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Lotus case
From Wikipedia, the free encyclopedia
This article is about the French steamer. For the schooner, see S.S.S. Lotus.

The Lotus Case

Court Permanent Court of International Justice

Full case The Case of the S.S. "Lotus" (France v. Turkey)

name

Court membership

Judges Huber, Loder, Weiss, Finlay, Nyholm, Moore, de

sitting Bustamante, Altamira, Oda, Anzilotti, Pessoa,Feizi-

Dame Bey

The Lotus case concerns a criminal trial which was the result of the 2 August 1926 collision
between the S.S. Lotus, a French steamship (or steamer), and the S.S. Boz-Kourt, a Turkish
steamer, in a region just north of Mytilene (Greece). As a result of the accident, eight Turkish
nationals aboard the Boz-Kourt drowned when the vessel was torn apart by the Lotus.

Background[edit]
On 7 September 1927 the case was presented before the Permanent Court of International Justice,
the judicial branch of the League of Nations, the predecessor of the United Nations.
The issue at stake was Turkey's jurisdiction to try Monsieur Demons, the French lieutenant on watch
duty at the time of the collision.
Since the collision occurred on the high seas, France claimed that the state whose flag the vessel
flew had exclusive jurisdiction over the matter. France proffered case law, through which it attempted
to show at least state practice in support of its position. However, those cases involved ships that
both flew the flag of the same state. The Court, therefore, rejected France's position stating that
there was no rule to that effect in international law.

Lotus principle[edit]
The Lotus principle or Lotus approach, usually considered a foundation of international law, says
that sovereign states may act in any way they wish so long as they do not contravene an explicit
prohibition. The application of this principle – an outgrowth of the Lotus case – to future incidents
raising the issue of jurisdiction over people on the high seas was changed by article 11 [1] of the 1958
High Seas Convention. The convention, held in Geneva, laid emphasis on the fact that only the flag
state or the state of which the alleged offender was a national had jurisdiction over sailors regarding
incidents occurring in high seas.
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The principle has also been used in arguments against the reasons of the United States of
America for opposing the existence of the International Criminal Court (ICC).[2]

The Case of the S.S. Lotus

(France v. Turkey)
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
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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.

2.

Brief Fact Summary. The United States (P) sought damages from Canada by suing
them to court and also prayed for an injunction for air pollution in the state of
Washington, by the Trail Smelter, a Canadian corporation which is domiciled in Canada
(D).
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Trail Smelter in 1929

The Trail Smelter dispute was a trans-boundary pollution case involving the federal governments of
both Canada and the United States, which eventually contributed to establishing the No Harm
principle in the environmental law of transboundary pollution.

Synopsis of Rule of Law. The duty to protect other states against harmful acts by
individuals from within its jurisdiction at all times is the responsibility of a state.

Facts. The Tail Smelter located in British Columbia since 1906, was owned and
operated by a Canadian corporation. The resultant effect of from the sulfur dioxide from
Trail Smelter resulted in the damage of the state of Washington between 1925 and
1937. This led to the United States (P) suit against the Canada (D) with an injunction
against further air pollution by Trail Smelter.

The Trail Smelter is located in Trail, British Columbia in the south-eastern corner of the Kootenays,
which is known as a mineral-rich area

The major players of the Trial Smelter dispute were the owners of the smelter, the Consolidated
Mining and Smelting Company of Canada (COMINCO), and the American residents (mostly farmers
and landowners who were affected by the smoke generated from the smelter). The farmers and
landowners in Washington who had a mutual concern for the smoke drifting from the smelter, formed
the Citizens' Protective Association (CPA) when their direct complaints to COMINCO were not
addressed.[1][3] Initially the regional governments became involved, both the province of British
Columbia and Washington State, but eventually the two federal governments took leadership roles in
the dispute because of the issue of national boundaries and extraterritoriality.[1] Both governments
were initially involved in the foundation of the International Joint Commission (IJC) in 1909, which
was later responsible for investigating and then recommending a settlement for the alleged damages
in the Trail case.[1] The transformation of the smelter dispute into a foreign policy issue resulted in
more institutions joining the dispute. This included the Canada's National Research Council (NRC)
and the American Smelting and Refining Company, which each contributed scientific experts to
assess the damages from the smelter's smoke.[1]

Alleged damages[edit]

A growing concern in 1925 was the smoke drifting from the smelter across the border into
Washington,

Issue. Is it the responsibility of the State to protect other states against harmful acts by
individuals from within its jurisdiction at all times?

Held. Yes. It is the responsibility of the State to protect other states against harmful act
by individuals from within its jurisdiction at all times. No state has the right to use or
permit the use of the territory in a manner as to cause injury by fumes in or to the
territory of another or the properties or persons therein as stipulated under the United
States (P) laws and the principles of international law.
By looking at the facts contained in this case, the arbitration held that Canada (D) is
responsible in international law for the conduct of the Trail Smelter Company. Hence,
the onus lies on the Canadian government (D) to see to it that Trail Smelter’s conduct
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should be in line with the obligations of Canada (D) as it has been confirmed by
International law. The Trail Smelter Company will therefore be required from causing
any damage through fumes as long as the present conditions of air pollution exist in
Washington.
So, in pursuant of the Article III of the convention existing between the two nations, the
indemnity for damages should be determined by both governments. Finally, a regime or
measure of control shall be applied to the operations of the smelter since it is probable
in the opinion of the tribunal that damage may occur in the future from the operations of
the smelter unless they are curtailed.

Discussion. Responsibility for pollution of the sea or the existence of a duty to desist
from polluting the sea has never been laid at the feet of any country by any international
tribunal. Although regulation of pollution is just commencing, it must ensure that there is
equilibrium against freedom of the seas guaranteed under general and long established
rules of international law.

Trail Smelter dispute

From Wikipedia, the free encyclopedia

Trail Smelter in 1929

The Trail Smelter dispute was a trans-boundary pollution case involving the federal governments of
both Canada and the United States, which eventually contributed to establishing the No Harm
principle in the environmental law of transboundary pollution.
The smelter in Trail, British Columbia is operated by the Consolidated Mining and Smelting
Company (COMINCO) and has processed lead and zinc since 1896. Smoke from the smelter
caused damage to forests and crops in the surrounding area and also across the Canada–US
border in Washington. The smoke from the smelter distressed residents, resulting in complaints to
COMINCO and demands for compensation. The dispute between the smelter operators and affected
landowners could not be resolved, resulting in the case being sent to an arbitration tribunal.
Negotiation and resulting litigation and arbitration was settled in 1941.[1]
 6

Historical context
The Trail Smelter is located in Trail, British Columbia in the south-eastern corner of the Kootenays,
which is known as a mineral-rich area. The smelter was initially built by American mining engineer
and magnate F. Augustus Heinze in 1895 to treat lead and zinc ore materials from nearby
mines.[2] Prior to building the smelter, agents for Heinze signed a contract guaranteeing 75,000 tons
of ore would be provided by Rossland's LeRoi Mining Company.[2] The smelter and the freight
railway to the Rossland mines were bought by the Canadian Pacific Railway (CPR) for $1,000,000 in
1898, when tracks were being laid into the town and during the construction of a competing smelter
in nearby Northport, Washington State.[2] The Trail Smelter became a factor in the Canadian
government's efforts to establish a smelting industry in Canada, which had sent ores to American
smelters for processing in the past.[2] The Trail Smelter operation grew, adding other local mines to
the portfolio, and were incorporated as the Consolidated Mining and Smelting Company of Canada
(COMINCO) in 1905, with continuing support from the CPR.[3] When completed in 1895, the smelter
could process 250 tons of ore daily and had smoke stacks 150 feet high to help disperse the
fumes.[2] During the arbitration that followed the dispute, the Tribunal commented that by 1906 Trail
had 'one of the best and largest equipped smelting plants on this continent.'"[4] By 1916 the Trail
Smelter was producing monthly outputs of 4,700 tons of sulphur, but with post World War
I expansion and technological improvements to the smelting process, the company doubled the
smelter's output throughout the 1920s and was producing 10,000 tons monthly by 1930.[2]
Most of Trail's male residents worked for the smelter and local businesses and farmers relied on the
income from smelter employee salaries. Smoke from the smelter was seen by many residents as a
sign of prosperity and continued employment; local residents commented that the "thicker the smoke
ascending from Smelter Hill the greater Trail's prosperity."[5] On the other hand, local farmers
complained about the effects of the toxic smoke on their crops, which eventually led to arbitration
with COMINCO between 1917 and 1924, and resulted to the assessment $600,000 in fines being
levied against the defendant. The fines were to serve as compensation for smoke damage to crops
and included COMINCO buying four complete farms (out of sixty farms involved) closest to the
stacks.[2][5] No government regulations of the smelter's output were imposed on COMINCO following
the 1924 decision.[5]
As a direct consequence of the local dispute and arbitration, COMINCO looked for ways to reduce
the smelter's smoke output while increasing the smelter's production.[3] The initial solution involved
increasing the height of the smoke stacks to 409 feet in 1926 in an effort to disperse the smelter's
smoke by pushing it higher into the atmosphere, but this local solution proved to be a problem for
their Washington neighbours.[5]

Dispute details
Major players
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Smelter Management, 1928

The major players of the Trial Smelter dispute were the owners of the smelter, the Consolidated
Mining and Smelting Company of Canada (COMINCO), and the American residents (mostly farmers
and landowners who were affected by the smoke generated from the smelter). The farmers and
landowners in Washington who had a mutual concern for the smoke drifting from the smelter, formed
the Citizens' Protective Association (CPA) when their direct complaints to COMINCO were not
addressed.[1][3] Initially the regional governments became involved, both the province of British
Columbia and Washington State, but eventually the two federal governments took leadership roles in
the dispute because of the issue of national boundaries and extraterritoriality.[1] Both governments
were initially involved in the foundation of the International Joint Commission (IJC) in 1909, which
was later responsible for investigating and then recommending a settlement for the alleged damages
in the Trail case.[1] The transformation of the smelter dispute into a foreign policy issue resulted in
more institutions joining the dispute. This included the Canada's National Research Council (NRC)
and the American Smelting and Refining Company, which each contributed scientific experts to
assess the damages from the smelter's smoke.[1]

