SOME IMPORTANT CASES ON INTERNATIONAL LAW

(1) Albama Claims Arbitration (1872)

Facts: During the American Civil War, certain commerce destroying
vessels were constructed and fitted out in England for the confederate Navy,
the Navy of the party opposing the legally constituted Government. The
United States Government alleged a breach of neutrality on the part of the
British Government, as it had failed to exercise due care to prevent the
construction of the vessels and their dispatch to the Confederates. The United
States Government put forth its claim for damages through the activities of the
vessel in the Civil War. The Albama was one of those vessels. The dispute
was referred to arbitration. The arbitrators decided in favour of the United
States Government.
Significance: (a) This case was a landmark in the history of
international law, as it proved arbitration as a method of development of
international law.
(b) It was held in this case that a breach of obligations by a neutral State will
give rise to reparation in international law.
(2) The Ambrose Light (1885)
Facts : An armed vessel, the Ambrose Light, commissioned by
Colombian insurgents, was seized by the United States Government as a
pirate, because there had been no express recognition of the insurgents as
belligerents. The American Confederal Court held that the seizure was proper.
Significance : According to this case, all unrecognized insurgents, if
they were to operate on the sea, will be considered to be pirates. However, it
may be noted that the British view is different. According to that view,
insurgent vessels cannot be treated as pirates, so long as they abstain from
repeated or willful acts of violence against the lives and properties of British
subjects.
(3)Anglo- Iranian Oil Co. (Jurisdiction 1962)
Facts : On April, 1933, the Iranian Government granted a Concession to
the Anglo – Iranian Oil Co. for a period of 60 years. All differences related to
the Concession were to be submitted to arbitration by the three Arbitrators,

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one each to be appointed by the Company and by the Government and the

Umpire by two Arbitrators jointly. If there was no agreement on this point,

either party could apply to the President of the World Court to make the
appointment. Similarly, if one of the parties failed to make an appointment,
the other party could apply to the President of the World Court to appoint a
Sole Arbitrator. It was further agreed that the performance of the agreement
would be based “on principles of mutual good – will and good faith whilst on
a reasonable interpretation” of the agreement, and the Government of Iran
agreed that the Concession “shall not be annulled and the terms shall not be
altered either by general and special Legislation in the future, or by
administrative measures or any other Acts whatever of the Executive
authority.”
In 1951, the Iranian Government passed a Law nationalizing the oil industry
in Iran. On the failure of the Iranian Government to appoint an Arbitrator, the
Company asked the President of the World Court to appoint a Sole Arbitrator.
The British Government, claiming to exercise its right of diplomatic
protection, submitted an application to the World Court in the light of the
Declaration under the ‘Optional Clause’ of the Courts’ Statute made by both
the parties. Before hearing on the merits, the Court made an order for interim
measures of protection. It was the contention of the Iranian Government that
its declaration under the ‘Optional Clause’ naturally referred to treaties and
conventions with the Anglo – Iranian Oil Company, not being a treaty or a
Convention, the Court had no jurisdiction. The Court found, by a majority
vote, that it had no jurisdiction.
Significance : (1) The Contract signed between the Iranian Government and
the Anglo – Iranian Oil Company, being in nature of a concessionary contract
between a Government and a Foreign Corporation, the United Kingdom was
not a party to the contract. There was no privity of contract between the
Government of Iran and the Government of the United Kingdom.
(2) An implied treaty between the two Governments could not be inferred,
as weighty proof is required of such implied treaty.

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 (3) The International Court of Justice can exercise jurisdiction if there is
voluntary submission to jurisdiction by either party. When an unilateral
reference of a dispute is made to the Court by one party, assent by conduct
can scarcely by inferred where the respondent State consistently denies that
the Court had jurisdiction.

(4) Anglo – Norwegian Fisheries Case (1951)

Facts : A decree of the Norwegian Government was promulgated in
1935, purporting to define its fisheries zone, by reference to base lines drawn
through 48 selected points on the main land. The sea enclosed by these lines
and the adjoining seaward belt of waters to a width of four miles was to
constitute the zone. The result of the decree was to include large stretch of sea,
including coastal inden-tation which normally would have been entitled to
fish.
Great Britain challenged the validity of the decree on the ground that it
was contrary to international law. The dispute was referred to the International
Court of Justice. The International Court of Justice gave its decision in 1951,
holding that the method followed in the decree and the actual lines themselves
did not contravene international law.
Significance : The decision of the International Court of Justice in this
case is considered a landmark in the development of the law regarding
territorial waters. The International Court of Justice held in this case –
(a) That if a littoral State defines its territorial waters by reference to base
lines comprising of points on the main land and the islands and the
rocks, it is not contrary to international law, provided such drawing of
the line is reasonable, just and not arbitrary.
(b) That such base lines need not be drawn parallel to the low water mark
on the coast, so long as the general direction of the shore is followed.
(c) That the waters of bays and gulfs may be deemed part of the territorial
waters, notwithstanding that the distance between the head lands is
greater than ten miles.

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Apart from this principle regarding the base line, the case has other far –
reaching consequences :
(i) The International Court of Justice held, in this case, that the maritime
belt is not so much a limited artificial extension of a State’s territorial
domain, but is a contiguous area wherein, for economic security and
geographical reasons, the Coastal State is entitled to exercise exclusive
sovereign rights. According to this decision, a State might take even its
economic interest into consideration while defining the maritime belt.
(ii) Another contribution of this case is that, by implication, it defined the
seas or the open sea as all parts of the sea which are not –
(a) The territorial sea, or
(b) Internal waters.
(iii) Further, this case shows that the International Court of Justice is free
to develop international law, without being tied by the weight of practice
and authority. But the decision has been criticized by many of the failure
of the International Court of Justice to pay proper regard to the weight of
practice and judicial precedence.
(5) The Case Concerning the Barcelona Traction Light and Power Co.
Ltd. (Second Phase), (1970)
In the case concerning the Barcelona Traction Light and Power Co.
Ltd. (Second Phase), an interesting question arose, as to whether the state is
entitled to espouse the claim of companies and its shareholders. In this case,
the Barcelona Traction Light & Power Co. Ltd. Was incorporated in Canada,
and it was operating in Spain. But a considerable investment in the company
was made by shareholders in Belgium. Certain action taken by the
Government of Spain caused serious loss and damage to the Company. In the
eyes of law, the Company was of Canadian nationality, though the majority of
the shareholders affected were Belgian nationals. The Government of Belgium
espoused the cause of its citizens as shareholders.

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The International Court of Justice came to the following conclusions :
(a) Only the national State of a Company concerned was entitled to
exercise diplomatic proceedings for the purpose of seeking redress of the
wrong done to the Company.
(b) When a wrong is done to the Company, the wrongdoer is not liable to
the shareholders. Therefore, the Spanish State was not liable to the
Belgian shareholders.
(c) As Canada had not espoused the cause, Belgium had no locus standi to
espouse, before the Court of International Justice, the claims of Belgian
nationals who were shareholders in the Company.
(6) Chung Chi Cheung v. R. (1939)
Facts : Chung Chi Cheung, a cabin boy on board a Chinese arme
public ship, shot and killed its Captain, while the vessel was in the Hongkong
territorial waters. He also shot and wounded another officer of the ship. The
ship proceeded to Hongkong, and Chung Chi Cheung was charged with
murder “in the waters of their colony” and duly committed. Both he and the
murdered Captain were British nationals. The Chinese authorities instituted
extradition proceedings on the ground that the offence was committed in a
Chinese public ship. The extradition was refused. The accused was convicted
and sentenced to death. He went in appeal to the Privy Council.
On the particular facts of the case, it was held that the Hongkong Court
had jurisdiction.
Significance : (a) This case held that international law was to be treated
as incorporated into the domestic law, so far as it was not inconsistent with
any rule enacted by statutes or finally declared by the Tribunals.
(b) The Privy Council rejected in this case the “Floating Island” Theory
of a public ship, and it held that the territorial court accords to the ship and its
crew immunity depending, not on an objective theory that the public ship is
part of a foreign territory, but on an implication of an exemption granted by
the local territorial law. The immunity conceded by local law is conditional,
and can, in turn, be waived by the State to which the public ship belongs.

