United Kingdom of Great Britain and Northern Ireland
v. the People’s Republic of Albania [1949]
Court Name- International Court of Justice
Citation- I.C.J. 1949 I.C.J 4. 22
Facts of the Case– In 1946, British naval vessels crossed the Corfu Channel without Albanian permission and were fired upon by Albanian coastal batteries. Later that year, on October 22nd, a British fleet sailed through a previously cleared channel, but two destroyers were heavily damaged by mines in Albanian territorial waters, causing casualties. Despite Albanian objections, the UK government intended to sweep the channel, prompting a resolution by the International Central Mine Clearance Board. Albania refused consent for sweeping within its waters, warning of sovereignty violations. Nevertheless, the British Royal Navy conducted ‘Operation Retail’ on November 12th and 13th, 1946, without Albanian approval. The United Kingdom initiated legal proceedings against Albania, filing an application with the court on May 22nd, 1947.
Issues– Is Albania accountable under international law for the mine explosions that took place on October 22nd, 1946, within Albanian waters, resulting in damage to machinery and loss of human lives? Has the United Kingdom infringed upon the sovereignty of Albania by conducting a minesweeping operation without the consent of the Albanian Government?
Is the United Kingdom entitled to compensation for the losses it incurred?
Analysis- 1) Albania, as a sovereign state, is bound by international law and has a responsibility to refrain from violating its provisions. This responsibility is rooted in fundamental principles of humanity, the freedom of maritime communication, and the obligation of states to prevent their territory from being used in a manner contrary to the rights of other states.
Albania had full knowledge of the presence of mines in its waters and was therefore obligated under international law to inform other states of this danger. It had a duty to warn approaching ships about the minefields, as required by international law.
2) The UK asserted that its passage through the North Corfu Channel on October 22nd, 1946, was innocent. Thus, according to established rules of international law, it was entitled to innocent passage through this route. The North Corfu Channel should be considered part of international waterways
where innocent passage does not require prior permission from the coastal state and cannot be restricted during times of peace. However, it’s important to note that Albania was engaged in a state of war with Greece at the time, which could be interpreted as not being a time of peace. Nonetheless, the UK violated Albania’s territorial sovereignty by conducting Operation Retail without consent.
3) The United Kingdom incurred significant loss of machinery and human lives as a result of the mine explosions in Albanian waters. These damages were directly caused by the mine explosions, for which Albania bears responsibility. As a subject of international law, the United Kingdom has the right to seek compensation from Albania for the violation of international law. Therefore, Albania must compensate the United Kingdom for the losses suffered.
Conclusion- The Court held that Albania was responsible under international law for the mine explosions in the Corfu channel that had taken place in Albanian territorial waters and for the damage and loss of life that had occurred. The court gave judgment that the United Kingdom did not breach the sovereignty of Albania due to the acts of the British Royal Navy in Albanian waters on October 22nd, 1946. However, when the British Royal Navy launched the operation for minesweeping in November 1946, it violated the sovereignty of Albania. This operation did not have the permission of international mine clearance organizations, and could not be justified as the exercise of a right of innocent passage, and international law prohibits a state from assembling a fleet in the territorial waters of another state and carrying out mine-sweeping in those waters. In a third judgment, rendered on December 15 1949, the Court calculated the amount of reparation owed to the United Kingdom and ordered Albania to pay £844,000.
SS Lotus (France v/s Turkey)
Court Name– Permanent Court of International Justice
Citation– Permanent Court of Int’l Justice, P.C.I.J. (ser. A) No. 10 (1927)
Facts of the case– On August 2nd, 1926, a significant collision occurred at Mytilene, Greece, involving the S.S. Lotus, a French steamboat, and the Turkish ship Boz-Kourt. Boz-Kourt sustained more damage and sank, despite the efforts of S.S. Lotus to rescue both the ship and its passengers. Although S.S. Lotus managed to save 10 individuals from Boz-Kourt, tragically, 8 people perished. The captain of Boz-Kourt, along with survivors boarded S.S. Lotus.
S.S. Lotus was en route to Constantinople when, two days later, Lieutenant Demons, a French citizen and purported captain of S.S. Lotus, was summoned to provide evidence regarding the collision. He was subsequently arrested, along with Captain Bey of Boz-Kourt, and detained by Turkish authorities for further questioning. Both captains faced charges of involuntary manslaughter. France was not informed before Demons’ arrest, and its Consulate General was not notified.
