Paquette Habana Case / Spain V US (For Cuba)

Brief Fact Summary. The argument of the fishermen whose vessels was seized by the U.S (P)
officials was that international law exempted coastal fishermen from capture as prizes of war.

Synopsis of Rule of Law. The argument of the fishermen whose vessels was seized by the U.S (P)
officials was that international law exempted coastal fishermen from capture as prizes of war.

Facts. This appeal of a district court decree, which condemned two fishing vessels and their
cargoes as prizes of war, was brought by the owners (D) of two separate fishing vessels. Each of the
vessel running in and out of Havana and sailing under the Spanish flag was a fishing smack which
regularly engaged in fishing on the coast of Cuba. Inside the vessels were fresh fish which the crew
had caught.
The owners of the vessels were not aware of the existence of a war until they were stopped by U.S.
(P) squadron. No incriminating material like arms were found on the fishermen and they did not
make any attempt to run the blockade after learning of its existence not did they resist their arrest.
When the owners (D) appealed, they argued that both customary international law and writings of
leading international scholars recognized an exemption from seizure at wartime of coastal fishing
vessels.

Issue. Are coastal fishing vessels with their cargoes and crews excluded from prizes of war?

Held. (Gray, J.). Yes. Coastal fishing vessels with their cargoes and crews are excluded from prizes of
war. The doctrine that exempts coastal fishermen with their vessels and crews from capture as
prizes of war has been known by the U.S. (P) from the time of the War of Independence and has
been recognized explicitly by the French and British governments. It is an established rule of
international law that coastal fishing vessels with their equipment and supplies, cargoes and crews,
unarmed and honestly pursuing their peaceful calling of catching and bringing in fish are exempt
from capture as prizes of war. Reversed.

Discussion. Chief Justice Fuller who had a dissenting opinion which was not published in this
casebook argued that the captured vessels were of such a size and range as to not fall within the
exemption. He further argued that the exemption in any case had not become a customary rule of
international law, but was only an act of grace that had not been authorized by the President.

I vikipedijos :

Background of the case

In April 1898 two fishing vessels, the Paquete Habana and the Lola, separately left Cuban ports in
Havana in order to fish. The two vessels were eventually captured by US merchant vessels as part
of Admiral William T. Sampson's blockade of Cuba, who was ordered to execute the blockade 'in
pursuance of the laws of the United States, and the law of nations applicable to such cases.' The
vessels were placed within Cuba's territorial waters at the onset of the SpanishAmerican War and
then taken to Key West, where both vessels were eventually auctioned by the district court. Both
vessels were valued under the price of $2,000(US) and were thus not originally thought to be
exempt from seizure.

Admiral Sampson justified the seizures by stating that most fishing vessels, flying under the
Spanish banner were manned by excellent seamen, "liable for further service" as naval reserves,
an asset that could eventually be used against US interests in the Spanish-American War.

The owners of the vessels however made an appeal to the circuit courts, citing a long held
tradition by nations of exempting fishing vessels from prize capture in times of war. This
"tradition", a primary example of customary international law, dates back from an order by Henry
IV in 1403, and has more or less been observed by a large majority of States ever since.

At the time of capture both vessels had no evidence of aiding the enemy, and were unaware of the
US naval blockade. No arms were found on board, and no attempts were made to either run the
blockade or resist capture.

The court's decision and merits

The United States Supreme Court cited lengthy legal precedents established to support the
existence of a customary international law that exempted fishing vessels from prize capture, dating
all the way back to ancient times and occurring repeatedly between Great Britain and France. In
1403, King Henry IV of England issued his officers leave fisherman alone during times of war. He
then signed a treaty with France reaffirming this act between both parties. Again in 1521 between
Emperor Charles V and Francis I of France a treaty was assigned. This treaty was invoked due to a
desperate rise in the markets for herring. With the war between the two countries raging on,
fisherman dared not venture out to sea. Therefore, a treaty was necessary on both accounts to
prevent starvation among those who relied upon cheap herring, namely the lower classes.
Situations similar to this continued to crop up throughout history prior to the Paquete case. Using
this as a basis for customary law, the court then eventually found the capture of both vessels as
"unlawful and without probable cause", reversed the District Court's decision, and ordered the
proceeds of the auction as well as any profits made from her cargo to be restored to the claimant,
"with damages and costs".