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(c) But at the same time, it held that the public ship enjoys the jurisdictional
immunity, only so far as it is necessary to enable such public vessel to
function efficiently as an organ of the State and for the purposes of the State.
(7) Corfu Channel (Merits) Case (1949)
Facts : The Corfu Channel constitutes a frontier between Albania and
Greece. The British warships passing through the same channel were seriously
damaged by mines in the Albania territorial waters. This damage, done on
22nd October 1946, not only caused damage to the warships, but also resulted
in the death of and injuries to several persons. In Novermber, 1946, the Units
of the British Navy, without the consent of the Government of Albania,
conducted mine sweeping operations in the channel. A dispute arose between
Great Britain and Albania. The matter was taken before the Security Council.
Then the dispute was referred to the International Court of Justice. The
premilinary question arising in the matter is discussed under Case No. 14,
below. Apart from this premilinary question, two questions were raised in this
case :
(1) Was Albania responsible under international law for the damage
caused and loss of human life by explosions in its territorial waters? If
so, was Albania liable to pay compensation to Great Britain?
(2) Had Great Britain violated the sovereignity of Albania, by carrying on
the mine sweeping operations in the territorial waters of Albania?
It was held that Albania was responsible for the damage caused as it was
negligent in not giving warning to ships. It was also negligent, in not trying to
find out and punish those who were responsible for laying the mines.
On the second question, the International Court of Justice held that, by
carrying on the mine sweeping operations in the territorial waters of Albania,
without its consent, the United Kingdom had violated the sovereignty of
Albania, and thereby was guilty of intervention not justifiable in international
law.

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 Significance : The International Court of Justice stated in this case that :
(a) It was a “generally well – recognized principle that every State is under
an obligation not to allow knowingly its territory to be used for acts
contrary to the rights of other States”.
(b) Warships are, in times of peace, entitled to a right of inoffensive
passage through such parts of the territorial sea as form an international
highway, and cannot be prohibited from exercising this right.
(c) The decisive criterion of a strait as a highway was its geographical
situation, as connecting two parts of the open sea and the fact of its use
for international navigation, and not whether there was considerable
volume of traffic passing through it.
(8) The Corfu Channel (Preliminary Objection) Case (1948)
It was held that the Security Council could not subject a Member
State to the compulsory jurisdiction of the International Court of Justice, by
calling upon the parties to adjust their differences by judicial settlement, if
either of the parties to the dispute had not accepted the compulsory
jurisdiction of the Court either under a treaty or under a convention or by a
declaration under Article 36 of the Statute.
(9) The Cristina (Compania Naviera Vascongado v. Cristina
S.S.)(1938)
Facts : During the Spanish Civil War (1936 – 1939), General Franco’s
Army captured from the Republican Government, the Port of Bilbao. The
Cristina was a ship registered at Bilbao. The Republican Government issued a
decree a week later, requisitioning all ships registered at Bilbao. When the
Cristina arrived in a British Port, she was taken charge of by the Spanish
Consul. The original owners of the vessels raised an action by a writ in rem
and claimed possession of the vessel as sole owners. The Spanish Government
entered a conditional appearance and contended that the action be dismissed
as it impleaded a foreign sovereign State.
The House of Lords held, in Appeal, that the contention of the Spanish
Government was good, and that a sovereign State could not be impleaded,
unless it consented. It was also held that as the Spanish Government took

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possession of Cristina under a requisition order, the vessel was brought within
the description of public property of the State. Therefore, it was immune from
the jurisdiction of the English Courts.
Significance : The House of Lords observed in this case that, as a
condition of obtaining immunity, the foreign Government needs only to
produce evidence showing that “its claim is not merely illusory, nor founded
on a title manifestly defective”.
Another problem discussed in this case was whether the State – owned
commercial ships should enjoy immunity. Lord Maugham observed that as
diplomatic representations made to foreign States would render a very
uncertain remedy, the foreign State – owned commercial ships should not
enjoy the immunity. However, it may be noted that the majority held that
immunity would extend to State – owned commercial ships also.
(10) Duff Development Company v. Kelentan Government (1924)
Facts : In 1912, the Government of Kelantan entered into an
agreement with the Duff Development Co. Ltd. and granted it certain rights of
mining, etc. An arbitration clause was added in the agreement. In 1921, a
dispute was referred to arbitration, and an award was made in favour of the
Duff Development Company. An attempt was made to enforce the award
against the Government of Kelantan. The Court of Appeal held, reversing the
judgment of the lower Court, that as the Government of Kelantan was
Sovereign Government, the English Court could not exercise jurisdiction. This
decision was confirmed by the House of Lords. The contention of the plaintiff
company was that Kelantan was not an independent State, as it was in the
position of a Protectorate of Great Britain. The House of Lords held that,
although not completely independent, a protected State may enjoy sufficient
measure of sovereignity to claim jurisdictional immunities in the territory of
another State.
Significance : This case is also illustrative of the practice of the
English Courts that regarding the nature of a Foreign State, the British Courts
seek the opinion of the executive and accept such opinion as the best evidence
of the status of the concerned foreign State.

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This case also lays down that a submission to arbitration proceeding, or even a
subsequent application to set aside these proceedings, does not amount to
waiver or immunity or to a submission to the jurisdiction of the British Courts.
(11) Eastern Greenland Case (1933) (B. U. Apr. 83, 84 & Nov. 82. 83)
Facts: The dispute in this case arose between Denmark and Norway
regarding Denmark’s claim of sovereignity over the whole of Greenland. The
foreign ministers of these two Governments had discussed the matter, and the
foreign minister for Norway had assured that the plans of the Danish
Government respecting Danish sovereignty over the whole of Greenland
would meet with no difficulties on the part of Norway. This assurance was
regarding Norway’s attitude at the Paris Peace Conference of 1919.
The question to be decided by the International Court of Justice was
whether the declaration made by the foreign minister for Norway did not
constitute an engagement, obliging Norway to refrain from occupying any
part of the territory of Greenland. It was held that an oral declaration in the
nature of a promise made by the minister for foreign affairs of one country on
behalf of the country to the minister of foreign affairs of another, and in a
matter within its competence and authority, may be as binding as a formal
written treaty. International Law does not as yet require established forms of
treaties.
Significance : The Court also laid down, in this case, that occupation,
to be effective, requires, on the part of the appropriating State, two elements:
(i) An intention or will to act as sovereign, and
(ii) The adequate exercise or display of sovereignty.
(12) The Franconia Case (R.v.Keyn)(1876)
Facts: The Franconia, a German Steamer, collieded with Strathclyde,
a British steam vessel, on the sea, at a distance of about two miles form Dover
pear – head. Keyn, the Officer – in – Command of the Franconia, it was
alleged, was negligent. On account of the collision, a person in Strathclyde
died. Keyn was indicted for manslaughter and convicted by the lower Court.
A question of law was reserved by the Court of Criminal Appeal. The Court
of the Appeal had to decide whether the English Courts could exercise

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jurisdiction over an offence committed within a distance of three miles from
the English shore. It was held, by a majority, that the English Court had
jurisdiction over such offence.
Significance: (a) It was held in this case that International Law was not
part of English law, unless adopted by legislation.
(b) This case also is interesting for the views of Lord Coleridge regarding the
nature of International Law. His Lordship observed, “Strictly speaking,
International Law is an exact expression and it is apt to mislead if its
inexactness is not kept in mind. Law implies a law giver, a tribunal capable of
enforcing it and coercing its transgressors. But there is no common law giver
to a Sovereign State and no tribunal has the power to bind them by decrees or
coerce them if they transgress.”
(13) The Case of the Freezone’s of Upper Savoy and Gex (1932)
Facts: The matter in dispute, in this case, was whether France had
succeeded to Sardinia in the matter of an obligation to respect a territorial
arrangement between Sardinia and Switzerland. It was held that treaties which
create obligations pertaining to, or for the benefit of, the territory, will pass in
succession.
Significance: (a) The Permanent Court of International Justice pointed
out in this case that the operation of the right of a third State, which is not a
party to the treaty, is not likely to be presumed; much depends on the
circumstances of each case. But, if the parties intended to confer rights on a
State which was not a party, this intention may be decisive.
(b) In this case, the Permanent Court of International Justice adopted
the subjective theory of the doctrine of rebus sic stantibus.
(14) The Case of the Extradition to Haya De La Torre (1951) (Asylum
case)
Facts: Haya De La Torre, a political leader of Peru, had been accused of
have instigated a military rebellion in Peru. He sought refuge in the
Columbian Embassy, which was granted by the Columbian Ambassador. The
Government of Peru refused to issue a safe conduct for the departure of Haya

