The S.S. Lotus (Permanent Court of Int’l Justice) 1927 Series A No. 10 Discussion.

Discussion. In 1975, France enacted a law regarding its criminal jurisdiction over aliens because of this
Brief Fact Summary. Turkey’s (D) assertion of jurisdiction over a French citizen who had been the first
officer of a ship that collided with a Turkish ship on the high seas was challenged by France (P) as a
violation of international law.
Synopsis of Rule of Law. A rule of international law, which prohibits a state from exercising criminal
jurisdiction over a foreign national who commits acts outside of the state’s national jurisdiction, does not
exist.
Facts. A collision occurred shortly before midnight on the 2nd of August 1926 between the French (P)
mail steamer Lotus and the Turkish (D) collier Boz-Kourt. The French mail steamer was captained by a
French citizen by the name Demons while the Turkish collier Boz-Kourt was captained by Hassan Bey.
The Turks lost eight men after their ship cut into two and sank as a result of the collision.
Although the Lotus did all it could do within its power to help the ship wrecked persons, it continued on
its course to Constantinople, where it arrived on August 3. On the 5th of August, Lieutenant Demons was
asked by the Turkish (D) authority to go ashore to give evidence. After Demons was examined, he was
placed under arrest without informing the French (P) Consul-General and Hassan Bey. Demons were
convicted by the Turkish (D) courts for negligence conduct in allowing the accident to occur.
This basis was contended by Demons on the ground that the court lacked jurisdiction over him. With this,
both countries agreed to submit to the Permanent Court of International Justice, the question of whether
the exercise of Turkish (D) criminal jurisdiction over Demons for an incident that occurred on the high
seas contravened international law.
the situation surrounding this case. The law stipulates that aliens who commit a crime outside the territory
of the Republic may be prosecuted and judged pursuant to French law, when the victim is of French
nationality. This is contained in 102 Journal Du Droit International 962 (Clunet 1975). Several eminent
scholars have criticized the holding in this case for seeming to imply that international law permits all that
it does not forbid.
xxx
State of Missouri v Holland , US Government 252 US 416 (1920) US Supreme Court
Facts of the case
In December 1916, the United States and Great Britain entered into a treaty to protect a number of
migratory birds in the U.S. and Canada. Congress passed the Migratory Bird Treaty Act in 1918 in order
to facilitate enforcement of the treaty. When Ray P. Holland, the U.S. Game Warden, threatened to arrest
citizens of Missouri for violating the Act, the state of Missouri challenged the treaty. The state argued that
the constitution gave Congress no enumerated power to regulate migratory bird hunting, and thus the
regulation of such hunting was the province of the states according to the Tenth Amendment.
Question
Did the treaty infringe upon rights reserved to the states by the Tenth Amendment?
Conclusion

Issue. Issue: Does a rule of international law which prohibits a state from exercising criminal jurisdiction In a 7-to-2 decision authored by Justice Oliver Wendell Holmes, the Court upheld the exercise of the
over a foreign national who commits acts outside of the state’s national jurisdiction exist? treaty power and found no violation of the Tenth Amendment. The Court reasoned that the national
interest in protecting wildlife could be protected only by national action. The Court further reasoned that
Held. (Per curiam) No. A rule of international law, which prohibits a state from exercising criminal the Supremacy Clause (Article VI, Clause 2) renders treaties the “supreme law of the land,” a finding that
jurisdiction over a foreign national who commits acts outside of the state’s national jurisdiction, does not trumps any state-level concerns with regard to the provisions of any treaty. The Supremacy Clause further
exist. Failing the existence of a permissive rule to the contrary is the first and foremost restriction implied that the treaty provisions were not subject to questioning by the states under the process of
imposed by international law on a state and it may not exercise its power in any form in the territory of judicial review.
another state.
xxx
This does not imply that international law prohibits a state from exercising jurisdiction in its own
territory, in respect of any case that relates to acts that have taken place abroad which it cannot rely on
some permissive rule of international law. In this situation, it is impossible to hold that there is a rule of
international law that prohibits Turkey (D) from prosecuting Demons because he was aboard a French
ship. This stems from the fact that the effects of the alleged offense occurred on a Turkish vessel.

Hence, both states here may exercise concurrent jurisdiction over this matter because there is no rule of
international law in regards to collision cases to the effect that criminal proceedings are exclusively
within the jurisdiction of the state whose flag is flown.
West Rand Central Gold Mining Co. v The King (King’s Bench Division 2 KB 391, 1905)
Lord Alverstone C.J., Wills and Kennedy JJ.
1905 May 3, 4; June 1
LORD ALVERSTONE C.J.
In this case the Attorney-General, on behalf of the Crown, demurred to a petition of right presented in the
month of June, 1904, by the West Rand Central Gold Mining Company, Limited. The petition of right
alleged that two parcels of gold, amounting in all to the value of 3804l., had been seized by officials of
the South African Republic--1104l. on October 2 in course of transit from Johannesburg to Cape Town,
and 2700l. on October 9, taken from the bank premises of the petitioners. No further statement was made
in the petition of the circumstances under which, or the right by which, the Government of the Transvaal
Republic claimed to seize the gold; but it was stated in paragraph 6, "That the gold was in each case taken
possession of by, and on behalf of, and for the purposes of, the then existing Government of the said
Republic, and that the said Government, by the laws of the said Republic, was under a liability to return
the said gold, or its value, to your suppliants. None of the said gold has been returned to your suppliants,
nor did the said Government make any payment in respect thereof." The petition then alleged that a state
of war commenced at 5 P.M. on October 11, 1899, that the forces of the late Queen conquered the
Republic, and that by a Proclamation of September 1, 1900, the whole of the territories of the Republic
were annexed to, and became part of, Her Majesty's dominions, and that the Government of the Republic
ceased to exist. The petition then averred that by reason of the conquest and annexation Her Majesty
succeeded to the sovereignty of the Transvaal Republic, and became entitled to its property; and that the
obligation which vested in the Government was binding upon His present Majesty the King.
Before dealing with the questions of law which were argued before us, we think it right to say that we
must not be taken as acceding to the view that the allegations in the petition disclosed a sufficient ground
for relief. The petition appears to us demurrable for the reason that it shews no obligation of a contractual
nature on the part of the Transvaal Government. For all that appears in the petition the seizure might have
been an act of lawless violence. The allegations that A. seized property belonging to B., and that
thereupon by law an obligation arose on the part of A. to return to B. his property, or pay its value, might
be truly made in respect of any wrongful seizure of A.'s property. We do not assent to the proposition of
Lord Robert Cecil that it is sufficient to allege what may be a ground of action if something else be added
which is not stated. Upon all sound principles of pleading it is necessary to allege what must, and not
what may, be a cause of action, and unless the obligation alleged in the present instance arose out of
contract it is clear that no petition of right could be maintained. A passage in the judgment of Willes J. in
the case of Gautret v. Egerton states this view so clearly that we think it well to quote it. Willes J. says:
"The argument urged on behalf of the plaintiffs, when analyzed, amounts to this, that we ought to
construe the general words of the declaration as describing whatever sort of negligence the plaintiffs can
prove at the trial. The authorities, however, and reason and good sense, are the other way. The plaintiff
must, in his declaration, give the defendant notice of what his complaint is. He must recover secundum
allegata et probata. What is it that a declaration of this sort should state in order to fulfil those conditions?
It ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the
breach of which the defendant is charged." I need scarcely add that in dealing with a petition of right,
which must be based upon contract, that observation would of course have its full force and effect. The
discussion, however, is academical, as the Attorney-General for the Crown, as well as Lord
Robert Cecil for the suppliants, desired that we should deal with the case as if any necessary amendment
had been made, and decide the question whether all the contractual obligations of a State annexed by
Great Britain upon conquest are imposed as amatter of course, and in default of express reservations,
upon Great Britain, and can be enforced by British municipal law against the Crown in the only way
known to British municipal law, that is by a petition of right. We have no hesitation in answering this
question in the negative, but, inasmuch as it is one of great importance, and we have had the advantage of
hearing very able argument upon both sides, we think it right to give our reasons in some detail.
Lord Robert Cecil argued that all contractual obligations incurred by a conquered State, before war
actually breaks out, pass upon annexation to the conqueror, no matter what was their nature, character,
origin, or history. He could not indeed do otherwise, for it is clear that if any distinction is to be made it
must be made upon grounds which, without depriving the original liability of its character of a legal
obligation against the vanquished State, make it inexpedient for the conquering State to adopt that
liability as against itself; in other words, upon ethical grounds, into which enter considerations of
propriety, magnanimity, wisdom, public duty, in short, of policy, in the broadest and widest sense of the
word. It is equally clear that these are matters with which municipal Courts have nothing to do. They exist
for the purpose of determining and enforcing legal obligations, not for the purpose of dividing them into
classes, and saying that some of them, although legally binding, ought not to be enforced. The broad
proposition which thus formed the basis of Lord Robert Cecil's argument almost answers itself, for there
must have been, in all times, contracts made by States before conquest such as no conqueror would ever
think of carrying out. Some illustrations will occur in the course of our subsequent remarks. For the
moment we will pursue Lord Robert's argument into further detail. His main proposition was divided into
three heads. First, that, by international law, the Sovereign of a conquering State is liable for the
obligations of the conquered; secondly, that international law forms part of the law of England; and,
thirdly, that rights and obligations, which were binding upon the conquered State, must be protected and
can be enforced by the municipal Courts of the conquering State.
