LOTUS
CASE
France vs. Turkey
A French ship (the S.S. Lotus), collided with a Turkish ship in international
waters, killing some Turkish sailors. The French ship then docked in Turkey.
Turkey attempted to try the French officer in charge of the Lotus for
negligence. They found him guilty and sentenced him to 80 days in jail. France went
to the Permanent Court of International Justice (P.C.I.J.) and argued that Turkey did
not have jurisdiction to try the French officers, because they were on a French boat
in international waters at the time of the accident. Turkey argued that since their
nationals were killed, they had jurisdiction to try those responsible for the deaths.
France argued that as a matter of customary international law, the flag of the vessel
(in this case France) has exclusive jurisdiction.
The PCIJ found that Turkey did have the right to try the French sailors. The
PCIJ basically found that since the two ships were involved in the same accident,
that both countries had concurrent jurisdiction over the accident. The PCIJ found
that customary international law gave France jurisdiction, but it didn't give them
exclusive jurisdiction. "Under international law, everything that isn't prohibited is
permitted."
This case led to the Lotus Principle (aka the Lotus Approach), which says that
sovereign states may act in any way they wish so long as they do not contravene an
explicit prohibition.
The Lotus Principle was later overruled by the 1958 High Seas Convention.
Article 11(1) says that only the flag State or the State of which the alleged offender
was a national has jurisdiction over sailors regarding incidents occurring in high
seas.
TRAIL SMELTER ARBITRATION
US vs. Canada
Facts:
The Trail Smelter located in British Columbia since 1906, was owned and operated
by a Canadian corporation. The resultant effect of from the sulfur dioxide from Trail
Smelter resulted in the damage of the state of Washington between 1925 and 1937.
This led to the United States (P) filing a suit against the Canada (D) with an
injunction against further air pollution by Trail Smelter.
Issue:
Is it the responsibility of the State to protect other states against harmful acts by
individuals from within its jurisdiction at all times?
Held:
Yes. It is the responsibility of the State to protect other states against harmful acts
by individuals from within its jurisdiction at all times. No state has the right to use
or permit the use of the territory in a manner as to cause injury by fumes in or to the
territory of another or the properties or persons therein as stipulated under the
United States (P) laws and the principles of international law.
By looking at the facts contained in this case, the arbitration held that Canada
(D) is responsible in international law for the conduct of the Trail Smelter Company.
Hence, the onus lies on the Canadian government (D) to see to it that Trail Smelters
conduct should be in line with the obligations of Canada (D) as it has been
confirmed by International law. The Trail Smelter Company will therefore be
required to prevent causing any damage through fumes as long as the present
conditions of air pollution exist in Washington.
So, in pursuance of the Article III of the convention existing between the two
nations, the indemnity for damages should be determined by both governments.
Finally, a regime or measure of control shall be applied to the operations of
the smelter since it is probable in the opinion of the tribunal that damage may occur
in the future from the operations of the smelter unless they are curtailed.
Blackmer vs. US
Facts:
Blackmer (D), a U.S. (P) citizen who was residing in France, was served subpoenas
to appear in court as a witness in a criminal trial in the U.S. Contempt proceedings
were initiated against Blackmer (D) when he failed to respond to the subpoenas and
he was found guilty and fined. Blackmer (D) appealed on the ground that the federal
statute was unconstitutional.
Issue:
Must there be due process for the exercise of judicial jurisdiction in personam?
Held:
Yes. There must be due process for the exercise of judicial jurisdiction in personam.
The court may adjudge the witness guilty of contempt if the witness fails to comply
with the court order. Congress acted pursuant to its authority in enacting the statute
and it could prescribe a penalty to enforce it.
Chief Justice Hughes, in delivering the opinion of the Court, stated "[n]or can it be
doubted that the United States possesses the power inherent in sovereignty to
require the return to this country of a citizen, resident elsewhere, whenever the
public interest requires it, and to penalize him in case of refusal." Also, "[i]t is also
beyond controversy that one of the duties which the citizen owes to his government
is to support the administration of justice by attending its courts and giving his
testimony whenever he is properly summoned."