Lotus Case (France V Turkey)

Facts of the Case:

A collision occurred on the high seas between a French vessel Lotus and a Turkish vessel Boz-
Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10
survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In
Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were
charged with manslaughter. Demons, a French national, was sentenced to 80 days of imprisonment
and a fine. The French government protested, demanding the release of Demons or the transfer of
his case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to
the Permanent Court of International Justice (PCIJ).

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 Courts 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: 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
principle of the Lotus Case. The Court held that:

The second principle of the Lotus Case: Within its territory, a State may exercise its jurisdiction, in 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.

Lotus principle

The Lotus principle or Lotus approach, usually considered a foundation of international law, says
that sovereign states may act in any way they wish so long as they do not contravene an explicit
prohibition. The application of this principle an outgrowth of the Lotus case to future incidents
raising the issue of jurisdiction over people on the high seas was changed by article 11 [1] of the
1958 High Seas Convention. The convention, held in Geneva, laid emphasis on the fact that only
the flag state or the state of which the alleged offender was a national had jurisdiction over sailors
regarding incidents occurring in high seas.

The principle has also been used in arguments against the reasons of the United States of America
for opposing the existence of the International Criminal Court (ICC).[2]

US V Nicaragua
Facts
The United States (D) challenged the jurisdiction of the I.C.J when it was held responsible for illegal military
and paramilitary activities in and against Nicaragua (P) in the suit the plaintiff brought against the defendant
in 1984. Though a declaration accepting the mandatory jurisdiction of the Court was deposited by the
United States (D) in a 1946, it tried to justify the declaration in a 1984 notification by referring to the 1946
declaration and stating in part that the declaration shall not apply to disputes with any Central American
State.
Apart from maintaining the ground that the I.C.J lacked jurisdiction, the States (D) also argued that
Nicaragua (P) failed to deposit a similar declaration to the Court. On the other hand, Nicaragua (P) based its
argument on its reliance on the 1946 declaration made by the United states (D) due to the fact that it was a
state accepting the same obligation as the United States (D) when it filed charges in the I.C.J. against the
United States (D).
Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J. was pointed out by the valid
declaration it made in 1929 with the I.C.Js predecessor, which was the Permanent Court of International
Justice, even though Nicaragua had failed to deposit it with that court. The admissibility of Nicaraguas (P)
application to the I.C.J. was also challenged by the United States (D).

Issue. (1) Is the jurisdiction to entertain a dispute between two states, if they both accept the Courts
jurisdiction, within the jurisdiction of the International Court of Justice?
(2) Where no grounds exist to exclude the application of a state, is the application of such a state to the
International Court of Justice admissible?

Held. (1) Yes. The jurisdiction of the Court to entertain a dispute between two states if each of the States
accepted the Courts jurisdiction is within the jurisdiction of the International Court of Justice. Even though
Nicaragua (P) declaration of 1929 was not deposited with the Permanent Court, because of the potential
effect it had that it would last for many years, it was valid.
Thus, it maintained its effect when Nicaragua became a party to the Statute of the I.C.J because the
declaration was made unconditionally and was valid for an unlimited period. The intention of the current
drafters of the current Statute was to maintain the greatest possible continuity between it and the
Permanent Court. Thus, when Nicaragua (P) accepted the Statute, this would have been deemed that the
plaintiff had given its consent to the transfer of its declaration to the I.C.J.
(2) Yes. When no grounds exist to exclude the application of a state, the application of such a state to the
International Court of Justice is admissible. The five grounds upon which the United States (D) challenged
the admissibility of Nicaraguas (P) application were that the plaintiff failed because there is no
indispensable parties rule when it could not bring forth necessary parties, Nicaraguas (P) request of the
Court to consider the possibility of a threat to peace which is the exclusive province of the Security Council,
failed due to the fact that I.C.J. can exercise jurisdiction which is concurrent with that of the Security
Council, that the I.C.J. is unable to deal with situations involving ongoing armed conflict and that there is
nothing compelling the I.C.J. to decline to consider one aspect of a dispute just because the dispute has
other aspects due to the fact that the case is incompatible with the Contadora process to which Nicaragua
(P) is a party.

