minister at Christiania, on behalf of the Danish
Government, and the Norwegian Minister for Foreign Affairs, on behalf
of the Norwegian Government, by means of purely verbal declarations.
[286] The validity of this agreement has been questioned, having
regard, in the first place, to its verbal form, and to the competence of
the Minister for Foreign Affairs.
[287] As regards the form, it should be noted, to begin with, that as
both Parties are agreed as to the existence and tenor of these
declarations, the question of proof does not arise. Moreover, there
does not seem to be any rule of international law requiring that
agreements of this kind must necessarily be in writing, in order to be
valid.
[288] The question of the competence of the Minister for Foreign
Affairs is closely connected with the contents of the agreement in
question; and these have already been determined.
[289] No arbitral or judicial decision relating to the international
competence of a Minister for Foreign Affairs has been brought to the
knowledge of the Court; nor has this question been exhaustively
treated by legal authorities. In my opinion, it must be recognized that
the constant and general practice of States has been to invest the
Minister for Foreign Affairs-the direct agent of the chief of the State -
with authority to make statements on current affairs to foreign
diplomatic representatives, and in particular to inform them as to the
attitude which the government, in whose name he speaks, will adopt in
a given question. Declarations of this kind are binding upon the State.
[290] As regards the question whether Norwegian constitutional law
authorized the Minister for Foreign Affairs to make the [p92]
declaration, that is a point which, in my opinion, does not concern the
Danish Government: it was M. Ihlen's duty to refrain from giving his
reply until he had obtained any assent that might be requisite under the
Norwegian laws.
[291] A question of a totally different kind is whether the declaration of
the Norwegian Minister for Foreign Affairs was. vitiated, owing to a
mistake on a material point, i.e. because it was made in ignorance of
the fact that the extension of Danish sovereignty would involve a
corresponding extension of the monopoly and of the régime of
exclusion.
[292] It is manifest that the régime of exclusion, by rendering hunting
and fishing operations impossible in the territorial waters and on the
coasts of Greenland, might be gravely detrimental to Norwegian
interests. The documents submitted to the Court clearly show that the
difficulties raised by the Norwegian Government in 1921 - when the
Danish Government requested it to repeat in writing the verbal
203
declaration it had given in 1919 - were not aimed at the extension of
sovereignty itself, but at the regime of exclusion which would result
from the extension of sovereignty.
[293] It should also be noted that this point - which was expressly
mentioned in the communications made to the other Powers - was not
referred to in the verbal communication made by the Danish Minister at
Christiania to the Norwegian Minister for Foreign Affairs. The allusion
to economic interests, in conjunction with political interests, could not
be considered as a sufficient indication of something so specific as the
régime of exclusion.
[294] My own opinion is that there was no mistake at all, and that the
Danish Government's silence on the so-called monopoly question, and
the absence of any observation or reservation in regard to it in M.
Ihlen's reply, are easily accounted for by the character of this overture,
which was made with a future settlement in view. But even accepting,
for a moment, the supposition that M. Ihlen was mistaken as to the
results which might ensue from an extension of Danish sovereignty, it
must be admitted that this mistake was not such as to entail the nullity
of the agreement. If a mistake is pleaded it must be of an excusable
character; and one can scarcely believe that a government could be
ignorant of the legitimate consequences following upon an extension of
sovereignty; I would add that, of all the governments in the world, that
of Norway was the least likely to be ignorant of the Danish methods of
administration in Greenland, or of the part played therein by the
monopoly system and the régime of exclusion.
[295] The foregoing is merely by way of supposition, because, as I
have said, I am strongly inclined to think that there [p93] was no
mistake, and that the silence observed on this point, both by the
Danish and Norwegian Governments, is attributable to the very nature
of the declarations made by the two Parties. In regard to the other
Powers, the situation of the Danish Government was different, as it
was asking them for declarations which would definitively settle the
question. On the other hand, it is easy to understand that the
Norwegian Government should have thought it unnecessary to dwell
particularly on this point, since the whole question was going to be
brought up and examined on a later occasion.
[296] This leads me to the last question which arises in connection with
the binding character of the agreement of 1919; viz. whether the
breaking off of the negotiations by the Danish Government in 1921
entitled the Norwegian Government to consider itself released from its
undertaking.
[297] The agreement was concluded with a view to the settlement of
the Greenland question by the Peace Conference. This method of
dealing with the question, which was suggested by the Danish
Government for reasons of expediency, does not, however, appear to
have been an essential condition of the Norwegian Government's
assent to the Danish request. The Norwegian Government has never
contended that the declaration made on its behalf to the Danish
Government had lost its value because that Government did not
submit the question to the Peace Conference but, instead of doing so,
made overtures to individual Powers.
[298] On the other hand, it was essential that there should be a
settlement. Norway had only given her assent to the Danish
Government's desire to extend its sovereignty to the whole of
Greenland with a view to a future settlement of the question, when she
would have an opportunity of urging her interests and demanding that
they should be equitably safeguarded. I am, accordingly, of opinion
that, if the Danish Government had really claimed to abide by the
agreement of 1919 and to consider it as a final and complete
settlement of the question, and if it had refused to negotiate or to take
the Norwegian demands into consideration, it would have been acting
in a sense contrary to the agreement itself and the Norwegian
Government would have been entitled to declare itself released from
its engagement.
[299] This was not, however, what occurred. The impression which, I
think, emerges from a perusal of the diplomatic correspondence
between the two Governments, from 1921 onwards, is rather that the
Danish Government was prepared - saving its right of sovereignty - to
do its utmost to safeguard the Norwegian hunting and fishing interests
on the eastern coast of Greenland. It is true that it was the Danish
Government [p94] that broke off the negotiations - perhaps somewhat
abruptly - in 1921; but it is equally true that these negotiations were
resumed, and it is admitted that the Convention of 1924 went a long
way to meet the wishes of the Norwegian Government.
[300] In these circumstances, I consider that the agreement, which was
validly concluded in 1919, has retained its force.
[301] 8.- It is consequently on the basis of that agreement which, as
between the Parties, has precedence over general law, that the
dispute ought to have been decided.
[302] The results which flow from this agreement may be summarized
as follows:
(a) As Denmark admitted to Norway in 1919 that there ere parts of
Greenland which were not yet subject to her sovereignty, she could not
now adduce a sovereignty over the whole of Greenland, existing prior
to that date. As the territory affected by the Norwegian declaration of
occupation of July 10th, 1931, is indubitably one of the parts of
Greenland which - according to the Danish Government's position in
1919 - were not subject to Danish sovereignty, that territory must be
considered as a terra nullius, unless Denmark could be shown to have
extended her sovereignty to it by acts subsequent to 1919, and in
conformity with international law; but no such fact has been adduced
by the Danish Government.
(b) As Norway had undertaken not to oppose the extension of Danish
sovereignty over the whole of Greenland, she was, before everything
else, bound not to occupy any part of this region herself, thereby
making it impossible for Danish sovereignty to be extended to it.
[303] All that now remains is to apply the consequences of the
agreement of 1919 to the submissions of the two Parties.
[304] The Danish Government asks the Court to give judgment to the
effect "that the promulgation by the Norwegian Government of the
declaration of occupation of July 10th, 1931, and any steps taken in
this respect by the Norwegian Government, constitute a violation of the
existing legal situation and are consequently unlawful and invalid".
[305] As the Norwegian occupation was effected in violation of an
undertaking validly assumed, it constitutes a violation of the existing
legal situation, and it is therefore unlawful: within those limits the Court
should, therefore, have acceded to the Danish Government's
submission.
[306] On the other hand, regarding the question from the stand-point
that I have taken, and apart from certain other questions [p95] which I
do not propose to examine, the Court could not have declared the
occupation invalid, if the term "invalid" signifies "null and void". A legal
act is only non-existent if it lacks certain elements which are essential
to its existence. Such would be the occupation of territory belonging to
another State, because the status of a terra nullius is an essential
factor to enable the occupation to serve as a means of acquiring
territorial sovereignty. But this does not hold good in the case of the
occupation of a terra nullius by a sovereign State in conformity with
international law, merely because the occupying State had undertaken
not to occupy it. Accordingly, it would have been for the Norwegian
Government to revoke the occupation unlawfully carried out, without
prejudice to the Danish Government's right to apply to the Court, as
reparation for the unlawful act, to place this obligation on record
(Judgment №. 13, p. 47).
[307] The Norwegian Government, in its turn, has submitted the
following counter-claim:
"that Denmark does not possess sovereignty over Eirik Raudes Land;
that Norway has acquired sovereignty over Eirik Raudes Land".
