The Chorzow Factory Case (1928,
Germany v Poland)
Principle:
It is a general principle of law as well as International law, that
any breach of agreement creates an obligation to make reparation.
Fact:
There was an agreement between Germany and Poland and that bilateral
treaty was known as the Geneva Upper Silesia convention 1922.
It had been provided in that treaty that on transfer of sovereignty of certain
territories from Germany to Poland after the 1st world war, existing proprietary
right were to be maintained except that the Polish Government was granted a
right of expropriation under certain condition with respects of all property
belonging to German nationals in Upper Silesia.
The present dispute arose when Poland seized to companies there in
breach of its international obligation under the Upper Silesia convention of
1922.
The Germany demanded compensation from the Poland.
Issues:
1 Whether a state can be held responsible for expropriation of alien
property.
2 Whether a state can be made responsible at International Law, for acts
of Government organs or officers
3 Whether it is a basic rule of international law that reparation is to be
made for violations of international law
Decision:
The reparation of wrong may consist in an indemnity
corresponding to the damage which is contrary of
International Law.
Right or interests of an individual the violation of which
rights cause damages are always in a different plain to
rights belonging to a state, which rights may also be
infringed by the same act.
Reasoning:
The action of Poland was not expropriation in its real sense, it was
rather a seizure of property, right and interest which could not be
expropriated even against compensation, save under the special
conditions fixed by Art. 7 of the Upper Silesia convention of 1922. in
doing so, therefore, Poland acted contrary to its obligations.
It is general principle of international law and even a general concept of
law that a breach of an agreement involves a duty to make reparation.
Reparation is the expendable complement of a failure to apply a
convention and there is no necessity for this to be stated in the
convention itself.
This case is one of an unlawful expropriation and in such cases
expropriating sates must in addition to paying the compensation due in
respect of lawful expropriation, pay also damages for any loss continued
by the injured party.
CASE CONCERNING
THE NORTHERN CAMEROONS
Judgment of 2 December 1963
Proceedings in the case concerning the Northern Cameroons,
between the Federal Republic of Cameroon and the United
Kingdom of Great Britain and Northern Ireland,
were instituted by an Application of 30 May 1961
In which the Government of the Republic of Cameroon asked the
Court to declare that, in the application of the Trusteeship Agreement
for the Territory of the Cameroons under British Administration, the
United Kingdom failed, with regard to the Northern Cameroons, to
respect certain obligations flowing from that Agreement.
The Government of the United Kingdom raised preliminary objections.
By 10 votes to 5 the Court found that it could not adjudicate upon
the merits of the claim of the Republic of Cameroon.
FACTS
In its Judgment, the Court recalled that the Cameroons had formed
part of the possessions to which Germany renounced her rights
under the Treaty of Versailles and which had been placed under the
Mandates System of the League of Nations.
It had been divided into two Mandates, the one administered by
France and the other by the United Kingdom.
The latter divided its territory into the Northern Cameroons, which
was administered as part of Nigeria, and the Southern
Cameroons, which was administered as a separate province of
Nigeria.
After the creation of the United Nations, the mandated territories
of the Cameroons were placed under the international trusteeship
system by trusteeship agreements approved by the General
Assembly on 13 December 1946.
The territory under French administration attained
independence as the Republic of Cameroon on I January 1960
and became a Member of the United Nations on 20 September
1960.
In the case of the territory under United Kingdom
administration, the United Nations General Assembly
recommended that the Administering Authority organise plebiscites
in order to ascertain the wishes of the inhabitants.
Pursuant to these plebiscites the Southern Cameroons joined the
Republic of Cameroon on 1 October 1961 and the Northern
Cameroons on 1 June 1961 joined the Federation of Nigeria,
which had itself become independent on 1 October 1960.
On 21 April 1961 the General Assembly endorsed the results of
the plebiscites and decided that the Trusteeship Agreement
concerning the Cameroons under United Kingdom
administration should be terminated upon the two parts of the
territory joining the Republic of Cameroon and Nigeria
respectively (resolution 1608 (XV)).
The Republic of Cameroon voted against the adoption of this
resolution, after expressing its dissatisfaction with the manner in
which the United Kingdom had administered the Northern
Cameroons and had organised the plebiscites, maintaining that the
political development of the territory and the normal course of the
consultation with the people had been altered thereby.
These criticisms, together with others, were developed in a White
Book which was rebutted by the representatives of the United
Kingdom and of Nigeria.
Following the adoption of the resolution the Republic of Cameroon,
on 1 May 1961, addressed a communication to the United Kingdom
in which it referred to a dispute concerning the application of the
Trusteeship Agreement and proposed the conclusion of a
special agreement for the purpose of bringing the dispute
before the Court.