NOTTEBOHM CASE
Liechtienstein vs. Guatemala
Facts:
Nottebohm (P), a German by birth, lived in Guatemala (D) for 34 years, retaining his
German citizenship and family and business ties with it. He however applied for
Liechtenstein (P) citizenship a month after the outbreak of World War II.
Nottebohm (P) had no ties with Liechtenstein but intended to remain in Guatemala.
The naturalization application was approved by Liechtenstein. After this approval,
Nottebohm (P) travelled to Liechtenstein and upon his return to Guatemala (D), he
was refused entry because he was deemed to be a German citizen. His Liechtenstein
citizenship was not honored. Liechtenstein (P) thereby filed a suit before the
International Court to compel Guatemala (D) to recognize him as one of its national.
Guatemala (D) challenged the validity of Nottebohms (P) citizenship, the right of
Liechtenstein (P) to bring the action and alleged its belief that Nottebohm (P)
remained a German national.
Issue:
Must nationality be disregarded by other states where it is clear that it was a mere
device since the nationality conferred on a party is normally the concerns of that
nation?
Held:
NO. issues relating to citizenship are solely the concern of the granting nation. This
is the general rule. But it does not mean that other states will automatically accept
the conferring states designation unless it has acted in conformity with the general
aim of forging a genuine bond between it and its national aim. In this case, there was
no relationship between Liechtenstein (P) and Nottebohm (P). The change of
nationality was merely a subterfuge mandated by the war. Under this circumstance,
Guatemala (D) was not forced to recognize it.
MEJOFF vs. DIRECTOR OF PRISONS
Facts:
Boris Mejoff, a Russian, was captured as a Japanese spy by the US Army
Counter Intelligence Corps on March 18, 1948. He was turned over to the Phil
Commonwealth Government for appropriate disposition. His case was decided on
by the Board of Commissioners of Immigration who declared him as an illegal alien.
The Board ordered his immediate deportation. In the meantime, he was placed in
prison awaiting the ship that will take him back home to Russia. Two Russian boats
have been requested to bring him back to Russia but the masters refused as they
had no authority to do so.
Two years passed and Mejoff remained under detention awaiting the ship
that will take him home. This case is a petition for habeas corpus. However, the
respondent held that the Mejoff should stay in temporary detention, as it is a
necessary step in the process of exclusion or expulsion of undesirable aliens. It
further states that is has the right to do so for a reasonable length of time.
Issue:
Whether or not Mejoff should be released from prison awaiting his deportation.
Ruling:
The Supreme Court decided that Mejoff be released from custody but be placed
under reasonable surveillance of the immigration authorities to insure that he keep
peace and be available when the Government is ready to deport him. In the doctrine
of incorporation, the Philippines in its constitution adopts the generally accepted
principles of international law as part of the law of Nations. Also, the Philippines has
joined the United Nations in its Resolution entitled Universal Declaration of Human
Rights in proclaiming that life and liberty and all other fundamental rights shall be
applied to all human beings.
FILARTIGA vs. PENA-IRALA
The suit was brought by an alien residing in the United States against a former
official of Paraguay then visiting the United States. The complaint alleged torture of
the plaintiff's brother leading to his death. The court of appeals ruled that deliberate
torture perpetrated by a person invested with official authority was a violation of
customary law supporting the jurisdiction of the district courts over "a civil action
by an alien for a tort only, committed in violation of the law of nations." The court
further declared that "indeed, for purposes of civil liability, the torturer has become
like the pirate and slave trader before him hostis humani generis, an enemy of all
mankind". The court found that torture perpetrated by a person invested with
official authority violates universally accepted human rights norms, regardless of
the nationality of the parties. Whenever an alleged torturer is found and served with
process by an alien within US territory, 28 U.S.C. 1350 applies and provides federal
jurisdiction.