Alleged damages
A growing concern in 1925 was the smoke drifting from the smelter across the border into
Washington, allegedly causing damages to crops and forests.[1] The smoke generated from the
smelter became the source of complaints from American residents. Complaints included: sulphur
dioxide gases in the form of smoke generated from the smelter was directed into the Columbia River
Valley by prevailing winds, scorching crops and accelerating forest loss.[6] Effects of the smoke, as
investigated by the US Department of Agriculture, included both "visible damage" in terms of "burned
leaves and declining soil productivity" and "invisible damage" which consisted of "stunted growth and
lower food value" for the crops.[3]

Initial efforts to resolve

After the complaints in 1925 regarding crop and forest destruction as a result of smoke from the
smelter, COMINCO accepted responsibility and offered to compensate the farmers who were
affected.[1] COMINCO also proposed installing fume-controlling technologies to limit future damage
and reduce the emissions of sulphur dioxide. The company had initially raised smoke stacks to four
hundred feet in an effort to increase the dispersion of pollutants; however, this had resulted in
prevailing winds moving the noxious fumes downwind to the inhabitants of the Columbia River
Valley, thereby making the situation worse.[1] The company also tried to offer payments to the
affected residents or even offered to purchase the land outright, which some would have accepted.
However, the company was denied this method of compensation because of Washington State's
prohibition of property ownership by foreigners.[1] This led to the official petition by the farmers and
landowners of Washington in 1927 for state and federal support against the smelter, claiming the
smoke was damaging United States lands.[1] In 1931, the IJC awarded the farmers $350,000 in
damages, but did not set guidelines for sulphur dioxide emission reduction.[1] The compensation was
far less than the plaintiffs had expected and the IJC settlement was eventually rejected under the
pressure of Washington's State Congressional Delegation. The unsatisfactory result of the IJC
decision led to the establishment of a three-person Arbitral Tribunal to resolve the dispute in 1935.

Arbitration details
The arbitration case was originally between the farmers in the affected area and COMINCO;
however, what started off as the smelter versus agriculturalists evolved when regional and federal
agents became involved, resulting in the dispute becoming an international issue.[1]
 8

Both sides employed a variety of experts to represent their interests,including scientists and private
or public enterprises. The United States used the U.S. State Department along with scientists from
the Department of Agriculture to conduct investigations about the effects of the smelter's output on
agriculture in the region.[1] The Canadian side turned to Canada’s National Research Council (NRC)
and was granted access to the Salt Lake Research Station to conduct research for the smelter's
defence.[1] These experts would remain active actors throughout the dispute. The decision laid down
by the IJC awarded the farmers $350,000 in 1931 for the damages incurred by the Trail Smelter; this
was much less than the farmers had sought.[1] Additionally, this was the first time the IJC ruled on a
trans-boundary air pollution case.[1] The U.S. State Department flatly rejected the decision and
submitted for arbitration. This resulted in diplomatic maneuvering which led to an Arbitral Tribunal; it
was the Tribunal’s decision that produced the most significant results in the dispute. As part of the
agreements leading up to the Arbitral Tribunal, the United States agreed to accept the initial
compensation awarded by the IJC from Canada as compensation for damages done by the smelter
prior to 1932.[7]

Tribunal
It was not until 1935 that a Convention was signed in Ottawa, Canada that legitimized the
Tribunal.[4] The Convention outlined 11 Articles under which the Tribunal would operate. Of the 11
articles, Article 3 outlines the four questions the Tribunal was to answer:

1. Whether damage caused by the Trail Smelter in the State of Washington has occurred since
the first day of January, 1932, and, if so, what indemnity should be paid?
2. In the event of the answer to the first part of the preceding question being is positive, to what
extent should there be compensation?
3. In light of the answer to the preceding question, what measures or regime, if any, should be
adopted or maintained by the Trail Smelter?
4. What indemnity or compensation, if any, should be paid because of any decision or
decisions rendered by the Tribunal pursuant to the next two preceding questions? [1]
The American lawyers’ argument can be summarized as trying to prove that “invisible injury”
occurred in the region. Large sums of money rested on the results of this case as the decision would
affect various other smelting projects across North America; as such, the lawyers representing
Cominco successfully limited the definition of damage to the actual, observable, economic
damage.[1] Lawyers on both sides were well practiced with substantial experience. R.C. “Judge”
Crowe, VP of Cominco and a Montreal Corporate Lawyer, and John E. Read represented Cominco.
The U.S. hired Jacob G. Metzger, a State Department attorney with experience in negotiating
international claims.[1] Metzger had a habit of not writing his arguments down, and when he died in
1937 the American scientists and lawyers went into the hearing unprepared.[1]
The United States had conducted experiments that suggested sulphur soaked into the soil; however,
the findings had limited standing in the arbitration because the data was from the early
1930s before the smelter implemented chemical recovery methods.[1] On the other hand, the
Canadians had the resources and the smelting industry supporting them. The experimental data the
American lawyers presented to the tribunal did not convince the arbitrators of “invisible injury” theory.
Because of the Canadian lawyers' success in narrowing the definition to the actual, observable,
economic damage, the arbitrators awarded $78,000 in damages for 2 burns causing visible damage
in 1934 and 1936. The final settlement for damages was awarded in April 1938 and was considered
a victory for COMINCO.[1] When weighed against the backbone of the Trail economy, as well as the
smelter's contributions to the war effort, the economic contributions of small-scale famers in a less
fertile agricultural area were minimal.[1][4]
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Reparations
The consequences of the arbitration came in two parts; one being economic compensation for the
local farmers of Steven's County, Washington and two effecting laws for transboundary air pollution
issues. Transboundary issues meaning those that stretch between states and nations.
COMINCO initially agreed to pay $350,000 in compensation to the local farmers for all damages
before January 1, 1932.[8] However, this offer was rejected by the local residents and farmers, and
the Washington government thus resulting in the arbitration. The arbiters final decisions were based
on evidence for visible injury to the farmers livelihood, the US' case was poorly presented thus the
tribunal's final decision in 1941 granted an additional $78,000 to the farmers and also imposed
COMINCO's duty of regulating the smoke output.[9]
The arbitration successfully imposed state responsibility for transnational air pollution. This set
precedence for no states being able to use their territories in such a way that would cause harm by
air pollution to another territory.[10] It was COMINCO's responsibility to regulate and control the
pollution their smelting industries created. As a result, the state enforced regulatory rules on
corporations to limit damaging emissions. For COMINCO, their company being subject to emission
standards meant potentially limiting the output of their smelter. For the better part of twenty years the
company fought every attempt to impose any sort of regulatory regime aimed at production
levels.[11] Only after they learned that they could recycle sulfur dioxide to make fertilizer did they
finally consent to emission standards.[12]
The arbitration was significant because it defined the limits of environmentally permissible conduct
between international boundaries: nations must not perpetrate significant harm to other nations
through pollution.

Precedents and long-term legacies

Transboundary international law precedents
Prior to the decision made by the Arbitral Tribunal on Trail, disputes over air pollution between two
countries had never been settled through arbitration, and the polluter pays principle had never been
applied in an international context.[13] When the Tribunal dealt with the details of the Trail Smelter
Arbitration, there was no existing international law that dealt with air pollution;[14] therefore, a law
dealing with international air pollution was modelled after U.S. state laws, with the Tribunal referring
to a number of cases in the U.S. that involved air pollution between multiple states.[15]
During the Tribunal's decision-making, there was also confusion between defining 'damage' versus
'damages' when it came time to decide on an outcome; the Tribunal took 'damage' to mean
'damages' as in the monetary value lost by smoke pollution instead of as direct damage to the
land.[16] Because of this, Canada's responsibility for the conduct of the smelter became making sure
that the smelter did not cause any more smoke 'damage' to U.S. soil. The American inter-state law
precedent caused a stir again in 2003 when the Colville Confederated Tribes launched a complaint
against COMINCO for polluting Lake Roosevelt. Douglas Horswill, Senior Vice President for Teck
Resources, stated that "in the U.S. legal process...Teck COMINCO would not be able to use the fact
that it was operating with valid permits in its defence [because it is a Canadian company], whereas a
U.S. company could";[17] Horswill's media statement reflects the tensions created by formulating an
international law based on American inter-state practices.
When the International Law Commission (ILC) "adopted a series of Draft Articles on Prevention of
Transboundary Harm from Hazardous Activities",[18] a fundamental problem was in defining nations
as states, which was the result of applying the existing U.S. model of inter-state environmental laws
to an international conflict. The Draft Articles contained a collection of provisions that focused on six
points:[18]
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 prevention of transboundary harm,

 cooperation to prevent significant harm and reduce risk,
 the exercise of regulatory control by states of activities on their territory through prior
authorizations,
 environmental impact assessment,
 notification, and
 consultation
Since polluting nations were to be held responsible for harms caused to another nation's
environment, this was not applicable in the arbitration because the players involved were sub-groups
of each nation's population and the populus that was most affected were not the sovereign states but
the sub-groups. Although Canada accepted responsibility for the actions of the smelting plant,
conflict resolution put the onus on Canada to compensate for COMINCO's past pollution rather than
forcing COMINCO to prevent future harm to U.S. soil. The legacy of this decision includes the
eventual creation of regulatory regimes to prevent environmental degradation, which allow nations to
put states in charge of taking positive steps to control pollution. The failure by states to meet these
responsibilities means they are breaching international law.[19]
Some scholars do not see the case as setting a precedent because the unique circumstances
surrounding the Trail smelter have been articulated and discussed multiple times, therefore the
arguments that arise for transboundary international law are divorced from the context they are
derived from;[20] this distorts the decisions made in cases like the Trail Arbitration. For the arbitration,
the decisions that appear to be the focus of literature on transboundary international law precedents
are sub-articles 2 and 4 from Article 3 of the International Joint Commission's (IJC)
recommendations.[21]

Blackmer v. United States

Brief Fact Summary. For his failure to respond to subpoenas served upon him in
France which required his appearance in the United States, Blackmer (D) was found to
be in contempt of court.

