PIL Case
Collection
Interhandel
(Switzerland v. United States)
(Switzerland v. United States)
Local Remedies Rule
In 1942 the Government of the United States
vested almost all the shares of the General Aniline and Film Corporation (GAF),
a company incorporated in the United States, on the ground that those shares,
which were owned by Interhandel, a company registered in Basle, belonged in
reality to I.G. Farbenindustrie of Frankfurt, or that GAF was in one way or
another controlled by the German company.
On 1 October 1957, Switzerland applied to the
Court for a declaration that the United States was under an obligation to
restore the vested assets to Interhandel or, alternatively, that the dispute on
the matter between Switzerland and the United States was one fit for submission
for judicial settlement, arbitration or conciliation. Two days later
Switzerland filed a request for the indication of provisional measures to the
effect that the Court should call upon the United States not to part with the
assets in question so long as proceedings were pending before the Court.
On 24
October 1957, the Court made an Order noting that, in the light of the
information furnished, there appeared to be no need for provisional measures.
The United States raised preliminary objections to the Court's jurisdiction,
and in a Judgment delivered on 21 March 1959 the Court found the Swiss application
inadmissible, because Interhandel had not exhausted the remedies available to
it in the United States courts.
_____*_____
South West Africa
(Ethiopia v. South Africa; Liberia v. South Africa)
(Ethiopia v. South Africa; Liberia v. South Africa)
On 4 November 1960, Ethiopia and Liberia, as
former States Members of the League of Nations, instituted separate proceedings
against South Africa in a case concerning the continued existence of the League
of Nations mandate for South West Africa (see Advisory Cases, South West Africa) and the duties and
performance of South Africa as mandatory Power. The Court was requested to make
declarations to the effect that South West Africa remained a Territory under a
mandate, that South Africa had been in breach of its obligations under that
mandate, and that the mandate and hence the mandatory authority were subject to
the supervision of the United Nations. On 20 May 1961, the Court made an Order
finding Ethiopia and Liberia to be in the same interest and joining the
proceedings each had instituted. South Africa filed four preliminary objections
to the Court's jurisdiction. In a Judgment of 21 December 1962, the Court
rejected these and upheld its jurisdiction. After pleadings on the merits had
been filed within the time-limits fixed at the request of the parties, the
Court held public sittings from 15 March to 29 November 1965 in order to hear
oral arguments and testimony, and judgment in the second phase was given on 18
July 1966. By the casting vote of the President — the votes having been equally
divided (7-7) — the
Court found that Ethiopia and Liberia could not be considered to have
established any legal right or interest appertaining to them in the subject-matter
of their claims, and accordingly decided to reject those claims.
Nottebohm Case (Second Phase)
Judgment of 6 April 1955
The Nottebohm case had been brought to the Court
by an Application by the Principality of Liechtenstein against the Republic of
Guatemala.
Liechtenstein claimed restitution and
compensation on the ground that the Government of Guatemala had acted towards
Mr. Friedrich Nottebohm, a citizen of Liechtenstein, in a manner contrary to
international law. Guatemala, for its part, contended that the claim was
inadmissible on a number of grounds, one of which related to the nationality of
Nottebohm, for whose protection Liechtenstein had seised the Court.
In its Judgment the Court accepted this latter
plea in bar and in consequence held Liechtenstein's claim to be inadmissible.
The Judgment was given by eleven votes to three.
Judges Klaestad and Read, and M. Guggenheim, Judge ad hoc, appended
to the Judgment statements of their dissenting opinions.
*
* *
In its Judgment the Court affirmed the
fundamental importance of the plea in bar referred to above. In putting forward
this plea, Guatemala referred to the well-established principle that it is the bond
of nationality between the State and the individual which alone confers upon
the State the right of diplomatic protection. Liechtenstein considered itself to be
acting in conformity with this principle and contended that Nottebohm was, in
fact, its national by virtue of the naturalization conferred upon him.
The Court then considered the facts. Nottebohm,
born at Hamburg, was still a German national when, in October 1939, he applied
for naturalization in Liechtenstein. In 1905 he went to Guatemala, which he
made the centre of his business activities, which increased and prospered. He
sometimes went to Germany on business and to other countries for holidays, and
also paid a few visits to Liechtenstein, where one of his brothers had lived
since 1931; but he continued to have his fixed abode in Guatemala until 1943,
that is to say, until the events which constituted the basis of the present
dispute. In 1939 he left Guatemala at approximately the end of March; he seems
to have gone to Hamburg and to have paid a few brief visits to Liechtenstein,
where he was at the beginning of October 1939. It was then, on 9th October,
1939, a little more than a month after the opening of the Second World War,
marked by Germany's attack on Poland that he applied for naturalization in
Liechtenstein.
The necessary conditions for the naturalization
of foreigners in Liechtenstein are laid down by the Liechtenstein Law of 4th
January, 1934. This Law requires among other things: that the applicant for
naturalization must prove that acceptance into the Home Corporation (Heimat
verband) of a Liechtenstein commune has been promised to him in case of
acquisition of the nationality of the State; that, subject to waiver of this
requirement under stated conditions, he must prove that he will lose his former
nationality as the result of naturalization; that he has been resident in the
Principality for at least three years, although this requirement can be
dispensed with in circumstances deserving special consideration and by way of
exception; that he has concluded an agreement concerning liability to taxation
with the competent authorities and has paid a naturalization fee. The Law reveals
concern that naturalization should only be granted with full knowledge of all
the pertinent facts and adds that the grant of nationality is barred where
circumstances are such as to cause apprehension that prejudice may enure to the
State of Liechtenstein. As regards the procedure to be followed, the
Government examines the application, obtains information concerning the
applicant, submits the application to the Diet, and, if this application is approved,
submits a request to the Reigning Prince who alone is entitled to confer
nationality.
In his application for naturalization Nottebohm
also applied for the previous conferment of citizenship of Mauren, a commune of
Liechtenstein. He sought dispensation from the condition of three years' prior
residence, without indicating the special circumstances warranting such a
waiver. He undertook to pay (in Swiss francs) 25,000 francs to the Commune and
12,500 francs to the State, the costs of the proceedings, and an annual
naturalization tax of 1,000 francs - subject to the proviso that the
payment of these taxes was to be set off against ordinary taxes which would
fall due if the applicant took up residence in Liechtenstein - and to
deposit as security the sum of 30,000 Swiss francs. A Document dated 15th
October, 1939 certifies that on that date the citizenship of Mauren had been
conferred upon him. A Certificate of 17th October, 1939 evidences the payment
of the taxes required to be paid. On 20th October Nottebohm took the oath of
allegiance and on 23rd October an arrangement concerning liability to taxation
was concluded. A Certificate of Nationality was also produced to the effect
that Nottebohm had been naturalized by a Supreme Resolution of the Prince of 13th
October, 1939. Nottebohm then obtained a Liechtenstein passport and had it
visa-ed by the Consul General of Guatemala in Zurich on 1st December, 1939, and
returned to Guatemala at the beginning of 1940, where he resumed his former
business activities.
These being the facts, the Court considered whether the
naturalization thus granted could be validly invoked against Guatemala, whether
it bestowed upon Liechtenstein a sufficient title to exercise protection in
respect of Nottebohm as against Guatemala and therefore entitled it to seise
the Court of a claim relating to him. The Court did not propose to go beyond
the limited scope of this question.
In order to establish that the Application must
be held admissible, Liechtenstein argued that Guatemala had formerly recognized
the naturalization which it now challenged. Examining Guatemala's attitude
towards Nottebohm since his naturalization, the Court considered that Guatemala
had not recognized Liechtenstein's title to exercise protection in respect to
Nottebohm. It then considered whether the granting of nationality by
Liechtenstein directly entailed an obligation on the part of Guatemala to
recognize its effect, in other words, whether that unilateral act by
Liechtenstein was one which could be relied upon against Guatemala in regard to
the exercise of protection. The Court dealt with this question without
considering that of the validity of Nottebohm's naturalization according to the
Law of Liechtenstein.
Nationality is within the domestic jurisdiction of the
State, which settles, by its own legislation, the rules relating to the
acquisition of its nationality. But the issue which the Court must decide is
not one which pertains to the legal system of Liechtenstein; to exercise
protection is to place oneself on the plane of international law. International
practice provides many examples of acts performed by States in the exercise of
their domestic jurisdiction which do not necessarily or automatically have
international effect.
When two States have conferred their nationality upon the
same individual and this situation is no longer confined within the limits of
the domestic jurisdiction of one of these States but extends to the
international field, international arbitrators or the Courts of third States which
are called upon to deal with this situation would allow the contradiction to
subsist if they confined themselves to the view that nationality is exclusively
within the domestic jurisdiction of the State.
In order to resolve
the conflict they have, on the contrary, sought to ascertain whether
nationality has been conferred in circumstances such as to give rise to an
obligation on the part of the respondent State to recognize the effect of that
nationality. In order to decide this question, they have evolved certain
criteria. They have given their preference to the real and effective
nationality, that which accorded with the facts, that based on stronger factual
ties between the person concerned and one of these States whose nationality is
involved.
Different factors are taken into consideration, and their
importance will vary from one case to the next: there is the habitual residence
of the individual concerned but also the centre of his interests, his family
ties, his participation in public life, attachment shown by him for a given
country and inculcated in his children, etc.
The same tendency prevails among writers.
Moreover, the practice of certain States, which refrain from exercising
protection in favour of a naturalized person when the latter has in fact
severed his links with what is no longer for him anything but his nominal
country, manifests the view that, in order to be invoked against another State,
nationality must correspond with a factual situation.
The character thus recognized on the international
level as pertaining to nationality is in no way inconsistent with the fact that
international law leaves it to each State to lay down the rules governing the
grant of its own nationality. This is so failing any general agreement on the
rules relating to nationality. It has been considered that the best way of
making such rules accord with the varying demographic conditions in different
countries is to leave the fixing of such rules to the competence of each State.
But, on the other hand, a State cannot claim that the rules it has laid down
are entitled to recognition by another State unless it has acted in conformity
with this general aim of making the nationality granted accord with an
effective link between the State and the individual.
According to the practice of States, nationality
constitutes the juridical expression of the fact that an individual is more
closely connected with the population of a particular State. Conferred by a
State, it only entitles that State to exercise protection if it constitutes a
translation into juridical terms of the individual's connection with that
State. Is this the case as regards Mr. Nottebohm? At the time of his
naturalization, does Nottebohm appear to have been more closely attached by his
tradition, his establishment, his interests, his activities, his family ties,
his intentions for the near future, to Liechtenstein than to any other State?
In this connection the Court stated the essential
facts of the case and pointed out that Nottebohm always retained his family and business
connections with Germany and that there is nothing to indicate that his
application for naturalization in Liechtenstein was motivated by any desire to
dissociate himself from the Government of his country. On the other
hand, he had been settled for 34 years in Guatemala, which was the centre of
his interests and his business activities. He stayed there until his removal as
a result of war measures in 1943, and complains of Guatemala's refusal to
readmit him. Members of Nottebohm's family had, moreover, asserted his desire
to spend his old age in Guatemala. In contrast, his actual connections with
Liechtenstein were extremely tenuous. If Nottebohm went to chat country in
1946, this was because of the refusal of Guatemala to admit him. There is thus
the absence of any bond of attachment with Liechtenstein, but there is a
long-standing and close connection between him and Guatemala, a link which his
naturalization in no way weakened. That naturalization was not based on any
real prior connection with Liechtenstein, nor did it in any way alter the
manner of life of the person upon whom it was conferred in exceptional
circumstances of speed and accommodation. In both respects, it was lacking in
the genuineness requisite to an act of such importance, if it is to be enticed
to be respected by a State in the position of Guatemala. It was granted without
regard to the concept of nationality adopted in international relations.
Naturalization was asked for not so much for the purpose of obtaining a legal
recognition of Nottebohm's membership in fact in the population of
Liechtenstein, as it was to enable him to substitute for his status as a
national of a belligerent State that of the subject of a neutral State, with
the sole aim of thus coming within the protection of Liechtenstein but not of
becoming wedded to its traditions, its interests, its way of life or of
assuming the obligations - other than fiscal
obligations - and exercising the rights pertaining to the status thus
acquired.
For these reasons the Court held the claim of Liechtenstein
to be inadmissible.
Nuclear Tests
(Australia v. France; New Zealand v. France)
(Australia v. France; New Zealand v. France)
On 9 May 1973, Australia and New Zealand each
instituted proceedings against France concerning tests of nuclear weapons which
France proposed to carry out in the atmosphere in the South Pacific region.
France stated that it considered the Court manifestly to lack jurisdiction and
refrained from appearing at the public hearings or filing any pleadings. By two
Orders of 22 June 1973, the Court, at the request of Australia and New Zealand, indicated provisional measures to the effect, inter
alia, that pending judgment France should avoid nuclear tests causing
radioactive fall-out on Australian or New Zealand territory. By two Judgments
delivered on 20 December 1974, the Court found that the Applications of
Australia and New Zealand no longer had any object and that it was therefore
not called upon to give any decision thereon. In so doing the Court based
itself on the conclusion that the objective of Australia and New Zealand had
been achieved inasmuch as France, in various public
statements, had announced its intention of carrying out no further atmospheric
nuclear tests on the completion of the 1974 series.
_____*_____
Fisheries
Jurisdiction
(United Kingdom v. Iceland;
Federal Republic of Germany v. Iceland)
(United Kingdom v. Iceland;
Federal Republic of Germany v. Iceland)
On 14 April and 5 June 1972, respectively, the
United Kingdom and the Federal Republic of Germany instituted proceedings
against Iceland concerning a dispute over the proposed extension by Iceland, as
from 1 September 1972, of the limits of its exclusive fisheries jurisdiction
from a distance of 12 to a distance of 50 nautical miles. Iceland declared that
the Court lacked jurisdiction, and declined to be represented in the
proceedings or file pleadings. At the request of the United Kingdom and the
Federal Republic, the Court in 1972 indicated, and in 1973 confirmed,
provisional measures to the effect that Iceland should refrain from
implementing, with respect to their vessels, the new Regulations for the
extension of the fishery zone, and that the annual catch of those vessels in
the disputed area should be limited to certain maxima. In Judgments delivered
on 2 February 1973, the Court found that it possessed jurisdiction; and in
Judgments on the merits of 25 July 1974, it found that the Icelandic
Regulations constituting a unilateral extension of exclusive fishing rights to
a limit of 50 nautical miles were not opposable to either the United Kingdom or
the Federal Republic, that Iceland was not entitled unilaterally to exclude
their fishing vessels from the disputed area, and that the parties were under
mutual obligations to undertake negotiations in good faith for the equitable
solution of their differences.
_____*_____
North Sea
Continental Shelf
(Federal Republic of Germany/Denmark;
Federal Republic of Germany/Netherlands)
(Federal Republic of Germany/Denmark;
Federal Republic of Germany/Netherlands)
These cases concerned the delimitation of the
continental shelf of the North Sea as between Denmark and the Federal Republic
of Germany, and as between the Netherlands and the Federal Republic, and were
submitted to the Court by special agreement. The parties asked the Court to
state the principles and rules of international law applicable, and undertook
thereafter to carry out the delimitations on that basis. By an Order of 26
April 1968 the Court, having found Denmark and the Netherlands to be in the
same interest, joined the proceedings in the two cases. In its Judgment,
delivered on 20 February 1969, the Court found that the boundary lines in
question were to be drawn by agreement between the parties and in accordance
with equitable principles in such a way as to leave to each party those areas
of the continental shelf which constituted the natural prolongation of its land
territory under the sea, and it indicated certain factors to be taken into
consideration for that purpose. The Court rejected the contention that the
delimitations in question had to be carried out in accordance with the
principle of equidistance as defined in the 1958 Geneva Convention on the
Continental Shelf. The Court took account of the fact that the Federal Republic
had not ratified that Convention, and held that the equidistance principle was
not inherent in the basic concept of continental shelf rights, and that this
principle was not a rule of customary international law.
_____*_____
Barcelona
Traction, Light and Power Company, Limited
(Belgium v. Spain)
(Belgium v. Spain)
On 23 September 1958, Belgium instituted
proceedings against Spain in connection with the adjudication in bankruptcy in
Spain, in 1948, of the above-named company, formed in Toronto in 1911. The
Application stated that the company's share-capital belonged largely to Belgian
nationals and claimed that the acts of organs of the Spanish State whereby the
company had been declared bankrupt and liquidated were contrary to
international law and that Spain, as responsible for the resultant damage, was
under an obligation either to restore or to pay compensation for the liquidated
assets. In May 1960, Spain filed preliminary objections to the jurisdiction of
the Court, but before the time-limit fixed for its observations and submissions
thereon Belgium informed the Court that it did not intend to go on with the
proceedings. Accordingly, the case was removed from the List by an Order of 10
April 1961.
_____*_____
Barcelona
Traction, Light and Power Company, Limited
(New Application: 1962) (Belgium v. Spain)
(New Application: 1962) (Belgium v. Spain)
Belgium had ceased pursuing the aforementioned
case (see No. 1.31 above) on account of efforts to negotiate a friendly
settlement. The negotiations broke down, however, and Belgium filed a new
Application on 19 June 1962. The following March, Spain filed four preliminary
objections to the Court's jurisdiction, and on 24 July 1964 the Court delivered
a Judgment dismissing the first two but joining the others to the merits. After
the filing, within the time-limits requested by the parties, of the pleadings
on the merits and on the objections joined thereto, hearings were held from 15
April to 22 July 1969. Belgium sought compensation for the damage claimed to
have been caused to its nationals, shareholders in the Barcelona Traction,
Light and Power Company, Ltd., as the result of acts contrary to international
law said to have been committed by organs of the Spanish State. Spain, on the
other hand, submitted that the Belgian claim should be declared inadmissible or
unfounded. In a Judgment delivered on 5 February 1970, the Court found that
Belgium had no legal standing to exercise diplomatic protection of shareholders
in a Canadian company in respect of measures taken against that company in
Spain. It also pointed out that the adoption of the theory of diplomatic
protection of shareholders as such would open the door to competing
claims on the part of different States, which could create an atmosphere of
insecurity in international economic relations. Accordingly, and in so far as the company's
national State (Canada) was able to act, the Court was not of the opinion that jus
standi was conferred on the Belgian Government by considerations
of equity. The Court accordingly rejected Belgium's claim.
Minquiers and
Ecrehos
(France/United Kingdom)
(France/United Kingdom)
The Minquiers and Ecrehos are two groups of
islets situated between the British island of Jersey and the coast of France.
Under a special agreement between France and the United Kingdom, the Court was
asked to determine which of the parties had produced the more convincing proof
of title to these groups of islets. After the conquest of England by William,
Duke of Normandy, in 1066, the islands formed part of the Union between England
and Normandy which lasted until 1204, when Philip Augustus of France conquered
Normandy but failed to occupy the islands. The United Kingdom submitted that
the islands then remained united with England and that this situation was
placed on a legal basis by subsequent treaties between the two countries.
France contended that the Minquiers and Ecrehos were held by France after 1204,
and referred to the same medieval treaties as those relied on by the United
Kingdom. In its Judgment of 17 November 1953, the Court considered that none of
those Treaties stated specifically which islands were held by the King of
England or by the King of France. Moreover, what was of decisive importance was
not indirect presumptions based on matters in the Middle Ages, but direct
evidence of possession and the actual exercise of sovereignty. After
considering this evidence, the Court arrived at the conclusion that the
sovereignty over the Minquiers and Ecrehos belonged to the United Kingdom.
MINQUIERS AND ECREHOS CASE
Judgment of 17 November 1953
The Minquiers and Ecrehos case
was submitted to the Court by virtue of a Special Agreement concluded between
the United Kingdom and France on December 29th, 1950. In a unanimous decision,
the Court found that sovereignty over the islets and rocks of the Ecrehos and the
Minquiers groups, in so far as these islets and rocks are capable of
appropriation, belongs to the United Kingdom.
*
* *
In its Judgment, the Court began
by defining the task laid before it by the Parties. The two groups of islets in
question lie between the British Channel Island of Jersey and the coast of
France. The Ecrehos lie 3.9 sea miles from the former and 6.6 sea miles from
the latter. The Minquiers group lie 9.8 sea miles from Jersey and 16.2 sea
miles from the French mainland and 8 miles away from the Chausey islands which
belong to France. Under the Special Agreement, the Court was asked to determine
which of the Parties had produced the more convincing proof of title to these
groups and any possibility of applying to them the status of terra nullius was
set aside. In addition, the question of burden of proof was reserved: each
Party therefore had to prove its alleged title and the facts upon which it
relied. Finally, when the Special Agreement refers to islets and rocks, in so
far as they are capable of appropriation, it must be considered that these
terms relate to islets and rocks physically capable of appropriation.
The Court did not have to determine in detail the facts relating to the
particular units of the two groups.
The Court then examined the
titles invoked by both Parties. The United Kingdom Government derives its title
from the conquest of England by William Duke of Normandy in 1066. The union
thus established between England and the Duchy of Normandy, including the
Channel Islands, lasted until 1204, when Philip Augustus of France conquered
continental Normandy. But, his attempts to occupy also the islands having been
unsuccessful, the United Kingdom submitted the view that all of the Channel
Islands, including the Ecrehos and the Minquiers, remained united with England
and that this situation of fact was placed on a legal basis by subsequent
treaties concluded between the two countries. The French Government contended
for its part that, after 1204, the King of France held the Minquiers and the
Ecrehos, together with some other islands close to the Continent and referred
to the same mediæval treaties as those invoked by the United Kingdom.
The Court found that none of
those treaties (Treaty of Paris of 1259, Treaty of Calais of 1360, Treaty of
Troyes of 1420) specified which islands were held by the King of England or by
the King of France. There are, however, other ancient documents which provide
some indications as to the possession of the islets in dispute. The United
Kingdom relied on them to show that the Channel Islands were considered as an
entity and, since the more important islands were held by England, this country
also possessed the groups in dispute. For the Court, there appears to be a
strong presumption in favour of this view, without it being possible however,
to draw any definitive conclusion as to the sovereignty over the groups, since
this question must ultimately depend on the evidence which relates directly to
possession.
For its part, the French
Government saw a presumption in favour of French sovereignty in the feudal link
between the King of France, overlord of the whole of Normandy, and the King of
England,his vassal for these territories. In this connection, it relies on a
Judgment of the Court of France of 1202, which condemned John Lackland to
forfeit all the lands which he held in fee of the King of France, including the
whole of Normandy. But the United Kingdom Government contends that the feudal
title of the French Kings in respect of Normandy was only nominal. It denies
that the Channel Islands were received in fee of the King of France by the Duke
of Normandy, and contests the validity, and even the existence, of the judgment
of 1202. Without solving these historical controversies, the Court considered
it sufficient to state that the legal effects attached to the dismemberment of
the Duchy of Normandy in 1204, when Normandy was occupied by the French, have
been superseded by the numerous events which occurred in the following
centuries. In the opinion of the Court, what is of decisive importance is not
indirect presumptions based on matters in the Middle Ages, but the evidence
which relates directly to the possession of the groups.
Before considering this
evidence, the Court first examined certain questions concerning both groups.
The French Government contended that a Convention on fishery, concluded in
1839, although it did not settle the question of sovereignty, affected however
that question. It is said that the groups in dispute were included in the
common fishery zone created by the Convention. It is said also that the
conclusion of this Convention precludes the Parties from relying on subsequent
acts involving a manifestation of sovereignty. The Court was unable to accept
these contentions because the Convention dealt with the waters only, and not
the common user of the territory of the islets. In the special circumstances of
the case, and in view of the date at which a dispute really arose between the
two Governments about these groups, the Court shall consider all the acts of
the Parties, unless any measure was taken with a view to improving the legal
position of the Party concerned.
The Court then examined the
situation of each group. With regard to the Ecrehos in particular, and
on the basis of various mediæval documents, it held the view that the King of
England exercised his justice and levied his rights in these islets. Those
documents also show that there was at that time a close relationship between
the Ecrehos and Jersey.
From the beginning of the nineteenth
century, the connection became closer again, because of the growing importance
of oyster fishery. The Court attached probative value to various acts relating
to the exercise by Jersey of jurisdiction and local administration and to
legislation, such as criminal proceedings concerning the Ecrehos, the levying
of taxes on habitable houses or huts built in the islets since 1889, the
registration in Jersey of contracts dealing with real estate on the Ecrehos.
The French Government invoked
the fact that in 1646 the States of Jersey prohibited fishing at the Ecrehos
and the Chausey and restricted visits to the Ecrehos in 1692. It mentioned also
diplomatic exchanges between the two Governments, in the beginning of the
nineteenth century, to which were attached charts on which part of the Ecrehos
at least was marked outside Jersey waters and treated as res nullius. In
a note to the Foreign Office of December 15th, 1886, the French Government
claimed for the first time sovereignty over the Ecrehos.
Appraising the relative strength
of the opposing claims in the light of these facts, the Court found that
sovereignty over the Ecrehos belonged to the United Kingdom.
With regard to the Minquiers,
the Court noted that in 1615, 1616, 1617 and 1692, the Manorial court of
the fief of Noirmont in Jersey exercised its jurisdiction in the case of wrecks
found at the Minquiers, because of the territorial character of that
jurisdiction.
Other evidence concerning the
end of the eighteenth century, the nineteenth and the twentieth centuries
concerned inquests on corpses found at the Minquiers, the erection on the
islets of habitable houses or huts by persons from Jersey who paid property
taxes on that account, the registration in Jersey of contracts of sale relating
to real property in the Minquiers. These various facts show that Jersey
authorities have, in several ways, exercised ordinary local administration in
respect of the Minquiers during a long period of time and that, for a
considerable part of the nineteenth century and the twentieth century, British
authorities have exercised State functions in respect of this group.
The French Government alleged
certain facts. It contended that the Minquiers were a dependency of the Chausey
islands, granted by the Duke of Normandy to the Abbey of Mont-Saint-Michel in
1022. In 1784 a correspondence between French authorities concerned an
application for a concession in respect of the Minquiers made by a French
national. The Court held the view that this correspondence did not disclose anything
which could support the present French claim to sovereignty, but that it
revealed certain fears of creating difficulties with the English Crown. The
French Government further contended that, since 1861, it has assumed the sole
charge of the lighting and buoying of the Minquiers, without having encountered
any objection from the United Kingdom. The Court said that the buoys placed by
the French Government at the Minquiers were placed outside the reefs of the
groups and purported to aid navigation to and from French ports and protect
shipping against the dangerous reefs of the Minquiers. The French Government
also relied on various official visits to the Minquiers and the erection in
1939 of a house on one of the islets with a subsidy from the Mayor of Granville,
in continental Normandy.
The Court did not find that the
facts invoked by the French Government were sufficient to show that France has
a valid title to the Minquiers. As to the above-mentioned facts from the
nineteenth and twentieth centuries in particular, such acts could hardly be
considered as sufficient evidence of the intention of that Government to act as
sovereign over the islets. Nor were those acts of such a character that they
could be considered as involving a manifestation of State authority in respect
of the islets.
In such circumstances, and
having regard to the view expressed above with regard to the evidence produced
by the United Kingdom Government, the Court was of opinion that the sovereignty
over the Minquiers belongs to the United Kingdom.
*
* *
Availing themselves of the right
conferred on them by Article 57 of the Statute, Judges Basdevant and Carneiro,
while concurring in the decision of the Court, appended to the Judgment
statements of their individual opinions. Judge Alvarez, while also concurring
in the decision of the Court, made a declaration expressing regret that the
Parties had attributed excessive importance to mediæval evidence and had not
sufficiently taken into account the state of international law or its present
tendencies in regard to territorial sovereignty.
Haya de la Torre
(Colombia v. Peru)
(Colombia v. Peru)
The Question of Asylum
This case, a sequel to the earlier proceedings
(see Nos. 1.4-5 above), was instituted by Colombia by means of a fresh
application. Immediately after the Judgment of 20 November 1950, Peru had called
upon Colombia to surrender Mr. Haya de la Torre. Colombia refused to do so,
maintaining that neither the applicable legal provisions nor the Court's
Judgment placed it under an obligation to surrender the refugee to the Peruvian
authorities. The Court confirmed this view in its Judgment of 13 June 1951. It
declared that the question was a new one, and that although the Havana
Convention expressly prescribed the surrender of common criminals to the local
authorities, no obligation of the kind existed in regard to political
offenders. While
confirming that diplomatic asylum had been irregularly granted and that on this
ground Peru was entitled to demand its termination, the Court declared that
Colombia was not bound to surrender the refugee; these two conclusions, it
stated, were not contradictory because there were other ways in which the
asylum could be terminated besides the surrender of the refugee.
ASYLUM CASE
HAYA DE LA TORRE CASE
Judgment of 13 June 1951
The Haya de la Torre case
between Colombia and Peru with Cuba as intervening Party, was brought before
the Court under the following circumstances:
In a Judgment delivered on
November 20th, 1950, the Court had defined the legal relations between Colombia
and Peru in regard to questions which those States had submitted to it,
concerning diplomatic asylum in general and, in particular, the asylum granted
on January 3rd/4th, 1949 by the Colombian Ambassador at Lima to Victor Raul
Haya de la Torre; the Court had found that, in this case, the asylum had not
been granted in conformity with the Convention on Asylum signed at Havana in
1928. After the Judgment had been delivered, Peru requested Colombia to execute
it, and called upon her to put an end to a protection improperly granted by
surrendering the refugee. Colombia replied that to deliver the refugee would be
not only to disregard the Judgment of November 20th, but also to violate the
Havana Convention and she instituted proceedings before the Court by an
Application which was filed on December 13th, 1950.