ATTORNEY GENERAL OF ISRAEL vs. EICHMANN
The Appellant, Adolf Eichmann, was an Austrian by birth who volunteered to work
for the Security Service (SD) in Berlin. He rose through the ranks and eventually
occupied the position of Head of Section (Referant) for Jewish Affairs charged with
all matters related to the implementation of the Final Solution to the Jewish
Question. In this capacity, he oversaw the transport and deportation of Jewish
persons, set up and personally ran an operations center in Hungary in order to
implement the Final Solution there, organized the transfer of money from evacuated
Jews to the State and was responsible for the administration of the camps at Terezin
and Bergen-Belsen.
He was captured by Israeli Security Forces in Argentina and handed over to the
District Court of Jerusalem to stand trial for war crimes, crimes against humanity
and crimes against the Jewish people. He was convicted of all 15 counts and
sentenced to death by the District Court of Jerusalem. His appeal was rejected by the
Supreme Court of Israel and he was executed by hanging a few minutes before
midnight on 31 May 1962.
There is no rule of general customary international law, which prohibits the
enactment of retroactive penal legislation. Furthermore, the argument that to
punish an individual for conduct which was not yet criminal at the time of its
commission would be unethical loses its force in face of the odious crimes
committed by the Appellant. The Appellants contention that the Law of 1950 is
therefore contrary to the principle of non-retroactivity and cannot therefore apply
to the Appellant is rejected.
There is no rule of general customary international law that the principle of
territorial sovereignty prohibits the enactment of a criminal law applicable to extraterritorial crimes committed by a foreign national. The Appellants second ground of
appeal must also be rejected.
These findings are reinforced by positive international law: the crimes for which the
Appellant was convicted were international crimes under international law
entailing individual criminal responsibility at the time that they were committed,
and their universal character is such that each State is vested with the power to try
and punish anyone who assisted in their commission.
Finally, the Appellant contends that his crimes were Acts of the State, the
responsibility for which rests with the State alone and another State has no right to
punish the person who committed the act, save with the consent of the state whose
mission he carried out. This ground of appeal was rejected by the Supreme Court as
there is no basis for applying the doctrine to acts prohibited by international law,
particularly in cases of such heinous international crimes.
US vs. Fawaz Yuniz
US vs Alvarez-Machain
Facts:
Respondent, a citizen and resident of Mexico, was forcibly kidnaped from his
home and flown by private plane to Texas, where he was arrested for his
participation in the kidnaping and murder of a Drug Enforcement Administration
(DEA) agent and the agent's pilot. Mter concluding that DEA agents were
responsible for the abduction, the District Court dismissed the indictment on the
ground that it violated the Extradition Treaty between the United States and Mexico
(Extradition Treaty or Treaty), and ordered respondent's repatriation. The Court of
Appeals affirmed. Based on one of its prior decisions, the court found that, since the
United States had authorized the abduction and since the Mexican Government had
protested the Treaty violation, jurisdiction was improper.
Held:
The fact of respondent's forcible abduction does not prohibit his trial in a
United States court for violations of this country's criminal laws.
(a) A defendant may not be prosecuted in violation of the terms of an extradition
treaty. United States v. Rauscher, 119 U. S. 407. However, when a treaty has not been
invoked, a court may properly exercise jurisdiction even though the defendant's
presence is procured by means of a forcible abduction. Ker v. Illinois, 119 U. S. 436.
Thus, if the Extradition Treaty does not prohibit respondent's abduction, the rule
of Ker applies and jurisdiction was proper.
(b) Neither the Treaty's language nor the history of negotiations and practice under
it supports the proposition that it prohibits abductions outside of its terms. The
Treaty says nothing about either country refraining from forcibly abducting people
from the other's territory or the consequences if abduction occurs. In addition,
although the Mexican Government was made aware of the Ker doctrine as early as
1906, and language to curtail Ker was drafted as early as 1935, the Treaty's current
version contains no such clause.