In support of his first proposition Lord Robert Cecil cited passages from various writers on international
law. In regard to this class of authority it is important to remember certain necessary limitations to its
value. There is an essential difference, as to certainty and definiteness, between municipal law and a
system or body of rules in regard to international conduct, which, so far as it exists at all (and its existence
is assumed by the phrase "international law"), rests upon a consensus of civilized States, not expressed in
any code or pact, nor possessing, in case of dispute, any authorized or authoritative interpreter; and
capable, indeed, of proof, in the absence of some express international agreement, only by evidence of
usage to be obtained from the action of nations in similar cases in the course of their history. It is obvious
that, in respect of many questions that may arise, there will be room for difference of opinion as to
whether such a consensus could be shewn to exist. Perhaps it is in regard to the extra-territorial privileges
of ambassadors, and in regard to the system of limits as to territorial waters, that it is least open to doubt
or question. The views expressed by learned writers on international law have done in the past, and will
do in the future, valuable service in helping to create the opinion by which the range of the consensus of
civilized nations is enlarged. But in many instances their pronouncements must be regarded rather as the
embodiments of their views as to what ought to be, from an ethical standpoint, the conduct of nations
inter se, than the enunciation of a rule or practice so universally approved or assented to as to be fairly
termed, even in the qualified sense in which that word can be understood in reference to the relations
between independent political communities, "law." The reference which these writers not infrequently
make to stipulations in particular treaties as acceptable evidence of international law is as little convincing
as the attempt, not unknown to our Courts, to establish a trade custom which is binding without being
stated, by adducing evidence of express stipulations to be found in a number of particular contracts.
Before, however, dealing with the specific passages in the writings of jurists upon which the suppliants
rely, we desire to consider the proposition, that by international law the conquering country is bound to
fulfil the obligations of the conquered, upon principle; and upon principle we think it cannot be sustained.
When making peace the conquering Sovereign can make any conditions he thinks fit respecting the
financial obligations of the conquered country, and it is entirely at his option to what extent he will adopt
them. It is a case in which the only law is that of military force. This, indeed, was not disputed by counsel
for the suppliants; but it was suggested that although the Sovereign when making peace may limit the
obligations to be taken over, if he does not do so they are all taken over, and no subsequent limitation can
be put upon them. What possible reason can be assigned for such a distinction? Much inquiry may be
necessary before it can be ascertained under what circumstances the liabilities were incurred, and what
debts should in foro conscientiae be assumed. There must also be many contractual liabilities of the
conquered State of the very existence of which the superior Power can know nothing, and as to which
persons having claims upon the nation about to be vanquished would, if the doctrine contended for were
correct, have every temptation to concealment--others, again, which no man in his senses would think of
taking over. A case was put in argument which very well might occur. A country has issued obligations to
such an amount as wholly to destroy the national credit, and the war, which ends in annexation of the
country by another Power, may have been brought about by the very state of insolvency to which the
conquered country has been reduced by its own misconduct. Can any valid reason be suggested why the
country which has made
war and succeeded should take upon itself the liability to pay out of its own resources the debts of the
insolvent State, and what difference can it make that in the instrument of annexation or cessation of
hostilities matters of this kind are not provided for? We can well understand that, if by public
proclamation or by convention the conquering country has promised something that is inconsistent with
the repudiation of particular liabilities, good faith should prevent such repudiation. We can see no reason
at all why silence should be supposed to be equivalent to a promise of universal novation of existing
contracts with the Government of the conquered State. It was suggested that a distinction might be drawn
between obligations incurred for the purpose of waging war with the conquering country and those
incurred for general State expenditure. What municipal tribunal could determine, according to the laws of
evidence to be observed by that tribunal, how particular sums had been expended, whether borrowed
before or during the war? It was this and cognate difficulties which compelled Lord Robert Cecil
ultimately to concede that he must contend that the obligation was absolute to take over all debts and
contractual obligations incurred before war had been actually declared.
Turning now to the text-writers, we may observe that the proposition we have put forward that the
conqueror may impose what terms he thinks fit in respect of the obligations of the conquered territory,
and that he alone must be the judge in such a matter, is clearly recognised by Grotius: see "War and
Peace," book iii. chap. 8, s. 4, and the Notes to Barbeyrac's edition of 1724, vol. ii. p. 632. For the
assertion that a line is to be drawn at the moment of annexation, and that the conquering Sovereign has no
right at any later stage to say what obligations he will or will not assume, we venture to think that there is
no authority whatever. A doctrine was at one time urged by some of the older writers that to the extent of
the assets taken over by the conqueror he ought to satisfy the debts of the conquered State. It is, in our
opinion, a mere expression of the ethical views of the writers; but the proposition now contended for is a
vast extension even of that doctrine. It has been urged that in numerous cases, both of peace and of
cession of territories, special provision has been made for the discharge of obligations by the country
accepting the cession or getting the upper hand in war; but, as we have already pointed out, conditions the
result of express mutual consent between two nations afford no support to the argument that obligations
not expressly provided for are to follow the course, by no means uniform, taken by such treaties. See as to
this, s. 27 of the 4th edition of Hall's International Law, and the opinion of Lord Clarendon there cited.
Lord Robert Cecil cited a passage from Mr. Hall's book, 4th ed. p. 105, in which he states that the
annexing Power is liable for the whole of the debts of the State annexed. It cannot, however, be intended
as an exhaustive or unqualified statement of the practice of nations, whatever may have been the opinion
of the writer as to what should be done in such cases. It is not, in our opinion, directed to the particular
subject now under discussion. The earlier parts of the same chapter contain passages inconsistent with
any such view. We would call attention particularly to s. 27 on pp. 98 and 99 of the 4th edition, where the
question as to the extent to which obligations do not pass is discussed, and the passage on pp. 101 and
102, referring to the discussion between England and the United States in 1854, in which Lord
Clarendon's contention that Mexico did not inherit the obligations or rights of Spain is approved of by Mr.
Hall. In the same way the passage from Halleck, s. 25 of chap. 34 (Sir Sherston Baker's edition of 1878),
cited by Lord Robert Cecil, cannot be construed as meaning to lay down any such general proposition. It
is cited from a chapter in which other sections contain passages inconsistent with the view that the legal
obligation to fulfill all contracts passed to the conquering State. The particular section is in fact directed
to the obligations of the conquering or annexing State upon the rights of private property of the
individual--the point which formed the subject of discussion in the American cases upon which the
suppliants relied and with which we shall deal later on. The passage from Wheaton (Atlay's ed. p. 46, s.
30) shews that the writer was only expressing an opinion respecting the duty of a succeeding State with
regard to public debts, and, as the note to the passage shews, it is really based upon the fact that many
treaties have dealt with such obligations in different ways. We have already pointed out how little value
particular stipulations in treaties possess as evidence of that which may be called international common
law. We have not had the opportunity of referring to the edition of Calvo, cited by Lord Robert Cecil, but
the sections of the 8th book of the edition published in 1872 contain a discussion as to the circumstances
under which certain obligations should be undertaken by the conquering State. The distinction between
the obligations of the successor with regard to the private property of individuals on the one hand, and the
debts of the conquered State on the other, is clearly pointed out, and paragraphs 1005 and 1010 are quite
inconsistent with any recognition by the author of the proposition contended for by the suppliants. The
same observations apply to Heffter, another work upon which reliance was placed. As regards Max
Huber's work on State Succession, published in 1898, there is no doubt, as appears from Mr. Westlake's
recent book on international law, published last year, and from other criticisms, that Huber does attempt
to press the duty of a succeeding or conquering State to recognise the obligations of its predecessor to a
greater extent than previous writers on international law, but the extracts cited by the Attorney-General in
his reply and other passages in Huber's book shew that even his opinion falls far short of the proposition
for which the suppliants contend. But whatever may be the view taken of the opinions of these writers,
they are, in our judgment, inconsistent with the law as recognised for many years in the English Courts;
and it is sufficient for us to cite the language of Lord Mansfield in Campbell v. Hall in a passage the
authority of which has, so far as we know, never been called in question: "It is left by the Constitution to
the King's authority to grant or refuse a capitulation. ... If he receives the inhabitants under his protection
and grants them their property he has a power to fix such terms and conditions as he thinks proper. He is
entrusted with making the treaty of peace; he may yield up the conquest or retain it upon what terms he
pleases. These powers no man ever disputed, neither has it hitherto been controverted that the King might
change part or the whole of the law or political form of government of a conquered dominion." And so,
much earlier, in the year 1722 (2nd Peere Williams, p. 75), it is said by the Master of the Rolls to have
been determined by the Lords of the Privy Council that "where the King of England conquers a country it
is a different consideration, for there the conqueror by saving the lives of the people conquered gains a
right and property in such people, in consequence of which he may impose upon them what laws he
pleases." References were made to many cases of cession of territory not produced by conquest, and the
frequent assumption in such cases of the liabilities of the territory ceded by the State accepting the cession
was referred to. They may be dismissed in a sentence. The considerations which applied to peaceable
cession raise such different questions from those which apply to conquest that it would answer no useful
purpose to discuss them in detail.