During the trial in Turkey, Demons argued that Turkey lacked jurisdiction over him, as the collision occurred on the high seas under the flag of France.
According to Demons and the French government, Turkey had no authority to prosecute or hold him responsible for the incident at Mytilene on August 2nd.
Demons was sentenced to 80 days in jail and fined £22 for the deaths onboard Boz-Kourt. France deemed this decision unjust, considering S.S. Lotus had rescued survivors, thereby saving lives. France opted to escalate the case to an international court, viewing Turkey’s actions as wrongful. The case proceeded to The Hague in Geneva, with both France and Turkey agreeing to international arbitration. France sought to exonerate Demons and absolve him of all charges, while Turkey maintained that he was liable for the incident between Lotus and Boz-Kourt at sea, advocating for imprisonment and fines. The dispute between the two nations was brought before the Permanent Court of International Justice for resolution, adhering to international legal principles outlined in Article 40 of the court’s statute and Article 35 of its rules.
Issues- The primary issues brought forth in the case between France and Turkey concerning the Lotus and Boz-Kourt incident revolved around Turkey’s jurisdiction over Mr. Demons and the charges to be brought against him if Turkey’s allegations were proven correct. The International Court had to address the following two main questions:
- Did Turkey violate principles of international law, particularly Article 15 of the Convention of Lausanne of July 24th, 1923, which emphasizes accommodation and mutual respect in administration, by exercising joint control over the incident that occurred on August 2nd, 1926, between the French steamer Lotus and the Turkish steamer Boz-Kourt on the high seas near the debarkation of the French ship at Constantinople? Furthermore, did Turkey act against international law in its treatment of the captain of the Turkish steamship and Mr. Demons, the captain of S.S. Lotus, who was on duty at the time of the accident, which resulted in the loss of eight Turkish sailors and passengers?
- If it is determined that Turkey’s actions violated international law, what financial and economic compensation should be awarded to Mr. Demons by international legal principles? The court had to assess the appropriate compensation based on the circumstances of the case and international law. Ultimately, the court was tasked with determining the validity of Turkey’s allegations against Mr. Demons and whether France’s stance—that he should be absolved of all charges—was justified under international law.
Judgment- The primary issues brought forth in the case between France and Turkey concerning the Lotus and Boz-Kourt incident revolved around Turkey’s jurisdiction over Mr. Demons and the charges to be brought against him if Turkey’s allegations were proven correct. The International Court had to address the following two main questions: - Did Turkey violate principles of international law, particularly Article 15 of the Convention of Lausanne of July 24th, 1923, which emphasizes accommodation and mutual respect in administration, by exercising joint control over the incident that occurred on August 2nd, 1926, between the French steamer Lotus and the Turkish steamer Boz-Kourt on the high seas near the debarkation of the French ship at Constantinople? Furthermore, did Turkey act against international law in its treatment of the captain of the Turkish steamship and Mr. Demons, the captain of S.S. Lotus, who was on duty at the time of the accident, which resulted in the loss of eight Turkish sailors and passengers?
- If it is determined that Turkey’s actions violated international law, what financial and economic compensation should be awarded to Mr. Demons by international legal principles? The court had to assess the appropriate compensation based on the circumstances of the case and international law. Ultimately, the court was tasked with determining the validity of Turkey’s allegations against Mr. Demons and whether France’s stance—that he should be absolved of all charges—was justified under international law.
Lotus Principle- The Lotus case introduced two fundamental principles, often referred to as the Lotus principles or the Lotus approach, concerning jurisdiction and the rights of states within their territories.
The first Lotus principle asserts that a state’s jurisdiction is generally limited to its territory. Unless there is a global agreement or accepted international rules granting jurisdiction beyond its boundaries, a state cannot exercise jurisdiction outside its territorial limits. This principle emphasizes that states must abide by the boundaries of their sovereignty unless otherwise
authorized by international law.
The second Lotus principle affirms that a state has the right to exercise its jurisdiction within its territory. Even in the absence of specific international laws granting such authority, a state may enact and enforce laws within its borders as it deems necessary. This principle allows states considerable discretion in their internal affairs, guided by the broad interpretation of international legal norms.
