Reyes, Joselle J.

Law 312 – Public International Law

Island of Palmas Arbitration Case (1928)

II RIAA 829
Digest
(Topic 3)

Doctrine: A title that is inchoate cannot prevail over a definite title

found on the continuous and peaceful display of sovereignty.

Facts: Both the United States (P) laid claim to the ownership of the
Island of Palmas. While the U.S. (P) maintained that it was part of the
Philippines, the Netherlands (D) claimed it as their own. The claim of
the U.S. (P) was back up with the fact that the islands had been
ceded by Spain by the Treaty of Paris in 1898, and as successor to
the rights of Spain over the Philippines, it based its claim of title in the
first place on discovery. On the part of the Netherlands (D), they
claimed to have possessed and exercised rights of sovereignty over
the island from 1677 or earlier to the present.

Issue: Can a title which is inchoate prevail over a definite title found
on the continuous and peaceful display of sovereignty?

Ruling: No. A title that is inchoate cannot prevail over a definite title
found on the continuous and peaceful display of sovereignty. The
peaceful and continuous display of territorial sovereignty is as good
as title. However, discovery alone without subsequent act cannot
suffice to prove sovereignty over the island. The territorial sovereignty
of the Netherlands (D) was not contested by anyone from 1700 to
1906. The title of discovery at best an inchoate title does not
therefore prevail over the Netherlands (D) claims of sovereignty.

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Evidence of contracts made by the East India Company and the
Netherlands (D) was examined by the arbitrator. The claims made by
the Netherlands (D) were also based on the premise of the
convention it had with the princes and native chieftains of the islands.
Hence, at the time of the Treaty of Paris in 1898, Spain was found not
to have dominion over the island.

Joyce vs. Director of Public Prosecutions

House of Lords, December 18, 1945

Protective Principle

Facts: The appellant, Mr Joyce was an American citizen born in the

United States of America in 1906. At about three years of age, He
was brought to Ireland. In 1921, he came to England where he stayed
until 1939. On 4 July 1933, he applied for a British passport
describing himself as a British subject by birth, born in Galway. He
asked for the passport for the purpose of holiday touring in Belgium,
France, Germany, Switzerland, Italy and Austria. He was granted the
passport for a period of five years. On its expiry, again describing
himself as a British subject. He obtained renewals on 26 September
1938 and on 24 August 1939 each for a period of one year.

On some day after 24 August 1939, the appellant left the realm. On
his arrest in 1945, it was proved that he had been employed by the
German radio company of Berlin as an announcer of English news
from 18 September 1939 and that he had broadcast propaganda on
behalf of the enemy. The passport was not found in his possession
when he was arrested. He was charged with High Treason by
adhering to the King’s enemies elsewhere than in the King ’s Realm,
to wit, in the German Realm, contrary to the Treason Act 1351.
Having been convicted of high treason, he appealed.

Issue: Whether or not an alien can be convicted of high treason-act

committed outside the United Kingdom?

Ruling: The appeal was dismissed. An alien abroad holding a British

passport enjoys the protection of the Crown and if he is adherent to

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the King’s enemies he is guilty of treason. So long as has not
renounced that portion.

The capability of a state to prosecute and punish its nationals on the

sole basis of their nationality is based upon the loyalty which the
person charged with the crime owes to the State of which he is a
national. It is now generally accepted that a state may prosecute its
nationals for crimes committed anywhere in the world.

Also, in this case, the protective principle was accepted by the House
as providing can substitute basis for jurisdiction.

THE CASE OF THE S.S LOTUS, FRANCE VS TURKEY

JUDGEMENT, 7 September 1927, Permanent Court of

International Justice (PCIJ)

Facts: 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. France contended that the criminal responsibility of
the accused, who was a French national, was a matter that belonged
exclusively to French courts. This was because acts that occur on the
high seas fall within the responsibility of the nationality of the ship.
Further, that “jurisdiction is given to the courts whose flag the vessel
flies.” However, Turkey contended they held jurisdiction as the act
occurred on board the S.S. Boz-kourt. . Turkey and France agreed to
refer this dispute on the jurisdiction to the Permanent Court of
International Justice (PCIJ).

Issue: Whether or not Turkey violate international law when Turkish

courts exercised jurisdiction over a crime committed by a French
national, outside Turkey?

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Ruling: NO. Turkey, by instituting criminal proceedings against
Demons, did not violate international law.

There is the absence of a rule of law which prohibits a State from

exercising criminal jurisdiction over a foreign national who commits a
criminal act outside of that State’s national jurisdiction. Absent of a
permissive rule to the contrary, it is the first and foremost restriction
imposed by international law on a State which is relevant. However,
international law respects the concept of state sovereignty and
therefore prohibits a State from exercising any act within the territory
of another state.