[308] In my view, it follows from the whole of the written and oral
proceedings that the first paragraph is designed to supply the ground
for the second and that, accordingly, there is only one claim the aim of
which is to obtain a declaration from the Court that the occupation
effected by the Norwegian Government is lawful and valid. This claim
204
should, in my view, be rejected, for an unlawful act cannot serve as the
basis of an action at law.
(Signed) D. Anzilotti. [p96]
Observations by M. Schücking and M. Wang
[Translation.]
[309] While fully concurring in the Court's conclusions, we nevertheless
find it necessary to make some reservations regarding some of the
reasons which are given in support of them. The Court has definitely
adopted the view that there was a historic Danish sovereignty,
extending over the whole of Greenland, and exercised, in particular, as
early as the XVIIIth century. We are prepared to admit that there were
indeed claims to that effect, which had been put forward by Denmark in
earlier centuries, and had not been seriously disputed by other States.
But the exact significance of the documents which should demonstrate
the exercise of this sovereignty remains somewhat uncertain;
moreover, the documents in question are legislative acts, the effective
application of which, elsewhere than on the western coast - though it
would have been an indispensable requirement under the international
law even of that period - has not been sufficiently established. Even if
all the circumstances, taken together, conferred a presumptive title
upon Denmark, the history of the diplomatic overtures undertaken by
Denmark between 1915 and 1921 in order to obtain recognition of her
sovereignty over the whole of Greenland, proves, in our opinion, that,
at that time, Denmark herself did not maintain towards the other
interested Powers the theory of an already existing Danish sovereignty
over the whole country. Regarding this point, having in view more
especially the report of the Danish Minister for Foreign Affairs to the
King of Denmark on August 1st, 1916, we are compelled to place a
different construction upon the Danish overtures to the Powers,
namely, that Denmark was desirous of extending her sovereignty to
the whole of Greenland, with the assent of the States chiefly
interested.
[310] This view does not however prevent us from considering that,
owing to some of the other reasons which are set forth in the judgment,
the Norwegian occupation is unlawful and invalid.
(Signed) Walther Schücking.
( „ ) Wang Chung-Hui. [p97]
Dissenting Opinion by M. Vogt.
[Translation]
[311] According to the Saga, Gunnbjörn Ulvsson, who left Norway for
Iceland, about the year 900, was driven westwards by a storm. He saw
a large country and some islands to the West and subsequently
succeeded in reaching Iceland. Later, two inhabitants of Iceland set out
to search for the islands seen by Gunnbjörn and, according to the
Saga, they reached Greenland and passed the winter there.
[312] Eirik Raude (Eric the Red) is, however, generally regarded as the
discoverer of Greenland; he was born in Norway about 950 and left for
Iceland about 970. About 980 he went to Greenland. He reached the
habitable region on the South-West, spent three winters there and
visited the West coast from Cape Farvel to a point far to the North. He
it was who named the country "Greenland".
[313] In 984, Eirik Raude began the colonization of the South-West
coast. The inhabitants of Iceland who accompanied him were of recent
Norwegian origin, the colonization of Iceland by Norwegians having
begun in 870. It is not easy to fix the precise date from which it may be
said that Iceland became a distinct State. During the ensuing period,
immigration to Greenland continued from Iceland and Norway.
[314] As regards communications between Greenland and other
countries, these were directed partly towards Iceland, but mainly
towards Norway, whence came the goods which the settlers needed.
[315] In 1261, the Greenlanders submitted themselves of their own
free will to the King of Norway, who promised to maintain regular
navigation to the colonies in Greenland.
[316] This regular navigation, which was essential to the Greenlanders,
ceased in 1410 and thus isolated, the settlers succumbed in the course
of the XVth century to the rigours of the climate and the attacks of
native Eskimos from the North who destroyed the colonies.
[317] In the following centuries, some expeditions set out for
Greenland, but no regular communications were established and no
colonization undertaken.
[318] Only at the beginning of the XVIIIth century were regular
communications with Greenland reestablished, after the Norwegian
Pastor Hans Egede had succeeded in forming the Greenland
Company of Bergen. In 1723, the King of Norway and Denmark, in the
concession granted to this company, [p98] expressed his intention of
reestablishing the old commercial intercourse between Norway and
"the country of Greenland belonging to Our Kingdom of Norway". Hans
Egede left for Greenland in 1721 and, in the same year, founded the
first colony there. This marked the beginning of the second Norwegian
colonization of Greenland, which gradually extended in the course of
the XVIIIth century. The colonies thus established remained Norwegian
possessions until 1814, when the King of Denmark and Norway, by the
Treaty of Kiel, ceded the kingdom of Norway to the King of Sweden -
"Greenland, the Ferroe Isles and Iceland excepted".
[319] The Treaty of Kiel was concluded on January 14th, 1814, and
ratifications were exchanged on February 9th, 1814. In an open letter,
dated January 18th, 1814, King Frederick VI released his Norwegian
subjects from their oath of allegiance. Norway maintained that her
union with Denmark was dissolved by this letter. The Norwegian nation
did not recognize the Treaty of Kiel as binding upon them; they held
that it was not within the power of a king to cede a nation, against its
will, to another king. Accordingly, the Norwegian nation assumed for
itself full sovereignty. A union between Norway and Sweden was
concluded on November 4th, 1814. On the 10th of the same month,
the Swedish Minister for Foreign Affairs wrote as follows in instructions
addressed to Swedish diplomatic representatives abroad: "We owe the
union of Norway to Sweden not to the provisions of the Treaty of Kiel
but to the trust of the Norwegian nation."
* also reckoned on an extension of Danish sovereignty to all Greenland
[320] The main question in the case before the Court is that of Danish
sovereignty over the disputed territory, and this question has generally
been presented in the course of the proceedings as the question of
Danish sovereignty over Greenland as a whole.
[321] In approaching this question, we must in the first place consider
the legal consequences of the overtures made by the Danish
Government to various Powers between 1915 and 1921.
[322] The standpoint of the Danish Government in the question of
Danish sovereignty was defined in a report made on August 1st, 1916,
to His Majesty the King of Denmark by his Minister for Foreign Affairs.
This report contains the following: "Finally, it appears to me most
important that the United States of America have offered to make,
simultaneously with the signature of a convention [concerning the
Danish West Indies], an official declaration to the effect that the
Government of the United States of America would not object to the
Danish Government extending their sovereignty to include the whole of
[p99] Greenland; such a step would afford valuable support to the
future development and maintenance of Danish interests in the
possession in question...."
[323] In the documents submitted, we find the expressions used by
Denmark in her representations to foreign governments with a view to
securing the extension of Danish sovereignty to all Greenland. These
expressions vary. The instructions of March 2nd, 1920, given by the
Danish Minister for Foreign Affairs, contain the following: "It is
desirable that the Danish Government should extend its care, by
means of its sovereignty, to the whole of Greenland." By this
expression the Danish Government indicated what may be called the
substantial motive of its overtures. The ostensible reason is stated as
follows: "Having got this declaration [that of the United States of
205
America], it [the Danish Government] proposes also to obtain
recognition by other Powers of Danish sovereignty over Greenland",
and again: "I request you therefore to endeavour to obtain from the
Italian [British, etc.] Government official recognition of Danish
sovereignty over all Greenland." In the same instructions, the Danish
Government informed its Ministers abroad that "effective possession"
has been taken "in the name of Denmark" of a certain district in
Greenland which had been "outside the districts hitherto under the
Danish administration", and again "that formal possession of
Greenland as a whole has not been taken". An instruction of July 12th,
1919, issued by the Danish Minister for Foreign Affairs to the Danish
Minister at Oslo contains the following sentence: "I will, on the other
hand, ask you [FN1] to bring out in the course of the conversation that
the Danish Government has for some years past been anxious to
obtain the recognition by all the interested Powers of Denmark's
sovereignty over the whole of Greenland and that it intends to place
that question before the above-mentioned Committee" (at Paris).
----------------------------------------------------------------------------------------------
-----------------------
[FN1] The Danish text reads as follows : " De bedes imidlertid under
samtalen fremhœve…’
----------------------------------------------------------------------------------------------
-----------------------
[324] All these expressions convey the same idea, namely, that
Denmark had not hitherto possessed sovereignty over all Greenland.
The parts of Greenland which have not been brought under the Danish
Greenland Administration and of which possession has not been
effectively or even formally taken, cannot be regarded as under Danish
sovereignty. For this reason the notes despatched by the Danish
Ministers, who had received these instructions, all contain expressions
such as "extend her sovereignty to all Greenland"; "extend her care, by
means of her sovereignty, to all Greenland"; or, "extension of Danish
[p100] sovereignty to the whole of Greenland". There is no trace of the
despatch of any rebuke or correction to the Danish Ministers abroad
who, in carrying out their instructions, used the expressions "extend",
or "extension of", "Danish sovereignty". In point of fact, these Ministers
merely gave accurate expression to the idea embodied in the
instructions themselves. The last note is that of January, 1921, to the
Norwegian Government. In this we read: "The Danish Government
not meeting with difficulties on the part of Norway." This reference to
the request made verbally in 1919 makes no qualification as regards
the expression "extension of sovereignty".