In her Application, and during
the procedure, Colombia asked the Court to state in what manner the Judgment of
November 20th, 1950, was to be executed, and, furthermore, to declare that, in
executing that Judgment, she was not bound to surrender Haya de la Torre. Peru,
for her part, also asked the Court to state in what manner Colombia should
execute the Judgment. She further asked, first, the rejection of the Colombian
Submission requesting the Court to state, solely, that she was not bound to
surrender Haya de la Torre, and, secondly, for a declaration that the asylum
ought to have ceased immediately after the delivery of the Judgment of November
20th, 1950, and that it must in any case cease forthwith, in order that
Peruvian justice might resume its normal course which had been suspended.
In its Haya de la Torre judgment
the Court declared:
by a unanimous vote that it is
not part of the Court's judicial functions to make a choice among the different
ways in which the asylum may be brought to an end;
by thirteen votes against one,
that Colombia is under no obligation to surrender Haya de la Torre to the
Peruvian authorities;
by a unanimous vote that the
asylum ought to have ceased after the delivery of the Judgment of November
20th, 1950, and must be brought to an end.
In its Judgment, the Court
examines, in the first place, the admissibility of the Cuban Government's
intervention. That Government, availing itself of the right which the Statute
of the Court confers on States parties to a convention, the interpretation of
which is in issue, had filed a Declaration of Intervention in which it set
forth its views concerning the interpretation of the Havana Convention. The
Government of Peru contended that the Intervention was inadmissible: that it
was out of time, and was really in the nature of an attempt by a third State to
appeal against the Judgment of November 20th. In regard to that point, the
Court observes that every intervention is incidental to the proceedings in a
case, that, consequently, a declaration filed as an intervention only acquires
that character if it actually relates to the subject-matter of the pending
proceedings. The subject matter of the present case relates to a new
question - the surrender of Haya de la Torre to the Peruvian authorities - which
was completely outside the Submissions of the parties and was in consequence
not decided by the Judgment of November 20th. In these circumstances, the point
which it is necessary to ascertain is whether the object of the intervention is
the interpretation of the Havana Convention in regard to the question whether
Colombia is under an obligation to surrender the refugee: as according to the
representative of the Government of Cuba the intervention was based on the fact
that it was necessary to interpret a new aspect of the Havana Convention, the
Court decided to admit it.
The Court goes on to discuss the
merits. It observes that both parties are seeking to obtain a decision as to
the manner in which the Judgment of November 20th is to be executed. That
Judgment, in deciding on the regularity of the asylum, confined itself to
defining the legal relations which the Havana Convention had established, in
regard to this matter between the parties; it did not give any directions to
the parties, and only entailed for them the obligation of compliance with the
Judgment. However, the form in which the parties have formulated their
submissions shows that they desire that the Court should make a choice among
the various courses by which the asylum might be terminated. These courses are
conditioned by facts and possibilities which, to a very large extent, the
parties are alone in a position to appreciate. A choice among them could not be
based on legal considerations, but only on grounds of practicability or of political
expediency. Consequently, it is not part of the Court's judicial function to
make such a choice, and it is impossible for it to give effect to the
submissions of the parties in this respect.
As regards the surrender of the
refugee, this is a new question, which was only brought before the Court by the
Application of December 13th, 1950, and which was not decided by the Judgment
of November 20th. According to the Havana Convention, diplomatic asylum, which
is a provisional measure for the temporary protection of political offenders,
must be terminated as soon as possible. However, the Convention does not give a
complete answer to the question of the manner in which an asylum must be
terminated. As to persons guilty of common crimes, it expressly requires that
they be surrendered to the local authorities. For political offenders it
prescribes the grant of a safe-conduct for the departure from the country. But
a safe-conduct can only be claimed if the asylum has been regularly granted and
maintained and if the territorial State has required that the refugee should be
sent out of the country. For cases in which the asylum has not been regularly
granted and where the territorial State has made no such demand, the Convention
makes no provision. To interpret this silence as imposing an obligation to
surrender the refugee would be repugnant to the spirit which animated the
Convention in conformity with the Latin American tradition in regard to asylum,
a tradition in accordance with which a political refugee ought not to be
surrendered. There is nothing in that tradition to indicate that an exception
should be made in case of an irregular asylum. If it had been intended to
abandon that tradition, an express provision to that effect would have been
needed. The silence of the Convention implies that it was intended to leave the
adjustment of the consequences of such situations to decisions inspired by
considerations of convenience or simple political expediency.
It is true that, in principle,
asylum cannot be opposed to the operation of the national justice, and the
safety which arises from asylum cannot be construed as a protection against the
laws and the jurisdiction of the legally constituted tribunals. The Court
declared this in its Judgment of November 20th. But it would be an
entirely different thing to say that there is an obligation to surrender a
person accused of a political offence because the asylum was irregular. That
would amount to rendering positive assistance to the local authorities in their
prosecution of a political refugee, and would be greatly exceeding the findings
of the Court in its Judgment of November 20th; such assistance could not be
admitted without an express provision to that effect in the Convention. As
concerns Haya de la Torre, the Court declared in its Judgment of November 20th,
on the one hand, that it had not been proved that, before asylum was granted,
he had been accused of common crimes; on the other hand, it found that the
asylum had not been granted to him in conformity with the Convention.
Consequently, and in view of the foregoing considerations, Colombia is not
obliged to surrender him to the Peruvian authorities.
Finally the Court examines the
Peruvian submissions which Colombia asked it to dismiss, concerning the termination
of the asylum. The Court states that the Judgment of November 20th, declaring
that the asylum was irregularly granted entails a legal consequence, namely,
that of putting an end to this irregularity by terminating the asylum. Peru is
therefore legally entitled to claim that the asylum should cease. However, Peru
has added that the asylum should cease "in order that Peruvian justice may
resume its normal course which has been suspended". This addition, which
appears to involve the indirect claim for the surrender of the refugee, cannot
be accepted by the Court.
The Court thus arrives at the
conclusion that the asylum must cease, but that Colombia is not bound to
discharge her obligation by surrendering the refugee. There is no contradiction
between these two findings, since surrender is not the only manner in which
asylum may be terminated.
Having thus defined, in
accordance with the Havana Convention, the legal relations between the parties
with regard to the matters referred to it, the Court declares that it has
completed its task. It is unable to give any practical advice as to the various
courses which might be followed with a view to terminating the asylum, since,
by so doing, it would depart from its judicial function. But it can be assumed
that the parties, now that their mutual legal relations have been made clear,
will be able to find a practical and satisfactory solution seeking guidance
from those considerations of courtesy and good neighbourliness which, in
matters of asylum, have always held a prominent place in the relations between
the Latin American Republics.
Anglo-Iranian Oil
Co.
(United Kingdom v. Iran)
(United Kingdom v. Iran)
In 1933 an agreement was concluded between the
Government of Iran and the Anglo-Iranian Oil Company. In 1951, laws were passed
in Iran for the nationalization of the oil industry. These laws resulted in a
dispute between Iran and the company. The United Kingdom took up the company's
case and instituted proceedings before the Court. Iran disputed the Court's
jurisdiction. In its Judgment of 22 July 1952, the Court decided that it had no
jurisdiction to deal with the dispute. Its jurisdiction depended on the
declarations by Iran and the United Kingdom accepting the Court's compulsory
jurisdiction under Article 36, paragraph 2, of the Court's Statute. The Court
held that the declaration by Iran, which was ratified in 1932, covered only
disputes based on treaties concluded by Iran after that date, whereas the claim
of the United Kingdom was directly or indirectly based on treaties concluded
prior to 1932. The Court also rejected the view that the agreement of 1933 was
both a concessionary contract between Iran and the company and an international
treaty between Iran and the United Kingdom, since the United Kingdom was not a
party to the contract. The position was not altered by the fact that the
concessionary contract was negotiated through the good offices of the Council
of the League of Nations. By an Order of 5 July 1951, the Court had indicated
interim measures of protection, that is, provisional measures for protecting
the rights alleged by either party, in proceedings already instituted, until a
final judgment was given. In its Judgment, the Court declared that the Order
had ceased to be operative.
_____*_____
Ambatielos
(Greece v. United Kingdom)
(Greece v. United Kingdom)
In 1919, Nicolas Ambatielos, a Greek shipowner,
entered into a contract for the purchase of ships with the Government of the
United Kingdom. He claimed he had suffered damage through the failure of that
Government to carry out the terms of the contract and as a result of certain
judgments given against him by the English courts in circumstances said to
involve the violation of international law. The Greek Government took up the
case of its national and claimed that the United Kingdom was under a duty to
submit the dispute to arbitration in accordance with Treaties between the
United Kingdom and Greece of 1886 and 1926. The United Kingdom objected to the
Court's jurisdiction. In a Judgment of 1 July 1952, the Court held that it had
jurisdiction to decide whether the United Kingdom was under a duty to submit
the dispute to arbitration but, on the other hand, that it had no jurisdiction
to deal with the merits of the Ambatielos claim. In a further Judgment of 19
May 1953, the Court decided that the dispute was one which the United Kingdom
was under a duty to submit to arbitration in accordance with the Treaties of
1886 and 1926.
_____*_____
AMBATIELOS CASE
(PRELIMINARY OBJECTION)
Judgment of 1 July
1952
The proceedings in the
Ambatielos Case (Preliminary Objection), between Greece and the United Kingdom
of Great Britain and Northern Ireland had been instituted by an Application by
the Hellenic Government which, having taken up the case of one of its
nationals, the shipowner Ambatielos, prayed the Court to declare that the claim
which the latter had made against the Government of the United Kingdom must, in
accordance with the terms of the Treaties concluded in 1886 and in 1926 between
Greece and the United Kingdom, be submitted to arbitration. The Government of
the United Kingdom, on the other hand, contended that the Court lacked
jurisdiction to decide on that question. In its Judgment the Court found by ten
votes to five that it had jurisdiction to decide whether the United Kingdom was
under an obligation to submit to arbitration the difference as to the validity
of the Ambatielos claim, in so far as this claim was based on the
Anglo-Hellenic Treaty of 1886.
Judge Levi Carneiro and M.
Spiropoulos, Judge ad hoc appended their individual opinions to the
Judgment. Five Judges - Sir Arnold McNair, Basdevant, Zoricic,
Klaestad and Hsu Mo - appended their dissenting opinions to the
Judgment.
In its Judgment, the Court
indicates the nature of Ambatielos's claim: it was alleged that he had suffered
considerable loss in consequence of a contract which he concluded in 1919 with
the Government of the United Kingdom (represented by the Ministry of Shipping)
for the purchase of nine steamships which were then under construction, and in
consequence of certain adverse judicial decisions in the English Courts in
connection therewith. The Court refers to the treaty clauses relied on by the
Parties: the Protocol annexed to the Treaty of 1886, which provides that
controversies that may arise in connection with that treaty shall be referred
to arbitration; the Treaty of 1926, which contains a similar clause; the
Declaration accompanying that treaty, which states that the latter does not
prejudice claims based on the Treaty of 1886 and that any difference that may
arise in respect of such claims shall be submitted to arbitration in accordance
with the provisions of the Protocol of 1886.
The Court then goes on to review
the submissions of the Parties as they were developed during the proceedings.
It is evident from this review that both Parties ask the Court to decide as to
its jurisdiction and whether there is an obligation to submit the difference to
arbitration. It is also evident that both Parties envisaged that the Court
itself might undertake the function of arbitration, but there was some doubt as
to the conditions which they would consider requisite, and in the absence of a clear
agreement between the Parties on that point, the Court considers that it has no
jurisdiction to go into all the merits of the present case.
The Court then proceeds to
examine the different arguments put forward by the United Kingdom Government in
support of its Preliminary Objection to the jurisdiction and those advanced by
the Hellenic Government in reply thereto. Article 29 of the Treaty of 1926
enables either of the Parties to submit to the Court any dispute as to the
interpretation or the application of any of the provisions of that Treaty. But
it has no retroactive effect, accordingly, the Court finds it impossible to
accept the theory advanced on behalf of the Hellenic Government, that where in
the 1926 Treaty there are substantive provisions similar to substantive
provisions of the 1886 Treaty, then under Article 29 of the 1926 Treaty the
Court can adjudicate upon the validity of a claim based on an alleged breach of
any of these similar provisions, even if the alleged breach took place wholly before
the new Treaty came into force. It is therefore impossible to hold that any of
its provisions must be deemed to have been in force earlier. Moreover, the
Declaration accompanying the Treaty of 1926 makes no distinction between claims
based on one class of provisions of the Treaty of 1886 and those based on
another class; they are all placed on the same footing, and differences
relating to their validity are referable to the same arbitral procedure.
The Government of the United
Kingdom has contended - and that is the most important of its
arguments - that the Declaration was not a part of the Treaty within
the meaning of Article 29. The Court does not agree with that view. The Treaty,
the customs schedule appended thereto and the Declaration were included by the
plenipotentiaries in a single document, published in the same way in the
English Treaty Series, and registered under a single number with the
League of Nations. The instruments of ratification of the two Parties cite the
three texts without making any distinction between them. The British instrument
of ratification even declares that the Treaty is "word for word as
follows": after which it goes on to cite the three texts in their
entirety. Moreover, the very nature of the Declaration also points to the same
conclusion. It records an understanding arrived at by the Parties before the
Treaty of 1926 was signed as to what the Treaty, or as Counsel for the
Government of the United Kingdom preferred to put it, the replacement of the
Treaty of 1886 by the Treaty of 1926, would not prejudice. For these reasons,
the Court holds that the provisions of the Declaration are provisions of the
Treaty within the meaning of Article 29. Consequently, this Court has
jurisdiction to decide any dispute as to the interpretation or application of
the Declaration and, in a proper case, to adjudge that there should be a
reference to a Commission of Arbitration. Any differences as to the validity of
the claims involved will, however, have to be arbitrated, as provided in the
Declaration itself, by the Commission.
The United Kingdom has also
contended that the Declaration only covered claims formulated before it came
into force. But the Declaration contains no reference to any date. Moreover,
the result of such an interpretation would be that claims based on the Treaty
of 1886, but brought after the conclusion of the Treaty of 1926, would be left
without a solution. They would not be subject to arbitration under either
Treaty, although the provision on whose breach the claim was based might appear
in both and might thus have been in force without a break since 1886. The Court
cannot accept an interpretation which would have a result obviously contrary to
the language of the Declaration and to the continuous will of both Parties to
submit all differences to arbitration of one kind or another.
For these reasons, the Court
finds, by thirteen votes to two, that it is without jurisdiction to decide on
the merits of the Ambatielos claim, and by ten votes to five, that it has
jurisdiction to decide whether the United Kingdom is under an obligation to
submit to arbitration, in accordance with the Declaration of 1926, the
difference as to the validity of the Ambatielos claim, in so far as this claim
is based on the Treaty of 1886.
AMBATIELOS CASE
(MERITS)
Judgment of 19 May
1953
The proceedings in the
Ambatielos case (Merits: Obligation to Arbitrate), between Greece and the
United Kingdom of Great Britain and Northern Ireland had been instituted by an
Application by the Hellenic Government, which, having taken up the case of one
of its nationals, the shipowner Ambatielos, prayed the Court to declare that
the claim which the latter had made against the Government of the United
Kingdom should be submitted to arbitration in accordance with Anglo-Greek
Agreements concluded in 1886 (Treaty and Protocol) and in 1926 (Declaration).
Following a Preliminary Objection lodged by the United Kingdom, the Court found
that it had jurisdiction to adjudicate on this question by a Judgment delivered
on July 1st, 1952.
In its Judgment on the merits
the Court found by ten votes to four that the United Kingdom was under an
obligation to submit to arbitration, in accordance with the Declaration of
1926, the difference as to the validity, under the Treaty of 1886, of the
Ambatielos claim.
Sir Arnold McNair, President,
Judges Basdevant, Klaestad and Road appended to the Judgment a joint statement
of their dissenting opinion.
*
* *
In its Judgment, the Court
begins by defining the question before it: is the United Kingdom under an
obligation to accept arbitration of the difference between that Government and
the Hellenic Government concerning the validity of the Ambatielos claim, in so
far as this claim is based on the Treaty of 1886? The distinctive character of
this case is that quite unlike the Mavrommatis Palestine Concessions decided
by the Permanent Court of International Justice in 1924 the Court is called
upon to decide, not its own jurisdiction, but whether a dispute should be
referred to another tribunal for arbitration.
The Parties have rested their
case on the Declaration of 1926 and the Judgment of the Court of July 1st,
1952. The Declaration was agreed upon for the purpose of safeguarding the
interests of the Parties with respect to claims on behalf of private persons
based on the Treaty of 1886, for which, on the termination of that Treaty,
there would have been no remedy in the event of the failure of the Parties to
arrive at amicable settlements. The Agreement of 1926 relates to a limited
category of differences which the Agreement of 1886 provided should be settled
by arbitration, namely differences as to the validity of claims on behalf of
private persons based on the Treaty of 1886. But in both cases the Parties were
prompted by the same motives and adopted the same method of arbitration. By the
Judgment of July 1st, 1952, the merits of the Ambatielos claim were found to be
outside the jurisdiction of the Court which consists solely of deciding whether
the United Kingdom is under an obligation to accept arbitration. The limited
jurisdiction of the Court is to be clearly distinguished from the jurisdiction
of the Commission of Arbitration. The Court must refrain from pronouncing final
judgment upon any question of fact or law falling within the merits; its task
will have been completed when it has decided whether the difference with regard
to the Ambatielos claim is a difference as to the validity of a claim on behalf
of a private person based on the provisions of the Treaty of 1886 and whether,
in consequence, there is an obligation binding the United Kingdom to accept
arbitration.
What meaning is to be attributed
to the word "based" on the Treaty of 1886? In the opinion of the
Greek Government it would suffice that the claim should not prima facie appear
to be unconnected with the Treaty. In the view of the United Kingdom, it is
necessary for the Court to determine, as a substantive issue, whether the claim
is actually or genuinely based on the Treaty. The Court is unable to accept
either of these views. The first would constitute an insufficient reason; the
second would lead to the substitution of the Court for the Commission of
Arbitration in passing on a point which constitutes one of the principal
elements of the claim The Commission alone has jurisdiction to adjudicate on
the merits and it cannot be assumed that the Agreement of 1926 contemplates
that the verification of the allegations of fact should be the duty of the
Commission, while the determination of the question whether the facts alleged
constitute a violation of the Treaty of 1886 should form the task of another
tribunal.
At the time of the signature of
the Declaration of 1926, the British and Greek Governments never intended that
one of them alone or some other organ should decide whether a claim was
genuinely based on the Treaty of 1886,it must have been their intention that
the genuineness of the Treaty basis of any claim, if contested, should be
authoritatively decided by the Commission of Arbitration, together with any
other questions relating to the merits.
For the purpose of determining
the obligation of the United Kingdom to accept arbitration, the expression claims
based on the Treaty of 1886 cannot be understood as meaning claims actually
supportable under that Treaty. Of course it is not enough that a claim should
have a remote connection with the Treaty for it to be based on it; on the other
hand it is not necessary that an unassailable legal basis should be shown for
an alleged Treaty violation. In its context, the expression means claims
depending for support on the provisions of the Treaty of 1886, so that the
claims will eventually stand or fall according as the provisions of the Treaty
are construed in one way or another. Consequently, in respect of the Ambatielos
claim, it is not necessary for the Court to find that the Hellenic Government's
interpretation of the Treaty is the only correct interpretation: it is enough
to determine whether the arguments advanced by the Hellenic Government in
support of its interpretation are of a sufficiently plausible character to
warrant a conclusion that the claim is based on the Treaty. In other words, if
an interpretation appears to be an arguable one, whether or not it ultimately
prevails, then there are reasonable grounds for concluding that the claim is
based on the Treaty. The validity of the respective arguments would be
determined by the Commission of Arbitration in passing upon the merits of the
difference.
The Court then proceeds to deal
with two of the contentions put forward by Greece and contested by the United
Kingdom. One is based on the most-favoured-nation clause in Article X of the
Treaty of 1886 which would permit Greece to invoke the benefits of Treaties
concluded by the United Kingdom with third states and obtain redress for a denial
of justice Mr. Ambatielos would have suffered - if the facts alleged
were true.
The other contention, based on
Article XV, rests on an interpretation of the words "free access to the
Courts of Justice" appearing in that Article; again on the assumption that
the facts alleged are true, it is contended that Mr. Ambatielos did not have
"free access" to English courts.
Having regard to these
contentions, as well as the divergence of views which give rise to them, and
bearing in mind especially the possible interpretation put forward by the
Hellenic Government of the provisions of the Treaty of 1886 which it invokes,
the Court must conclude that this is a case in which the Hellenic Government is
presenting a claim on behalf of a private person based on the Treaty of 1886,
and that the difference between the Parties is the kind of difference which,
according to the Agreement of 1926, should be submitted to arbitration.
Military and
Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America)
(Nicaragua v. United States of America)
On 9 April 1984 Nicaragua filed an Application
instituting proceedings against the United States of America, together with a
request for the indication of provisional measures concerning a dispute
relating to responsibility for military and paramilitary activities in and
against Nicaragua. On 10 May 1984 the Court made an Order indicating
provisional measures. One of these measures required the United States
immediately to cease and refrain from any action restricting access to
Nicaraguan ports, and in particular the laying of mines. The Court also
indicated that the right to sovereignty and to political independence possessed
by Nicaragua, like any other State, should be fully respected and should not be
jeopardized by activities contrary to the principle prohibiting the threat or
use of force and to the principle of non-intervention in matters within the
domestic jurisdiction of a State. The Court also decided in the aforementioned
Order that the proceedings would first be addressed to the questions of the
jurisdiction of the Court and of the admissibility of the Nicaraguan
Application. Just before the closure of the written proceedings in this phase,
El Salvador filed a declaration of intervention in the case under Article 63 of
the Statute, requesting permission to claim that the Court lacked jurisdiction
to entertain Nicaragua's Application. In its Order dated 4 October 1984, the
Court decided that El Salvador's declaration of intervention was inadmissible
inasmuch as it related to the jurisdictional phase of the proceedings. After
hearing argument from both Parties in the course of public hearings held from 8
to 18 October 1984, on 26 November 1984 the Court delivered a Judgment stating
that it possessed jurisdiction to deal with the case and that Nicaragua's
application was admissible. In particular, it held that the Nicaraguan
declaration of 1929 was valid and that Nicaragua was therefore entitled to
invoke the United States declaration of 1946 as a basis of the Court's
jurisdiction (Article 36, paragraphs 2 and 5, of the Statute). The subsequent
proceedings took place in the absence of the United States, which announced on
18 January 1985 that it "intends not to participate in any further
proceedings in connection with this case". From 12 to 20 September 1985,
the Court heard oral argument by Nicaragua and the testimony of the five
witnesses it had called. On 27 June 1986, the Court delivered its Judgment on
the merits. The findings include a rejection of the justification of collective
self-defence advanced by the United States concerning the military or
paramilitary activities in or against Nicaragua, and a statement that the
United States had violated the obligations imposed by customary international
law not to intervene in the affairs of another State, not to use force against
another State, not to infringe the sovereignty of another State, and not to
interrupt peaceful maritime commerce. The Court also found that the United
States had violated certain obligations arising from a bilateral Treaty of
Friendship, Commerce and Navigation of 1956, and that it had committed acts
such to deprive that treaty of its object and purpose. It decided that the
United States was under a duty immediately to cease and to refrain from all
acts constituting breaches of its legal obligations, and that it must make
reparation for all injury caused to Nicaragua by the breaches of obligations
under customary international law and the 1956 Treaty, the amount of that
reparation to be fixed in subsequent proceedings if the Parties were unable to
reach agreement. The Court subsequently fixed, by an Order, time-limits for the
filing of written pleadings by the Parties on the matter of the form and amount
of reparation, and the Memorial of Nicaragua was filed on 29 March 1988, while
the United States maintained its refusal to take part in the case. In September
1991, Nicaragua informed the Court, inter alia, that it did not wish to
continue the proceedings. The United States told the Court that it welcomed the
discontinuance and, by an Order of the President dated 26 September 1991, the
case was removed from the Court's List.
_____*_____
Certain Norwegian
Loans
(France v. Norway)
(France v. Norway)
Certain Norwegian loans had been floated in
France between 1885 and 1909. The bonds securing them stated the amount of the
obligation in gold, or in currency convertible into gold, as well as in various
national currencies. From the time when Norway suspended the convertibility of
its currency into gold — on several occasions after 1914 — the loans had been
serviced in Norwegian kroner. The French Government, espousing the cause of the
French bondholders, filed an Application requesting the Court to declare that
the debt should be discharged by payment of the gold value of the coupons of
the bonds on the date of payment and of the gold value of the redeemed bonds on
the date of repayment. The Norwegian Government raised a number of preliminary
objections to the jurisdiction of the Court and, in the Judgment it delivered
on 6 July 1957, the Court found that it was without jurisdiction to adjudicate
on the dispute. Indeed, the Court held that, since its jurisdiction depended
upon the two unilateral declarations made by the parties, jurisdiction was
conferred upon the Court only to the extent to which those declarations
coincided in conferring it. The Norwegian Government, which had considered the
dispute to fall entirely within its national jurisdiction, was therefore
entitled, by virtue of the condition of reciprocity, to invoke in its own
favour, and under the same conditions, the reservation contained in the French
declaration which excluded from the jurisdiction of the Court differences
relating to matters which were "essentially within the national
jurisdiction as understood by the Government of the French Republic".
Rights of
Nationals of the
United States of America in Morocco
(France v. United States of America)
United States of America in Morocco
(France v. United States of America)
By a decree of 30 December 1948, the French
authorities in the Moroccan Protectorate imposed a system of licence control in
respect of imports not involving an official allocation of currency, and
limited these imports to a number of products indispensable to the Moroccan
economy. The United States maintained that this measure affected its rights
under treaties with Morocco and contended that, in accordance with these
treaties and with the General Act of Algeciras of 1906, no Moroccan law or
regulation could be applied to its nationals in Morocco without its previous
consent. In its Judgment of 27 August 1952, the Court held that the import
controls were contrary to the Treaty between the United States and Morocco of
1836 and the General Act of Algeciras since they involved discrimination in
favour of France against the United States. The Court then considered the
extent of the consular jurisdiction of the United States in Morocco and held
that the United States was entitled to exercise such jurisdiction in the French
Zone in all disputes, civil or criminal, between United States citizens or
persons protected by the United States. It was also entitled to exercise such
jurisdiction to the extent required by the relevant provisions of the General
Act of Algeciras. The Court rejected the contention of the United States that
its consular jurisdiction included cases in which only the defendant was a
citizen or protégé of the United States. It also rejected the claim by the
United States that the application to United States citizens of laws and
regulations in the French Zone of Morocco required the prior assent of the
United States Government. Such assent was required only in so far as the
intervention of the consular courts of the United States was necessary for the
effective enforcement of such laws or regulations with respect to United States
citizens. The Court rejected a counter-claim by the United States that its
nationals in Morocco were entitled to immunity from taxation. It also dealt
with the question of the valuation of imports by the Moroccan customs
authorities.
_____*_____
Certain Expenses of The United
Nations
(Article 17, Paragraph 2, of The Charter)
(Article 17, Paragraph 2, of The Charter)
Advisory Opinions
Advising Opinion of 20 July 1962
The question of certain expenses
of the United Nations (Article 17, paragraph 2, of the Charter) had been put to
the Court for an advisory opinion by a resolution adopted by the General
Assembly of the United Nations of 20 December 1961.
By nine votes to five the Court
declared that the expenditures authorized in certain General Assembly
resolutions enumerated in the request for opinion, relating to the United
Nations operations in the Congo and in the Middle East undertaken in pursuance
of Security Council and General Assembly resolutions likewise enumerated in the
request were "expenses of the Organization" within the meaning of
Article 17, paragraph 2, of the Charter of the United Nations.
Judges Sir Percy Spender, Sir
Gerald Fitzmaurice and Morelli appended to the Opinion of the Court statements
of their Separate Opinions. President Winiarski and Judges Basdevant, Moreno
Quintana, Koretsky and Bustamante y Rivero appended to the Opinion of the Court
statements of their Dissenting Opinions.
*
* *
The President of the Court, in
pursuance of Article 66, paragraph 2, of the Statute, having considered that
the States Members of the United Nations were likely to be able to furnish
information on the question, fixed 20 February 1962 as the time-limit within
which the Court would be prepared to receive written statements from them. The
following Members of the United Nations submitted statements, notes or letters
setting forth their views: Australia, Bulgaria, Byelorussian Soviet Socialist
Republic, Canada Czechoslovakia Denmark, France, Ireland, Italy, Japan the
Netherlands, Portugal, Romania, South Africa, Spain, Ukrainian Soviet Socialist
Republic, Union of Soviet Socialist Republics, United Kingdom of Great Britain
and Northern Ireland, United States of America and Upper Volta. At hearings
held from 14 to 21 May the Court heard oral statements by the representatives
of Canada, the Netherlands, Italy, the United Kingdom of Great Britain and
Northern Ireland, Norway, Australia, Ireland, the Union of Soviet Socialist
Republics and the United States of America.
