INTL Law Cases
The Lotus Case (1928)
>On 7 September 1927 the case was presented before the Permanent Court of International Justice, the judicial branch of the League of Nations, the predecessor of the United Nations. >The issue at stake was Turkey's jurisdiction to try Monsieur Demons, the French lieutenant on watch duty at the time of the collision. Since the collision occurred on the high seas, France claimed that the state whose flag the vessel flew had exclusive jurisdiction over the matter. France proffered case law, through which it attempted to show at least state practice in support of its position. However, those cases involved ships that both flew the flag of the same state. The Court, therefore, by a bare majority, rejected France's position stating that there was no rule to that effect in international law. >The Lotus principle or Lotus approach, usually considered a foundation of international law, says that sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition.
The Asylum Case (1950)
>The Colombian Ambassador in Lima, Peru allowed Víctor Raúl Haya de la Torre, head of the American People's Revolutionary Alliance sanctuary after his faction lost a one-day civil war in Peru on 3 October 1949. The Colombian government granted him asylum, but the Peruvian government refused to grant him safe passage out of Peru. >Colombia maintained that according to the Conventions in force - the Bolivian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum, the Montevideo Convention of 1933 on Political Asylum - and according to American International Law, they were entitled to decide if asylum should be granted and their unilateral decision on this was binding on Peru. >Both submissions of Colombia were rejected by the Court. The relevant treaties cited by Colombia were not ratified by Peru, and it was not found that the custom of Asylum was uniformly or continuously executed sufficiently to demonstrate that the custom was of a generally applicable character.
The Corfu Channel Case (1949)
>The Corfu Channel case (French: Affaire du Détroit de Corfou) was the first public international law case heard before the International Court of Justice (ICJ) between 1947 and 1949, concerning state responsibility for damages at sea, as well as the doctrine of innocent passage. A contentious case, it was the first of any type heard by the ICJ after its establishment in 1945. >Corfu Channel has had a lasting influence on the practice of international law, especially the law of the sea. The concept of innocent passage used by the Court was ultimately adopted in a number of important law of the sea conventions. The stance taken by the Court on use of force has been of importance in subsequent decisions, such as Nicaragua v. United States. Additionally, the case served to set a number of procedural trends followed in subsequent ICJ proceedings.
The Anglo-Norwegian Fisheries Case (1951)
>The United Kingdom v Norway ICJ 3 also known as the Fisheries Case was the culmination of a dispute, originating in 1933, over how large an area of water surrounding Norway was Norwegian waters (that Norway thus had exclusive fishing rights to) and how much was 'high seas' (that the UK could thus fish). On 18 December 1951, the ICJ decided that Norway's claims to the waters were consistent with international laws concerning the ownership of local sea-space. >The Court found that neither the method employed for the delimitation by the Decree, nor the lines themselves fixed by the said Decree, are contrary to international law; the first finding being adopted by ten votes to two, and the second by eight votes to four. Three Judges — MM. Alvarez, Hackworth and Hsu Mo appended to the Judgment a declaration or an individual opinion stating the particular reasons for which they reached their conclusions; two other Judges—Sir Arnold McNair and Mr. J. E. Read—appended to the Judgment statements of their dissenting Opinions.