[325] Already in December 1915, the Danish Minister in Washington, in
a note to the United States Secretary of State, had spoken of "the
extension of the care and suzerainty of Denmark to the whole of
Greenland", and the Danish Minister in Paris, in his note to the French
Government in 1920, used the words: "extend her sovereignty to all
Greenland".
[326] If the Danish Government had believed that such expressions
were not correct, it would no doubt have taken every care to warn its
Ministers abroad to avoid making use of the words which have been
quoted above.
[327] The replies of the governments whom Denmark had approached
also show, for the most part, that these governments considered that
what was desired was a future extension of Danish sovereignty. I
would also refer in this connection to the history of the Danish-
American negotiations concerning the sale of the Antilles, as related by
Charles Callan Tansill in a recent work: The Purchase of the Danish
West Indies.
[328] It is true that on various occasions, in the XIXth century, the
Danish Government had expressed its conviction, in Denmark, that the
sovereignty over the whole of Greenland belonged to Denmark.
[329] On the other hand, during the same century, there had been no
small number of official acts and declarations which revealed an
opposite conviction. Thus, the expedition of Graah (1829-1830), which
acted "under instructions from the King", and the expeditions of Holm
(1883-1885) and Ryder (1891-1892) organized by the Danish State,
were all commanded by officers of the Royal Danish Navy; and all
three of them took possession of lands on the East coast in the name
[p101] of the King. These formal acts of occupation did not produce
any legal effects; but they are clear evidence that the Danish
Government was not convinced that it possessed sovereignty over the
whole of Greenland. This attitude was also expressed by the Danish
Minister of Marine at a meeting of the Folketing, in the session of 1880-
1881, in a speech which he made on the exploration of the East coast
of Greenland. On that occasion the Minister said : "It is in every way
natural that a part of the coast lying so near to the colonies belonging
to the Danish Crown should be explored at the initiative of Denmark...."
[330] The Holm expedition had been organized by the Commission for
the Exploration of Greenland. This Commission wrote to the Ministry of
Marine concerning the explorations which it behoved Denmark to
undertake "in regard to territories, which are in part subject to the
Danish State, and in part adjacent to the territories that are subject".
The Government followed the advice of the Commission. There is
nothing to show that it did not accept the argument mentioned above.
[331] In a report submitted to the King of Denmark by the Minister of
the Interior, in connection with the Tayler concession, granted in 1863,
the Minister points out that no one disputed Danish sovereignty on the
East coast of Greenland. In the same report it is also emphasized that
Mr. Tayler "undertakes to take possession in Your Majesty's name of
any new part of the coast which may be reached by the expedition....".
The actual concession stipulates that "any station .... shall come under
the sovereignty of the Danish Crown....".
[332] Such contradictions cannot be regarded as evidence of a definite
attitude, or of a firm conviction.
[333] At the beginning of the present century, we have to note the law
of May 27th, 1908, which lays down, inter alia:
".... Southern Greenland comprises the country situated between Cape
Farewell and the Nordre-Strœm-Fiord, including the latter; Northern
Greenland includes the remainder of the Danish territory on the
western coast...."
[334] In a note to the British Government, dated July 20th, 1920, the
Danish Government maintains that Danish sovereignty over all
Greenland was acquired "by prescriptive right". This note was
occasioned by the fear lest a dispute might arise on the question of
preemption between two of the Great Powers whom Denmark had
approached. In a despatch dated December 21st, 1921, the Norwegian
Minister at Copenhagen had reported, as a result of overtures made by
him to the Danish Government, that the last-named Government "has
refused, out of deference for America, to [p102] accept the demand of
Great Britain for a right of preemption, in case Denmark should desire,
in the future, to alienate Greenland. The British Government then
contented itself with reserving its right to be informed in case Denmark
should ever contemplate thus alienating Greenland. And if I have
rightly understood, Denmark must be regarded as having accepted
that reservation." The argument put forward in the note of July 20th,
1920, by Denmark, finding herself in a difficult diplomatic position, to
the effect that she possessed an ancient sovereignty, acquired by
prescriptive right, cannot be allowed very much weight.
[335] The most eminent Danish jurists of recent times have maintained
that the Danish possessions in Greenland were limited, and they have
spoken of an effective occupation, or taking into possession, in such a
way as to be valid in international law, as being a necessary basis for
Danish sovereignty.
[336] The declarations of 1915 to 1921 were declarations freely made,
so to speak, to the community of nations. In thus officially declaring to
a certain number of Powers that it did not yet possess sovereignty over
the whole of Greenland, the Danish Government debarred itself from
claiming to possess an ancient sovereignty over the whole of
Greenland. To concede the right of a government to put forward claims
to an ancient sovereignty, only a few years after that very government
has solemnly proclaimed that it did not possess that sovereignty, would
be to open the door to instability in international affairs.
206
*
[337] It is next necessary to consider whether Denmark acquired
sovereignty over the territory in dispute, subsequently to 1921.
[338] It is clear that Denmark had the animus possidendi during that
period; but did she have the corpus possessionis? The region in
question is one where the citizens of another nation have engaged in
fairly regular activities, certainly since, and probably long before, 1889
- "a favourite resort of the Norwegian hunters" - without Denmark
having attempted to exercise sovereignty over those foreigners. And
these activities continued, even after the proclamation of June 16th,
1921, under which the whole of the coasts and adjoining islands of
Greenland were closed to ships of foreign nationality. It is a territory,
the sovereignty over which is disputed, a territory which was visited in
1930 by a Danish official expedition under the command of a Danish
naval officer, without any action whatever being taken by him in regard
to the serious [p103] accusations brought by a Danish company
against the Norwegian hunters in the district. He did not even
interrogate the accused persons. It is a territory, forming part of the
areas which M. Christensen, the former Danish Prime Minister, in a
speech in defence of the Convention of 1924, referred to in the
following words:
"As we have no warships in Greenland waters, nor any police-force
capable of expelling them [i.e. the Norwegian hunters], we have no
means of intervening."
[339] That statement still held good in July 1931.
[340] It has been argued on behalf of the Danish Government that the
administrators of Angmagssalik and Scoresby Sound, whose
jurisdiction has not been delimited by any geographical boundaries,
have been since 1894 (?), and are still, the local representatives of the
Danish State in Eastern Greenland. This assertion has been contested
on behalf of Norway: it has been pointed out that the officials in those
two stations are in no way entitled to exercise official authority, and
that in fact they never have attempted to exercise any kind of authority,
outside the very limited districts entrusted to their administration.
[341] The Danish Government has not produced any document
conferring the alleged authority, outside the two stations in question,
upon the above-mentioned officials. Two facts should be noted: (1) the
officials mentioned by the Danish Government are employes of the
Monopoly, pastors, and telegraphists; (2) Denmark undertook, in the
Protocol signed on January 28th, 1924, at the closure of the
negotiations for the Convention of July 9th, 1924, to trace the
boundaries of the two above-mentioned colonies according to the
customary rules (cf. the Ordinance of March 26th, 1751). The said
Protocol, in making an express reference to the Ordinance of March
26th, 1751, indicates that the boundaries of the stations are situated,
speaking generally, at a distance of fifteen miles on either hand.
Considering these circumstances and the geographical situation, it is
difficult to understand what governmental authority the employés of the
Monopoly, the pastors and telegraphists of Angmagssalik and
Scoresby Sound can possibly possess in Eirik Raudes Land.
[342] My conclusion is that Denmark has not proved the corpus
possessionis in respect of the territory in question, nor has she proved
an "inchoate title". [p104]
*
[343] I am led by the circumstances to examine the question of the
extent of Danish sovereignty over Greenland from another point of
view.
[344] What is the origin of that sovereignty?
[345] Until 1814, Greenland was a Norwegian dependency; it is
therefore necessary to determine what was that Greenland which
Denmark retained for herself at the dissolution of the union between
the two kingdoms.
[346] The instructions sent to some of the Danish Ministers abroad by
the Minister for Foreign Affairs at Copenhagen, on March 2nd, 1920,
begin with the words: "Danish enterprise in Greenland had its origin in
1721." In pursuance of those instructions, these Ministers presented
memoranda to the different governments, in such terms as: "Danish
enterprise in Greenland was initiated in 1721"; "l'uvre danoise аи
Gronland a été initiée depuis déjà 1721"; "l'activité civilisatrice des
Danois dans le Groenland a commencé en 1721"; "the beginning of
Denmark's penetration into Greenland took place in the year 1721".