*
* *
In its opinion the Court first
recalled that it had been argued that the Court should refuse to give an
opinion, the question put to it being of a political nature, and declared that
it could not attribute a political character to a request which invited it to
undertake an essentially judicial task, namely the interpretation of a treaty
provision. In this connection the Court recalled the principles previously
stated by the Permanent Court of International Justice in the Advisory Opinion
concerning the Status of Eastern Carelia and by the present Court in the
Advisory Opinions concerning the Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania (First Phase) and Judgments of the
Administrative Tribunal of the ILO upon Complaints made against Unesco, and
found no "compelling reason" why it should not give the advisory
opinion which the General Assembly had requested of it.
*
* *
The Court then examined the view
that it should take into consideration the rejection of a French amendment to
the request for advisory opinion. The amendment would have asked the Court to
give an opinion on the question whether the expenditures related to the
indicated operations had been "decided on in conformity with the
provisions of the Charter".
On this point the Court observed
that the rejection of the French amendment did not constitute a directive to
the Court to exclude from its consideration the question whether certain
expenditures were "decided on in conformity with the Charter", if the
Court found such consideration appropriate. Nor could the Court agree that the
rejection of the French amendment had any bearing upon the question whether the
General Assembly had sought to preclude the Court from interpreting Article 17
in the light of other articles of the Charter, that is, in the whole context of
the treaty.
*
* *
Turning then to the question
which had been posed, the Court found that it involved an interpretation of
Article 17, paragraph 2, of the Charter, and that the first question was that
of identifying what are "the expenses of the Organization".
The text of Article 17,
paragraph 2, referred to "the expenses of the Organization" without
any further explicit definition. The interpretation of the word
"expenses" had been linked with the word "budget" in
paragraph 1 of that Article and it had been contended that in both cases the
qualifying adjective "regular" or "administrative" should
be understood to be implied. According to the Court this would be possible only
if such qualification must necessarily be implied from the provisions of the
Charter considered as a whole.
Concerning the word
"budget" in paragraph 1 of Article 17, the Court found that the
distinction between "administrative budgets" and "operational
budgets" had not been absent from the minds of the drafters of the Charter
since it was provided in paragraph 3 of the same Article that the General
Assembly "shall examine the administrative budgets" of the
specialized agencies: if the drafters had intended that paragraph 1 should be
limited to the administrative budget of the United Nations organization itself,
the word "administrative" would have been inserted in
paragraph 1 as it had been in paragraph 3. Actually, the practice of the
Organization had been from the outset to include in the budget items which would
not fall within any of the definitions of "administrative budget"
which had been advanced. The General Assembly had consistently included in the
annual budget resolutions provision for "unforeseen and extraordinary
expenses" arising in relation to the "maintenance of peace and
security". Every year from 1947 through 1959 the resolutions on these
unforeseen and extraordinary expenses have been adopted without a dissenting
vote, except for 1952, 1953 and 1954, owing to the fact that in those years the
resolution included the specification of a controversial item-United Nations
Korean war decorations. Finally, in 1961, the report of the Working Group of
Fifteen on the Examination of the Administrative and Budgetary Procedures of
the United Nations had recorded the adoption without opposition of a statement
that "investigations and observation operations undertaken by the
Organization to prevent possible aggression should be financed as part of the
regular budget of the United Nations." Taking these facts into consideration,
the Court concluded that there was no justification for reading into the text
of Article 17, paragraph 1, any limiting or qualifying word before the word
"budget".
*
* *
Turning to paragraph 2 of
Article 17, the Court observed that, on its face, the term "expenses of
the Organization" meant all the expenses and not just certain types of
expenses which might be referred to as "regular expenses". Finding
that an examination of other parts of the Charter showed the variety of
expenses which must inevitably be included within the "expenses of the
Organization", the Court did not perceive any basis for challenging the
legality of the settled practice of including such expenses in the budgetary
amounts which the General Assembly apportioned among the Members in accordance
with the authority which was given to it by Article 17, paragraph 2.
*
* *
Passing then to the
consideration of Article 17 from the standpoint of its place in the general
structure and scheme of the Charter, the Court found that the general purposes
of that Article were the vesting of control over the finances of the
Organization and the levying of apportioned amounts of the expenses of the
Organization. Replying to the argument that expenses resulting from operations
for the maintenance of international peace and security were not "expenses
of the Organization" within the meaning of Article 17, paragraph 2, of the
Charter, inasmuch as they fell to be dealt with exclusively by the Security
Council, and more especially through agreements negotiated in accordance with
Article 43 of the Charter, the Court found that under Article 24 the
responsibility of the Security Council in the matter was "primary",
not exclusive. The Charter made it abundantly clear that the General Assembly
was also to be concerned with international peace and security. Under paragraph
2 of Article 17 the General Assembly was given the power to apportion the
expenses among the Members, which created the obligation of each to bear that
part of the expenses which was apportioned to it. When those expenses included
expenditures for the maintenance of peace and security, which were not
otherwise provided for, it was the General Assembly which had the authority to
apportion the latter amounts among the Members. None of the provisions determining
the respective functions and powers of the Security Council and the General
Assembly supported the view that such distribution excluded from the powers of
the General Assembly the power to provide for the financing of measures
designed to maintain peace and security.
Replying to the argument that
with regard to the maintenance of international peace and security the
budgetary authority of the General Assembly is limited by Article 11, paragraph
2, under which "any such question [relating to the maintenance of
international peace and security] on which action is necessary shall be
referred to the Security Council by the General Assembly either before or after
discussion" the Court considered that the action referred to in that
provision was coercive or enforcement action. In this context, the word
"action" must mean such action as was solely within the province of
the Security Council, namely that indicated by the title of Chapter VII of
the Charter: "action with respect to threats to the peace, breaches of the
peace, and acts of aggression". If the interpretation of the word
"action" in Article 11, paragraph 2, were that the General Assembly
could make recommendations only of a general character affecting peace and
security in the abstract, and not in relation to specific cases, the paragraph
would not have provided that the General Assembly might make recommendations on
questions brought before it by States or by the Security Council. Accordingly,
the last sentence of Article 11, paragraph 2, had no application where the
necessary action was not enforcement action.
The Court found therefore that
the argument drawn from Article 11, paragraph 2, to limit the budgetary
authority of the General Assembly in respect of the maintenance of
international peace and security was unfounded.
*
* *
The Court then turned to the
examination of the argument drawn from Article 43 of the Charter which provides
that Members shall negotiate agreements with the Security Council on its
initiative, for the purpose of maintaining international peace and security.
The argument was that such agreements were intended to include specifications
concerning the allocation of costs of such enforcement actions as might be
taken by direction of the Security Council, and that it was only the Security
Council which had the authority to arrange for meeting such costs.
After stating that Article 43 was not applicable,
the Court added that even if it were applicable, the Court could not accept
such an interpretation of its text for the following reasons. A Member State
would be entitled, during the negotiation of such agreements, to insist, and
the Security Council would be entitled to agree, that some part of the expense
should be borne by the Organization. In that case such expense would form part
of the expenses of the Organization and would fall to be apportioned by the
General Assembly under Article 17. Moreover, it followed from Article 50 of the
Charter that the Security Council might determine that an overburdened State
was entitled to some financial assistance. Such financial assistance, if
afforded by the Organization, as it might be, would clearly constitute part of
the "expenses of the Organization". Furthermore, the Court considered
that it could not be said that the Charter had left the Security Council
impotent in the face of an emergency situation when agreements under Article 43
had not been concluded. It must lie within the power of the Security Council to
police a situation even though it did not resort to enforcement action against
a State. The costs of actions which the Security Council was authorized to take
therefore constituted "expenses of the Organization within the meaning of
Article 17, paragraph 2".
Having considered the general
problem of the interpretation of Article 17, paragraph 2, in the light of the
general structure of the Charter and of the respective functions of the General
Assembly and the Security Council, with a view to determining the meaning of
the phrase "the expenses of the Organization", the Court proceeded to
examine the expenditures enumerated in the request for the advisory opinion. It
agreed that such expenditures must be tested by their relationship to the
purposes of the United Nations in the sense that if an expenditure were made
for a purpose which was not one of the purposes of the United Nations it could
not be considered an "expense of the Organization". When the
Organization took action which warranted the assertion that it was appropriate
for the fulfilment of one of the purposes of the United Nations set forth in
Article 1 of the Charter, the presumption was that such action was not ultra
vires the Organization. If the action were taken by the wrong organ, it was
irregular, but this would not necessarily mean that the expense incurred was
not an expense of the Organization. Both national and international law
contemplated cases in which the body corporate or politic might be bound by an ultra
vires act of an agent. As the United Nations Charter included no procedure
for determining the validity of the acts of the organs of the United Nations,
each organ must, in the first place at least, determine its own jurisdiction.
If the Security Council adopted a resolution purportedly for the maintenance of
international peace and security and if, in accordance with such resolution,
the Secretary-General incurred financial obligations, those amounts must be
presumed to constitute "expenses of the Organization". Recalling its
Opinion concerning Effects of Awards of Compensation made by the United
Nations Administrative Tribunal, the Court declared that obligations of the
Organization might be incurred by the Secretary-General acting on the authority
of the Security Council or of the General Assembly, and that the General
Assembly "has no alternative but to honour these engagements".
This reasoning, applied to the
resolutions mentioned in the request for the advisory opinion, might suffice as
a basis for the opinion of the Court. The Court went on, however, to examine
separately the expenditures relating to the United Nations Emergency Force in
the Middle East (UNEF) and those relating to the United Nations operations in
the Congo (ONUC).
As regards UNEF, the Court
recalled that it was to be set up with the consent of the Nations concerned,
which dismissed the notion that it constituted measures of enforcement. On the
other hand, it was apparent that the UNEF operations were undertaken to fulfil
a prime purpose of the United Nations, that is, to promote and maintain a
peaceful settlement of the situation. The Secretary-General had therefore
properly exercised the authority given him to incur financial obligations; the
expenses provided for by such obligations must be considered "expenses of
the Organization". Replying to the argument that the General Assembly never,
either directly or indirectly, regarded the expenses of UNEF as "expenses
of the Organization within the meaning of Article 17, paragraph 2, of the
Charter", the Court stated that it could not agree with this
interpretation. Analysing the resolutions relating to the financing of UNEF,
the Court found that the establishment of a special account did not necessarily
mean that the funds in it were not to be derived from contributions of Members
as apportioned by the General Assembly. The resolutions on this matter, which
had been adopted by the requisite two-thirds majority, must have rested upon
the conclusion that the expenses of UNEF were "expenses of the
Organization" since otherwise the General Assembly would have had no
authority to decide that they "shall be borne by the United Nations"
or to apportion them among the Members. The Court found therefore that, from
year to year, the expenses of UNEF had been treated by the General Assembly as
expenses of the Organization within the meaning of Article 17, paragraph 2.
*
* *
Turning next to the operations
in the Congo, the Court recalled that they had been initially authorized by the
Security Council in the resolution of 14 July 1960, which had been adopted
without a dissenting vote. The resolution, in the light of the appeal from the
Government of the Congo, the report of the Secretary-General and the debate in
the Security Council, had clearly been adopted with a view to maintaining
international peace and security. Reviewing the resolutions and reports of the
Secretary-General relating to these operations, the Court found that in the
light of such a record of reiterated consideration, confirmation, approval and
ratification by the Security Council and by the General Assembly of the actions
of the Secretary-General, it was impossible to reach the conclusion that the
operations in the Congo usurped or impinged upon the prerogatives conferred by
the Charter of the Security Council. These operations did not involve
"preventive or enforcement measures" against any State under Charter
VII and therefore did not constitute "action" as that term was used
in Article 11. The financial obligations which the Secretary-General had
incurred, in accordance with the clear and reiterated authority of both the
Security Council and the General Assembly, constituted obligations of the
Organization for which the General Assembly was entitled to make provision
under the authority of Article 17, paragraph 2, of the Charter.
In relation to the financing of
the operations in the Congo, the Court, recalling the General Assembly
resolutions contemplating the apportionment of the expenses in accordance with
the scale of assessment for the regular budget, concluded therefrom that the
General Assembly had twice decided that even though certain expenses were
"extraordinary" and "essentially different" from those
under the "regular budget", they were none the less "expenses of
the Organization" to be apportioned in accordance with the power granted
to the General Assembly by Article 17, paragraph 2.
*
* *
Having thus pointed out on the
one hand that the text of Article 17, paragraph 2, of the Charter could lead to
the conclusion that the expenses of the Organization were the amounts paid out
to defray the costs of carrying out the purposes of the Organization, and on
the other hand that the examination of the resolutions authorizing the
expenditures referred to in the request for the advisory opinion had led to the
finding that they had been incurred with that end in view and having also
analyzed and found unfounded the arguments which had been advanced against the
conclusion that the expenditures in question should be considered as expenses
of the Organization within the meaning of Article 17, paragraph 2, of the
Charter of the United Nations, the Court arrived at the conclusion that the
question submitted to it by the General Assembly must be answered in the
affirmative.
SOUTH-WEST AFRICA CASES (SECOND PHASE)
Judgment of 18 July 1966
The South West Africa cases
(Ethiopia v. South Africa; Liberia v. South Africa), which relate
to the continued existence of the Mandate for South West Africa and the duties
and performance of South Africa as Mandatory thereunder, were instituted by
Applications of the Governments of Ethiopia and Liberia filed in the Registry
on 4 November 1960. By an Order of 20 May 1961 the Court joined the proceedings
in the two cases. The Government of South Africa raised preliminary objections
to the Court's proceeding to hear the merits of the case, but these were
dismissed by the Court on 21 December 1962, the Court finding that it had
jurisdiction to adjudicate upon the merits of the dispute.
In its Judgment on the second
phase of the cases the Court, by the President's casting vote, the votes being
equally divided (seven-seven), found that the Applicant States could not be
considered to have established any legal right or interest in the subject
matter of their claims and accordingly decided to reject them.
The President, Sir Percy
Spender, has appended a Declaration to the Judgment. Judge Morelli and Judge ad
hoc van Wyk have appended separate opinions. Vice-President Wellington Koo,
Judges Koretsky, Tanaka, Jessup, Padilla Nervo and Forster and Judge ad hoc Sor
Louis Mbanefo have appended dissenting opinions.
*
* *
The Applicants, acting in the
capacity of States which were members of the former League of Nations, put
forward various allegations of contraventions of the League of Nations Mandate
for South West Africa by the Republic of South Africa.
The contentions of the Parties covered,
inter alia, the following issues: whether the Mandate for South West
Africa was still in force and, if so, whether the Mandatory's obligation to
furnish annual reports on its administration to the Council of the League of
Nations had become transformed into an obligation so to report to the General
Assembly of the United Nations; whether the Respondent had, in accordance with
the Mandate, promoted to the utmost the material and moral well-being and the
social progress of the inhabitants of the territory, whether the Mandatory had
contravened the prohibition in the Mandate of the "military training of
the natives" and the establishment of military or naval bases or the
erection of fortifications in the territory; and whether South Africa had
contravened the provision in the Mandate that it (the Mandate) can only be
modified with the consent of the Council of the League of Nations, by
attempting to modify the Mandate without the consent of the United Nations
General Assembly, which, it was contended by the Applicants, had replaced the
Council of the League for this and other purposes.
Before dealing with these
questions, however, the Court considered that there were two questions of an
antecedent character, appertaining to the merits of the case, which might
render an enquiry into other aspects of the case unnecessary. One was whether
the Mandate skill subsisted at all and the other was the question of the
Applicants' standing in this phase of the proceedings - i.e. their
legal right or interest regarding the subject matter of their claims. As the
Court based its Judgment on a finding that the Applicants did not possess such
a legal right or interest, it did not pronounce upon the question of whether
the Mandate was still in force. Moreover, the Court emphasized that its 1962
decision on the question of competence was given without prejudice to the
question of the survival of the Mandate - a question appertaining to
the merits of the case, and not in issue in 1962 except in the sense that survival
had to be assumed for the purpose of determining the purely jurisdictional
issue - which was all that was then before the Court.
Turning to the basis of its
decision in the present proceedings, the Court recalled that the mandates
system was instituted by Article 22 of the Covenant of the League of Nations.
There were three categories of mandates, 'A', 'B' and 'C' mandates, which had,
however, various features in common as regards their structure. The principal
element of each instrument of mandate consisted of the articles defining the
mandatory's powers and its obligations in respect of the inhabitants of the
territory and towards the League and its organs. The Court referred to these as
the "conduct" provisions. In addition, each instrument of mandate
contained articles conferring certain rights relative to the mandated territory
directly upon the members of the League as individual States, or in favour of
their nationals. The Court referred to rights of this kind as "special
interests", embodied in the "special interests" provisions of
the mandates.
In addition, every mandate
contained a jurisdictional clause, which, with a single exception, was in
identical terms, providing for a reference of disputes to the Permanent Court
of International Justice, which, the Court had found in the first phase of the
proceedings, was now, by virtue of Article 37 of the Court's Statute, to be
construed as a reference to the present Court.
The Court drew a distinction
between the "conduct" and the "special interests"
provisions of the mandates, the present dispute relating exclusively to the
former. The question to be decided was whether any legal right or interest was
vested in members of the League of Nations individually as regards the
"conduct" clauses of the mandates - i.e., whether the
various mandatories had any direct obligation towards the other members of the
League individually, as regards the carrying out of the "conduct"
provisions of the mandates. If the answer were that the Applicants could not be
regarded as possessing the legal right or interest claimed, then even if the
various allegations of contraventions of the Mandate for South West Africa were
established, the Applicants would still not be entitled to the pronouncements
and declarations which, in their final submissions, they asked the Court to
make.
It was in their capacity as
former members of the League of Nations that the Applicants appeared before the
Court, and the rights they claimed were those that the members of the League
were said to have been invested with in the time of the League. Accordingly, in
order to determine the rights and obligations of the Parties relative to the
Mandate, the Court had to place itself at the point in time when the mandates
system was instituted. Any enquiry into the rights and obligations of the
Parties must proceed principally on the basis of considering the texts of the
instruments and provisions in the setting of their period.
Similarly, attention must be
paid to the juridical character and structure of the institution, the League of
Nations, within the framework of which the mandates system was organized. A
fundamental element was that Article 2 of the Covenant provided that the
"action of the League under this Covenant shall be effected through the
instrumentality of an Assembly and of a Council, with a permanent
Secretariat". Individual member States could not themselves act
differently relative to League matters unless it was otherwise specially so
provided by some article of the Covenant.
It was specified in Article 22
of the Covenant that the "best method of giving practical effect to [the]
principle" that the "well-being and development" of those
peoples in former enemy colonies "not yet able to stand by
themselves" formed "a sacred trust of civilization" was that
"the tutelage of such peoples should be entrusted to advanced nations . .
. who are willing to accept it" and it specifically added that it was
"on behalf of the League" that "this tutelage should be
exercised by those nations as Mandatories". The mandatories were to be the
agents of the League and not of each and every member of it individually.
Article 22 of the Covenant
provided that "securities for the performance" of the sacred trust
were to be "embodied in this Covenant". By paragraphs 7 and 9 of
Article 22, every mandatory was to "render to the Council an annual report
in reference to the territory"; and a Permanent Mandates Commission was to
be constituted "to receive and examine" these annual reports and
"to advise the Council on all matters relating to the observance of the
mandates". In addition, it was provided, in the instruments of mandate
themselves, that the annual reports were to be rendered "to the
satisfaction of the Council".
Individual member States of the
League could take part in the administrative process only through their
participation in the activities of the organs by means of which the League was
entitled to function. They had no right of direct intervention relative to the
mandatories: this was the prerogative of the League organs.
The manner in which the mandate
instruments were drafted only lends emphasis to the view that the members of
the League generally were not considered as having any direct concern with the
setting up of the various mandates. Furthermore, while the consent of the
Council of the League was required for any modification of the terms of the
mandate, it was not stated that the consent of individual members of the League
was additionally required. Individual members of the League were not parties to
the various instruments of mandate, though they did, to a limited extent, and
in certain respects only, derive rights from them. They could draw from the
instruments only such rights as these unequivocally conferred.
Had individual members of the
League possessed the rights which the Applicants claimed them to have had, the
position of a mandatory caught between the different expressions of view of
some 40 or 50 States would have been untenable. Furthermore, the normal League
voting rule was unanimity, and as the mandatory was a member of the Council on
questions affecting its mandate, such questions could not be decided against
the mandatory's contrary vote. This system was inconsistent with the position
claimed for individual League members by the Applicants, and if, as members of
the League, they did not possess the rights contended for, they did not possess
them now.
*
* *
It had been attempted to derive
a legal right or interest in the conduct of the Mandate from the simple
existence, or principle, of the "sacred trust". The sacred trust, it
was said was a "sacred trust of civilization" and hence all civilized
nations had an interest in seeing that it was carried out. But in order that
this interest might take on a specifically legal character the sacred trust
itself must be or become something more than a moral or humanitarian ideal. In
order to generate legal rights and obligations, it must be given juridical
expression and be clothed in legal form. The moral ideal must not be confused
with the legal rules intended to give it effect. The principle of the
"sacred trust" had no residual juridical content which could, so far
as any particular mandate is concerned, operate per se to give rise to
legal rights and obligations outside the system as a whole.
Nor could the Court accept the
suggestion that even if the legal position of the Applicants and of other
individual members of the League were as the Court held it to be, this was so
only during the lifetime of the League, and that on the latter's dissolution
the rights previously resident in the League itself, or in its competent
organs, devolved upon the individual States which were members of it at the
date of its dissolution. Although the Court held in 1962 that the members of a
dissolved international organization can be deemed, though no longer members of
it, to retain rights which, as members, they individually possessed when the
organization was in being, this could not extend to ascribing to them, upon and
by reason of the dissolution, rights which, even previously as members, they
never did individually possess. Nor could anything that occurred subsequent to
the dissolution of the League operate to invest its members with rights they
did not previously have as members of the League. The Court could not read the
unilateral declarations, or statements of intention, made by the various
mandatories on the occasion of the dissolution of the League, expressing their
willingness to continue to be guided by the mandates in their administration of
the territories concerned, as conferring on the members of the League
individually any new legal rights or interests of a kind they did not
previously possess.
It might be said that in so far
as the Court's view led to the conclusion that there was now no entity entitled
to claim the due performance of the Mandate, it must be unacceptable, but if a
correct legal reading of a given situation showed certain alleged rights to be
non-existent, the consequences of this must be accepted. To postulate the
existence of such rights in order to avert those consequences would be to
engage in an essentially legislative task, in the service of political ends.
Turning to the contention that
the Applicants' legal right or interest had been settled by the 1962 Judgment
and could not now be reopened, the Court pointed out that a decision on a
preliminary objection could never be preclusive of a matter appertaining to the
merits, whether or not it had in fact been dealt with in connection with the
preliminary objection. When preliminary objections were entered by the
defendant party in a case, the proceedings on the merits were suspended, by
virtue of Article 62, paragraph 3, of the Court's Rules. Thereafter, and until
the proceedings on the merits were resumed, there could be no decision finally
determining or prejudging any issue of merits. A judgment on a preliminary
objection might touch on a point of merits, but this it could do only in a
provisional way, to the extent necessary for deciding the question raised by
the preliminary objection. It could not rank as a final decision on the point
of merits involved.
While the 1962 Judgment decided
that the Applicants were entitled to invoke the jurisdictional clause of the
Mandate, it remained for them, on the merits, to establish that they had such a
right or interest in the carrying out of the provisions which they invoked as
to entitle them to the pronouncements and declarations they were seeking from
the Court. There was no contradiction between a decision that the Applicants
had the capacity to invoke the jurisdictional clause and a decision that the
Applicants had not established the legal basis of their claim on the merits.
In respect of the contention
that the jurisdictional clause of the Mandate conferred a substantive right to
claim from the Mandatory the carrying out of the "conduct of the
Mandate" provisions, it was to be observed that it would be remarkable if
so important a right had been created in so casual and almost incidental a
fashion. There was nothing about this particular jurisdictional clause, in
fact, to differentiate it from many others, and it was an almost elementary
principle of procedural law that a distinction had to be made between, on the
one hand, the right to activate a court and the right of a court to examine the
merits of a claim and, on the other, the plaintiff's legal right in respect of
the subject matter of its claim, which it would have to establish to the
satisfaction of the Court. Jurisdictional clauses were adjectival not
substantive in their nature and effect: they did not determine whether parties
had substantive rights, but only whether, if they had them, they could
vindicate them by recourse to a tribunal.
The Court then considered the
rights of members of the League Council under the jurisdictional clauses of the
minorities treaties signed after the First World War, and distinguished these
clauses from the jurisdictional clauses of the instruments of mandate. In the
case of the mandates the jurisdictional clause was intended to give the
individual members of the League the means of protecting their "special
interests" relative to the mandated territories; in the case of the
minorities treaties, the right of action of the Members of the Council under
the jurisdictional clause was only intended for the protection of minority
populations. Furthermore, any "difference of opinion" was
characterized in advance in the minorities treaties as being justiciable,
because it was to be "held to be a dispute of an international
character". Hence no question of any lack of legal right or interest could
arise. The jurisdictional clause of the mandates on the other hand had none of
the special characteristics or effects of those of the minorities treaties.
The Court next dealt with what
had been called the broad and unambiguous language of the jurisdictional
clause - the literal meaning of its reference to "any dispute
whatever" coupled with the words "between the Mandatory and another
Member of the League of Nations" and the phrase "relating . . .
to the provisions of the Mandate", which, it was said, permitted a
reference to the Court of a dispute about any provision of the Mandate. The
Court was not of the opinion that the word "whatever" in Article 7,
paragraph 2, of the Mandate did anything more than lend emphasis to a phrase
that would have meant exactly the same without it. The phrase "any
dispute" (whatever) did not mean anything intrinsically different from
"a dispute"; nor did the reference to the "provisions" of
the Mandate, in the plural, have any different effect from what would have
resulted from saying "a provision". A considerable proportion of the
acceptances of the Court's compulsory jurisdiction under paragraph 2 of Article
36 of its Statute were couched in language similarly broad and unambiguous and
even wider. It could never be supposed that on the basis of this wide language
the accepting State was absolved from establishing a legal right or interest in
the subject matter of its claim. The Court could not entertain the proposition
that a jurisdictional clause by conferring competence on the Court thereby and
of itself conferred a substantive right.
The Court next adverted to the
question of admissibility. It observed that the 1962 Judgment had simply found
that it had "jurisdiction to adjudicate upon the merits" and that if
any question of admissibility were involved it would fall to be decided now, as
occurred in the merits phase of the Nottebohm case; if this were so the
Court would determine the question in exactly the same way, i.e., looking at
the matter from the point of view of the capacity of the Applicants to advance
their present claim, the Court would hold that they had not got such capacity,
and hence that the claim was inadmissible.
Finally, the Court dealt with
what had been called the argument of "necessity". The gist of this
was that since the Council of the League had no means of imposing its views on
the Mandatory, and since no advisory opinion it might obtain from the Court
would be binding on the latter, the Mandate could have been flouted at will.
Hence, it was contended, it was essential, as an ultimate safeguard or security
for the sacred trust, that each Member of the League should be deemed to have a
legal right or interest in that matter and be able to take direct action
relative to it. But in the functioning of the mandates system in practice, much
trouble was taken to arrive, by argument, discussion, negotiation and
cooperative effort, at generally acceptable conclusions and to avoid situations
in which the Mandatory would be forced to acquiesce in the views of the rest of
the Council short of casting an adverse vote. In this context, the existence of
substantive rights for individual members of the League in the conduct of the
mandates exercisable independently of the Council would have been out of place.
Furthermore, leaving aside the improbability that, had the framers of the
mandates system intended that it should be possible to impose a given policy on
a mandatory, they would have left this to be haphazard and uncertain action of
individual members of the League, it was scarcely likely that a system which
deliberately made it possible for mandatories to block Council decisions by
using their veto (though, so far as the Court was aware, this had never been
done) should simultaneously invest individual members of the League with a
legal right of complaint if the mandatory made use of this veto. In the
international field, the existence of obligations that could not be enforced by
any legal process had always been the rule rather than the exception-and this
was even more the case in 1920 than today.
Moreover, the argument of
"necessity" amounted to a plea that the Court should allow the
equivalent of an actio popularis, or right resident in any member of a
community to take legal action in vindication of a public interest. But such a
right was not known to international law as it stood at present: and the Court
was unable to regard it as imported by "the general principles of
law" referred to in Article 38, paragraph 1 (c), of its Statute.
In the final analysis, the whole
"necessity" argument appeared to be based on considerations of an
extra-legal character, the product of a process of after-knowledge. It was
events subsequent to the period of the League, not anything inherent in the
mandates system as it was originally conceived, that gave rise to the alleged
"necessity", which, if it existed, lay in the political field and did
not constitute necessity in the eyes of the law. The Court was not a
legislative body. Parties to a dispute could always ask the Court to give a
decision ex aequo et bono, in terms of paragraph 2 of Article 38.
Failing that, the duty of the Court was plain: its duty was to apply the law as
it found it, not to make it.
