Lotus Case: France v Turkey
proceedings are exclusively within the jurisdiction of the state whose flag is flown.
Brief Fact Summary. Turkeys (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
states 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. Does a rule of international law which prohibits a state from exercising criminal
jurisdiction over a foreign national who commits acts outside of the states 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 states
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
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
Nottebohm Case: Liechtenstein v. Guatemala
Procedural History:
Appeal by a state from the refusal of another state to admit one of its nationals.
Overview:
Nottebohm (P), a German citizen, lived in Guatemala (D) for 34 years and applied for
Liechtenstein (P) citizenship one month after the start of World War II. Nottebohm (P)
was a German by birth. Nottebohm (P) lived in Guatemala (D) for 34 years, retaining his
German citizenship and family and business ties with it. One month after the outbreak of
World War II, Nottebohm {P) applied for citizenship with Liechtenstein {P), a neutral
country. Nottebohm (P) had no ties with Liechtenstein {P) and intended to remain in
Guatemala (D). Liechtenstein (P) approved the naturalization application and impliedly
waived its three-year residency requirement. Nottebohm (P) briefly visited Liechtenstein
(P) and, on his return to Guatemala (D), was refused admittance, being deemed a
German national. Nottebohms (P) Liechtenstein (P) citizenship was not honored.
Liechtenstein {P) brought an action before the International Court to compel Guatemala
(D) to recognize Nottebohm (P) as one of its nationals. Guatemala (D) challenged the
validity of Nottebohms (P) citizenship, the right of Liechtenstein (P) to bring the action
and alleged its belief that Nottebohm (P) remained a German national.
Issue:
Must a nation automatically recognize the citizenship conferred on a party by another
nation?
Outcome:
-No. As a general rule, matters concerning citizenship are solely the concern of the
granting nation. It alone will normally bear the burdens or attain the benefits from the
conferral of citizenship on a party. However, the conferring state may not require other
states to automatically accept its designation unless it has acted in conformity with the
general aim of forging a genuine bond between it and its national. Here, no relationship
exists between Liechtenstein {P) and Nottebohm (P). There was never an intent to
reside in Liechtenstein (P), no business or family connections, no acceptance of
traditions and the severing of old ties, etc. The change in nationality was a mere
convenience/subterfuge mandated by the war. Under such circumstances, Guatemala
(D) was not forced to recognize it. Dismissed.
Rule:
while nationality conferred on a party is normally only the concern of that nation, such
nationality may be disregarded by other states where it is clear that it was a mere
device/subterfuge.
Analysis:
A state putting forth a claim must establish a locus standi for that purpose. This is almost
exclusively a showing of nationality of the claimant The real claimant must have
continuously and without interruption from the time of the injury to the making of an
award been a national of the state making the claim and must not have been a national
of the state against whom the claim has been filed
Mejoff v Director of Prisons
Facts:
Boris Mejoff was a Russian citizen who was arrested for being suspected as a Japanese
spy after the Philippine liberation. It was found out that he illegally entered the
Philippines in 1944. He was without inspection and admission by the immigration
officials at a designated port of entry. He was then ordered to be deported to Russia on
the first available transportation to said country. But Russian ships refused to take him
due to their alleged lack of authority to do so. He was then transferred to the Bilibid
Prison and was kept in detention as the Commissioner of Immigration believes it is of
best interest to detain the unwanted alien while arrangements for his deportation are
being made. Mejoff contends that he was legally brought to the Philippines by the then
Japanese forces and he may not now be deported. He also contends that the statutory
period to deport him has long lapsed and that we cannot detain him for an unreasonable
period of time pursuant to the Universal Declaration on Human rights.
ISSUE: Whether or not Mejoff shall remain in detention?
HELD:
Yes. The government has the power and the authority to eject from the Philippines any
and all unwanted aliens. He entered the country illegally in 1944 and was arrested in
1948. Pursuant to Section 37 of the Philippine Immigration Act of 1940 an unwanted
alien is subject to deportation within 5 years from arrest. And he may be held for a
reasonable period of time (depending on the circumstances) while arrangements are
being held for his deportation. There is no allegation however as to the length of time
that he has been detained. Hence, the same cannot be construed as
unreasonable. Further, there is no indication that the statutory period to deport
Mejoff had lapsed.
US v Yunis
Brief Fact Summary: Yunis (Defendant) argued that the Government (Plaintiff) could
not prosecute him for a hijacking that he perpetrated when its only connection to the
United States was that several Americans were on board the plane.
