Nature and Sources of

International Law (Cases)

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

In consequence of the refusal of the

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

Osaka Shosen Kaisha brought an action

for breach of contract against
Prometheus.
ISSUE: WON the rice, sugar, and provisions being loaded to
the Prometheus are war contraband.
HELD: NO. The said goods are not ● The Treaty of Paris includes the
“war contraband” within the meaning declaration:
of the 1856 Treaty of Paris.
"The above-mentioned plenipotentiaries
● Russia was one of the signatories of being duly authorised resolved to concert
the Treaty of Paris. among themselves as to the means of
attaining this object ; and having come to
● Russia continues to adhere to the an agreement have adopted the following
Treaty of Paris even after the solemn Declaration:
declaration of war between Japan
and Russia. (1) Privateering is, and remains abolished;

(2) The neutral flag covers enemy's

goods, with the exception of contraband
of war;
(3) Neutral goods, with the exception of ● The result has been to attach to that
contraband of war, are not liable to expression the following twofold
capture under the enemy's flag; meaning:

(4) Blockades in order to be binding, must (1) Absolute contraband of war —

be effective, that is to say maintained by a which includes everything useful for
force sufficient really to prevent access to war only;
the coast of the enemy. (2) Conditional contraband of war —
which includes all things which
● “Contraband of war" is twice used though useful for both peace and war
in this declaration without being in become contraband if destined for
any way defined. the purposes of war.

● Excluding from the meaning of

contraband of war such things as are
useful for the purposes of peace
only.
● “Provisions” come within the ● Russia having been a party to the
definition of conditional contraband Treaty of Paris was bound to
only if and when destined for the recognize and act upon the
enemy's forces; otherwise they are generally accepted rule of
excluded from the definition. international law that provisions
are not unconditional contraband.
● To construe that expression as
meaning whatever might at any time ● Pollard v. Bell: “it is not competent
be declared by Russia to be for one nation to add to the law of
contraband would be to import into nations by its own arbitrary
the contract between the parties an ordinances without the
element of uncertainty where none concurrence of other nations.”
need exist.

● Russia was not at liberty to declare

provisions as unconditional
contraband of war.
● The Russian declaration including
provisions among the list of articles
absolutely contraband and as
departing from the recognised
custom of nations had no binding
effect upon other nations, and
consequently could not excuse the
nonperformance of the contract
under the charter-party between
the Osaka Shosen Kaisha and the
owners of the S.S. Prometheus.

● A law may be established and

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

● Such international agreements like

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

● The law of war is to be found not

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

[406]The…proposition…that international law forms part of the law of England, requires a word of
explanation and comment. It is quite true that whatever has received the common consent of civilized
nations must have received the assent of our country, and that to [407] which we have assented along
with other nations in general may properly be called international law, and as such will be acknowledged
and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide
questions to which doctrines of international law may be relevant. But any doctrine so invoked must be
one really accepted as binding between nations, and the international law sought to be applied must,
like anything else, be proved by satisfactory evidence, which must show either that the particular
proposition put forward has been recognised and acted upon by our own country, or that it is of such a
nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized
State would repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so
recognised, are not in themselves sufficient. They must have received the express sanction of
international agreement, or gradually have grown to be part of international law by their frequent
practical recognition in dealings between various nations. …
The Paquete Habana
Facts No incriminating material like arms were
This appeal of a district court decree, which found on the fishermen and they did not
condemned two fishing vessels and their
make any attempt to run the blockade
cargoes as prizes of war, was brought by
the owners (D) of two separate fishing after learning of its existence not did
vessels. Each of the vessel running in and they resist their arrest. When the owners
out of Havana and sailing under the Spanish (D) appealed, they argued that both
flag was a fishing smack which regularly customary international law and writings
engaged in fishing on the coast of Cuba. of leading international scholars
Inside the vessels were fresh fish which the recognized an exemption from seizure at
crew had caught.
wartime of coastal fishing vessels.
The owners of the vessels were not aware
of the existence of a war until they were
stopped by U.S. (P) squadron.
ISSUE: Are coastal fishing vessels with their cargoes and crews excluded from prizes of
war?

HELD: Held. (Gray, J.). Yes. Coastal It is an established rule of international

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

Court is without jurisdiction, such petition is dismissed.

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