It might be urged that the Court
was entitled to "fill in the gaps", in the application of a
teleological principle of interpretation, according to which instruments must
be given their maximum effect in order to ensure the achievement of their
underlying purposes. This principle was a highly controversial one and it
could, in any event, have no application to circumstances in which the Court
would have to go beyond what could reasonably be regarded as being a process of
interpretation and would have to engage in a process of rectification or
revision. Rights could not be presumed to exist merely because it might seem
desirable that they should. The Court could not remedy a deficiency if, in
order to do so, it had to exceed the bounds of normal judicial action.
It might also be urged that the
Court would be entitled to make good an omission resulting from the failure of
those concerned to foresee what might happen and to have regard to what it
might be presumed the framers of the mandate would have wished, or would even
have made express provision for, had they had advance knowledge of what was to
occur. The Court could not, however, presume what the wishes and intentions of
those concerned would have been in anticipation of events that were neither
foreseen nor foreseeable; and even if it could, it would certainly not be
possible to make the assumptions contended for by the Applicants as to what
those intentions were.
For the foregoing reasons, the
Court decided to reject the claims of the Empire of Ethiopia and the Republic
of Liberia.
BANCO NACIONAL DE CUBA v. SABBATINO, 376 U.S. 398 (1964)
376 U.S. 398
BANCO NACIONAL DE CUBA v. SABBATINO, RECEIVER,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 16.
Argued October 22-23, 1963.
Decided March 23, 1964.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 16.
Argued October 22-23, 1963.
Decided March 23, 1964.
Respondent American commodity broker, contracted
with a Cuban corporation largely owned by United States residents to buy Cuban
sugar. Thereafter, subsequent to the United States Government's reduction of
the Cuban sugar quota, the Cuban Government expropriated the corporation's property
and rights. To secure consent for shipment of the sugar, the broker by a new
contract agreed to make payment for the sugar to a Cuban instrumentality which
thereafter assigned the bills of lading to petitioner, another Cuban
instrumentality, and petitioner instructed its agent in New York to deliver to
the broker the bills of lading and sight draft in return for payment. The
broker accepted the documents, received payment for the sugar from its
customer, but refused to deliver the proceeds to petitioner's agent. Petitioner
brought this action for conversion of the bills of lading to recover payment
from the broker and to enjoin from exercising dominion over the proceeds a
receiver who had been appointed by a state court to protect the New York assets
of the corporation. The District Court concluded that the corporation's
property interest in the sugar was subject to Cuba's territorial jurisdiction
and acknowledged the "act of state" doctrine, which precludes
judicial inquiry in this country respecting the public acts of a recognized
foreign sovereign power committed within its own territory. The court,
nevertheless, rendered summary judgment against the petitioner, ruling that the
act of state doctrine was inapplicable when the questioned act violated
international law, which the District Court found had been the case here. The
Court of Appeals affirmed, additionally relying upon two State Department
letters which it took as evidencing willingness by the Executive Branch to a
judicial testing of the validity of the expropriation. Held:
1. The privilege
of resorting to United States courts being available to a recognized sovereign
power not at war with the United States, and not being dependent upon
reciprocity of treatment, petitioner has access to the federal courts. Pp.
408-412. [376 U.S. 398, 399]
2. The propriety
of the taking was not governed by New York law since the sugar itself was
expropriated. P. 413.
3. This suit is
not uncognizable in American courts as being one to enforce the
"public" acts of a foreign state since the expropriation law here
involved had been fully executed within Cuba. Pp. 413-415.
4. The
Government's uncontested assertion that the two State Department letters
expressed only the then wish of the Department to avoid commenting on the
litigation, obviates the need for this Court to pass upon the "Bernstein
exception" to the act of state doctrine, under which a court may respond
to a representation by the Executive Branch that in particular circumstances it
does not oppose judicial consideration of the foreign state's act. Pp. 418-420.
5. The scope of
the act of state doctrine must be determined according to federal law. Pp.
421-427.
6. The act of
state doctrine applies and is desirable with regard to a foreign expropriation
even though the expropriation allegedly violates customary international law.
Pp. 427-437.
(a) Disagreement
exists as to relevant standards of international law concerning a State's
responsibility toward aliens. P. 430.
(b) The
political branch can more effectively deal with expropriation than can the
Judicial Branch. Pp. 431-432.
(c) Conflicts
between the Judicial and Executive Branches could hardly be avoided were the
judiciary to adjudicate with respect to the validity of expropriations. Even if
the combination alleged in this case of retaliation, discrimination, and
inadequate compensation made the expropriation here violative of international
law, a judicial determination to that effect would still be unwise as involving
potential conflict with or embarrassment to the Executive Branch in later
litigation. Pp. 432-433.
7. A foreign
country's status as a plaintiff does not make the act of state doctrine
inapplicable. Pp. 437-438.
307 F.2d 845, reversed and
remanded.
Victor Rabinowitz argued the cause for
petitioner. With him on the briefs was Leonard B. Boudin. [376 U.S. 398, 400]
C. Dickerman Williams argued the cause and filed
briefs for respondent Farr, Whitlock & Co.
Deputy Attorney General Katzenbach, by special
leave of Court, argued the cause for the United States, as amicus curiae,
urging reversal. With him on the brief were Solicitor General Cox, Morton
Hollander, John C. Eldridge and Andreas F. Lowenfeld.
James A. Dixon filed a brief for the Pan-American
Life Insurance Co., as amicus curiae, urging reversal.
Whitney North Seymour argued the cause for
Compania Azucarera Vertientes-Camaguey de Cuba, as amicus curiae, urging
affirmance. With him on the brief were Eastman Birkett, John A. Guzzetta and
Thomas W. Cashel.
Briefs of amici curiae, urging affirmance, were
filed by Charles S. Rhyne, Churchill Rodgers, Max Chopnick, Benjamin Busch,
Nicholas R. Doman and Leo M. Drachsler for the American Bar Association; by
Pieter J. Kooiman, Myres S. McDougal and Cecil J. Olmstead for the Executive
Committee of the American Branch of the International Law Association; by
Herbert Brownell, James M. Edwards and Jack P. Jefferies for the Committee on
International Law of the Association of the Bar of the City of New York; and by
John Lord O'Brian, John G. Laylin, Brice M. Clagett and Ky P. Ewing, Jr. for
North American Sugar Industries, Inc., et al.
MR. JUSTICE HARLAN delivered the opinion of the
Court.
The question which brought this case here, and is
now found to be the dispositive issue, is whether the so-called act of state
doctrine serves to sustain petitioner's claims in this litigation. Such claims
are ultimately founded on a decree of the Government of Cuba expropriating
certain [376 U.S. 398, 401] property,
the right to the proceeds of which is here in controversy. The act of state
doctrine in its traditional formulation precludes the courts of this country
from inquiring into the validity of the public acts a recognized foreign
sovereign power committed within its own territory.
I.
In February and July of 1960, respondent Farr,
Whitlock & Co., an American commodity broker, contracted to purchase Cuban
sugar, free alongside the steamer, from a wholly owned subsidiary of Compania
Azucarera Vertientes-Camaguey de Cuba (C.A.V.), a corporation organized under
Cuban law whose capital stock was owned principally by United States residents.
Farr, Whitlock agreed to pay for the sugar in New York upon presentation of the
shipping documents and a sight draft.
On July 6, 1960, the Congress of the United
States amended the Sugar Act of 1948 to permit a presidentially directed
reduction of the sugar quota for Cuba. 1 On the same day
President Eisenhower exercised the granted power. 2 The day of the
congressional enactment, the Cuban Council of Ministers adopted "Law No.
851," which characterized this reduction in the Cuban sugar quota as an
act of "aggression, for political purposes" on the part of the United
States, justifying the taking of countermeasures by Cuba. The law gave the
Cuban President and Prime Minister discretionary power to nationalize by forced
expropriation property or enterprises in which American nationals had an
interest. 3 Although [376 U.S. 398, 402] a system of
compensation was formally provided, the possibility of payment under it may
well be deemed illusory. 4 Our
State Department has described the Cuban law as "manifestly in violation
of those principles [376 U.S. 398, 403] of
international law which have long been accepted by the free countries of the
West. It is in its essence discriminatory, arbitrary and confiscatory." 5
Between August 6 and August 9, 1960, the sugar
covered by the contract between Farr, Whitlock and C.A.V. 6 was loaded, destined for
Morocco, onto the S. S. Hornfels, which was standing offshore at the Cuban port
of Jucaro (Santa Maria). On the day loading commenced, the Cuban President and
Prime Minister, acting pursuant to Law No. 851, issued Executive Power
Resolution No. 1. It provided for the compulsory expropriation of all property
and enterprises, and of rights and interests arising therefrom, of certain
listed companies, including C.A.V., wholly or principally owned by American
nationals. The preamble reiterated the alleged injustice of the American
reduction of the Cuban sugar quota and emphasized the importance of Cuba's
serving as an example for other countries to follow "in their struggle to
free themselves from the brutal claws of Imperialism." 7 In consequence [376 U.S. 398, 404] of the resolution, the
consent of the Cuban Government was necessary before a ship carrying sugar of a
named company could leave Cuban waters. In order to obtain this consent, Farr,
Whitlock, on August 11, entered into contracts, identical to those it had made
with C.A.V., [376 U.S. 398, 405] with
the Banco Para el Comercio Exterior de Cuba, an instrumentality of the Cuban
Government. The S. S. Hornfels sailed for Morocco on August 12.
Banco Exterior assigned the bills of lading to
petitioner, also an instrumentality of the Cuban Government, which instructed
its agent in New York, Societe Generale, to deliver the bills and a sight draft
in the sum of $175,250.69 to Farr, Whitlock in return for payment. Societe
Generale's initial tender of the documents was refused by Farr, Whitlock, which
on the same day was notified of C.A.V.'s claim that as rightful owner of the
sugar it was entitled to the proceeds. In return for a promise not to turn the
funds over to petitioner or its agent, C.A.V. agreed to indemnify Farr,
Whitlock for any loss. 8 Farr,
Whitlock subsequently accepted the shipping documents, negotiated the bills of
lading to its customer, and [376 U.S. 398, 406]
received payment for the sugar. It refused, however, to hand over
the proceeds to Societe Generale. Shortly thereafter, Farr, Whitlock was served
with an order of the New York Supreme Court, which had appointed Sabbatino as
Temporary Receiver of C.A.V.'s New York assets, enjoining it from taking any
action in regard to the money claimed by C.A.V. that might result in its
removal from the State. Following this, Farr, Whitlock, pursuant to court
order, transferred the funds to Sabbatino, to abide the event of a judicial
determination as to their ownership.
Petitioner then instituted this action in the
Federal District Court for the Southern District of New York. Alleging
conversion of the bills of lading, it sought to recover the proceeds thereof
from Farr, Whitlock and to enjoin the receiver from exercising any dominion
over such proceeds. Upon motions to dismiss and for summary judgment, the
District Court, 193 F. Supp. 375, sustained federal in personam jurisdiction
despite state control of the funds. It found that the sugar was located within
Cuban territory at the time of expropriation and determined that under merchant
law common to civilized countries Farr, Whitlock could not have asserted
ownership of the sugar against C.A.V. before making payment. It concluded that
C.A.V. had a property interest in the sugar subject to the territorial
jurisdiction of Cuba. The court then dealt with the question of Cuba's title to
the sugar, on which rested petitioner's claim of conversion. While
acknowledging the continuing vitality of the act of state doctrine, the court
believed it inapplicable when the questioned foreign act is in violation of
international law. Proceeding on the basis that a taking invalid under
international law does not convey good title, the District Court found the
Cuban expropriation decree to violate such law in three [376 U.S. 398, 407] separate respects: it was motivated
by a retaliatory and not a public purpose; it discriminated against American
nationals; and it failed to provide adequate compensation. Summary judgment
against petitioner was accordingly granted.
The Court of Appeals, 307 F.2d 845, affirming the
decision on similar grounds, relied on two letters (not before the District
Court) written by State Department officers which it took as evidence that the
Executive Branch had no objection to a judicial testing of the Cuban decree's
validity. The court was unwilling to declare that any one of the infirmities
found by the District Court rendered the taking invalid under international
law, but was satisfied that in combination they had that effect. We granted
certiorari because the issues involved bear importantly on the conduct of the
country's foreign relations and more particularly on the proper role of the
Judicial Branch in this sensitive area. 372
U.S. 905 . For reasons to follow we decide that the judgment below must be
reversed.
Subsequent to the decision of the Court of
Appeals, the C.A.V. receivership was terminated by the State Supreme Court; the
funds in question were placed in escrow, pending the outcome of this suit.
C.A.V. has moved in this Court to be substituted as a party in the place of
Sabbatino. Although it is true that Sabbatino's defensive interest in this
litigation has largely, if not entirely, reflected that of C.A.V., this is true
also of Farr, Whitlock's position. There is no indication that Farr, Whitlock
has not adequately represented C.A.V.'s interest or that it will not continue
to do so. Moreover, insofar as disposition of the case here is concerned,
C.A.V. has been permitted as amicus to brief and argue its position before this
Court. In these circumstances we are not persuaded that the admission of C.A.V.
as a party is [376 U.S. 398, 408] necessary
at this stage to safeguard any claim either that it has already presented or
that it may present in the future course of this litigation. Accordingly, we
are constrained to deny C.A.V.'s motion to be admitted as a party, 9 without prejudice
however to the renewal of such a motion in the lower courts if it appears that
C.A.V.'s interests are not adequately represented by Farr, Whitlock and that
the granting of such a motion will not disturb federal jurisdiction. Cf.
Strawbridge v. Curtiss, 3 Cranch 267; Indianapolis v. Chase Nat'l Bank, 314
U.S. 63 , at 69; Ex parte Edelstein, 30 F.2d 636, at 638.
Before considering the holding below with respect
to the act of state doctrine, we must deal with narrower grounds urged for
dismissal of the action or for a judgment on the merits in favor of
respondents.
II.
It is first contended that this petitioner, an
instrumentality of the Cuban Government, should be denied access to American
courts because Cuba is an unfriendly power and does not permit nationals of
this country to obtain relief in its courts. Even though the respondents did
not raise this point in the lower courts we think it should be considered here.
If the courts of this country should be closed to the government of a foreign
state, the underlying reason is one of national policy transcending the
interests of the parties to the action, and this Court should give effect to
that policy sua sponte even at this stage of the litigation.
Under principles of comity governing this
country's relations with other nations, sovereign states are allowed [376 U.S. 398, 409] to sue in the courts of
the United States, The Sapphire, 11 Wall. 164, 167; Guaranty Trust Co. v.
United States, 304
U.S. 126, 134 . This Court has called "comity" in the legal sense
"neither a matter of absolute obligation, on the one hand, nor of mere
courtesy and good will, upon the other." Hilton v. Guyot, 159
U.S. 113, 163 -164. Although comity is often associated with the existence
of friendly relations between states, e. g., Bank of Augusta v. Earle, 13 Pet.
519, 589; Russian Republic v. Cibrario, 235 N. Y. 255, 258, 139 N. E. 259, 260,
prior to some recent lower court cases which have questioned the right of
instrumentalities of the Cuban Government to sue in our courts, 10 the privilege of suit
has been denied only to governments at war with the United States, Ex parte Don
Ascanio Colonna, 314
U.S. 510 ; see 7 of the Trading with the Enemy Act, 40 Stat. 416, 417, 50
U.S.C. App. 7; cf. Hanger v. Abbott, 6 Wall. 532; Caperton v. Bowyer, 14 Wall.
216, 236, or to those not recognized by this country, The Penza, 277 F. 91;
Russian Republic v. Cibrario, supra. 11 [376 U.S. 398, 410]
Respondents, pointing to the severance of
diplomatic relations, commercial embargo, and freezing of Cuban assets in this
country, contend that relations between the United States and Cuba manifest
such animosity that unfriendliness is clear, and that the courts should be
closed to the Cuban Government. We do not agree. This Court would hardly be
competent to undertake assessments of varying degrees of friendliness or its
absence, and, lacking some definite touchstone for determination, we are
constrained to consider any relationship, short of war, with a recognized
sovereign power as embracing the privilege of resorting to United States
courts. Although the severance of diplomatic relations is an overt act with
objective significance in the dealings of sovereign states, we are unwilling to
say that it should inevitably result in the withdrawal of the privilege of
bringing suit. Severance may take place for any number of political reasons,
its duration is unpredictable, and whatever expression of animosity it may
imply does not approach that implicit in a declaration of war.
It is perhaps true that nonrecognition of a
government in certain circumstances may reflect no greater unfriendliness than
the severance of diplomatic relations with a recognized government, but the
refusal to recognize has a unique legal aspect. It signifies this country's
unwillingness to acknowledge that the government in question speaks as the
sovereign authority for the territory it purports to control, see Russian
Republic v. Cibrario, supra, at 260-263, 139 N. E., at 261-263. Political
recognition is exclusively a function of the Executive. The possible incongruity
of judicial "recognition," by permitting suit, of a government not
recognized by the Executive is completely [376 U.S.
398, 411] absent when merely diplomatic relations are broken. 12
The view that the existing situation between the
United States and Cuba should not lead to a denial of status to sue is
buttressed by the circumstance that none of the acts of our Government have
been aimed at closing the courts of this country to Cuba, and more particularly
by the fact that the Government has come to the support of Cuba's "act of
state" claim in this very litigation.
Respondents further urge that reciprocity of
treatment is an essential ingredient of comity generally, and, therefore, of
the privilege of foreign states to bring suit here. Although Hilton v. Guyot, 159
U.S. 113 , contains some broad language about the relationship of
reciprocity to comity, the case in fact imposed a requirement of reciprocity
only in regard to conclusiveness of judgments, and even then only in limited
circumstances. Id., at 170-171. In Direction der Disconto-Gesellschaft v.
United States Steel Corp., 300 F. 741, 747 (D.C. S. D. N. Y.), Judge Learned
Hand pointed out that the doctrine of reciprocity has apparently been confined
to foreign judgments. [376 U.S. 398, 412]
There are good reasons for declining to extend
the principle to the question of standing of sovereign states to sue. Whether a
foreign sovereign will be permitted to sue involves a problem more sensitive
politically than whether the judgments of its courts may be re-examined, and
the possibility of embarrassment to the Executive Branch in handling foreign
relations is substantially more acute. Re-examination of judgments, in
principle, reduces rather than enhances the possibility of injustice being done
in a particular case; refusal to allow suit makes it impossible for a court to
see that a particular dispute is fairly resolved. The freezing of Cuban assets
exemplifies the capacity of the political branches to assure, through a variety
of techniques (see infra, pp. 431, 435-436), that the national interest is
protected against a country which is thought to be improperly denying the
rights of United States citizens.
Furthermore, the question whether a country gives
res judicata effect to United States judgments presents a relatively simple
inquiry. The precise status of the United States Government and its nationals
before foreign courts is much more difficult to determine. To make such an
investigation significant, a court would have to discover not only what is
provided by the formal structure of the foreign judicial system, but also what
the practical possibilities of fair treatment are. The courts, whose powers to
further the national interest in foreign affairs are necessarily circumscribed
as compared with those of the political branches, can best serve the rule of
law by not excluding otherwise proper suitors because of deficiencies in their
legal systems.
We hold that this petitioner is not barred from
access to the federal courts. 13 [376 U.S. 398, 413]
III.
Respondents claimed in the lower courts that Cuba
had expropriated merely contractual rights the situs of which was in New York,
and that the propriety of the taking was, therefore, governed by New York law.
The District Court rejected this contention on the basis of the right of
ownership possessed by C.A.V. against Farr, Whitlock prior to payment for the
sugar. That the sugar itself was expropriated rather than a contractual claim
is further supported by Cuba's refusal to let the S. S. Hornfels sail until a
new contract had been signed. Had the Cuban decree represented only an attempt
to expropriate a contractual right of C.A.V., the forced delay of shipment and
Farr, Whitlock's subsequent contract with petitioner's assignor would have been
meaningless. 14 Neither
the District Court's finding concerning the location of the S. S. Hornfels nor
its conclusion that Cuba had territorial jurisdiction to expropriate the sugar,
acquiesced in by the Court of Appeals, is seriously challenged here.
Respondents' limited view of the expropriation must be rejected.
Respondents further contend that if the
expropriation was of the sugar itself, this suit then becomes one to enforce
the public law of a foreign state and as such is not cognizable in the courts
of this country. They rely on the principle enunciated in federal and state
cases that a [376 U.S. 398, 414] court
need not give effect to the penal or revenue laws of foreign countries or
sister states. See, e. g., The Antelope, 10 Wheat. 66, 123; Wisconsin v.
Pelican Ins. Co., 127
U.S. 265 ; Huntington v. Attrill, 146
U.S. 657 (all relating to penal laws); 15 Moore v. Mitchell, 30
F.2d 600, aff'd on other grounds, 281
U.S. 18 ; City of Detroit v. Proctor, 44 Del. 193, 61 A. 2d 412; City of
Philadelphia v. Cohen, 11 N. Y. 2d 401, 184 N. E. 2d 167, 230 N. Y. S. 2d 188
(all relating to revenue laws).
The extent to which this doctrine may apply to
other kinds of public laws, though perhaps still an open question, 16 need not be decided in
this case. For we have been referred to no authority which suggests that the
doctrine reaches a public law which, as here, has been fully executed within
the foreign state. Cuba's restraint of the S. S. Hornfels must be regarded for
these purposes to have constituted an effective taking of the sugar, vesting in
Cuba C.A.V.'s property right in it. Farr, Whitlock's [376
U.S. 398, 415] contract with the Cuban bank, however compelled to
sign Farr, Whitlock may have felt, represented indeed a recognition of Cuba's
dominion over the property.
In these circumstances the question whether the
rights acquired by Cuba are enforceable in our courts depends not upon the
doctrine here invoked but upon the act of state doctrine discussed in the
succeeding sections of this opinion. 17 [376 U.S. 398, 416]
IV.
The classic American statement of the act of state doctrine, which
appears to have taken root in England as early as 1674, Blad v. Bamfield, 3
Swans. 604, 36 Eng. Rep. 992, and began to emerge in the jurisprudence of this
country in the late eighteenth and early nineteenth centuries, see, e. g., Ware
v. Hylton, 3 Dall. 199, 230; Hudson v. Guestier, 4 Cranch 293, 294; The
Schooner Exchange v. M'Faddon, 7 Cranch 116, 135, 136; L'Invincible, 1 Wheat.
238, 253; The Santissima Trinidad, 7 Wheat. 283, 336, is found in Underhill v.
Hernandez, 168
U.S. 250 , where Chief Justice Fuller said for a unanimous Court (p. 252):
"Every sovereign
State is bound to respect the independence of every other sovereign State, and
the courts of one country will not sit in judgment on the acts of the
government of another done within its own territory. Redress of grievances by
reason of such acts must be obtained through the means open to be availed of by
sovereign powers as between themselves."
Following this precept the Court
in that case refused to inquire into acts of Hernandez, a revolutionary
Venezuelan military commander whose government had been later recognized by the
United States, which were made the basis of a damage action in this country by
Underhill. an American citizen, who claimed that he had been unlawfully
assaulted, coerced, and detained in Venezuela by Hernandez.
None of this Court's subsequent cases in which
the act of state doctrine was directly or peripherally involved manifest any
retreat from Underhill. See American Banana Co. v. United Fruit Co., 213
U.S. 347 ; Oetjen v. Central Leather Co., 246
U.S. 297 ; Ricaud v. American Metal Co., 246
U.S. 304 ; Shapleigh v. Mier, 299
U.S. 468 ; [376 U.S. 398, 417] United
States v. Belmont, 301
U.S. 324 , United States v. Pink, 315
U.S. 203 . On the contrary in two of these cases, Oetjen and Ricaud, the
doctrine as announced in Underhill was reaffirmed in unequivocal terms.
Oetjen involved a seizure of hides from a Mexican
citizen as a military levy by General Villa, acting for the forces of General
Carranza, whose government was recognized by this country subsequent to the
trial but prior to decision by this Court. The hides were sold to a Texas
corporation which shipped them to the United States and assigned them to
defendant. As assignee of the original owner, plaintiff replevied the hides,
claiming that they had been seized in violation of the Hague Conventions. In
affirming a judgment for defendant, the Court suggested that the rules of the
Conventions did not apply to civil war and that, even if they did, the relevant
seizure was not in violation of them. 246
U.S., at 301 -302. Nevertheless, it chose to rest its decision on other
grounds. It described the designation of the sovereign as a political question
to be determined by the legislative and executive departments rather than the
judicial department, invoked the established rule that such recognition
operates retroactively to validate past acts, and found the basic tenet of
Underhill to be applicable to the case before it.
"The principle that
the conduct of one independent government cannot be successfully questioned in
the courts of another is as applicable to a case involving the title to
property brought within the custody of a court, such as we have here, as it was
held to be to the cases cited, in which claims for damages were based upon acts
done in a foreign country, for it rests at last upon the highest considerations
of international comity and expediency. To permit the validity of the acts of
one sovereign State to be reexamined and perhaps condemned by [376 U.S. 398,
418] the courts of another would very certainly imperil the amicable
relations between governments and vex the peace of nations.'"
Id., at 303-304.
In Ricaud the facts were similar
- another general of the Carranza forces seized lead bullion as a military levy
- except that the property taken belonged to an American citizen. The Court
found Underhill, American Banana, and Oetjen controlling. Commenting on the
nature of the principle established by those cases, the opinion stated that the
rule
"does not
deprive the courts of jurisdiction once acquired over a case. It requires only
that, when it is made to appear that the foreign government has acted in a
given way on the subject-matter of the litigation, the details of such action
or the merit of the result cannot be questioned but must be accepted by our
courts as a rule for their decision. To accept a ruling authority and to decide
accordingly is not a surrender or abandonment of jurisdiction but is an
exercise of it. It results that the title to the property in this case must be
determined by the result of the action taken by the military authorities of
Mexico . . . ." 246
U.S., at 309 .
To the same effect is the
language of Mr. Justice Cardozo in the Shapleigh case, supra, where, in
commenting on the validity of a Mexican land expropriation, he said ( 299
U.S., at 471 ): "The question is not here whether the proceeding was
so conducted as to be a wrong to our nationals under the doctrines of
international law, though valid under the law of the situs of the land. For
wrongs of that order the remedy to be followed is along the channels of
diplomacy."
In deciding the present case the Court of Appeals
relied in part upon an exception to the unqualified teachings [376 U.S. 398, 419] of Underhill Oetjen,
and Ricaud which that court had earlier indicated. In Bernstein v. Van Heyghen
Freres Societe Anonyme, 163 F.2d 246, suit was brought to recover from an
assignee property allegedly taken, in effect, by the Nazi Government because
plaintiff was Jewish. Recognizing the odious nature of this act of state, the
court, through Judge Learned Hand, nonetheless refused to consider it invalid
on that ground. Rather, it looked to see if the Executive had acted in any
manner that would indicate that United States Courts should refuse to give
effect to such a foreign decree. Finding no such evidence, the court sustained
dismissal of the complaint. In a later case involving similar facts the same
court again assumed examination of the German acts improper, Bernstein v. N. V.
Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 173 F.2d 71, but, quite
evidently following the implications of Judge Hand's opinion in the earlier
case, amended its mandate to permit evidence of alleged invalidity, 210 F.2d
375, subsequent to receipt by plaintiff's attorney of a letter from the Acting
Legal Adviser to the State Department written for the purpose of relieving the
court from any constraint upon the exercise of its jurisdiction to pass on that
question. 18 [376 U.S. 398, 420]
This Court has never had occasion to pass upon
the so-called Bernstein exception, nor need it do so now. For whatever
ambiguity may be thought to exist in the two letters from State Department
officials on which the Court of Appeals relied, 19 307 F.2d, at 858, is
now removed by the position which the Executive has taken in this Court on the
act of state claim; respondents do not indeed contest the view that these
letters were intended to reflect no more than the Department's then wish not to
make any statement bearing on this litigation.
The outcome of this case, therefore, turns upon
whether any of the contentions urged by respondents against the application of
the act of state doctrine in the premises is acceptable: (1) that the doctrine
does not apply to acts of state which violate international law, as is claimed to
be the case here; (2) that the doctrine is inapplicable unless the Executive
specifically interposes it in a particular case; and (3) that, in any event,
the doctrine may not be invoked by a foreign government plaintiff in our
courts. [376 U.S. 398, 421]
V.
Preliminarily, we discuss the foundations on
which we deem the act of state doctrine to rest, and more particularly the
question of whether state or federal law governs its application in a federal
diversity case. 20
We do not believe that this doctrine is compelled
either by the inherent nature of sovereign authority, as some of the earlier
decisions seem to imply, see Underhill, supra; American Banana, supra; Oetjen,
supra, at 303, or by some principle of international law. If a transaction
takes place in one jurisdiction and the forum is in another, the forum does not
by dismissing an action or by applying its own law purport to divest the first
jurisdiction of its territorial sovereignty; it merely declines to adjudicate
or makes applicable its own law to parties or property before it. The refusal
of one country to enforce the penal laws of another (supra, pp. 413-414) is a
typical example of an instance when a court will not entertain a cause of
action arising in another jurisdiction. While historic notions of sovereign
authority do bear upon the wisdom of employing the act of state doctrine, they
do not dictate its existence.