(c) General principles of international law provide no basis for interpreting the
Treaty to include an implied term prohibiting international abductions. It would go
beyond established precedent and practice to draw such an inference from the
Treaty based on respondent's argument that abductions are so clearly prohibited in
international law that there was no reason to include the prohibition in the Treaty
itself. It was the practice of nations with regard to extradition treaties that formed
the basis for this Court's decision in Rauscher, supra, to imply a term in the
extradition treaty between the United States and England. Respondent's argument,
however, would require a much larger inferential leap with only the most general of
international law principles to support it. While respondent may be correct that his
abduction was "shocking" and in violation of general international law principles,
the decision whether he should be returned to Mexico, as a matter outside the
Treaty, is a matter for the Executive Branch.
SECRETARY OF JUSTICE vs. LANTION
Facts:
On June 18, 1999, the Department of Justice received from the Department of
Foreign Affairs of the United States requesting for the extradition of Mark Jimenez
for various crimes in violation of US laws. In compliance with the related municipal
law, specifically Presidential Decree No. 1069 Prescribing the Procedure for
Extradition of Persons Who Have committed Crimes in a Foreign Country and the
established Extradition Treaty Between the Government of the Philippines and the
Government of the United States of America, the department proceeded with the
designation of a panel of attorneys to conduct a technical evaluation and assessment
as provided for in the presidential decree and the treaty. The respondent requested
for a copy of the official extradition request as well as the documents and papers
submitted therein.
The petitioner denied the request as it alleges that such information is confidential
in nature and that it is premature to provide such document as the process is not a
preliminary investigation but a mere evaluation. Therefore, the constitutional rights
of the accused are not yet available.
Issue:
Whether or not private respondent, Mark B. Jimenez, shall be granted access to the
official extradition request and documents with an opportunity to file a comment on
or opposition thereto
Held:
NO. The extraditee's right to know is momentarily withheld during the
evaluation stage of the extradition process to accommodate the more compelling
interest of the State to prevent escape of potential extraditees which can be
precipitated by premature information of the basis of the request for his
extradition. No less compelling at that stage of the extradition proceedings is the
need to be more deferential to the judgment of a co-equal branch of the government,
the Executive, which has been endowed by our Constitution with greater power
over matters involving our foreign relations. Needless to state, this balance of
interests is not a static but a moving balance which can be adjusted as the
extradition process moves from the administrative stage to the judicial stage and to
the execution stage depending on factors that will come into play. In sum, we rule
that the temporary hold on private respondent's privilege of notice and hearing is
a soft restraint on his right to due process which will not deprive him
of fundamental fairness should he decide to resist the request for his extradition
to the United States. There is no denial of due process as long as fundamental
fairness is assured a party.
REGINA vs. BARTLE
Pinochet (D), the former head of state of Chile, was considered by the House of
Lords (P) to have contravened the provisions of the Torture Convention. This
convention became law on the 8th of December 1988 and Chile, Spain and the
United Kingdom were all parties to it. But Pinochet (D), citing the fact that he was a
former head of state, claimed that he was immune under the principle of
international law.
Issue:
Is the provision of the Torture Convention consistent with the notion of continued
immunity for former head of states?
Held:
Yes. The provision of the Torture Convention is not consistent with the notion of
continued immunity for former head of states. Pinochet (D) was not acting in any
capacity that gives rise to immunity if as alleged; he masterminded and authorized
torture after the 8th of December 1988 because these acts clearly contravene
international law. Hence, the torture proceedings brought against the defendant
should only continue on the allegation that torture in pursuance of a conspiracy to
commit torture was being committed by the defendant after he lost his immunity in
December 1988.
REPUBLIC OF INDONESIA vs. VINZON
FACTS: Petitioner Vinzon entered into a Maintenance Agreement with respondent.
The maintenance agreement includes the following specific equipment: air
conditioning units, generator sets, electrical facilities, water heaters and water
motor pumps. The agreement shall be effective for 4 years.