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De La Torre. The Government of Columbia moved the International Court of
Justice.
The International Court of Justice held that the asylum granted to the
accused by the Columbian Embassy was irregular, as there was no urgency
though if there was urgency, the accused would be entitled to such asylum.
(15) I’m Alone Case (1929) (B.U. Apr. 83)
Facts: The ship “I’m Alone” was a British Schooner of Canadian
Registry. The ship was engaged in the smuggling of alcohol into the United
States. This ship was sunk in 1929 by United States Coast Guard Vessel, at a
point on the high seas more than 200 miles from the United States course. The
Canadian Government claimed damages. The matter was referred to an
arbitration. The award was in favour of Canada.
The argument of the United States was that the ship was in fact
owned by the American nationals, though de jure, the ship was of Canadian
nationality. It was also urged that the damages awarded would ultimately go
to the pockets of American citizens. But these contentions on behalf of the
United States of America, were of no avail. The Canadian Government was
entitled to claim, as injury was caused to a ship of its nationality.
The other significance of the case is that the Arbitral tribunal
awarded two separate heads of damages, the other being in respect of injury to
the claimant State.
It may be noted here that such an award made in the I’m Alone
case is consistent with the views expressed by the International Court of
Justice in its Advisory Opinion on Reparation for Injury suffered in the
Service of the United Nations (1949).
(16) Judgments of the Administrative Tribunal of the International
Labour Organization upon complaints made against the UNESCO
(1956)
The facts of the case are as follows:
Certain employees of the UNESCO were appointed with UNESCO on a fixed
term. Subsequently, the appointments were renewed. Such renewed
appointments were due to expire on 31st December, 1954. These employees
were asked from the representative of their national state for UNESCO to

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furnish certain information, to answer a questionnaire and to appear before the
Loyalty Board of their State Embassy in Paris. All these were executive
orders. The concerned employees informed the Director General of UNESCO
of their decision not to appear before the Board and of the reason of
conscience which caused them to take such decision. Consequently, the
Director General issued an Administrative Memorandum on the subject of non
– renewal of appointments expiring at the end of 1954, while the appointment
of others were renewed, to which the concerned employees complained to the
Administrative Tribunal of the International Labour Organization. The
Tribunal declared its competence to entertain the complaint and gave a
decision on the merits of the complaint.
The Executive Board of the UNESCO sought an advisory opinion of the
International Court of Justice on the competence of the Tribunal and the
validity of its judgment. Under Article 11 of the Statute of the Tribunal,
Advisory opinion of the International Court could be sought complaining
against the judgment of the Tribunal by the following:
(1) A Member State;
(2) The Secretary – General; or
(3) The person in respect of whom a judgment was made (including any
person who has succeeded to that person’s right on his death), and the
statute further provided that the challenge may be made on the
following grounds:
(1) that the Tribunal has “exceeded its jurisdiction or competence”;
(2) that the Tribunal had “failed to exercise jurisdiction vested in it”;
(3) that it has “erred on a question of law relating to the provisions” of the
U.N. Charter; or
(4) that it has committed “a fundamental error in procedure which has
occasioned a failure of justice”.
The Executive Board raised the following issues, and the Court answered
them accordingly:

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 (1) Was the Administrative Tribunal competent under Article 11 of the
Statute to hear the complaints against UNESCO?
Ans. – The Court, after examining the problem in detail, gave a positive
answer.
(2) The competence of the Administrative Tribunal to determine the
power of the Director General to renew fixed term appointment was
also challenged.
Ans. – The I.C.J. did not think it necessary to answer this question, as it
accepted the judgment of the Tribunal.
(17) Liandovery Castle (1923-24)
During the First World War, a German killed a defenceless person in
a life – boat, and when he was accused, he pleaded the order of the superiors
as a defence. His plea was rejected on the ground that such an order was
“universally known to be against the law”. It was also held that such order
might be an extenuating circumstance, but it does not absolve a person from
the crime committed by him.
(18) The Lotus Case (1927)
Facts: The French mail steamer, the Lotus, collided on the high seas
with a Turkish ship. It was alleged that the collision was due to the gross
negligence of the Officer of the Watch on board the Lotus. The result was that
the Turkish ship sank, and eight Turkish nationals on board died. The collision
took place on the high seas. Subsequently, the crew members of the Lotus
were taken to Constantinople. The Turkish authorities instituted proceedings
against the Officer of the Watch, basing their claim to jurisdiction on the
ground that the act of negligence on board the Lotus has produced effects on
the Turkish ship, and according to the objective territorial principle, the
Turkish ship, and according to the objective territorial principle, the Turkish
authorities were justified in exercising the jurisdiction. France protested
against this exercise of jurisdiction by the Turkish authorities. The dispute was
referred to the Permanent Court of International Justice. By a majority
decision, the Permanent Court held that the action of the Turkish authorities
was not inconsistent with international law.

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Significance : (a) This case is also an authority on the ‘floating island’ theory
of a ship. The International Court of Justice considered the effect of the
negligence on the Turkish ship to be an effect on an operation of Turkish
authority, and therefore, the objective territorial principle was acceptable.
(b) It was also pointed out in this case that no presumption of
immunity arises from the fact that the person against whom the proceedings
are taken is a foreigner,
(c) However, one of the judges in this case pointed out that an
article of the Turkish Penal Code, whereby jurisdiction was asserted over
foreigners committing offences abroad “ to the prejudice” of a Turkish
subject, was contrary to international law. According to him, the passive
nationality principle of jurisdiction was not to be generally accepted. The
same view is also supported in the Cutting case.
(d) It may be noted that the objective territorial principle of
jurisdiction as laid down in the Lotus case was not generally acceptable to
mariners, and it has been disapproved by the Conference at Brussels in 1962,
which adopted the Convention for the unification of certain rules relating to
Penal jurisdiction in matters of collision and other incidents of navigation.
(e) It may also be noted that the International Law Commission has
disapproved of the rule laid down in the Lotus case.
(f) This case is also significant in that the Permanent Court of
International Justice had recourse to juristic opinion for ascertaining the
existence or non – existence of a customary rule.
(g) This is also significant in view of the fact that the Court refused
to deduce a customary rule where State judicial decisions on the point were
divided.
It must be noted, however, that the principle laid down in the Lotus Case has
not been approved by the International Law Commi-ssion. The Brussels
Convention for the Unification of Certain Rules relating to Penal Jurisdiction
in Matters of Collision and other Incidents of Navigation, now provides for
the exclusive jurisdiction of the flag State in penal or disciplinary proceedings
out of collision cases, subject to penal and disciplinary jurisdiction being
conceded to a non – flag State over an accused person of its nationality.

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 (19) Lather v. Sagor
Facts : In June 1918, the Russian Socialist Federal Soviet Republic
passed a decree nationalizing mechanical saw mills and wood working
establishments belonging to private and limited Companies, and took over the
plaintiffs’ mill and certain manufacturing goods belonging to them in Russia.
The representative of the Russian Commercial Delegation in
London made a contract with the defendants in August 1920, for the sale and
delivery of a quantity of timber, including some of them seized from the
plaintiffs. The plaintiffs sought a declaration that these goods were their
property, an injunction restraining the defendants from selling, and damages
for conversion and detention. The defendants argued that the decree of June
1918 was the Act of a sovereign Government and was valid to deprive the
plaintiffs of the title and convey it to the defendants. In the Court of First
Instance, the following letters from the Foreign Office were admitted:
(1) To the Solicitor of the Russian Commercial representative, that he was
regarded as a foreign representative for certain purposes and should
be exempt from the process of the Court.
(2) To the defendants’ Solicitors, recognizing the claim of the Delegation
to represent in this country a State Government of Russia.
(3) To the plaintiffs’ Solicitors, pointing out that the representative
received privileged treatment for certain limited purposes, but his
Majesty’s Government had never officially recognized the Soviet
Government in any way.
The Court of First Instance gave judgment for the plaintiff, on the basis that
the Russian Government had not been recognized. In the Appellate Court, the
defendants produced further letters from the Foreign Office – one of which
stated that His Majesty’s Government recognized the Soviet Government as
the de facto Government of Russia. The Court of Appeal allowed the appeal.
Significance: (1) Recognition is retroactive to such duty as the
recognizing government might accept.
(2) For the present purpose, there is no difference between a
Government recognized de jure and one recognized de facto.