These principles underscore the concept of state sovereignty, emphasizing that states enjoy exclusive freedom and authority within their territories. In the case of Turkey and the Boz-Kourt incident, Turkey’s jurisdiction over the ship was based on the principle that the vessel was considered part of its territory. This granted Turkey the right to pursue legal actions against France and Mr. Demons within its territorial jurisdiction.
Conclusion- The Lotus case between Turkey and France marked a significant development in international law concerning collisions on the high seas and issues of territorial jurisdiction. Despite the collision occurring outside the territories of both involved parties, Turkey was deemed to have the right to pursue claims against France due to the damage inflicted on its ship, Boz-Kourt, by the Lotus. This case established a precedent that would be referenced in similar cases thereafter, both in criminal and civil matters.
The Lotus case became pivotal in determining the jurisdictional boundaries of a country or state and was utilized in various legal contexts. However, in 1958, the Lotus principle, which had granted Turkey exclusive jurisdiction in such cases, was overturned with the adoption of the Geneva Convention concerning the high seas. This convention likely introduced new provisions or principles that altered the previous understanding of territorial jurisdiction and the rights of states in cases involving incidents on the high seas.
Luther v/s Sagor, 1921
Court Name- Lower Court of Britain
Citation- (1921) 3 KB 532
Facts of the Case- This case, known as Luther v. Sagor, involves a dispute between British citizen Luther, who operated a timber business in Soviet Russia, and Mr. Sagor from England. In June 1918, the Russian Soviet Government issued a decree asserting ownership of mechanical sawmills and woodworking facilities operated by private companies with significant capital, including Luther’s business. Following the decree, Luther left Russia for the UK, leaving behind his mill and the stock of veneer and plywood, which remained under the ownership of his company until 1919 when they were seized and confiscated by agents of the Russian Soviet Government.
Meanwhile, Mr. Sagor entered into an agreement with the Russian government for the acquisition of certain wood. However, Luther, as the plaintiff, filed a lawsuit claiming the right to the wood after it was brought into England by the defendants. Luther argued that the British court could not validate Russian legislation, as the UK had not recognized the Russian government’s takeover of his factory as legitimate.
Although Luther initially won his case at the lower court, his appeal to the King’s Bench Division was unsuccessful, resulting in a loss for him. The court upheld the seizure of Luther’s property by the Russian government and ruled against his claim to the wood imported into England.
Issues- The issue raised before the King’s Bench Division was twofold: first, whether Britain recognized the government of Russia, and second, whether the nationalization decree issued by the Russian Soviet Government was legal or valid.
Regarding the recognition of Russia, the court needed to determine whether Britain formally acknowledged the government of Russia as a legitimate sovereign entity. This recognition would have implications for the validity of any actions taken by the Russian government, including the nationalization decree.
Additionally, the court needed to assess the legality or validity of the nationalization decree itself. This involved examining whether the decree complied with Russian law and international legal norms, as well as whether it violated any rights or agreements held by British citizens operating businesses in Russia, such as Luther.
These issues were central to determining the outcome of the case and deciding whether Luther had a valid claim to the wood imported into England, as they addressed the legitimacy of the actions taken by the Russian government and their impact on Luther’s property rights.
Judgment- The King’s Bench Division Chamber stated that it could not intervene in the internal affairs of another country, as Russia had acquired de facto recognition. Additionally, the court affirmed the retroactive effect of the recognition granted in 1917. Consequently, the nationalization of Russia was deemed legitimate and effective. Recognition, whether de jure or de facto, confers rights, privileges, and obligations.
De facto recognition entails scaled-back rights, privileges, and obligations compared to legal recognition, which grants absolute rights and responsibilities. Powerful states often impose conditions when recognizing newly established states, and withdrawal of recognition may occur if the requirements for sovereignty are not met. Recognition can take various forms, but the level of legitimacy and legality varies depending on the circumstances.
In this case, the British lower court ruled in Luther’s favor based on his arguments. Sagor, dissatisfied with this decision, appealed to the higher court. Upon appeal, it was revealed that Britain had granted de facto recognition in 1921, leading the King’s Bench Division Court of Appeal to uphold Sagor’s claim.
Analysis- The King’s Bench Division considered several factors to address
the issues at hand:
- The current Russian government had received de facto recognition from the British government.
- The timing of the events was deemed irrelevant because the recognition of Russia had retrospective implications.
- Both de facto and de jure recognition had minimal impact on matters of productive relationships and legal questions.
