Important Case Laws of Public International Law

Mavrommatis Palestine Concessions case, Greece v. United Kingdom (PCIJ, 1924)

Facts (the quarrel): Before the First World War, the Ottoman authorities gave Mr. Mavrommatis, a Greek national, concessions in Palestine. They covered works in Jerusalem, such as electricity and water supply, and also works in Jaffa. After the war, Britain administered Palestine under the Mandate. The British administration gave Mr. Rutenberg a concession that clashed with what Mavrommatis claimed in Jerusalem. Greece took up his complaint and filed a case against the United Kingdom, relying on a clause in the Mandate that allowed disputes between Britain and another League member about the Mandate to be sent to the Court.

Question: Was this a dispute between States at all? Britain said no: in its view, the quarrel was between a private businessman and the British administration.

Held: The Court disagreed and laid down the rule of diplomatic protection. It accepted jurisdiction over the Jerusalem concessions, but not over the Jaffa concessions.

Principle: When a State takes up its national's case, the dispute becomes one between two States.

Nottebohm case, Liechtenstein v. Guatemala (ICJ, 1955)

Facts (the quarrel):

• Friedrich Nottebohm was born in Germany in 1881 and was a German national.
• In 1905 he moved to Guatemala, built a large business there and lived there for about 34 years, without becoming a Guatemalan citizen.
• His brother lived in Liechtenstein, a small neutral country in Europe, and he visited it from time to time.
• In October 1939, a few weeks after the Second World War began, he applied for naturalisation in Liechtenstein during one such visit. Liechtenstein granted it within days and excused its normal residence requirement. Under German law, he lost his German nationality.
• He went back to Guatemala on a Liechtenstein passport.
• In 1943, Guatemala, which was at war with Germany, arrested him as an enemy national, handed him over to the United States for internment, and later confiscated his property.
• Liechtenstein sued Guatemala, asking for restitution and compensation on his behalf.

Question: Guatemala argued that the claim was inadmissible because the nationality had no real substance. Did Guatemala have to accept Liechtenstein's nationality for the purpose of diplomatic protection?

Held: No. Nottebohm's life, his home and his business were in Guatemala, and his ties with Liechtenstein were thin. The naturalisation had been sought mainly to replace the status of a national of a country at war with that of a national of a neutral country. Liechtenstein's claim was rejected.

Principle: the genuine link doctrine.

Anglo-Iranian Oil Company case, United Kingdom v. Iran (ICJ, 1952)

Facts (the quarrel): In 1933, Iran granted an oil concession to a British company that later became the Anglo-Iranian Oil Company. That concession had come about after a quarrel over an earlier concession was taken to the League of Nations. In 1951, Iran nationalised its oil industry, and the company lost its Iranian operations. The United Kingdom brought a case against Iran, asking the Court to order restoration of the company's position or payment of compensation.

Question (jurisdiction): Iran had accepted the Court's compulsory jurisdiction only for disputes about treaties or conventions accepted by Iran after its declaration. The United Kingdom tried to bring the case within that limit in two ways:

1. It argued that the 1933 concession was also a treaty between the two governments, because of the League's role in producing it.
2. It relied on older treaties with Iran.

Held: The Court accepted neither argument.

• The concession was a contract between a government and a foreign company, and the United Kingdom was not a party to it. A contract with a foreign company does not turn into a treaty just because the company's home State takes an interest in it.
• The older treaties came before Iran's declaration, so they fell outside Iran's consent.

The Court found that it had no jurisdiction, and the case never reached the merits.

Principle: the jurisdiction of an international court rests on the consent of States and goes no further than that consent.

Danzig Railway Officials case (PCIJ, Advisory Opinion, 1928)

Facts (the quarrel): After the First World War, Danzig became a Free City under the protection of the League of Nations, and Poland took control of its railways. Many Danzig railway officials moved into Polish service. A 1921 agreement between Danzig and Poland set their service conditions, including pay and pensions. Some of these officials sued the Polish railway administration in the Danzig courts for money due under that agreement.

Poland's objection: the agreement was an international agreement between two parties, which could give no direct rights to private persons. At most, Poland might owe something to Danzig, not to the officials. The dispute reached the League of Nations, and its Council asked the PCIJ for an advisory opinion.

Question: Could the officials rely directly on the agreement in the Danzig courts?

Held: Yes. The agreement was meant to form part of the officials' contract of service. So the officials could rely on it, and the Danzig courts had jurisdiction.