Article 38 of the ICJ
>international convention, whether general or particular or particular, establishing rules expressly recognized by the contesting states; >international custom, as evidence of a general practice accepted as law; >subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of law • Treaties, custom and general principles are given clear prominence in Article 38 ICJ Statute • The remaining sources (judicial law, legal authors) are of a secondary or subsidiary nature - Their function is to serve as evidence of what is (or what is not) a rule of international law • There are other secondary sources apart from the two cited by the ICJ Statute - Equity, Humanity, and Other Values - UN Resolutions - Standards, guidelines, and recommendations from other international organizations (> Soft Law)
The Chorzow Factory Case (1927)
>was a case heard before the Permanent Court of International Justice in 1927. It was an early authority in international law that established a number of precedents in International Law >In the Upper Silesia plebiscite a majority of 31,864 voters voted to remain in Germany while 10,764 votes were given for Poland. Following three Silesian uprisings, the eastern part of Silesia, including Chorzow and Królewska Huta, was separated from Germany and awarded to Poland in 1922. Migrations of people followed. Because of its strategic value, the case of the nitrogen factory Oberschlesische Stickstoffwerke was argued for years before the Permanent Court of International Justice, finally setting some new legal precedences on what is "just" in international relations. >The Court held that -A State is held responsible for expropriation of alien property -At International Law, a nation is responsible for acts of Government organs or officers. -It is a general principle of international law that reparation is to be made for violations of international law.
The Schooner Exchange Case (1812)
An important case in this transition was the U.S. Supreme Court's 1812 decision in The Schooner EXCHANGE v. McFaddon.1 This case involved a ship originally owned by U.S. citizens. During the Napoleonic wars, France had seized the vessel on the high seas, condemned it as "prize" in its own courts, and rechristened it as a warship, The BALAOU. Owing to a storm, the ship had to put into the port of Philadelphia for repairs. The original U.S. owners, shocked—and undoubtedly delighted—to see it at the dock, instituted a judicial action to recover their property on the grounds that France's confiscation of the ship had violated the law of nations. Unfortunately for the owners, in 1812, France and the United States were allies against Great Britain. The U.S. government entered the proceeding on France's behalf to assert that the vessel was immune from attachment and adjudication by U.S. courts. The Supreme Court, in an opinion written by Chief Justice John Marshall, ruled that the French ship was protected by absolute immunity, and the case should be dismissed. Key to the Court's decision was its characterization of The BALAOU as the "public armed ship" of a friendly foreign power. Marshall cited some earlier publicists writing on this subject, but the real basis of his decision was judicial caution: "that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, [and] that the questions to which such wrongs give birth are rather questions of policy than of law, [and] are for diplomatic, rather than legal discussion." Despite these pronouncements, the absolute foreign sovereign immunity that The Schooner EXCHANGE has subsequently been cited as supporting, may not have been so "absolute" after all. Marshall took pains to emphasize that immunity is the exception, not the rule, and that "[t]he jurisdiction of a nation within its own territory is necessarily exclusive and absolute." Nevertheless, the United States would recognize its ally France's claim to immunity for its ship as a matter of comity. In dicta, Marshall observed that if the case had concerned "the private property of the person who happens to be a prince," U.S. courts might have asserted jurisdiction. In other words, if the case had involved a consignment of Virginia hams bound for the Emperor Napoleon's private dining table, the outcome might have been different. Marshall thus gestured towards a legally relevant distinction between State activities jure imperii (in the exercise of public power) and jure gestionis (private or commercial in nature, even when performed by a State or government official). Bederman, David. International Law Frameworks (Concepts and Insights) (pp. 310-311). West Academic. Kindle Edition.
The Letelier Case (1976)
Assassination: Killed by a car bomb planted by the Chileans "secret" service, the DINA. Orlando Letelier was an opponent of Augusto, and he was living n exile in the US. The US declassified intelligence documents proved the Augusto Pinochet order the killing. Letelier was an appointed ambassador. Due to other assassinations happening at the time, the incident was believe to have been part of Chilean exiles, although this was the first on American soil. Orlando himself said that he thought we was being targeted by Augusto because he refused to cooperate in a coverup in a murder. He later pleaded guilty to being an accessory in the order .But because he cooperated the authorities dropped the charges.