The second proposition urged by Lord Robert Cecil, that international law forms part of the law of
England, requires a word of explanation and comment. It is quite true that whatever has received the
common consent of civilized nations must have received the assent of our country, and that to which we
have assented along with other nations in general may properly be called international law, and as such
will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those
tribunals to decide questions to which doctrines of international law may be relevant. But any doctrine so
invoked must be one really accepted as binding between nations, and the international law sought to be
applied must, like anything else, be proved by satisfactory evidence, which must shew either that the
particular proposition put forward has been recognised and acted upon by our own country, or that it is of
such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any
civilized State would repudiate it. The mere opinions of jurists, however eminent or learned, that it ought
to be so recognised, are not in themselves sufficient. They must have received the express sanction of
international agreement, or gradually have grown to be part of international law by their frequent practical
recognition in dealings between various nations. We adopt the language used by Lord Russell of
Killowen in his address at Saratoga in 1896 on the subject of international law and arbitration: "What,
then, is international law? I know no better definition of it than that it is the sum of the rules or usages
which civilized States have agreed shall be binding upon them in their dealings with one another." In our
judgment, the second proposition for which Lord Robert Cecil contended in his argument before us ought
to be treated as correct only if the term "international law" is understood in the sense, and subject to the
limitations of application, which we have explained. The authorities which he cited in support of the
proposition are entirely in accord with and, indeed, well illustrate our judgment upon this branch of the
arguments advanced on behalf of the suppliants; for instance, Barbuit's Case, Triquet v. Bath, and
Heathfield v. Chilton are cases in which the Courts of law have recognised and have given effect to the
privilege of ambassadors as established by international law. But the expressions used by Lord Mansfield
when dealing with the particular and recognised rule of international law on this subject, that the law of
nations forms part of the law of England, ought not to be construed so as to include as part of the law of
England opinions of text-writers upon a question as to which there is no evidence that Great Britain has
ever assented, and a fortiori if they are contrary to the principles of her laws as declared by her Courts.
The cases of Wolff v. Oxholm and Rex v. Keyn are only illustrations of the same rule--namely, that
questions of international law may arise, and may have to be considered in connection with the
administration of municipal law.
********************
... It must not be forgotten that the obligations of conquering States with regard to private property of
private individuals, particularly land as to which the title had already been perfected before the conquest
or annexation, are altogether different from the obligations which arise in respect of personal rights by
contract. As is said in more cases than one, cession of territory does not mean the confiscation of the
property of individuals in that territory. If a particular piece of property has been conveyed to a private
owner or has been pledged, or a lien has been created upon it, considerations arise which are different
from those which have to be considered when the question is whether the contractual obligation of the
conquered State towards individuals is to be undertaken by the conquering State. The English cases on
which reliance was placed were United States v. Prioleau, in which a claim was made by the United
States Government to cotton which had been the property of the Confederated States; United States v.
Macrae, which recognised the right of the Government suppressing rebellion to all moneys, goods, and
treasures which were public property at the time of the outbreak: Republic of Peru v. Peruvian Guano Co.
and Republic of Peru v. Dreyfus. The only principle, however, which can be deduced from these cases is
that a Government claiming rights of property and rights under a contract cannot enforce those rights in
our Courts without fulfilling the terms of the contract as a whole. They have, in our judgment, no bearing
upon the propositions which we have been discussing. We are aware that we have not commented upon
all the cases which were cited before us--we have not failed to consider them; and any arguments which
could be founded upon them seem to us to be covered by the observations already made. We are of
opinion, for the reasons given, that no right
on the part of the suppliants is disclosed by the petition which can be enforced as against His Majesty in
this or in any municipal Court; and we therefore allow the demurrer, with costs.
xxx
The Paquette Habana: The Lola 125 US 677 1909
Argued November 7-8, 1899
Decided January 8, 1900
175 U.S. 677 (1900)
Syllabus
Under the Act of Congress of March 3, 1891, c. 517, this Court has jurisdiction of appeals from all final
sentences and decrees in prize causes, without regard to the amount in dispute and without any certificate
of the district judge as to the importance of the particular case.
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. For this purpose, where there is no treaty and no controlling executive or legislative act or
judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators, not for the speculations of their authors concerning what
the law ought to be, but for trustworthy evidence of what the law really is.
At the present day, by the general consent of the civilized nations of the world and independently of any
express treaty or other public act, it is an established rule of international law that coast fishing vessels,
with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful
calling of catching and bringing in fresh fish, are exempt from capture as prize of war. And this rule is
one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give
effect to, in the absence of any treaty or other public act of their own government in relation to the matter.
At the breaking out of the recent war with Spain, two fishing smacks -- the one a sloop, 43 feet long on
the keel and of 25 tons burden, and with a crew of three men, and the other a schooner, 51 feet long on
the keel and of 35 tons burden, and with a crew of six men -- were regularly engaged in fishing on the
coast of Cuba, sailing under the Spanish flag, and each owned by a Spanish subject, residing in Havana;
her crew, who also resided there, had no interest in the vessel, but were entitled to shares, amounting in
all to two thirds, of her catch, the other third belonging to her owner, and her cargo consisted of fresh fish,
caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Each vessel
left Havana on a coast fishing voyage, and sailed along the coast of Cuba about two hundred miles to the
west end of the island; the sloop there fished for twenty-five days in the territorial waters of Spain, and
the schooner extended her fishing trip a hundred
Page 175 U. S. 678
miles farther across the Yucatan Channel, and fished for eight days on the coast of Yucatan. On her
return, with her cargo of live fish, along the coast of Cuba, and when near Havana, each was captured by
one of the United States blockading squadron. Neither fishing vessel had any arms or ammunition on
board, had any knowledge of the blockade, or even of the war, until she was stopped by a blockading
vessel, made any attempt to run the blockade, or any resistance at the time of her capture, nor was there
any evidence that she, or her crew, was likely to aid the enemy. Held that both captures were unlawful,
and without probable cause.
The cases are stated in the opinion of the Court.
xxx
The Scotia, 81 U.S. 14 Wall. 170 170 (1871)
Syllabus
1. Although it is the clear duty of an ocean steamer sailing at night to keep out of the way of a sailing
vessel, yet if the course of the sailing vessel, when first seen, is such that, compared with her own, no
collision is probable, the steamer is not bound to change, her course. She need but watch and see that the
courses of the two vessels are preserved. It is only when the sailing
vessel does change her course, so its to render a collision possible, that the steamer must change hers also,
and if she then makes the proper maneuvers to take herself from the sailing vessel, and when collision
becomes more probable slows, stops, and backs, all as the best judgment that can be formed in the
emergency suggests, she is not liable for the collision.
2. The statutes of the United States and the orders in council of Great Britain having each prescribed the
sort of lights which, on the one hand, their steamers are to carry at night, and the different sort which, on
the other, their sailing vessels are to carry, and both nations adopting in this form the same distinction in
the sorts of lights for the two sorts of vessels respectively, the Court declares that where a British steamer
and an American sailing vessel are navigating at night in the known path of vessels navigating between
the United States and Great Britain, so that there is a reasonable probability that vessels in that path would
be either American or British, a steamer may, in the absence of knowledge, act upon the probability that a
vessel whose light she sees while she cannot distinguish at all the vessel herself, is such a vessel as her
light indicates, and apply the rule of navigation common to the two countries accordingly.
3. Under the existing statutory regulations of the United States and Great Britain (stated more fully infra,
pp. 81 U. S. 171-172), both of which on the one hand require sailing vessels to carry colored lights and
not to carry a white one, and both of which, on another, require steamers to carry a white light at their
mastheads -- when an American sailing vessel carries in mid-ocean at night a white light hung at her bow,
fastened low
Page 81 U. S. 171
down, and carries no colored lights anywhere, a British steamer, not able to discover what she really is,
may be excused for mistaking her for a steamer, and a steamer at a distance instead of near at hand.
4. Semble that the navigation laws of the United States requiring different sorts of vessels to carry
different sorts of lights, bind American vessels on the high seas as well as in American waters, and that
the people of other nations navigating the high seas may properly sue our citizens in our courts for
injuries occurring through the disregard of them.
5. The rules of navigation established in the British orders in council, of January 9, 1863 (prescribing the
sorts of lights to be used on British vessels), and in our act of Congress of 1861, having, before the close
of the year 1864, been accepted as obligatory by more than thirty of the principal commercial states of the
world, including almost till which have any shipping on the Atlantic Ocean, were in April, 1867, to be
regarded, so far as relates to the vessels of these states, as laws of the sea. And of the historical fact that
by common consent of mankind, they have been acquiesced in as of general obligation, courts may take
judicial notice.
6. Those rules having prescribed that sailing vessels should not carry a white light, and that steamers
should carry one at their masthead, a sailing vessel which carried a white light low down, so that she,
looked like a steamer yet at a distance, was held to be without remedy where she had collided with a
steamer which mistook her for another steamer and maneuvered accordingly.
Appeal from the circuit court for the Southern District of New York in a case of collision between the
American ship Berkshire and the British steamer Scotia, by which the ship was sunk and totally lost.
On the 9th of January, 1863, a British order in council, authorized by virtue of the Merchant Shipping
Amendment Act of July 29, 1862, 25 and 26 Victoria, made a body of "Regulations for preventing
collisions at sea." Among these were "Rules concerning lights," and "Steering and sailing rules."
In the first class were these:
"LIGHTS FOR STEAMSHIPS"
"ART. 3. Sea-going steamships when under way shall carry --"
"(a) At the foremast head, a bright white light . . . of such a character as to be visible on a dark night, with
a clear atmosphere, at a distance of at least five miles."
"(b) On the starboard side, a green light &c., visible on a dark
night, with a clear atmosphere, at a distance of at least two miles."
"(c) On the port side, a red light &c., visible on a dark night, with a clear atmosphere, at a distance of at
least two miles."
"(d) The said green and red side lights shall be fitted with inboard screens, projecting at least three feet
forward from the light so as to prevent these lights being seen across the bow."
"LIGHTS FOR SAILING SHIPS"
"ART. 6. Sailing vessels under way . . . shall carry the same lights as steamships under way, with the
exception of the white masthead lights, which they shall never carry."