Synopsis of Rule of Law: The federal government may prosecute an airline hijacker
even if the hijackings only connection with the United States was the presence of
Americans on board the plane.
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 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 hijackings
only connection with the United States was the presence of several Americans on board
the plane?
Held: Yes. The federal government may prosecute an airline hijacker even if the
hijackings 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 nations 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.
Discussion: There are three other existing bases for jurisdiction that are generally
accepted. These are territorial (jurisdiction over territory), national (jurisdiction over a
person) and protective (jurisdiction necessary to protect a state.) Of the five generally
recognized jurisdictional grounds, the passive personal principle has been met with the
most resistance by U.S. courts and officials.
Republic of Indonesia v Vinzon
Facts:
This is a petition for review of the decision made by Court of Appeals in ruling that the
Republic of Indonesia gave its consent to be sued and voluntarily submitted itself to the
laws and jurisdiction of Philippine courts and that petitioners Ambassador Soeratmin and
Minister Counsellor Kasim waived their immunity from suit.
Petitioner, Republic of Indonesia, represented by its Counsellor, Siti Partinah, entered
into a Maintenance Agreement with respondent James Vinzon, sole proprietor of Vinzon
Trade and Services. The equipment covered by the Maintenance Agreement are air
conditioning units and was to take effect in a period of four years.
When the new Indonesian Minister Counsellor Kasim assumed the position of Chief of
Administration, he allegedly found respondents work and services unsatisfactory and
not in compliance with the standards set in the Maintenance Agreement. Hence, the
Indonesian Embassy terminated the agreement.
The respondent claims that the aforesaid termination was arbitrary and unlawful. Hence,
he filed a complaint against the petitioners which opposed by invoking immunity from
suit.
Issues:
1. Whether or not the Republic of Indonesia can invoke the doctrine of sovereign
immunity from suit.
2. Whether or not petitioners Ambassador Soeratmin and Minister Counsellor
Kasim may be sued herein in their private capacities.
Discussions:
The rule that a State may not be sued without its consent is a necessary consequence
of the principles of independence and equality of States. The practical justification for the
doctrine of sovereign immunity is that there can be no legal right against the authority
that makes the law on which the right depends. In the case of foreign States, the rule is
derived from the principle of the sovereign equality of States, as expressed in the
maxim par in parem non habet imperium. All states are sovereign equals and cannot
assert jurisdiction over one another. A contrary attitude would unduly vex the peace
of nations.
The rules of International Law, however, are not unbending or immune to change. The
increasing need of sovereign States to enter into purely commercial activities remotely
connected with the discharge of their governmental functions brought about a new
concept of sovereign immunity. This concept, the restrictive theory, holds that the
immunity of the sovereign is recognized only with regard to public acts or acts jure
imperii (public acts of the government of a state), but not with regard to private acts or
acts jure gestionis (the commercial activities of a state.)
Rulings:
1. The Supreme Court ruled that the republic of Indonesia cannot be
deemed to have waived its immunity to suit. The mere entering into a contract
by a foreign state with a private party cannot be construed as the ultimate test of
whether or not it is an act juri imperii or juri gestionis. Such act is only the start of
the inquiry. There is no dispute that the establishment of a diplomatic mission is an
act juri imperii. The state may enter into contracts with private entities to maintain
the premises, furnishings and equipment of the embassy. The Republic of
Indonesia is acting in pursuit of a sovereign activity when it entered into a contract
with the respondent. The maintenance agreement was entered into by the Republic
of Indonesia in the discharge of its governmental functions. It cannot be deemed to
have waived its immunity from suit.
2. Article 31 of the Vienna Convention on Diplomatic Relations provides that a
diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving
State. He shall also enjoy immunity from its civil and administrative jurisdiction,
except in the case of:
o a real action relating to private immovable property situated in the
territory of the receiving State, unless he holds it on behalf of the sending State
for the purposes of the mission;
o an action relating to succession in which the diplomatic agent is
involved as executor, administrator, heir or legatee as a private person and not
on behalf of the sending State;
o an action relating to any professional or commercial activity exercised
by the diplomatic agent in the receiving State outside his official functions.
The Solicitor General believes that said act may fall under subparagraph (c) thereof, but
said provision clearly applies only to a situation where the diplomatic agent engages in
any professional or commercial activity outside official functions, which is not the case
herein.