Nature and Sources of

International Law (Cases)

Aratan, Bacina, Cruz, Laurente and Quiroz
?
The
Prometheus
Case

Facts
Russo-Japanese War started in 1904 and
ended in 1905. Japan won. Russia lost.
Arbitration case between Osaka Shoken
Kaisha (Japanese) and the owners of S.S.
Prometheus (Norwegians) during 1906.
Osaka chartered S.S. Prometheus for a 6-
month period with a 7 article contract
which included Article 37 which provides:
“In case of war, Prometheus should not be
directed toward a blockaded port and
should not carry any contraband of war.”
When the charter-party was signed,
hostilities had already broken out
between Russia and Japan.
The war was not known to the signers of
the contract which was made in
anticipation of war.
The government of Russia then
published a list of articles which it
declared to be war contraband which
provided:
"In general, all articles intended for war,
on sea or land, such as rice, provisions,
horses, beasts of burden and others
which can be of use in war, if they are
carried for an enemy or to an enemy
destination."
While the Prometheus was at Kobe,
Japan loading cargo for Formosa, the
owners of the ship telegraphed the master
of the vessel to “decline rice and
provisions between Japanese ports."

In consequence of the refusal of the

master to accept the cargo of rice, sugar,
and provisions, on the ground that they
were contraband within the meaning of
clause 37 of the charter-party, the
steamship could not be used in the trade
for which it was hired.

Osaka Shosen Kaisha brought an action

for breach of contract against
Prometheus.
ISSUE: WON the rice, sugar, and provisions being loaded to
the Prometheus are war contraband.
HELD: NO. The said goods are not
“war contraband” within the meaning
of the 1856 Treaty of Paris.
● Russia was one of the signatories of
the Treaty of Paris.
● Russia continues to adhere to the
Treaty of Paris even after the
declaration of war between Japan
and Russia.
● The Treaty of Paris includes the
declaration:
"The above-mentioned plenipotentiaries
being duly authorised resolved to concert
among themselves as to the means of
attaining this object ; and having come to
an agreement have adopted the following
solemn Declaration:
(1) Privateering is, and remains abolished;
(2) The neutral flag covers enemy's
goods, with the exception of contraband
of war;
(3) Neutral goods, with the exception of
contraband of war, are not liable to
capture under the enemy's flag;
(4) Blockades in order to be binding, must
be effective, that is to say maintained by a
force sufficient really to prevent access to
the coast of the enemy.
● “Contraband of war" is twice used
in this declaration without being in
any way defined.
● The result has been to attach to that
expression the following twofold
meaning:
(1) Absolute contraband of war —
which includes everything useful for
war only;
(2) Conditional contraband of war —
which includes all things which
though useful for both peace and war
become contraband if destined for
the purposes of war.
● Excluding from the meaning of
contraband of war such things as are
useful for the purposes of peace
only.
● “Provisions” come within the
definition of conditional contraband
only if and when destined for the
enemy's forces; otherwise they are
excluded from the definition.
● To construe that expression as
meaning whatever might at any time
be declared by Russia to be
contraband would be to import into
the contract between the parties an
element of uncertainty where none
need exist.
● Russia was not at liberty to declare
provisions as unconditional
contraband of war.
● Russia having been a party to the
Treaty of Paris was bound to
recognize and act upon the
generally accepted rule of
international law that provisions
are not unconditional contraband.
● Pollard v. Bell: “it is not competent
for one nation to add to the law of
nations by its own arbitrary
ordinances without the
concurrence of other nations.”
● The Russian declaration including
provisions among the list of articles
absolutely contraband and as
departing from the recognised
custom of nations had no binding
effect upon other nations, and
consequently could not excuse the
nonperformance of the contract
under the charter-party between
the Osaka Shosen Kaisha and the
owners of the S.S. Prometheus.

● A law may be established and

become international, binding upon
all nations, by the agreement of
such nations to be bound thereby,
although it may be impossible to
enforce obedience thereto by any
given nation party to the agreement.
The Nuremberg Judgement

Facts
World War II ended in 1939.
Adolf Hitler’s Germany lost the war.
One of the defenses raised by the war
criminals in Germany was:
● That as mere individuals they
were not directly liable for their
acts;
● That they were merely carrying
out the orders of Hitler; and
● That individuals have no
international duties.
They also raised that:
● There can be no punishment of
crime without a pre-existing law;
● That ex post facto punishment is
abhorrent to the law of all civilized
nations;
● That no sovereign power has made
aggressive war a crime at the time
their alleged criminal acts were
committed;
● That no statute had defined
aggressive war;
● That no penalty had been fixed for
its commission; and
● That no court had been created to
try and punish offenders.
ISSUE: WON the war criminals in Germany are liable for their
acts during World War II.
HELD: YES. They are liable for their
acts during World War II.
● International law punishes not only
States but also individuals.
● Crimes against international law
are committed by men, not by
abstract entities, and only by
punishing individuals who commit
such crimes can the provisions of
international law be enforced.
● Article 8 of the Charter of the War
Crimes Tribunal specifically
provides that:
“the fact that the defendant acted
pursuant to an order of his Government or
of a superior shall not free him from
responsibility, but may be considered in
mitigation of punishment. The true test is
not the existence of the alleged orders,
but whether or not moral choice was,
in fact, possible.”
● Individuals have international
duties which transcend the national
obligations of evidence imposed by
the individual State.
● He who violates the laws of war
cannot obtain immunity while acting
in pursuance of State authority that
moves outside its competence in
international law.
● The General Treaty for the
Renunciation of War of August 27,
1928 (Pact of Paris) was binding on
63 nations including Germany.
● The nations who signed the pact or
adhered to it unconditionally
condemned recourse to war for
the future as an instrument of
policy.
● After its signing, any nation resorting
to war as an instrument of national
policy necessarily involves the
proposition that such a war is illegal
in international law.
● Those who plan and wage such a
war are committing a crime in so
doing.
● International law is not the
product of an international
legislature.