In the steering and sailing rules was this one:
"SAILING SHIP AND SHIP UNDER STEAM"
"If two ships, one of which is a sailing ship and the other a steamship are proceeding in such directions as
to involve risk of collision, the steamship shall keep out of the way of the sailing ship."
All these regulations, as originally promulgated by Great Britain, were made applicable to all ships,
whatever their nationality, within the limits of British jurisdiction, and to British and French ships
whether within British jurisdiction or not. The Merchant Shipping Amendment Act, in virtue of which
these regulations were passed, provided also that whenever it should be made to appear to the British
government that the government of any foreign country was willing that these regulations should apply to
the ships of such country, when beyond the limits of British jurisdiction, Her Britannic Majesty might, by
order in council, direct that such regulations should apply to the ships of such foreign country whether
within British jurisdiction or not.
On the 29th April, 1864, [Footnote 1] the Congress of the United States passed its "act fixing certain rules
and regulations for preventing collisions on the water," and these rules as respects seagoing vessels being,
to all intents, identical with those above quoted from the British act, the British government
Page 81 U. S. 173
regarded the act of Congress as an expression by our government, that it was willing that the British
regulations should apply to our ships when beyond the limits of British jurisdiction. The British
government accordingly, by order in council, directed that the regulations should apply to all seagoing
vessels of the United States, whether within British jurisdiction or not.
The governments of various other countries soon also manifested their willingness that the British
regulations should apply to their ships respectively when beyond the limits of British jurisdiction, and
orders in council accordingly directed that such regulations should apply to the ships of such countries
respectively, whether within British jurisdiction or not. The countries referred to were Austria, the
Argentine Republic, Belgium, Brazil, Bremen, Chili, Denmark proper, the Republic of the Equator,
France, Greece, Hamburg, Hanover, the Hawaiian Islands, Hayti, Italy, Lubeck, Mecklenburg-Schwerin,
Morocco, the Netherlands, Norway, Oldenburg, Peru, Portugal, Prussia, the Roman States, Russia,
Schleswig, Spain, Sweden, Turkey, Uruguay. These orders in council were published at various dates,
from January 13, 1863, to February 6, 1866. All countries named except Denmark, Greece, the Hawaiian
Islands, Schleswig, and the United States adopted the regulations in 1863.
With these various statutes and orders in existence, the Scotia, a British steamer of the Cunard line,
steering west by north one-half north, was sailing about midnight on the 8th of April, 1867, near mid-
ocean, from Liverpool towards New York. Her lookouts were properly set, and her lights rightly stationed
-- that is to say, a white light was at her masthead, a green light on her starboard or right side, and a red
light on her port or left side, all burning brightly.
Sailing at the same hour, equally about mid-ocean, the Berkshire, a sailing ship belonging to the
American marine, was on her voyage from New Orleans to Havre, and with a wind free, blowing from
about south-southwest, was pursuing a course southeast by east one-half east, as indicated by the
Page 81 U. S. 174
following diagram. The courses of the two vessels thus intersected at an angle of exactly one point.
image:a
The Berkshire had no colored lights anywhere, nor any light but a white light, and this was at her bow,
fastened to her anchor stock and raised about four feet above her deck. Of course, if the Scotia should
mistake this light for a light fastened on the masthead of the Berkshire, she would infer from its apparent
proximity to the water that the Berkshire was far off.
The Scotia was first seen from the Berkshire bearing one point or so off the ship's port bow, at a distance
apparently of five or six miles. Then the steamer's white masthead light only was seen.
Immediately on her sighting the steamer, which was at most from fifteen to twenty minutes before the
collision, her mate gave an order to luff, and she did luff, so as to head more into the wind. The effect of
this was to make her go further to the south and thus diverge farther from the course of the steamer. She
continued in this new direction ten or fifteen minutes, when, moving at the rate at which it was proved
that the vessels were moving, she could not have been more than one or two miles from the Scotia. Her
helm was then suddenly put to starboard, then steadied for a brief period, then put hard a-starboard and
kept there, thus pointing her directly across the bow of the approaching vessel. By keeping her helm hard
a-starboard, she was made to
Page 81 U. S. 175
change her course constantly. The diagram on the preceding page may perhaps assist the reader's
comprehension. The dotted lines represent the Berkshire's movements.
Before she bore away, the red light of the steamer was seen by her wheelsman, and probably by her
lookout, if not indeed by her master.
The Scotia saw the white light on the Berkshire in due time, and first saw it off her port bow, from one to
two points. Seeing a white light, the deck officer of the Scotia took the vessel for a steamer, and from the
proximity of the light to the water inferred that she was far off, coming in fact just above the horizon, and
accounting for the nonappearance of the usual colored lights because he supposed that they had not come
up to view. [Footnote 2] He thus not only supposed the Berkshire to be a steamer, but judged that the
supposed steamer was at a much greater distance than it was in fact. As already signified, the location of
the light warranted the supposition, and its color gave no indication that it was on a sailing vessel. After
its discovery, the ship's light opened on the steamer's port bow; how much it opened was a matter
somewhat agitated by the witnesses and the counsel, though this Court considered that matter immaterial,
because if it receded at all it indicated that there was then no danger of collision without some change of
course, and consequently no necessity to take measures to avoid one. The weight of the evidence was that
the ship had not then turned her course northward, but if she had, it was still proved that her light opened
on the Scotia's port side, after it was first seen, and before the steamer's course was changed. Soon after,
and because of the ship's change of course, her light began to close in on the steamer's bow, and then for
the first time was there any apparent danger of collision. Then the Scotia's helm was immediately ported,
then hard ported, and observing that the ship's light still closed in, orders were given, in quick succession,
to half-speed, slow, reverse, and back, but notwithstanding these orders, which were all promptly obeyed,
the vessels came together in the position indicated on the diagram, and the Berkshire with her cargo went
right down in mid-ocean.
The owners of the Berkshire, one Sears and others, now for themselves and the owners of the cargo, filed
their libel in the district court at New York to recover the loss sustained by the collision. The libel
charged, of course, that the collision occurred through the fault of the Scotia. The district court decreed
for the respondents. The view of that court was that courts of admiralty were now required to take judicial
notice of the existence of the British orders in council, and of the fact that so numerous maritime states
had accepted them; that so general and adoption by such states of one rule had made a rule and usage of
the sea; that by this rule and usage -- in other words, by the law of the sea as it existed at the time of the
collision -- the Berkshire was bound to exhibit colored lights, and colored lights alone; and that as she had
not done so, she had no remedy.
The decree therefore was, that the libel be dismissed, and the circuit court affirming this decree, the case
was now here for review.
xxx
Great Britain (Eastern Extension Australia &China Telegraph Co. Claim) v United States
Syllabus
Mr. Justice Hughes delivered the opinion of the court.
This is an appeal from the judgment of the court of claims which dismissed, upon demurrer, the petition
of the claimant for the want of jurisdiction. 48 Ct. Cl. ——.
The petition averred that the claimant, a British corporation, secured from the government of Spain, in the
year 1879, a concession for the construction and operation of a submarine telegraph cable between the
island of Luzon and Hong Kong, with an exclusive privilege for forty years, under which it maintained a
cable from Hong Kong to Bolinao; and that in 1897, the government of Spain granted a further
concession for three submarine telegraph cables to provide communication between the islands of Luzon,
Panay, Negros, and Zebu, in the Philippine archipelago. Among the conditions of the last-mentioned
grant, a copy of which is annexed to the petition and made a part of it, are the following: 'Article 9. The
concessionaire undertakes to work, at his own expense and risk, the cables of this concession for a period
of twenty years, the said term to begin from the date of the taking over of the cables and their adjuncts in
perfect working order.
'Article 10. The concessionaire shall enjoy an annual subsidy of 4,500 (four thousand, five hundred
pounds sterling), payable monthly in twelve instalments, during the whole term of the working of the
cables, the said payments being made at Manila by the chief treasury office of those islands.'
'Article 16. The company holding the concession shall pay the state the 10 per cent, which tax, in its
application to cablegrams, is fixed after first deducting the amount of the expenses for the maintenance of
the stations, calculated at 6,000 (six thousand pounds sterling) per annum, the said expenses not to exceed
the amount specified.
'Article 17. It shall be obligatory to transmit official despatches, which shall enjoy precedence, at half the
rates charged for those of a private character. . . .'
In March, 1898, the claimant obtained an additional concession from the government of Spain for a
submarine telegraph cable between Hong Kong and Manila, which was completed in the following
month.
It was further alleged that the claimant had 'actually fulfilled' and continued 'to fulfil' all of the conditions
of the concessions, and 'to perform all of the duties imposed upon it' by their terms. After setting forth the
making of the treaty of Paris 30 Stat. at L. 1754, and the cession thereby to the United States of the
Philippine Islands, 31 Stat. at L. 1942, the petition continued:
'Thereupon the United States of America entered into the occupancy of said Philippine Islands, and
proceeded to exercise sovereignty over said islands and of the inhabitants thereof, and to assume
jurisdiction and control over all property and property rights in and upon said Philippine Islands,
including the several lines of submarine cable and telegraph land lines established, constructed, and
operated by the claimant, and availed itself of all of the benefits and advantages thereof, using the said
lines of cable and telegraph for its governmental and other purposes, which it has continued to do ever
since and still continues to do, and it has become in all respects the successor of the government of Spain
to all rights, privileges, and advantages conferred upon and secured and reversed to the government of
Spain under the terms of the aforesaid concessions. . . .
'By reason of the premises the United States of America assumed all of the obligations and the
performance of all the conditions accepted by the government of Spain and agreed to by it, according to
the terms of the aforesaid concessions . . . and of each of them, and agreed with the claimant to perform
the covenants and agreements, and to fulfil the conditions, set forth in said several concessions, and
accepted and agreed to by the government of Spain.