Especially clear is the following declaration: "The taking into
possession of Greenland by Denmark dates from a period as far
distant as 1721." The latter passage is quoted from the instructions
issued by the Minister for Foreign Affairs on July 7th, 1920, and the
information was transmitted to the British Government in the following
form: "The occupation of Greenland by Denmark took place as far
back as 1721." This decisive statement is contained in the instructions,
and in a diplomatic note, written with the express object of
emphasizing the fact that Danish sovereignty went back to an ancient
date. A letter, dated April 29th, 1921, from the Danish Minister at Oslo
to the Norwegian Minister for Foreign Affairs, contains the words: "The
Danish Government being about to celebrate the 200th anniversary of
the attachment of Greenland to Denmark...."
[347] When these documents speak of Denmark, this must really be
understood to mean Norway, or - if it is preferred - the King of the two
United Kingdoms, in his capacity as King of Norway. In any case, for
the present purpose, it suffices to note that the sovereignty which
Denmark invokes only goes back - according to the solemn
declarations made by the Danish Government to foreign Powers - as
far as the year 1721. During the proceedings, the Danish Government
has used expressions such as: "the Danish Government is entitled to
adduce an uninterrupted occupation of two hundred years", and "the
Danish State has exercised sovereignty over all Greenland for two
hundred years". These expressions are not [p105] without importance,
although the Danish Government has, in other passages, sought to
base its sovereignty on a more ancient historical foundation.
[348] Christian IV was the most remarkable of the kings of Denmark
and Norway and took more interest than any of them in the countries in
the northern seas. In his "Fiscal Letter" of April 1st, 1606, he writes as
follows: "Greenland, which is a member [of Norway], which belongs by
right to the Crown of Norway and which in the days of some of Our
beloved ancestors, Kings of Denmark and Norway, by abandonment or
other unfortunate circumstances, was separated and cut off, with the
rights and profits attaching thereto, from the Crown of Norway." It was,
however, the avowed intention of the King to restore this country to the
Norwegian Crown.
[349] When, in 1616, the Dutch captains took possession of the
western coast between the 60th and 66th degree of north latitude on
behalf of the States-General, Christian IV maintained a passive
attitude. His successor, Frederick III, granted a concession in 1652,
"seeing that the aforesaid country of Greenland was a dependency of
our Kingdom of Norway". In a despatch dated January 13th, 1844, the
Danish Ministry for Foreign Affairs wrote : "After 'old Greenland' [in
other words, the East coast], which had been discovered by
Norwegians and Icelanders at the end of the Xth century, had been
entirely abandoned at the beginning of the XVth century, all relations
with that country ceased, until King Christian IV decided to send ships
to endeavour to rediscover the eastern coast...."
[350] The somewhat vague claims of the Danish-Norwegian kings
found expression in terms such as "hereditary sovereign of Greenland"
and "Our country of Greenland", etc. Thus, in the charter granted to the
Greenland Company of Bergen on February 5th, 1723, the King
declared his intention of reestablishing the ancient commercial
relations between Norway and "the country of Greenland belonging to
our Kingdom of Norway....". But no very great importance can be
attached to claims of such a nature.
[351] Even admitting that an ancient sovereignty is not forfeited by
dereliction, unless the animus is abandoned as well as the corpus
possessionis, it must be conceded that the sovereignty could not be
still in being some centuries after the extermination of the ancient
colonists and the cessation of communications.
207
[352] The second colonization of Greenland, under the direction of the
Pastor Hans Egede, was a Norwegian enterprise. In his numerous
petitions Hans Egede recalled the fact that Greenland had been a
dependency of the Kingdom of Norway. The Bergen Company, which
sent Egede to Greenland, declared [p106] its object to be that "this
country which has been so long deserted and has been left in the
hands of savages may, in course of time .... be restored to Your
Majesty....". In connection with the petitions of the Bergen Company,
the Principal Secretary of the Danish Chancellory stated, in an opinion
presented about the end of 1722, that ".... the country [that is
Greenland] has for a great number of years been res derelicta....".
[353] It accordingly follows that the sovereignty which Denmark now
possesses in Greenland is based upon the Norwegian colonization at
the beginning of the XVIIIth century.
*
[354] From a purely historical standpoint, it was sought to base the
claim for sovereignty on the fact that Greenland had, in ancient times,
been a country belonging to Norway. But, according to the custom then
prevalent in matters of colonization, the sovereignty was in reality
restricted, after the second colonization, to certain areas surrounding
the factories or stations successively established. The same system
was also employed by the Monarch of the two kingdoms in dealing with
possessions in the Indies and Africa. In regard to possessions in those
parts of the world, the King also granted charters for colonies which
might hereafter be established.
[355] The system which it was sought to apply in Greenland consisted,
from 1721 onwards, in successively extending the colonized territory,
with a consequent extension of the territory under governmental
administration, thus again, in turn, extending the sovereignty of
Denmark. This system has been described on various occasions by
the Danish Government. I will content myself with two examples.
[356] The Danish Ministry of the Interior (Directorate of Greenland
Colonies) in a letter, dated November 3rd, 1916, to the Parliamentary
Commission for the Danish West Indies, refers to the establishment of
the Angmagssalik station in 1894 and explains how, by a Proclamation
dated March 8th, 1905, it had been "announced that the Danish
establishments henceforward extended as far as latitude 740 30' N.;
that is to say that the sovereignty of Denmark and the regime of
exclusion have accordingly been extended over a fresh zone, one
degree and a half of latitude in width". The Ministry's letter continues in
the following terms: "These two regions, which have been incorporated
at a relatively recent date, are universally recognized as being subject
to Danish sovereignty; in any case, no objection has ever been raised
in any quarter against this view; and it would perhaps be possible to
maintain that Danish sovereignty could always continue [p107] to be
extended to all places where there are Danish establishments, that is
to say - since a trading and mission station has now been founded by
private initiative at Cape York - to every inhabited part of Greenland."
[357] In the instructions issued on March 2nd, 1920, by the Ministry for
Foreign Affairs at Copenhagen to a number of Danish Ministers in
foreign countries, the following passage occurs:
"As has been mentioned above, Denmark established colonies in
Greenland as early as the beginning of the XVIIIth century. Later on,
when it was found that Eskimos were also living outside the districts
hitherto subject to the Danish administration, namely, at Cape York,
Denmark extended her missionary enterprise and commercial activities
to those regions and, by reason of that fact, these territories of
Greenland have also been effectively taken into possession on behalf
of Denmark."
[358] A study of the Ordinances, etc., of the XVIIIth century relating to
Greenland, confirms the accuracy of the description, thus given by the
Danish Government, of the system of colonization and administration.
[359] Denmark has endeavoured, during the proceedings, to draw a
distinction between the sovereignty itself, and the exercise of
sovereignty by the Danish administration. But, if Denmark believed that
she possessed a sovereignty, valid in international law, over the whole
of Greenland, she ought to have prohibited trading with Greenland to
all other nations; she ought to have taken steps to combat the foreign
trade which she said was prohibited. But the history of the colonization
shows that Denmark did not believe herself entitled to proceed in this
way.
[360] The Department of Police and Trade had stated in a proposal to
the King, dated February 28th, 1721 : ".... for we humbly submit that it
would be imprudent to enact such a prohibition before Your Majesty's
subjects have really taken the country into possession....".
[361] In regard to a concession for trading with Greenland, the
Principal Secretary of the Royal Danish Chancellory wrote on February
20th, 1740: "....the last article should, moreover, be drawn in such a
way as to show that His Majesty authorizes Severin alone to trade with
the Greenland colonies, whether already established or hereafter to be
established, and that neither His Majesty's subjects nor foreigners may
engage in trade within a given distance from the said colonies, seeing
that it is evidently impossible to prohibit foreigners or others from
trading in the Davis Strait so long as they do not approach nearer to
the colonies than may be declared permissible for them". The
concession was modified and restricted in conformity with this
proposal. [p108]
[362] The documents filed with the Court show that the Danish
Government did not know any legal method of preventing trade with
foreigners other than the establishment of a chain of colonies.
[363] The Ordinance of April 9th, 1740, provides that if any person
venture "to trade in the colonies already established or hereafter to be
established, in Our Country of Greenland" as also within the
boundaries fixed for them, "and similarly if any person venture, in any
part of Greenland whatsoever, by sea or by land, to despoil the
Greenlanders or to do them violence the offenders" shall be "punished
by seizure and confiscation". This Ordinance, which provides for the
protection of the Eskimos, even outside the boundaries of the colonies,
has been relied on as proof of the existence of a corpus possessions.