Synopsis of Rule of Law. There must be due process for the exercise of judicial
jurisdiction in personam.

Facts. Blackmer (D), a U.S. (P) citizen who was residing in France, was served
subpoenas to appear in court as a witness in a criminal trial in the U.S. Contempt
proceedings were initiated against Blackmer (D) when he failed to respond to the
subpoenas and he was found guilty and fined. Blackmer (D) appealed on the ground
that the federal statute was unconstitutional.

Issue. Must there be due process for the exercise of judicial jurisdiction in personam?

Held. (Hughes, C.J). Yes. There must be due process for the exercise of judicial
jurisdiction in personam. The court may adjudge the witness guilty of contempt if the
witness fails to comply with the court order. Congress acted pursuant to its authority in
enacting the statute and it could prescribe a penalty to enforce it. Affirmed.
 11

Discussion. The statute was not found to be unconstitutional by the Court. Blackmer
(D) alleged that there was inadequate notice, but since he still retained his U.S.
citizenship, he was still subject to the U.S. authorities.

Blackmer v. United States, 284 U.S. 421 (1932), is a decision of the Supreme Court of the United
States.
Harry M. Blackmer was a United States citizen resident in Paris. Blackmer was found guilty
of contempt by the Supreme Court of the District of Columbia for refusing to appear as a witness for
the United States in a criminal trial, which is related to the Teapot Dome Scandal, after
being subpoenaed.
Blackmer was subsequently fined $30,000 and the costs of the court. Blackmer challenged the fine
under the due process clause of the Fifth Amendment.
The Court unanimously ruled against Blackmer, with Chief Justice Charles Evans Hughes delivering
the judgment and opinion of the Court and Justice Owen Josephus Roberts not participating.
Chief Justice Hughes, in delivering the opinion of the Court, stated "[n]or can it be doubted that the
United States possesses the power inherent in sovereignty to require the return to this country of a
citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of
refusal." Also, "[i]t is also beyond controversy that one of the duties which the citizen owes to his
government is to support the administration of justice by attending its courts and giving his testimony
whenever he is properly summoned."

Nottebohn Case (Liechtenstein

v. Guatemala)
Brief Fact Summary. A month after the start of World War II, Nottebohn (P), a German
citizen who had lived in Guatemala (D) for 34 years, applied for Liechtenstein (P)
citizenship.

Synopsis of Rule of Law. Nationality may be disregarded by other states where it is

clear that it was a mere device since the nationality conferred on a party is normally only
the concerns of that nation

Facts. Nottebohn (P), a German by birth, lived in Guatemala (D) for 34 years, retaining his
German citizenship and family and business ties with it. He however applied for Liechtenstein
(P) citizenship a month after the outbreak of World War II. Nottebohm (P) had no ties with
Liechtenstein but intended to remain in Guatemala. The naturalization application was approved
by Liechtenstein and impliedly waived its three-year. After this approval, Nottebohm (P)
travelled to Liechtenstein and upon his return to Guatemala (D), he was refused entry because
he was deemed to be a German citizen. His Liechtenstein citizenship was not
honored. Liechtenstein (P) thereby filed a suit before the International Court to compel
Guatemala (D) to recognize him as one of its national. Guatemala (D) challenged the validity of
Nottebohm’s (P) citizenship, the right of Liechtenstein (P) to bring the action and alleged its
belief that Nottebohm (P) remained a German national.
 12

Issue. Must nationality be disregarded by other states where it is clear that it was a mere device
since the nationality conferred on a party is normally the concerns of that nation?
Held. NO. Issues relating to citizenship are solely the concern of the granting nation. This is the
general rule. But it does not mean that other states will automatically accept the conferring
state’s designation unless it has acted in conformity with the general aim of forging a genuine
bond between it and its national aim. In this case, there was no relationship between
Liechtenstein (P) and Nottebohm (P). the change of nationality was merely a subterfuge
mandated by the war. Under this circumstance, Guatemala (D) was not forced to recognize it.
Dismissed.
Discussion. A state putting forth a claim must establish a locus standi for that purpose. Without
interruption and continuously 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. International law 347 (8th Ed. 1955) Vol.1.
Nottebohm case (Liechtenstein v. Guatemala) [1955] ICJ 1 is the proper name for the contentious
1955 case adjudicated by the International Court of Justice (ICJ). Liechtenstein sought a ruling to
force Guatemalan recognition of Friedrich Nottebohm as a Liechtenstein national.

Facts
Nottebohm, born September 16, 1881, in Hamburg, Germany, possessed German citizenship.
Although he lived in Guatemala from 1905 until 1943 he never became a citizen of Guatemala. On
October 9, 1939, Nottebohm applied to become a naturalized citizen of Liechtenstein. The
application was approved and he became a citizen of Liechtenstein. He then returned to Guatemala
on his Liechtenstein passport and informed the local government of his change of nationality. When
he tried to return to Guatemala once again in 1943 he was refused entry as an enemy alien since
the Guatemalan authorities did not recognize his naturalization and regarded him as still German. It
has been suggested that the timing of the event was due to the recent entry of the United States and
Guatemala into the Second World War.
He was later extradited to the United States, where he was held at an internment camp until the end
of the war. All his possessions in Guatemala were confiscated. After his release, he lived out the rest
of his life in Liechtenstein.
The Government of Liechtenstein granted Nottebohm protection against unjust treatment by the
government of Guatemala and petitioned the International Court of Justice. However, the
government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the
purposes of international law. The court agreed and thus stopped the case from continuing.

Judgment
Although the Court stated that it is the sovereign right of all states to determine its own citizens and
criteria for becoming one in municipal law, such a process would have to be scrutinized on the
international plane where the question is of diplomatic protection. The Court upheld the principle
of effective nationality (the Nottebohm principle), where the national must prove a meaningful
connection to the state in question. This principle was previously applied only in cases of dual
nationality to determine which nationality should be used in a given case. However, Nottebohm had
forfeited his German nationality and thus only had Liechtenstein nationality. The question arises,
who then had the power to grant Nottebohm diplomatic protection?
 13

ASYLUM CASE (SUMMARY)

Name of the Case: Asylum Case (Columbia/Peru); Year of the decision: 1950; and Court: ICJ.

Overview:

Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru.
Was Columbia entitled to make a unilateral and definitive qualification of the offence (as a
political offence) in a manner binding on Peru and was Peru was under a legal obligation to
provide safe passage for the Peruvian to leave Peru?

Facts of the Case:

Crime against Peru – military rebellion

Columbian Embassy

Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of
military rebellion” which took place on October 3, 1949, in Peru. 3 months after the rebellion,
Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that
Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention
on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the
Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the
same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification
and refused to grant safe passage.

Questions before the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of
asylum a violation of the treaty?

The Court’s Decision:

Relevant Findings of the Court:

 14

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?

1. The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for
example, as a political offence) and the territorial State has the right to give consent to this
qualification. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is
competent to qualify the nature of the offence in a unilateral and definitive manner that is
binding on Peru. The court had to decide if such a decision was binding on Peru either because
of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of
1933), other principles of international law or by way of regional or local custom.

2. The court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant principles
of international law (p. 12, 13). The Montevideo Convention of 1933, which accepts the right of
unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was
not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low
numbers of ratifications the provisions of the latter Convention cannot be said to reflect
customary international law (p. 15).

3. Colombia also argued that regional or local customs support the qualification. The court held
that the burden of proof on the existence of an alleged customary law rests with the party
making the allegation:

“The Party which relies on a custom of this kind must prove that this custom is established in
such a manner that it has become binding on the other Party… (that) it is in accordance with a
(1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3)
the expression of a right appertaining to the State granting asylum (Columbia) and (4) a duty
incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute
of the Court, which refers to international custom “as evidence of a general practice accepted as
law(text in brackets added).”

4. The court held that Columbia did not establish the existence of a regional custom because it
failed to prove consistent and uniform usage of the alleged custom by relevant States. The
fluctuations and contradictions in State practice did not allow for the uniform usage (see also
Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State
practice). The court also reiterated that the fact that a particular State practice was followed
because of political expediency and not because of a belief that the said practice is binding on
the State by way of a legal obligation (opinio juris) is detrimental to the formation of a
customary law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):
 15

“[T]he Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule
of unilateral and definitive qualification was invoked or … that it was, apart from conventional
stipulations, exercised by the States granting asylum as a right appertaining to them and
respected by the territorial States as a duty incumbent on them and not merely for reasons of
political expediency. The facts brought to the knowledge of the Court disclose so much
uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of
diplomatic asylum and in the official views expressed on various occasions, there has been so
much inconsistency in the rapid succession of conventions on asylum, ratified by some States
and rejected by others, and the practice has been so much influenced by considerations of
political expediency in the various cases, that it is not possible to discern in all this any
constant and uniform usage, mutually accepted as law, with regard to the alleged rule of
unilateral and definitive qualification of the offence.”

5. The court held that even if Colombia could prove that such a regional custom existed, it
would not be binding on Peru, because Peru “far from having by its attitude adhered to it, has,
on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933
and 1939, which were the first to include a rule concerning the qualification of the offence [as
“political” in nature] in matters of diplomatic asylum.” (See in this regard, the lesson
on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court held ‘in any
event the . . . rule would appear to be inapplicable as against Norway in as much as she had
always opposed any attempt to apply it to the Norwegian coast’.)

6. The court concluded that Columbia, as the State granting asylum, is not competent to qualify
the offence by a unilateral and definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

7. The court held that there was no legal obligation on Peru to grant safe passage either
because of the Havana Convention or customary law. In the case of the Havana Convention, a
plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe
passage only after it requests the asylum granting State (Columbia) to send the person granted
asylum outside its national territory (Peru). In this case the Peruvian government had not asked
that Torre leave Peru. On the contrary, it contested the legality of asylum granted to him and
refused to grant safe conduct.

8. The court looked at the possibility of a customary law emerging from State practice where
diplomatic agents have requested and been granted safe passage for asylum seekers, before
the territorial State could request for his departure. Once more, the court held that these
practices were a result of a need for expediency and other practice considerations over an
existence of a belief that the act amounts to a legal obligation (see paragraph 4 above).
 16

“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum
immediately requests a safe conduct without awaiting a request from the territorial state for the
departure of the refugee…but this practice does not and cannot mean that the State, to whom
such a request for safe-conduct has been addressed, is legally bound to accede to it.”