The Tinoco Concessions
General Tinoco had come to power in Costa Rica via a coup and stayed in office for two years until he, in turn, was ousted. The leading powers, including Britain and the United States, refused to recognize Tinoco's government, and yet, during his rule, he gave valuable concessions to a number of British subjects. When Tinoco was deposed, the new government abrogated all of these contracts and concessions. The British government protested on behalf of its citizens and brought an international claim. The sole arbitrator, William Howard Taft (then also serving as Chief Justice of the United States), ruled that even though Britain had declined to recognize Tinoco's government, Tinoco was the de facto ruler of the country and his acts were presumptively valid. If Costa Rica later wanted to cancel the contracts, it would have to pay damages. On the surface, this seems patently unfair. Britain got the political advantage of not recognizing Tinoco, but it could still later claim to protect its nationals' rights to contracts they made with his government. Arbitrator Taft's emphasis on the Tinoco government's de facto status was decisive. If Tinoco was actually in charge, his government's acts should be presumptively valid. A State will thus be held to a predecessor government's acts, unless the regime was actually a "puppet" of a foreign occupier (such as Yugoslavia's Nazi-supported government during World War Two, whose conduct was deemed not to bind Yugoslavia). Likewise, States may be held responsible for the acts of insurgents or rebels who hold a sufficient 91 amount of power under applicable principles of State responsibility (explored in Chapter 9). Simply put, regime change does not alter the international legal personality of States. If it did, imagine the international chaos and uncertainty that would ensue each time a new leader came into office! Most of the consequences of non-recognition of governments operate on the level of domestic law, not international law. In the United States, for example, if the President does not recognize a foreign government, there are two broad repercussions: (1) the access of that government to U.S. courts is limited, and (2) the validity of its acts may be questioned. Access to U.S. courts for non-recognized governments can be affected in two different ways. The first is that an unrecognized regime cannot sue as a plaintiff. The second is that an unrecognized government, if sued as a defendant, cannot assert a defense of foreign sovereign immunity from the jurisdiction of U.S. courts (see Chapter 21(A)). If this seems unfair—that an unrecognized foreign government is barred from suing as a plaintiff, but can be sued as a defendant—a host of caveats and exceptions have softened these effects. The first and foremost exception to the harsh rule is that the President (acting through the Executive Branch) must act affirmatively to bar a government it does not recognize from suing in a U.S. court. The Executive's silence in these situations is sometimes construed as a tacit form of recognition. Just as often, the U.S. government will expressly allow an unrecognized foreign government to sue private parties in U.S. courts. For example, even though the United States has not recognized the revolutionary government in power in Iran since 1979, it has still permitted the Iranian government to file suits in U.S. courts. The bar against unrecognized governments as plaintiffs has also been evaded by substituting other parties as plaintiffs, or by assigning claims.
The Barcelona Traction Decision (1970)
Barcelona Traction, Light, and Power Company, Ltd was a corporation incorporated in Canada, with Toronto headquarters, that made and supplied electricity in Spain. It had issued bonds to non-Spanish investors, but during the Spanish Civil War (1936-9) the Spanish government refused to allow BTLP to transfer currency to pay bondholders the interest they were due. In 1948 a group of bondholders sued in Spain to declare that BTLP had defaulted on the ground it had failed to pay the interest. The Spanish court allowed their claim. The business was sold, the surplus distributed to the bondholders, and a small amount was paid to shareholders. The shareholders in Canada succeeded in persuading Canada and other states to complain that Spain had denied justice and violated a series of treaty obligations. However, Canada eventually accepted that Spain had the right to prevent BTLP from transferring currency and declaring BTLP bankrupt. Of the shares, 88 per cent were owned by Belgians, and the Belgian government complained, insisting the Spanish government had not acted properly. They made an initial claim at the International Court of Justice in 1958, but later withdrew it to allow negotiations. Subsequent negotiations broke down, and a new claim was filed in 1962. Spain contended that Belgium had no standing because BTLP was a Canadian company The International Court of Justice held that Belgium had no legal interest in the matter to justify it bringing a claim. Although Belgian shareholders suffered if a wrong was done to the company, it was only the company's rights that could have been infringed by Spain's actions. It would only be if direct shareholder rights (such as to dividends) were affected, that the state of the shareholders would have an independent right of action. It was a general rule of international law that when an unlawful act was committed against a company, only the state of incorporation of the company could sue, and because Canada had chosen not to, this was the end. The idea of a "diplomatic protection" of shareholders was unsound because it would create confusion and insecurity in economic relations as shares are 'widely scattered and frequently change hands'. The court also said that a state is bound to give the same legal protection to foreign investments and nationals, either for natural or legal persons, when it admits them to its territory.