The new Minister Counselor allegedly found respondent's work and services
unsatisfactory and not in compliance with the standards set in the Agreement. The
respondent terminated the agreement with the respondent. The latter claimed that
it was unlawful and arbitrary. Respondent filed a Motion to Dismiss alleging that the
Republic of Indonesia, as a foreign state, has sovereign immunity from suit and
cannot be sued as party-defendant in the Philippines.
ISSUE: W/N the CA erred in sustaining the trial court's decision that petitioners
have waived their immunity from suit by using as its basis the provision in the
Maintenance Agreement.
HELD: The mere entering into a contract by a foreign state with a private party
cannot be construed as the ultimate test of whether or not it is an act juri imperii or
juri gestionis. Such act is only the start of the inquiry. There is no dispute that the
establishment of a diplomatic mission is an act juri imperii. The state may enter into
contracts with private entities to maintain the premises, furnishings and equipment
of the embassy. The Republic of Indonesia is acting in pursuit of a sovereign activity
when it entered into a contract with the respondent. The maintenance agreement
was entered into by the Republic of Indonesia in the discharge of its governmental
functions. It cannot be deemed to have waived its immunity from suit.
US vs. TEHRAN
Facts:
In November 4, 1974, student militants of the group Muslim Student Followers of
the Imam's Line barged into the US Embassy in Tehran and held US diplomats and
consulars hostage for 444 days. The cause of the Iranian students action against the
US was believed to be the latters grant of medical asylum to Shah Mohammad Reza
Pahlavi and its refusal to turn the Shah over for trial.
The US sought recourse before the international court, asking that the hostages be
freed and that reparations be given to the US by the Iranian government for the
latters failure to carry its international legal obligations. US averred that Iran was
responsible due to its initial inaction to the crisis and its subsequent statement of
support to the seizure.
Issue:
Whether or not Iran was liable to the United States for the seizure of the US embassy
and the hostage-taking of the US nationals by the Iranian militants.
Ruling:
Iran was under obligation to make reparations for the injury caused to the United
States.
Irans failure to take appropriate steps to protect the US embassy and Consulates
was a violation of its obligations under the 1961 Vienna Convention on Diplomatic
Relations, the 1963 Vienna Convention on Consular Relations, and 1955 Treaty of
Amity, Economic Relations and Consular Rights between Iran and the United States.
Iran had the international legal responsibility to keep the embassy inviolable. Iran
was fully aware of its obligations but it did nothing to prevent the take over and the
captivity of the US nationals.
Although the take-over of the embassy was not held to have been an act of the state,
the consequent detention of the US nationals was attributed to Iran because of its
approval and support to said detention, such act was a violation of the provisions in
the aforenamed conventions and treaty. Once organs of the Iranian State had thus
given approval to the acts complained of and decided to perpetuate them as a means
of pressure on the United States, those acts were transformed into acts of the
Iranian State: the militants became agents of that State, which itself became
internationally responsible for their acts.
For its breaches, the Islamic Republic of Iran had incurred responsibility towards
the United States of America. Iran is obliged to make reparations and to endeavor
for the release of the hostages.
CASE
Mighell vs. Sultan of Johore
DOCTRINE
The Sultan of Johore was sued for breach
of promise to marry in a British court.
The subject of the suit therefore was a
private matter, not a state matter. Upon
verification of his being a sitting foreign
sovereign, the case was dismissed. The
immunity that is recognized here is
absolute for a sitting head of state.
Pinochet Case
Pinochet did not enjoy immunity from
prosecution as a former head of state
and could be extradited to Spain.
The Schooner Exchange v. MacFaddon
Chief Justice Marshall noted that the
nation within its own territory is
necessarily exclusive and absolute. It is
susceptible of no limitation not imposed
by itself. However, he immediately
added
that
absolute
territorial
jurisdiction would not seem to
contemplate foreign sovereigns nor their
sovereign rights as its objects. One
sovereign being in no respect amenable
to another; and being bound by
obligations of the highest character not
to degrade the dignity of his nation, by
placing himself or its sovereign rights
within the jurisdiction of another, can be
supposed to enter a foreign territory ... in
the confidence that the immunities
belonging to his independent sovereign
station, though not expressly stipulated,
are reserved by implication, and will be
extended to him.