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum
and is the continued maintenance of asylum a violation of the treaty?

9. Article 1 of the Havana Convention states that “It is not permissible for States to grant
asylum… to persons accused or condemned for common crimes… (such persons) shall be
surrendered upon request of the local government.”

10. In other words, the person-seeking asylum must not be accused of a common crime (for
example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torre’s accusation
related to a military rebellion, which the court concluded was not a common crime and as such
the granting of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in
legations, warships, military camps or military aircraft, shall be respected to the extent in which
allowed, as a right or through humanitarian toleration, by the usages, the conventions or the
laws of the country in which granted and in accordance with the following provisions: First:
Asylum may not be granted except in urgent cases and for the period of time strictly
indispensable for the person who has sought asylum to ensure in some other way his safety.”

12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the
presence of “an imminent or persistence of a danger for the person of the refugee”. The court
held that the facts of the case, including the 3 months that passed between the rebellion and
the time when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -
23). The court held:

“In principle, it is inconceivable that the Havana Convention could have intended the term
“urgent cases” to include the danger of regular prosecution to which the citizens of any country
lay themselves open by attacking the institutions of that country… In principle, asylum cannot
be opposed to the operation of justice.”

13. In other words, Torre was accused of a crime but he could not be tried in a court because
Colombia granted him asylum. The court held that “protection from the operation of regular
legal proceedings” was not justified under diplomatic asylum.

14. The court held:

 17

“In the case of diplomatic asylum the refugee is within the territory of the State. A decision to
grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws
the offender from the jurisdiction of the territorial State and constitutes an intervention in
matters which are exclusively within the competence of that State. Such a derogation from
territorial sovereignty cannot be recognised unless its legal basis is established in each
particular case.”

15. As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions)
can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such
would be the case if the administration of justice were corrupted by measures clearly prompted
by political aims. Asylum protects the political offender against any measures of a manifestly
extra-legal character which a Government might take or attempt to take against its political
opponents… On the other hand, the safety which arises out of asylum cannot be construed as a
protection against the regular application of the laws and against the jurisdiction of legally
constituted tribunals. Protection thus understood would authorize the diplomatic agent to
obstruct the application of the laws of the country whereas it is his duty to respect them… Such
a conception, moreover, would come into conflict with one of the most firmly established
traditions of Latin-America, namely, non-intervention [for example, by Colombia into the
internal affairs of another State like Peru]….

16. Asylum may be granted on “humanitarian grounds to protect political prisoners against the
violent and disorderly action of irresponsible sections of the population.” (for example during a
mob attack where the territorial State is unable to protect the offender). Torre was not in such a
situation at the time when he sought refuge in the Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and reasons for its prolongation were not in
conformity with Article 2(2) of the Havana Convention (p. 25).

“The grant of asylum is not an instantaneous act which terminates with the admission, at a
given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in
consequence, logically implies, a state of protection, the asylum is granted as long as the
continued presence of the refugee in the embassy prolongs this protection.”

NB: The court also discussed the difference between extradition and granting of asylum – you
can read more on this in pp. 12 – 13 of the judgment. The discussions on the admissibility of
the counter claim of Peru are set out in pp. 18 – 19.
 18

zAsylum case
From Wikipedia, the free encyclopedia

Asylum Case

Court International Court of Justice

Full case name Asylum Case (Colombia v. Peru)

Decided November 20, 1950

Colombia v Peru [1950] ICJ 6 (also known as the Asylum Case) is a public international law case,
decided by the International Court of Justice. The ICJ recognised that the scope of Article 38 of
the Statute of the International Court of Justice encompassed bi-lateral and regional international
customary norms as well as general customary norms, in much the same way as it encompasses
bilateral and multilateral treaties.[1] The Court also clarified that for custom to be definitively proven, it
must be continuously and uniformly executed.

Facts[edit]
The Colombian Ambassador in Lima, Peru allowed Víctor Raúl Haya de la Torre, head of
the American People's Revolutionary Alliance sanctuary after his faction lost a one-day civil war in
Peru on 3 October 1949. The Colombian government granted him asylum, but the Peruvian
government refused to grant him safe passage out of Peru.
Colombia maintained that according to the Conventions in force - the Bolivian Agreement of 1911 on
Extradition, the Havana Convention of 1928 on Asylum, the Montevideo Convention of 1933 on
Political Asylum[2] - and according to American International Law, they were entitled to decide if
asylum should be granted and their unilateral decision on this was binding on Peru.[3]

Judgment
Both submissions of Colombia were rejected by the Court. It was not found that the custom of
Asylum was uniformly or continuously executed sufficiently to demonstrate that the custom was of a
generally applicable character.
 19

Mejoff vs Director of Prisons 90 Phil 70

Facts

1. Boris Mejoff, a Russian, was captured as a Japanese spy by the US Army Counter Intelligence Corps
on March 18, 1948. He was turned over to the Phil Commonwealth Government for appropriate
disposition. His case was decided on by the Board of Commissioners of Immigration who declared him
as an illegal alien. The Board ordered his immediate deportation. In the meantime, we was placed in
prison awaiting the ship that will take him back home to Russia. Two Russian boats have been
requested to bring him back to Russia but the masters refused as they had no authority to do so. Two
years passed and Mejoff is still under detention awaiting the ship that will take him home.

This case is a petition for habeas corpus. However, the respondent held that the Mejoff should stay in
temporary detention as it is a necessary step in the process of exclusion or expulsion of undesirable aliens. It
further states that is has the right to do so for a reasonable length of time.

Issue

Whether or not Mejoff should be released from prison awaiting his deportation.

Ruling

The Supreme Court decided that Mejoff be released from custody but be placed under reasonable surveillance
of the immigration authorities to insure that he keep peace and be available when the Government is ready to
deport him. In the doctrine of incorporation, the Philippines in its constitution adops the generally accepted
principles of international law as part of the law of Nations. Also, the Philippines has joined the United Nations
in its Resolution entitled “Universal Declaration of Human Rights” in proclaiming that life and liberty and all
other fundamental rights shall be applied to all human beings. The contention that he remains a threat of to the
security of the country is unfounded as Japan and the US or the Phils are no longer at war.
 20

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4254 September 26, 1951

BORIS MEJOFF, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.

Ambrosio T. Dollete for petitioner.

First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for
respondents.

TUASON, J.:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a
decision of this Court of July 30, 1949. The history of the petitioner's detention was thus briefly set
forth in that decision, written by Mr. Justice Bengzon:

The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country
from Shanghai as a secret operative by the Japanese forces during the latter's regime in
these Islands. Upon liberation he was arrested as a Japanese spy, by U.S. Army Counter
Intelligence Corps. Later he was handed to theCommonwealth Government for disposition in
accordance with Commonwealth Act No. 682. Thereafter, the People's Court ordered his
release. But the deportation Board taking his case up, found that having no travel documents
Mejoff was illegally in this country, and consequently referred the matter to the immigration
authorities. After the corresponding investigation, the Board of commissioners of Immigration
on April 5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, without
inspection and admission by the immigration officials at a designation port of entry and,
therefore, it ordered that he be deported on the first available transportation to Russia. The
petitioner was then under custody, he having been arrested on March 18, 1948. In May 1948
he was transferred to the Cebu Provincial Jail together with three other Russians to await the
arrival of some Russian vessels. In July and August of that year two boats of Russian
nationality called at the Cebu Port. But their masters refused to take petitioner and his
companions alleging lack of authority to do so. In October 1948 after repeated failures to
ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa
where he has been confined up to the present time, inasmuch as the Commissioner of
Immigration believes it is for the best interests of the country to keep him under detention
while arrangements for his departure are being made.

The Court held the petitioner's detention temporary and said that "temporary detention is a
necessary step in the process of exclusion or expulsion of undesirable aliens and that pending
arrangements for his deportation, the Government has the right to hold the undesirable alien under
confinement for a reasonable lenght of time." It took note of the fact, manifested by the Solicitor
General's representative in the course of the of the oral argumment, that "this Government desires to
expel the alien, and does not relish keeping him at the people's expense . . . making efforts to carry
out the decree of exclusion by the highest officer of the land." No period was fixed within which the
immigration authorities should carry out the contemplated deportation beyond the statement that
"The meaning of 'reasonable time' depends upon the circumstances, specially the difficulties of
 21

obtaining a passport, the availability of transportation, the diplomatic arrangements with the
governments concerned and the efforts displayed to send the deportee away;" but the Court warned
that "under established precedents, too long a detention may justify the issuance of a writ of habeas
corpus."

Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this
decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of the
prisoner from custody. Mr. Justice Paras qualified his dissent by stating that he might agree "to
further detention of the herein petitioner, provided that he be released if after six months, the
Government is still unable to deport him." This writer joined in the latter dissent but thought that two
months constituted reasonable time.

Over two years having elapsed since the decision aforesaid was promulgated, the Government has
not found way and means of removing the petitioner out of the country, and none are in sight,
although it should be said in justice to the deportation authorities, it was through no fault of theirs
that no ship or country would take the petitioner.

Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept.
18, 1946, 157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. It is no
less true however, as impliedly stated in this Court's decision, supra, that foreign nationals, not
enemy against whom no charge has been made other than that their permission to stay has expired,
may not indefinitely be kept in detention. The protection against deprivation of liberty without due
process of law and except for crimes committed against the laws of the land is not limited to
Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality.
Whether an alien who entered the country in violation of its immigration laws may be detained for as
long as the Government is unable to deport him, is a point we need not decide. The petitioner's entry
into the Philippines was not unlawful; he was brought by the armed and belligerent forces of a de
facto government whose decrees were law furing the occupation.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted
principles of international law as part of the law of Nation." And in a resolution entitled "Universal
Declaration of Human Rights" and approved by the General Assembly of the United Nations of which
the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty
and all other fundamental rights as applied to all human beings were proclaimed. It was there
resolved that "All human beings are born free and equal in degree and rights" (Art. 1); that
"Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of
any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social
origin, property, birth, or other status" (Art. 2): that "Every one has the right to an effective remedy by
the competent national tribunals for acts violating the fundamental rights granted him by the
Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary arrest, detention or exile"
(Art. 9); etc.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from
custody an alien who has been detained an unreasonably long period of time by the Department of
Justice after it has become apparent that although a warrant for his deportation has been issued, the
warrant can not be effectuated;" that "the theory on which the court is given the power to act is that
the warrant of deportation, not having been able to be executed, is functus officio and the alien is
being held without any authority of law." The decision cited several cases which, it said, settled the
matter definitely in that jurisdiction, adding that the same result had reached in innumerable cases
elsewhere. The cases referred to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404;
Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last
 22

paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28,
1942, 46 F. Supp. 425.

