1.

Clipperton Island Case (France v Mexico) (1932)

FACTS: France claimed to have occupied an island but Mexico also claimed that Spain discovered it and that it was the
successor.
Clipperton Island is an uninhabited island coral atoll in the eastern Pacific Ocean, southwest of Mexico, west of Costa
Rica and northwest of Galapagos Islands, Equador. The island was discovered by French.
They drew up the first map and annexed it to France. The first scientific expedition took place in 1725 under Frenchman
M. Bocage, who lived on the island for several months.
Mexico also claimed it due to activities undertaken therein as early as 1848-1849. On November 17, 1858, Emperor
Napoleon III annexed it as part of the French colony of Tahiti. This did not settle the ownership question. After which,
there were no apparent acts of sovereignty on the part of France. The island remained without population. On November
24, 1897, French naval authorities found three Americans working for the American Guano Company, who had raised the
American flag. U.S. authorities denounced their act, assuring the French that they did not intend to assert American
sovereignty.
Mexico and France signed a compromise in 1909, agreeing to submit the dispute over sovereignty over Clipperton Island
to binding arbitration by King Victor Emanuel of Italy.

Issue: The issue is who, between the France and Mexico, has the sovereignty over the Clipperton Island.

HELD: For occupation you also need to possess the land which France did. (Arbitrator: King Victor Emmanuel III of
Italy) “that island was in the legal situation of terratorium nullius, and, therefore, susceptible of occupation. The question
remains whether France proceeded to an effective occupation, satisfying the conditions required by international law for
the validity of this kind of territorial acquisition.”
It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the actual, and not
the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or
series of acts, by which the occupying state reduces to its possession the territory in question and takes steps to exercise
exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place when the state establishes in the
territory itself an organization capable of making its laws respected. But this step is, properly speaking, but a means of
procedure to the taking of possession, and, therefore, is not identical with the latter. There may also be cases where it is
unnecessary to have recourse to this method. Thus, if a territory, by virtue of the fact that it was completely uninhabited,
is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed disposition
of that state, from that moment the taking of possession must be considered as accomplished, and the occupation is
thereby completed.
There is no reason to suppose that France has subsequently lost her right by derelictio, since she never had the animus of
abandoning the island, and the fact that she has not exercised her authority there in a positive manner does not imply the
forfeiture of an acquisition already definitively perfected.3
In 1931 Victor Emanuel issued his arbitral decision in the Clipperton Island Case, declaring Clipperton to be a French
possession.[23][24][25] The French rebuilt the lighthouse and settled a military outpost, which remained for seven years
before being abandoned.
 2. Magallona v. Ermita

Facts:

 In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the
Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and
the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over
their "territorial sea," the breadth of which, however, was left undetermined. Attempts to fill this void during the
second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046
remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA
5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.

 In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change
was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the
Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS
III prescribes the 1.) water-land ratio, length, 2.) contour of baselines of archipelagic States like the
Philippines7 3.) sets the deadline for the filing of application for the extended continental shelf.8 Complying
with these requirements, RA 9522 1.) shortened one baseline, 2.) optimized the location of some basepoints
around the Philippine archipelago and 3.) classified adjacent territories, namely, the Kalayaan Island
Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose islands generate their own
applicable maritime zones.

The Issues
The petition raises the following issues:
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA
9522.
3. whether RA 9522 is unconstitutional

Held: With locus standi, constitutional-- petition must fail

Ratio:

 Petitioners submit: RA 9522 "dismembers a large portion of the national territory"21 because it discards
the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties,
successively encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the
Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty of
Paris, that Spain supposedly ceded to the United States.