That international law does not require
application of the doctrine is evidenced by the practice of nations. Most of
the countries rendering decisions on the subject fail to follow the rule
rigidly. 21 No
international arbitral [376 U.S. 398, 422] or
judicial decision discovered suggests that international law prescribes
recognition of sovereign acts of foreign governments, see 1 Oppenheim's
International Law, 115aa (Lauterpacht, 8th ed. 1955), and apparently no claim
has ever been raised before an international tribunal that failure to apply the
act of state doctrine constitutes a breach of international obligation. If
international law does not prescribe use of the doctrine, neither does it
forbid application of the rule even if it is claimed that the act of state in
question violated international law. The traditional view of international law
is that it establishes substantive principles for determining whether one
country has wronged another. Because of its peculiar nation-to-nation character
the usual method for an individual [376 U.S. 398,
423] to seek relief is to exhaust local remedies and then repair
to the executive authorities of his own state to persuade them to champion his
claim in diplomacy or before an international tribunal. See United States v.
Diekelman, 92
U.S. 520, 524 . Although it is, of course, true that United States courts
apply international law as a part of our own in appropriate circumstances, Ware
v. Hylton, 3 Dall. 199, 281; The Nereide, 9 Cranch 388, 423; The Paquete
Habana, 175
U.S. 677, 700 , the public law of nations can hardly dictate to a country
which is in theory wronged how to treat that wrong within its domestic borders.
Despite the broad statement in Oetjen that
"The conduct of the foreign relations of our Government is committed by
the Constitution to the Executive and Legislative . . . Departments," 246
U.S., at 302 , it cannot of course be thought that "every case or
controversy which touches foreign relations lies beyond judicial
cognizance." Baker v. Carr, 369
U.S. 186, 211 . The text of the Constitution does not require the act of state
doctrine; it does not irrevocably remove from the judiciary the capacity to
review the validity of foreign acts of state.
The act of state doctrine does, however, have
"constitutional" underpinnings. It arises out of the basic
relationships between branches of government in a system of separation of
powers. It concerns the competency of dissimilar institutions to make and
implement particular kinds of decisions in the area of international relations.
The doctrine as formulated in past decisions expresses the strong sense of the
Judicial Branch that its engagement in the task of passing on the validity of
foreign acts of state may hinder rather than further this country's pursuit of
goals both for itself and for the community of nations as a whole in the
international sphere. Many [376 U.S. 398, 424]
commentators disagree with this view; 22 they have striven by
means of distinguishing and limiting past decisions and by advancing various considerations
of policy to stimulate a narrowing of the apparent scope of the rule. Whatever
considerations are thought to predominate, it is plain that the problems
involved are uniquely federal in nature. If federal authority, in this instance
this Court, orders the filed of judicial competence in this area for the
federal courts, and the state courts are left free to formulate their own
rules, the purposes behind the doctrine could be as effectively undermined as
if there had been no federal pronouncement on the subject.
We could perhaps in this diversity action avoid
the question of deciding whether federal or state law is applicable to this
aspect of the litigation. New York has enunciated the act of state doctrine in
terms that echo those of federal decisions decided during the reign of Swift v.
Tyson, 16 Pet. 1. In Hatch v. Baez, 7 Hun 596, 599 (N. Y. Sup. Ct.), Underhill
was foreshadowed by the words, "the courts of one country are bound to
abstain from sitting in judgment on the acts of another government done within
its own territory." More recently, the Court of Appeals in Salimoff &
Co. v. Standard Oil Co., 262 N. Y. 220, 224, 186 N. E. 679, 681, has declared.
"The courts of one independent government will not sit in judgment upon the
validity of the acts of another done [376 U.S. 398,
425] within its own territory, even when such government seizes
and sells the property of an American citizen within its boundaries." Cf.
Dougherty v. Equitable Life Assurance Society, 266 N. Y. 71, 193 N. E. 897; Holzer
v. Deutsche Reichsbahn-Gesellschaft, 277 N. Y. 474, 14 N. E. 2d 798. But cf.
Frenkel & Co. v. L'Urbaine Fire Ins. Co., 251 N. Y. 243, 167 N. E. 430.
Thus our conclusions might well be the same whether we dealt with this problem
as one of state law, see Erie R. Co. v. Tompkins, 304
U.S. 64 ; Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487 ; Griffin v. McCoach, 313
U.S. 498 , or federal law.
However, we are constrained to make it clear that
an issue concerned with a basic choice regarding the competence and function of
the Judiciary and the National Executive in ordering our relationships with
other members of the international community must be treated exclusively as an
aspect of federal law. 23 It
seems fair to assume that the Court did not have rules like the act of state
doctrine in mind when it decided Erie R. Co. v. Tompkins. Soon thereafter,
Professor Philip C. Jessup, now a judge of the International Court of Justice,
recognized the potential dangers were Erie extended to legal problems affecting
international relations. 24
He cautioned that rules of international law should not be left to
divergent and perhaps parochial state interpretations. His basic rationale is
equally applicable to the act of state doctrine. [376
U.S. 398, 426]
The Court in the pre-Erie act of state cases,
although not burdened by the problem of the source of applicable law, used
language sufficiently strong and broad-sweeping to suggest that state courts
were not left free to develop their own doctrines (as they would have been had
this Court merely been interpreting common law under Swift v. Tyson, supra).
The Court of Appeals in the first Bernstein case, supra, a diversity suit,
plainly considered the decisions of this Court, despite the intervention of
Erie, to be controlling in regard to the act of state question, at the same
time indicating that New York law governed other aspects of the case. We are
not without other precedent for a determination that federal law governs; there
are enclaves of federal judge-made law which bind the States. A national body
of federal-court-built law has been held to have been contemplated by 301 of
the Labor Management Relations Act, Textile Workers v. Lincoln Mills, 353
U.S. 448 . Principles formulated by federal judicial law have been thought
by this Court to be necessary to protect uniquely federal interests. D'Oench,
Duhme & Co. v. Federal Deposit Ins. Corp., 315
U.S. 447 ; Clearfield Trust Co. v. United States, 318
U.S. 363 . Of course the federal interest guarded in all these cases is one
the ultimate statement of which is derived from a federal statute. Perhaps more
directly in point are the bodies of law applied between States over boundaries
and in regard to the apportionment of interstate waters.
In Hinderlider v. La Plata River Co., 304
U.S. 92, 110 , in an opinion handed down the same day as Erie and by the
same author. Mr. Justice Brandeis, the Court declared. "For whether the
water of an interstate stream must be apportioned between the two States is a
question of `federal common law' upon which neither the statutes nor the
decisions of either State can be conclusive." Although the suit was
between two private litigants and [376 U.S. 398,
427] the relevant States could not be made parties, the Court
considered itself free to determine the effect of an interstate compact
regulating water apportionment. The decision implies that no State can
undermine the federal interest in equitably apportioned interstate waters even
if it deals with private parties. This would not mean that, absent a compact,
the apportionment scheme could not be changed judicially or by Congress, but
only that apportionment is a matter of federal law. Cf. Arizona v. California, 373
U.S. 546, 597 -598. The problems surrounding the act of state doctrine are,
albeit for different reasons, as intrinsically federal as are those involved in
water apportionment or boundary disputes. The considerations supporting
exclusion of state authority here are much like those which led the Court in
United States v. California, 332
U.S. 19 , to hold that the Federal Government possessed paramount rights in
submerged lands though within the three-mile limit of coastal States. We
conclude that the scope of the act of state doctrine must be determined
according to federal law. 25
VI.
If the act of state doctrine is a principle of decision
binding on federal and state courts alike but compelled by neither
international law nor the Constitution, its continuing vitality depends on its
capacity to reflect the proper distribution of functions between the judicial
and [376 U.S. 398, 428] political branches of the Government on matters
bearing upon foreign affairs. It should be apparent that the greater the degree
of codification or consensus concerning a particular area of international law,
the more appropriate it is for the judiciary to render decisions regarding it,
since the courts can then focus on the application of an agreed principle to
circumstances of fact rather than on the sensitive task of
establishing a principle not inconsistent with the national interest or with
international justice. It is also evident that some aspects of international
law touch much more sharply on national nerves than do others; the less
important the implications of an issue are for our foreign relations, the
weaker the justification for exclusivity in the political branches. The balance
of relevant considerations may also be shifted if the government which
perpetrated the challenged act of state is no longer in existence, as in the
Bernstein case, for the political interest of this country may, as a result, be
measurably altered. Therefore, rather than laying down or reaffirming an inflexible
and all-encompassing rule in this case, we decide only that the Judicial Branch
will not examine the validity of a taking of property within its own territory
by a foreign sovereign government, extant and recognized by this country at the
time of suit, in the absence of a treaty or other unambiguous agreement
regarding controlling legal principles, even if the complaint alleges that the
taking violates customary international law.
There are few if any issues in international law
today on which opinion seems to be so divided as the limitations on a state's
power to expropriate the property of aliens. 26 [376 U.S. 398, 429] There is, of course,
authority, in international judicial 27 and arbitral 28 decisions, in the
expressions of national governments, 29 and among commentators
30 for the view that a
taking is improper under international law if it is not for a public purpose,
is discriminatory, or is without provision for prompt, adequate, and effective
compensation. However, Communist countries, although they have in fact provided
a degree of compensation after diplomatic efforts, commonly recognize no
obligation on the part of the taking country. 31 Certain
representatives of the newly independent and underdeveloped countries [376 U.S. 398, 430] have questioned whether
rules of state responsibility toward aliens can bind nations that have not
consented to them 32 and
it is argued that the traditionally articulated standards governing
expropriation of property reflect "imperialist" interests and are
inappropriate to the circumstances of emergent states. 33
The disagreement as to relevant international law
standards reflects an even more basic divergence between the national interests
of capital importing and capital exporting nations and between the social
ideologies of those countries that favor state control of a considerable
portion of the means of production and those that adhere to a free enterprise
system. It is difficult to imagine the courts of this country embarking on
adjudication in an area which touches more sensitively the practical and
ideological goals of the various members of the community of nations. 34
When we consider the prospect of the courts
characterizing foreign expropriations, however justifiably, as invalid under
international law and ineffective to pass title, the wisdom of the precedents
is confirmed. While each of the leading cases in this Court may be argued to be
distinguishable on its facts from this one - Underhill because sovereign
immunity provided an independent ground and Oetjen, Ricaud, and Shapleigh
because there [376 U.S. 398, 431] was
actually no violation of international law - the plain implication of all these
opinions, and the import of express statements in Oetjen, 246
U.S., at 304 , and Shapleigh, 299
U.S., at 471 , is that the act of state doctrine is applicable even if
international law has been violated. In Ricaud, the one case of the three most
plausibly involving an international law violation, the possibility of an
exception to the act of state doctrine was not discussed. Some commentators
have concluded that it was not brought to the Court's attention, 35 but Justice Clarke
delivered both the Oetjen and Ricaud opinions, on the same day, so we can
assume that principles stated in the former were applicable to the latter case.
The possible adverse consequences of a conclusion
to the contrary of that implicit in these cases is highlighted by contrasting
the practices of the political branch with the limitations of the judicial
process in matters of this kind. Following an expropriation of any
significance, the Executive engages in diplomacy aimed to assure that United
States citizens who are harmed are compensated fairly. Representing all
claimants of this country, it will often be able, either by bilateral or
multilateral talks, by submission to the United Nations, or by the employment
of economic and political sanctions, to achieve some degree of general redress.
Judicial determinations of invalidity of title can, on the other hand, have
only an occasional impact, since they depend on the fortuitous circumstance of
the property in question being brought into this country. 36 Such decisions would,
if the acts involved [376 U.S. 398, 432] were
declared invalid, often be likely to give offense to the expropriating country;
since the concept of territorial sovereignty is so deep seated, any state may
resent the refusal of the courts of another sovereign to accord validity to
acts within its territorial borders. Piecemeal dispositions of this sort
involving the probability of affront to another state could seriously interfere
with negotiations being carried on by the Executive Branch and might prevent or
render less favorable the terms of an agreement that could otherwise be
reached. Relations with third countries which have engaged in similar
expropriations would not be immune from effect.
The dangers of such adjudication are present
regardless of whether the State Department has, as it did in this case,
asserted that the relevant act violated international law. If the Executive
Branch has undertaken negotiations with an expropriating country, but has
refrained from claims of violation of the law of nations, a determination to
that effect by a court might be regarded as a serious insult, while a finding
of compliance with international law, would greatly strengthen the bargaining
hand of the other state with consequent detriment to American interests.
Even if the State Department has proclaimed the
impropriety of the expropriation, the stamp of approval of its view by a
judicial tribunal, however impartial, might increase any affront and the judicial
decision might occur at a time, almost always well after the taking, when such
an impact would be contrary to our national interest. Considerably more serious
and far-reaching consequences would flow from a judicial finding that
international law standards had been met if that determination flew in the face
of a State Department proclamation to the contrary. When articulating
principles of international law in its relations with other states, the
Executive Branch speaks not only as an interpreter of generally accepted and
traditional [376 U.S. 398, 433] rules,
as would the courts, but also as an advocate of standards it believes desirable
for the community of nations and protective of national concerns. In short,
whatever way the matter is cut, the possibility of conflict between the
Judicial and Executive Branches could hardly be avoided.
Respondents contend that, even if there is not
agreement regarding general standards for determining the validity of
expropriations, the alleged combination of retaliation, discrimination, and
inadequate compensation makes it patently clear that this particular
expropriation was in violation of international law. 37 If this view is
accurate, it would still be unwise for the courts so to determine. Such a
decision now would require the drawing of more difficult lines in subsequent
cases and these would involve the possibility of conflict with the Executive
view. Even if the courts avoided this course, either by presuming the validity
of an act of state whenever the international law standard was thought unclear
or by following the State Department declaration in such a situation, the very
expression of judicial uncertainty might provide embarrassment to the Executive
Branch.
Another serious consequence of the exception
pressed by respondents would be to render uncertain titles in foreign commerce,
with the possible consequence of altering the flow of international trade. 38 If the attitude of the
[376 U.S. 398, 434] United States
courts were unclear, one buying expropriated goods would not know if he could
safely import them into this country. Even were takings known to be invalid,
one would have difficulty determining after goods had changed hands several
times whether the particular articles in question were the product of an
ineffective state act. 39
Against the force of such considerations, we find
respondents' countervailing arguments quite unpersuasive. Their basic
contention is that United States courts could make a significant contribution
to the growth of international law, a contribution whose importance, it is said,
would be magnified by the relative paucity of decisional law by international
bodies. But given the fluidity of present world conditions, the effectiveness
of such a patchwork approach toward the formulation of an acceptable body of
law concerning state responsibility for expropriations is, to say the least,
highly conjectural. Moreover, it rests upon the sanguine presupposition that
the decisions of the courts of the world's major capital exporting country and
principal exponent of the free [376 U.S. 398, 435]
enterprise system would be accepted as disinterested expressions
of sound legal principle by those adhering to widely different ideologies.
It is contended that regardless of the fortuitous
circumstances necessary for United States jurisdiction over a case involving a
foreign act of state and the resultant isolated application to any
expropriation program taken as a whole, it is the function of the courts to
justly decide individual disputes before them. Perhaps the most typical act of
state case involves the original owner or his assignee suing one not in
association with the expropriating state who has had "title"
transferred to him. But it is difficult to regard the claim of the original
owner, who otherwise may be recompensed through diplomatic channels, as more
demanding of judicial cognizance than the claim of title by the innocent third
party purchaser, who, if the property is taken from him, is without any remedy.
Respondents claim that the economic pressure
resulting from the proposed exception to the act of state doctrine will
materially add to the protection of United States investors. We are not
convinced, even assuming the relevance of this contention. Expropriations take
place for a variety of reasons, political and ideological as well as economic.
When one considers the variety of means possessed by this country to make
secure foreign investment, the persuasive or coercive effect of judicial
invalidation of acts of expropriation dwindles in comparison. The newly
independent states are in need of continuing foreign investment; the creation
of a climate unfavorable to such investment by wholesale confiscations may well
work to their long-run economic disadvantage. Foreign aid given to many of
these countries provides a powerful lever in the hands of the political
branches to ensure fair treatment of United States nationals. Ultimately the
sanctions of economic embargo and the freezing of assets in this country may be
[376 U.S. 398, 436] employed. Any
country willing to brave any or all of these consequences is unlikely to be
deterred by sporadic judicial decisions directly affecting only property
brought to our shores. If the political branches are unwilling to exercise
their ample powers to effect compensation, this reflects a judgment of the
national interest which the judiciary would be ill-advised to undermine
indirectly.
It is suggested that if the act of state doctrine
is applicable to violations of international law, it should only be so when the
Executive Branch expressly stipulates that it does not wish the courts to pass
on the question of validity. See Association of the Bar of the City of New
York, Committee on International Law, A Reconsideration of the Act of State
Doctrine in United States Courts (1959). We should be slow to reject the
representations of the Government that such a reversal of the Bernstein
principle would work serious inroads on the maximum effectiveness of United
States diplomacy. Often the State Department will wish to refrain from taking
an official position, particularly at a moment that would be dictated by the
development of private litigation but might be inopportune diplomatically.
Adverse domestic consequences might flow from an official stand which could be
assuaged, if at all, only by revealing matters best kept secret. Of course, a
relevant consideration for the State Department would be the position
contemplated in the court to hear the case. It is highly questionable whether
the examination of validity by the judiciary should depend on an educated guess
by the Executive as to probable result and, at any rate, should a prediction be
wrong, the Executive might be embarrassed in its dealings with other countries.
We do not now pass on the Bernstein exception, but even if it were deemed
valid, its suggested extension is unwarranted.
However offensive to the public policy of this
country and its constituent States an expropriation of this kind [376 U.S. 398, 437] may be, we conclude
that both the national interest and progress toward the goal of establishing
the rule of law among nations are best served by maintaining intact the act of
state doctrine in this realm of its application.
VII.
Finally, we must determine whether Cuba's status
as a plaintiff in this case dictates a result at variance with the conclusions
reached above. If the Court were to distinguish between suits brought by
sovereign states and those of assignees, the rule would have little effect
unless a careful examination were made in each case to determine if the private
party suing had taken property in good faith. Such an inquiry would be
exceptionally difficult, since the relevant transaction would almost invariably
have occurred outside our borders. If such an investigation were deemed
irrelevant, a state could always assign its claim.
It is true that the problem of security of title
is not directly presented in the instance of a sovereign plaintiff, although
were such a plaintiff denied relief, it would ship its goods elsewhere, thereby
creating an alternation in the flow of trade. The sensitivity in regard to
foreign relations and the possibility of embarrassment of the Executive are, of
course, heightened by the presence of a sovereign plaintiff. The rebuke to a
recognized power would be more pointed were it a suitor in our courts. In
discussing the rule against enforcement of foreign penal and revenue laws, the
Eire High Court of Justice, in Peter Buchanan Ltd. v. McVey, 1955. A. C. 516,
529-530, aff'd, id., at 530, emphasized that its justification was in large
degree the desire to avoid embarrassing another state by scrutinizing its penal
and revenue laws. Although that rule presumes invalidity in the forum whereas
the act of state principle presumes the contrary, the doctrines have a common
rationale, a rationale that negates [376 U.S. 398,
438] the wisdom of discarding the act of state rule when the
plaintiff is a state which is not seeking enforcement of a public act.
Certainly the distinction proposed would sanction
self-help remedies, something hardly conducive to a peaceful international
order. Had Farr, Whitlock not converted the bills of lading, or alternatively
breached its contract, Cuba could have relied on the act of state doctrine in
defense of a claim brought by C.A.V. for the proceeds. It would be anomalous to
preclude reliance on the act of state doctrine because of Farr, Whitlock's
unilateral action, however justified such action may have been under the
circumstances.
Respondents offer another theory for treating the
case differently because of Cuba's participation. It is claimed that the forum
should simply apply its own law to all the relevant transactions. An analogy is
drawn to the area of sovereign immunity, National City Bank v. Republic of
China, 348
U.S. 356 , in which, if a foreign country seeks redress in our courts,
counterclaims are permissible. But immunity relates to the prerogative right
not to have sovereign property subject to suit; fairness has been thought to
require that when the sovereign seeks recovery, it be subject to legitimate
counterclaims against it. The act of state doctrine, however, although it
shares with the immunity doctrine a respect for sovereign states, concerns the
limits for determining the validity of an otherwise applicable rule of law. It
is plain that if a recognized government sued on a contract with a United
States citizen, concededly legitimate by the locus of its making, performance,
and most significant contacts, the forum would not apply its own substantive
law of contracts. Since the act of state doctrine reflects the desirability of
presuming the relevant transaction valid, the same result follows; the forum
may not apply its local law regarding foreign expropriations. [376 U.S. 398, 439]
Since the act of state doctrine proscribes a
challenge to the validity of the Cuban expropriation decree in this case, any
counterclaim based on asserted invalidity must fail. Whether a theory of
conversion or breach of contract is the proper cause of action under New York
law, the presumed validity of the expropriation is unaffected. Although we
discern no remaining litigable issues of fact in this case, the District Court
may hear and decide them if they develop.
The judgment of the Court of Appeals is reversed
and the case is remanded to the District Court for proceedings consistent with
this opinion.
It is so
ordered.
Footnotes
[ Footnote 1 ] 74 Stat. 330
[ Footnote 2 ] Proclamation
No. 3355, 74 Stat. c72, effective upon publication in the Federal Register,
July 8, 1960, 25 Fed. Reg. 6414.
[ Footnote 3 ]
"WHEREAS, the attitude assumed by the government and the Legislative Power
of the United States of North America, which constitutes an aggression, for
political purposes, against the basic interests of the Cuban economy, as
recently evidenced by the Amendment to the Sugar Act just enacted by the United
States Congress at [376 U.S. 398, 402] the
request of the Chief Executive of that country, whereby exceptional powers are
conferred upon the President of the United States to reduce the participation
of Cuban sugars in the American sugar market as a threat of political action
against Cuba, forces the Revolutionary Government to adopt, without hesitation,
all and whatever measures it may deem appropriate or desirable for the due
defense of the national sovereignty and protection of our economic development
process. . . . . . "WHEREAS, it is advisable, with a view to the ends
referred to in the first Whereas of this Law, to confer upon the President and
Prime Minister of the Republic full authority to carry out the nationalization
of the enterprises and property owned by physical and corporate persons who are
nationals of the United States of North America, or of enterprises which have
majority interest or participations in such enterprises, even though they be
organized under the Cuban laws, so that the required measures may be adopted in
future cases with a view to the ends pursued. "NOW, THEREFORE: In
pursuance of the powers vested in it, the Council of Ministers has resolved to
enact and promulgate the following "LAW No. 851 "ARTICLE 1. Full
authority is hereby conferred upon the President and the Prime Minister of the
Republic in order that, acting jointly through appropriate resolutions whenever
they shall deem it advisable or desirable for the protection of the national
interests, they may proceed to nationalize, through forced expropriations, the
properties or enterprises owned by physical and corporate persons who are
nationals of the United States of North America, or of the enterprises in which
such physical and corporate persons have an interest, even though they be
organized under the Cuban laws." Record, at 98-99.
[ Footnote 4 ] See id.,
Articles 4-7. Payment for expropriated property would consist of bonds with
terms of at least 30 years and bearing 2% annual interest. The interest was not
to be cumulative from year to year and was to be paid only out of 25% of the
yearly foreign [376 U.S. 398, 403] exchange
received by sales of Cuban sugar to the United States in excess of 3,000,000
Spanish long tons at a minimum price of 5.75 cents per English pound. (In the
preceding 10 years the annual average price had never been that high and in
only one of those years had as many as 3,000,000 Spanish long tons been sold,
307 F.2d, at 862.) The bonds were to be amortized only upon the authority of
the President of the National Bank. The President and Prime Minister of the
Cuban state were empowered to choose the appraisers. It is not clear whether
the bonds were to be paid at maturity if funds were insufficient at that time.
[ Footnote 5 ] See State
Dept. Note No. 397, July 16, 1960 (to Cuban Ministry of Foreign Relations).
[ Footnote 6 ] The parties
have treated the interest of the wholly owned subsidiary as if it were
identical with that of C.A.V.; hence no distinction between the two companies
will be drawn in the remainder of this opinion.
[ Footnote 7 ]
"WHEREAS, the attitude assumed by the Government and the Legislative Power
of the United States of North America, of continued aggression, for political
purposes, against the basic interests [376 U.S.
398, 404] of the Cuban economy, as evidenced by the amendment to
the Sugar Act adopted by the Congress of said country, whereby exceptional
powers were conferred upon the President of said nation to reduce the
participation of Cuban sugars in the sugar market of said country, as a weapon
of political action against Cuba, was considered as the fundamental
justification of said law. "WHEREAS, the Chief Executive of the Government
of the United States of North America, making use of said exceptional powers,
and assuming an obvious attitude of economic and political aggression against
our country, has reduced the participation of Cuban sugars in the North
American market with the unquestionable design to attack Cuba and its
revolutionary process. "WHEREAS, this action constitutes a reiteration of
the continued conduct of the government of the United States of North America,
intended to prevent the exercise of its sovereignty and its integral development
by our people thereby serving the base interests of the North American trusts,
which have hindered the growth of our economy and the consolidation of our
political freedom. "WHEREAS, in the face of such developments the
undersigned, being fully conscious of their great historical responsibility and
in legitimate defense of the national economy are duty bound to adopt the
measures deemed necessary to counteract the harm done by the aggression
inflicted upon our nation. . . . . . "WHEREAS, it is the duty of the
peoples of Latin America to strive for the recovery of their native wealth by
wresting it from the hands of the foreign monopolies and interests which
prevent their development, promote political interference, and impair the
sovereignty of the underdeveloped countries of America. "WHEREAS, the
Cuban Revolution will not stop until it shall have totally and definitely
liberated its fatherland. "WHEREAS, Cuba must be a luminous and
stimulating example for the sister nations of America and all the underdeveloped
countries of the world to follow in their struggle to free themselves from the
brutal claws of Imperialism. [376 U.S. 398, 405]
"NOW, THEREFORE: In pursuance of the powers vested in us, in
accordance with the provisions of Law No. 851, of July 6, 1960, we hereby,
"RESOLVE: "FIRST. To order the nationalization, through compulsory
expropriation, and, therefore, the adjudication in fee simple to the Cuban
State, of all the property and enterprises located in the national territory,
and the rights and interests resulting from the exploitation of such property
and enterprises, owned by the juridical persons who are nationals of the United
States of North America, or operators of enterprises in which nationals of said
country have a predominating interest, as listed below, to wit: . . . . .
"22 Compana Azucarera Vertientes Camaguey de Cuba. . . . . . "SECOND.
Consequently, the Cuban State is hereby subrogated in the place and stead of
the juridical persons listed in the preceding section, in respect of the
property, rights and interests aforesaid, and of the assets and liabilities
constituting the capital of said enterprises." Record, at 102-105.
[ Footnote 8 ] C.A.V. also
agreed to pay Farr, Whitlock 10% of the $175,000 if C.A.V. ever obtained that
sum. 307 F.2d, at 851.
[ Footnote 9 ] Because of
C.A.V.'s amicus position in this Court, and because its arguments have been
presented separately from those of Farr, Whitlock, even though each has adopted
the other's contentions, this opinion refers to "respondents"
although Farr, Whitlock is the only formal party-respondent.
[ Footnote 10 ] In P &
E Shipping Corp. v. Banco Para El Comercio Exterior de Cuba, 307 F.2d 415 (C.
A. 1st Cir.), the court sua sponte questioned the right of Cuba to sue. It
concluded that the matter was one for the Executive Branch to decide and remanded
the case to the District Court to elicit the views of the State Department. The
trial court in Dade Drydock Corp. v. The M/T Mar Caribe, 199 F. Supp. 871 (S.
D. Tex.), apparently equated the severance of diplomatic relations with the
withdrawal of recognition and suspended the action "until the Government
of the Republic of Cuba is again recognized by the United States of
America," id., at 874. In two other cases, however, Pons v. Republic of
Cuba, 111 U.S. App. D.C. 141, 294 F.2d 925; Republic of Cuba v. Mayan Lines, S.
A., 145 So.2d 679 (Ct. App., 4th Cir., La.), courts have upheld the right of
Cuba to sue despite the severance of diplomatic relations.
[ Footnote 11 ] The
District Court in The Gul Djemal, 296 F. 563, 296 F. 567, did refuse to permit
the invocation of sovereign immunity by the Turkish Government, with whom the
United States had broken [376 U.S. 398, 410]
diplomatic relations, on the theory that under such circumstances comity
did not require the granting of immunity. The case was affirmed, 264
U.S. 90 , but on another ground.
[ Footnote 12 ] The
doctrine that nonrecognition precludes suit by the foreign government in every
circumstance has been the subject of discussion and criticism. See, e. g.,
Hervey, The Legal Effects of Recognition in International Law (1928) 112-119;
Jaffe, Judicial Aspects of Foreign Relations (1933) 148-156; Borchard, The
Unrecognized Government in American Courts, 26 Am. J. Int'l L. 261 (1932);
Dickinson, The Unrecognized Government or State in English and American Law, 22
Mich. L. Rev. 118 (1923); Fraenkel, The Juristic Status of Foreign States,
Their Property and Their Acts, 25 Col. L. Rev. 544, 547-552 (1925); Lubman, The
Unrecognized Government in American Courts: Upright v. Mercury Business
Machines, 62 Col. L. Rev. 275 (1962). In this litigation we need intimate no
view on the possibility of access by an unrecognized government to United
States courts, except to point out that even the most inhospitable attitude on
the matter does not dictate denial of standing here.