'The United States of America has failed to perform said agreements and to fulfil the said conditions, in
that it has failed and refused to pay to the claimant the annual subsidy of 4,500 sterling, as required by the
terms of article 10 of the aforesaid concession . . . for the years 1905, 1906, 1907, 1908, and 1909, and for
each of said years, and by reason of such failure and refusal to pay it has become indebted to the claimant
in the sum of 4,500 sterling for each of said years, with interest on each of said annual instalments at the
rate of 6 per cent per annum from the 31st day of December of the year in which the same became
payable.'
And judgment was demanded accordingly for the sum of $109,462.50, with interest as stated.
The government demurred to the petition, asserting (1) that it did not set forth facts sufficient to constitute
a cause of action against the United States, and (2) that it did not disclose a cause of action within the
jurisdiction of the court.
Upon hearing, the court held that it was without jurisdiction, and it was upon this ground that the petition
was dismissed. 48 Ct. Cl. ——.
The act of February 24, 1855 (10 Stat. at L. 612, chap. 122), creating the court of claims, provided that it
should hear and determine all claims 'founded upon any law of Congress, or upon any regulation of an
executive department, or upon any contract, express or implied, with the government of the United
States,'and also all claims which might be 'referred to said court by e
ess the cases upon which it had finally acted, stating the material facts found with its opinion, and to
prepare such bills as would be appropriate, if enacted, to carry its decisions into effect. Important
amendments were made by the act of March 3, 1863 (12 Stat. at L. 765, chap. 92), which gave
jurisdiction of set-offs and counterclaims, authorized appeals to the Supreme Court, and provided for
payment of final judgments out of any general appropriation made by law for the satisfaction of private
claims. But at the same time Congress was careful to exclude from the jurisdiction of the court such
claims as arose out of treaty stipulations. (Id. § 9, 12 Stat. at L. 767, chap. 92, U. S. Comp. Stat. 1901, p.
739.) As was said in Ex parte Atocha (Ex parte United States) 17 Wall. 439, 444, 21 L. ed. 696, 698: All
the cases of which the court could subsequently take cognizance, by either the original or amendatory act,
were cases arising out of contracts or transactions between the government or its officers and claimants. .
. . Those acts have since then applied only to claims made directly against
cf. Act of March 17, 1866, 14 Stat. at L. 9, chap. 19; United States v. Alire, 6 Wall. 573, 576, 18 L. ed.
947, 948. the United States, and for the payment of which they were primarily liable, if liable at all, and
not to claims against other governments, the payment of which the United States had assumed or might
assume by treaty.'
The provisions of the act of 1855, as amended, relating to jurisdiction, were placed in § 1059 of the
Revised Statutes (U. S. Comp. Stat. 1901, p. 734), and § 9 of the act of 1863 became § 1066 of the
revision (U. S. Comp. Stat. 1901, p. 739), as follows:
'Sec. 1066. The jurisdiction of the said court shall not extend to any claim against the government not
pending therein on December one, eighteen hundred and sixty-two, growing out of or dependent on any
treaty stipulation entered into with foreign nations or with the Indian tribes.'
By the act of March 3, 1887 (24 Stat. at L. 505, chap. 359, U. S. Comp. Stat. 1901, p. 752), the general
jurisdiction of the court theretofore defined by § 1059 (U. S. Comp. Stat. 1901, p. 734) was broadened,
and it was thus provided:
'That the court of claims shall have jurisdiction to hear and determine the following matters:
'First. All claims founded upon the Constitution of the United States or any law of Congress, except for
pensions, or upon any regulation of an Executive Department, or upon any contract, expressed or implied,
with the government of the United States, or for damages liquidated or unliquidated, in cases not
sounding in tort, in respect of which claims the party would be entitled to redress against the United
States, either in a court of law, equity, or admiralty if the United States were suable: Provided, however,
That nothing in this section shall be construed as giving to either of the courts herein mentioned,
jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as 'war
claims,' or to hear and determine other claims, which have heretofore been rejected, or reported on
adversely by any court, department, or commission authorized to hear and determine the same.
'Second, All set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other
demands whatsoever on the part of the government of the United States against any claimant against the
government in said court.'
The statute of 1887 repealed all inconsistent enactments. The question whether § 1066 (U. S. Comp. Stat.
1901, p. 739) was thus repealed has been raised, but not decided. United States v. Weld, 127 U. S. 51, 57,
32 L. ed. 62, 65, 8 Sup. Ct. Rep. 1000; Juragua Iron Co. v. United States, 212 U. S. 297, 310, 53 L. ed.
520, 525, 29 Sup. Ct. Rep. 385. Both the provisions above quoted and those of § 1066 (U. S. Comp. Stat.
1901, p. 739) are incorporated in the Judicial Code §§ 145, 153, 36 Stat. at L. 1136, 1138, chap. 231, U.
S. Comp. Stat. Supp. 1911, pp. 198, 201. It is argued that the act of 1887 was intended to provide a
complete scheme for the bestowal of jurisdiction over all claims against the government, save those
therein expressly excepted, and that, hence, it must be regarded as a substitute for the provisions of the
Revised Statutes, including § 1066 (U. S. Comp. Stat. 1901, p. 739), which should therefore be deemed to
be repealed (United States v. Tynen, 11 Wall. 88, 92, 20 L. ed. 153, 154; The Habana, 175 U. S. 677, 684,
685, 44 L. ed. 320, 322, 323, 20 Sup. Ct. Rep. 290). We cannot accede to this view. The question is one
of legislative intent (United States v. Claflin, 97 U. S. 546, 551, 24 L. ed. 1082, 1084). The section dealt
with a special class of cases. There is no essential repugnancy between the broadening of the general
provisions as to jurisdiction and the maintenance of the limitation as to claims based upon treaties, and, in
considering the scope and manifest purpose of the later act in relation to claims arising out of transactions
between the government, or its officers and claimants, we find no warrant for concluding that, in
enlarging the jurisdiction previously conferred by § 1059 (U. S. Comp. Stat. 1901, p. 734), it was the
intention of Congress to effect such a complete substitution as would destroy the established exception set
forth in § 1066 (U. S. Comp. Stat. 1901, p. 739). So far, then, as the petition may be viewed as one
seeking to assert a claim growing out of the treaty with Spain, we are of the opinion that it was not within
the jurisdiction of the court of claims.
It is insisted, however, that the claim should not be treated as one dependent upon a treaty stipulation
(United States v. Weld, 127 U. S. 51, 57, 32 L. ed. 62, 65, 8 Sup. Ct. Rep. 1000); that the treaty merely
serves to confer upon the United States the title to the Philippine Islands (30 Stat. at L. 1754; 31 Stat. at L.
1942); and that the claim is based upon considerations of international law. It is pointed out that it was
stated in the protocol that an article proposed for the assumption of contracts which had been entered into
by the Spanish government was rejected by the American commissioners, while it was also set forth that
it might be assumed that the United States would deal justly and equitably in respect of contracts that
were binding under the principles of international law (Sen. Doc. No. 62, 55th Cong. 3d Sess. pp. 240,
241). But, if the claim of the appellant were deemed to rest exclusively upon the transfer of sovereignty,
upon the theory that thereby, under the principles of international law, an obligation in its favor was
imposed upon the United States, the claim would still, in our judgment, be excluded by the statute from
the consideration of the court below. The words 'treaty stipulation' should not be so narrowly interpreted
as to permit the exercise of jurisdiction where the claim arises solely out of the treaty cession. Whether
the liability asserted is said to result from an express provision of assumption contained in a treaty, or is
sought to be enforced as a necessary consequence of the cession made by a treaty, it is equally within the
policy and spirit of the statute; and the letter of the statute should not be otherwise construed. It is its
evident purpose that the obligations of the United States, directly resulting from a treaty, should not be
determined by the court of claims.
But the petition has another aspect. The grant to the appellant, as already stated, provided in article 16 for
a payment of a tax of 10 per cent, and, under article 17, for precedence and half rates in the transmission
of official despatches. It is argued by the appellant that the fact that the United States 'has received and is
receiving the special tax' and 'the precedence and half rates specified' must be regarded as admitted; and it
is urged that under the general principles of jurisprudence the facts set forth in the petition import an
obligation on the part of the United States to the appellant to pay the subsidy provided for in the
concession so long as the United States shall continue to avail itself of the rights and privileges which
have accrued to it under the terms of the concession.
If the petition can be fairly said to present the claim that the United States, not simply by virtue of
succession to sovereignty under the treaty of cession, but through its subsequent transactions with the
appellant, and by contract to be implied from such transactions, has become indebted to the appellant, we
think that the claim, as thus limited, would be within the jurisdiction of the court below under the act of
1887. It is true that the averments of the petition lack definiteness. It is not specifically asseged that the
United States has received the tax or enjoyed the benefit of the half rates, nor is it precisely stated what
transactions have been had between the government and the appellant. But the petition alleges that the
United States, since it entered into the occupancy of the Islands, has 'availed itself of all the benefits and
advantages' of the submarine cable and telegraph lines established by the appellant, 'using the said lines of
cable and telegraph for its governmental and other purposes, which it has continued to do ever since and
still continues to do,' and that 'it has become in all respects the successor of the government of Spain to all
rights, privileges, and advantages conferred upon and secured and reserved to the government of Spain
under the terms of the aforesaid concession. These general allegations are not altogether inapposite with
respect to a claim based upon an implied contract outside of the treaty itself, and the claimant should not
be denied the right to have its claim, thus considered, adjudicated. In this view, the petition would be
susceptible of amendment, and its sufficiency, in law and fact, could be heard and determined.