The Antelope Case
In the case in which the US Supreme Court considered for the first time the legitimacy of the "international slave trade and determined that possession on board of a vessel was evidence of property". The importation of slaves into the US was illegal as of 1808, but did not specify any penalties for doing so. The US calculated that the privateer had taken 93 africans on the Antelope, but 120 surveys found on the Antelope were sent to Liberia in 1827. The people from the Antelope were settled in a new colony, called New Georgia <https://en.wikipedia.org/wiki/New_Georgia,_Liberia> after their home of the prior seven years. Approximately 30 slaves were ruled to be the property of the Spanish claimants and went to slavery in Florida.
Banco Nacional de Cuba v. Sabbatino (1964)
In July 1960, the Cuban government retaliated against the United States for various measures imposed against the Castro government by expropriating property held by U.S. citizens in Cuba. This included the seizure of sugar owned by a company called C.A.V.. A different American company, Farr, Whitlock & Co. had contracted to buy this sugar from C.A.V., but after it was seized, they bought it directly from the Cuban government. After receiving the sugar, however, Farr, Whitlock & Co. did not pay the Cuban government; instead, they paid C.A.V.'s legal representative, Sabbatino. The plaintiff, the National Bank of Cuba (acting on behalf of the Cuban government) filed a lawsuit in the United States District Court for the Southern District of New York against the defendant, Sabbatino, to recover the money paid for the sugar. The District Court and the Court of Appeals ruled in favor of the defendant, and the case was appealed to the Supreme Court. The issue taken by the Supreme Court was whether to apply the Act of State doctrine, which would uphold the legality of the expropriation because it was an official act of another country, not subject to question in US courts. The defendant contended that the doctrine was inapplicable for three reasons: Because the act in question was a violation of international law; Because the doctrine should not be applied unless the Executive branch asks the court to do so; Because Cuba had brought the suit as a plaintiff and had given up its sovereign immunity.
The Lybia-Tunisia Continental Shelf Case (1982)
Equity does not mean equality. International tribunals (a court of justice) aren't suppose to "place" judicial fingers things like social justice. In this case, the two countries were involved in a heated dispute regarding the ownership of offshore oil and gas deposits, and Tunisia was to be given the benefit of the doubt because of some questionable methods set on their continental shelf areas (states have the sovereign right to exploit and explore) what is within . This was rejected by the world court, which ruled that "equity cannot remake nature." In short, equity is a valuable and influential source of international law and its rulings, but it has its limits.
UN mediation between New Zealand + France on the Rainbow Warrior Case
Greenpeace International—dispatched its flagship, the RAINBOW WARRIOR, to observe the tests just outside France's territorial seas. The publicity generated by Greenpeace vastly aggravated the French government, so it adopted a unique course of action to resolve this problem. In 1985, France dispatched a team of secret agents to New Zealand, where the RAINBOW WARRIOR was in port for repairs. The agents proceeded to blow up the ship, killing a Dutch photographer. Apparently having rather low regard for the New Zealand police, the French agents barely bothered to cover their tracks. Two of them were arrested within days of their sabotage. Not surprisingly, the New Zealand government regarded France's action as tantamount to an act of war. The agents were promptly charged with murder and bound-over for trial. The French government reacted initially with denials, but then changed course and expressed outrage at New Zealand's refusal to release the agents. France retaliated by cutting off lamb and butter imports from New Zealand. (For a country where sheep and cattle vastly outnumber people, this was a potent response.) It was at this juncture that the U.N. Secretary-General Perez de Cuéllar offered to mediate the dispute.4 In return for France's apology, withdrawal of economic sanctions, and an indemnity of $7 million (compensation having been paid by France to the photographer's family in a confidential settlement, and damages having been awarded to Greenpeace in a path-breaking arbitral proceeding 62 between Greenland and France5), New Zealand agreed to release the two agents to French custody, provided they serve a three-year sentence on the French Polynesian prison island of Hao.