 Petitioners argue that from the Treaty of Paris’ technical description, Philippine sovereignty over territorial
waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area
delineated in the Treaty of Paris.—

- No. Petitioners’ theory fails. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It
is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial
waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines],
exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS
III delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations
members to codify norms regulating the conduct of States in the world’s oceans and submarine areas,
recognizing coastal and archipelagic States’ graduated authority over a limited span of waters and
 submarine lands along their coasts. Thus, baselines laws are nothing but statutory mechanisms for
UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental
shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime
space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise
of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and
sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources
in the exclusive economic zone (Article 56) and continental shelf (Article 77).
- UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. Under traditional international law typology, States acquire
(or conversely, lose) territory through occupation, accretion, cession and prescription,25 not by
executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with
the treaty’s terms to delimit maritime zones and continental shelves. Territorial claims to land features
are outside UNCLOS III, and are instead governed by the rules on general international law.

 Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands framework to draw the baselines,
and to measure the breadth of the applicable maritime zones of the KIG, "weakens our territorial claim" over
that area.27 Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion from the Philippine archipelagic
baselines results in the loss of "about 15,000 square nautical miles of territorial waters," prejudicing the livelihood
of subsistence fishermen.

 A comparison of the configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of
maritime space encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis-à-vis the Philippines’ obligations under UNCLOS III, belie this view. –

- NO. RA 9522’s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG
and the Scarborough Shoal, not Inconsistent with the Philippines’ Claim of Sovereignty Over these Areas.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed
the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize
the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS III’s
limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a statutory renunciation of
the Philippines’ claim over the KIG, assuming that baselines are relevant for this purpose.

 Petitioners’ argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws
do not enclose the KIG—
- No. Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two
provisions of UNCLOS III.
- First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the archipelago."

- Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100 nautical
miles," save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.

- Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal
for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of
the Philippine archipelago,33 such that any straight baseline loped around them from the nearest basepoint
will inevitably "depart to an appreciable extent from the general configuration of the archipelago.

 Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’ claim over Sabah
in North Borneo-- is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the
door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this
Actis without prejudice to the delineation of the baselines of the territorial sea around the territory of
 Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty.

 As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally
"converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent
and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage
rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the
Constitution—
- UNCLOS III and RA 9522 not Incompatible with the Constitution’s Delineation of Internal Waters.
Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as "archipelagic
waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water
lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS
III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil:

1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn
in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil,
and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status
of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty
over such waters and their air space, bed and subsoil, and the resources contained therein.

The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the
territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle of freedom of navigation.

Thus, domestically, the political branches of the Philippine government, in the competent discharge of their
constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent
and sea lanes passage. Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent
passage rights over the territorial sea or archipelagic waters, subject to the treaty’s limitations and conditions for
their exercise.42 Significantly, the right of innocent passage is a customary international law,thus automatically
incorporated in the corpus of Philippine law. No modern State can validly invoke its sovereignty to absolutely forbid
innocent passage that is exercised in accordance with customary international law without risking retaliatory measures
from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea
lanes passage45 does not place them in lesser footing vis-à-vis continental coastal States which are subject, in their
territorial sea, to the right of innocent passage and the right of transit passage through international straits.

The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by
archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of
their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly,
the recognition of archipelagic States’ archipelago and the waters enclosed by their baselines as one cohesive entity
prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate islands generate their own
maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’ territorial
sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47
 3. ANGLO-NORWEGIAN FISHERIES CASE
INTRODUCTION:
United Kingdom v Norway, also known as the Fisheries Case was the culmination of a dispute. Originating in 1933, over
how large an area of water surrounding Norway was Norwegian waters (that Norway thus had exclusive fishing rights to)
and how much was 'high seas' (that the UK could thus fish).

FACTS:
- The Norwegian Sea use their own way to exercise exclusive rights for fisheries and make a baseline from the
port and bays.
- UK said that this is not right and Norway does not follow the International Law in drawing the base line.
- Under article 36(2) both UK and Norway were willing to accept the jurisdiction of the ICJ on this case and
with no appeal.
- The issues that constitute the case were submitted to the court and the arguments presented by both countries.