We express no opinion upon the merits of the claim, in this aspect, as they are not before us, the court
below having declined to take jurisdiction. But as we think there was jurisdiction to pass upon the claim
under the limitations above stated, the judgment will be reversed and the cause remanded, with
instructions to the court below to take further proceedings in conformity with this opinion.
It is so ordered.
xxx
Italy v Venezuela (mixed Claims Commission 1923
The Venezuelan crisis of 1902–1903[a] was a naval blockade imposed against Venezuela by the United
Kingdom, Germany and Italy from December 1902 to February 1903, after President Cipriano Castro
refused to pay foreign debts and damages suffered by European citizens in recent Venezuelan civil wars.
Castro assumed that the United States Monroe Doctrine would see the US intervene to prevent European
military intervention. However, at the time, US president Theodore Roosevelt and the Department of
State saw the doctrine as applying only to European seizure of territory, rather than intervention per se.
With prior promises that no such seizure would occur, the US was officially neutral and allowed the
action to go ahead without objection. The blockade saw Venezuela's small navy quickly disabled, but
Castro refused to give in, and instead agreed in principle to submit some of the
claims to international arbitration, which he had previously rejected. Germany initially objected to this,
arguing that some claims should be accepted by Venezuela without arbitration.
President Roosevelt forced the Germans to back down by sending his own larger fleet under Admiral
George Dewey and threatening war if the Germans landed.[1] With Castro failing to back down, US
pressure and increasingly negative British and American press reaction to the affair, the blockading
nations agreed to a compromise, but maintained the blockade during negotiations over the details. This
led to the signing of an agreement on 13 February 1903 which saw the blockade lifted, and Venezuela
commit 30% of its customs duties to settling claims.
When the Permanent Court of Arbitration in The Hague subsequently awarded preferential treatment to
the blockading powers against the claims of other nations, the US feared this would encourage future
European intervention. The episode contributed to the development of the Roosevelt Corollary to the
Monroe Doctrine, asserting a right of the United States to intervene to stabilize the economic affairs of
small states in the Caribbean and Central America if they were unable to pay their international debts, in
order to preclude European intervention to do so.
After agreeing to arbitration in Washington, the United Kingdom, Germany and Italy reached a settlement
with Venezuela on 13 February, resulting in the Washington Protocols. Venezuela was represented by US
Ambassador in Caracas Herbert W. Bowen.[47][48] Venezuela's debts had been very large relative to its
income, with the government owing Bs120 million in principal and Bs46m in interest (and another
Bs186m claimed in war-related damages), and having an annual income of Bs30m.[49] The agreement
reduced the outstanding claims by Bs150m, and created a payment plan taking into account the country's
income.[49] Venezuela agreed in principle to pledge 30% of its customs income at its two major ports (La
Guaira and Puerto Cabello) to the creditor nations.[50] Each power initially received $27,500, with
Germany promised another $340,000 within three months.[41] The blockade was finally lifted on 19
February 1903.[43] The Washington agreements foresaw a series of mixed commissions to adjudicate
claims against Venezuela (of respectively one Venezuelan representative, one representative from the
claimant nation, and an umpire[51]), and these "worked, with a few exceptions, satisfactorily; their
awards were accepted; and the dispute was widely regarded as settled."[29]
However, the blockading nations argued for preferential treatment for their claims, which Venezuela
rejected, and on 7 May 1903 a total of ten powers with grievances against Venezuela, including the
United States, signed protocols referring the issue to the Permanent Court of Arbitration in The
Hague.[50][52] The Court held on 22 February 1904 that the blockading powers were entitled to
preferential treatment in the payment of their claims.[29] The US disagreed with the decision in principle,
and feared it would encourage future European intervention to gain such advantage.[29] As a result, the
crisis produced the Roosevelt Corollary to the Monroe Doctrine,[29] described in Theodore Roosevelt's
1904 message to Congress.[7] The Corollary asserted a right of the United States to intervene to
"stabilize" the economic affairs of small states in the Caribbean and Central America if they were unable
to pay their international debts, in order to preclude European intervention to do so.[29] The Venezuela
crisis, and in particular the arbitral award, were key in the development of the Corollary.[29]
xxx
Queen v Keyn (Court of Crown Cases reserved 1876)
Extract
Convicted felons at the Old Bailey and on assize in nineteenth-century England had no right of appeal.
They had either to submit to their fate or, if they had the means, petition the Crown for a pardon. The
legal avenues for redress were limited. A writ of error would lie to a superior court for legal errors that
appeared on the face of the record but by the nineteenth century this was seldom used. More significantly,
it was open for the trial judge to reserve questions of law for the informal and private consideration of all
the common law judges. In their illuminating studies of this practice in the eighteenth and early
nineteenth centuries, James Oldham and Randall McGowen elucidate the ways in which the judiciary
used reserved cases to develop legal doctrine and to shape the operation of criminal justice. The trend
toward increased formalization of procedure that they identify, culminated in 1848, when Parliament
created the Court for Crown Cases Reserved (CCCR). The new court adopted the existing method of
reserving cases, but was a court of record that sat and gave judgment in public. It became the highest
judicial forum for the determination of questions of criminal law until 1908, when it was superseded by
the Court of Criminal Appeal.
xxx
Three Friends 166 US 63 No. 701
Argued February 15, 1897 Decided March 1, 1587 166 U.S. 1
Syllabus
When a libel in admiralty is ordered to stand dismissed if not amended within a time named, the
prosecution of an appeal within that time is a waiver of the right to amend, and the decree of dismissal
takes effect immediately.
In admiralty cases, although the decree of the circuit court of appeals is made final in that court, this
Court may require any such case to be certified for its review and determination with the same power and
authority as if it had been brought here directly from the District or Circuit Court, and although this power
is not ordinarily to be exercised, the circumstances justified the allowance of the writ in this instance.
The forfeiture of a vessel proceeded against under Rev.Stat. § 5283, does not depend upon the conviction
of the person or persons charged with, doing the acts therein forbidden.
Neutrality, strictly speaking, consists in abstinence from any participation in a public, private or civil war
and in impartiality of conduct toward
Page 166 U. S. 2
both parties: but the maintenance unbroken of peaceful relations between two powers when the domestic
peace of one of them is disturbed is not neutrality in the sense in which the word is used when the
disturbance has acquired such head as to have demanded the recognition of belligerency, and, as mere
matter of municipal administration, no nation can permit unauthorized acts of war within its territory in
infraction of its sovereignty, while good faith towards friendly nations requires their prevention.
The word " people," as used in Rev.Stat. § 5283, forbidding the fitting out or arming of vessels with intent
that they shall be employed in the service of any foreign people, or to cruise or commit hostilities against
the subjects, citizens, or property of any foreign people with whom the United States are at peace, covers
any insurgent or insurrectionary body conducting hostilities, although its belligerency has not been
recognized.
Although the political department of the government has not recognized the existence of a de facto
belligerent power, engaged in hostility with Spain, it has recognized the existence of insurrectionary
warfare, prevailing before, at the time, and since the forfeiture sought to be enforced in this case was
incurred, and the case sharply illustrates the distinction between recognition of belligerency and
recognition of a condition of political revolt -- between recognition of the existence of war in a material
sense and of war in a legal sense.
The courts of the United States having been informed by the political department of the existence of an
actual conflict of arms, in resistance of the authority of a government with which the United States are on
terms of peace and amity, although acknowledgment of the insurgents as belligerents has not taken place,
the statute is applicable to the case.
The order for the release of the vessel was improvidently made, as it should not have been released.
The steamer Three Friends was seized November 7, 1896, by the collector of customs for the district of
St. Johns, Fla., as forfeited to the United States under § 5283 of the Revised Statutes, and thereupon,
November 12th, was libeled on behalf of the United States in the District Court for the Southern District
of Florida.
The first two paragraphs of the libel alleged the seizure and detention of the vessel, and the libel then
continued:
"Third. That the said steamboat or steam vessel, the Three Friends, was on, to-wit, on the 23d day of
May, A.D. 1896, furnished, fitted out, and armed with intent that she should be employed in the service of
a certain people, to-wit, certain people then engaged in armed resistance to the government of the King of
Spain, in the Island of Cuba, to cruise
Page 166 U. S. 3
and commit hostilities against the subjects, citizens, and property of the King of Spain, in the Island of
Cuba, with whom the United States are and were at that date at peace."
"Fourth. That the said steamboat or steam vessel, Three Friends, on, to-wit, on the 23d day of May, A.D.
1896, whereof one Napoleon B. Broward was then and there master, and within the said Southern District
of Florida, was then and there fitted out, furnished, and armed, with intent that said vessel, the said Three
Friends, should be employed in the service of a certain people, to-wit, the insurgents in the Island of
Cuba, otherwise called the 'Cuban revolutionists,' to cruise and commit hostilities against the subjects,
property, and people of the King of Spain, in the said Island of Cuba, with whom the United States are
and were then at peace."
"Fifth. That the said steamboat or steam vessel Three Friends, on, to-wit, on the 23d day of May, A.D.
