Filartiga v. Peña-Irala, 630 F.

2d 876
Brief Fact Summary. A suit against Pena-Irala (D) on the premise that he had
tortured to death the decedent of Filartiga (P), was filed by Filartiga (P).

Synopsis of Rule of Law. For purpose of the Allen Tort Statute, torture may be
considered to violate law of nations.

Facts. A suit claiming that Pena-Irala (D) had tortured Filartiga’s (P) decedent to
death while he was a police Inspector General, was brought by Filartiga (P). All
parties were Paraguayan citizens. Jurisdiction was based on the Allen Tort Statute,
28 U.S.C. S 1350, which provided jurisdiction for tort committed in violation of “the
law of nations.” The case was dismissed by the district court for lack of jurisdiction to
which Filartiga (P) appealed.

Issue. For purpose of the Allen Tort Statute, may torture be considered as a
violation of the law of nations?

Held. (Judge not stated in casebook excerpt). Yes. For purpose of the Allen Tort
Statute, torture may be considered to violate law of nations. The prohibition against
torture has become part of customary international law. Various United Nations
declarations such as the Universal Declaration of Human Rights and the 1975
Declaration on the Protection of All Persons from Torture further portrays the fact
that prohibition against torture has become part of customary international law.
Torture has been officially renounced in the vast majority of nations and this is the
reason why this court concluded that torture violates the law of nations.

Discussion. It is not new for many members of the United Nations to make
pronouncements and not be pronouncements into action. It is no secret that torture
is still widely practiced if not by a majority of countries then in a significant manner.
Actual practice, and not U.N. declarations have been argued by commentators as
what constitute international law.

Case of the SS Lotus, PCIJ Ser. A., No. 10 (1927)

Citation. Permanent Court of Int’l Justice, P.C.I.J. (ser. A) No. 10 (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.

Issue. Issue: Does 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 exist?

Held. (Per curiam) No. 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. Failing the existence of a permissive
rule to the contrary is the first and foremost restriction imposed by international law
on a state and it may not exercise its power in any form in the territory of another
state.

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.

Discussion. In 1975, France enacted a law regarding its criminal jurisdiction over
aliens because of this 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.

LOTUS CASE (SUMMARY)

Permanent Court of International Justice, Contentious Case: The Lotus Case
(France vs Turkey);
Year of the decision: 1927.

Overview:

A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims were Turkish
nationals and the alleged offender was French. Could Turkey exercise its jurisdiction over this French
national under international law?

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 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: 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:

“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,
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.The Court held that:

“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, the Court 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 Court based this finding on the sovereign will of States. It held that:
“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”

[Note: 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 has exclusive jurisdiction over offences committed on
board the ship in high seas. The Court 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: in other words, there was concurrent jurisdiction.

The Court 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. The Court 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.” The Court
concluded that Turkey had jurisdiction over this case. It further said:

“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 is also significant in that the Court 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: in other words, if the constituent element was absent – the
crime would not have happened. The Court said:

“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 gave an important dictum on creating customary international law. France had 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 disagreed and 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 not only in acts of States (Nicaragua Case), but also in
omissions when those omissions are made following a belief that the said State is obligated by law
to 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

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 disagreed, inter alia, with Court’s methodology in arriving at this conclusion. He
imputed the method to the principle established in the Lotus case: that which is not prohibited is
permitted under international law. He criticized the Lotus dictum as an out dated, 19th century
positivist approach that is excessively differential towards State consent. He said 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.

Fisheries Case (United Kingdom v. Norway), 1951 I.C.J. 116

Citation. I.C.J., 1973 I.C.J. 3

Brief Fact Summary. Because some circumstances changed, Iceland (D) claimed
that a fishing treaty it had with the United Kingdom (P) was no longer applicable.
Synopsis of Rule of Law. 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.

Facts. Iceland’s (D) claim to a 12-mile fisheries limit was recognized by the United
Kingdom (P) in 1961 in return for Iceland’s (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.

Discussion. Recourse to the I.C.J. in the event of a dispute was the original
agreement between the parties. The economy of Iceland (D) is dependent on
fishing. The merit of Iceland (D) argument was not reached by the Court in this
case, however, but rather dealt with the jurisdictional issues.

Nicaragua v. US

itation. The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, 44 L. Ed. 320, 1900 U.S.
LEXIS 1714 (U.S. Jan. 8, 1900)

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.
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States)

Brief Fact Summary. Nicaragua (P) brought a suit against the United States (D) on
the ground that the United States (D) was responsible for illegal military and
paramilitary activities in and against Nicaragua. The jurisdiction of the International
Court of Justice to entertain the case as well as the admissibility of Nicaragua’s (P)
application to the I.C.J. was challenged by the United States (D).

Synopsis of Rule of Law. Nicaragua (P) brought a suit against the United States (D)
on the ground that the United States (D) was responsible for illegal military and
paramilitary activities in and against Nicaragua. The jurisdiction of the International
Court of Justice to entertain the case as well as the admissibility of Nicaragua’s (P)
application to the I.C.J. was challenged by the United States (D).

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.J’s predecessor,
which was the Permanent Court of International Justice, even though Nicaragua had
failed to deposit it with that court. The admissibility of Nicaragua’s (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 Court’s 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 Court’s 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 Nicaragua’s (P)
application were that the plaintiff failed because there is no “indispensable parties”�
rule when it could not bring forth necessary parties, Nicaragua’s (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.

Discussion. Although the questions of jurisdiction and admissibility are primarily

based on the principle that the I.C.J. has only as much power as that agreed to by
the parties, these can be quite complicated. The 1946 declaration of the United
States and the 1929 declaration of Nicaragua was the main focus of the case on
declaration and each of these declarations pointed out the respective parties’ intent
as it related to the I.C.J’s jurisdiction.