Dralle v. Republic of Czechoslovakia
It can no longer be said that by
international law so-called acta
gestionis are exempt from municipal
jurisdiction. This subjection of the acta
gestionis to the jurisdiction of States has
its basis in the development of the
commercial activity of States.
United States of America v. Hon. V.M. Ruiz A State may be said to have descended to
the level of an individual and can thus be
deemed to have tacitly given its consent
to be sued only when it enters into
business contracts.
United States v. Hon. Luis Reyes
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.
Holy See v. Eriberto Rosario, Jr.
The logical question is whether the
foreign state is engaged in the activity in
the regular course of business. If the
foreign state is not engaged regularly in
a business or trade, the particular act or
transaction must then be tested by its
nature. If the act is in pursuit of a
sovereign activity, or an incident thereof,
then it is an act jure imperii, especially
when it is not undertaken for gain or
profit.
Underhill v. Hernandez
Every sovereign state is bound to respect
the independence of every other
sovereign state, and the courts of one
country will not sit in judgment on the
acts of the government of another, done
within its own territory. Redress of
grievances by reason of such acts must
be obtained through the means open to
be availed of by sovereign powers as
between themselves.
Banco National de Cuba v. Sabbatino
The act of state doctrine does, however,
have constitutional underpinnings. It
arises out of the basic relationships
between branches of government in a
system of separation of powers. It
concerns the competency of dissimilar
institutions to make and implement
particular kinds of decisions in the area
of international relations. The doctrine
as formulated in past decisions
expresses the strong sense of the Judicial
Branch that its engagement in the task of
passing on the validity of foreign acts of
state may hinder rather than further this
countrys pursuit of goals both for itself
and for the community of nations as a
whole in the international sphere
Alfred Dunhill of London, Inc. v. Cuba
Kirkpatrick Co.
Tectonics Corp
v.
The concept of an act of state should not
be extended to include the repudiation
of a purely commercial obligation owed
by a foreign sovereign or by one of its
commercial instrumentalities.
Environmental The act of state doctrine does not
establish an exception for cases and
controversies that may embarrass
foreign governments, but merely
requires that, in the process of deciding,
the acts of foreign sovereigns taken
within their own jurisdictions shall be
deemed valid. That doctrine has no
application to the present case because
the validity of a foreign sovereign act is
not at issue.
CAIRE CLAIM
On 11 December 1914, M Jean-Baptiste Caire, a French national, was
unlawfully shot and killed at an army barracks in Mexico by two Mexican army
officers, a major and a captain aided by a few privates, after M Caire refused a
demand by one of the officers to pay a sum of money.
In awarding an indemnity in the sum of 20,000 Mexican gold piastres in
favour of M Caires widow, the French-Mexican Claims Commission held that Mexico
was internationally responsible for the conduct of the army officers. In this regard,
Presiding Commissioner Verzijl observed that, under the doctrine of objective
responsibility (state responsibility for the acts of state officials or state organs even
in the absence of fault on the part of the state), a state is internationally
responsible for acts committed by its officials or organs outside their competence if
the officials or organs acted at least to all appearances as competent officials or
organs, or used powers or methods appropriate to their official capacity .
Applying this principle to the facts of the present case, Presiding Commissioner
Verzijl concluded as follows:
The officers in question consistently conducted themselves as officers ;
in this capacity they began by exacting the remittance of certain sums of
money; they continued by having the victim taken to a barracks of the
occupying troops; and it was clearly because of the refusal of M Caire to meet
their repeated demands that they finally shot him. Under these
circumstances, there remains no doubt that, even if they are to be regarded
as having acted outside their competence, which is by no means certain, and
even if their superior officers issued a counter-order, these two officers have
involved the responsibility of the State, in view of the fact that they acted in
their capacity of officers and used the means placed at their disposition by
virtue of that capacity.