1896, and whereof one N. B. Broward was then and there master, within the navigable waters of the
United States, and within the Southern District of Florida and the jurisdiction of this Court, was then and
there, by certain persons to the attorneys of the said United States unknown, furnished, fitted out, and
armed, being loaded with supplies and arms and munitions of war, and it, the said steam vessel Three
Friends, being then and there furnished, fitted out, and armed with one certain gun or guns, the exact
number to the said attorneys of the United States unknown, and with munitions of war thereof, with the
intent then and there to be employed in the service of a certain people, to-wit, certain people then engaged
in armed resistance to the government of the King of Spain in the Island of Cuba, and with the intent to
cruise and commit hostilities against the subjects, citizens, and property of the King of Spain in the said
Island of Cuba, and who, on the said date and day last aforesaid, and being so furnished, fitted out, and
armed as aforesaid, then and there aforesaid, from the navigable waters of the United States, to-wit, from
the St. Johns River, within the Southern District of Florida, and within the jurisdiction of this Court
aforesaid, proceeded upon a voyage to the Island of Cuba aforesaid, with the intent
Page 166 U. S. 4
aforesaid, contrary to the form of the statute in such case made and provided. And that by force and virtue
of the acts of Congress in such case made and provided, the said steamboat or steam vessel, her tackle,
engines, machinery, apparel, and furniture, became and are forfeited to the use of the said United States."
"Sixth. And the said attorneys say that by reason of all and singular the premises aforesaid, and that by
force of the statute in such case made and provided, the aforesaid and described steamboat or steam
vessel Three Friends, her tackle, machinery, apparel, and furniture, became and are forfeited to the use of
the said United States."
And concluded with a prayer for process and monition and the condemnation of the vessel as forfeited.
Attachment and monition having issued as prayed, Napoleon B. Broward and Montcalm Broward, master
and owners, intervened as claimants, applied for an appraisement of the vessel and her release on
stipulation, and filed the following exceptions to the libel:
"1. Sec. 5283, for an alleged violation of which the said vessel is sought to be forfeited, makes such
forfeiture dependent upon the conviction of a person for doing the act or acts denounced in the first
sentence of said section, and as a consequence of conviction of such person; whereas the allegations in
said libel do not show what persons had been guilty of the acts therein denounced as unlawful."
"2. The said libel does not show the Three Friends was fitted out and armed, attempted to be fitted out and
armed, or procured to be fitted out and armed, in violation of said section."
"3. The said libel does not show the said vessel was so fitted out and armed, or so attempted to be fitted
out and armed, or so procured to be fitted out and armed or furnished, with the intent that said vessel
should be employed in the service of a foreign prince or state or of a colony, district, or people with
whom the United States are at peace."
"4. The said libel does not show by whom said vessel was so fitted out."
"5. Said libel does not show in the service of what foreign
Page 166 U. S. 5
prince or state or colony or district or body politic the said vessel was so fitted out."
"6. The said libel does not show that said vessel was so armed or fitted out or furnished with the intent
that such vessel should be employed in the service of any body politic recognized by or known to the
United States as a body politic."
The vessel was appraised at $4,000, and a bond on stipulation given for $10,000, upon which she was
directed to be released. The cause came on to be heard upon the exceptions to the libel, and on January
18th the following decree was entered:
"This cause coming on to be heard upon exceptions to the libel, and having been fully heard and
considered, it is ordered that said second, third, fifth, and sixth exceptions be sustained and that the
libelant have permission to amend said libel; and, in event said libel is not so amended within ten days,
the same stand dismissed, and the bond herein filed be cancelled."
From this decree the United States, on January 23, prayed an appeal to the United States Circuit Court of
Appeals for the Fifth Circuit, which was allowed and duly prosecuted.
The following errors were assigned:
"First. For that the court, over the objection of the libelants, allowed the said steam vessel, Three Friends,
to be released from custody upon the giving of bond."
"Second. For that the court erred in sustaining the 2d, 3d, 5th, and 6th exceptions of the claimants to the
libel of information of the libelants."
file his comment with supporting evidence. In this case, there exists a clear conflict between the
obligation of the Philippine Government to comply with the provisions of the treaty and its equally
significant role of protection of its citizens of its right of due process. The processes outlined in the treaty
and in the presidential decree already pose an impending threat to a prospective extraditee’s
liberty as early as the evaluation stage. It is not an imagined threat to his liberty, but a very imminent one.
On the other hand, granting due process to the extradition case causes delay in the process. The rule of
pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the
parties to a treaty to keep their agreement therein in good faith. The doctrine of incorporation is applied
whenever municipal tribunals are confronted with situations in which there appears to be a conflict
between a rule of international law and the provisions of the constitution or statute of a local state. Efforts
should be done to harmonize them. In a situation, however, where the conflict is irreconcilable and a
choice has to be made between a rule of international law and municipal law, jurisprudence dictates that
municipal law should be upheld by the municipal courts. The doctrine of incorporation decrees that rules
of international law are given equal standing, but are not superior to, national legislative enactments. In
this case, there is no conflict between international law and municipal law. The United States and the
Philippines share a mutual concern about the suppression and punishment of crime in their respective
jurisdictions. At the same time, both States accord common due process protection to their respective
citizens. In fact, neither the Treaty nor the Extradition Law precludes the rights of due process from a
prospective extradite.

"Third. For that the court erred in entering a decree dismissing the libel of information herein." xxx

On February 1, application was made to this Court for a writ of certiorari to bring up the cause from said
circuit court of appeals, and, having been granted and sent down, the record was returned accordingly.

xxx

Sec of Justice v Lantion and Jimenez GR #139465 Jan 18 2000

Facts On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs of the
United States requesting for the extradition of Mark Jimenez for various crimes in violation of US laws.
In compliance with the related municipal law, specifically Presidential Decree No. 1069 “Prescribing the
Procedure for Extradition of Persons Who Have committed Crimes in a Foreign Country” and the
established “Extradition Treaty Between the Government of the Philippines and the Government of the
United States of America”, the department proceeded with proceeded with the designation of a panel of
attorneys to conduct a technical evaluation and assessment as provided for in the presidential decree and
the treaty. The respondent requested for a copy of the official extradition request as well as the documents
and papers submitted therein. The petitioner denied the request as it alleges that such information is
confidential in nature and that it is premature to provide such document as the process is not a preliminary
investigation but a mere evaluation. Therefore, the constitutional rights of the accused are not yet
available. Issue 1.Whether or not private respondent, Mark B. Jimenez, be granted access to the official
extradition request and documents with an opportunity to file a comment on or opposition thereto
2.Whether or not private respondent’s entitlement to notice and hearing during the evaluation stage of the
proceedings constitute a breach of the legal duties of the Philippine Government under the RP-US
Extradition Treaty Ruling The Supreme Court ruled that the private respondent be furnished a copy of the
extradition request and its supporting papers and to give him a reasonable period of time within which to
Tanada v Angara GR# 118295 May 2 1997
FACTS
The Philippines joined World Trade Organization as a founding member with the goal of improving
Philippine access to foreign markets, especially its major trading partners, through the reduction of tariffs
on its exports. The President also saw in the WTO the opening of new opportunities for the services
sector, the reduction of costs and uncertainty associated with exporting and the attraction of more
investments into the country. On April 15, 1994, respondent Navarro, then DTI Secretary, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral
Negotiations. On December 14, 1994, the Senate concurred in the ratification of the President of the
Philippines of the Agreement Establishing the WTO which includes various agreements and associated
legal instruments. On December 16, 1994,the President signed the Instrument of Ratification.
ISSUES
1. Whether the WTO Agreement violated the mandated economic nationalism by the Constitution
2. Whether the provisions of the WTO Agreement restricts and impairs Philippine sovereignty,
specifically the legislative power vested in the Congress
3. Whether the Senate concurrence in the WTO Agreement and its annexes but not in the other documents
referred to in the Final Act is defective and insufficient and thus constitutes abuse of discretion
RULING
1. No. The Constitution did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine economy. In fact, it allows an
exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.
The constitutional policy of a self-reliant and independent national economy does not necessarily rule out
the entry of foreign investments, goods and services. It contemplates neither economic seclusion nor
mendicancy in the international community
2. No. While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic
level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not
envision a hermit-type isolation of the country from the rest of the world. By the doctrine of
incorporation, the country is bound by generally accepted principles of international law, which are
considered to be automatically part of our laws. A treaty engagement is not a mere moral obligation on
the parties. By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. The
Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent
domain and police power. The underlying consideration in this partial sovereignty is the reciprocal
commitment of the other contracting states in granting the same privilege and immunities to the
Philippines, its officials and its citizens. The same reciprocity characterizes the same commitments under
WTO-GATT. The point is that a portion of sovereignty may be waived without violating the Constitution,
based on the rationale that the Philippines adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of
cooperation and amity with all nations.
3. No. The petitioners submit that concurrence in the WTO Agreement alone is flawed because it is in
effect a rejection of the Final Act. The Court held that a final act is an instrument which records the
winding up of the proceedings of a diplomatic conference and not the treaty itself. On the other hand, the
WTO Agreement itself expresses what multilateral agreements are deemed included as its integral parts.
It should be added that the Senate was well-aware of what it was concurring in as shown by the member’s
deliberation.
xxx
Holy See v Rosario GR #101949 Dec 1 1994
Petitioner: The Holy See
Respondent: Hon. Elidberto Rosario, Jr., in his capacity as Presiding Judge of
RTC Makati, Branch 61 and Starbright Sales Enterprises, Inc.
FACTS: Petition arose from a controversy over a parcel of land. Lot 5-A, registered under the name Holy
See, was contiguous to Lot 5-B and 5-D under the name of Philippine Realty Corporation (PRC). The
land was donated by the Archdiocese of Manila to the Papal Nuncio, which represents the Holy See, who
exercises sovereignty over the Vatican City, Rome, Italy, for his residence.
Said lots were sold through an agent to Ramon Licup who assigned his rights to respondents Starbright
Sales Enterprises, Inc.