The United Kingdom gave a negative reply on 26 May 1961.
Four days later the Republic of Cameroon submitted an Application
to the Court.
——————————————-
The United Kingdom then raised a number of preliminary
objections.
The first was that there was no dispute between itself and the
Republic of Cameroon, and that if any dispute had at the date of
the Application existed it was between the Republic of Cameroon
and the United Nations.
The Court found in this connection that the opposing views of the
parties as to the interpretation and application of the
Trusteeship Agreement revealed the existence of a dispute, at the
date of the Application, in the sense recognised by the
jurisprudence of the Court.
Another of the United Kingdom's preliminary objections was
based on
Article 32 (2) of the Rules of Court,
which provides that when a case is brought before the Court the
Application must not only indicate the subject of the dispute but
must also as far as possible state the precise nature of the claim
and the grounds on which it is based.
Adopting the view expressed by the Permanent Court of
International Justice, the Court considered that, its jurisdiction being
international, it was not bound to attach to matters of form the same
degree of importance which they might possess in municipal law.
It found that the Applicant had sufficiently complied with
Article 32 (2) of the Rules and that this preliminary objection
was accordingly without substance.
*
**
The Court then said that a factual analysis undertaken in the light of
certain guiding principles might suffice to conduce to the resolution
of the issues to which the Court directed its attention.
As a Member of the United Nations, the Republic of Cameroon had
a right to apply to the Court and by the filing of the Application
the Court had been seised.
But the seising of the Court was one thing, the administration
of justice was another.
Even if the Court, when seised, found that it had jurisdiction, it was
not compelled in every case to exercise that jurisdiction. It
exercised a judicial function which was circumscribed by
inherent limitations. Like the Permanent Court, it could not depart
from the essential rules guiding its activity as a Court.
Resolution 1608 (XV), by which the General Assembly decided
that the Trusteeship Agreement should be terminated with respect
to the Northern Cameroons on 1 June 1961, had had definitive
legal effect.
The Republic of Cameroon did not dispute that the decisions of the
General Assembly would not be reversed or that the Trusteeship
Agreement would not be revived by a Judgment of the Court on the
merits, that the Northern Cameroons would not be joined to the
Republic of Cameroon, that its union with Nigeria would not be
invalidated, or that the United Kingdom would have no right or
authority to take any action with a view to satisfying the underlying
desires of the Republic of Cameroon. The function of the Court was
to state the law, but its judgments must be capable of having some
practical consequences.
DECISION
After 1 June 1961, no Member of the United Nations could any
longer claim any of the rights which might have been originally
granted by the Trusteeship Agreement.
It might be contended that if, during the life of the Trusteeship, the
Trustee was responsible for some act in violation of its terms which
resulted in damage to another Member of the United Nations or to
one of its nationals, a claim for reparation would not be
liquidated by the termination of the Trust, but the Application of
the Republic of Cameroon sought only a finding of a breach of
the law and included no claim for reparation.
Even if it were common ground that the Trusteeship Agreement was
designed to provide a form of judicial protection which any Member
of the United Nations had a right to invoke in the general interest,
the Court could not agree that that judicial protection survived the
termination of the Trusteeship Agreement; in filing its Application on
30 May 1961, the Republic of Cameroon had exercised a
procedural right which appertained to it,
but, after1 June 1961, the Republic of Cameroon would no
longer have had any right to ask the Court to adjudicate at this
stage upon questions affecting the rights of the inhabitants of
the Territory and the general interest in the successful
functioning of the Trusteeship System.
The Republic of Cameroon had contended that all it sought was a
declaratory judgment of the Court, that prior to the termination of
the Trusteeship Agreement the United Kingdom had breached its
provisions. The Court might, in an appropriate case, make a
declaratory judgment but such a judgment must have a continuing
applicability.
In this case there was a dispute about the interpretation and
application of a treaty, but the treaty was no longer in force and
there could be no opportunity for a future act of interpretation or
application in accordance with any judgment the Court might
render.
Whether or not at the moment the Application was filed there was
jurisdiction in the Court to adjudicate upon the dispute, circumstances
that had since arisen rendered any adjudication devoid of purpose.
Under these conditions, for the Court to proceed further in the case
would not, in its opinion, be a proper discharge of its duties.
The answer to the question whether the judicial function was
engaged might, in certain cases, need to wait upon an examination
of the merits. In the present case, however, it was already evident
that it could not be engaged.