As a fact, however, this Ordinance is based upon a memorial of
Severin, in which the latter proposes measures to prevent the
Greenlanders from being despoiled or molested, offenders being liable
"according to the nature of the offence [to be] duly punished as
pirates".
[364] The punishment of acts of piracy by the crews of ships did not
require the existence of sovereignty in the places where such acts had
been perpetrated. And piracy might take place either by sea or by land.
(Pradier-Fodéré: "It matters little whether the act of brigandage is
perpetrated on the high seas or on the coasts, in order to determine its
character [FN1].")
----------------------------------------------------------------------------------------------
-----------------------
[FN1] This subject has been fully dealt with by Paul Stiel in his book
Der Tatbestand der Piraterie, etc. (Leipzig, 1905). Reference may also
be made to the report to the Council of the League of Nations, C. 196.
M. 70. 1927. V., page 204.
----------------------------------------------------------------------------------------------
-----------------------
[365] It is interesting to cite the following paragraph in the proposal
submitted to the King on April 1st, 1740 : "In Severin's project it is
stated that no person may, under pain of confiscation of his ship and
its cargo, do any wrong or prejudice to the Greenlanders; but as the
word wrong is of a rather general character, and might be construed in
too wide a sense, the Commissioners have contented themselves with
proclaiming that if anyone should despoil the Greenlanders or use any
flagrant violence against them, his vessel shall be seized for
confiscation." Here again it is clearly a question of piracy.
[366] The Danish Government has adduced an instruction drawn up in
1737, in the following terms:
"He must warn all foreign merchants and all whalers, to refrain, ....
from depriving the Greenlanders at any point .... either of blubber or
fish...., this being contrary not only to our Absolutum Dominium, but
208
also to the law of Nations; and, furthermore, Dutch subjects who act in
this way are violating the attached Ordinance made in 1720 by the
States-General." [p109]
[367] In acting in the manner described in the colonies, the Dutch were
doubtless infringing "our Absolntum Dominium". But the fact that the
instructions make reference to the law of nations and also to a Dutch
Ordinance seems to prove that the Copenhagen Government was not
founding itself on the idea of a Danish sovereignty extending to the
whole of Greenland.
[368] In 1753, the General Greenland Trading Company wrote:
"Although the place [on the coast of Greenland] where these vessels
are said to have been abandoned (so far as is known to us) is not
subject to Your Majesty's sovereign dominium...." The King ordered
that no steps should be taken to seize the ships in question.
[369] The Ordinance of April 22nd, 1758, has been adduced by the
Danish Government as evidence that, since that date, foreigners were
prohibited from trading anywhere in Greenland. But if this Ordinance is
compared with that of 1751, the text of which it was desired to modify,
it is seen that no substantial modification was intended; and a
memorial of the Trading Company, dated March 30th, 1759, describes
the Ordinance of 1758 as "concerning the prohibition of trading in
Davis Strait", in other words, on the colonized western coast.
[370] The Ordinance of March 18th, 1776, maintains the principle that
the establishment of stations must be effective, and must be published,
as in the past. The first article speaks of the Trading Monopoly and of
navigation "in the colonies and factories established, or hereafter to be
established, in Greenland and the islands appertaining thereto, in
Davis Strait and Disco Bay, as also in other ports and places in that
region...." The article declares that the colonies and factories "extend
at present between lat. 60 and 73 N.", and it prohibits trade and
navigation "in the aforesaid country".
[371] In 1921, the Danish Government informed a certain number of
foreign governments that the Ordinance of 1776 prohibited access to
the Greenland coast "both as regards colonies and factories already
established and those which may hereafter be created". This
interpretation of the Ordinance in the sense that the prohibition of
access only applied to the colonies has been maintained by the Danish
Government during the present proceedings. But in that case the
conclusion follows that "the aforesaid country" in that Ordinance only
signified the colonized western coast; and a study of the Ordinance of
1776 gives the impression that it is based on the notion of a
sovereignty only extending to the colonized territory. [p110]
[372] The Rescript of April 17th, 1782, refers in the introduction to "two
royal inspectors designated for Greenland....". It begins with the
following words: "As it has been humbly pointed out in your letter of
March 6th last to our Danish Chancellory that there is no judicial
authority in Our country of Greenland....". And further on: "We have
graciously deigned to appoint two covenanted officials in this country
as inspectors of trade and fisheries, one for the Northern colonies and
one for the Southern colonies"; and again further: "the aforesaid two
inspectors, each one in respect of the part of the country entrusted to
him...."
[373] A report of November 1787 from the Royal Greenland Trade
mentions that His Majesty has been pleased "to divide the country into
two inspectorates". A report of the Royal Greenland Trade
Commission of 1790 speaks of "two inspectors who are to be regarded
as the only public authorities in the country", and in the same year
another report of the said Commission mentions that the two
inspectors have to "watch over the territorial rights of Your Majesty".
[374] Lastly, by a Royal Resolution of March 23rd, 1803, the King
appointed MM. Motzfeldt and Myhlemphort "Inspectors of Colonies and
Whaling, the former in Northern Greenland and the latter in Southern
Greenland".
[375] The administration of these two inspectors, who were the only
representatives of the State in Greenland, continued to be definitely
limited to the colonized districts, the boundaries of which were fixed.

[376] The system of gradual extension of sovereignty by means of the
extension of colonization and administration was consistently followed,
and, in 1921, it again found expression in the Decree of May 10th
which lays down "that the whole country is henceforward attached to
the Danish colonies and stations and to the Danish administration of
Greenland [FN1]" (".... que tout le pays est désormais rattaché aux
colonies et stations danoises et à I'administration danoise du
Groënland)".
----------------------------------------------------------------------------------------------
-----------------------
[FN1] The (French) translation given above was filed by the Norwegian
Government. The translation submitted by the Danish Government
was as fol¬lows : ".... l'ensemble du pays est désormais rattaché aux
colonies et stations danoises sous l'autorité de l'administration danoise
du Groenland" (".... the whole of the country is henceforth attached to
the Danish colonies and stations under the authority of the Danish
administration of Greenland"). In view of these two different
translations, it seems advisable to give the original Danish text: ".... at
hele Landet herefter er inddraget under de danske Kolonier og
Stationer og den danske Styrelse af Grønland".
----------------------------------------------------------------------------------------------
-----------------------
[377] What happened in 1921, it is contended on behalf of Denmark,
was merely that "the whole country was attached to the special
organization, the office at Copenhagen which deals [p111] effect by
several of the contracting Parties to such treaties with Greenland
affairs, in other words: it was merely a question of domestic
administration". Nevertheless, the Decree of May 10th, 1921, was
notified to foreign Powers. Even accepting the construction now placed
on this text by Denmark, it seems difficult to admit that a State can
have had effective possession of vast territories - even in the Arctic
regions - which were subject neither to the central administration nor to
the local administration instituted for the colony, of which these vast
territories are alleged to form part; territories of this kind, elsewhere,
are expressly subject to the different organs of the competent
administration, sometimes to several authorities (civil, military, judicial);
even if there are parts of the territory which have never been visited by
the authorities, there exists however a competent authority for these
territories who can act, if circumstances require it.
[378] It follows from the foregoing that the Greenland which up to 1814
was a possession of Norway, and which in 1814 became a Danish
possession - that is to say the Greenland referred to in the Treaty of
Kiel and during the Norwegian-Danish negotiations concerning the
financial settlement - was not the whole of Greenland in the
geographical sense of the present day. It could only be, and it was
only, the Greenland over which the Monarch of the two united
kingdoms had exercised - and over which he consequently possessed
- effective sovereignty, in other words, the colonized districts subject to
the administration of the Sovereign. That being so, it is unnecessary to
dwell further on the scope of the Treaty of Kiel and of the subsequent
financial settlement.
* Greenland [113] from all the Powers concerned, and they intend
[379] In regard to the numerous treaties in which the Danish
Government inserted an exception in regard to Greenland, the
following considerations call for attention:
[380] If these treaties can be adduced as evidence that the respective
contracting States recognized Danish sovereignty over the whole of
Greenland, in virtue of the exception thus inserted by Denmark, how
can one account for the fact that the Danish Government itself, in the
years 1915-1921, approached a certain number of these very same
States with an express request for their recognition ? And how can one
account for the fact that these States did not then reply that they had
already granted this recognition by the conclusion of one or other of
these treaties ? The true explanation is, perhaps, that at the same time
when the treaties of commerce, etc., were concluded, none of these
foreign Powers was thinking-owing to the nature of the case-of the
area which might be covered by the term "Greenland". Statements to
that [p112] effect by several of the contracting Parties to such treaties
209
concluded with Denmark were indeed produced to the Court.