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 (3) The Court of England will recognize and give effect to the Acts of
a de facto Government in relation to persons and property in the Government
territory, and will disregard and treat as annulled the Acts of a de jure
Government.
(20) Mighell v. Sultan of Johore [(1894) Q.B. 149]
Facts: The Sultan of Johore, whilst staying in Great Britain,
introduced himself by the assumed name of “Alburt Baker”. He did not reveal
that he was a foreign sovereign. He promised to marry the plaintiff. He did not
carry out his promise and the plaintiff sued him for breach of promise of
marriage. It was contented on his behalf that the Court had no jurisdiction, as
he was a sovereign, independent ruler and he had not submitted to the
jurisdiction of the Court. It was contended, on behalf of the plaintiff that since
the Sultan lived as private citizen under a false name, it would amount to
waiver of immunity, and therefore, the English Courts would exercise
jurisdiction over him. The Court of Appeal, as well as the Court of First
Instance, held that jurisdiction could be exercised over the Sultan of the State
of Johore, as living in cognito did not amount to voluntary submission to the
jurisdiction of the English Court.
The significance of this case is that the immunity given to a
foreign sovereign prevents a Court from exercising jurisdiction, unless such
foreign sovereign waives his immunity and voluntarily submits himself to the
jurisdiction of the Court at the date of institution of proceedings. His conduct
or agreement, implied or express, to submit himself to the law of a Country
does not amount to submission.
(21) The Island of Palmas Arbitration (Asked at B.U. Apr. 84)
Facts : The Palmas Island is situated half – way between the Phillipine
Islands and the former Netherland East Indies. In 1906, there was a dispute
between the U.S.A and the Netherlands regarding sovereignty over this Island.
The contention of the American Government was that the Island was ceded to
the U.S. by the treaty of 1808 by Spain. The Dutch Government maintained
that the Island was a part of its territory, and that Spain, from whom the U.S.A
claimed to have acquired sovereignty over the Island, never had any right over
the same. The dispute was referred to the Permanent Court of Arbitration. It

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was held that, though Spain was responsible for the discovery of the Island, it
was not in effective control of the Island. On the other hand, the Netherland’s
East India Company was in possession of the Island and exercised sovereignty
over the same since 1677.
Significance:(a) In his Award, Max Huber, the Arbitrator, described
sovereignty in these terms – “Sovereignty, in the relation between States,
signifies independence. Independence in regard to a portion of the globe is the
right to exercise therein, to the exclusion of any other State, the functions of a
State.”
(b) It was also held in this case that if a State were to occupy a
territory, there must be display of effective control and authority either by the
claiming sovereignty or by a State from which the State claiming sovereignty
can prove that the title has been derived.
(c) It is claimed by some writers that the award in the Island of
Palmas case is an authority to support the doctrine of acquisitive prescription
in International Law.
(22) Paquete Habana (1900)
Facts: The Paquete Habana, a fishing boat, and another fishing boat,
Lola, flying the Spanish flag, and belonging to Spanish subjects, were
captured by a United States warship engaged in the blockade of the North
coast on Cuba. They were brought before the Court for condemnation. The
question that was to be decided was whether, under customary International
Law, fishing boats were exempt form capture. The Supreme Court of the
U.S.A reversing the order of the lower Court, held that they were free from
capture.
Significance: (a) This case is illustrative of the attitude of the
American Courts towards International Law. During the course of the
judgment, Gray. J. made the following remarks:
“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.”

17.
(b) This case is also illustrative of the judicial method in the application of
custom. The Supreme Court, after a detailed investigation of State laws and
practice, treaties, writings of publicists evidencing usage and decisions of
courts, found that they uniformly proved the existence of a valid customary
rule giving immunity to small fishing vessels from belligerent action in times
of war.
(c) This case is also illustrative of the function of State judicial decisions in
clarifying an international nature of custom and law.
In this case, Gray, J. also pointed out that the juristic works have the value of
being, on many occasions, the evidence of International law. He observed:
“Such works are resorted to by judicial tribunals, not for the speculation of
their authors concerning what the law ought to be, but for trustworthy
evidence of what the law really is”.
(23) Parlement Belge (1679)
Facts: The Parlement Belge was a Belgian mail vessel belonging to the
King of Belgium. In addition to mail duties, it was also used for trading
purposes. The vessel collided against a British ship in the Dover Habour.
Proceedings against the Parliament Belge were started to recover damages. It
was held by the Court of Appeal that the British Courts had no jurisdiction
over the Parliament Belge, as it was the property of the King of Belgium.
Significance: This case supports the doctrine of the immunity of State –
owned trading vessels. [A reference may be made to the Cristina case, where
this doctrine was approved by the British Courts.]
(24) Preah Vihear Case (1962)
In the case, concerning the Temple of Preah Vihear (Merits) (Cambodia –
Thailand) I.C.J Reports (1962) 9, the disputed area was the region of a certain
Temple sanctuary (Preah Vihear), and there was a conflict between the
frontier according to a Treaty of 1904, whereby it was to follow a watershed
line, and the frontier according to boundary maps completed in 1907 and
communicated in 1908 to the Siamese (now Thai) Government. As the
Siamese Government, and later the Thai Government, had, by their conduct,
apparently accepted the map frontier line, the Court held that the map line

18.
should be preferred, and that the Temple area was under the Sovereignty of
Cambodia.

(25) Reparation for Injuries Suffered in the Service of the United

Nations, I.C.J. Reports (1942), 174
Facts: In 1948, certain agents and officers of the United Nations
suffered injuries in Palestine, and Count Folke Bernadotte, United Nations
Mediator was assassinated. There arose a question as to whether the United
Nations could claim compensation as against a de jure or de facto
Government, even though such Government was not a Member State of the
organization. In this connection, the following question arose:
(1) As a State could claim damages against injuries caused to its
diplomatic agents, could the United Nations Organization also claim
damages for injuries caused to its agents or servants? This, in turn,
raised the question as to whether the United Nations was a subject of
International Law and whether it enjoyed international personality.
(2) If such agents or servants were nationals of another State, could the
United Nations also claim damages?
This matter was referred for and advisory opinion of the International Court of
Justice. The International Court of Justice gave its advisory opinion in 1949. It
laid down the following principles:
(1) Though the United Nations is not a State and does not have all the
attributes of a State, it has international personality and it is an
international person.
(2) Therefore, if an agent of the United Nations, in the performance of his
duties, suffered the injury in circumstances involving the responsibility
of a Member State, the United Nations has the capacity to bring an
international claim against the responsible de jure or de facto
government, the claim being with a view to obtain the reparation due in
respect of the damage caused to the United Nations; such claim can also
be brought against the State, even though it is not a member of the
United Nations.

19.
 (3) Such a claim could also be in respect of the damage caused to the
victims or to persons entitled through such persons.
(4) Such claim in respect of damage caused to the victim or to persons
entitled through him may be claimed, whether the responsible State is a
Member State or not.
(5) These claims, being based upon a breach of obligations due to the
United Nations, there will not be a conflict between the action of the
United Nations and such rights as the individual national State may
possess. The claims can be reconciled as there is no conflict. The claims
of the individual national State and the United Nations Organization are
based on different grounds. However, there may be need for
reconciliating these claims on the basis of agreements to be made
between the organizations and individual States, either generally or in
each case.
(26) The Schooner Exchange v. McFaddon (1812)
Facts: The Schooner Exchange, which was at Philadelphia, was an
armed ship under the control of France. McFaddon and another alleged that
they were the sole owners of the Schooner Exchange which sailed from
Baltimore for a port in Spain on October 27, 1809, that the vessel was seized
under the decrees and orders of Napoleon, and it was disposed of, though no
sentence of condemnation had been passed by a Court of competent
jurisdiction.
The contention of the American Government was that, as there was
peace between the United States and Napoleon, the public vessels of France
could freely enter the ports of the United States and depart there from. Even
though the ship had been captured, it had become vested in His Majesty
Napolean according to the laws of France, and therefore, the American Courts
could not exercise jurisdiction over such a ship. Marshall C.J. of the Supreme
Court of the U.S.A held, “The national ships of war entering the port of a
friendly power open for their reception are to be considered as exempted by
the consent of that Power from its jurisdiction.”
Significance: (a) In this case the immunity of public vessels was based on