CONTENTION OF BOTH COUNTRIES

•The United Kingdom argued that;
– Norway could only draw straight lines across bays
– The length of lines drawn on the formations of the Skaergaard fjord must not exceed 10 nautical miles (the 10 Mile rule)
– That certain lines did not follow the general direction of the coast or did not follow it sufficiently, or they did not respect
certain connection of sea and land separating them
– That the Norwegian system of delimitation was unknown to the British and lack the notoriety to provide the basis of
historic title enforcement upon opposable to by the United Kingdom.

•The Kingdom of Norway argued;

– That the base lines had to be drawn in such a way as to respect the general direction of the coast and in a reasonable
manner.

LEGAL ISSUES: On 24th September 1949 the government of the United Kingdom filed the registry of the International
Court of Justice an application instituting proceedings against Norway. The subject of the proceeding was the validity,
under international law, of the lines of delimitation of the Norwegian fisheries zone as set forth in a Decree of 12th July
1935.

The application referred to the declaration by which UK and Norway had accepted the compulsory Jurisdiction of the ICJ
in accordance with Article 36 (2) of its statute.

Article 36(2)- The states parties to the present Statute may at any time declare that they recognize as compulsory ipso
facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the
Court in all legal disputes concerning: a). The interpretation of a treaty;
b). any question of international law;
c). the existence of any fact which, if established, would constitute a breach of an international obligation;
d). the nature or extent of the reparation to be made for the breach of an international obligation.

JUDGMENT:

•The judgment was rendered in favor of Norway on 18th Dec. 1951 by 10 to 2 votes.
•The court held that method employed in the delimit action of the fisheries zone by Norway is not contrary to International
Law.
•By 8 to 4 votes the court also held that the base line fixed by this decree in application are not contrary to International
Law.

FORMATION OF CUSTOMARY LAW

•The court consistently referred to positive aspect that it is state practice and there is lack of objection of other states on
that practice.

•The court also said that 10 mile rule is adopted by several states and also have treaties between states but other states
have adopted different limit.

•The 10 mile rule has not acquired by authority of the general rule of International Law.

•There are some objection which is given by court:

– Initial Objection,
– Sustained Objection, – No Objection

EVALUATION OR CRITICISM OF JUDGMENT:

The judgment was rendered in favor of Norway on the 18th December 1951. By 10 votes to 2 the court held that the
method employed in the delimitation of the fisheries zone by the Royal Norwegian decree of the 12th July 1935 is not
contrary to international law. By 8 votes to 4 votes the court also held that the base lines fixed by this decree in
application are not contrary to international law. However there are separate opinions and dissenting opinions from the
judges in the court. However there are some judges whose opinions are different-

Judge Hackworth declared that he concurred with the operative part of the judgment because he considered that the
Norwegian government had proved the existence of historic title of the disputed areas of water.

Judge Alvarez from Chile relied on the evolving principles of the law of nations applicable to the law of the sea.

• States have the right to modify the extent of the of their territorial sea

• Any state directly concerned may object to another state's decision as to the extent of its territorial sea

• International status of bays and straits must be determined by the coastal state directly concerned with due regard
to the general interest and
 • Historic rights and concept of prescription in international law.
Judge Hsu Mo from china opinions diverge from the court's with regards to conformity with principles of international
law to the straight lines drawn by the Decree of 1935. He allowed possibility in certain circumstances, for instance, belt
measured at low tide, Norway's geographic and historic conditions. But drawing the straight lines as of the 1935 degree is
a moving away from the practice of the general rule. (Johnson 171)

The dissenting opinions from judge McNair rested upon few rules of law of international waters. Though there are
exceptions, in case of bays, the normal procedure to calculate territorial waters in from the land, a line which follows the
coastline. Judge McNair rejected the argument upon which Norway based its decree including:

• Protecting Norway's economic and other social interests

• The UK should not be precluded from objecting the Norwegian system embodied in the Decree because previous
acquiescence in the system and

• An historic title allowing the state to acquire waters that would otherwise have the status of deep sea. Judge
McNair concluded that the 1935 decree is not compatible with international law.(Johnson173)