CORFU CHANNEL CASE
On 22 October 1946 in the Corfu Strait, two British destroyers struck mines
in Albanian waters and suffered damage, including serious loss of life. On 22 May
1947, the Government of the United Kingdom filed an Application instituting
proceedings against the Government of the People's Republic of Albania seeking a
decision to the effect that the Albanian Government was internationally responsible
for the consequences of the incident and must make reparation or pay
compensation. Albania, for its part, had submitted a counter-claim against the
United Kingdom for having violated Albanian territorial waters. On 9 April 1949, the
Court found that Albania was responsible for the explosions and for the resulting
damage and loss of human life suffered by the United Kingdom. The Court also
found that the later minesweeping by the United Kingdom had violated Albanian
sovereignty. On 19 December 1949, the Court ordered Albania to pay the United
Kingdom a total compensation of 843, 947.
NICARAGUA vs. US
On 9 April 1984, Nicaragua filed an Application instituting proceedings
against the United States of America concerning a dispute relating to responsibility
for military and paramilitary activities in and against Nicaragua. One of the
measures required the United States to immediately cease and refrain from any
action restricting access to Nicaraguan ports, and, in particular, the laying of mines.
On 18 January 1985, the United States announced that it intended not to participate
in any further proceedings relating to this case.
In its Judgment of 27 June 1986, the Court rejected the justification of collective selfdefense advanced by the United States and stated that it had violated the obligations
imposed by customary international law not to intervene in the affairs of another
State. The Court also found that the United States had violated certain obligations
arising from a bilateral Treaty of Friendship, Commerce and Navigation of 1956 and
that it must make reparation for all injury caused.
HOME MISSIONARY SOCIETY CLAIM
The British administration of the protectorate Sierra Leone imposed a hut
tax on the native population. This lead to rioting, during which missionaries were
killed and Society property destroyed. The US brought a claim against Great Britain.
In rejecting the claim, the tribunal appeared to favor the subjective approach,
noting that: It is a well-established principle of international law that no
Government can be held responsible for the act of rebellious bodies of men
committed in violation of its authority, where it is itself guilty of no breach of good
faith, or of no negligence in suppressing insurrection.
SHORT vs. IRAN
Short commenced employment with a United States owned company in Iran
in April 1977. He alleged that following the onset of the Islamic revolution in late
1978 and the subsequent declaration of martial law he was virtually under house
arrest, living with progressively increasing stress caused by vehement threats
against the lives of Americans, shooting in the streets, firebombing of American
homes and automobiles, and other violence propagated by revolutionaries against
Americans. Short was evacuated in haste from Iran by the United States Air Force
in February 1979.
The Claimant relies on acts committed by revolutionaries and seeks to
attribute responsibility for their acts to the government that was established
following the success of the Revolution. He is unable, however, to identify any agent
of the revolutionary movement, the actions of which compelled him to leave Iran.
The acts of supporters of a revolution cannot be attributed to the government
following the success of the revolution just as the acts of supporters of an existing
government are not attributable to the government.
CHORZOW FACTORY CASE
The German Empire had a contract with a company, where the company
undertook to establish for the Reich and forthwith to begin the construction of a
nitrate factory at Chorzow, Upper Silesia. Subsequently, Germany and Poland signed
a convention concerning the Upper Silesia of Geneva.
The Polish Government took possession of the factory and took over its
management. During such undertaking, the German Government contended and the
Polish Government admitted that the delegate of the latter also took possession of
the movable property, patents, licenses, etc.
Germany brought action in behalf of the companies in violation of the Geneva
Convention.
The Permanent Court of International Justice stated: "[R]eparation must, as
far as possible, wipe out all the consequences of the illegal act and reestablish the
situation which would, in all probability, have existed if that act had not been
committed." The Court then ruled that this can be accomplished through restitution
in kind, or if that is not possible, through just compensation, meaning "payment of a
sum corresponding to the value which a restitution in kind would bear," and "the
award, if need be, of damages for loss sustained which would not be recovered by
restitution in kind or payment in place of it," such as lost profits.