When the squatters refuse to vacate the lots, a dispute arose between the two parties because both were
unsure whose responsibility was it to evict the squatters from said lots. Respondent Starbright Sales
Enterprises Inc. insists that Holy See should clear the property while Holy See says that respondent
corporation should do it or the earnest money will be returned. With this, Msgr. Cirilios, the agent,
subsequently returned the P100,000 earnest money.
The same lots were then sold to Tropicana Properties and Development Corporation.
Starbright Sales Enterprises, Inc. filed a suit for annulment of the sale, specific performance and damages
against Msgr. Cirilios, PRC as well as Tropicana Properties and Development Corporation. The Holy See
and Msgr. Cirilos moved to dismiss the petition for lack of jurisdiction based on sovereign immunity from
suit. RTC denied the motion on ground that petitioner already "shed off" its sovereign immunity by
entering into a business contract. The subsequent Motion for Reconsideration was also denied hence this
special civil action for certiorari was forwarded to the Supreme Court.
ISSUE: Whether or not Holy See can invoke sovereign immunity.
HELD: The Court held that Holy See may properly invoke sovereign immunity for its non-suability. As
expressed in Sec. 2 Art II of the 1987 Constitution, generally accepted principles of International Law are
adopted by our Courts and thus shall form part of the laws of the land as a condition and consequence of
our admission in the society of nations.
It was noted in Article 31(A) of the 1961 Vienna Convention on Diplomatic Relations that diplomatic
envoy shall be granted immunity from civil and administrative jurisdiction of the receiving state over any
real action relating to private immovable property. The Department of Foreign Affairs (DFA) certified
that the Embassy of the Holy See is a duly accredited diplomatic missionary to the Republic of the
Philippines and is thus exempted from local jurisdiction and is entitled to the immunity rights of a
diplomatic mission or embassy in this Court.
Furthermore, it shall be understood that in the case at bar, the petitioner has bought and sold lands in the
ordinary course of real estate business, surely, the said transaction can be categorized as an act jure
gestionis. However, petitioner has denied that the acquisition and subsequent disposal of the lot were
made for profit but claimed that it acquired said property for the site of its mission or the Apostolic
Nunciature in the Philippines.
The Holy See is immune from suit because the act of selling the lot of concern is non-propriety in nature.
The lot was acquired through a donation from the Archdiocese of Manila, not for a commercial purpose,
but for the use of petitioner to construct the official place of residence of the Papal Nuncio thereof. The
transfer of the property and its subsequent disposal are likewise
clothed with a governmental (non-proprietal) character as petitioner sold the lot not for profit or gain
rather because it merely cannot evict the squatters living in said property.
In view of the foregoing, the petition is hereby GRANTED and the complaints were dismissed
accordingly.
xxx
Kuroda v Jalandoni 83 Phil 171
I. THE FACTS
Petitioner Shigenori Kuroda, the Commanding General of the Japanese Imperial
Forces in the Philippines during the Japanese occupation, was charged before the
Philippine Military Commission of war crimes. He questioned the constitutionality of E.O.
No. 68 that created the National War Crimes Office and prescribed rules on the trial of
accused war criminals. He contended the Philippines is not a signatory to the Hague
Convention on Rules and Regulations covering Land Warfare and therefore he is
charged of crimes not based on law, national and international.
II. THE ISSUES
Was E.O. No. 68 valid and constitutional?
III. THE RULING
[The Court DENIED the petition and upheld the validity and constitutionality of
E.O. No. 68.]
YES, E.O. No. 68 valid and constitutional.
Article 2 of our Constitution provides in its section 3, that –
The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the law of the nation.
In accordance with the generally accepted principle of international law of the
present day including the Hague Convention the Geneva Convention and significant
precedents of international jurisprudence established by the United Nation all those
person military or civilian who have been guilty of planning preparing or waging a war of
aggression and of the commission of crimes and offenses consequential and incidental
thereto in violation of the laws and customs of war, of humanity and civilization are held
accountable therefor. Consequently in the promulgation and enforcement of
Execution Order No. 68 the President of the Philippines has acted in conformity
with the generally accepted and policies of international law which are part of the
our Constitution.
Petitioner argues that respondent Military Commission has no jurisdiction to try
petitioner for acts committed in violation of the Hague Convention and the Geneva
Convention because the Philippines is not a signatory to the first and signed the second
only in 1947. It cannot be denied that the rules and regulation of the Hague and
Geneva conventions form, part of and are wholly based on the generally accepted
principals of international law. In facts these rules and principles were accepted by
the two belligerent nations the United State and Japan who were signatories to the two
Convention. Such rule and principles therefore form part of the law of our nation
even if the Philippines was not a signatory to the conventions embodying them
for our Constitution has been deliberately general and extensive in its scope and
is not confined to the recognition of rule and principle of international law as
contained in treaties to which our government may have been or shall be a
Signatory.
Xxx
North Sea Continental Shelf Case 1969
Facts
Exclusive economic zones (EEZs) of the North Sea
Germany's North Sea coast is concave, while the Netherlands' and Denmark's coasts are convex. If the
delimitation had been determined by the equidistance rule ("drawing a line each point of which is equally
distant from each shore"), Germany would have received a smaller portion of the resource-rich shelf
relative to the two other states. Thus Germany argued that the length of the coastlines be used to
determine the delimitation.[1] Germany wanted the ICJ to apportion the Continental Shelf to the
proportion of the size of the state's adjacent land, which Germany found to be 'a just and equitable share',
and not by the rule of equidistance.
Relevant is that Denmark and The Netherlands, having ratified the 1958 Geneva Continental Shelf
Convention, whereas the Federal Republic of Germany did not, wished that Article 6, p. 2 (equidistance
principle) were to be applied.
Article 6
Where the same continental shelf is adjacent to the territories of two or more States whose coasts are
opposite each other, the boundary of the continental shelf appertaining to such States shall be determined
by agreement between them. In the absence of agreement, and unless another boundary line is justified by
special circumstances, the boundary is the median line, every point of which is equidistant from the
nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the
continental shelf shall be determined by agreement between them. In the absence of agreement, and
unless another boundary line is justified by special circums
nce from the nearest points of the baselines from which the breadth of the territorial sea of each State is
measured.
In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the
principles set out in paragraphs 1 and 2 of this article should be defined with reference to charts and
geographical features as they exist at a particular date, and reference should be made to fixed permanent
identifiable points on the land.
Judgment
An important question the Court answered was if the equidistance principle was, at the date of the ruling,
a customary international law binding on all States. The Court argued that it is indeed possible for
Conventions, while only contractual in origin, to pass into the corpus of international law, and thus
become binding for countries which have never become parties to the Convention. However, the Court
notes that 'this result is not lightly to be regarded as having been attained' (para 71). For the aforegoing to
happen, it would first be necessary that the provision should be of a fundamentally norm creating
character, i.e. a general rule of law. In casu, the obligation of the equidistance method came second, after
the primary obligation to effect delimitation by agreement. The court decides this is an unusual preface
for it to be a general rule of law. Furthermore, the Court took in notion that the scope and meaning
relating to the equidistance as embodied in Article 6 remained unclear. In para 74, the Court argues that
while the passage of any considerable period of time is not a requirement, it is an indispensable
requirement that within the period in question State practice should have been both extensive and
virtually uniform in the sense of the provision invoked.
Moreover, as stated in para 77, the practice must also, as a subjective element, stem from a notion of
opinio juris sive necessitatis. In other words, the States concerned must feel they are conforming to what
amounts to a legal obligation.
The Court ultimately urged the parties to "abat[e] the effects of an incidental special feature [Germany's
concave coast] from which an unjustifiable difference of treatment could result." In subsequent
negotiations, the states granted to Germany most of the additional shelf it sought.[2] The cases are viewed
as an example of "equity praeter legem"—that is, equity "beyond the law"—when a judge supplements
the law with equitable rules necessary to decide the case at hand.
Xxx
Anglo Norweagian Fisheries Case 1951
The situation which gave rise to the dispute and the facts which preceded the filing of the British
Application are recalled in the Judgment. The coastal zone concerned in the dispute is of a distinctive
configuration. Its length as the crow flies exceeds 1,500 kilometers. Mountainous along its whole length,
very broken by fjords and bays, dotted with countless islands, islets and reefs (certain of which form a
continuous archipelago known as the skjaergaard, "rock rampart"), the coast does not constitute, (as it
does in practically all other countries in the world) a clear dividing line between land and sea. The land
configuration stretches out into the sea and what really constitutes the Norwegian coastline is the outer
line of the land formations viewed as a whole. Along the coastal zone are situated shallow banks which
are very rich in fish. These have been exploited from time immemorial by the inhabitants of the mainland
and of the islands: they derive their livelihood essentially from such fishing. In past centuries
British fisherman had made incursions in the waters near the Norwegian coast. As a result of complaints
from the King of Norway, they abstained from doing so at the beginning of the 17th century and for 300
years. But in 1906 British vessels appeared again. These were trawlers equipped with improved and
powerful gear. The local population became perturbed, and measures were taken by Norway with a view
to specifying the limits within which fishing was prohibited to foreigners. Incidents occurred, became
more and more frequent, and on July 12, 1935 the Norwegian Government delimited the Norwegian
fisheries zone by Decree. Negotiations had been entered into by the two Governments; they were pursued
after the Decree was enacted, but without success. A considerable number of British trawlers were
arrested and condemned in 1948 and 1949. It was then that the United Kingdom Government instituted
proceedings before the Court.
Facts
On 28 September 1949, the UK requested that the International Court of Justice determine how far
Norway's territorial claim extended to sea, and to award the UK damages in compensation for Norwegian
interference with UK fishing vessels in the disputed waters, claiming that Norway's claim to such an
extent of waters was against international law.

Judgment

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