20.
 “an implied licence” to enter a port, the licence containing an exemption from
jurisdiction of the State which granted the rights of hospitality.
(b) It was also held in this case that a State which admits to its territory
armed forces of a friendly foreign Power, impliedly undertakes not to exercise
any jurisdiction over the force which would be inconsistent with its continuing
to exist as an efficient force. In brief, it was held that no jurisdiction could be
exercised over members of the visiting force in such a way as to impair the
integrity and efficiency of the force.
(27) South – West Africa Cases
South-West Africa was administered by South Africa under a mandate
agreement with the League of Nations. Supervision of the carrying out of the
mandate was vested in the Council of the League, to which annual reports had
to be submitted by South Africa, in accordance with Article 22 of the
Covenant of the League and Article 6 of the mandate. In the resolution of 18th
April, 1946, the Assembly of the League had recognized that, “on the
termination of the League’s existence, its functions with respect to the
mandated territories will come to an end”; it had noted that U.N. Charter
embodied “principles corresponding to those declared in Article 22 of the
Covenant”; and it had also taken note of the expressed intentions of the
Members of the League now administering territories under the 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 made between the
United Nations and the respective mandatory Powers.”
But there was no express transfer of functions to the United Nations.
South Africa was the only administering power which refused to enter into a
trusteeship agreement with the United Nations to supersede its mandate.
Disputes had arisen with regard to South Africa’s obligations under the
mandate, and those controversies were the subject – matter of a number of
advisory opinions by the International Court. In the first case (Status of South
– West Africa, I.C.J. Reports, (1950), 128), the Court was asked three
questions:
(1) About the continued existence of the mandate;

21.
 (2) About the applicability of Chapter 12 of the Charter dealing with
supervision of trusteeship agreements to mandate; and
(3) About the competence of South Africa acting alone to modify the
status of South – West Africa.
The Court had no difficulty in answering the first and third questions. It had
been obvious to all concerned that the mandates continued to exist, even after
the dissolution of the League. It was envisaged that they should be replaced by
trusteeship agreements, but there was no obligation upon a mandatory state to
enter into such an agreement. On the other hand, the fact that the mandatory
state continued to be bound by the mandate implied that it could not
unilaterally alter the status of the mandated territory.

In its advisory opinion of 1962 (South – West Africa cases, I.C.J., Reports,
(1962), 154), the International Court of Justice reaffirmed that a Mandate
constituted a new international institution, the primary over – riding purpose
of which is to promote the well – being and development of the people of the
territory under the Mandate. It also affirmed that a mandate was a treaty
between the League and the Mandatory State.

In the South – West Africa cases, Second Phase (1966), the International
Court of Justice dealing with the League of Nations, ruled that an individual
member State had, with reference to a mandate, no separate self – contained
right to assert before the Court, over and above the League’s collective
institutional activity.
This opinion appears to be consistent with the opinion expressed in the
Reparation case regarding the international personality of international
organizations. Therefore, the Court held that individual member States of the
League had no legal claim or standing, by themselves, to enforce the terms of
a mandate, this being a matter for organic or institutional action.
Consequently, the Court held that the plaintiffs, Liberia and Ethiopia, had no
legal right or interest in the matter of apartheid in South – West Africa.

22.
ADVISORY OPINION OF THE LEGAL CONSEQUENCES FOR STATE
OF THE CONTINUED PRESENCE OF SOUTH AFRICA, IN NAMIBIA
(SOUTH – WEST AFRICA) (I.C.J. REPORTS (1971), 16):

In its opinion, the Court upheld and reaffirmed its views expressed in its
advisory opinion of 1950. The Court ruled, in addition, that the failure of
South Africa to comply with its obligation to submit to the supervision of the
United Nations Organs made its continued presence in South – West Africa
illegal. The Court also reaffirmed the obligation of non – recognition on the
part of the member States in pursuance of the directives of the Security
Council. The Court was of the opinion that “Member States, in compliance
with the duty of non – recognition imposed by paragraphs 2 and 5 of the
covenant, are under an obligation to abstain from sending diplomatic or
special missions to South Africa, including in their jurisdiction the Territory
of Namibia, to abstain from sending consular agents to Namibia, and to
withdraw any such agents already there”.
(28) Stoeck v. Public Trustee (1921)
Facts: Stoeck was born in Prussia in 1872. In 1895, he went to
Belgium to live there. In 1896, he was deprived of his Prussian nationality.
After that, he did not apply for any nationality, and consequently obtained
none. In 1896, he went over to England and made that country his permanent
home. However, he did not apply for British nationality. During the First
World War, he was interned and deported to Holland. From there he shifted to
Germany. He had certain shares in a limited company of England and the
Public Trustee proposed to attach his property on the ground that he was an
enemy. Stoeck contended that his property could not be attached, as he was
not a German national.
On the basis of the evidence before him, Lord Russell came to the
conclusion that Stoeck had lost his German nationality. Therefore, he was a
Stateless person.

23.
Significance: (a) Russell J. observed in this case – “The question to what
State a person belongs must ultimately be decided by the municipal law of the
State of which he claims to belong or to which it is alleged that he belongs.”
(b) It was also held in this case that a person who seeks to establish loss of
nationality of a particular State must prove that nationality has been lost
for all purposes and with all incidence, and any possibility that a right of
protection or a chance of resumption of nationality still exists will
prevent the onus being discharged. It was also observed, in this case, the
state – lessness is a condition recognized by both municipal law and by
International Law.

24.
 CASE LAWS

1. Anglo Iranian Oil Company Case :

There was a dispute between Britain and Persia regarding the
nationalization of Persia’s oil industry. Anglo Iranian oil company was
affected by such nationalization International Court of Justice held that the
nationalization was invalid.

But the Persian government rejected the international court of justice’s

judgment and questioned the validity of its jurisdiction. The subsequent sitting
of International Court of Justice held that it had no jurisdiction because the
dispute laid within the domestic jurisdiction of the land (Persia).

The heads of jurisdiction of the Court based on consent are as follows:

a. Provisions in the charter.

b. Security council may recommend the members to refer disputes under

pacific settlement of international disputes e.g. Corfu channel case.

2. Adhoc submission of disputes.

3. Reference in international agreements: provision is made authorizing

International Court of Justice to have compulsory jurisdiction for
reference to tribunals. International agreement can also be referred to
International Court of Justice.

4. Optional clause jurisdiction.

25.
 5. Principles of forum Progration once consent is given by the parties
authorizing International Court of Justice it could proceed the case, even
after subsequent refusal by the party e.g. Corfu Channel Case.

6. Interim measures like injunction may be granted at the request of the

parties, even though the court subsequently decides that it has no
jurisdiction in the dispute e.g., Anglo Iranian an oil company.

7. Interpretation of its own judgment at he request of the parties e.g.,

asylum case.

8. Revision of a judgment.

2. Anglo Norwagian Fisheries Case:

In Anglo Norwagian Fisheries Case (1951), the International Court of
Justice observed that absence of substantial uniformity of State practice makes
the custom (namely the existence of ten mile rule for bays) unacceptable.

3. Arantzazu Mendi (1973):

A Spanish ship called the Arantzazu Mendi was captured by the Spanish
insurgent forces under General Franco. However, it was requisitioned by the
Spanish Republican Government for its possession.

The ship which arrived in London was still under detention by Spanish
insurgent leader General Franco, the Spanish Government issued a writ in rem
to get possession of the ship. The Franco insurgents styled as ‘Nationalist
Government of Spain’ contended that the Court could not implead a foreign
Sovereign State when it was not willing to submit to the jurisdiction to the
Court.

26.
 His Majesty’s Court held that the nationalist Government was recognized
as a Government which exercised de facto administrative control over the
larger portion of Spain and hence it was a foreign Sovereign State and
therefore it could not be impleaded as a party. As a result, the detention of the
ship by the Nationalist Government of Spain under Franco was held valid.