The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins
(1948), 90 Fed. Supp., 132, which is nearly foursquare with the case at hand. In that case a
stateless person, formerly a Polish national, resident in the United States since 1911 and many
times serving as a seaman on American vessels both in peace and in war, was ordered excluded
from the United States and detained at Ellis Island at the expense of the steamship company, when
he returned from a voyage on which he had shipped from New York for one or more European ports
and return to the United States. The grounds for his exclusion were that he had no passport or
immigration visa, and that in 1937 had been convicted of perjury because in certain documents he
presented himself to be an American citizen. Upon his application for release on habeas corpus, the
Court released him upon his own recognizance. Judge Leibell, of the United States District Court for
the Southern District of New York, said in part:

When the return to the writ of habeas corpus came before this court, I suggested that all
interested parties . . . make an effort to arrange to have the petitioner ship out of some
country that he would receive him as a resident. He is, a native-born Pole but the Polish
Consul has advised him in writing that he is no longer a Polish subject. This Government
does not claim that he is a Polish citizen. His attorney says he is a stateless. The
Government is willing that he go back to the ship, but if he were sent back aboard a ship and
sailed to the Port (Cherbourg, France) from which he last sailed to the United States, he
would probably be denied permission to land. There is no other country that would take him,
without proper documents.

It seems to me that this is a genuine hardship case and that the petitioner should be
released from custody on proper terms. . . .

What is to be done with the petitioner? The government has had him in custody almost
seven months and practically admits it has no place to send him out of this country. The
steamship company, which employed him as one of a group sent to the ship by the Union,
with proper seaman's papers issued by the United States Coast Guard, is paying $3 a day
for petitioner's board at Ellis Island. It is no fault of the steamship company that petitioner is
an inadmissible alien as the immigration officials describe him. . . .

I intend to sustain the writ of habeas corpus and order the release of the petitioner on his
own recognizance. He will be required to inform the immigration officials at Ellis Island by
mail on the 15th of each month, stating where he is employed and where he can be reached
by mail. If the government does succeed in arranging for petitioner's deportation to a country
that will be ready to receive him as a resident, it may then advise the petitioner to that effect
and arrange for his deportation in the manner provided by law.

Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to
the quandry in which the parties here finds themselves, solution which we think is sensible, sound
and compatible with law and the Constitution. For this reason, and since the Philippine law on
immigration was patterned after or copied from the American law and practice, we choose to follow
and adopt the reasoning and conclusions in the Staniszewski decision with some modifications
which, it is believed, are in consonance with the prevailing conditions of peace and order in the
Philippines.

It was said or insinuated at the hearing of the petition at bar, but not alleged in the return, that the
petitioner was engaged in subversive activities, and fear was expressed that he might join or aid the
 23

disloyal elements if allowed to be at large. Bearing in mind the Government's allegation in its answer
that "the herein petitioner was brought to the Philippines by the Japanese forces," and the fact that
Japan is no longer at war with the United States or the Philippines nor identified with the countries
allied against these nations, the possibility of the petitioner's entertaining or committing hostile acts
prejudicial to the interest and security of this country seems remote.

If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly
prolonged detention would be unwarranted by law and the Constitution, if the only purpose of the
detention be to eliminate a danger that is by no means actual, present, or uncontrolable. After all, the
Government is not impotent to deal with or prevent any threat by such measure as that just outlined.
The thought eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in
connection with the appliccation for bail of ten Communists convicted by a lower court of advocacy
of violent overthrow of the United States Government is, in principle, pertinent and may be availed of
at this juncture. Said the learned Jurist:

The Governmet's alternative contention is that defendants, by misbehavior after conviction,

have forfeited their claim to bail. Grave public danger is said to result from what they may be
expected to do, in addition to what they have done since their conviction. If I assume that
defendants are disposed to commit every opportune disloyal to act helpful to Communist
countries, it is still difficult to reconcile with traditional American law the jailing of persons by
the courts because of anticipated but as yet uncommitted crimes. lmprisonment to protect
society from predicted but unconsummated offenses is so unprecedented in this country and
so fraught with danger of excesses and injustice that I am loath to resort it, even as a
discretionary judicial technique to supplement conviction of such offenses as those of which
defendants stand convicted.

But the right of every American to equal treatment before the law is wrapped up in the same
constitutional bundle with those of these Communists. If an anger or disgust with these
defendants we throw out the bundle, we alsocast aside protection for the liberties of more
worthy critics who may be in opposition to the government of some future day.

xxx xxx xxx 1âw phïl.nêt

If, however, I were to be wrong on all of these abstract or theoretical matters of principle,
there is a very practical aspect of this application which must not be overlooked or
underestimated — that is the disastrous effect on the reputation of American justice if I
should now send these men to jail and the full Court later decide that their conviction is
invalid. All experience with litigation teaches that existence of a substantial question about a
conviction implies a more than negligible risk of reversal. Indeed this experience lies back of
our rule permitting and practice of allowing bail where such questions exist, to avoid the
hazard of unjustifiably imprisoning persons with consequent reproach to our system of
justice. If that is prudent judicial practice in the ordinary case, how much more important to
avoid every chance of handing to the Communist world such an ideological weapon as it
would have if this country should imprison this handful of Communist leaders on a conviction
that our highest Court would confess to be illegal. Risks, of course, are involved in either
granting or refusing bail. I am naive enough to underestimate the troublemaking propensities
of the defendants. But, with the Department of Justice alert to the the dangers, the worst they
can accomplish in the short time it will take to end the litigation is preferable to the possibility
of national embarrassment from a celebrated case of unjustified imprisonment of Communist
leaders. Under no circumstances must we permit their symbolization of an evil force in the
world to be hallowed and glorified by any semblance of martyrdom. The way to avoid that
risk is not to jail these men until it is finally decided that they should stay jailed.
 24

If that case is not comparable with ours on the issues presented, its underlying principle is of
universal application. In fact, its ratio decidendi applies with greater force to the present petition,
since the right of accused to bail pending apppeal of his case, as in the case of the ten Communists,
depends upon the discretion of the court, whereas the right to be enlarged before formal charges are
instituted is absolute. As already noted, not only are there no charges pending against the petitioner,
but the prospects of bringing any against him are slim and remote.

Premises considered, the writ will issue commanding the respondents to release the petitioner from
custody upon these terms: The petitioner shall be placed under the surveillance of the immigration
authorities or their agents in such form and manner as may be deemed adequate to insure that he
keep peace and be available when the Government is ready to deport him. The surveillance shall be
reasonable and the question of reasonableness shall be submitted to this Court or to the Court of
First Instance of Manila for decision in case of abuse. He shall also put up a bond for the above
purpose in the amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of
Immigration is authorized to exact by section 40 of Commonwealth Act No. 613.

No costs will be charged.

Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.
 25

Filartiga v. Pena-Irala
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.

pedia

Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), was a landmark case in United
States and international law. It set the precedent for United States federal courts to punish non-
American citizens for tortious acts committed outside the United States that were in violation
of public international law (the law of nations) or any treaties to which the United States is a party. It
thus extends the jurisdiction of United States courts to tortious acts committed around the world. The
case was decided by a panel of judges from the United States Court of Appeals for the Second
Circuit consisting of Judges Feinberg, Kaufman, and Kearse.

Events
The Filártiga family contended that on March 29, 1976, their seventeen-year-old son Joelito Filártiga
was kidnapped and tortured to death by Américo Norberto Peña Irala. All parties were living
in Paraguay at the time, and Peña was the Inspector General of Police in Asunción, the capital of
Paraguay. Later that same day, police brought Dolly Filártiga (Joelito's sister) to see the body, which
 26

evidenced marks of severe torture. The Filártigas claimed that Joelito was tortured in retaliation for
the political activities and beliefs of his father Joel Filártiga.
Filártiga brought murder charges against Peña and the police in Paraguay, but the case went
nowhere. Subsequently, the Filártigas' attorney was arrested, imprisoned, and threatened with
death. He was later allegedly disbarred without just cause.
In 1978, Dolly Filártiga and (separately) Américo Peña came to the United States. Dolly applied for
political asylum, while Peña had stayed living and working illegally after entering under a visitor's
visa. Dolly learned of Peña's presence in the United States and reported it to the Immigration and
Naturalization Service, who arrested and deported Peña for staying well past the expiration of his
visa.

Case
When Peña was taken to the Brooklyn Navy Yard pending deportation, Filártiga lodged a civil
complaint in U.S. courts, brought forth by the Center for Constitutional Rights, for Joelito's wrongful
death by torture, asking for damages in the amount of $10 million.[1] After an initial district court
dismissal citing precedents that limited the function of international law to relations between states,
on appeal, the circuit ruled that freedom from torture was guaranteed under customary international
law.[1] "The torturer has become – like the pirate and slave trader before him – hostis humani generis,
an enemy of all mankind", wrote the court.
The appellants argued that Peña's actions had violated wrongful death statutes, the United Nations
Charter, the Universal Declaration of Human Rights, the American Declaration of the Rights and
Duties of Man, and other customary international law. Petitioner claimed the U.S. courts had
jurisdiction to hear the case under the Alien Tort Statute, which grants district courts original
jurisdiction to hear tort claims brought by an alien that have been "committed in violation of the law of
nations or a treaty of the United States".[2] This case interpreted that statute to grant jurisdiction over
claims for torts committed both within the United States and abroad.