The Nottebohm Case (1955)
Nottebohn (P), a German by birth, lived in Guatemala (D) for 34 years, retaining his German citizenship and family and business ties with it. He however applied for Liechtenstein (P) citizenship a month after the outbreak of World War II. Nottebohm (P) had no ties with Liechtenstein but intended to remain in Guatemala. The naturalization application was approved by Liechtenstein and impliedly waived its three-year. After this approval, Nottebohm (P) travelled to Liechtenstein and upon his return to Guatemala (D), he was refused entry because he was deemed to be a German citizen. His Liechtenstein citizenship was not honored. Liechtenstein (P) thereby filed a suit before the International Court to compel Guatemala (D) to recognize him as one of its national. Guatemala (D) challenged the validity of Nottebohm's (P) citizenship, the right of Liechtenstein (P) to bring the action and alleged its belief that Nottebohm (P) remained a German national. Issue. Must nationality be disregarded by other states where it is clear that it was a mere device since the nationality conferred on a party is normally the concerns of that nation?
The Nelson Case (1993)
Scott Nelson was recruited in the United States to serve as a hospital safety consultant in Saudi Arabia. He arrived at his posting and began to observe serious safety problems, which he reported to his supervisors. As a result, he was arrested and tortured by Saudi police authorities, and was only released after personal intervention by a U.S. Senator. Upon his return to the United States, Nelson initiated a suit against Saudi Arabia under the FSIA. In a 1993 decision, the Supreme Court ruled that the FSIA provided Saudi Arabia with immunity from suit.12 The majority 315 held that to the extent Nelson's complaint arose from his torture, it was not "based upon" his employment contract. (The Court appeared to assume that if the case had been for amounts owing on the contract, Saudi Arabia would not have enjoyed immunity.) The Court concluded—over a strong dissent—that the relevant activity was not operating the hospital or employing Mr. Nelson, but police-sponsored torture, which could not be characterized as a commercial activity. Putting aside the problematic implication that torture and coercion are never part of foreign business practices, the holding in Nelson set a high threshold for meeting the "based upon" requirement, as confirmed by the Court's reasoning in Sachs. A number of FSIA exceptions give effect to the idea that a foreign sovereign can waive its immunity from jurisdiction in U.S. courts. This kind of waiver can be based on Friendship, Commerce and Navigation (FCN) Treaties or bilateral investment treaties, which are encompassed in § 1604's reference to pre-existing international agreements. More typically, foreign sovereigns or instrumentalities can consent to the jurisdiction of U.S. courts in forum selection clauses found in contracts or arbitration agreements, contemplated in § 1605(a)(1).13 Implied waivers are also possible, but only in very narrow circumstances. If a foreign sovereign enters an appearance in a U.S. proceeding without invoking its immunity, that will be taken as a waiver.