Nuclear weapon case

Facts. A request for an advisory opinion as to whether states are permitted to use nuclear weapons
under international law was laid on the table of the International Court of Justice by the U.N.
General Assembly.

Issue. Under certain circumstances, are threats or use of nuclear weapons permitted under
international law?
Held. Yes. Under certain circumstance, threat or use of nuclear weapons are permitted under
international law. The threat or use of nuclear weapons in all circumstances is not authorized or
prohibited by either the customary or conventional international nuclear law.
Under the U.N. Charter, the threat or use of nuclear weapons would be considered legal if all
requirements of Article 51 which deals with states rights to self-defense are met. However, in
whatever the situation can be, a state obligation exists to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its aspect under strict and effective
international control.

Qatar v. Bahrain

Facts. A dispute concerning sovereignty over certain islands and shoals, including the delimitation of a
maritime boundary were issues upon which Qatar (P) and Bahrain (D) sought to resolve for 20 years. During
this period of time, letters were exchanged and acknowledged by both parties heads of state. A Tripartite
Committee for the purpose of approaching the International Court of Justice.. was formed by
representatives of Qatar (P), Bahrain (D) and Saudi Arabia. Though the committee met several time, it failed
to produce an agreement on the specific terms for submitting the dispute to the Court. Eventually, the
meetings culminated in Minutes, which reaffirmed the process and stipulated that the parties may
submit the dispute to the I.C.J. after giving the Saudi King six months to resolve the dispute. The Courts
jurisdiction was disputed by Bahrain (D) when Qatar (P) filed a claim in the I.C.J.

Issue. Yes. An international agreement creating rights and obligations can be constituted by the signatories
to the minutes of meetings and letters exchanged. Though Bahrain (D) argued that the Minutes were only a
record of negotiation and could not serve as a basis for the I.C.J.s jurisdiction, both parties agreed that the
letters constituted an international agreement with binding force.
International agreements do not take a single form under the Vienna Convention on the Law of Treaties,
and the Court has enforced this rule in the past. In this case, the Minutes not only contain the record of the
meetings between the parties, it also contained the reaffirmation of obligations previously agreed to and
agreement to allow the King of Saudi Arabia to try to find a solution to the dispute during a six-month
period, and indicated the possibility of the involvement of the I.C.J. The Minutes stipulated commitments to
which the parties agreed, thereby creating rights and obligations in international law. This is the basis
therefore of the existence of international agreement.
On the part of the Bahrains (D) Foreign Minister, he argued that no agreement existed because he never
intended to enter an agreement fails on the grounds that he signed documents creating rights and
obligations for his country. Also, Qatars (P) delay in applying to the United Nations Secretariat does not
indicate that Qatar (P) never considered the Minutes to be an international agreement as Bahrain (D)
argued. However, the registration and non-registration with the Secretariat does not have any effect on the
validity of the agreement.

Held. Yes. An international agreement creating rights and obligations can be constituted by the signatories
to the minutes of meetings and letters exchanged. Though Bahrain (D) argued that the Minutes were only a
record of negotiation and could not serve as a basis for the I.C.J.s jurisdiction, both parties agreed that the
letters constituted an international agreement with binding force.
Bosnia and Herzegovina v. Serbia and Montenegro

Facts. The republics of Bosnia and Herzegovina (P), Croatia, Macedonia and Slovenia declared
independence when the Socialist Federal Republic of Yugoslavia began to break up in the early 1990s. this
led Serbia and Montenegro to declare themselves the Federal Republic of Yugoslavia (FRY) (D). A massacre
was perpetrated by Serbian forces on 8000 Bosnia Muslim men of fighting age in a small village called
Srebrenica in July 1995 during armed conflicts that arose in 1992-1995 within Bosnia and Herzegovina (P). A
suit was filed against the FRY (Serbia and Montenegro) (D) by Bosnia and Herzegovina (P) in 1993 in the
International Court of Justice, claiming violations of the Convention on the Prevention and Punishment of
the Crime of Genocide, on the theory that the FRY (D) was responsible for the actions of Serbian forces.