The PCIJ held that the actions of Turkey, by trying a foreign national,
was not conduct in contravention of international law. There was no
present rule that prevented a State from exercising criminal
jurisdiction over a foreign national who committed an act outside of
the State’s national jurisdiction. Accordingly, Turkey had the
jurisdiction to try the foreign national as there was an absence of any
law to the contrary.

The PCIJ held that concurrent jurisdiction was present because of

this absence. This principle, however, has since been limited by
subsequent developments in the law of the sea. Now, the position is
that accountability for actions that occurred in the High Seas rests
with the State of origin of the accused

Attorney-General of the Government of Israel v. Eichmann

Supreme Court of Israel

36 I.L.R. 5 (1961)

Facts:
Adolf Eichmann (defendant) was a German Nazi officer involved in
the internment and extermination of Jewish people during World War
II. When the war ended, Eichmann escaped to Argentina, where
years later, he was kidnapped by Israeli officers and forcibly brought
to Israel for trial for war-crime charges. Eichmann challenged the
Israeli court’s jurisdiction, arguing that the court was not empowered
to adjudicate the case against Eichmann because his illegal
kidnapping by Israeli agents violated international law. The attorney
general of Israel (plaintiff) contended that the legality of the means of
arrest and of the transfer of a fugitive were not relevant jurisdictional
issues for the court to address. Additionally, at the time of Eichmann ’s

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seizure, Argentina complained to the United Nations Security Council
(Security Council), alleging a violation of Argentina ’s sovereignty by
Israel’s actions. The Security Council issued a Resolution,
recognizing that Israel’s conduct would disrupt international relations
if the conduct were permitted in the future, and requesting that
Argentina and Israel reach an agreement on the settlement of the
dispute. As a result, before Eichmann’s indictment, Argentina and
Israel settled the issue, with Argentina clearing Israel of responsibility
for any violations related to Eichmann ’s kidnapping. The Supreme
Court of Israel then considered Eichmann’s challenge to Israel ’s
jurisdiction.

Issue: Whether or not Israel can try Eichmann, who is not a national
of Israel, for offenses alleged to have been committed outside Israel
against persons who were not nationals of Israel at the time of the
commission of these offenses.

Ruling: YES. The Court’s jurisdiction is founded upon it by the Nazis

and Nazi Collaborators (Punishment) Law 5710-1950. This law does
not violate the principles of international law . Israel ’s “right to punish ”
is founded on two elements. First, the universal character of the
crimes in question, which are grave offences against the law of
nations itself and, in the absence of an international court, grant
jurisdiction to any domestic court. Second, the specific character of
the crimes, which was the extermination of the Jewish people,
provides the necessary linking point between the Accused and the
newly-founded State of Israel, a State established and recognized as
the State of the Jews. The crimes committed by the Accused concern
the vital interests of the State, thus it has a right to punish the
Accused pursuant to the protective principle

United States v. Yunis

Facts: Yunis (Defendant) and several accomplices hijacked a

Jordanian airliner while it was on the ground in Beirut. The plane flew
to several locations around the Mediterranean Sea, and eventually
flew back to Beirut, where the hijackers blew up the plane and then
escaped into the hills. The only connection between the whole event
and the United States was that several Americans were on board the
whole time. Yunis (Defendant) was indicted for violating the Hostage
Taking Act, 18 U.S.C. § 1203. He was apprehended, and later

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indicted under the Destruction of Aircraft Act, 18 U.S.C. § 32. He
moved to dismiss on grounds of jurisdiction.

Issue: May the federal government prosecute an airline hijacker even

if the hijacking’s only connection with the United States was the
presence of several Americans on board the plane?

Ruling: (Parker, J.) Yes. The federal government may prosecute an

airline hijacker even if the hijacking’s only connection with the United
States was the presence of Americans on board the plane. There
must be jurisdiction under both international and domestic law in
order for jurisdiction to exist in the situation of this case. International
law relates to the power of Congress to have extraterritorial
application of its law; domestic law relates to its intent to do so.
International law recognizes several bases for a nation to give
extraterritorial application to its laws. One is the universal principle.
Some acts are considered to be so heinous and contrary to
civilization that any court may assert jurisdiction. The acts that fall
within this category are mainly defined by international convention.
The universal principle applies because numerous conventions
condemn hijacking and hostage taking. The passive personal
principle is also relevant, which applies to offenses against a nation ’s
citizens abroad. The United States has been slow to recognize this
principle, but it is now generally agreed upon. International law having
been disposed of on this issue, domestic law must now be discussed.
The Hostage Taking Law, at subsection (b)(1)(A), clearly includes an
offender that has seized or detained a U.S. citizen. The language
could not be plainer. With regard to the Destruction of Aircraft Act and
the Federal Aviation Act, 18 U.S.C. § 31, that the law was intended
to apply only when the aircraft in question either began or ended its
flight in the United States. Since the flight in question did not do this,
the Act does not apply. Motion denied in part; granted in part.