*
[381] As regards the conversations which took place on July 14th and
22nd, 1919, between M. Krag, the Danish Minister at Oslo, and M.
Ihlen, the Norwegian Minister for Foreign Affairs, there is in existence a
record, accepted by both Parties, in the form of notes bearing the
initials of M. Ihlen.
[382] The notes are in the following terms, according to the Norwegian
Government's translation:
"I. Le ministre de Danemark m'a communiqué aujourd'hui que son
Gouvernement a été avisé de Paris que la question du Spitzberg sera
examinée, par une commission de quatre membres (américain,
britannique, français et italien). Au cas où le Gouvernement danois
serait interrogé par cette commission, il est prêt a répondre que le
Danemark n'a pas d'intérêts au Spitzberg et qu'il n'a aucune raison de
s'opposer aux désirs de la Norvége touchant le réglement de cette
question.
En outre, le ministre de Danemark a communiqué ce qui suit:
Le Gouvernement danois s'est pendant plusieurs années occupé de la
question d'obtenir la reconnaissance, par toutes les Puissances
intéressées, de la souveraineté du Danemark sur l'ensemble du
Greenland, et il se propose de soumettre cette question,
simultanément, à ladite commission. Au cours des négotiations avec
les Etats-Unis d'Amérique concernant la cession des Antilles danoises,
le Gouvernement danois a soulevé cette question en ce qui concernait
la reconnaissance par le Gouvernement des Etats-Unis, et il a obtenu
que celui-ci, concurremment avec la conclusion de la convention
relative à la cession desdites îles, donnât une dêclaration dans
laquelle il est dit que les Etats-Unis ne s'opposeraient pas à ce que le
Gouvernement danois étendît à l'ensemble du Groenland ses intérêts
politiques et économiques.
Le Gouvernement danois compte (a-t-il dit) que le Gouvernement
norvégien ne fera pas de difficultés au réglement de cette affaire. J'ai
répondu que la question sera examinée.
14/7 — 19 Ih."
"II. J'ai dit aujourd'hui au ministre de Danemark que le Gouvernement
norvégien ne ferait pas de difficultés au réglement de cette affaire.
22/7 — 19 Ih. [FN1]" [p113]
----------------------------------------------------------------------------------------------
-----------------------
[FN1] Translation from the French text supplied by Norway:
"I. The Danish Minister today informed me that his Government had
heard from Paris that the Spitzbergen question would be dealt with by
a Committee of four members (American, British, French and Italian).
Should this Committee question the Danish Government, the latter
would be prepared to answer that Denmark had no interests in
Spitzbergen and that Denmark had no reason to oppose Norway's
wishes in regard to the settlement of the question.
"Further, the Danish Minister informed me of the following:
"The Danish Government has for several years been concerned with
the question of obtaining recognition of Danish sovereignty over all
simultaneously to submit this question to the Committee. In the course
of the negotiations with the United States of America concerning the
cession of the Danish West Indies, the Danish Government raised this
question in so far as concerned recognition by the United States
Government, and it obtained from the latter, simultaneously with the
conclusion of the convention regarding the cession of the islands
referred to, a declaration to the effect that the United States would not
raise any objection to the extension by the Danish Government of its
political and economic interests to the whole of Greenland.
"The Danish Government confidently expected (he said) that the
Norwegian Government would make no difficulty in connection with the
settlement of this matter. I replied that the question would be
considered.
14/7 - 19 Ih."
"II. I to-day informed the Danish Minister that the Norwegian Govern-
ment would make no difficulty in the settlement of this matter.
22/7 - 19 Ih."
----------------------------------------------------------------------------------------------
-----------------------
[383] The translation filed by the Danish Government does not differ
ubstantially, or in any essential particular, from the above. In place of
the words "аи réglement de cette affaire" ("in the settlement of this
matter"), the Danish translation has: "аи sujet du réglement de cette
affaire" ("in connection with the settlement of this matter"). It should be
noted that the word " simultanément" (à ladite commission)
("simultaneously..... to the Committee) does not appear in the
instructions sent to M. Krag.
[384] On July 22nd, the Danish Minister reported to his Minister for
Foreign Affairs in the following terms:
"I have the honour to report that M. Ihlen, the Minister for Foreign
Affairs, informed me today that the plans of the Royal Government
respecting Danish sovereignty over the whole of Greenland -
mentioned in your despatch of the 12th instant - would meet with no
difficulties on the part of Norway."
[385] To appreciate the nature and scope of these conversations, it is
necessary to consider the following facts which emerge from the.
evidence produced:
[386] The Danish Government's overtures to the various other Powers,
during the years 1915 to 1921, were in writing, whereas it approached
the Norwegian Government in 1919 orally.
[387] In the negotiations with the United States of America in 1916,
Denmark expressly reserved her right to the continuance of the
monopoly. There is no proof that this was mentioned to M. Ihlen.
[388] In the overtures in writing to the other Powers, the monopoly
system is expressly described; in the brief request addressed verbally
to Norway in 1919, the extension of this [p114] system was not
mentioned. M. Krag spoke of the Danish Government's anxiety to
obtain recognition by all interested Powers "of Denmark's sovereignty"
over all Greenland; he described how "this question" had been raised
with the United States and he gave the American reply to the effect
that the United States would not oppose the extension of Danish
political and economic interests over all Greenland. M. Ihlen could not,
from these general expressions, and without any explanation or special
knowledge, draw the inference that this meant the extension of the
monopoly.
[389] On Denmark's side, it has been maintained, in the course of the
proceedings, that the overtures to certain Powers between 1915 and
1921 were designed to obtain recognition of sovereignty and also of
future measures for the welfare of the Eskimos, i.e. the monopoly
system; so far as can be observed, nothing was said regarding the
extension of the monopoly in the conversation with M. Ihlen; on the
contrary, M. Ihlen's minutes and the instructions given to M. Krag and
the latter's despatch to his Government after M. Ihlen's answer, all
alike only refer to the question of sovereignty.
[390] The important Greenland Society of Copenhagen, in a letter to
the Danish Government on November 2nd, 1916, had said with regard
to the coastal area between Germanialand and Cape Dalton (an area
which includes Eirik Raudes Land) that "it is a favourite resort of
Norwegian hunters who almost every year engage in hunting there
both at sea and on land"; and the Society emphasized that "the State
of Denmark must exercise sufficient foresight to secure these regions
as soon as possible".
[391] The brief minutes kept by M. Ihlen are the only record made in
the Norwegian Ministry for Foreign Affairs of the Danish demarche of
1919 and of M. Ihlen's reply.
[392] During the Dano-Norwegian negotiations for the settlement of
this matter, the Danish Government closed the coasts of Greenland
which had hitherto been open, a measure directed particularly against
Norwegians; by this measure the Danish Government broke off the
negotiations.
[393] Thus, in 1919, the Danish Government was fully aware of the
210
Norwegian interests in Eastern Greenland. At the same time, the aim
of the demarches undertaken by it was an extension of the monopoly
the consequences of which were bound to be most serious for
Norwegian interests.
[394] The Danish Minister in Paris, on July nth, 1919, had suggested to
his Government that Denmark's attitude in the [p115] Spitzbergen
question should be based on that of the Norwegian Government in
regard to Denmark's request for recognition of Danish sovereignty over
Greenland. Nothing was said to M. Ihlen regarding any such linking
together of the two questions, nor did the instructions to M. Krag
contain anything on the point. In these instructions we read : "I will, on
the other hand, ask you to bring out in the course of the conversation",
etc. If what was desired was an arrangement on the principle of do ut
des in regard to the questions of sovereignty, it should have been
expressly stated. The Danish Minister at Oslo begins, on the contrary,
by stating unreservedly that the Danish Government, should it be
questioned on the point, would be "willing to reply that Denmark has no
interests in Spitzbergen and has no reason for opposing Norway's
aspirations regarding the settlement of this question".
[395] Moreover, the Danish Minister for Foreign Affairs had already
stated unreservedly on April 1st, 1919, to the Norwegian Minister at
Copenhagen, that Denmark had no interest conflicting with those of
Norway in Spitzbergen; in view of this unofficial statement, it would
have been difficult for M. Ihlen to conceive, in July of the same year,
that there was any question of an agreement of some sort on the
principle of do ut des. It has in no way been proved that M. Ihlen knew
- as has been alleged - that Denmark, when intending to adopt an
attitude favourable to Norway in the Spitzbergen question at the Peace
Conference, was relying upon his declaration. M. Ihlen expressly
denied it in a statement made by him on July 4th, 1923, protesting
against certain assertions made in Denmark. In this statement, M.