Issue. Under International law, is the conduct if any state organ considered an act of the state, which can
give rise to the responsibility of the state if the conduct constitutes a breach of an international obligation
of the state?

Held. (Judge not identified in casebook excerpt). Yes. Under International law, the conduct of any state
organ is to be considered an act of the state, therefore giving rise to the responsibility of the state if the
conduct constitutes a breach of an international obligation of the state. This is a rule of customary
international law that was codified in Article 4 of the ILC Articles of State responsibility.
No evidence showed that the Serbian forces were de jure organs of FRY (D) and this case did not show that
the army of the FRY (D) took part in the massacres or that the political leaders of the state had any part of
it. Though the FRY (D) was providing some sought of financial and other support to the Serbian forces, this
does not automatically make them organs of the FRY (D).
Also, no evidence was provided to prove that the Serbs were under the effective control of FRY (D) while
conducting the massacre at Srebrenica. This can only imply that those who were responsible for the
massacre were not organs of the FRY (D) and the FRY (D) cannot take responsibility under international law
for the massacres.

Gabcikovo-Nagymaros Project (Hungary/Slovakia)

Facts. In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for the construction of dams and other
projects along the Danube River that bordered both nations. Czechoslovakia (D) began work on damming
the river in its territory when Hungary (P) stopped working on the project and negotiation could not resolve
the matter which led Hungary (P) to terminate the Treaty. Hungary (P) based its action on the fact that the
damming of the river had been agreed to only on the ground of a joint operation and sharing of benefits
associated with the project, to which Czechoslovakia (D) had unlawfully unilaterally assumed control of a
shared resource.

Issue. Shall watercourse states participate in the use, development and protection of an international
watercourse in an equitable and reasonable manner?

Held. Yes. Watercourse states shall participate in the use, development and protection of an international
watercourse in an equitable and reasonable manner. Hungary (P) was deprived of its rights to an equitable
and reasonable share of the natural resources of the Danube by Czechoslovakia (D) and also failed to
respect the proportionality that is required by international law. Cooperative administration must be
reestablished by the parties of what remains of the project.

Fisheries Jurisdiction (United Kingdom v. Iceland)

Facts. Icelands (D) claim to a 12-mile fisheries limit was recognized by the United Kingdom (P) in 1961 in
return for Icelands (D) agreement that any dispute concerning Icelandic fisheries jurisdiction beyond the
12-mile limit be referred to the International Court of Justice. An application was filed before the I.C.J. when
Iceland (D) proposed to extend its exclusive fisheries jurisdiction from 12 to 50 miles around its shores in
1972. By postulating that changes in circumstances since the 12-mile limit was now generally recognized
was the ground upon which Iceland (D) stood to argue that the agreement was no longer valid. Iceland (D)
also asserted that there would be a failure of consideration for the 1961 agreement.

Issue. In order that a change of circumstances may give rise to a ground for invoking the termination of a
treaty, is it necessary that it has resulted in a radical transformation of the extent of the obligation still to be
performed?

Held. Yes. In order that a change of circumstances may give rise to the premise calling for the termination of
a treaty, it is necessary that it has resulted in a radical transformation of the extent of the obligations still to
be performed.
The change of circumstances alleged by Iceland (D) cannot be said to have transformed radically the extent
of the jurisdictional obligation that was imposed in the 1961 Exchange of Notes.

Nuclear Tests Case (Australia & New Zealand v. France)

Facts. A series of nuclear tests was completed by France (D) in the South Pacific. This action made Australia
and New Zealand (P) to apply to the I.C.J. demanding that France (D) cease testing immediately. Before the
case could be completed, France (D) announced it had completed the test and did not plan any further test.
So France (D) moved for the dismissal of the application.

Issue. May declaration made through unilateral act has effect of creating legal obligations?

Held. Yes. Declaration made through unilateral acts may have the effect of creating legal obligations. In this
case, the statement made by the President of France must be held to constitute an engagement of the State
in regard to the circumstances and intention with which they were made. Therefore, these statement made
by the France (D) are relevant and legally binding. Application was dismissed.