[ Footnote 13 ] Respondents
suggest that suit may be brought, if at all, only by an authorized agent of the
Cuban Government. Decisions establishing that privilege based on sovereign
prerogatives may be evoked [376 U.S. 398, 413]
only by such agents, e. g., The Anne, 3 Wheat, 435; Ex parte
Muir, 254
U.S. 522, 532 -533; The Sao Vicente, 260
U.S. 151 ; The "Gul Djemal," 264
U.S. 90 , are not apposite to cases in which a state merely sues in our
Courts without claiming any right uniquely appertaining to sovereigns.
[ Footnote 14 ] If Cuba had
jurisdiction to expropriate the contractual right, it would have been
unnecessary for it to compel the signing of a new contract. If Cuba did not
have jurisdiction, any action which it took in regard to Farr, Whitlock or the
sugar would have been ineffective to transfer C.A.V.'s claim.
[ Footnote 15 ] As appears
from the cases cited, a penal law for the purposes of this doctrine is one
which seeks to redress a public rather than a private wrong.
[ Footnote 16 ] The
doctrine may have a broader reach in Great Britain, see Don Alonso v. Cornero,
Hob. 212a, Hobart's King's Bench Reps. 372; Banco de Vizcaya v. Don Alfonso de
Borbon y Austria, 1935. 1 K. B. 140; Attorney-General for Canada v. William
Schulze & Co., 1901. 9 Scots L. T. Reps. 4 (Outer House); Dicey's Conflict
of Laws, 162 (Morris ed. 1958); Mann, Prerogative Rights of Foreign States and
the Conflict of Laws, 40 Grotius Society 25 (1955); but see Lepage v. San Paulo
Coffee Estates Co., 1917. W. N. 216 (High Ct. of Justice, Ch. Div.); Lorentzen
v. Lydden & Co., 1942. 2 K. B. 202; F & K. Jabbour v. Custodian of
Israeli Absentee Property, 1954. 1 Weekly L. R. 139 (Q. B.), than in the United
States, cf. United States v. Belmont, 85 F.2d 542, rev'd, 301
U.S. 324 (possibility of broad rule against enforceability of public acts
not discussed in either court), United States v. Pink, 284 N. Y. 555, 32 N. E.
2d 552, rev'd, 315
U.S. 203 (same); Anderson v. N. V. Transandine Handelmaatschappij, 289 N.
Y. 9, 43 N. E. 2d 502; but see Leflar, Extrastate Enforcement of Penal and
Governmental Claims, 46 Harv. L. Rev. 193, 194 (1932).
[ Footnote 17 ] The courts
below properly declined to determine if issuance of the expropriation decree
complied with the formal requisites of Cuban law. In dictum in Hudson v.
Guestier, 4 Cranch 293, 294, Chief Justice Marshall declared that one nation
must recognize the act of the sovereign power of another, so long as it has
jurisdiction under international law, even if it is improper according to the
internal law of the latter state. This principle has been followed in a number
of cases. See, e. g., Banco de Espana v. Federal Reserve Bank, 114 F.2d 438,
443, 444 (C. A. 2d Cir.); Bernstein v. Van Heyghen Freres Societe Anonyme, 163 F.2d
246, 249 (C. A. 2d Cir.); Eastern States Petroleum Co. v. Asiatic Petroleum
Corp., 28 F. Supp. 279 (D.C. S. D. N. Y.) But see Canada Southern R. Co. v.
Gebhard, 109
U.S. 527 ; cf Fremont v. United States, 17 How. 542 (United States
successor sovereign over land); Sabariego v. Maverick, 124
U.S. 261 (same); Shapleigh v. Mier, 299
U.S. 468 (same). An inquiry by United States courts into the validity of an
act of an official of a foreign state under the law of that state would not
only be exceedingly difficult but, if wrongly made, would be likely to be
highly offensive to the state in question. Of course, such review can take
place between States in our federal system, but in that instance there is
similarity of legal structure and an impartial arbiter, this Court, applying
the full faith and credit provision of the Federal Constitution. Another ground
supports the resolution of this problem in the courts below. Were any test to
be applied it would have to be what effect the decree would have if challenged
in Cuba. If no institution of legal authority would refuse to effectuate the
decree, its "formal" status - here its argued invalidity if not
properly published in the Official Gazette in Cuba - is irrelevant. It has not
been seriously contended that the judicial institutions of Cuba would declare
the decree invalid.
[ Footnote 18 ] The letter
stated: "1. This government has consistently opposed the forcible acts of
dispossession of a discriminatory and confiscatory nature practiced by the
Germans on the countries or peoples subject to their controls. . . . . .
"3. The policy of the Executive, with respect to claims asserted in the
United States for the restitution of identifiable property (or compensation in
lieu thereof) lost through force, coercion, or duress as a result of Nazi
persecution in Germany, is to relieve American courts from any restraint upon
the exercise of their jurisdiction to pass upon the validity of the acts of
Nazi officials." State Department Press Release, April 27, 1949, 20 Dept.
State Bull. 592.
[ Footnote 19 ] Abram
Chayes, the Legal Adviser to the State Department, wrote on October 18, 1961,
in answer to an inquiry regarding the position of the Department by Mr. John
Laylin, attorney for amici: "The Department of State has not, in the Bahia
de Nipe case or elsewhere, done anything inconsistent with the position taken
on the Cuban nationalizations by Secretary Herter. Whether or not these
nationalizations will in the future be given effect in the United States is, of
course, for the courts to determine. Since the Sabbatino case and other similar
cases are at present before the courts, any comments on this question by the
Department of State would be out of place at this time. As you yourself point
out, statements by the executive branch are highly susceptible of
misconstruction." A letter dated November 14, 1961, from George Ball, Under
Secretary for Economic Affairs, responded to a similar inquiry by the same
attorney: "I have carefully considered your letter and have discussed it
with the Legal Adviser. Our conclusion, in which the Secretary concurs, is that
the Department should not comment on matters pending before the courts."
[ Footnote 20 ] Although
the complaint in this case alleged both diversity and federal question
jurisdiction, the Court of Appeals reached jurisdiction only on the former
ground, 307 F.2d, at 852. We need not decide, for reasons appearing hereafter,
whether federal question jurisdiction also existed.
[ Footnote 21 ] In English
jurisprudence, in the classic case of Luther v. James Sagor & Co., 1921. 3
K. B. 532, the act of state doctrine is articulated in terms not unlike those
of the United States cases. See Princess Paley Olga v. Weisz, 1929. 1 K. B.
718. But see Anglo [376 U.S. 398, 422] Iranian
Oil Co. v. Jaffrate, 1953. 1 Weekly L. R. 246, 1953. Int'l L. Rep. 316 (Aden
Sup. Ct.) (exception to doctrine if foreign act violates international law).
Civil law countries, however, which apply the rule make exceptions for acts
contrary to their sense of public order. See, e. g., Ropit case, Court de
Cassation (France), 1929. Recueil General Des Lois et Des Arrets (Sirey) Part
I, 217; 55 Journal Du Droit International (Clunet) 674 (1928), [1927-1928] Ann.
Dig., No. 43; Graue, Germany: Recognition of Foreign Expropriations, 3 Am. J.
Comp. L. 93 (1954); Domke, Indonesian Nationalization Measures Before Foreign
Courts, 54 Am. J. Int'l L. 305 (1960) (discussion of and excerpts from opinions
of the District Court in Bremen and the Hanseatic Court of Appeals in N. V.
Verenigde Deli-Maatschapijen v. Deutsch-Indonesische Tabak-Handelsgesellschaft
m. b. H., and of the Amsterdam District Court and Appellate Court in Senembah
Maatschappij N. V. v. Republiek Indonesie Bank Indonesia); Massouridis, The Effects
of Confiscation, Expropriation, and Requisition by a Foreign Authority, 3 Revue
Hellenique De Droit International 62, 68 (1950) (recounting a decision of the
court of the first instance of Piraeus); Anglo-Iranian Oil Co. v. S. U. P. O.
R. Co., 1955. Int'l L. Rep. 19 (Ct. of Venice), 78 II Foro Italiano Part I,
719; 40 Blatter fur Zurcherische Rechtsprechung No. 65, 172-173 (Switzerland).
See also Anglo-Iranian Oil Co. v. Idemitsu Kosan Kabushiki Kaisha, 1953. Int'l
L. Rep. 312 (High Ct. of Tokyo).
[ Footnote 22 ] See, e. g.,
Association of the Bar of the City of New York, Committee on International Law,
A Reconsideration of the Act of State Doctrine in United States Courts (1959);
Domke, supra, note 21; Mann, International Delinquencies Before Municipal
Courts, 70 L. Q. Rev. 181 (1954); Zander, The Act of State Doctrine, 53 Am. J.
Int'l L. 826 (1959). But see, e. g., Falk, Toward a Theory of the Participation
of Domestic Courts in the International Legal Order: A Critique of Banco
Nacional de Cuba v. Sabbatino, 16 Rutgers L. Rev. 1 (1961); Reeves, Act of
State Doctrine and the Rule of Law - A Reply, 54 Am. J. Int'l L. 141 (1960).
[ Footnote 23 ] At least
this is true when the Court limits the scope of judicial inquiry. We need not
now consider whether a state court might, in certain circumstances, adhere to a
more restrictive view concerning the scope of examination of foreign acts than
that required by this Court.
[ Footnote 24 ] The
Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J.
Int'l L. 740 (1939).
[ Footnote 25 ] Various
constitutional and statutory provisions indirectly support this determination,
see U.S. Const., Art. I, 8, cls, 3, 10: Art. II, 2, 3; Art. III, 2; 28 U.S.C.
1251 (a) (2), (b) (1), (b) (3), 1332 (a) (2), 1333, 1350-1351, by reflecting a
concern for uniformity in this country's dealings with foreign nations and
indicating a desire to give matters of international significance to the
jurisdiction of federal institutions. See Comment, The Act of State Doctrine -
Its Relation to Private and Public International Law, 62 Col. L. Rev., 1278,
1297, n. 123; cf. United States v. Belmont, supra; United States v. Pink,
supra.
[ Footnote 26 ] Compare, e.
g., Friedman, Expropriation in International Law 206-211 (1953); Dawson and
Weston, "Prompt, Adequate and Effective": A Universal Standard of
Compensation? 30 Fordham L. Rev. 727 (1962), with Note from Secretary of State
Hull to Mexican Ambassador, August 22, 1938, V. Foreign Relations of the United
[376 U.S. 398, 429] States 685
(1938); Doman, Postwar Nationalization of Foreign Property in Europe, 48 Col.
L. Rev. 1125, 1127 (1948). We do not, of course, mean to say that there is no
international standard in this area; we conclude only that the matter is not
meet for adjudication by domestic tribunals.
[ Footnote 27 ] See Oscar
Chinn Case, P. C. I. J., ser A/B, No. 63, at 87 (1934); Chorzow Factory Case,
P. C. I. J., ser. A., No. 17, at 46, 47 (1928).
[ Footnote 28 ] See, e. g.,
Norwegian Shipowners' Case (Norway/United States) (Perm. Ct. Arb.) (1922), 1 U.
N. Rep. Int'l Arb. Awards 307, 334, 339 (1948), Hague Court Reports, 2d Series,
39, 69, 74 (1932); Marguerite de Joly de Sabla, American and Panamanian General
Claims Arbitration 379, 447, 6 U. N. Rep. Int'l Arb. Awards 358, 366 (1955).
[ Footnote 29 ] See, e. g.,
Dispatch from Lord Palmerston to British Envoy at Athens, Aug. 7, 1846, 39
British and Foreign State Papers 1849-1850, 431-432. Note from Secretary of
State Hull to Mexican Ambassador, July 21, 1938, V Foreign Relations of the
United States 674 (1938); Note to the Cuban Government, July 16, 1960, 43 Dept.
State Bull. 171 (1960).
[ Footnote 30 ] See, e. g.,
McNair, The Seizure of Property and Enterprises in Indonesia, 6 Netherlands
Int'l L. Rev. 218, 243-253 (1959); Restatement, Foreign Relations Law of the
United States (Proposed Official Draft 1962), 190-195.
[ Footnote 31 ] See Doman,
supra, note 26, at 1143-1158; Fleming States, Contracts and Progress, 62-63
(1960); Bystricky, Notes on Certain International Legal Problems Relating to
Socialist Nationalisation, in International Assn. of Democratic Lawyers,
Proceedings of the Commission on Private International Law, Sixth Congress
(1956), 15.
[ Footnote 32 ] See Anand,
Role of the "New" Asian-African Countries in the Present
International Legal Order, 56 Am. J. Int'l L. 383 (1962); Roy, Is the Law of
Responsibility of States for Injuries to Aliens a Part of Universal
International Law? 55 Am. J. Int'l L. 863 (1961).
[ Footnote 33 ] See 1957
Yb. U. N. Int'l L. Comm'n (Vol. 1) 155, 158 (statements of Mr. Padilla Nervo
(Mexico) and Mr. Pal (India)).
[ Footnote 34 ] There are,
of course, areas of international law in which consensus as to standards is
greater and which do not represent a battleground for conflicting ideologies.
This decision in no way intimates that the courts of this country are broadly
foreclosed from considering questions of international law.
[ Footnote 35 ] See
Restatement, Foreign Relations Law of the United States, Reporters' Notes
(Proposed Official Draft 1962) 43, note 3.
[ Footnote 36 ] It is, of
course, true that such determinations might influence others not to bring
expropriated property into the country, see pp. 433-434, infra, so their
indirect impact might extend beyond the actual invalidations of title.
[ Footnote 37 ] Of course,
to assist respondents in this suit such a determination would have to include a
decision that for the purpose of judging this expropriation under international
law C.A.V. is not to be regarded as Cuban and an acceptance of the principle
that international law provides other remedies for breaches of international
standards of expropriation than suits for damages before international
tribunals. See 307 F.2d, at 861, 868 for discussion of these questions by the
Court of Appeals.
[ Footnote 38 ] This
possibility is consistent with the view that the deterrent effect of court
invalidations would not ordinarily be great. If the expropriating country could
find other buyers for its products at [376 U.S.
398, 434] roughly the same price, the deterrent effect might be
minimal although patterns of trade would be significantly changed.
[ Footnote 39 ] Were
respondents' position adopted, the courts might be engaged in the difficult
tasks of ascertaining the origin of fungible goods, of considering the effect
of improvements made in a third country on expropriated raw materials, and of determining
the title to commodities subsequently grown on expropriated land or produced
with expropriated machinery. By discouraging import to this country by traders
certain or apprehensive of nonrecognition of ownership, judicial findings of
invalidity of title might limit competition among sellers; if the excluded
goods constituted a significant portion of the market, prices for United States
purchasers might rise with a consequent economic burden on United States
consumers. Balancing the undesirability of such a result against the likelihood
of furthering other national concerns is plainly a function best left in the
hands of the political branches.
MR. JUSTICE WHITE, dissenting.
I am dismayed that the Court has, with one broad
stroke, declared the ascertainment and application of international law beyond
the competence of the courts of the United States in a large and important
category of cases. I am also disappointed in the Court's declaration that the
acts of a sovereign state with regard to the property of aliens within its
borders are beyond the reach of international law in the courts of this
country. However clearly established that law may be, a sovereign may violate
it with impunity, except insofar as the political branches of the government may
provide a remedy. This backward-looking doctrine, never before declared in this
Court, is carried a disconcerting step further: not only are the courts
powerless to question acts of state proscribed by international law but they
are likewise powerless to refuse to adjudicate the claim founded upon a foreign
law; they must render judgment and thereby validate the lawless act. Since the
Court expressly extends its ruling to all acts of state expropriating property,
however clearly inconsistent with the international community, [376 U.S. 398, 440] all discriminatory
expropriations of the property of aliens, as for example the taking of
properties of persons belonging to certain races, religions or nationalities,
are entitled to automatic validation in the courts of the United States. No
other civilized country has found such a rigid rule necessary for the survival
of the executive branch of its government; the executive of no other government
seems to require such insulation from international law adjudications in its
courts; and no other judiciary is apparently so incompetent to ascertain and
apply international law. 1
[376 U.S. 398, 441]
I do not believe that the act of state doctrine,
as judicially fashioned in this Court, and the reasons underlying it, require
American courts to decide cases in disregard of international law and of the
rights of litigants to a full determination on the merits.
I.
Prior decisions of this Court in which the act of
state doctrine was deemed controlling do not support the assertion that foreign
acts of state must be enforced or recognized or applied in American courts when
they violate the law of nations. These cases do hold that a foreign act of
state applied to persons or property within its borders may not be denied
effect in our courts on the ground that it violates the public policy of the
forum. Also the broad language in some of these cases does evince [376 U.S. 398, 442] an attitude of caution
and self-imposed restraint in dealing with the laws of a foreign nation. But
violations of international law were either not presented in these cases,
because the parties or predecessors in title were nationals of the acting
state, or the claimed violation was insubstantial in light of the facts
presented to the Court and the principles of international law applicable at
the time. 2 [376 U.S. 398, 443] These cases do not
strongly imply or even suggest that the Court would woodenly apply the act of
state doctrine and grant enforcement to a foreign act where the act was a clear
and flagrant violation of international law, [376
U.S. 398, 444] as the District Court and the Court of Appeals
have found in respect to the Cuban law challenged herein. 193 F. Supp. 375,
aff'd, 307 F.2d 845.
II.
Though not a principle of international law, the
doctrine of restraint, as formulated by this Court, has its roots in sound
policy reasons, and it is to these we must turn to decide whether the act of
state doctrine should [376 U.S. 398, 445] be
extended to cover wrongs cognizable under international law.
Whatever may be said to constitute an act of
state, 3 our decisions
make clear that the doctrine of nonreview ordinarily applies to foreign laws
affecting tangible property located within the territory of a government which
is recognized by the United States. Oetjen v. Central Leather Co., 246
U.S. 297 ; Ricaud v. American Metal Co., 246
U.S. 304 . This judicially fashioned doctrine of nonreview is a corollary
of the principle that ordinarily a state has jurisdiction to prescribe the
rules governing the title to property within its territorial sovereignty, see
Clarke v. Clarke, 178
U.S. 186 ; De Vaughn v. Hutchinson, 165
U.S. 566 , a principle reflected in the conflict of laws rule, adopted in
virtually all nations, that the lex loci is the law governing title to
property. 4 This
conflict rule would have been enough in itself to have controlled the outcome
of most of the act of state cases decided by this Court. Both of these rules
rest on the deeply imbedded postulate in international law of the territorial
supremacy of the sovereign, a postulate that has [376
U.S. 398, 446] been characterized as the touchstone of private
and public international law. 5 That the act of state
doctrine is rooted in a well-established concept of international law is
evidenced by the practice of other countries. These countries, without
employing any act of state doctrine, afford substantial respect to acts of
foreign states occurring within their territorial confines. 6 Our act of state
doctrine, as formulated in past decisions of the Court, carries the territorial
concept one step further. It precludes a challenge to the validity of foreign
law on the ordinary conflict of laws ground of repugnancy to the public policy
of the forum. Against the objection that the foreign act violates domestic
public policy, it has been said that the foreign law provides the rule of
decision, where the lex loci rule would so indicate, in American courts.
Bernstein v. Van Heyghen Freres Societe Anonyme, 163 F.2d 246, 249 (C. A. 2d
Cir.); Holzer v. Deutsche Reichsbahn-Gesellschaft, 277 N. Y. 474, 14 N. E. 2d
798; McCarthy v. Reichsbank, 259 App. Div. 1016, 20 N. Y. S. 2d 450, aff'd, 284
N. Y. 739, 31 N. E. 2d 508. But cf. Sulyok v. Penzintezeti Kozpont Budapest,
279 App. [376 U.S. 398, 447] Div.
528, 111 N. Y. S. 2d 75, aff'd, 304 N. Y. 704, 107 N. E. 2d 604. See also
Perutz v. Bohemian Discount Bank, 304 N. Y. 533, 537, 110 N. E. 2d 6, 7.
The reasons that underlie the deference afforded
to foreign acts affecting property in the acting country are several; such
deference reflects an effort to maintain a certain stability and predictability
in transnational transactions, to avoid friction between nations, to encourage
settlement of these disputes through diplomatic means and to avoid interference
with the executive control of foreign relations. To adduce sound reasons for a
policy of nonreview is not to resolve the problem at hand, but to delineate
some of the considerations that are pertinent to its resolution.
Contrary to the assumption underlying the Court's
opinion, these considerations are relative, their strength varies from case to
case, and they are by no means controlling in all litigation involving the
public acts of a foreign government. This is made abundantly clear by numerous
cases in which the validity of a foreign act of state is drawn in question and
in which these identical considerations are present in the same or a greater
degree. American courts have denied recognition or effect to foreign law,
otherwise applicable under the conflict of laws rules of the forum, to many
foreign laws where these laws are deeply inconsistent with the policy of the
forum, notwithstanding that these laws were of obvious political and social
importance to the acting country. For example, foreign confiscatory decrees
purporting to divest nationals and corporations of the foreign sovereign of
property located in the United States uniformly have been denied effect in our
courts, including this Court; 7 [376 U.S. 398, 448] courts continued to
recognize private property rights of Russian corporations owning property
within the United States long after the Russian Government, recognized by the
United States, confiscated all such property and had rescinded the laws on
which corporate identity depended. 8 Furthermore, our courts
customarily refuse to enforce the revenue and penal laws of a foreign state,
since no country has an obligation to further the governmental interests of a
foreign sovereign. 9 And
the judgments of [376 U.S. 398, 449] foreign
courts are denied conclusive or prima facie effect where the judgment is based
on a statute unenforceable in the forum, where the procedures of the rendering
court markedly depart from our notions of fair procedure, and generally where
enforcement would be contrary to the public policy of the forum. 10 These rules
demonstrate that our courts have never been bound to pay unlimited deference to
foreign acts of state, defined as an act or law in which the sovereign's
governmental interest is involved; they simultaneously cast doubt on the
proposition that the additional element in the case at bar, that the property
may have been within the territorial confines of Cuba when the expropriation
decree was promulgated, [376 U.S. 398, 450] requires
automatic deference to the decree, regardless of whether the foreign act
violates international law. 11
III.
I start with what I thought to be unassailable
propositions: that our courts are obliged to determine controversies [376 U.S. 398, 451] on their merits, in
accordance with the applicable law; and that part of the law American courts
are bound to administer is international law.
Article III, 2, of the Constitution states that
"[t]he judicial Power shall extend to all Cases . . . affecting
Ambassadors, other public Ministers and Consuls; - to all Cases of admiralty
and maritime Jurisdiction; - to Controversies . . . between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects." And 1332 of
the Judicial Code gives the courts jurisdiction over all civil actions between
citizens of a State and foreign states or citizens or subjects thereof. The
doctrine that the law of nations is a part of the law of the land, originally
formulated in England and brought to America as part of our legal heritage, is
reflected in the debates during the Constitutional Convention 12 and in the
Constitution itself. 13 This
Court has time and again [376 U.S. 398, 452]
effectuated the clear understanding of the Framers, as embodied in the
Constitution, by applying the law of nations to resolve cases and
controversies. 14 As
stated in The Paquete Habana, 175
U.S. 677, 700 , "[i]nternational law [376
U.S. 398, 453] is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction, as often as
questions of right depending upon it are duly presented for their
determination." Principles of international law have been applied in our
courts to resolve controversies not merely because they provide a convenient
rule for decision but because they represent a consensus among civilized
nations on the proper ordering of relations between nations and the citizens
thereof. Fundamental fairness to litigants as well as the interest in stability
of relationships and preservation of reasonable expectations call for their
application whenever international law is controlling in a case or controversy.
15 [376 U.S. 398, 454]
The relevance of international law to a just
resolution of this case is apparent from the impact of international law on
other aspects of this controversy. Indeed it is only because of the application
of international rules to resolve other issues that the act of state doctrine
becomes the determinative issue in this case. The basic rule that the law of
the situs of property is the proper law to be applied in determining title in
other forums, whether styled a rule of private international law or domestic
conflict of law, is rooted in concepts firmly embedded in a consensus of
nations on territorial sovereignty. Without such a consensus and the conflict
of laws rule derived therefrom, the question of whether Cuba's decree can be
measured against the norms of international law would never arise in this
litigation, since then a court presumably would be free to apply its own rules
governing the acquisition of title to property. Furthermore, the contention that
the sugar in question was within the territorial confines of Cuba when the
Cuban decree was enacted itself rests on widely accepted principles of
international law, namely, that the bays or inlets contiguous to a country are
within its boundaries and that territorial jurisdiction extends at least three
miles beyond these boundaries. See Oppenheim, International Law, 186, 190-191
(Lauterpacht, 8th ed. 1955). Without these rules derived from international
law, this confiscation could be characterized as extraterritorial and therefore
- unless the Court also intends to change this rule - subject to the public
policy test traditionally applied to extra-territorial takings of property,
even though embarrassing to foreign affairs. Further, in response to the contention
[376 U.S. 398, 455] that title to the
sugar had already passed to Farr, Whit-lock by virtue of the contract with
C.A.V. when the nationalization decree took effect, it was held below that
under "the law merchant common to civilized countries" (emphasis
supplied) Farr, Whitlock could not acquire title to the shipment until payment
was made in New York. Thus the central issue in this litigation is posed only
because of numerous other applications of the law of nations and domestic rules
derived therefrom in respect to subsidiary, but otherwise controlling, legal
issues in the controversy.
The Court accepts the application of rules of
international law to other aspects of this litigation, accepts the relevance of
international law in other cases and announces that when there is an
appropriate degree of "consensus concerning a particular area of
international law, the more appropriate it is for the judiciary to render
decisions regarding it, since the courts can then focus on the application of
an agreed principle to circumstances of fact rather than on the sensitive task
of establishing a principle not inconsistent with the national interest or with
international justice." Ante, p. 428. The Court then, rather lightly in my
view, dispenses with its obligation to resolve controversies in accordance with
"international justice" and the "national interest" by
assuming and declaring that there are no areas of agreement between nations in
respect to expropriations. There may not be. But without critical examination,
which the Court fails to provide. I would not conclude that a confiscatory
taking which discriminates against nationals of another country to retaliate
against the government of that country falls within that area of issues in
international law "on which opinion seems to be so divided." Nor
would I assume, as the ironclad rule of the Court necessarily implies, that
there is not likely to be a consensus among nations in this area, as for
example upon the illegality of discriminatory takings of alien property based
upon race, [376 U.S. 398, 456] religion
or nationality. 16 But
most of all I would not declare that even if there were a clear consensus in
the international community, the courts must close their eyes to a lawless act
and validate the transgression by rendering judgment for the foreign state at
its own request. This is an unfortunate declaration for this Court to make. It
is, of course, wholly inconsistent with the premise from which the Court
starts, and, under it, banishment of international law from the courts is
complete and final in cases like this. I cannot so cavalierly ignore the
obligations of a court to dispense justice to the litigants before it. 17 [376 U.S. 398, 457]
IV.
The reasons for nonreview, based as they are on
traditional concepts of territorial sovereignty, lose much of their force when
the foreign act of state is shown to be a violation of international law. All
legitimate exercises of sovereign power, whether territorial or otherwise,
should be exercised consistently with rules of international law, including
those rules which mark the bounds of lawful state action against aliens or their
property located within the territorial confines of the foreign state. Although
a state may reasonably expect that the validity of its laws operating on
property within its jurisdiction will not be defined by local notions of public
policy of numerous other states (although a different situation may well be
presented when courts of another state are asked to lend their enforcement
machinery to effectuate the foreign act), 18 it cannot with impunity
ignore the rules governing the conduct of all nations and expect that other
nations and tribunals will view its acts as within the permissible scope of
territorial sovereignty. Contrariwise, to refuse inquiry into the question of
whether norms of the international community have been contravened by the act
of state under review would seem to deny the existence or purport of such
norms, a view that seems inconsistent with the role of international law in
ordering the relations between nations. Finally, the impartial application of
international law would not only be an [376 U.S.
398, 458] affirmation of the existence and binding effect of
international rules of order, but also a refutation of the notion that this
body of law consists of no more than the divergent and parochial views of the
capital importing and exporting nations, the socialist and free-enterprise
nations.
The Court puts these considerations to rest with
the assumption that the decisions of the courts "of the world's major
capital exporting country and principal exponent of the free enterprise
system" would hardly be accepted as impartial expressions of sound legal
principle. The assumption, if sound, would apply to any other problem arising
from transactions that cross state lines and is tantamount to a declaration
excusing this Court from any future consequential role in the clarification and
application of international law. See National City Bank of New York v.
Republic of China, 348
U.S. 356, 363 . This declaration ignores the historic role which this Court
and other American courts have played in applying and maintaining principles of
international law.