Principle: a treaty can create rights directly enforceable by individuals if that is what the parties intended.

Luther v. Sagor (English Court of Appeal, 1921)

Facts (the quarrel): A. M. Luther was a company incorporated in Russia, which owned a factory producing wood products. After the Russian Revolution, the Soviet Government nationalised the factory in 1919 and seized its wood. In 1920, it sold some of that wood to James Sagor and Company, an English firm, which shipped it to England. The Luther company sued in England, saying that the wood was still its own. Its argument was that Britain had not recognised the Soviet Government, so an English court should ignore that government's decrees. At first instance, the company won on exactly this point.

Question: Before the appeal was heard, Britain recognised the Soviet Government as the de facto government of Russia. Could the English courts still ignore the nationalisation?

Held: No. Recognition is retroactive. The English courts could no longer question the nationalisation. The wood had become the property of the Soviet Government and then passed to Sagor by the sale. The company lost.

Principle: recognition reaches back in time and validates the acts of the government from the date it actually took power.

Civil Air Transport Incorporated v. Central Air Transport Corporation (Privy Council, 1952)

Facts (the quarrel):

• During the Chinese civil war in 1949, aircraft of the Central Air Transport Corporation, an airline belonging to the Nationalist Government of China, were flown to Hong Kong, which was then a British colony.
• The People's Republic of China was proclaimed on 1 October 1949.
• In December 1949, the Nationalist Government, which Britain still recognised as the government of China, sold the aircraft to American buyers, whose rights passed to Civil Air Transport Incorporated.
• In January 1950, Britain withdrew recognition from the Nationalist Government and recognised the Communist Government as the de jure government of China.
• The airline corporation, now under the new government's control, claimed the aircraft. The Hong Kong courts agreed with it, relying on retroactivity.

Question: Did retroactive recognition of the new government cancel the sale made by the earlier recognised government?

Held: The Privy Council reversed the Hong Kong decision. The aircraft were in Hong Kong, never under the new government's control, and the sale was made while the Nationalist Government was still recognised. So the sale stood, and Civil Air Transport kept the aircraft.

Principle: retroactive recognition validates the acts of the new government in the territory that it actually controlled. It does not cancel the acts of the previously recognised government in territory that remained under that earlier government's control.

Bank of Ethiopia v. National Bank of Egypt and Liguori (English court, 1937)

Facts (the quarrel): In the war between Italy and Ethiopia, Italian forces captured Addis Ababa, the Ethiopian capital, in 1936. The Italian authorities issued a decree dissolving the Bank of Ethiopia and appointing Mr. Liguori as its liquidator, the person who winds up a company and collects its assets. The National Bank of Egypt held money belonging to the Bank of Ethiopia. The bank, through its former management, sued in England for that money and challenged the Italian decree.

Question: Must an English court give effect to the decree of a government recognised only de facto?

Held: The Foreign Office informed the court that Britain recognised the Italian Government as the de facto government of the parts of Ethiopia under Italian control. The court held that it therefore had to give effect to the decree, and the bank's claim failed.

Principle: the decrees of a government recognised de facto are given effect in the territory it actually controls.

The Arantzazu Mendi (House of Lords, 1939)

Facts (the quarrel): Britain recognised the Republican Government as the de jure government of Spain, and the Nationalist Government as the government exercising de facto administrative control over the larger part of Spain. The dispute was over a merchant vessel registered at Bilbao, the Arantzazu Mendi. After the Nationalists captured Bilbao, both governments issued decrees requisitioning ships registered there, that is, taking them over for State use. The ship's owners and master accepted the Nationalist Government's authority. While the ship was in London, the Republican Government began an action in an English court to take possession of her.

Question: The Nationalist Government objected that, as a foreign sovereign, it could not be sued in an English court without its consent. Was it entitled to that immunity?

Held: Yes. Because Britain recognised it as the de facto government of the territory it controlled, the Nationalist Government was treated as a foreign sovereign entitled to immunity. An English court could not decide a claim that would interfere with property in the possession and control of such a sovereign. The Republican Government's action was set aside.

Principle: a government recognised de facto is treated as a foreign sovereign and enjoys immunity, even against a claim by the rival government recognised de jure.