- The “Act of State Doctrine” was taken into account, which stipulates that one sovereign nation cannot question the internal affairs of another recognized state. As Russia had already obtained de facto recognition, the court concluded that interference in its internal matters was not permissible.
- The court retroactively recognized the 1917 acknowledgment of Russia, thus validating the legitimacy and legality of its nationalization. Based on precedent, the court determined that the British government had not acknowledged the Russian Soviet Government as a sovereign independent state. Even if such recognition had occurred, the court would not enforce the penal laws of the Russian Soviet Government, thereby not protecting the rights of the plaintiffs within its jurisdiction. The court’s decision stemmed from the principle that foreign penal laws are strictly local and only applicable within the jurisdiction of the issuing country. Additionally, the court emphasized that individuals fleeing such jurisdictions retain their transitory rights and cannot be affected by proceedings beyond those limits. Moreover, the court noted that Russia’s de facto recognition further supported its stance, and the retroactive nature of the recognition in 1917 underscored the legitimacy of Russia’s actions.
Conclusion– The ruling by the King’s Court in this case affirmed that the British government officially recognized Russia as a sovereign state. Not only did the court acknowledge Russia’s de facto recognition, but it also granted retrospective de jure recognition to the Russian Soviet Government. This case established a fundamental principle in public international law:
Once a government is recognized, its actions, even those predating its recognition, are considered valid (through de facto recognition), a concept known as retrospective effect. Furthermore, the case underscored the validity of legislation and administrative acts carried out by a recognized government within its territory, while also applying the doctrine of Acts of State.
West Rand Central Gold Mining Company Appellant v.
The King
Court Name- England and Wales Divisional Court
Citation- 1905, 2 King Bench 319
Facts of the Case- The West Rand Mining Company, which was registered in England, operated a gold mine in Transvaal. Agents of the South African Government, acting on behalf of the South African authorities, seized two parcels of the company’s property. Subsequently, the Boer War erupted on October 11th, leading to South Africa’s defeat and its incorporation into the British Empire. Consequently, the British Government inherited the rights and obligations of the former South African Government, including the responsibility to return the two gold parcels to the company or compensate them for their value.
Issues- Petition of Right: A formal request made to the government for a remedy or relief, typically addressing grievances related to civil liberties, property rights, or other legal matters. International Law: Legal principles and rules governing relations between
sovereign states, as well as the rights and obligations of states and individuals in
the international arena.
Annexation: The act of incorporating territory into an existing political entity, often through conquest, treaty, or other means of formal acquisition.
Liabilities of Conquered State: The obligations, debts, and responsibilities inherited by the conqueror state following the subjugation or defeat of another state.
Creditor’s Rights against Conqueror: The legal rights of creditors to seek recourse or compensation from the conquering state for debts owed by the conquered state.
Act of State: A sovereign act or decision undertaken by a government within its own territory, typically immune from judicial review by foreign courts.
Jurisdiction of Municipal Courts: The authority of domestic courts to hear and adjudicate legal disputes arising within their territorial jurisdiction, as defined by domestic law.
Judgment- The court stated that the petition failed to demonstrate the petitioner’s entitlement to enforce their claim against His Majesty in any of the courts or tribunals. Following the annexation of the conquered territories, there exists no international legal principle mandating that the conquering nation must assume the financial obligations incurred by the conquered nation before the outbreak of hostilities unless specified by explicit provisions of war agreements.
Analysis- In this case, the Attorney General, representing the King, dismissed the legal claim filed by Westland Central Gold Mining Company Limited in June 1904. The petition of the right asserted that two shipments of gold, amounting to £3,804, were confiscated by South African authorities during transport from Johannesburg to Cape Town on October 2nd, and subsequently, 2700 liters of gold were seized on October 9th upon arrival at the petitioner’s bank office.
The petition lacked detailed information regarding the circumstances surrounding the alleged confiscation by the Transvaal government or any legal rights involved. However, it stated in paragraph 6 that the money or its equivalent value should have been returned to the complainant, yet no such restitution occurred, nor was compensation provided by the government. The petition highlighted the conquest of the Republic of Transvaal on September 1, 1900, when it was annexed to his Majesty’s territory, thereby transferring sovereignty and ownership of its property to the British Crown.