For these reasons the Court did not feel called upon to pass
expressly upon the several submissions of the United
Kingdom and found that it could not adjudicate upon the
merits of the claim of the Federal Republic of Cameroon
Mavrommatis Case (Greece v. Britain) (1924)
Mm. Loder (President of the Permanent Court
of International Justice)
FACTS:
Mavrommatis, a Greek national, was in 1914 granted concessions by the
Ottoman authorities for certain public works in what later became the British
mandated territory of Palestine. The concessions were related to
constructions and working of electric tramway systems and supply of light
power and electric power in Jerusalem and Jaffa, as well as irrigation
systems
Mavrommatis tried to claim from the concessions granted via ordinary
channels, but such claims were unheeded.
Britain refused to recognize Mavrommatis’ rights.
Ordinary channels resorted to by Mavrommatis: In long correspondence,
Mavrommatis and his solicitors urged his rights with respect to these
concessions in the British Colonial Office. He also got friends to write
privately to persons in the British Foreign Office upon the subject
The dispute was initially between a private person (Mavrommatis) and a
State (Britain).
Greece took up Mavrommatis’ case because the latter is a Greek subject.
Greece filed a case before the PCIJ, alleging that Great Britain, through the
Palestine Government, had refused to recognize the concession in
Jerusalem and Jaffa, principally by having granted to a Mr. Rutenberg
concessions partially overlapping those enjoyed by Mavrommatis, and
accordingly sought compensation.
Britain imposed its preliminary objection and argued that Greece had no
standing in this case.
Greece argued that it is entitled to protect its subjects such as Mavrommatis
when they have been injured by acts contrary to international law by
another state
ISSUES + RULING:
Was there a dispute?
YES.
A dispute is a disagreement on a point of law or fact, a conflict of legal
views or of interests between two persons
There is a dispute because Greece is asserting its own rights by claiming
from Britain indemnity on the ground that Mavrommatis, one of its
subjects, has been treated by Palestine or British authorities in a manner
incompatible with certain international obligations which they were
bound to observe
Art 26 of the Mandate of Palestine (legal document which formalized the
creation of 2 British protectorates – Palestine, to include a national home for
the Jewish people, and Transjordan; took effect in 1923, following the
ratification of The Treaty of Lausanne) provides that the dispute must be
between the Mandatory and another member of the League of Nations.
Although at first, the dispute was between a private person (Mavrommatis)
and a State (Britain), the Greek government took up the case. The dispute
entered into a new phase; it entered the domain of international law, and
became a dispute between the 2 States.
The dispute could not, in the circumstances of the case, be settled by
negotiation.
For the case to come under PCIJ jurisdiction, it must be that the dispute
cannot be settled by negotiation.
• The Court recognized that the State does not substitute itself for the
subject; it is asserting its own rights and, consequently, factors foreign to
the previous discussions between the individual and the competent
authorities may enter into the diplomatic negotiations. But it recognized
that the character of the dispute may render unnecessary the
renewed discussion on opposing contentions from which the original
dispute arose. It is a matter of consideration in each case.
• The Court said that it isn’t necessary to have lengthy correspondences to
prove that negotiation can no longer be had. In the case, it looked at the
correspondences which evidenced the unwillingness of the British
government to negotiate and meet the claims of Mavrommatis
Island of Palmas Case (United
States v. The Netherlands)
( Principle of PRESCRIPTION )
Perm. Ct. of Arbitration, 2 U.N. Rep. Int’l Arb. Awards 829 (1928).
Brief Fact Summary.
Both the United States (P) laid claim to the ownership
of the Island of Palmas.
While the U.S. (P) maintained that it was part of the Philippines, the
Netherlands (D) claimed it as their own.
Synopsis of Rule of Law.
A title that is inchoate cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty.
Facts.
Both the United States (P) laid claim to the ownership of the Island of
Palmas. While the U.S. (P) maintained that it was part of the Philippines,
the Netherlands (D) claimed it as their own.
The claim of the U.S. (P) was back up with the fact that the islands had
been ceded by Spain by the Treaty of Paris in 1898, and as
successor to the rights of Spain over the Philippines, it based its
claim of title in the first place on discovery.
On the part of the Netherlands (D), they claimed to have possessed
and exercised rights of sovereignty over the island from 1677 or
earlier to the present.
Issue.
Can a title which is inchoate prevail over a definite title found on the
continuous and peaceful display of sovereignty?
Held. (Huber, Arb.). No.
A title that is inchoate cannot prevail over a definite title found on
the continuous and peaceful display of sovereignty.
The peaceful and continuous display of territorial sovereignty is as
good as title.
However, discovery alone without subsequent act cannot suffice to
prove sovereignty over the island.
The territorial sovereignty of the Netherlands (D) was not
contested by anyone from 1700 to 1906.
The title of discovery at best an inchoate title does not therefore
prevail over the Netherlands (D) claims of sovereignty.