North Sea Continental Shelf cases, Federal Republic of Germany v. Denmark and Federal Republic of Germany v. the Netherlands (ICJ, 1969)

Facts (the quarrel): The three States had to delimit their areas of the North Sea continental shelf. Denmark and the Netherlands wanted equidistance, the method found in Article 6 of the Geneva Convention on the Continental Shelf, 1958. Germany's coast is concave, lying between two neighbours whose coasts bend outward. Equidistance lines drawn from both sides would close in front of Germany and leave it a small area, out of proportion to its long coastline. Germany had signed the Convention but never ratified it. Denmark and the Netherlands therefore argued that equidistance had become customary law, binding on Germany anyway.

Question: Had the equidistance rule in the treaty become customary law binding on a non-party?

Held: The Court decided in favour of Germany. A treaty rule can grow into general customary law and bind even States that are not parties, but only under demanding conditions, and equidistance failed them. Germany was not bound by it.

Principle: the conditions for a treaty rule to become general custom (below), and delimitation by agreement in accordance with equitable principles.

Asylum case, Colombia v. Peru (ICJ, 1950)

Facts (the quarrel): In October 1948, an armed rebellion broke out in Peru and was crushed. The Peruvian Government blamed Victor Raul Haya de la Torre, the leader of a political party. In January 1949, he entered the Colombian Embassy in Lima, the Peruvian capital, and the Colombian Ambassador granted him diplomatic asylum. Colombia classified him as a political offender and asked Peru for a safe conduct. Peru refused, saying that he faced charges for common crimes.

Colombia's claim: the State granting asylum could decide, alone and with binding effect, whether the offence was political. It relied on:

• the Bolivarian Agreement on Extradition, 1911;
• the Havana Convention on Asylum, 1928;
• the Montevideo Convention on Political Asylum, 1933; and
• a regional custom said to exist among Latin American States.

Question: Did any treaty or regional custom give Colombia a one-sided right to classify the offence, binding on Peru?

Held: The Court rejected Colombia's claim (details below).

Principle: a regional custom must be proved by constant and uniform usage, and cannot be invoked against a State that has kept away from it.

Right of Passage over Indian Territory case, Portugal v. India (ICJ, 1960)

Facts (the quarrel): Portugal held the coastal district of Daman and two small inland enclaves, Dadra and Nagar Haveli. To reach these enclaves from Daman, Portuguese officials had to cross Indian land. In 1954, groups supporting India took control of Dadra and Nagar Haveli, and India refused to let Portuguese officials and armed forces pass through its territory to reach them.

Portugal's claim: a right of passage between Daman and the enclaves, and between the enclaves, as far as needed to exercise its sovereignty there. It relied on the Treaty of Poona of 1779 with the Maratha rulers, on later grants, and on a long practice of passage, which it called a local custom.

India's reply:

1. A local custom could not arise between only two States.
2. The Maratha grants had given Portugal only revenue rights, not sovereignty.

Question: Did Portugal have a right of passage through Indian territory based on local custom, and had India breached it?

Held: The Court gave a layered answer (below). Portugal had a right of passage for private persons, civil officials and goods in general, but not for armed forces, armed police, arms and ammunition; and India had not breached its obligations.

Principle: a local custom can arise between two States, but it extends only as far as the practice accepted as law.

Fisheries Jurisdiction case, United Kingdom v. Iceland (ICJ, 1973 and 1974)

Facts (the quarrel): In 1961, the two States resolved a fishing dispute by an exchange of notes. The United Kingdom accepted Iceland's 12 nautical mile fishery zone. Iceland, in turn, agreed that any dispute about a further extension of its fishery jurisdiction would go to the ICJ at the request of either side. In 1972, Iceland extended its exclusive fishery zone to 50 nautical miles and declared that the 1961 agreement no longer bound it. Iceland did not appear in Court, but it argued in letters that circumstances had changed fundamentally, pointing to new fishing technology and its heavy dependence on fish.

Question: Could Iceland escape the 1961 agreement on the ground of a fundamental change of circumstances?

Held: No. The obligation still to be performed was simply to let the Court decide a dispute. Better fishing technology did not radically transform that duty.

• 1973: the Court upheld its jurisdiction.
• 1974: Iceland's 50 mile regulations could not be enforced against the United Kingdom. Iceland, as a coastal State specially dependent on fishing, had preferential rights, but British vessels had established rights too, and the two States had to negotiate an equitable settlement.

Principle: a change of circumstances ends a treaty obligation only on the strict conditions of Article 62 of the Vienna Convention on the Law of Treaties, 1969, which the Court treated as reflecting customary law.