The U.S Foreign Sovereign Immunities Act
The FSIA intends to codify international law and at the same time to convert a political and diplomatic issue, i.e. granting foreign sovereign immunity, into a judicial and legal one The FSIA explains that all those entities and persons are, in principle, immune from the jurisdiction of US courts, unless one of the exceptions to immunity set forth in the law applies - This means that the plaintiff has the burden of showing that the US court has jurisdiction over the matter The comercial activity exception is the most common exclusion of foreign sovereign immunity of the Act • It is not enough to show that a foreign government has engaged in commercial activity: a plaintiff must also show a connection between the activity and the United States > The Sachs case The Nelson case > the S.C. ruled in 1993 that the Saudi Arabian government was immune because torture was a sovereign act and not a commercial act! • A number of FSIA exceptions give scope to the idea that a foreign sovereign can consent by waiver to jurisdiction in US courts - Usually this means express waivers > This is the case in certain treaties (FCN) and, more usually, in some contracts and arbitration agreements - In very few cases, implied waivers will also be accepted > if the defendant government or public entity appears in a US court proceeding or files a counterclaim• The last major FSIA exception is for "non-commercial torts" • The crucial condition of the tort exception is that the incident must occur in the United States - The typical case covered under this exclusion allows a lawsuit when a foreign government employee injure someone in a vehicular accident in the US - This exception also covers the deliberate commission of poli- tical murders in the US -no state has the discretion to com- mit that kind of crimes in the US > the Letelier case (1976) A number of issues remain to be solved under the FSIA • The intervention of the Department of State has not been removed altogether, its views are still provided and respected by the courts • Execution of judgments against foreign governments and their entities has very restrictive rules in the FSIA and thus it can be problematic • Only commercial property of the foreign sovereign or entity that is related to the underlying claim can be executed against > the Letelier case again
The Trial Smelter Case (1941)
The Trail Smelter dispute was a trans-boundary pollution case involving the federal governments of both Canada and the United States, which eventually contributed to establishing the Harm principle in the environmental law of transboundary pollution. The smelter in Trail, British Columbia was historically operated by the Consolidated Mining and Smelting Company (COMINCO) until COMINCO merged with Teck in 2001, and has processed lead and zinc since 1896. Smoke from the smelter caused damage to forests and crops in the surrounding area and also across the Canada-US border in Washington. The smoke from the smelter distressed residents, resulting in complaints to COMINCO and demands for compensation. The dispute between the smelter operators and affected landowners could not be resolved, resulting in the case being sent to an arbitration tribunal. Negotiation and resulting litigation and arbitration was settled in 1941.
UN Mediation between India and Pakistan on Kashmir
The United Nations has played an important role in maintaining peace and order in Jammu and Kashmir soon after the independence of India and Pakistan in 1947, when a dispute erupted between the two States on the question of Jammu and Kashmir. India took this matter to the UN Security Council, which passed resolution 39 (1948) and established the United Nations Commission for India and Pakistan (UNCIP) to investigate the issues and mediate between the two countries. Following the cease-fire of hostilities, it also established the United Nations Military Observer Group for India and Pakistan (UNMOGIP) to monitor the cease-fire line.
Act of State Doctrine
The act-of-state doctrine is a principle in English and United States law which states that every sovereign state is bound to respect the independence of every other sovereign state It is closely linked with sovereign immunities - It is not however a jurisdictional defense to a lawsuit, like foreign sovereign immunity is under the FSIA - It is rather a rule of judicial self-restraint The Act of State Doctrine is applied most often in cases where a foreign sovereign has expropriated the property of a US national located in that foreign territory (e.g. through nationalization) In order to avoid injustice, the doctrine can be waived by the Executive whenever judicial review of foreign acts would not be a problem for the foreign policy of the United States
The Military and Paramilitary Activities Nicaragua Case