Of course, there are many unsettled areas of
international law, as there are of domestic law, and these areas present
sensitive problems of accommodating the interests of nations that subscribe to
divergent economic and political systems. It may be that certain nationalizations
of property for a public purpose fall within this area. Also, it may be that
domestic courts, as compared to international tribunals, or arbitral
commissions, have a different and less active role to play in formulating new
rules of international law or in choosing between rules not yet adhered to by
any substantial group of nations. Where a clear violation of international law
is not demonstrated, I would agree that principles of comity underlying the act
of state doctrine warrant recognition and enforcement of the foreign act. But
none of these considerations relieve a court of the obligation to make an [376 U.S. 398, 459] inquiry into the
validity of the foreign act, none of them warrant a flat rule of no inquiry at
all. The vice of the act of state doctrine as formulated by the Court and
applied in this case, where the decree is alleged not only to be confiscatory
but also retaliatory and discriminatory and has been found by two courts to be
a flagrant violation of international law, is that it precludes any such
examination and proscribes any decision on whether Cuban Law No. 851
contravenes an accepted principle of international law.
The other objections to reviewing the act
challenged herein, save for the alleged interference with the executive's
conduct of foreign affairs, seem without substance, both in theory and as
applied to the facts of the instant case. The achievement of a minimum amount
of stability and predictability in international commercial transactions is not
assured by a rule of nonreviewability which permits any act of a foreign state,
regardless of its validity under international law, to pass muster in the
courts of other states. The very act of a foreign state against aliens which
contravenes rules of international law, the purpose of which is to support and
foster an order upon which people can rely, is at odds with the achievement of
stability and predictability in international transactions. And the infrequency
of cases in American courts involving foreign acts of state challenged as
invalid under international law furnishes no basis at all for treating the
matter as unimportant and for erecting the rule the Court announces today. 19 [376 U.S. 398, 460]
There is also the contention that the act of
state doctrine serves to channel these disputes through the processes designed
to rectify wrongs of an international magnitude, see Oetjen v. Central Leather
Co., supra; Shapleigh v. Mier, supra. The result of the doctrine, it is said,
requires an alien to seek relief in the courts or through the executive of the
expropriating country, to seek relief through diplomatic channels of his own
country and to seek review in an international tribunal. These are factors an
American court should consider when asked to examine a foreign act of state,
although the availability and effectiveness of these modes of accommodation may
more often be illusory than real. Where alternative modes are available and are
likely to be effective, our courts might well stay their hand and direct a
litigant to exhaust or attempt to utilize them before adjudicating the validity
of the foreign act of state. But the possibility of alternative remedies,
without more, is frail support for a rule of automatic deference to the foreign
act in all cases. The Court's rule is peculiarly inappropriate in the instant
case, where no one has argued that C.A.V. can obtain relief in the courts of
Cuba, where the United States has broken off diplomatic relations with Cuba,
and [376 U.S. 398, 461] where the
United States, although protesting the illegality of the Cuban decrees, has not
sought to institute any action against Cuba in an international tribunal.
V.
There remains for consideration the relationship
between the act of state doctrine and the power of the executive over matters
touching upon the foreign affairs of the Nation. It is urged that the act of
state doctrine is a necessary corollary of the executive's authority to direct
the foreign relations of the United States and accordingly any exception in the
doctrine, even if limited to clear violations of international law, would
impede or embarrass the executive in discharging his constitutional
responsibilities. Thus, according to the Court, even if principles of comity do
not preclude inquiry into the validity of a foreign act under international
law, due regard for the executive function forbids such examination in the
courts.
Without doubt political matters in the realm of
foreign affairs are within the exclusive domain of the Executive Branch, as,
for example, issues for which there are no available standards or which are
textually committed by the Constitution to the executive. 20 But this is far from
saying that the Constitution vests in the executive exclusive absolute control
of foreign affairs or that the validity of a foreign act of state is
necessarily a political question. International law, as well as a treaty or
executive agreement, [376 U.S. 398, 462] see
United States v. Pink, 315
U.S. 203 , provides an ascertainable standard for adjudicating the validity
of some foreign acts, and courts are competent to apply this body of law,
notwithstanding that there may be some cases where comity dictates giving
effect to the foreign act because it is not clearly condemned under generally
accepted principles of international law. And it cannot be contended that the
Constitution allocates this area to the exclusive jurisdiction of the
executive, for the judicial power is expressly extended by that document to
controversies between aliens and citizens or States, aliens and aliens, and foreign
states and American citizens or States.
A valid statute, treaty or executive agreement
could, I assume, confine the power of federal courts to review or award relief
in respect of foreign acts or otherwise displace international law as the rule
of decision. I would not disregard a declaration by the Secretary of State or
the President that an adjudication in the courts of the validity of a foreign
expropriation would impede relations between the United States and the foreign
government or the settlement of the controversy through diplomatic channels.
But I reject the presumption that these undesirable consequences would follow
from adjudication in every case, regardless of the circumstances. Certainly the
presumption is inappropriate here.
Soon after the promulgation of Cuban Law No. 851,
the State Department of the United States delivered a note of protest to the
Cuban Government declaring this nationalization law to be in violation of
international law. 21 Since
the nationalization of the property in question, [376
U.S. 398, 463] the United States has broken off diplomatic
relations with the present Government of Cuba. And in response to inquiries by
counsel for the respondent in the instant case, officials of the State
Department nowhere alleged that adjudication of the validity of the Cuban
decree nationalizing C.A.V. would embarrass our relations with Cuba or impede
settlement on an international level. In 1963, the United States Government
issued a freeze order on all Cuban assets located in the United States. On
these facts - although there may be others of which we are not aware - it is
wholly unwarranted to assume that an examination of the validity of Cuban Law
No. 851 and a finding of invalidity would intrude upon the relations between
the United States and Cuba.
But the Court is moved by the spectre of another
possibility; it is said that an examination of the validity of the Cuban law in
this case might lead to a finding that the Act is not in violation of widely
accepted international norms or that an adjudication here would require a
similar examination in other more difficult cases, in one of which it would be
found that the foreign law is not in breach of international law. The finding,
either in this case or subsequent ones, that a foreign act does not violate
widely accepted international principles, might differ from the executive's
view of the act and international law, might thereby seriously impede the
executive's functions in negotiating a settlement of the controversy and would
therefore be inconsistent with the national interest. "[T]he very
expression of judicial [376 U.S. 398, 464] uncertainty
might provide embarrassment to the Executive Branch." Ante, p. 433. These
speculations, founded on the supposed impact of a judicial decision on
diplomatic relations, seem contrary to the Court's view of the arsenal of
weapons possessed by this country to make secure foreign investment and the
"ample powers [of the political branches] to effect compensation,"
ante, p. 436, and wholly inconsistent with its view of the limited competence
and knowledge of the judiciary in the area of foreign affairs and diplomacy.
Moreover, the expression of uncertainty feared by the Court is inevitable under
the Court's approach, as is well exemplified by the ex-cathedra pronouncements
in the instant case. While premising that a judicial expression of uncertainty
on whether a particular act clearly violates international law would be
embarrassing to the executive, this Court, in this very case, announces as an
underpinning of its decision that "[t]here are few if any issues in
international law today on which opinion seems to be so divided as the
limitations on a State's power to expropriate the property of aliens," and
proceeds to demonstrate the absence of international standards by cataloguing
the divergent views of the "capital exporting," "free
enterprise" nations, of the "newly independent and underdeveloped countries,"
and of the "Communist countries" toward both the issue of
expropriation and international law generally. The act of state doctrine
formulated by the Court bars review in this case and will do so in all others
involving expropriation of alien property precisely because of the lack of a
consensus in the international community on rules of law governing foreign
expropriations. 22 Contrariwise,
it [376 U.S. 398, 465] would seem
that the act of state doctrine will not apply to a foreign act if it concerns
an area in which there is unusual agreement among nations, ante, p. 428, which
is not the case with the broad area of expropriations. 23 I fail to see how
greater embarrassment flows from saying that the foreign act does not violate
clear and widely accepted principles of international law than from saying, as
the Court does, that nonexamination and validation are required because there
are no widely accepted principles to which to subject the foreign act. 24 As to potential [376 U.S. 398, 466] embarrassment, the
difference is semantic, but as to determining the issue on its merits and as to
upholding a regime of law, the difference is vast.
There is a further possibility of embarrassment
to the executive from the blanket presumption of validity applicable to all
foreign expropriations, which the Court chooses to ignore, and which, in my
view, is far more self-evident than those adduced by the Court. That
embarrassment stems from the requirement that all courts, including this Court,
approve, validate, and enforce any foreign act expropriating property, at the
behest of the foreign state or a private suitor, regardless of whether the act
arbitrarily discriminates against aliens on the basis of race, religion, or
nationality, and regardless of the position the executive has taken in respect
to the act. I would think that an adjudication by this Court that the foreign
act, as to which the executive is protesting and attempting to secure relief
for American citizens, is valid and beyond question enforcible in the courts of
the United States would indeed prove embarrassing to the Executive Branch of
our Government in many situations, much more so than a declaration of
invalidity or a refusal to adjudicate the controversy at all. For the
likelihood that validation and enforcement of a foreign act which is condemned
by the executive will be inconsistent with national policy as well as the goals
of the international community is great. 25 This result is
precisely [376 U.S. 398, 467] because
the Court, notwithstanding its protestations to the contrary, ante, p. 428, has
laid down "an inflexible and all-encompassing rule in this case." 26
VI.
Obviously there are cases where an examination of
the foreign act and declaration of invalidity or validity might [376 U.S. 398, 468] undermine the foreign
policy of the Executive Branch and its attempts at negotiating a settlement for
a nationalization of the property of Americans. The respect ordinarily due to a
foreign state, as reflected in the decisions of this Court, rests upon a desire
not to disturb the relations between countries and on a view that other means,
more effective than piecemeal adjudications of claims arising out of a
large-scale nationalization program of settling the dispute, may be available.
Precisely because these considerations are more or less present, or absent, in
any given situation and because the Department of our Government primarily
responsible for the formulation of foreign policy and settling these matters on
a state-to-state basis is more competent than courts to determine the extent to
which they are involved, a blanket presumption of nonreview in each case is
inappropriate and a requirement that the State Department render a
determination after reasonable notice, in each case, is necessary. Such an
examination would permit the Department to evaluate whether adjudication would
"vex the peace of nations," whether a friendly foreign sovereign is
involved, and whether settlement through diplomacy or through an international
tribunal or arbitration is impending. Based upon such an evaluation, the
Department may recommend to the court that adjudication should not proceed at
the present time. Such a request I would accord considerable deference and I
would not require a full statement of reasons underlying it. But I reject the
contention that the recommendation itself would somehow impede the foreign
relations of the United States or unduly burden the Department. The Court notes
that "[a]dverse domestic consequences might flow from an official
stand," by which I take it to mean that it might be politically
embarrassing on the domestic front for the Department of State to interpose an
objection [376 U.S. 398, 469] in a
particular case which has attracted public attention. But an official stand is
what the Department must take under the so-called Bernstein exception, which
the Court declines to disapprove. Assuming that there is a difference between
an express official objection to examination and the executive's refusal to
relieve "the court from any constraint upon the exercise of its
jurisdiction," it is not fair to allow the fate of a litigant to turn on
the possible political embarrassment of the Department of State and it is not
this Court's role to encourage or require nonexamination by bottoming a rule of
law on the domestic public relations of the Department of State. The Court also
rejects this procedure because it makes the examination of validity turn on an
educated guess by the executive as to the probable result and such a guess
might turn out to be erroneous. The United States in its brief has disclaimed
any such interest in the result in these cases, either in the ultimate outcome
or the determination of validity, and I would take the Government at its word
in this matter, without second-guessing the wisdom of its view.
This is precisely the procedure that the
Department of State adopted voluntarily in the situation where a foreign
government seeks to invoke the defense of immunity in our courts. 27 If it is not unduly
disruptive for [376 U.S. 398, 470] the
Department to determine whether to issue a certificate of immunity to a foreign
government itself when it seeks one, a recommendation by the Department in
cases where generally the sovereign is not a party can hardly be deemed
embarrassing to our foreign relations. Moreover, such a procedure would be
consonant with the obligation of courts to adjudicate cases on the merits
except for reasons wholly sufficient in the particular case. As I understand
it, the executive has not yet said that adjudication in this case would impede
his functions in the premises; rather he has asked us to adopt a rule of law
foreclosing inquiry into the subject unless the executive affirmatively allows
the courts to adjudicate on the merits.
Where the courts are requested to apply the act
of state doctrine at the behest of the State Department, it does not follow
that the courts are to proceed to adjudicate the action without examining the
validity of the foreign act under international law. The foreign relations
considerations and potential of embarrassment to the executive inhere in
examination of the foreign act and in the result following from such an examination,
not in the matter of who wins. Thus, all the Department of State can
legitimately request is nonexamination of the foreign act. It has no proper
interest or authority in having courts decide a controversy upon anything less
than all of the applicable law or to decide it in accordance with the
executive's view of the outcome that best comports with the foreign or domestic
affairs of the day. We are not dealing here with those cases where a court
refuses to measure a foreign statute against public policy of the forum or
against the fundamental law of the foreign [376
U.S. 398, 471] state itself. In those cases the judicially
created act of state doctrine is an aspect of the conflict of laws rules of the
forum and renders the foreign law controlling. But where a court refuses to
examine foreign law under principles of international law, which it is required
to do, solely because the Executive Branch requests the court, for its own
reasons, to abstain from deciding the controlling issue in the controversy,
then in my view, the executive has removed the case from the realm of the law
to the realm of politics, and a court must decline to proceed with the case.
The proper disposition is to stay the proceedings until circumstances permit an
adjudication or to dismiss the action where an adjudication within a reasonable
time does not seem feasible. To do otherwise would not be in accordance with
the obligation of courts to decide controversies justly and in accordance with
the law applicable to the case.
It is argued that abstention in the case at bar
would allow C.A.V. to retain possession of the proceeds from the sugar and
would encourage wrongfully deprived owners to engage in devious conduct or
"self-help" in order to compel the sovereign or one deriving title
from it into the position of plaintiff. The short answer to this is that it
begs the question; negotiation of the documents by Farr, Whitlock and retention
of the proceeds by C.A.V. is unlawful if, but only if, Cuba acquired title to
the shipment by virtue of the nationalization decree. This is the issue that
cannot be decided in the case if deference to the State Department's
recommendation is paid (assuming for the moment that such a recommendation has
been made). Nor is it apparent that "self-help," if such it be
deemed, in the form of refusing to recognize title derived from unlawful
paramount force is disruptive of or contrary to a peaceful international order.
Furthermore, a court has ample means at its disposal to prevent a party who has
engaged in wrongful conduct from [376 U.S. 398,
472] setting up defenses which would allow him to profit from the
wrongdoing. Where the act of state doctrine becomes a rule of judicial
abstention rather than a rule of decision for the courts, the proper disposition
is dismissal of the complaint or staying the litigation until the bar is
lifted, regardless of who has possession of the property title to which is in
dispute.
VII.
The position of the Executive Branch of the
Government charged with foreign affairs with respect to this case is not
entirely clear. As I see it no specific objection by the Secretary of State to
examination of the validity of Cuba's law has been interposed at any stage in
these proceedings, which would ordinarily lead to an adjudication on the
merits. Disclaiming, rightfully, I think, any interest in the outcome of the
case, the United States has simply argued for a rule of nonexamination in every
case, which literally, I suppose, includes this one. If my view had prevailed I
would have stayed further resolution of the issues in this Court to afford the
Department of State reasonable time to clarify its views in light of the
opinion. In the absence of a specific objection to an examination of the
validity of Cuba's law under international law, I would have proceeded to
determine the issue and resolve this litigation on the merits.
[ Footnote 1 ] The courts
of the following countries, among others, and their territories have examined a
fully "executed" foreign act of state expropriating property:
England: Anglo-Iranian Oil Co. v. Jaffrate, 1953. Int'l L. Rep. 316 (Aden Sup.
Ct.); N. V. de Bataafsche Petroleum Maatschappij v. The War Damage Comm'n,
1956. Int'l L. Rep. 810 (Singapore Ct. App.). Netherlands: Senembah
Maatschappij N. V. v. Rupubliek Indonesie Bank Indonesia, Nederlandse
Jurisprudentie 1959, No. 73, p. 218 (Amsterdam Ct. App.), excerpts reprinted in
Domke, Indonesian Nationalization Measures Before Foreign Courts, 54 Am. J.
Int'l L. 305, 307-315 (1960). Germany: N. V. Verenigde Deli-Maatschapijen v.
Deutsch-Indonesische Tabak-Handelsgesellschaft m. b. H. (Bremen Ct. App.),
excerpts reprinted in Domke, supra, at 313-314 (1960); Confiscation of Property
of Sudeten Germans Case, 1948. Ann. Dig. 24, 25 (No. 12) (Amtsgericht of
Dingolfing). Japan: Anglo-Iranian Oil Co. v. Idemitsu Kosan Kabushiki Kaisha.
1953. Int'l L. Rep. 305 (Dist. Ct. of Tokyo), aff'd 1953. Int'l L. Rep. 312
(High Ct. of Tokyo). Italy: Anglo-Iranian Oil Co. v. S. U. P. O. R. Co., 1955.
Int'l L. Rep. 19 (Ct. of Venice); Anglo-Iranian Oil Co. v. S. U. P. O. R. Co.,
1955. Int'l L. Rep. 23 (Civ. Ct. of Rome). France: Volatron v. Moulin,
[1938-1940] Ann. Dig. 24 (Ct. of App. of Aix); Societe Potasas Ibericas v.
Nathan Bloch, [1938-1940] Ann. Dig. 150 (Ct. of Cassation). The Court does not
refer to any country which has applied the act of state doctrine in a case
where a substantial international law [376 U.S.
398, 441] issue is sought to be raised by an alien whose property
has been expropriated. This country and this Court stand alone among the
civilized nations of the world in ruling that such an issue is not cognizable
in a court of law. The Court notes that the courts of both New York and Great
Britain have articulated the act of state doctrine in broad language similar to
that used by this Court in Underhill v. Hernandez, 168
U.S. 250 , and from this it infers that these courts recognize no
international law exception to the act of state doctrine. The cases relied on
by the Court involved no international law issue. For in these cases the party
objecting to the validity of the foreign act was a citizen of the foreign
state. It is significant that courts of both New York and Great Britain, in
apparently the first cases in which an international law issue was squarely
posed, ruled that the act of state doctrine was no bar to examination of the
validity of the foreign act. Anglo Iranian Oil Co. v. Jaffrate, 1953. Int'l L.
Rep. 316 (Aden Sup. Ct.): "[T]he Iranian Laws of 1951 were invalid by
international law, for, by them, the property of the company was expropriated
without any compensation." Sulyok v. Penzintezeti Kozpont Budapest, 279
App. Div. 528, 111 N. Y. S. 2d 75, aff'd 304 N. Y. 704, 107 N. E. 2d 604
(foreign expropriation of intangible property denied effect as contrary to New
York public policy).
[ Footnote 2 ] In one of
the earliest decisions of this Court even arguably invoking the act of state
doctrine, Hudson v. Guestier, 4 Cranch 293, Chief Justice Marshall held that
the validity of a seizure by a foreign power of a vessel within the jurisdiction
of the sentencing court could not be reviewed "unless the court passing
the sentence loses its jurisdiction by some circumstance which the law of
nations can notice." (Emphasis added.) Underhill v. Hernandez 168
U.S. 250 , where the Court stated the act of state doctrine in its
oft-quoted form, was a suit in tort by an American citizen against an officer
of the Venezuelan Government for an unlawful detention and compelled operation
of the plaintiff's water facilities during the course of a revolution in that
country. Well-established principles of immunity precluded the plaintiff's
suit, and this was one of the grounds for dismissal. However, as noted above,
the Court did invoke the act of state doctrine in dismissing the suit and
arguably the forced detention of a foreign citizen posed a claim cognizable
under international law. But the Court did not ignore this possibility of a
violation of international law; rather in distinguishing cases involving
arrests by military authorities in the absence of war and those concerning the
right of revolutionary bodies to interfere with commerce, the Court passed on
the merits of plaintiff's claim under international law and deemed the claim
without merit under then existing doctrines. "[A]cts of legitimate warfare
cannot be made the basis of individual liability." (Emphasis added.) 168
U.S., at 253 . Indeed the Court cited Dow v. Johnson, 100
U.S. 158 , a suit arising from seizures by American officers in the South
during the Civil War, in which it was held without any reliance on the act of
state doctrine that the law of nations precluded making acts of legitimate
warfare a basis for liability after the cessation of hostilities, and Ford v.
Surget, 97
U.S. 594 , which held an officer of the Confederacy immune from damages for
the destruction of property during the war. American Banana Co. v. United Fruit
Co., 213
U.S. 347 , a case often invoked for the blanket prohibition of [376 U.S. 398, 443] the act of state
doctrine, held only that the antitrust laws did not extend to acts committed by
a private individual in a foreign country with the assistance of a foreign
government. Most of the language in that case is in response to the issue of
how far legislative jurisdiction should be presumed to extend in the absence of
an express declaration. The Court held that the ordinary understandings of
sovereignty warranted the proposition that conduct of an American citizen
should ordinarily be adjudged under the law where the acts occurred. Rather
than ignoring international law, the law of nations was relied on for this rule
of statutory construction. More directly in point are the Mexican seizures
passed upon in Oetjen v. Central Leather Co., 246
U.S. 297 , and Ricaud v. American Metal Co., 246
U.S. 304 . In Oetjen the plaintiff claimed title from a Mexican owner who
was divested of his property during the Mexican revolution. The terms of the
expropriation are not clear, but it appears that a promise of compensation was
made by the revolutionary government and that the property was to be used for
the war effort. The only international law issue arguably present in the case
was by virtue of a treaty of the Hague Convention, to which both Mexico and the
United States were signatories, governing customs of war on land; although the
Court did not rest the decision on the treaty, it took care to point out that
this seizure was probably lawful under the treaty as a compelled contribution
in time of war for the needs of the occupying army. Moreover, the Court
stressed the fact that the title challenged was derived from a Mexican law
governing the relations between the Mexican Government and Mexican citizens.
Aside from the citizenship of the plaintiff's predecessor in title, the
property seized was to satisfy an assessment of the revolutionary government
which the Mexican owner had failed to pay. It is doubtful that this measure,
even as applied to non-Mexicans, would constitute a violation of international
law. Dow v. Johnson, supra. In Ricaud the titleholder was an American and the
Court deemed this difference irrelevant "for the reasons given" in
Oetjen. In Ricaud there was a promise to pay for the property seized during the
revolution upon the cessation of [376 U.S. 398,
444] hostilities and the seizure was to meet exigencies created
by the revolution, which was permissible under the provisions of the Hague
Convention considered in Oetjen. This declaration of legality in the Hague
Convention, and the international rules of war on seizures, rendered the
allegation of an international law violation in Ricaud sufficiently frivolous
so that consideration on the merits was unnecessary. The sole question
presented in Shapleigh v. Mier, 299
U.S. 468 , concerned the legality of certain action under Mexican law, and
the parties expressly declined to press the question of legality under
international law. And the Court's language in that case - "For wrongs of
that order the remedy to be followed is along the channels of diplomacy" -
must be read against the background of an arbitral claims commission that had
been set up to determine compensation for claimants in the position of
Shapleigh, the existence of which the Court was well aware. "[A] tribunal
is in existence, the International Claims Commission, established by convention
between the United States and Mexico, to which the plaintiffs are at liberty to
submit and have long ago submitted a claim for reparation." 299
U.S., at 471 . In the other cases cited in the Court's opinion, ante pp.
416-417, the act of state doctrine was not even peripherally involved; the law
applicable in both United States v. Belmont, 301
U.S. 324 , and United States v. Pink, 315
U.S. 203 , was a compact between the United States and Russia regarding the
effect of Russian nationalization decrees on property located in the United
States. No one seriously argued that the act of state doctrine precludes
reliance on a binational compact dealing with the effect to be afforded or
denied a foreign act of state.
[ Footnote 3 ] An act of
state has been said to be any governmental act in which the sovereign's
interest qua sovereign is involved. "The expression `act of State' usually
denotes `an executive or administrative exercise of sovereign power by an
independent State or potentate, or by its or his duly authorized agents or
officers.' The expression, however, is not a term of art, and it obviously may,
and is in fact often intended to include legislative and judicial acts such as
a statute, decree or order, or a judgment of a superior Court." Mann, The
Sacrosanctity of the Foreign Act of State, 59 L. Q. Rev. 42 (1943).
[ Footnote 4 ] IV Rabel,
The Conflict of Laws: A Comparative Study, 30-69 (1958); Ehrenzweig, Conflict
of Laws, 607-633 (1962); Rest. (2d ed.) Conflict of Laws, 254a (Tent. Draft.
No. 5 (1959)); Baade, Indonesian Nationalization Measures Before Foreign Courts
- A Reply 54 Am. J. Int'l L. 801 (1960); Re, Foreign Confiscations in
Anglo-American Law - A Study of the "Rule of Decision" Principle,
49-50 (1951).
[ Footnote 5 ] See
generally, Kaplan and Katzenbach, The Political Foundations of International
Law, 135-172 (1961); Herz, International Politics in the Atomic Age, 58-62
(1959).
[ Footnote 6 ]
Anglo-Iranian Oil Co. v. Idemitsu Kosan Kabushiki Kaisha, 1953. Int'l L. Rep.
305 (Dist. Ct. of Tokyo), aff'd, 1953. Int'l L. Rep. 312 (High Ct. of Tokyo);
Anglo-Iranian Oil Co. v. S. U. P. O. R. Co., 1955. Int'l L. Rep. 19 (Ct. of
Venice (1953)); Anglo-Iranian Oil Co. v. S. U. P. O. R. Co., 1955. Int'l L.
Rep. 23, 39-43 (Civ. Ct. of Rome); compare N. V. Verenigde Deli-Maatschapijen
v. Deutsch-Indonesische Tabak-Handelsgesellschaft m. b. H. (Bremen Ct. App.),
excerpts reprinted in Domke, Indonesian Nationalization Measures Before Foreign
Courts, 54 Am. J. Int'l L. 305, 313-314 (1960), with Confiscation of Property
of Sudeten Germans Case, 1948. Ann. Dig. 24, 25 (No. 12) (Amtsgericht of
Dingolfing) (discriminatory confiscatory decrees). See also West Rand Central
Gold Mining Co. v. The King, 1905. 2 K. B. 391.
[ Footnote 7 ] Moscow Fire
Ins. Co. v. Bank of New York, 280 N. Y. 286, 20 N. E. 2d 758 (1939), aff'd sub
nom. United States v. Moscow Fire Ins. Co., 309
U.S. 624 ; Vladikavkazsky R. Co. v. New York Trust [376
U.S. 398, 448] Co. 263 N. Y. 369, 189 N. E. 456; Plesch v. Banque
National de la Republique D'Haiti, 273 App. Div. 224, 77 N. Y. S. 2d 43, aff'd
298 N. Y. 573, 81 N. E. 2d 106; Bollack v. Societe Generale, 263 App. Div. 601,
33 N. Y. S. 2d 986; Latvian State Cargo & Passenger S. S. Line v. McGrath,
88 U.S. App. D.C. 226, 188 F.2d 1000.
[ Footnote 8 ] Second
Russian Ins. Co. v. Miller, 297 F. 404 (C. A. 2d Cir.); James & Co. v.
Second Russian Ins. Co., 239 N. Y. 248, 146 N. E. 369; Sokoloff v. National
City Bank, 239 N. Y. 158, 145 N. E. 917; A/S Merilaid & Co. v. Chase Nat'l
Bank, 189 Misc. 285, 71 N. Y. S. 2d 377 (Sup. Ct. N. Y.). See also Compania Ron
Bacardi v. Bank of Nova Scotia, 193 F. Supp. 814 (D.C. S. D. N. Y.) (normal
conflict of laws rule superseded by a national policy against recognition of
Cuban confiscatory decrees). Similarly, it has been held that nationalization
of shares of a foreign corporation or partnership owning property in the United
States will not affect the title of former shareholders or partners; the prior
owners are deemed to retain their equitable rights in assets located in the
United States. Vladikavkazsky R. Co. v. New York Trust Co., 263 N. Y. 369, 189
N. E. 456. The acts of a belligerent occupant of a friendly nation in respect
to contracts made within the occupied nation have been denied application in
our courts. Aboitiz & Co. v. Price, 99 F. Supp. 602 (D.C. Utah). Compare
Werfel v. Zivnostenska Banka, 260 App. Div. 747, 752, 23 N. Y. S. 2d 1001,
1005.
[ Footnote 9 ] See the
recent affirmation of this doctrine in Banco do Brasil, S. A., v. Israel
Commodity Co., holding that an action by Brazil against a New York coffee
importer for fraudulently circumventing Brazilian foreign exchange regulations
by forgoing documents in New York was contrary to New York public policy,
notwithstanding that the Bretton Woods agreement, to which both the United
States and [376 U.S. 398, 449] Brazil
are parties, expresses a policy favorable to such exchange laws. 12 N. Y. 2d
371, 190 N. E. 2d 235, cert. denied, 376
U.S. 906 . See also The Antelope, 10 Wheat. 66, 123; Huntington v. Attrill,
146
U.S. 657 ; Moore v. Mitchell, 30 F.2d 600, aff'd on other grounds, 281
U.S. 18 ; Dicey, Conflict of Laws (Morris ed., 7th ed. 1958), 667; Wolff,
Private International Law (2d ed. 1950), 525.