Furthermore, Judge Read from Canada was unable to concur with parts of the judgment. Read rejected justification by
Norway for enlarging her maritime domain and seizing and condemning foreign ships (Johnson 173);

• Sovereignty of the coastal state is not the basis for Norway to claim 4 mile belt from straight base lines
• Customary international law does not recognize the rule according to which belts of territorial waters of coastal
states is to be measured.
• Norwegian system cannot be compatible with international law

CONCLUSION:
•The court held that the facts that this consisted and sufficiently long practice took place without any objection to the
practice from other states.
•This means that other states did not consider the Norwegian system to be contrary to international law.
•Norway won the case by 10 to 2 votes and on general international law by 8 to 4 votes.

4.
5. THE SCHOONER EXCHANGE (THE EXCHANGE V MCFADDON)
Facts: On 24 August, 1811, John McFaddon & William Greetham, of the State of Maryland, filed their libel in the
District Court of the United States for the District of Pennsylvania against the Schooner Exchange, setting forth that they
were its sole owners, on 27 October, 1809, when the ship sailed from Baltimore, bound to St. Sebastians, in Spain. That
while lawfully and peaceably pursuing her voyage, she was on 30 December, 1810, violently and forcibly taken by certain
persons, acting under the decrees and orders of Napoleon, Emperor of the French, out of the custody of the libellants. In
the commission it was stated that the vessel was armed at Bayonne. The libel with costs upon the ground that a public
armed vessel of a foreign sovereign in amity with our government is not subject to the ordinary judicial tribunals of the
country so far as regards the question of title by which such sovereign claims to hold the vessel.
Issue: Whether an American citizen can assert in an American court a title to an armed national vessel found within the
waters of the United States.
Held: Dismissal of the libel is affirmed.
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. All exceptions, therefore, to the full and complete power of a nation within its own
territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.
Rise to a Class of cases in which every sovereign is understood to waive the exercise of a part of that complete
exclusive territorial jurisdiction which has been stated to be the attribute of every nation.

1st. One of these is admitted to be the exemption of the person of the sovereign from arrest or detention within a
foreign territory.
If he enters that territory with the knowledge and license of its sovereign, that license, although containing no stipulation
exempting his person from arrest, is universally understood to imply such stipulation.

2nd. A second case, standing on the same principles with the first, is the immunity which all civilized nations allow
to foreign ministers.
In what cases a minister, by infracting the laws of the country in which he resides, may subject himself to other
punishment than will be inflicted by his own sovereign is an inquiry foreign to the present purpose. If his crimes be such
as to render him amenable to the local jurisdiction, it must be because they forfeit the privileges annexed to his character,
and the minister, by violating the conditions under which he was received as the representative of a foreign sovereign, has
surrendered the immunities granted on those conditions, or, according to the true meaning of the original assent, has
ceased to be entitled to them.

3rd. A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is where he
allows the troops of a foreign prince to pass through his dominions.
It is obvious that the passage of an army through a foreign territory will probably be at all times inconvenient and
injurious, and would often be imminently dangerous to the sovereign through whose dominion it passed.
But the rule which is applicable to armies does not appear to be equally applicable to ships of war entering the parts of a
friendly power.
It seems then to the Court to be a principle of public law that national ships of war entering the port of a friendly power
open for their reception are to be considered.
the Exchange, being a public armed ship in the service of a foreign sovereign with whom the government of the United
States is at peace must be considered as having come into the American territory under an implied promise she should be
exempt from the jurisdiction of the country.