The case arose out of the United States' efforts to destabilize and topple the left-leaning Sandinista government in Nicaragua in the early 1980s. The Sandinistas had come to power by overthrowing the U.S.-backed, authoritarian Somoza regime. This was a period of profound political instability in Central America, with many right-wing governments under pressure from leftist insurgents, especially in El Salvador, Guatemala, and Honduras. Although the Reagan Administration made a tepid effort to negotiate with the Sandinistas, relations quickly turned frosty, and the United States began to fund, supply, arm, and train a group of guerrillas—known as the contras—that began to launch raids into Nicaragua from neighboring nations. In addition, the United States imposed a general trade embargo on Nicaragua and went as far as to mine Nicaraguan harbors covertly. In response to these events, Nicaragua initiated a case against the United States in the World Court. In the first stage of the case, the ICJ considered whether it had jurisdiction over the United States. In its 1984 decision, the World Court ruled that it had jurisdiction over Nicaragua's customary international law claims based on the United States' optional clause declaration (as noted in Chapter 5), even though the United States' multilateral treaty reservation meant that the ICJ could not apply Article 2(4) directly.15 In a sharp reaction against this unfavorable decision, the Reagan Administration withdrew its optional clause declaration and refused to participate in any way in the merits phase of the Nicaragua Case. This meant that the United States essentially 243 defaulted on Nicaragua's claims, and the Court was left to decide their veracity without information from U.S. counsel. The Court had also earlier rejected an intervention request by El Salvador, in whose defense (and at whose invitation) the United States claimed to be acting. These procedural events proved to be most unfortunate, since the Court assumed facts that, as it later turned out, were inaccurate. The heart of the dispute decided by the ICJ was the United States' assertion that it was permitted to use force against Nicaragua, whether in the form of support for the contras or direct action, in the exercise of collective self-defense on behalf of El Salvador. El Salvador, the United States argued, had been the victim of an armed attack by Nicaraguan-backed rebels. The ICJ rejected this defense.16 Based on the incomplete record before it, the Court found, as a factual matter, that El Salvador had made no formal request to the United States to engage in collective self-defense against Nicaragua. Without such an appeal, the Court reasoned, the United States could not invoke collective self-defense to justify the use of force under customary international law. In short, and for good reason, international law does not give States the right to foist assistance on an unwilling partner. (The Court also noted that the United States had not reported its actions under Article 51, further suggesting that the U.S. was not genuinely engaged in self-defense.) The ICJ went on to hold that, in any event, Nicaragua's aid to the El Salvador rebels had not risen to the level of an "armed attack" in the first place. The Court determined that the United States had therefore been the first to cross the threshold of engaging in an armed attack, meaning that the United States was actually the aggressor. This rule—similar in structure to the VCLT's provision on material breach and the Air Service Arbitration's principle of counter-measures (noted above)—requires that a State use caution in reacting to a potential international law violation by another State. If the reacting State does not fully appreciate the situation, it might later be found to have committed the first breach.
The Iran-United States Claim Tribunal
The establishment of the Iran-U.S. Claims Tribunal under the January 1981 Algiers Accords reversed the trend away from international public arbitration involving States and State entities. Created in the aftermath of the 1979 Hostage Crisis, the Tribunal illustrated that even those States whose relationship could only charitably be described as abysmal could still resolve their outstanding legal disputes. Political tensions did periodically intrude into the Tribunal's work. (In one notorious instance, two 64 Iranian arbitrators attempted to choke one of the neutral arbitrators in order to create a provocation to suspend operations at the Tribunal.) Despite these isolated occurrences, the Tribunal has over the past three decades been able to resolve thousands of private claims (brought mostly by U.S. companies and individuals against Iran, in an amount exceeding $2.5 billion as of 2012), as well as resolve some difficult disputes between Iran and the United States. Indeed, for many years the only official point of contact between the Iranian and American governments was the Tribunal in The Hague. The Tribunal has also successfully contributed to the international law jurisprudence on State Responsibility and diplomatic protection (discussed in Chapter 7). Taking their cue from the Tribunal's success, more and more arbitral tribunals have been convened in order to resolve investment matters, territorial disputes, and economic controversies. Some general structural issues do remain, and they bear on the institutional success—and popular perception—of international arbitration. Some of these implicate the inherent ability of arbitral bodies to protect themselves from fraud and corruption and to discipline unscrupulous parties (and their counsel).