Temple of Preah Vihear case, Cambodia v. Thailand (ICJ, 1962)

Facts (the quarrel):

• The temple stands on a cliff in the Dangrek mountains, on the border between Cambodia and Thailand, which was then called Siam.
• In 1904, France, which then controlled Cambodia, agreed with Siam that in this sector the boundary would follow the watershed line. A mixed commission was to work out the details.
• French experts later prepared maps, partly at Siam's request, and published them in 1908. One of them showed the temple on the Cambodian side.
• Siam received the map, used it and raised no objection.
• In 1930, Prince Damrong of Siam made an official visit to the temple and was received by the French official of the neighbouring Cambodian province, under a French flag. Siam still made no protest.
• After Cambodia became independent, Thai forces were stationed at the temple, and Cambodia brought the case.

Thailand's argument: the map was wrong, because the real watershed line placed the temple in Thailand, and Thailand had never accepted the map.

Question: Was Thailand bound by the map despite the alleged error?

Held: Yes. Even if the map contained an error, Thailand's conduct over many years amounted to acceptance. Thailand had also enjoyed the benefit of a stable boundary for some fifty years. The temple was in territory under Cambodian sovereignty. Thailand had to withdraw its military and police forces and return objects removed from the temple.

Principle: where a State ought to have reacted and could have reacted, its silence is taken as consent.

Legal Status of Eastern Greenland case, Denmark v. Norway (PCIJ, 1933)

Facts (the quarrel): In 1919, the Danish Minister in Norway asked the Norwegian Foreign Minister, Mr. Ihlen, whether Norway would make difficulties if Denmark extended its sovereignty over all of Greenland, while Denmark would raise no objection to Norway's claims over Spitsbergen. Mr. Ihlen replied orally that Norway would not make any difficulties in settling this question. Twelve years later, on 10 July 1931, Norway proclaimed that it had occupied part of Eastern Greenland. Denmark claimed sovereignty over the whole island and went to the PCIJ.

Norway's arguments:

1. Danish sovereignty covered only the colonised areas on the west coast; the east was terra nullius.
2. Mr. Ihlen had no constitutional power to make such a commitment.

Question: Did Denmark have sovereignty over the area on the critical date, and was Norway bound by Mr. Ihlen's reply?

Held: Denmark had sovereignty. Norway was obliged not to dispute Danish sovereignty over Greenland. The Court declared Norway's occupation unlawful and invalid.

Principle: sovereignty based on a continued display of authority needs intention plus actual exercise; and a Foreign Minister's reply on a matter within his province binds his State.

Island of Palmas arbitration, the Netherlands and the United States of America (sole arbitrator Max Huber, 1928)

Facts (the quarrel): Palmas is a small island between the southern Philippines and what were then the Dutch East Indies.

• United States: claimed it as part of the Philippines, which Spain had ceded to it by the Treaty of Paris of 1898. This claim rested on Spain's title, which came mainly from discovery in the sixteenth century, and also on the island's nearness to the Philippines.
• Netherlands: relied on a long and peaceful exercise of authority, through arrangements with local rulers going back to the seventeenth century.

Question: Did discovery and nearness, or long and peaceful display of authority, give title to the island?

Held: The island went to the Netherlands. Spain's inchoate title from discovery could not prevail over the continuous and peaceful display of authority by the Netherlands, and nearness alone did not create title.

Principle: continuous and peaceful display of State authority prevails over an incomplete title based on discovery.

S. S. Lotus case, France v. Turkey (PCIJ, 1927)

Facts (the quarrel): On 2 August 1926, on the high seas near the Greek island of Lesbos, the French mail steamer Lotus collided with the Turkish ship Boz Kourt. The Turkish ship sank and eight Turkish nationals died. The Lotus picked up survivors and sailed on to Constantinople, today's Istanbul. There, Turkish authorities arrested Lieutenant Demons, the French officer of the watch on the Lotus at the time of the collision. He was tried together with the Turkish captain for involuntary manslaughter and was convicted. France protested, and the two States took the matter to the PCIJ by agreement.

Question: Did Turkey's prosecution of a French officer for a collision on the high seas violate international law?

Held: No. The judges were equally divided, and the President's casting vote decided the case for Turkey.

Principle: the Lotus principle: a State is free to act unless a rule of international law forbids it.