Judgment[edit]
U.S. courts eventually ruled in favor of the Filártigas, awarding them roughly $10.4 million. Torture
was clearly a violation of the law of nations, and the United States did have jurisdiction over the case
since the claim was lodged when both parties were inside the United States. Additionally, Peña had
sought to dismiss the case based on forum non conveniens, arguing that Paraguay was a more
convenient location for the trial, but he did not succeed.[3]

Subsequent events[edit]
Following the judgment in Filártiga, there was a concern that the U.S. would evolve into a haven for
international tort claims. In Kadic v Karadžić (1995), groups of Bosnian Croats and Muslims
commenced proceedings against Serbia for war crimes in an American domestic court,
with Radovan Karadžić being in the U.S. at the time. Karadžić was found not to be immune.
Following the Karadžić judgment, it was ruled in Sosa v. Alvarez-Machain 542 U.S. 692 (2004) that
Congress intended with the Alien Torts Statute that extraterritorial jurisdiction was allowed for only
the most egregious international crimes. This was further limited in Kiobel v. Royal Dutch Petroleum
Co., where it was affirmed that there was a strong presumption against extraterritoriality, causes of
action must also apply to the American domestic Alien Torts Act and not to acts committed outside
the United States. The Court concluded that nothing in the Statute’s text was sufficient to overcome
the assumption against extraterritoriality.
 27

Attorney General v. Adolf Eichmann

Court District Court of Jerusalem, Israel

Case number Criminal Case No. 40/61

Decision title Judgment

Decision date 11 December 1961

Parties  Attorney General of the Government of Israel

 Adolf Eichmann

Other names  Eichmann Case

Categories Crimes against humanity, Genocide, War crimes

crimes against humanity, deportation, extermination, genocide, persecution,

Keywords
pillage, war crimes

Links
 Judgment

Other countries involved  Argentina

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Summary
The crimes perpetrated by the Nazis during Hitler’s reign against Jewish citizens were some of the worst
recorded in history. Although accurate figures may never be known, it is estimated that some 6 million
Jewish individuals died – men, women, and children from all over Europe. They were deported from their
homes in large freight trains in appalling conditions, others starved or froze to death, others still were
taken away to concentration camps where the fit were forced to perform manual labour whilst the weak
were shot to death or later, gassed to death in their thousands.

The Accused, Adolf Eichmann, was an Austrian by birth who volunteered to work for the Security Service
(SD) in Berlin. He rose through the ranks and eventually occupied the position of Head of Section
(Referant) for Jewish Affairs charged with all matters related to the implementation of the Final Solution to
the Jewish Question. In this capacity, he oversaw the transport and deportation of Jewish persons, set up
and personally ran an operations centre in Hungary in order to implement the Final Solution there,
organised the transfer of money from evacuated Jews to the State and was responsible for the
administration of the camps at Terezin and Bergen-Belsen.

He was captured by Israeli Security Forces in Argentina and handed over to the District Court of
Jerusalem to stand trial for war crimes, crimes against humanity and crimes against the Jewish people.
He was convicted of all 15 counts and sentenced to death. He was unsuccessful in contesting the
jurisdiction of the Court or defending his actions by relying on superior orders.
 28

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Procedural history
In May 1960, the Israeli intelligence service, Mossad, abducted Eichmann from his hiding place in
Argentina and transferred him to Jerusalem to face an Israeli court.

The trial commenced on 11 April 1961 with the indictment charging Eichmann with 15 counts of crimes
against the Jewish people, crimes against humanity, war crimes and membership in an organisation
declared criminal by the International Military Tribunal in Nuremberg 15 years earlier.

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Related developments
Eichmann appealed the decision of the District Court. The Supreme Court dismissed his appeal on 29
May 1962.
Eichmann was executed on 31 May 1962.

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Legally relevant facts

Prior to the outbreak of World War II, the Accused was a member of the Austrian SS and later
volunteered for a position with the Head Office of the Security Service (SD) in Berlin (para. 59). When the
SD merged with the State Secret Police (Gestapo) to form the Head Office for Reich Security (RSHA), the
Accused occupied the role of Special Officer of Zionist Affairs (para. 61). He was transferred to Vienna in
1938 to administer the Central Office for the Emigration of Austrian Jews (para. 64). His success was
such that approximately 150,000 Austrian Jews were forced to emigrate and he was appointed head of
the new Reich Central Office for Jewish Emigration in October 1939 (para. 65).

From the outbreak of the War to mid-1941, the Accused devised and carried out the mass deportation of
Jewish persons from his role as the Special Referent for Emigration and Evacuation within the RSHA
(paras. 71-75) and explored the possibility of setting up a slave Jewish state in Madagascar (para. 76).

In early 1942, the Accused was appointed the Referant of the RSHA in matters connected to the Final
Solution (para. 88). In implementing the Final Solution, the Accused received information as to the
number of persons to be expelled (para. 90), organised the transfer of money from evacuated Jews for
the disposal of the SS (para. 91), and oversaw the handling of the transport of Jews (para. 93), not only in
the Reich but also in other countries (para. 98). In particular, he headed the Eichmann Special Operations
Unit in Hungary and did his utmost to carry out the Final Solution (para. 111). These "Transport Jews"
were taken to concentration camps and those who were unfit for hard labour were exterminated
immediately (para. 145).

In autumn 1942, a cover up effort was begun as bodies in mass graves were burned in an effort to hide
the slaughter (para. 148). The concentration camps were evacuated (para. 149) – the Accused in
particular was responsible for all administrative matters connected with the Terezin Ghetto (para. 152)
and the camp at Bergen-Belsen (para. 153).

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 29

Core legal questions

 Does the District Court of Jerusalem have jurisdiction to try the case in light of the fact that Eichmann
is a foreign national and crimes were committed on foreign territory?
 In the affirmative, is jurisdiction negated by the abduction of the Accused from a foreign country?
 Is obeying superior orders a defence excluding criminal responsibility?
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Specific legal rules and provisions

 Section 19 of the Criminal Code Ordinance of 1936.
 Sections 1(a)(1),(2),(3), 1(b) and 8 of the the Nazis and Nazi Collaborators (Punishment) Law.
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Court's holding and analysis

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 (para. 10). 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 (para. 12). 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 recognised as the State of the Jews (para. 34). 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 (para. 35).

This jurisdiction is not negated by the manner in which the Accused was brought before the Court. It is an
established rule of law that a person standing trial for an offence against the laws of a State may not
oppose his being tried by reason of the illegality of his arrest or the means by which he was brought to the
jurisdiction of the court (para. 41). This rule applies equally in cases where the accused is relying on
violations of international, rather than domestic, law (para. 47). Such a violation of international law
constitutes an international tort, which may be “cured” by waiver. In the present instance, the joint
decision of the Governments of Argentina and Israel of 3 August 1960 “cured” the international tort
committed by Israel when it entered Argentinian territory to abduct the Accused (para. 50).

Having examined the command structure in place at the SS and the scope of the Accused’s authority, the
Court concluded that the latter acted in accordance with general directives from his superiors but he
retained wide powers of discretion (para. 180). Under Section 8 of the Punishment Law, the defence of
superior orders (contained in Section 19(b) of the Criminal Code Ordinance of 1936) is not available in
case of offences enumerated by the afore-mentioned Law but may be taken into account as a factor at
sentencing (para. 218).

The Accused was convicted on all fifteen counts and sentenced to death (para. 244).
 30

Attorney-General of the State of Israel v. Adolf Eichmann

Supreme Court of Israel

36 I.L.R. 277 (1962)

Facts

Adolf Eichmann (defendant) was a German Nazi officer involved in the internment and extermination of Jewish

people during World War II. Eichmann was tried for his crimes in Israel in the District Court of Jerusalem and was

convicted of various violations of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 (the Law), receiving

a death sentence as a result. Eichmann had petitioned the government of West Germany for extradition, but his

application was denied. Eichmann appealed his convictions, arguing that both the Law and Israel’s exercise of

jurisdiction over Eichmann pursuant to the Law violated international law, because the offenses had occurred outside

of Israel in Germany, and therefore, only Germany had jurisdiction over the offenses.

Facts

In 1985, Fawaz Yunis (defendant) and four other men hijacked a Jordanian Airlines flight in Beirut, Lebanon with two

American citizens on board. The plane immediately took off and unsuccessfully attempted to fly to Tunis, where a

conference of the Arab League was under way. Yunis and the others sought the removal of all Palestinians from

Lebanon. Eventually, the plane landed back in Beirut, the passengers were set free, and the hijackers held a press

conference reiterating their demands. The men then blew up the plane and fled from the airport. After an FBI

investigation identified Yunis as the likely leader of the hijackers, an arrest warrant was obtained and “Operation

Goldenrod” was put into motion to arrest Yunis. Undercover FBI agents lured Yunis onto a yacht in the eastern

Mediterranean Sea and arrested him once the craft entered international waters. Yunis was then transferred to a U.S.

Navy munitions ship and interrogated for several days. Thereafter, Yunis was flown to Washington, D.C., and charged

with conspiracy, aircraft piracy, and hostage taking. Yunis was convicted and he appealed, claiming that the district

court lacked subject matter jurisdiction and personal jurisdiction to try him on the charges.
 31

United States v. Yunis case brief

BriefFactSummary
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.

SynopsisofRuleofLaw
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.

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 (capital of
Lebanon), 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 hijacking’s only connection with the United
States was the presence of several Americans on board the plane?

Held
(Parker, J.) Yes. The federal government may prosecute an airline hijacker even if the hijacking’s only connection
with the United States was ////his 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.

CASE SYNOPSIS

Defendant was convicted of conspiracy, aircraft piracy, and hostage taking. The United States District Court for
the District of Columbia denied his pretrial motions that related to jurisdiction, illegal arrest, and the
government's withholding of classified documents during discovery. Defendant appealed the denial of his motions.