The Schooner Exchange v. McFaddon

Facts. Two Americans (P) claimed they owned and were entitled to
the schooner Exchange they seized on the high seas. The claim

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which the United States Attorney (D) put forward for the prevention of
the ship leaving was that, the ship which was owned by the Emperor
of France had been forced to enter the port of Philadelphia due to
bad weather conditions.
At this point in time, the U.S and France were on friendly terms. The
United States’ (D) request for the dismissal of ownership and release
of the ship was granted by the district court. However, this judgment
was reversed by the circuit court and this did not prevent the United
States (D) from appealing to the U.S. Supreme Court.

Issue: Are National ships of war viewed as been exempted by the

consent of the power of the friendly jurisdiction whose port the ship
enters?

Ruling: (Marshall, C.J.) Yes. National ships of war are viewed as

been exempted by consent of the power of the friendly jurisdiction
whose port the ship enters. A nation’s jurisdiction within its sovereign
territory is exclusive and absolute.
The Exchange been a public armed ship, currently under the control
and supervision of a foreign power, who at the time of the ship ’s entry
into the United States territory, was at peace with the United States,
must be viewed as having entered the states territory under an
implied promise that while in such environment, would be exempt
from the jurisdiction of the country. Reversed.

US vs Look Chow
8 Phil 573

Facts: Between 11 and 12 o'clock a.m. in August 19, 1909, the Port
of Cebu and internal revenue agent of Cebu, respectively, went
aboard the steamship Erroll to inspect and search its cargo, and
found two sacks containing opium. The defendant stated freely and
voluntarily that he had bought these sacks of opium in Hong Kong
with the intention of selling them as contraband in Mexico or Vera
Cruz, and that as his hold had already been searched several times
for opium he ordered two other china bmen to keep the sack. All the
evidence found properly constitutes corpus delicti. It was established

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that the steamship Erroll was of English nationality, that it came from
Hong Kong, and that it was bound for Mexico, via the call ports in
Manila and Cebu.

Issue: Whether or not courts of local state can exercise its jurisdiction
over foreign vessels stationed in its port?

Ruling: Yes. The Philippine courts have jurisdiction over the matter.
The mere possession of a thing of prohibited use in these Islands,
aboard a foreign vessel in transit, in any of their ports, does not, as a
general rule, constitute a crime triable by the courts of this country, on
account of such vessel being considered as an extension of its own
nationality. However, the same rule does not apply when the article,
whose use is prohibited within the Philippines, in the present case, a
can of opium, is landed from the vessel upon the Philippine soil, thus
committing an open violation of the penal law in force at the place of
the commission of the crime. Only the court established in the said
place itself has competent jurisdiction, in the absence of an
agreement under an international treaty.

The People of the Philippine Islands vs Wong Cheng (alias Wong

Chun)
48 Phil 729

Facts: The appellee is accused of having illegally smoked

opium, aboard the merchant vessel Changsa of English
Nationality while said vessel was anchored in Manila Bay two
and a half miles from the shores of the city.

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Issue: Whether or not the courts of the Philippines have
jurisdiction over the crime involved, committed aboard
merchant vessels anchored in our jurisdiction waters?

Ruling: There are two fundamental rules on this particular

matter in connection with International Law, to wit; the
French rule, according to which crimes committed aboard a
foreign merchant vessels should not be prosecuted in the
courts of the country within whose territorial jurisdiction they
were committed, unless their commission affects the peace
and security of the territory; and the English rule, based on
the territorial principle and followed in the United States,
according to which, crimes perpetrated under such
circumstances are in general triable in the courts of the
country within territory they were committed. Of this two
rules, it is the last one that obtains in this jurisdiction,
because at present the theories and jurisprudence prevailing
in the United States on this matter are authority in the
Philippines which is now a territory of the United States.
No court of the Philippine islands had jurisdiction over
an offense or crime committed on the high seas or within the
territorial waters of any of the country, but when she came
within three miles of a line drawn from the headlands, which
embrace the entrance to Manila Bay, she was within the
territorial waters, and a new set of principles became
applicable. The ship and her crew were then subject to the
jurisdiction of the territorial sovereign subject to such
limitations as have been conceded by that sovereignty
through the proper political agency.

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