Corfu Channel case, United Kingdom v. Albania (ICJ, 1949)

Facts (the quarrel): The North Corfu Channel is a narrow strait between the coast of Albania and the Greek island of Corfu, and it is used for international navigation. On 22 October 1946, a squadron of British warships sailed through it. Two destroyers struck mines in Albanian waters, both were badly damaged, and 44 British sailors were killed. A few weeks later, the Royal Navy swept the channel for mines inside Albanian waters without Albania's consent.

Questions and answers:

1. Was Albania responsible for the explosions? Yes. The minefield could not have been laid without Albania's knowledge, and Albania was bound to notify shipping of the minefield and to warn the approaching warships.
2. Had Britain violated Albanian sovereignty by sending warships through the strait? No. In peacetime, States have a right to send warships through straits used for international navigation between two parts of the high seas, without prior permission, provided the passage is innocent.
3. Was the later minesweeping lawful? No. It violated Albanian sovereignty, and the Court's declaration of that violation was itself appropriate satisfaction.

The Court later fixed the compensation that Albania had to pay Britain.

Principle: a State must warn others of dangers it knows of in its waters, and an injured State may not enforce its rights by force on another State's territory.

Factory at Chorzow case, Germany v. Poland (PCIJ, 1927 and 1928)

Facts (the quarrel): After the First World War, part of Upper Silesia passed from Germany to Poland. A Geneva Convention of 1922 between the two States protected German property rights there, and allowed Poland to take over certain property only on the terms it laid down. Poland nevertheless took over a nitrate factory at Chorzow owned by two German companies. In 1926, the PCIJ had already found this contrary to the Convention. Germany then claimed reparation, that is, repair of the harm, for the companies' losses.

Question: What must a State that has breached an international obligation do?

Held: The Court stated two principles of reparation (below).

Principle: breach creates a duty to make reparation, and reparation must, as far as possible, wipe out all the consequences of the illegal act.

The Caroline case (1837; dispute closed by diplomatic correspondence in 1841 and 1842)

Facts (the quarrel): Canada was then under British rule, and a rebellion broke out in Upper Canada. The defeated rebels took refuge on Navy Island, on the Canadian side of the Niagara River, and received men and supplies from sympathisers in the United States. A small American steamboat, the Caroline, carried supplies to them. On the night of 29 December 1837, British forces crossed to the American side, where the Caroline was moored, seized her, set her on fire and sent her drifting towards Niagara Falls. An American citizen was killed.

Question: The United States protested the invasion of its territory, and Britain pleaded self-defence. When can such action be justified as self-defence?

Outcome: The American Secretary of State, Daniel Webster, said that such action could be justified only by a necessity of self-defence that is instant, overwhelming, leaving no choice of means and no moment for deliberation. Even then, the action must involve nothing unreasonable or excessive. The British envoy, Lord Ashburton, accepted these principles and expressed regret.

Principle: the Caroline test, the source of the conditions of necessity and proportionality.

Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States of America (ICJ, 1986)

Facts (the quarrel): After a revolution in 1979, a new government took power in Nicaragua. The United States alleged that Nicaragua was supplying arms to rebels fighting the government of El Salvador. The United States, for its part, backed the contras, armed groups fighting the Nicaraguan Government, by financing, training, arming and supplying them. It also laid mines in Nicaraguan ports and attacked Nicaraguan oil installations. Nicaragua sued. The United States justified its conduct as collective self-defence of El Salvador and other neighbours.

Procedure: After the Court upheld its jurisdiction, the United States stopped taking part in the case. Because of a reservation in the American acceptance of the Court's jurisdiction, the Court decided the case mainly on customary international law.

Question: Was the United States' conduct justified as collective self-defence?

Held: No. The self-defence plea was rejected at several levels. The United States had breached its obligations not to use force against another State, not to intervene in its affairs and not to violate its sovereignty. It was ordered to stop and to make reparation.

Principle: self-defence requires an armed attack, a request by the victim State in collective self-defence, and necessity and proportionality; customary rules exist side by side with the Charter.

Lawless v. Ireland (1961): Lawless, a suspected IRA member, was detained without trial for about five months in a military camp under the Offences against the State (Amendment) Act, 1940, and claimed violation of his rights to liberty and fair trial; Ireland relied on its notified derogation under Article 15 of the European Convention on Human Rights. Held: Although the detention could not be justified under the ordinary rules on liberty, the derogation was valid, since a genuine public emergency existed and the detention was strictly required and subject to safeguards; there was no violation. Principle: In a public emergency threatening the life of the nation, a State may derogate from Convention obligations only to the extent strictly required, never from the non-derogable rights, and subject to notification and review.