4. Asylum Case (Haya Dela Torre Case) (Columbia Vs. Peru):

Voctor Raul Haya Dela Torre was a military rebellion of Peru. He was
granted asylum in the Columbian foreign embassy in Peru.

According to the Pan – American Havana convention on Asylum (1928),

subject to certain conditions, asylum could be granted in a foreign embassy to
a political offender who was a national of the territorial State and on this
basis, the Columbian embassy in Peru gave asylum to the Peru political leader
Haya Dela Torre. Peru could not prove that Haya dela Torre was a common
criminal.

The court observed that asylum to Haya Dela Torre had not been
properly granted as three months had passed after the suppression of the
military rebellion and hence the urgent situation contemplated by the Havana
Convention as a condition for granting asylum did not exist.

However, the Court held that Haya Dela Torre was a political offender
and so even though asylum had been irregularly granted, Colombia was not
bound to surrender Haya Dela Torre to Peru.

5. Bank of Ethiopia Vs. National Bank of Egypt:

In 1936, Italy conquered Abyssinia. The new Italian government was

given de facto recognition. The old Emperor government was the de jure
Government. The International Court of justice held that the New Italian de

27.
 facto government had complete control over Abyssinia and hence would
prevail over the Emperor’s government as he was merely a theoretical head.

6. Chakmas Case – 1996 I SC 742:

The Chakmas originally belonged to a tribal group in Arunachal Pradesh

State in India. They had been inhabitating in the Chittagong Hill Tracts for
centuries. They were mostly Hindus / Buddhists.

The Chittagang Hill Tracts became a part of East Pakistan after

Independence of India in 1947. Since then, the Chakmas and other non –
Muslim tribal groups were facing extensive and severe oppression at the
hands of the various Islamic governments in East Pakistan. So, in 1964, due to
communal violence in Pakistan, nearly 1,00,000 Chakmas sought refuge in
India.

Approximately, 35,000 of these Chakmas were given valid migration

certificates and settled in the Arunachalese districts of Lohit, Changlang, and
Papumpare. These migration certificates indicated legal entry into India and
the willingness of the Government to accept the Chakmas as future citizens,
much like migrants from West Pakistan following Partition of British India.

In more than thirty years since their resettlement, the Chakmas and Hajongs
have built villages, developed the land granted to them, and established strong
ties in the region. They have also become integrated into the social fabric of
the State of Arunachal Pradesh. They have voted in State elections and paid
State taxes on their lands.

Many of these Chakmas and Hajongs, who now number about 65,000
persons, were born in India and know no other home.

It is against this background that their claims for Indian citizenship are to be
considered.

28.
As per Section 5(1)(a) of the amended Indian Citizenship Act of 1986,
“persons of Indian origin who are ordinarily resident in India and have been
resident for five years immediately before making an application for
registration shall be eligible to be registered as citizens of India”.

Also, Sec. 3(1)(a) states that every person born in India, on or after the 26 th
day of January, 1950, but before the commencement of the Citizenship
Amendment Act, 1986, shall be a citizen of India by birth.

So, as per law, the Chakmas and Hajongs are of Indian origin as they have
been residing in Arunachal Pradesh for more than thirty years.

There were allegations of human rights abuses and violations suffered by the
Chakmas and Hajongs at the hands of the State Government of Arunachal
Pradesh and All Arunachal Pradesh Students Union.

In this background, the famous case ‘State of Arunachal Pradesh Vs

Khudiram Chakma’, arose, wherein the Supreme Court ruled in favour of
the State Government in a dispute over land rights between the State and 57
Chakma families, because only citizens were permitted to purchase land in
protected areas under the Foreigners Order of 1948.

As Arunachal Pradesh was declared a protected area under the Government of

India Act, 1935, the Chakma families’ acquisition of lands outside the
Chakma Allotment Areas would be valid only if they were found to be
citizens of India.

Under the Assam Accord, codified at Section 6 – A of the Citizenship Act, the
Chakmas were found to be non citizens as they were not ordinarily resident in
Assam, but rather in Arunachal Pradesh.

29.
However, the Supreme Court affirmed their rights of Chakmas to apply for
citizenship under Section 5(1) a and ordered the State Government to take
steps to facilitate their registration.

Despite the Supreme Court order, the State Government continues to defy the
Supreme Court, the Central Government, and the rule of law and the Chakmas
and Hajongs continue to be denied the citizenship rights and constitutional
protections that they justly deserve.

After more than 30 years of statelessness, the Chakmas and Hajongs of

Arunachal Pradesh remain a people without a country.

7. Chorzew Factory Case, 1928:

In Chorzew Factory Case , 1928 the Principle of res judicata was

extended to International Law.

8. Christina Case:

During Spanish civil war, general Franco’s army captured the port of
Bilbao. This ship Cristina was registered at the port of Bilbao and when the
ship reached a British port, the Spanish consul took charge of the ship on
behalf of the legitimate Spanish republican Government.

The original owner claimed possession of the ship and filed a suit in Great
Britain. The Spanish government raised the plea of immunity from the
jurisdiction of local English Courts and as such the local Courts could not
entertain such cases.

As a result of this decision by the House of Lords, the Spanish republic

government could continue to possess the ship Cristina. This case laid down
the principle that foreign government ships enjoy immunity.

30.
 9. Corfu Channel Case (1949):

The Corfu channel is situated between Albania and Greece. The British
warship were seriously damaged by the submerged mines in the territorial
waters of Albania. Several persons were injured and some died. The British
navy without the permission of the Albanian government cleaned the
explosive mines in the channel. The dispute between Great Britain and
Albania was referred to international court of justice for adjudication.
The important questions that came for adjudication are

1. Whether Albania was responsible to pay compensation to Great Britain

for damage to ship and loss of life of British nationals.
2. Whether Great Britain has violated the territorial sovereignty of Albania
by clearing the explosive mines without the permission of the latter.
The International Court of Justice held that:

1. Albania was liable to pay damages to Great Britain in as much as it was

negligent in not keeping the territorial waters safe for navigation.
2. The Great Britain had violated the sovereignty of Albania by unjustified
intervention, i.e., by cleaning the mines without the permission from the
Albanian government.

10. Cutting Case:

Mr. Cutting, an American citizen published a libel (written defamation)

against a Mexican national in a newspaper published in Texas, U.S.A. When
cutting casually visited Mexico city, he was arrested by Mexican police on the
charge of criminal libel. The U.S. Government protested stating that Mexican
criminal procedure code was defective and did not facilitate real justice. The
offence was committed in Texas and Mexican Court had no jurisdiction.

The Mexican State contended that even if there was denial of justice by

31.
applicability of Mexican criminal procedure code was defective and did not
facilitate real justice. The offence was committed in Texas and Mexican Court
had no jurisdiction. The Mexican state contended that even if there was denial
of justice by applicabilityof Mexican Criminal Procedure Code. Mr cutting
had to exhaust the local remedies available in Mexico state. The International
Court of Justice held that the Mexican Court had no jurisdiction and therefore
ordered for the release of Mr. cutting. In deciding the case, it laid down the
following rules.

1. A foreign state should not interfere on the ground of alleged denial of

justice, until the accused has exhausted all the local remedies available
to him.
2. The accused need not exhaust all the local remedies, if

a. There is no independent judiciary.

b. The injury caused is due to an executive act of the government.
c. The Muncipal Court cannot award damages.
11. Danzig Company Case:

In Danzig Company Case tried by the Permanent Court of International

Justice, the Court held that individuals are also subjects of International law.

So, according to this School of thought, it is the individual who alone

can be the subject of International law and not the State, because it is an
abstract entity and it can at the most only act as an agent of the individuals.

12. Eastern Greenland Case:

Norway declared her independents and sovereignty over the eastern part
of Greenland. However, Denmark also claimed her sovereignty over the said
area. Several allied powers afterwards declared that the whole of Greenland
was part of Denmark only.

32.
 The Permanent Court of International Justice decided that Eastern
Greenland was under the sovereignty of Denmark, because the intention and
will to act as Sovereign and instances of actual exercise of display of such
authority was found with Denmark only.

In this case, the Permanent Court of International Justice laid down the
following two principles:

i. For occupation over a territory, there should be intention to establish

sovereignty over it and
ii. There should also be some actual exercise of such authority.

13. Emperor Haile Selassie Vs. Cable and Wireless Ltd., (1938):

Haile Selassie was the Emperor of Ethiopia living in England in exile.