Ihlen expresses himself as follows:
"On one of the last days of March, 1919, the Norwegian Minister for
Foreign Affairs telegraphed to the Norwegian Minister at Copenhagen
asking him to explain to the Danish Foreign Minister the reasons
militating in favour of the attachment of Spitzbergen to Norway, and to
express the hope that Denmark would take a favourable view of the
matter. In conformity with these telegraphic instructions, the Norwegian
Minister had a conversation with M. Scavenius, Foreign Minister, on
the subject of Spitzbergen, on April 1st, 1919. In a despatch of April
2nd regarding this conversation, the Norwegian Minister reported that
M. Scavenius had at once declared that the Danish Government would
be altogether favourable to the union of Spitzbergen with Norway.
Denmark herself had no interest in that region conflicting with those of
Norway, and the Danish Government fully recognized the weight of the
geographical and economic arguments in favour of uniting these
islands with Norway, and considered this as the most practical
settlement. Not a word was said about Greenland in this conversation.
[p116]
The démarche made to me by the Danish Minister at Oslo and alluded
to by M. Scavenius did not take place until some months later, on July
14th, 1919. During this conversation, the questions of Spitzbergen and
Greenland were both discussed, but I can say with certainty that
Monsieur Krag, the Danish Minister, did not on this occasion place any
conditions upon the Danish Government's favourable attitude in the
question of Spitzbergen. There is therefore no justification for speaking
of the conclusion of a contract."
[396] In view of the undeniable fact that Denmark had no interest in
Spitzbergen, I should not have considered it equitable to attribute to
the Danish Government an intention of proposing, in July 1919, any
such bargain on the do ut des principle. In point of fact, the
Spitzbergen Treaty guaranteed all rights to every Power, including
Denmark, whereas Norway, by recognizing Danish sovereignty, would
have run the risk of sacrificing all her rights in Greenland.
[397] It is very probable that M. Ihlen was, generally speaking, well
disposed owing to the Spitzbergen question, and doubtless he
favourably regarded Denmark's desire to approach the Committee of
four members at Paris. M. Ihlen also gave evidence of his favourable
attitude at a visit paid to him by the new Danish Minister at Oslo in
November of the same year; in the course of this visit, M. Ihlen -
according to a report of the Danish Minister - said that "it was a
pleasure for Norway to recognize Denmark's sovereignty over
Greenland". This was an official courtesy visit and too much
importance must not be attached to the way in which the remark
quoted is worded in the report; but in any case it proves M. Ihlen's
attitude.
[398] It has not been proved that the Krag-Ihlen conversations linked
together the Greenland and Spitzbergen questions in a manner
possessing any real legal significance ; and the facts above mentioned
militate against the theory that M. Ihlen must have realized the
existence of a close connection of this kind. During the year 1921, the
Danish Government mentioned to the Norwegian Government the
benevolent attitude shown by Denmark in the Spitzbergen question.
But only in a note at the beginning of 1923, was the theory that the two
questions were interdependent - as maintained before the Court - put
forward to Norway. Nevertheless, it is to be observed that this
interdependence was not referred to in the Protocol of Closure of the
Dano-Norwegian negotiations of January 28th, 1924, in which the
Danish delegation expressly referred to the Ihlen declaration as
binding upon Norway. [p117]
[399] The correspondence with the Danish Minister in Paris was known
to the Danish Government and the Danish Minister at Oslo, but
unknown to M. Ihlen. The Danish authorities, having this
correspondence in mind, gradually conceived an idea of the import of
the brief conversations with M. Ihlen, differing from the idea which M.
Ihlen himself could have had, as he was unaware of the suggestions
put forward regarding the interdependence of the two questions of
sovereignty.
[400] It appears from the information supplied during the proceedings
that the conversation of July 14th, 1919, was the first notice that the
Norwegian Government had of Denmark's aspirations. Thus, M. Ihlen
was unprepared for the question; he mentioned the matter verbally and
unofficially to his colleagues, but no decision was taken by the
Government. It also appears from the information produced that M.
Ihlen made no enquiries into the question of Norwegian interests in
Eastern Greenland; he was not thinking of them when he gave his
verbal answer on July 22nd, 1919.
[401] Norwegian hunters and fishermen had for a considerable period
engaged in their pursuits in Eastern Greenland, unquestioned and
unhindered by Denmark. Accordingly, it is to be supposed that the
Norwegian authorities had no knowledge of any grievance on the part
of these Norwegian nationals. Moreover, the Danish Government for
its part had never taken exception to these Norwegian activities and, in
these circumstances, it is easy to understand that these activities
should not at once have occurred to the minds of members of the
Norwegian Government ; this also explains how it was that the
fundamental interests of Norwegians, the questions of law here in
issue, the possible extension of the monopoly and of the régime of
exclusion to a region where no Eskimos existed, had not at this time
been examined by the Norwegian Government. Norway had had no
administrative connection with Greenland for more than a century; and
the traditions of this connection were no longer familiar to the
Norwegian administration in 1919.
[402] M. Ihlen gave his verbal answer a week after he had been
approached, whereas the declaration of the United States of America
on August 4th, 1916, was made after lengthy negotiations. The United
States were directly interested in Davis Strait, and there can be no
doubt that there had been intercourse between Americans and the
Eskimos living along the West coast of Greenland.
[403] It is true that the Norwegian Government, in the course of the
proceedings, produced a document dating from 1916 from which it
appears that the Danish administration was then contemplating the
application of the régime of exclusion [p118] to the whole of
Greenland. Nevertheless, the dispute between the two Parties began
some years after M. Ihlen's declaration, and it seems very unlikely that,
prior to M. Ihlen's reply, there was any knowledge in Norway of
documents relating to the administration of Greenland and still less
likely that such documents had been studied.
211
[404] If the Danish Government had approached Norway in writing as
she did the other Powers, the documents would have been submitted
to the competent authorities in Norway and the matter would in all
probability have taken a different turn.
[405] It might be said that M. Ihlen was guilty of negligence on this
occasion; but this criticism applies more strongly to the Danish
Government in the same connection. When it is remembered that the
action of the Danish Government was, at all events in part, the
outcome of Norwegian activity in Eastern Greenland and that the
attention of the Danish Government had been specially drawn, shortly
before, to these Norwegian interests, and again when it is remembered
that the question concerned aspirations and plans conceived by
Denmark, it is reasonable to say that there was more serious
negligence on the part of the Danish Government than on that of the
Norwegian Government, which was unprepared for the Danish
démarche and did not regard its reply as a definitive settlement of the
matter.
[406] It appears that the object of the conversations of July 14th and
22nd, 1919, between M. Ihlen and M. Krag was, so far as Denmark
was concerned, to obtain a final and binding promise; but, in that case,
the form of the Danish démarche leaves much to be desired. The
outcome was a verbal answer given by the Norwegian Minister for
Foreign Affairs, without any discussion between the two Governments
upon the substance of the question and without the question having
been examined in Norway. The responsibility for this fatal omission
rests first and foremost upon Denmark.
[407] M. Ihlen, it is true, when making his declaration of July 22nd, was
speaking on behalf of the Norwegian Government and promised that
Norway would raise no difficulty in the future settlement of this matter.
Such a promise made by the Minister for Foreign Affairs is, in principle,
valid and binding. But in the present case there are special
circumstances. M. Ihlen, when making his declaration, was labouring
under a fundamental and excusable misapprehension. I would refer to
M. Raestad's letter of July 20th, 1921, to the Danish Minister at Oslo :
".... I have now received a communication from Ihlen, whence it
appears - as I thought - that, in his conversation with M. Krag, he did
not give it to be understood that Norway would agree to the new
territory [p119] being placed under the Danish Monopoly." This
misapprehension on the part of M. Ihlen was, in the first place, due to
the fact that the Danish request had been made verbally and was not
accompanied by the information given to the other Powers regarding
the extension of the monopoly and regime of exclusion, which was, as
subsequently explained by Denmark, the real object of the demarche.
This object was explained in a note addressed on December 19th,
1921, by the Danish Minister at Oslo to the Norwegian Ministry for
Foreign Affairs. In that note it is explained that the words used in the
American reply and quoted by M. Krag to M. Ihlen: ".... to the Danish
Government extending their political and economic interests to the
whole of Greenland", contemplated precisely the extension to the
whole of Greenland of the special regulations in question, i.e. the
regulations of the monopoly and régime of exclusion.
[408] A promise given under such conditions has not the same value
as a promise which is not tainted by an error or defect.