6. Underhill v. Hernandez
Facts: BACKGROUND
- In 1892 a revolution against the administration was initiated in Venezuela
- Revolutionists under control of a certain Crespo claimed that the administration had ceased to be the
legitimate government
- Gen. Hernandez belonged to the anti-administration party (basically the revolutionists), and commanded its
forces in the vicinity of Ciudad Bolivar
- On the 8th of Aug. 1892; an engagement took place between the armies of the two parties at Buena Vista,
some seven miles from Bolivar, in which the troops under Hernandez prevailed
- On the 13th of Aug., Hernandez entered Bolivar, and assumed command of the city
- All of the local officials had in the meantime left, and the vacant positions were filled by Gen. Hernandez
- In October the Crespo party had achieved success generally and was formally recognized as the legitimate
government of Venezuela by the United States
PETITIONER:
- George F. Underhill was a citizen of the United States, who had constructed a waterworks system for the city
of Bolivar, under a contract with the government
- He was engaged in supplying the place with water, and carrying on a machinery repair business
- Some time after the entry of Gen. Hernandez, Underhill applied to him (as the officer in command) for a
passport to leave the city
- Hernandez refused this request (did not say what the reason for refusal was)
- On Oct. 18, a passport was finally given to him and Underhill left the country
- Underhill brought an action to recover damages in the United States Court for the detention caused by the
refusal to grant him a passport, and for the assault he suffered from Hernandez’s army

RESPONDENT:
- The case was tried at the Circuit court of the United States for the Eastern district of New York where verdict
was rendered in favor of the defendant Hernandez, on the ground that 'because the acts of defendant were
those of a military commander, representing a de facto government in the prosecution of a war, he was not
civilly responsible therefor.’
- Underhill appealed the judgment to the circuit court of appeals where the judgment was affirmed
- The circuit court of appeals held ‘that the acts of the defendant were the acts of the government of Venezuela,
and as such are not properly the subject of adjudication in the courts of another government.' (BASICALLY
THE DOCTRINE)
- Unsatisfied, Underhill brought the case to the Supreme Court on certiorari
ISSUE(S): Did the lower courts err in ruling in favor of defendant Hernandez?
(Restated for clarity – Did the lower courts err in ruling that Underhill has no cause of action against Hernandez, seeing as
his acts are acts of another government, and are not subject to the adjudication of another government?)
HELD: NO. Lower courts were correct in ruling for Hernandez. JUDGMENT IS AFFIRMED.
Hernandez’s acts are acts of the Venezuelan government and cannot be subject to the adjudication of the United States
government and courts
As quoted from the case; “Every sovereign state is bound to respect the independence of every other sovereign state, and
the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.
Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign
powers as between themselves.”
The government and the courts of United States cannot pass judgment or subject Hernandez under their adjudication
because his acts are acts of the government of Venezuela
As a rule, each and every state must observe respect for the sovereignty of the other states – especially in this case where
United States expressly recognized the new government

CASE LAW/ DOCTRINE: “Every sovereign state is bound to respect the independence of every other sovereign state,
and the courts of one country will not sit in judgment on the acts of the government of another, done within its own
territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by
sovereign powers as between themselves.”

7. LOTUS CASE (SUMMARY) PICJ, January 4, 1927

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.

Questions before the Court: Did Turkey violate international law when Turkish courts exercised jurisdiction over a
crime committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France?

The Court’s Decision: Turkey, by instituting criminal proceedings against Demons, did not violate international law.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing rule of international
law or is the mere absence of a prohibition preventing the exercise of jurisdiction enough?

The first principle of the Lotus case said that jurisdiction is territorial: A State cannot exercise its jurisdiction  outside its
territory unless an international treaty or customary law permits it to do so. This is what we called the first Lotus
Principle.

“Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a
permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense
jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive
rule derived from international custom or from a convention.” (para 45)

The second principle of the Lotus case: Within its territory, a State may exercise its jurisdiction, on any matter, even if
there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of
discretion, which is only limited by the prohibitive rules of international law.

“It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in
respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive
rule of international law. Such a view would only be tenable if international law contained a general prohibition to States
to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their
territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is
certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the
effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and
acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain
cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best
and most suitable. This discretion left to States by international law explains the great variety of rules which they have
been able to adopt without objections or complaints on the part of other States …In these circumstances all that can be
required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these
limits, its title to exercise jurisdiction rests in its sovereignty.” (paras 46 and 47)
This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite to exercise jurisdiction, PCIJ
argued, then “it would…in many cases result in paralysing the action of the courts, owing to the impossibility of citing a
universally accepted rule on which to support the exercise of their [States’] jurisdiction” (para 48).