CASE FACTS

Defendant and four other men boarded an airline flight before its departure from Beirut, Lebanon. They carried
military assault rifles, ammunition bandoleers, and hand grenades. The hijackers explained to the crew and
passengers that they wanted the plane to fly to Tunis, where a conference of the Arab League was under way and
that they wanted a meeting with delegates to the conference. Their ultimate goal was removal of all Palestinians
from Lebanon. At defendant's trial, he admitted participation in the hijacking and offered the affirmative defense
of obedience to military orders and asserted that he acted on instructions given by his superiors in Lebanon's Amal
Militia.

The jury convicted him of conspiracy, hostage taking, and air piracy.
 32

HOLDING
The court held that a fixed distinctive emblem recognizable at a distance was the test for whether militiamen and
members of volunteer corps had the rights and responsibilities of national armies.

CONCLUSION
The court affirmed the lower court's decisions.

Fawaz Younis
From Wikipedia, the free encyclopedia

Fawaz Younis (born 1959), also called Fawaz Yunis and Nazeeh, is a Lebanese hijacker who was abducted and
imprisoned by the United States. He was later deported after serving sixteen years of his sentence.
He was born in Lebanon and became an Amal Movement militiaman and then a part of Hezbollah. On June 11, 1985,
he led a team that hijacked Royal Jordanian Flight 402 with four American nationals on board. The Jordanian airliner
was sitting on the tarmac at Beirut International Airport when it was stormed by Younis' team. After a 13-hour siege,
the hijackers released the 70 passengers and blew up the plane. Younis appeared on television as a spokesman for
the hijackers.

Rendition[edit]

The Comprehensive Crime Control Act of 1984 created a new section in the U.S. Criminal Code for Hostage Taking
and The Omnibus Diplomatic Security And Antiterrorism Act of 1986 established a new extraterritorial statute
pertaining to terrorist acts conducted abroad against U.S. citizens and interests. Upon approval by the host country,
the FBI has the legal authority to deploy FBI personnel to conduct extraterritorial investigations in the host country
where the criminal act has been committed, enabling the United States to prosecute terrorists for crimes committed
against U.S. citizens.[1]
In September 1987, Younis was lured aboard a yacht in international waters off Cyprus with promises of a drug
deal,[2] abducted by the FBI, and flown to Andrews Air Force Base. He was the first person charged under the new
federal hostage-taking statute that gave the U.S. jurisdiction over terrorist acts overseas involving American citizens.
He was sentenced to 30 years in a U.S. federal prison.
Fawaz Younis was released by the U.S. government on February 18, 2005 and deport
 33

United States v. Alvarez-Machain

United States v. Alvarez-Machain, 504 U.S. 655 (1992), was a United States Supreme Court case in which the
Court held that the fact of respondent's forcible abduction does not prohibit his trial in a United States court for
violations of this country's criminal laws. It re-confirmed the Ker-Frisbie Doctrine established in Ker v. Illinois (1886)
and Frisbie v. Collins (1952).

Background[edit]

Humberto Álvarez Machaín, a Mexican physician, was allegedly involved in the 1985 kidnapping, torture,
and murder of DEA agent Enrique Camarena Salazar by "prolonging Agent Camarena's life so that others could
further torture and interrogate him."
On April 2,[1] 1990, Álvarez was abducted from Mexico by Trent Tompkins of Claysville, PA, a private citizen hired by
DEA agents, and brought to trial in the United States over the protest of Mexican officials. Legal action reached
the United States Supreme Court (as above) focusing upon the effect of illegal extradition upon the trial court's
jurisdiction. Invoking the "Ker-Frisbie Doctrine" the U.S. Supreme Court held that the trial court's jurisdiction was not
affected by the manner in which the accused was brought before it. This created international alarm and concern as
other nations feared that the decision would encourage further such abductions.
Despite vigorous protests from the Mexican government, Álvarez was tried in United States District Court in Los
Angeles; the trial, in which his defense focused intensely on the legality of the arrest, resulted in an acquittal. The trial
judge (whose earlier decision dismissing the indictment had been overruled by the Supreme Court) ruled at the close
of the government's case in chief that the government had not presented a prima facie case, and therefore granted
an acquittal without presenting the matter to the jury for verdict. The other suspect, Javier Vasquez Velasco, was
arrested for his alleged involvement in the murder, convicted, and sentenced to three life sentences.

Brief Fact Summary. Alvarez-Machain (D) abducted from Mexico for trial in the U.S. (P) by Drug Enforcement
Agency (DEA) agents, contended that his abduction was illegal because of an extradition treaty between the United
States (P) and Mexico.

Synopsis of Rule of Law. The presence of an extradition treaty between the United States and another country
does not necessarily preclude obtaining a citizen of that nation through abduction.

Facts. Agents of the DEA abducted Alvarez-Machain (D) from his office in Mexico because he was wanted in the
U.S. (P) for alleged complicity in the torture-murder of a DEA agent. But by contending that his abduction violated a
U.S.-Mexico extradition treaty, Alvarez (D) sought to dismiss the indictment. His prayer was granted by the district
court and the indictment was dismissed. The court of appeals affirmed while the U.S. Supreme Court granted review.

Issue. Does the presence of an extradition treaty between the United States and another country does not
necessarily preclude obtaining a citizen of that nation through abduction?

Held. (Rehnquist, C.J.) No. The presence of an extradition treaty between the United States and another country
does not necessarily preclude obtaining a citizen of that nation through abduction. It has been established that
abduction, in and of itself, does not invalidate prosecution against a foreign national. The only question to be
answered is whether the abduction violates any extradition treaty that may be in effect between the U.S. (P) and the
nation in which the abductee was to be found. The international law applies only to situations where no extradition
treaty exists, so it is irrelevant here. Since the extradition treaty does not prohibit an abduction as it occurred in this
case, then it is not illegal. Reversed.

Dissent. (Stevens, J.). the majority opinion fails to distinguish between acts of private citizens, which do not violate
any treaty obligations and conduct expressly authorized by the executive branch, which undoubtedly constitutes a
fragrant violation of international law and a breach of the U.S. (P) treaty obligations.
 34

Ker v. Illinois, 119 U.S. 436 (1886), is a U.S. Supreme Court case. It held that a fugitive kidnapped
from abroad could not claim any violation of the Constitution, laws or treaties of the United States.
The incident that led to this decision involved with a Pinkerton Detective Agency agent, Henry Julian,
was hired by the federal government to collect a larcenist, Frederick Ker, who had fled to Peru.
Although Julian had the necessary extradition papers—the two governments had negotiated an
extradition treaty a decade earlier—he found that there was no official to meet his request due to the
recent Chilean military occupation of Lima. Rather than return home empty-handed, Julian
kidnapped the fugitive, with assistance from Chilean forces, and placed him on a U.S. vessel
heading back to the United States.

KER v. PEOPLE OF STATE OF ILLINOIS, (1886)

Argued: Decided: December 6, 1886
[119 U.S. 436, 437] C. Stuart Beattie, for plaintiff in error.

Geo. Hunt, Atty. Gen. of Illinois, for defendant in error.

MILLER, J.

This case is brought here by a writ of error to the supreme court of the tate of Illinois. The plaintiff in
error, Frederick M. Ker, was indicted, tried, and convicted in the criminal court of Cook county, in that
state, for larceny. The indictment also included charges of embezzlement. During the proceedings
connected with the trial the defendant presented a plea in abatement, which, on demurrer, was overruled;
and, the defendant refusing to plead further, a plea of not guilty was entered for him, according to the
statute of that state, by [119 U.S. 436, 438] order of the court, on which the trial and conviction took
place.

The substance of the plea in abatement, which is a very long one, is that the defendant, being in the city of
Lima, in Peru, after the offenses were charged to have been committed, was in fact kidnaped and brought
to this country against his will. His statement is that, application having been made by the parties who
were injured, Gov. Hamilton, of Illinois, made his requisition, in writing, to the secretary of state of the
United States for a warrant requesting the extradition of the defendant, by the executive of the republic of
Peru, from that country to Cook county; that on the first day of March, 1883, the president of the United
States issued his warrant, in due form, directed to Henry G. Julian, as messenger, to receive the defendant
from the authorities of Peru, upon a charge of larceny, in compliance with the treaty between the United
States and Peru on that subject; that the said Julian, having the necessary papers with him, arrived in
Lima, but, without presenting them to any officer of the Peruvian government, or making any demand on
that government for the surrender of Ker, forcibly and with violence arrested him, placed him on board
the United States vessel Essex, in the harbor of Callao, kept him a close prisoner until the arrival of that
vessel at Honolulu, where, after some detention, he was transferred, in the same forcible manner, on
board another vessel, to-wit, the City of Sydney, in which he was carried a prisoner to San Francisco, in
the state of California. The plea then states, that, before his arrival in that city, Gov. Hamilton had made a
requisition on the governor of California, under the laws and constitution of the United States, for the
delivery up of the defendant as a fugitive from justice, who had escaped to that state on account of the
same offenses charged in the requisition on Peru and in the indictment in this case. This requisition
arrived, as the plea states, and was presented to the governor of California, who made his order for the
surrender of the defendant to the person appointed by the governor of Illinois, namely, one Frank
Warner, on the twenty-fifth day of June, 1883. The defendant arrived in the city of San [119 U.S. 436,
439] Francisco on the ninth day of July thereafter, and was immediately placed in the custody of Warner,
 35

under the order of the governor of California, and, still a prisoner, was transferred by him to Cook county,
where the process of the criminal count was served upon him, and he was held to answer the indictment
already mentioned.

The plea is very full of averments that the defendant protested, and was refused any opportunity
whatever, from the time of his arrest in Lima until he was delivered over to the authorities of Cook county,
of communicating with any person, or seeking any advice or assistance in regard to procuring his release
by legal process or otherwise; and he alleges that this proceeding is a violation of the provisions of the
treaty between the United States and Peru, negotiated in 1870, which was finally ratified by the two
governments, and proclaimed by the president of the United States, July 27, 1874. 18 U. S. St. at Large, pt.
3, p. 35.

The judgment of the criminal court of Cook county, Illinois, was carried by writ of error to the supreme
court of that state, and there affirmed, to which judgment the present writ of error is directed. The
assignments of error made here are as follows: 'First, that said supreme court of Illinois erred in aff rming
the judgment of said criminal court of Cook county, sustaining the demurrer to plaintiff in error's plea to
the jurisdiction of said criminal court; second, that said supreme court of Illinois erred in its judgment
aforesaid, in failing to enforce the full faith and credit of the federal treaty with the republic of Peru,
invoked by plaintiff in error in his said plea to the jurisdiction of said criminal court.