● Such international agreements like

the Pact of Paris have to deal with
general principles of law, and not
with administrative matters of
procedure.

● The law of war is to be found not

only in treaties, but also in the
customs and practices of states
which gradually obtained universal
recognition, and from the general
principles of justice applied by jurists
and practiced by military courts.
West Rand Central
Gold Mining Co. v The
King
Facts
West Rand Central Gold Mining Co Ltd In the present proceedings, the
(“the company”) was an English company company sought to establish that
which owned and operated a goldmine
in the Transvaal, part of the South the British government was liable
African Republic (“the Republic”). In to return to the company the
October 1899, quantities of gold owned
gold seized by the Republic (an
by the company were seized by the
government of the Republic for safe entity which had ceased to exist)
keeping. Later in the same month, a or its value (£3,804).
state of war was declared between Great
Britain and the Republic which
culminated in the conquest and
annexation of the Republic by Great
Britain in September 1900.
 In reaching this conclusion, LORD ALVERSTONE CJ (with whom Wills and
JUDGEMENT: Kennedy JJ agreed) made the following observations on the relationship
between public international law and municipal law:

[406]The…proposition…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 [407] 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 show 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. …
The Paquete Habana
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: Held. (Gray, J.). Yes. Coastal It is an established rule of international

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.
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
Eastern Extension,
Australisia and China
Telegraph Co. Ltd v
US
Facts
Claimant here is a British Corporation
which entered into contracts with the
Spanish Government for construction
and operation of submarine cable and
telegraph landlines communicating
Luzon( Philippines) and Hong Kong.
Spain agreed to pay the claimant
4,500 annually payable in Manila.
Dec. 1898, the Philippines was
under Spanish rule. Under Art III of
the Treaty of Paris, Spain is ceding
the Philippines to the US. The
control and sovereignty of Spain
passed to the control and
sovereignty of the the US.
Art. VIII of the Treaty. All buildings,
wharves, public highways, ports
belonging to public domain were
relinquished to the US. The United
States government paid $20,000,000
provided that “It cannot in any respect Upon investigation, the foregoing is
impair the property or rights which by found to be a usual stipulation in
law belongs to the peaceful possession treaties and is in effect a
of property of all kinds of provinces, declaration of the rights of the
municipalities, ecclesiastical or civic inhabitants under international law.
bodies or any other associations having
legal capacity to acquire and possess
property in the aforesaid territories
renounced or ceded or of private
individuals of whatsoever nationality
such individual may be.
In the case of Cessna vs. US, the
court observed that “It is the duty og a
nation receiving a cession of territory
to respect all rights of property as
those rights were recognized by the
nation making the cession, but it is no
part of its duty to right the wrongs
which the grantor may have
committed.”
In the absence of a stipulation in
the treaty therefor, does not mean
that the US assumed personal
obligations or debts of the spanish
Government to individuals or
corporations unless under the rules
of International law, they become
liable.
When the US succeeded Spain
over the Philippine Islands, they
The cables so constructed under
were under no obligation to
the grants or contracts were not
continue contracts for public or public property and therefore did
private service of individuals or not pass to the US.
corporations than they were to
continue in office officials by the
Spanish Government.
HELD: It is not averred that the Government seized or took
physical possession of the cables or that as a sovereign over
the islands, it did not other than assume jurisdiction and
control over all property and property rights therein, including
the submarine cable and telegraph lines of the claimant,
using the latter for its governmental and other purposes, for
which it made compensation.
There is no averment that the rights of the claimant and to
the ownership in any way interrupted of interfered with by
the officers of the government other than transmission of
messages , for which compensation was made; and if they
were, such acts would constitute a tort, over which this
court would have no jurisdiction.
The obligation of Spain to the claimant was not the obligation
of the Philippines archipelago, though the Spanish
Government saw fit pay the subsidy out of the revenues of
the islands; but if we were to assume that it was, the US in
the absence of treaty stipulation would not be liable. The
general debt of the Spanish Government would be a personal
one.

Court is without jurisdiction, such petition is dismissed.

Schroeder v Biscal
Facts
The plaintiffs argue that the
seizure of the ship owned by a
british citizen - flying the British
flag, and ostensibly in
international waters(19 nautical
miles from the coast)- when an
illegal sale of whisky took place
violated a rule of customary
international law that limited
such jurisdiction to 3 nautical
miles.
HELD: “If we assume for the present that the national legislation has, by its terms,
made the acts complained of a crime against the United States even when committed
on the high seas by foreign nationals upon a ship of foreign registry, then there is no
discretion vested in the federal court, once it obtains jurisdiction, to decline enforcement.
International practice is law only in so far as we adopt it, and like all common or statute
law it bends to the will of the Congress. It is not the function of courts to annul
legislation; it is their duty to interpret and by their judicial decrees to enforce it and even
when an act of Congress is declared invalid, it is only because the basic law is being
enforced in that declaration. There is one ground only upon which a federal court may
refuse to enforce an act of Congress and that is when the act is held to be
unconstitutional. The act may contravene recognized principles of international comity,
but that affords no more basis for judicial disregard of it than it does for executive
disregard of it. These libels, therefore, cannot be attacked upon the ground that the
territorial jurisdiction of the United States cannot be extended beyond the three-mile sea
zone under international law.”
Thank you. :)