Certain Expenses of the UN (1961)
The foundational case recognizing the international legal personality of an international organization was the ICJ's 1949 opinion on Reparation for Injuries Suffered in the Service of the United Nations.The very title of the advisory opinion, requested from the World Court by the U.N.'s General Assembly, is a masterful attempt at understatement. (The standing policy of the Court is to assign the most innocuously neutral titles possible to its decisions; thus, for example, a case concerning the flagrant shooting down of an aircraft by another country would antiseptically be called "The Aerial Incident of September 5, 1990.") The "injuries" alluded to in the title of the opinion referred to one of the most extraordinary incidents in modern diplomatic history, and one of the gravest challenges to the then-fledgling institution of the United Nations.
Reparations for Injuries (1949)
The foundational case recognizing the international legal personality of an international organization was the ICJ's 1949 opinion on Reparation for Injuries Suffered in the Service of the United Nations.The very title of the advisory opinion, requested from the World Court by the U.N.'s General Assembly, is a masterful attempt at understatement. (The standing policy of the Court is to assign the most innocuously neutral titles possible to its decisions; thus, for example, a case concerning the flagrant shooting down of an aircraft by another country would antiseptically be called "The Aerial Incident of September 5, 1990.") The "injuries" alluded to in the title of the opinion referred to one of the most extraordinary incidents in modern diplomatic history, and one of the gravest challenges to the then-fledgling institution of the United Nations.
The Dogger Bank of Incident
This chapter discusses the Dogger Bank incident. During the night of October 21/22, 1904, the Russian Baltic Fleet, commanded by Admiral Rojestvensky and bound for the Pacific theatre of the Russo-Japanese War, fired upon a flottila of British fishing vessels operating around the Dogger Bank in the North Sea. Two fishermen were killed and others were injured; damage to property was also considerable. Great Britain demanded of Russia an official apology, reparations and the punishment of the officers responsible for the incident. Russia claimed the action had been provoked; Japanese torpedo boats had been seen surfacing and accordingly it was not possible to punish the commander of the fleet. At length the parties agreed to appoint an international commission of inquiry which was not only charged with fact-finding in accordance with the provisions of Arts. 9 to 36 of Convention I in the Final Act of the first Hague Peace Conference, but was also required to state its findings on where the responsibility lay and on the degree of fault regarding those under the jurisdiction of the two contracting parties.
The Paquete Habana Case (1900)
a case decided by the U.S. Supreme Court in 1900.6 The facts and issues presented in the case were deceptively simple. Two Cuban fishing boats had been captured by U.S. naval forces in the Spanish-American War and condemned as "prizes" of war. The question was whether small coastal fishing boats were immune 20 from capture and condemnation as prizes under customary international law. The U.S. government confidently asserted they were not so protected, based in part on a 1798 decision by an English court. The attorney for the Cuban boat owners, J. Parker Kirlin, was obliged to show that the United States was wrong about the content of customary international law. Drawing from sources as varied as medieval English royal ordinances, agreements between European countries, orders issued to the U.S. Navy in earlier conflicts, and the opinions of treatise writers, Kirlin staged one of the most stunning upsets in U.S. Supreme Court history. He persuaded the Court that his clients, and not the U.S. government, knew better what customary international law was. The Court held that custom barred the capture of small fishing boats, and that the captors were therefore bound to restore the proceeds of the sale of the vessels and their cargo to the claimants. Kirlin's victory was not only a demonstration of an eclectic and scholarly collection of evidence of State practice. It was a tour de force of powerful argument insofar as Kirlin persuaded a majority of the Justices that the immunity granted to coastal fishing boats was grounded in humanitarian concerns, as well as supported by legal obligation.
Right of Passage Over Indian Territory (1960)
facts: Portugal held several small enclaves of territory within India; one on the coast but the others inland. Portugal claimed they had a right of passage to its inland territories over Indian land which they alleged India had interfered with. issue: does Portugal have a customary right over Indian territory to its enclaves? decision: A right of passage does exist in regional custom.