The PCIJ based this finding on the sovereign will of States.

“International law governs relations between independent States. The rules of law binding upon States therefor emanate
from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing independent communities or with a view to the
achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed”

[NB: This was one of the more debated aspects of the judgement. Some argued that the Court placed too much emphasis
on sovereignty and consent of States (i.e. took a strong positivist view)].

Criminal Jurisdiction: Territorial Jurisdiction

France alleged that the flag State of a vessel would have exclusive jurisdiction over offences committed on board the ship
in high seas. The PCIJ disagreed. It held that France, as the flag State, did not enjoy exclusive territorial jurisdiction in the
high seas in respect of a collision with a vessel carrying the flag of another State (paras 71 – 84). The Court held that
Turkey and France both have jurisdiction in respect of the whole incident: i.e. there is concurrent jurisdiction.

The PCIJ held that a ship in the high seas is assimilated to the territory of the flag State. This State may exercise its
jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the exclusion of all other States.
In this case, the Court equated the Turkish vessel to Turkish territory. In this case, the PCIJ held that the “… offence
produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the
application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners.”
Turkey had jurisdiction over this case.

 “If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign
territory, the same principles must be applied as if the territories of two different States were concerned, and the
conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on
which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its
territory and prosecuting, accordingly, the delinquent.”

The Lotus Case was also significant in that the PCIJ said that a State would have territorial jurisdiction, even if the crime
was committed outside its territory, so long as a constitutive element of the crime was committed in that State. Today, we
call this subjective territorial jurisdiction. In order for subjective territorial jurisdiction to be established, one must prove
that the element of the crime and the actual crime are entirely inseparable; i.e., if the constituent element was absent – the
crime would not have happened.

“The offence for which Lieutenant Demons appears to have been prosecuted was an act – of negligence or imprudence –
having its origin on board the Lotus, whilst its effects made themselves felt on board the Boz-Kourt. These two elements
are, legally, entirely inseparable, so much so that their separation renders the offence non-existent… It is only natural that
each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of
concurrent jurisdiction.”

Customary International Law

The Lotus case gives an important dictum on creating customary international law. France alleged that jurisdictional
questions on collision cases are rarely heard in criminal cases because States tend to prosecute only before the flag State.
France argued that this absence of prosecutions points to a positive rule in customary law on collisions.The Court held
that this “…would merely show that States had often, in practice, abstained from instituting criminal proceedings, and
not that they recognized themselves as being obliged to do so; for only if such abstention were based  on their being
conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not
allow one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen,
there are other circumstances calculated to show that the contrary is true.” In other words, opinio juris is reflected in acts
of States (Nicaragua Case) or in omissions (Lotus case) in so far as those acts or omissions are done following a belief
that the said State is obligated by law to act or refrain from acting in a particular way. (For more on opinio juris click here)

Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of the Lotus Case

1. Advisory Opinion on the Unilateral Declaration of Kosovo (2010)

In the Kosovo Advisory Opinion the Court had to decide if the unilateral declaration of Kosovo of February 2008 was ‘in
accordance with’ international law. The Court inquired and concluded that the applicable international law did not
prohibit an unilateral declaration of independence. Based on this finding, the Court decided that ‘the adoption of the
declaration of independence  did not… violate any applicable rule of international law’.

Judge Simma disagrees, inter alia, with  Court’s methodology in arriving at this conclusion. He imputes the method to the
principle established in the Lotus case: that which is not prohibited is permitted under international law. He criticises the
Lotus dictum as an out dated, 19th century positivist approach that is excessively differential towards State consent. He
says that the Court should have considered the possibility that international law can be deliberately neutral or silent on the
international lawfulness of certain acts. Instead of concluding that an the absence of prohibition ipso facto meant that a
unilateral declaration of independence is permitted under international law, the  court should have inquired whether under
certain conditions international law permits or tolerates unilateral declarations of independence.