Ethiopia was defeated by Italy and Italian government took control of
Ethiopia. The Emperor as the head of Ethiopian government filed a suit in
England for certain money due to Ethiopian government from English
company.

At that time, he enjoyed de jure recognition from English Government

and Italian Government in Ethiopia had only de facto recognition. So the
lower Court held that Emperor was entitled to receive the money as the head
of Government of Ethiopia.

In the meantime, the Italian Government in Ethiopia was given de jure

recognition and the de jure recognition given to the Emperor was withdrawn
by England. So the Court of Appeal held that the new Italian government was
entitled to receive the amount.

14. Factor Vs. Laubenbeimer:

Jacob factor who was alleged to have received money fraudulently left

33.
England and was residing in the state of Illinois, U.S.A. By the laws of
Illinois, the offence charged was not an offence in Illinois. It was held by the
Supreme Court that this did not prevent extradition as it was punishable
according to the Criminal Law in general of the U.S.A and the rule of Double
Criminality was satisfied.

15. Freezone’s of Upper Savoy and Gex:

This is lending case in ‘state succession and doctrine of rebus sic

standibus (treaties)’.

Sardina entered in to a treaty with Switzerland for certain territorial

arrangement. France captured Sardina and state succession took place. The
dispute arose as to whether France had to respect the territories arrangement
treaty between Sardina and Switzerland.

The Permanent Court of International Justice held that all treaties which
obligation relating to or for the benefit of the territories will pass on
succession. The contention of France that there was fundamental changes in
the circumstances and therefore the treaty obligation could not be fulfilled was
not accepted. Doing so, the Permanent Court of International Justice applied
the subjective theory of rebus sic standibus.

16. German interests in polish upper Silesia:

The principle of ‘lis pendens (the verdict in a pending case relating to

a defective title of a property is binding on both the parties to the suit) was
applied.

17. Haya Dela Torre Case:

Voctor Raul Haya Dela Torre was a military rebellion of Peru. He was
granted asylum in the Columbian foreign embassy in Peru.

34.
 According to the Pan – American Havana convention on Asylum
(1928), subject to certain conditions, asylum could be granted in a foreign
embassy to a political offender who was a national of the territorial State and
on this basis, the Columbian embassy in Peru gave asylum to the Peru
political leader Haya Dela Torre. Peru could not prove that Haya dela Torre
was a common criminal.

The court observed that asylum to Haya Dela Torre had not been
properly granted as three months had passed after the suppression of the
military rebellion and hence the urgent situation contemplated by the Havana
Convention as a condition for granting asylum did not exist.

However, the Court held that Haya Dela Torre was a political offender
and so even though asylum had been irregularly granted, Colombia was not
bound to surrender Haya Dela Torre to Peru.

18. Iam alone Case:

‘Iam alone’ was the name of a ship belonging to Britain registered in

Canada. The ship was engaged in smuggling of liquor from Canada to U.S.A.
The ship was sunk by U.S. Coastal guards on the high seas.
The Canadian Government claimed damage for the loss of the ship. The
U.S.A argued that the ship was actually owned by only American nationals
though it was registered with Canada and the compensation would finally go
to the American citizens only.

The Arbitral tribunal held that the Canadian Government was entitled to
claim compensation from U.S.A. for the loss of the ship, as the same was
registered with them.

19. King’s Case:

In King’s Case, the Court held that the existence of International law

35.
 was out of expendiency and this was asserted by the following phrase –
‘Nothing was unjust which was expedient’.

20. Leichtenstien Vs. Guatemala:

Mr. Nottebohm , a German national went to a place Liechtenstein and

sought for citizenship by naturalization which was granted in 1939. He
returned to a place ‘Guatemala’ (German Colony) in 1946 and again changed
his nationality.

In 1943, during Second World War, Nottebohm’s properties in

Guatemala were seized and he was arrested and sent to U.S.A.

After his release, Nottebohm went to ‘Leichtenstein’ in 1946. In 1951

‘Leichtenstein’ filed a suit against Guatemala before the International Court of
Justice claiming its right of protection of its citizen (by naturalization) Mr.
Nottebohm and his properties in ‘Guatemala’. The World Court held that
‘Leichtenstien’ was not entitled to claim compensation from ‘Guatemala’. In
deciding the case, it laid down the following rule:

To determine the principles of effective nationality, it should be

ascertained whether the nationality conferred on an individual is real and
effective. In this case, there is no effective nationality in ‘Leichtenstien’.
21. Lotus Case:

In Lotus Case (1927) the Permanent Court of international Justice

emphasized the principles of equality of States.

The French ship ‘Lotus’ collided with a Turkish ship on the high seas.
The Turkish ship sank and some of the Turkish nationals died. The collision
was due to the gross negligence of the watch officer of Lotus Ship.

The Turkish authorities took the crew of the Lotus to Constantinople

36.
and instituted proceedings against the watch officer for gross negligence. It
also claimed jurisdiction on Lotus Ship based on the ‘objective territorial
principle’. The French Government protested against this.

The Permanent Court of International Justice by majority decision held

that the action of the Turkish authority was valid and consistent with the
principles of International Law.

It also held that the damage to Turkish ship by negligence of French ship
officials is deemed as damage to the Turkish State, based on the ‘floating
island theory’. However the above principle was not accepted in later
decisions of International Court of justice.

22. Lubeck Vs. Mecklenburg:

In Lubeck Vs. Mecklenburg, Jurist Schwerin held ‘single act of a State

agency did not create any right of custom in favour of another State which has
benefited from it.’ To be a customary law, it must be regular and repeated.

23. Luthor Vs. Sagor (1921):

Russia nationalized private saw mills in 1918. After nationalization, the

private saw mill owner exported certain plywood to a buyer in U.K. U.S.S.R.
protested the sale as the private saw mill owner had no right to sell and
claimed the goods given to it.
The British lower Court held that the goods could not be given to
U.S.S.R . Government, or purchaser but only to the saw mill owner, as
U.S.S.R. was then not recognized by U.K. The purchaser went on appeal.

In the meantime, U.K. recognized U.S.S.R. and so the higher Court held
that the goods be given to U.S.S.R. on the principle of retrospective effect of
recognition.

37.
 24. Morrocco Case (1962):

In Morrocco Case (1962), the U.S.A. contended that it had consular

jurisdiction and capitulatory rights on the basis of its customary rights. The
Court rejected the contention on the ground that it had no sufficient evidence.

25. North America Drudging Company Case (1926):

It is observed that rules and principles of International law found in the

modern era are only from the practice of Nations and not from the natural law.

The Positivist School could explain the nature of International Law in

more convincing terms than the Naturalist School.

However, the main defect of this school is that it lacks the parameter to
distinguish the moral and immoral nature of State Practice. Further, it has no
proof to show the binding character of International law.

26. Nottebohm Case:

Leichtenstien Vs. Guatemala:

Mr. Nottebohm , a German national went to a place Liechtenstein and

sought for citizenship by naturalization which was granted in 1939. He
returned to a place ‘Guatemala’ (German Colony) in 1946 and again changed
his nationality.

In 1943, during Second World War, Nottebohm’s properties in

Guatemala were seized and he was arrested and sent to U.S.A.

After his release, Nottebohm went to ‘Leichtenstein’ in 1946. In 1951

‘Leichtenstein’ filed a suit against Guatemala before the International Court of

38.
 Justice claiming its right of protection of its citizen (by naturalization) Mr.
Nottebohm and his properties in ‘Guatemala’. The World Court held that
‘Leichtenstien’ was not entitled to claim compensation from ‘Guatemala’. In
deciding the case, it laid down the following rule:

To determine the principles of effective nationality, it should be

ascertained whether the nationality conferred on an individual is real and
effective. In this case, there is no effective nationality in ‘Leichtenstien’.

27. Palmas Arbitration Case (Island of Palmas Arbitration Case):

America and Netherlands disputed the sovereignty over the Island of

Palmas. America pleaded that it had acquired the Island under a treaty of 1898
with Spain.

However, Netherlands replied that the Island was never under the control
and occupation of Spain and so it had no authority to transfer it to America.
When the matter was referred to arbitration Court, it decided in favour of
Netherlands.