The grounds upon which the jurisdiction of this court is invoked may be said to be three, though from the
briefs and arguments of counsel it is doubtful whether, in point of fact, more than one is relied upon. It is
contended, in several places in the brief, that the proceedings in the arrest in Peru, and the extradition
and delivery to the authorities of Cook county, were not 'due process of law;' and we may suppose,
although [119 U.S. 436, 440] it is not so alleged, that this reference is to that clause of article 14 of the
amendments to the constitution of the United States which declares that no state shall deprive any person
of life, liberty, or property 'without due process of law.' The 'due process of law' here guarantied is
complied with when the party is regularly indicted by the proper grand jury in the state court, has a trial
according to the forms and modes prescribed for such trials, and when, in that trial and proceedings, he is
deprived of no rights to which he is lawfully entitled. We do not intend to say that there may not be
proceedings previous to the trial, in regard to which the prisoner could invoke in some manner the
provisions of this clause of the constitution; but, for mere irregularities in the manner in which he may be
brought into custody of the law, we do not think he is entitled to say that he should not be tried at all for
the crime with which he is charged in a regular indictment. He may be arrested for a very heinous offense
by persons without any warrant, or without any previous complaint, and brought before a proper officer;
and this may be, in some sense, said to be 'without due process of law.' But it would hardly be claimed
that, after the case had been investigated and the defendant held by the proper authorities to answer for
the crime, he could plead that he was first arrested 'without due process of law.' So here, when found
within the jurisdiction of the state of Illinois, and liable to answer for a crime against the laws of that state,
unless there was some positive provision of the constitution or of the laws of this country violated in
bringing him into court, it is not easy to see how he can say that he is there 'without due process of law,'
within the meaning of the constitutional provision.

So, also, the objection is made that the proceedings between the authorities of the state of Illinois and
those of the the state of California, and was not with the act of congress on that subject; and especially
that, at the time the papers and warrants were issued from the governors of California and Illinois, the
defendant was not within thestate of California, and was not there a fugitive from justice. This argument is
not much pressed by counsel, and was scarcely noticed in the supreme [119 U.S. 436, 441] court of
Illinois, but the effort here is to connect it as a part of the continued trespass and violation of law which
accompanied the transfer from Peru to Illinois. It is sufficient to say, in regard to that part of this case,
that, when the governor of one state voluntarily surrenders a fugitive from the justice of another state to
answer for his alleged offenses, it is hardly a proper subject of inquiry on the trial of the case to examine
into the details of the proceedings by which the demand was made by the one state, and the manner in
which it was responded to by the other. The case does not stand, when a party is in court and required to
plead to an indictment, as it would have stood upon a writ of habeas corpus in California, or in any of the
states through which he was carried in the progress of his extradition, t test the authority by which he was
held; and we can see, in the mere fact that the papers under which he was taken into custody in California
 36

were prepared and ready for him on his arrival from Peru, no sufficient reason for an abatement of the
indictment against him in Cook county, or why he should be discharged from custody without, a trial.

But the main proposition insisted on by counsel for plaintiff in error in this court is that, by virtue of the
treaty of extradition with Peru, the defendant acquired by his residence in that country a right of asylum,-
a right to be free from molestation for the crime committed in Illinois, a positive right in him that he
should only be forcibly removed from Peru to the state of Illinois in accordance with the provisions of the
treaty,-and that this right is one which he can assert in the courts of the United States in all cases, whether
the removal took place under proceedings sanctioned by the treaty, or under proceedings which were in
total disregard of that treaty, amounting to an unlawful and unauthorized kidnaping. This view of the
subject is presented in various forms, and repeated in various shapes, in the argument of counsel. The fact
that this question was raised in the supreme court of Illinois may be said to confer jurisdiction on this
court, because, in making this claim, the defendant asserted a right under a treaty of the United States,
and, whether the assertion was [119 U.S. 436, 442] well founded or not, this court has jurisdiction to
decide it; and we proceed to inquire into it.

There is no language in this treaty, or in any other treaty made by this country on the subject of
extradition, of which we are aware, which says in terms that a party fleeing from the United States to
escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled.
Indeed, the absurdity of such a proposition would at once prevent the making of a treaty of that kind. It
will not be for a moment contended that the government of Peru could not have ordered Ker out of the
country on his arrival, or at any period of his residence there. If this could be done, what becomes of his
right of asylum?

Nor can it be doubted that the government of Peru could, of its own accord, without any demand from the
United States, have surrendered Ker to an agent of the state of Illinois, and that such surrender would
have been valid within the dominions of Peru. It is idle, therefore, to claim that, either by express terms or
by implication, there is given to a fugitive from justice in one of these countries any right to remain and
reside in the other; and, if the right of asylum means anything, it must mean this. The right of the
government of Peru voluntarily to give a party in Ker's condition an asylum in that country is quite a
different thing from the right in him to demand and insist upon security in such an asylum. The treaty, so
far as it regulates the right of asylum at all, is intended to limit this right in the case of one who is proved
to be a criminal fleeing from justice; so that, on proper demand and proceedings had therein, the
government of the country of the asylum shall deliver him up to the country where the crime was
committed. And to this extent, and to this alone, the treaty does regulate or impose a restriction upon the
right of the government of the country of the asylum to protect the criminal from removal therefrom.

In the case before us, the plea shows that, although Julian went to Peru with the necessary papers to
procure the extradition of Ker under the treaty, those papers remained in his pocket, and were never
brought to light in Peru; that no steps [119 U.S. 436, 443] were taken under them; and that Julian, in
seizing upon the person of Ker, and carrying him out of the territory of Peru into the United States, did
not act, nor profess to act, under the treaty. In fact, that treaty was not called into operation, was not
relied upon, was not made the pretext of arrest, and the facts show that it was clear case of kidnaping
within the dominions of Peru, without any pretense of authority under the treaty or from the government
of the United States.

In the case of U. S. v. Rauscher, post, 234, (just decided, and considered with this,) the effect of
extradition proceedings under a treaty was very fully considered; and it was there held that when a party
was duly surrendered, by proper proceedings, under the treaty of 1842 with Great Britain, he came to this
country clothed with the protection which the nature of such proceedings and the true construction of the
treaty gave him. One of the rights with which he was thus clothed, both in regard to himself and in good
faith to the county which had sent him here, was that he should be tried for no other offense than the one
for which he was delivered under the extradition proceedings. If Ker had been brought to this country by
proceedings under the treaty of 1870-74 with Peru, it seems probable, from the statement of the case in
the record, that he might have successfully pleaded that he was extradited for larceny, and convicted by
the verdict of a jury of embezzlement; for the statement in the plea is that the demand made by the
president of the United States, if it had been put in operation, was for an extradition for larceny, although
 37

some forms of embezzlement are mentioned in the treaty as subjects of extradition. But it is quite a
different case when the plaintiff in error comes to this country in the manner in which he was brought
here, clothed with no rights which a proceeding under the treaty could have given him, and no duty which
this country owes to Peru or to him under the treaty. We think it very clear, therefore, that, in invoking the
jurisdiction of this court upon the ground that the prisoner was denied a right conferred upon him by a
treaty of the United States, he has failed to establish the existence of any such right.[119 U.S. 436,
444] The question of how far his forcible seizure in another country, and transfer by violence, force, or
fraud to this country, could be made available to resist trial in the state court for the offense now charged
upon him, is one which we do not feel called upon to decide; for in that transaction we do not see that the
constitution or laws or treaties of the United States guaranty him any protection. There are authorities of
the highest respectability which hold that such forcible abduction is no sufficient reason why the party
should not answer when brought within the jurisdiction of the court which has the right to try him for
such an offense, and presents no valid objection to his trial in such court. Among the authorities which
support the proposition are the following: Ex parte Scott, 9 Barn. & C. 446, (1829;) Lopez & Sattler's Case,
1 Dearsl. & B. Cr. Cas. 525; State v. Smith, 1 Bailey, 283, (1829;) State v. Brewster, 7 Vt. 118, (1835;) Dow's
Case, 18 Pa. St. 37, (1851;) State v. Ross, 21 Iowa, 467, (1866;) The Richmond v. U. S., 9 Cranch, 102.
However this may be, the decision of that question is as much within the province of the state court as a
question of common law, or of the law of nations, of which that court is bound to take notice,

It must be remembered that And, though we might or might not differ with the Illinois court on that
subject, it is one in which we have no right to review their decision.

It must be remembered that this view of the subject does not leave the prisoner, or the government of
Peru, without remedy for his unauthorized seizure within its territory. Even this treaty with that country
provides for the extradition of persons charged with kidnaping, and, on demand from Peru, Julian, the
party who is guilty of it, could be surrendered, and tried in its courts for this violation of its laws. The
party himself would probably not be without redress, for he could sue Julian in an action of trespass and
false imprisonment, and the facts set out in the plea would without doubt sustain the action. Whether h
could recover a sum sufficient to justify the action would probably depend upon moral aspects of the case,
which we cannot here consider. [119 U.S. 436, 445] We must therefore hold that, so far as any question
in which this court can revise the judgment of the supreme court of the state of Illinois is presented to us,
the judgment must be affirmed.

Ker v. Illinois, 119 U.S. 436 (1886), is a U.S. Supreme Court case. It held that a fugitive kidnapped
from abroad could not claim any violation of the Constitution, laws or treaties of the United States.
The incident that led to this decision involved with a Pinkerton Detective Agency agent, Henry Julian,
was hired by the federal government to collect a larcenist, Frederick Ker, who had fled to Peru.
Although Julian had the necessary extradition papers—the two governments had negotiated an
extradition treaty a decade earlier—he found that there was no official to meet his request due to the
recent Chilean military occupation of Lima. Rather than return home empty-handed, Julian
kidnapped the fugitive, with assistance from Chilean forces, and placed him on a U.S. vessel
heading back to the United States.

3rd