[409] M. Ihlen's declaration clearly related to a future settlement of the
matter between the two Governments. Obviously, the Danish
Government, which was well aware of the Norwegian interests on the
East coast of Greenland, realized that the future settlement must
necessarily cover these interests; it would be contrary to common
sense to contend that the Norwegian interests could be put on one
side during the settlement in regard to which the Norwegian Minister
for Foreign Affairs had promised not to place difficulties in the way of
the Danish aspirations. The undertaking thus given was, in the nature
of things, based on the idea of reciprocity. The two Parties were
bound, after the Ihlen-Krag conversations, mutually to refrain from
making difficulties when the time came to effect a settlement between
them.
[410] Norway was honouring M. Ihlen's promise when Denmark
suddenly broke off the negotiations for a mutual settlement.
[411] On May 6th, 1921, the Danish Government obtained a royal
decision by virtue of which it attached all Greenland to the Danish
colonies and factories and to the Danish administration of Greenland.
Even at this date, when the Danish Government had thus decided to
break off all negotiations, the Norwegian Government still preserved its
conciliatory attitude. On May 7th, the Norwegian Minister for Foreign
Affairs, who was entirely ignorant of the Danish decision of May 6th,
suggested to the Danish Minister at Oslo the following arrangement:
the Norwegian Government was to make a declaration corresponding
approximately to that of the American Government and would, at the
same time, in a separate note, point out that [p120] this declaration
was made subject to the reservation that Norway did not abandon the
rights above mentioned (namely, the fishing and hunting rights of
Norwegians). He added that the Norwegian Government would
doubtless favourably consider any method which would lead to a
settlement such as has been indicated above ; he did not attach so
much importance to the question of form.
[412] On May 10th, the Danish Government formally broke off the
negotiations in progress with the Norwegian Government by means of
the following note sent by the Danish Minister at Oslo:
"With regard to the Greenland question, I have received from the
Ministry for Foreign Affairs a telegram, the terms of which I venture to
transmit to you:
'The Ministry for Foreign Affairs does not desire any further démarche
to be made with a view to obtaining from the Norwegian Government a
written declaration, but desires to rest content with the promise already
made verbally on behalf of Norway.'"
[413] The reason for this unexpected action was that the Norwegian
Government, which was fully within its rights, wished to settle the
matter of Norwegian economic interests at the same time as the
question of sovereignty.
[414] By a letter of July 2nd, the Danish Minister at Oslo informed the
Norwegian Minister for Foreign Affairs that the whole of Greenland was
closed.
[415] By this rupture of the Dano-Norwegian negotiations, Denmark
abolished the arrangement made with M. Ihlen, and the promise of the
Norwegian Minister for Foreign Affairs thereby ceased to be binding.
Denmark's failure to fulfil the implicit obligation resulting for her from
the Krag-Ihlen agreement, gave the other Party the right to declare
himself released from his undertaking.
[416] This was what happened.
[417] Eighteen days after the notification of the closing of the whole of
Greenland, M. Ræstad, the Norwegian Minister for Foreign Affairs,
wrote to the Danish Minister in the following terms:
"You will no doubt have to reckon with the fact that the present
Norwegian Government, like its predecessor, in agreement with the
opinion of other responsible circles, is unable to accept an extension of
Danish sovereignty over Greenland involving a corresponding
extension of the monopoly, to the detriment of Norwegian interests."
[418] The Danish Government has argued before the Court that, by
this letter, Norway was not contesting the sovereignty of Denmark over
the whole of Greenland. The accuracy of this allegation cannot be
admitted. The Danish Government, in its overtures to foreign Powers,
had linked the question of [p121] sovereignty and that of the monopoly
so closely together that it is impossible to treat them as separate in this
connection. The Danish Government had spoken of an extension of
sovereignty, while - according to its own statement - it had in mind,
from beginning to end, the extension of the monopoly system. In a
memorandum, dated January 18th, 1921, from the Danish Legation at
Oslo to the Norwegian Minister for Foreign Affairs, a description is
given of the overtures made to the Great Powers; it contains the
following passage: "The Ministry accordingly sent instructions, at the
beginning of last March, to its Ministers in London, Paris, Rome and
Tokyo, to endeavour to obtain official recognition by the Governments
in question of Danish sovereignty over the whole of Greenland urging,
in support of the request, the actual position of Denmark in relation to
212
Greenland; the best method of according this recognition would, in the
opinion of the Danish Government, be for the said Governments to
make declarations corresponding to that already given by the United
States." But during the present proceedings, the Danish Government
has laid considerable stress on the fact that the American reply
contained a definite and specific reference to the system of monopoly,
which Denmark was proposing to continue and to develop. In the
instructions sent to the Danish Ministers abroad, this inseparable
interconnection, this unity in dualism, was brought out by the words: "it
is desirable that the Danish Government should extend its care [for the
Eskimos, by means of the monopoly] by means of its sovereignty over
the whole of Greenland."
[419] The first overture, which was made verbally to the Norwegian
Government in July 1919, only touched on the question of the
recognition of sovereignty; and the second overture, which was made
in writing on January 18th, 1921, was also concerned with the question
of sovereignty, "an extension of Danish sovereignty to the whole of
Greenland". But, as has been already said, a later Danish note of
December 19th, 1921, revealed that what was actually aimed at was
the extension of the monopoly system as well.
[420] M. Ihlen gave his reply without realizing this inseparable inter-
connection, and indeed without being able to suspect its existence.
However, when this connection became clear to M. Ræstad, the latter
stated that Norway could not accept such a request for recognition by
Denmark. The request sought indeed to obtain everything: sovereignty
plus monopoly, monopoly plus sovereignty, "[an extension of its] care
by means of its sovereignty", That was indeed the object which the
Danish request had throughout had in view, and it was this request that
Norway refused to accede to. M. Ræstad's [p122] no was a rejection of
the request for recognition of Danish sovereignty, in the form in which it
appeared when all its aspects had been fully revealed. M. Ræstad's
letter of July 20th, 1921, contains, for that reason, a refusal to
recognize this sovereignty over the whole of Greenland, the
recognition of which Denmark had endeavoured by her overtures to
obtain.
[421] In this connection, some importance attaches to the fact that in
both the overtures made to the Norwegian Government in 1919 and
1921 - and not least in the latter of these overtures—the Danish
Government had shown that it did not regard itself as possessing
sovereignty over the whole of Greenland. The conviction thus
implanted in the mind of the Norwegian Government led to certain
consequences.
[422] When one considers in succession the incomplete form of the
request made to M. Ihlen, the light which was subsequently thrown on
the plan for the extension of the monopoly and the regime of exclusion,
the not very conciliatory attitude of the Danish Government, when the
Norwegian Government desired to have a settlement of Norwegian
economic interests in conjunction with the recognition of Danish
sovereignty, and lastly, the Danish decision to close Eastern
Greenland on the ground, as was alleged, that Norway had recognized
the extension of Danish sovereignty, one is driven to the conclusion
that it would be contrary to all justice that, after the rupture of the
negotiations by Denmark in 1921, Norway should still be regarded as
bound by M. Ihlen's promise, and obliged to refrain from making
difficulties in a future settlement between the two countries.
[423] It is necessary here to mention another fact which is of some
importance in this connection. By a declaration made to the Danish
Government on September 6th, 1920, the British Government had
reserved its right to be consulted, in case Denmark should contemplate
selling Greenland. This British reservation, which was not rejected by
the Danish Government, was not communicated to the Norwegian
Government, to whom it presented, without doubt, considerable
importance.
[424] Keeping in view the realities of the case, I am thus led to the
conclusion that the Krag-Ihlen arrangement had lost its binding force in
1921.
[425] Since that time, the Norwegian Government has unceasingly
maintained that Denmark only possesses sovereignty over a part of
Greenland, and that Norway has not recognized a Danish sovereignty
extending to the whole country.

[426] Nevertheless, in a note dated July 13th, 1923, the Norwegian

Government declared that it was prepared to enter into [p123] fresh
negotiations on "an entirely free basis". The Norwegian conception
was given very definite expression in the Protocol of Closure of the
Danish-Norwegian negotiations, dated January 28th, 1924. The
Norwegian delegation declared therein that all parts of Greenland,
which were not effectively under Danish administration, were terra
nullius.

[427] Accordingly, the Norwegian Government has consistently

maintained, ever since the breaking off of the negotiations by the
Danish Government in 1921, that it is not bound by the Krag-Ihlen
arrangement.

[428] The reasons which I have set forth above lead me to accept the
submissions presented by the Norwegian Government in regard to
sovereignty, and for these reasons consequently prevent me, to my
regret, from signing the judgment which the Court has delivered. I am,
however, in agreement with the conclusion of the judgment which
deals with the costs of the proceedings.

(Signed) Benjamin Vogt.

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