The arbitration Court held that for acquiring sovereignty over a particular
territory, effective occupation is a must. There should be occupation and
control and contacts with the local inhabitants. Here the term ‘occupation’
means both exercise of sovereignty and exhibition of actual authority.

The Arbitrator held that Palmas Islands though was discovered by Spain
there was no proof that the Spaniards occupied it and established contacts and
administration in the Island.

Netherlands on the other hand had established contacts and also

exercised sovereignty over the people of the Islands, ever since 1700. So, the
Court or Arbitration held that the Island of Palmas was part of Netherlands
only.

39.
 28. Paquette Habana Case (1900):

In the Paquette Habana Case (1900) Gray J. held International Law is

part of our law and must be asserted and administered by the Court of Justice
of appropriate jurisdiction, as often as questions of right depending upon it are
duly presented for their determination.

In Paquette Habana Case (1900), the Court held that the unarmed coastal
fishing vessels were exempted from seizure by customary practice.

29. Queen Vs. Keyn

In the judgment of Queen Vs. Keyn, the Court observed, ‘Strictly

speaking, International law is an inexact expression and it is apt to mislead, if
its inexactness is not kept in mind.

30. Re Castioni:

Castioni was revolutionist. He killed the Mayor of Swiss city and ran
away to England. The Swiss Government asked for extradition. The
government of England refused extradition on the ground that the offence was
a political crime.

31. Re Meunier:

Meunier was an anarchist (non – believer of government). He killed a

political leader, destroyed some public property and ran away to England. The
British Government ordered extradition to French Government since the
offence was not a political offence.

40.
 32. Re Mubarak Ali Ahmed:

Mubarak Ali Ahmed, a native in Pakistan, was arrested in the Republic

of India and charged with forgery and fraud. He was committed for trial. He
jumped away and ran to Pakistan. When he later came to England, he was
arrested. The Court held that the arrest was valid, as the case was criminal in
nature and not political.

33. Reparations for injuries suffered in the Service of United Nations

Case:

Any member nation / agent which sustained or suffered injuries while

carrying out the services of united nations have the right to claim
compensation through the United Nations Organization from the erring nation.

The International Court of Justice, in its Advisory opinion, have held

that the UN organization is a subject of international law and it has the
capacity to bring an international claim against the State for getting reparation
when an agent of the UN suffers injury in the performance of its duties in
circumstances involving the responsibility of State. It also held UN is a
subject of international law and capable of possessing rights and duties and it
has capacity to maintain its rights by bringing international claims.

34. Right of passage over Indian Territory Case:

Even after independence of India i.e. till 1954, Portugal continued to

possess the right of passage through Indian Territory between Dadra Nagar
Haveli and Daman as under the treaty of 1779 between Indian and Portugal.
When the relations between Portugal and India got strained, the Indian
government suspended the right of passage to Portugal over the Indian
territory.

41.
 Portugal took the matter to International Court of Justice. The Indian
Government contended that suspension became necessary due to special
circumstances that had arisen after its independence.
The International Court of Justice held:

1. The Portugal had no right to send its armed forces through the way
which fell within Indian Territory and such act would amount to
violation of India’s sovereignty.

2. That India did not intentionally violate the treaty of 1779 but had acted
under special circumstances.

a. The treaty of 1779 was a valid treaty and Portugal had the right of
passage through Indian Territory till the date of suspension of the treaty.

b. The right of Portugal was subject to control and regulations by India.

35. Robert E. Brown Case (1923):

It was by Arbitral Tribunal that the successor great Britain was not
liable for the tort committed by the predecessor South African Boer Republic.

36. S.S. Wimbledon Case:

In 1921, Germany refused access to a British Vessel S.S. Wimbledon

in the Suez Canal on the ground that it was carrying military goods to Poland
which was then at war with Russia. The German authorities also contended
that if the passage shall be allowed, it would violate its neutrality.

The Court held that it was the duty of Germany to give passage to S.S.
Wimbledon in accordance with Article 380 of the Treaty of Versailles. It also

42.
held that damages should be paid to the British vessel by Germany for
withholding the passage.
37. Savarkar’s Case

Savarkar was a British Indian subject. He was charged for high treason
by Indian government. He was arrested in England and transported to India in
a British vessel.

When the ship was in a French port, he tried to escape. A French

policeman caught him and handed him over to the ship authorities. The
French Government demanded restitution of Savarkar on the ground that the
police had wrongly handed over Savarkar to ship authorities.

The Court held that French Government could not make any claim, as
there was no law authorizing a country to illegally apprehend a suspected
criminal.

38. Scotia Case:

In this case, ‘Scotia’ a British ship collided with ‘Berkshere’ an

Amercian ship, as a result of which, Berkshere sank under the sea. The
Berkshere did not carry lights a required by the series of regulations adopted
by both the countries. In an action for damages by the U.S.A., the Supreme
Court of U.S.A. held that by a concurrence of State laws, a new customary
law was evolved and that Berkshere was the defaulter as it did not carry lights
and hence could not claim damages.

39. State of Madras Vs. C.G. Menon, AIR 1954 SC 517:

The Supreme Court of India held ‘extradition with foreign States is,
except in exceptional cases, governed by treaties or arrangemens made’.

43.
 40. Teen Bigha Case:

The Supreme Court observed, ‘acceptance of servitude does not

represent any negation of sovereignty. The term ‘servitude’ means nothing
more than accepted restrictions and the grant of servitude does not amount to
cession of territory.

41. Temple of Prah Vihear Case, 1962:

The principle of Estoppel was applied by International Court Justice.

42. Trailsmelter Arbitration Case:

In Trailsmelter Arbitration Case, the international Court of Justice held

that a State is under a duty to prevent its territory from being used as a source
of economic injury to neighbouring territory.

A Canadian Company produced over 300 tons of sulphur, containing

considerable quantities of sulphur dioxide. The fumes of sulphur dioxide,
crossed into the territories of United States of America causing heavy damage
and pollution to the land and other interests in the State of Washington.

The case was referred to the International Joint Commission, which

reported that damage had really occurred and assessed the loss at $3,50,000. It
also held that the Canadian State was responsible in international Law for the
negligent act of Trail Smelter Company.

43. U.S.Vs. Pink:

The U.S. Supreme Court held that an international treaty is a law of the
land under the ‘supremacy clause’ of the U.S.Constitution.

44.
 44. Union of India Vs. Sukumar Sen Gupta:

The Supreme Court observed, ‘acceptance of servitude does not

represent any negation of sovereignty. The term ‘servitude’ means nothing
more than accepted restrictions and the grant of servitude does not amount to
cession of territory.
45. West Rand Central Gold Mining Co. Ltd Vs. King (1905) 2 KB
391:
The West Rand Central Gold Mining Co. Ltd., a registered Company in
England was engaged in digging gold in the gold mines in South Africa.

In 1899, the officers of South African republic seized the gold from
mines. As it was found that the gold mining operation was legal, as per the
South African Law, the seized gold must be either returned or equivalent
money be given to the mine authorities.

In the meanwhile, in the war that broke out between Britain and South
African Republic, in which Britain became victorious, the obligations of the
South African Republic automatically went to the British Government. Since
the British Government refused to return the gold, the mine authorities
claimed through the Court.

The Court held that the conquering State was not liable to fulfill the
private contractual obligations of the conquered State. The Court further
observed that waging war was an Act of State which was beyond the
jurisdiction of the Municipal Court and in the absence of express
understanding, the conquering State had no obligations to fulfill the
obligations of the conquered State.

45.
 46. Wimbledon Case (1923):

The Permanent Court of International Justice held that Article 380 of

the Peace Treaty of Versailles would prevail over the customary International
law relating to neutrality and therefore Germany was bound to keep the ‘Kilet
Canal’ open for navigation all times by all nations.

Since International treaties are made for abolishing or modifying rules

of customary International law, the provisions of treaty will prevail over the
customary International law, as far as the contracting parties are concerned.

However such treaties must be lawful and comply with the peremptory
norms of International law.

47. Youmans Case:

A riot was going on against some American citizens in a Mexico Town.

The Mayor of that town ordered the state officer to prevent the riot. The
officer and the troops instead of preventing the riot fired at the Americans and
killed one of them. The troops had disobeyed. The Court held that Mexico
government was liable for the acts of the troops, thought the troops had
exceeded the authority given to them.

46.