The court, before delving into the legal questions previously discussed, clarified that it did not necessarily agree that the allegations in the application were sufficient to warrant consideration. To the court, the request appeared admissible, given that it did not pertain to the contractual obligations of the Transvaal government. Instead, it seemed to describe an act of unlawful seizure. Lord Robert Cecil argued that all contractual obligations of a conquered nation, predating the outbreak of war, were assumed by the conqueror, regardless of their nature or origin. Lord Robert’s argument emphasized three main points: first, under international law, the sovereignty of a conquering state assumes the obligations of the defeated state; second, international law forms part of British law; and third, the rights and obligations of the conquered state must be safeguarded and enforceable by the municipal courts of the conquered state. This included protecting the private property rights of individuals, especially regarding land ownership predating the conquest or annexation.
Contrary to the belief that the transfer of territory implies confiscation of personal property within that territory, the court asserted that individual property rights, including ownership, mortgages, or liens, remain intact. The court referenced the US case of US vs. Priolo 57, in which the US government alleged ownership of cotton by the South Army as a relevant precedent.
Conclusion- There is no established principle in international law whereby, following the annexation of conquered territory, the conquering state assumes the responsibility, unless explicitly stated otherwise, to settle the financial obligations of the conquered state that were incurred before the commencement of hostilities.
Some of the principles established included the ability of British courts to apply international law when necessary and applicable, provided that international law is recognized and enforceable within the context of the case. Additionally, the principle that the conquering state is generally not liable for the obligations and debts of the conquered state has been somewhat modified over time.
The jurisdiction of municipal courts, such as the Lawrenceville GA Municipal Court, does not extend to matters that fall under the jurisdiction of the emperor based on treaty agreements. Such rights cannot be adjudicated by national courts.
Portugal v/s India,1954
Court Name- International Court of Justice
Facts of the Case- Portugal asserted its right to passage from Daman to its enclaves, contending that such movement wouldn’t constitute interference with Indian territory. It also argued that while India had the right to hold its territory, it was obligated to respect Portuguese sovereignty. India countered by suggesting that Portugal’s acknowledgment of Indian control over the disputed territory negated any immunity claims. Portugal’s argument drew heavily on two historical documents: the 1779 Treaty of Poona and subsequent decrees issued by the Maratha king in 1783 and 1785. India, however, disputed the legal significance of the 1779 treaty, arguing that it wasn’t legally binding and lacked enforceability as Maratha law. The crux of the disagreement centered on whether allowing Portuguese armed forces passage endangered Indian territory. India argued that even if the treaty were valid, the custom of passage only emerged much later, rendering it non-binding.
Issues- Portugal argued that the Marathas willingly obligated themselves to the 1779 treaty and were not coerced into accepting its conditions. They emphasized that Article 17 of the treaty explicitly indicated a transfer of immunity to the Portuguese government. Despite India’s contention that the treaty and decrees were solely about revenue grants and did not confer sovereignty transfer to Portugal, Portugal pointed to phrases like “perpetuity” and “in perpetual sovereignty” within the treaty to support their claim of sovereignty transfer.
However, the court concluded that sovereignty hadn’t automatically transferred to Portugal solely based on the treaty. While acknowledging the change in Portugal’s status between pre and post-British times, the court noted that as successors of the Marathas, Portugal had not explicitly exercised control over the disputed territory. Ultimately, the court rejected Portugal’s argument that a longstanding practice could evolve into customary international law, finding no merit in the claim that such practice should obligate both parties under international law.
Judgment- When deliberating on the legal aspects, the court emphasized that a local custom cannot bind any party if it wasn’t intended to be created. Regarding Portugal’s claim over Indian territory and its control, the court examined the claims of both parties regarding the rights over armed forces, police officials, government officials, and goods. The court reached a balanced conclusion, stating that the territory was mutually used by both countries without significant restrictions. It noted that perishable goods were regularly transported without hindrance, except for occasional customary revenue taxes and reasonable restrictions during events like the Second World War. The court deemed restrictions on individuals and civil bodies imposed during British rule as unjustified. It viewed these practices as establishing a binding law between the countries, affirming Portugal’s right to passage through Indian territory. However, when considering the movement of armed forces and personnel, the court acknowledged instances where India had allowed such passage but noted that present circumstances justified India’s reasonable restrictions in safeguarding its territory, as is the right of any sovereign nation.
Conclusion- The case stands as a landmark due to its elucidation of the principles of the Right of Innocent Passage and the sovereign right to protect one’s territory.