[ Footnote 10 ] Hilton v.
Guyot, 159
U.S. 113 (lack of reciprocity in the foreign state renders the judgment
only prima facie evidence of the justice of the plaintiff's claim); cf.
Venezuelan Meat Export Co. v. United States, 12 F. Supp. 379 (D.C. D. Md.); The
W. Talbot Dodge, 15 F.2d 459 (D.C. S. D. N. Y.) (fraud is a defense to the
enforcement of foreign judgments); Title Ins. & Trust Co. v. California
Development Co., 171 Cal. 173, 152 P. 542 (fraud); Banco Minero v. Ross, 106
Tex. 522, 172 S. W. 711 (procedure of Mexican court offensive to natural
justice); De Brimont v. Penniman, 7 Fed. Cas. 309, No. 3,715 (C. C. S. D. N.
Y.) (judgment founded on a cause of action contrary to the "policy of our
law, and does violence to what we deem the rights of our own citizen");
other cases indicate that American courts will refuse enforcement where
protection of American citizens or institutions requires re-examination.
Williams v. Armroyd, 7 Cranch 423; MacDonald v. Grand Trunk R. Co., 71 N. H.
448, 52 A. 982; Caruso, v. Caruso, 106 N. J. Eq. 130, 148 A. 882; Hohner v.
Gratz, 50 F. 369 (C. C. S. D. N. Y.) (alternative holding). See generally
Reese, The Status In This Country of Judgments Rendered Abroad, 50 Col. L. Rev.
783 (1950).
[ Footnote 11 ] The Court
attempts to distinguish between these foreign acts on the ground that all
foreign penal and revenue and perhaps other public laws are irrebuttably
presumed invalid to avoid the embarrassment stemming from examination of some
acts and that all foreign expropriations are presumed valid for the same
reason. This distinction fails to explain why it may be more embarrassing to
refuse recognition to an extraterritorial confiscatory law directed at
nationals of the confiscating state than it would be to refuse effect to a
territorial confiscatory law. From the viewpoint of the confiscating state, the
need to affect property beyond its borders may be as significant as the need to
take title to property within its borders. And it would appear more offensive
to notions of sovereignty for an American court to deny enforcement of a
foreign law because it is deemed contrary to justice, morals, or public policy,
than to deny enforcement because of principles of international law. It will
not do to say that the foreign state has no jurisdiction to affect title to
property beyond its borders, since other jurisdictional bases, such as
citizenship, are invariably present. But for the policy of the forum state,
doubtless the foreign law would be given effect under ordinary conflict of laws
principles. Compare Sokoloff v. National City Bank, 239 N. Y. 158, 145 N. E.
917; Second Russian Ins. Co. v. Miller, 297 F. 404 (C. A. 2d Cir.) with Werfel
v. Zivnostenska Banka, 260 App. Div. 747, 23 N. Y. S. 2d 1001. The refusal to
enforce foreign penal and tax laws and foreign judgments is wholly at odds with
the presumption of validity and requirement of enforcement under the act of
state doctrine; the political realms of the acting country are clearly
involved, the enacting country has a large stake in the decision, and when
enforcement is against nationals of the enacting country, jurisdictional bases
are clearly present. Moreover, it is difficult, conceptually or otherwise, to
distinguish between the situation where a tax judgment secured in a foreign
country against one who is in the country at the time of judgment is presented
to an American court and the situation where a confiscatory decree is sought to
be enforced in American courts.
[ Footnote 12 ] For the
extent to which the Framers contemplated the application of international law
in American courts and their concern that this body of law be administered
uniformly in the federal courts, see The Federalist: No. 3, at 22, by John Jay
(Bourne ed. 1947, Book I); No. 80, at 112 and 114; No. 83, at 144, and No. 82,
by Alexander Hamilton (Bourne ed. 1947, Book II); No. 42, by James Madison
(Bourne ed. 1947, Book I). Thomas Jefferson, speaking as Secretary of State,
wrote to M. Genet, French Minister, in 1793: "The law of nations makes an
integral part . . . of the laws of the land." I Moore, Digest of
International Law (1906), 10. And see the opinion of Attorney General Randolph
given in 1792: "The law of nations, although not specially adopted by the
constitution or any municipal act, is essentially a part of the law of the
land." 1 Op. Atty. Gen. 27. Also see Warren, The Making of the
Constitution, Pt. II, c. I, at 116; Madison's Notes in 1 Farrand 21, 22, 244,
316. See generally Dickinson, The Law of Nations as Part of the National Law of
the United States, 101 U. of Pa. L. Rev. 26 (1952).
[ Footnote 13 ] This
intention was reflected and implemented in the Articles of the Constitution.
Article I, 8, empowers the Congress "[t]o define and punish Piracies and
Felonies committed on the high Seas, and [376 U.S.
398, 452] Offences against the Law of Nations." Article III,
2, extends the judicial power "to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority; - to all Cases affecting
Ambassadors, other public Ministers and Consuls; - to all Cases of admiralty
and maritime Jurisdiction; - to Controversies to which the United States shall
be a Party; - to Controversies between two or more States; - between a State
and Citizens of another State; - between Citizens of different States; -
between Citizens of the same State claiming Lands under Grants of different
States, and between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects."
[ Footnote 14 ] As early
as 1793, Chief Justice Jay stated in Chisholm v. Georgia that "Prior . . .
to that period [the date of the Constitution], the United States had, by taking
a place among the nations of the earth, become amenable to the law of
nations." 2 Dall. 419, at 474. And in 1796, Justice Wilson stated in Ware
v. Hylton: "When the United States declared their independence, they were
bound to receive the law of nations, in its modern state of purity and
refinement." 3 Dall. 199, at 281. Chief Justice Marshall was even more
explicit in The Nereide, when he said: "If it be the will of the
government to apply to Spain any rule respecting captures which Spain is
supposed to apply to us, the government will manifest that will by passing an
act for the purpose. Till such an act be passed, the Court is bound by the law
of nations which is a part of the law of the land." 9 Cranch 388, at 423.
As to the effect such an Act of Congress would have on international law, the
Court has ruled that an Act of Congress ought never to be construed to violate
the law of nations if any other possible construction remains. MacLeod v.
United States, 229
U.S. 416, 434 (1913). As was well stated in Hilton v. Guyot:
"International law, in its widest and most comprehensive sense - including
not only questions of right between nations, governed by what has been
appropriately called the law of nations; but also questions arising under what
is usually called private international law, or the conflict of laws, and
concerning the rights of persons within [376 U.S.
398, 453] the territory and dominion of one nation, by reason of
acts, private or public, done within the dominions of another nation - is part
of our law, and must be ascertained and administered by the courts of justice,
as often as such questions are presented in litigation between man and man,
duly submitted to their determination. "The most certain guide, no doubt,
for the decision of such questions is a treaty or a statute of this country.
But when, as is the case here, there is no written law upon the subject, the
duty still rests upon the judicial tribunals of ascertaining and declaring what
the law is, whenever it becomes necessary to do so, in order to determine the
rights of parties to suits regularly brought before them. In doing this, the
courts must obtain such aid as they can from judicial decisions, from the works
of jurists and commentators, and from the acts and usages of civilized nations."
159
U.S. 113, 163 (1895). For other cases which explicitly invoke the principle
that international law is a part of the law of the land, see, for example:
Talbot v. Janson, 3 Dall. 133, 161; Respublica v. De Longchamps, 1 Dall. 111,
116; The Rapid, 8 Cranch 155, 162; Fremont v. United States. 17 How. 542, 557;
United States v. Arjona, 120
U.S. 479 .
[ Footnote 15 ] Among
others, international law has been relied upon in cases concerning the
acquisition and control of territory, Jones v. United States, 137
U.S. 202 ; Mormon Church v. United States, 136
U.S. 1 : Dorr v. United States, 195
U.S. 138 ; the resolution of boundary disputes, Iowa v. Illinois, 147
U.S. 1 ; Arkansas v. Tennessee, 246
U.S. 158 ; questions of nationality, United States v. Wong Kim Ark, 169
U.S. 649 ; Inglis v. The Trustees of the Sailor's Snug Harbour, 3 Pet. [376 U.S. 398, 454] 99; principles of war
and neutrality and their effect on private rights, The Steamship Appam, 243
U.S. 124 ; Dow v. Johnson, 100
U.S. 158 ; Ford v. Surget, 97
U.S. 594 ; and private property rights generally, The Schooner Exchange v.
McFaddon, 7 Cranch 116; United States v. Percheman, 7 Pet. 51.
[ Footnote 16 ]
"[D]iscriminatory laws enacted out of hatred, against aliens or against
persons of any particular race or category or against persons belonging to
specified social or political groups . . . run counter to the internationally
accepted principle of the equality of individuals before the law."
Anglo-Iranian Oil Co. v. S. U. P. O. R. Co., 1955. Int'l L. Rep. 23, 40 (Civ.
Ct. of Rome); see also Friedman, Expropriation In International Law (1953),
189-192; Wortley, Expropriation In Public International Law, 120-121 (1959);
Cheng, The Rationale of Compensation for Expropriation, 44 Grotius Society 267,
281, 289 (1959); Seidl-Hohenveldern, Title to Confiscated Foreign Property and
Public International Law, 56 Am. J. Int'l L. 507, 509-510 (1962).
[ Footnote 17 ] In the
only reference in the Court's opinion to fairness between the litigants, and a
court's obligation to resolve disputes justly, ante, p. 435, the Court quickly
disposes of this consideration by assuming that the typical act of state case
is between an original owner and an "innocent" purchaser, so that it
is not unjust to leave the purchaser's title undisturbed by applying the act of
state doctrine. Beside the obvious fact that this assumption is wholly
inapplicable to the case where the foreign sovereign itself or its agent seeks
to have its title validated in our courts - the case at bar - it is far from
apparent that most cases represent suits between the original owner and an
innocent purchaser. The "innocence" of a purchaser who buys goods
from a government with knowledge that possession or apparent title was derived
from an act patently in violation of international law is highly questionable.
More fundamentally, doctrines of commercial law designed to protect the title
of a bona fide purchaser can serve to resolve this question without reliance
upon a broad irrebuttable presumption of validity.
[ Footnote 18 ] Another
situation was also presented by the Nazi decrees challenged in the Bernstein
litigation; these racial and religious expropriations, while involving
nationals of the foreign state and therefore customarily not cognizable under
international law, had been condemned in multinational agreements and
declarations as crimes against humanity. The acts could thus be measured in
local courts against widely held principle rather than judged by the parochial
views of the forum.
[ Footnote 19 ] The Court
argues that an international law exception to the act of state doctrine would
fail to deter violations of international law, since judicial intervention
would at best be sporadic. At the same time, proceeding on a contradictory
assumption as to the impact of such an exception, the Court argues that the
exception would render titles uncertain and upset the flow of international
trade. The Court attempts to reconcile these conclusions by distinguishing
between [376 U.S. 398, 460] "direct"
and "indirect" impacts of a declaration of invalidity, and by
assuming that the exporting nation need only find other buyers for its products
at the same price. From the point of view of the exporting nation, the
distinction between indirect and direct impact is meaningless, and the facile
assumption that other buyers at the same price are available and the further
unstated assumption that purchase price is the only pertinent consideration to
the exporting country are based on an oversimplified view of international
trade. There is no evidence that either the absence of an act of state doctrine
in the law of numerous European countries or the uncertainty of our own law on
this question until today's decision has worked havoc with titles in
international commerce or presented the nice questions the Court sets out on p.
434, n. 39, ante, or has substantially affected the flow of international
commerce.
[ Footnote 20 ] These
issues include whether a foreign state exists or is recognized by the United
States, Gelston v. Hoyt, 3 Wheat. 246; The Sapphire, 11 Wall. 164, 168; the
status that a foreign state or its representatives shall have in this country
(sovereign immunity), Ex parte Muir, 254
U.S. 522 ; Ex parte Peru, 318
U.S. 578 ; the territorial boundaries of a foreign state, Jones v. United
States, 137
U.S. 202 ; and the authorization of its representatives for state-to-state
negotiation, Ex parte Hitz, 111
U.S. 766 ; In re Baiz, 135
U.S. 403 .
[ Footnote 21 ] "[T]he
Government of the United States considers this law to be manifestly in
violation of those principles of international law which have long been
accepted by the free countries of the West. It is in its essence
discriminatory, arbitrary and confiscatory." Press Release No. 397, Dept.
of State, July 16, 1960. [376 U.S. 398, 463]
The United States Ambassador to Cuba condemned this decree, stating to
the Cuban Ministry of Foreign Relations: "Under instructions from my
government, I wish to express to Your Excellency the indignant protest of my
government against this resolution and its effects upon the legitimate rights
which American citizens have acquired under the laws of Cuba and under
International Law." Press Release No. 441, Dept. of State, Aug. 9, 1960.
[ Footnote 22 ] The Court
disclaims saying that there is no governing international standard in this
area, but only that the matter is not meet for adjudication. Ante, p. 429, n.
26. But since the Court's view is that there are only the divergent views of
nations that subscribe to different ideologies and practical goals on
"expropriations," the matter [376 U.S.
398, 465] is not meet for adjudication, according to the Court,
because of the lack of any agreement among nations on standards governing
expropriations, i. e., there is no international law in this area, but only the
political views of the political branches of the various nations. These
assertions might find much more support in the authorities relied on by the
Court and others if the issue under discussion was not the undefined category -
expropriation - but the clearly discrete issue of adequate and effective
compensation. It strains credulity to accept the proposition that newly
emerging nations or their spokesmen denounce all rules of state responsibility
- reject international law in regard to foreign nationals generally - rather than
reject the traditional rule of international law requiring prompt, adequate,
and effective compensation.
[ Footnote 23 ] There is
another implication in the Court's opinion: the act of state doctrine applies
to all expropriations, not only because of the lack of a consensus among
nations on any standards but because the issue of validity under international
law "touches . . . the practical and ideological goals of the various
members of the community of nations." If this statement means something
other than that there is no agreement on international standards governing
expropriations, it must mean that the doctrine applies because the issue is
important politically to the foreign state. If this is what the Court means,
the act of state doctrine has been expanded to unprecedented scope. No foreign
act is subject to challenge where the foreign nation demonstrates that the act
is in furtherance of its practical or ideological goals. What foreign acts
would not be so characterized?
[ Footnote 24 ] "A
refusal of courts to consider foreign acts of State in the light of the law of
nations is not . . . merely a neutral doctrine of abstention. On the contrary
the effect of such a doctrine is to lend the [376
U.S. 398, 466] full protection of the United States courts,
police and governmental agencies to commercial property transactions which are
contrary to the minimum standard of civilized conduct . . . ." The
Association of the Bar of the City of New York, Committee on International Law,
A Reconsideration of the Act of State Doctrine In United States Courts (1959),
8.
[ Footnote 25 ] That
embarrassment results from a rigid rule of act of state immunity is well
demonstrated by the judicial enforcement of German racial decrees after the
war. The pronouncements by United States courts that these decrees vest title
beyond question was wholly [376 U.S. 398, 467]
at odds with the executive's official policy, embodied in
representations to other governments, that property taken through racial
decrees by the Nazi Government should be returned to the original owners and
thus not be subject to reparation claims. Compare statements by Secretary of
State Marshall, reprinted in 16 Dept. State Bull. 653, 793 (1947), with
Bernstein v. Van Heyghen Freres Societe Anonyme, 163 F.2d 246 (C. A. 2d Cir.).
This embarrassing divergence of governmental opinion was eliminated only after
the executive intervened and requested the courts to adjudicate the matter on
the merits. Bernstein v. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij,
210 F.2d 375 (C. A. 2d Cir.).
[ Footnote 26 ] It is
difficult to reconcile the Court's statement that rules pertaining to
expropriations are unsettled or unclear with the Court's pronounced desire to
avoid making any statements on the proper or accepted principles of
international law, lest it embarrass the executive, who may have a different
view in respect to this particular expropriation or this particular
expropriating country. Is not the Court's limitation of the act of state
doctrine to the area of expropriations - based upon the uncertainty and
fluidity of the governing law in this area - an admission that may prove to be
embarrassing to the executive at some later date? And the very line-drawing
that the Court stresses as potentially disruptive of the executive's conduct of
foreign affairs is inevitable under the Court's approach, since subsequent
cases not involving expropriations will require us to determine if the act of
state doctrine applies and the Court's standard is the strength and clarity of
the principles of international law thought to govern the issue. Again our view
of the clarity of these principles and the extent to which they are really
rules of international law may not be identical with the views of the
Department of State. These are some of the inherent difficulties of
establishing a rule of law on the basis of speculations about possible but
unidentified embarrassment to the executive at some unknown and unknowable
future date.
[ Footnote 27 ] The
procedure was instituted as far back as The Schooner Exchange v. McFaddon, 7
Cranch 116 (1812), when a United States Attorney, on the initiative of the
Executive Branch, entered an appearance in a case involving the immunity of a
foreign vessel, and was further defined in Ex parte Muir, 254
U.S. 522, 533 (1921), when the Court stated that the request by the foreign
suitor to the executive department was an acceptable and well-established
manner of interposing a claim of immunity. Under the procedure outlined in Muir
each of the contesting parties may raise the immunity issue by obtaining an
official statement from the State Department, or by encouraging the executive
to set forth appropriate suggestions [376 U.S. 398,
470] to the Court through the Attorney General. See Compania
Espanola de Navegacion Maritima, S. A., v. The Navemar, 303
U.S. 68, 74 . See generally Dickinson, The Law of Nations As National Law:
"Political Questions," 104 U. of Pa. L. Rev. 451, 470-475 (1956). [376 U.S. 398, 473]
WESTERN SAHARA
Advisory Opinion of 16 October 1975
In its Advisory Opinion which
the General Assembly of the United Nations had requested on two questions
concerning Western Sahara, the Court,
With regard to Question I,
"Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain a territory belonging to no one (terra nullius)?",
- decided by 13 votes to 3
to comply with the request for an advisory opinion;
- was unanimously of
opinion that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain was not a territory belonging to no one (terra
nullius).
With regard to Question II,
"What were the legal ties between this territory and the Kingdom of
Morocco and the Mauritanian entity?", the Court
- decided by 14 votes to 2
to comply with the request for an advisory opinion;
- was of opinion, by 14
votes to 2, that there were legal ties between this territory and the Kingdom
of Morocco of the kinds indicated in the penultimate paragraph of the Advisory
Opinion;
- was of opinion, by 15
votes to 1, that there were legal ties between this territory and the
Mauritanian entity of the kinds indicated in the penultimate paragraph of the
Advisory Opinion.
The penultimate paragraph of the
Advisory Opinion was to the effect that:
The materials and information
presented to the Court show the existence, at the time of Spanish colonization,
of legal ties of allegiance between the Sultan of Morocco and some of the
tribes living in the territory of Western Sahara. They equally show the existence
of rights, including some rights relating to the land, which constituted legal
ties between the Mauritanian entity, as understood by the Court, and the
territory of Western Sahara. On the other hand, the Court's conclusion is that
the materials and information presented to it do not establish any tie of
territorial sovereignty between the territory of Western Sahara and the Kingdom
of Morocco or the Mauritanian entity. Thus the Court has not found legal ties
of such a nature as might affect the application of General Assembly resolution
1514 (XV) in the decolonization of Western Sahara and, in particular, of the
principle of self-determination through the free and genuine expression of the
will of the peoples of the Territory.
For these proceedings the Court
was composed as follows: President Lachs; Vice-President Ammoun; Judges
Forster, Gros, Bengzon, Petrén, Onyeama, Dillard, Ignacio-Pinto, de Castro,
Morozov, Jiménez de Aréchaga, Sir Humphrey Waldock, Nagendra Singh and Ruda;
Judge ad hoc Boni.
Judges Gros, Ignacio-Pinto and
Nagendra Singh appended declarations to the Advisory Opinion; Vice-President
Ammoun and Judges Forster, Petrén, Dillard, de Castro and Boni appended
separate opinions, and Judge Ruda a dissenting opinion.
In these declarations and
opinions the judges concerned make clear and explain their positions.
*
* *
Course of the Proceedings
(paras. 1-13 of Advisory Opinion)
The Court first recalls that the
General Assembly of the United Nations decided to submit two questions for the
Court's advisory opinion by resolution 3292 (XXIX) adopted on
13 December 1974 and received in the Registry on 21 December. It
retraces the subsequent steps in the proceedings, including the transmission of
a dossier of documents by the Secretary-General of the United Nations (Statute,
Art. 65, para. 2) and the presentation of written statements or letters and/or
oral statements by 14 States, including Algeria, Mauritania, Morocco, Spain and
Zaire (Statute, Art. 66).
Mauritania and Morocco each
asked to be authorized to choose a judge ad hoc to sit in the
proceedings. By an Order of 22 May 1975 (I.C.J. Reports 1975, p. 6), the
Court found that Morocco was entitled under Articles 31 and 68 of the Statute
and Article 89 of the Rules of Court to choose a person to sit as judge ad
hoc, but that, in the case of Mauritania, the conditions for the
application of those Articles had not been satisfied. At the same time the
Court stated that those conclusions in no way prejudged its views with regard
to the questions referred to it or any other question which might fall to be
decided, including those of its competence to give an advisory opinion and the
propriety of exercising that competence.
Competence of the Court
(paras. 14-22 of Advisory Opinion)
Under Article 65, paragraph 1,
of the Statute, the Court may give an advisory opinion on any legal question at
the request of any duly authorized body. The Court notes that the General
Assembly of the United Nations is suitably authorized by Article 96, paragraph
1, of the Charter and that the two questions submitted are framed in terms of
law and raise problems of international law. They are in principle questions of
a legal character, even if they also embody questions of fact, and even if they
do not call upon the Court to pronounce on existing rights and obligations. The
Court is accordingly competent to entertain the request.
Propriety of Giving an Advisory Opinion
(paras. 23-74 of Advisory Opinion)
Spain put forward objections
which in its view would render the giving of an opinion incompatible with the
Court's judicial character. It referred in the first place to the fact that it
had not given its consent to the Court's adjudicating upon the questions
submitted. It maintained (a) that the subject of the questions was substantially
identical to that of a dispute concerning Western Sahara which Morocco, in
September 1974, had invited it to submit jointly to the Court, a proposal which
it had refused: the advisory jurisdiction was therefore being used to
circumvent the principle that the Court has no jurisdiction to settle a dispute
without the consent of the parties; (b) that the case involved a dispute
concerning the attribution of territorial sovereignty over Western Sahara and
that the consent of States was always necessary for the adjudication of such
disputes; (c) that in the circumstances of the case the Court could not
fulfil the requirements of good administration of justice with regard to the
determination of the facts. The Court considers (a) that the General
Assembly, while noting that a legal controversy over the status of Western
Sahara had arisen during its discussions, did not have the object of bringing
before the Court a dispute or legal controversy with a view to its subsequent
peaceful settlement, but sought an advisory opinion which would be of
assistance in the exercise of its functions concerning the decolonization of
the territory, hence the legal position of Spain could not be compromised by
the Court's answers to the questions submitted; (b) that those questions
do not call upon the Court to adjudicate on existing territorial rights; (c)
that it has been placed in possession of sufficient information and evidence.
Spain suggested in the second
place that the questions submitted to the Court were academic and devoid of
purpose or practical effect, in that the United Nations had already settled the
method to be followed for the decolonization of Western Sahara, namely a
consultation of the indigenous population by means of a referendum to be
conducted by Spain under United Nations auspices. The Court examines the
resolutions adopted by the General Assembly on the subject, from
resolution 1514 (XV) of 14 December 1960, the Declaration on the Granting
of Independence to Colonial Countries and Peoples, to resolution 3292 (XXIX) on
Western Sahara, embodying the request for advisory opinion. It concludes that
the decolonization process envisaged by the General Assembly is one which will
respect the right of the population of Western Sahara to determine their future
political status by their own freely expressed will. This right to
self-determination, which is not affected by the request for advisory opinion
and constitutes a basic assumption of the questions put to the Court, leaves
the General Assembly a measure of discretion with respect to the forms and
procedures by which it is to be realized. The Advisory Opinion will thus
furnish the Assembly with elements of a legal character relevant to that
further discussion of the problem to which resolution 3292 (XXIX) alludes.
Consequently the Court finds no
compelling reason for refusing to give a reply to the two questions submitted
to it in the request for advisory opinion.
Question 1: "Was Western Sahara (Rio de
Oro and Sakiet El Hamra) at the Time of Colonization by Spain a Territory
Belonging to No One (terra nullius)?"
(paras. 75-83 of Advisory Opinion)
For the purposes of the Advisory
Opinion, the "time of colonization by Spain" may be considered as the
period beginning in 1884, when Spain proclaimed its protectorate over the Rio
de Oro. It is therefore by reference to the law in force at that period that
the legal concept of terra nullius must be interpreted. In law,
"occupation" was a means of peaceably acquiring sovereignty over
territory otherwise than by cession or succession; it was a cardinal condition
of a valid "occupation" that the territory should be terra
nullius. According to the State practice of that period, territories
inhabited by tribes or peoples having a social and political organization were
not regarded as terrae nullius: in their case sovereignty was not
generally considered as effected through occupation, but through agreements
concluded with local rulers. The information furnished to the Court shows (a)
that at the time of colonization Western Sahara was inhabited by peoples
which, if nomadic, were socially and politically organized in tribes and under
chiefs competent to represent them; (b) that Spain did not proceed upon
the basis that it was establishing its sovereignty over terrae nullius: thus
in his Order of 26 December 1884 the King of Spain proclaimed that he was
taking the Rio de Oro under his protection on the basis of agreements entered
into with the chiefs of local tribes.
The Court therefore gives a
negative answer to Question I. In accordance with the terms of the request for
advisory opinion, "if the answer to the first question is in the
negative", the Court is to reply to Question II.
Question 11: "What Were the Legal Ties of
This Territory with the Kingdom of Morocco and the Mauritanian Entity?"
(paras. 84-161 of Advisory Opinion)
The meaning of the words
"legal ties" has to be sought in the object and purpose of
resolution 3292 (XXIX) of the United Nations General Assembly. It appears
to the Court that they must be understood as referring to such legal ties as
may affect the policy to be followed in the decolonization of Western Sahara.
The Court cannot accept the view that the ties in question could be limited to
ties established directly with the territory and without reference to the
people who may be found in it. At the time of its colonization the territory
had a sparse population that for the most part consisted of nomadic tribes the
members of which traversed the desert on more or less regular routes, sometimes
reaching as far as southern Morocco or regions of present-day Mauritania
Algeria or other States. These tribes were of the Islamic faith.
Morocco (paragraphs 90-129 of
the Advisory Opinion) presented its claim to legal ties with Western Sahara as
a claim to ties of sovereignty on the ground of an alleged immemorial
possession of the territory and an uninterrupted exercise of authority. In the
view of the Court, however, what must be of decisive importance in determining
its answer to Question II must be evidence directly relating to effective
display of authority in Western Sahara at the time of its colonization by Spain
and in the period immediately preceding. Morocco requests that the Court should
take account of the special structure of the Moroccan State. That State was
founded on the common religious bond of Islam and on the allegiance of various
tribes to the Sultan, through their caids or sheiks, rather than on the notion
of territory. It consisted partly of what was called the Bled Makhzen, areas
actually subject to the Sultan, and partly of what was called the Bled Siba,
areas in which the tribes were not submissive to him; at the relevant period,
the areas immediately to the north of Western Sahara lay within the Bled Siba.
As evidence of its display of
sovereignty in Western Sahara, Morocco invoked alleged acts of internal display
of Moroccan authority, consisting principally of evidence said to show the
allegiance of Saharan caids to the Sultan, including dahirs and other documents
concerning the appointment of caids, the alleged imposition of Koranic and
other taxes, and acts of military resistance to foreign penetration of the
territory. Morocco also relied on certain international acts said to constitute
recognition by other States of its sovereignty over the whole or part of
Western Sahara, including (a) certain treaties concluded with Spain, the
United States and Great Britain and Spain between 1767 and 1861, provisions of
which dealt inter alia with the safety of persons shipwrecked on the
coast of Wad Noun or its vicinity, (b) certain bilateral treaties of the late
nineteenth and early twentieth centuries whereby Great Britain, Spain, France
and Germany were said to have recognized that Moroccan sovereignty extended as
far south as Cape Bojador or the boundary of the Rio de Oro.
Having considered this evidence
and the observations of the other States which took part in the proceedings,
the Court finds that neither the internal nor the international acts relied
upon by Morocco indicate the existence at the relevant period of either the
existence or the international recognition of legal ties of territorial
sovereignty between Western Sahara and the Moroccan State. Even taking account
of the specific structure of that State, they do not show that Morocco displayed
any effective and exclusive State activity in Western Sahara. They do, however,
provide indications that a legal tie of allegiance existed at the relevant
period between the Sultan and some, but only some, of the nomadic peoples of
the territory, through Tekna caids of the Noun region, and they show that the
Sultan displayed, and was recognized by other States to possess, some authority
or influence with respect to those tribes.
The term "Mauritanian
entity" (paragraphs 139-152 of the Advisory Opinion) was first employed
during the session of the General Assembly in 1974 at which resolution 3292
(XXIX), requesting an advisory opinion of the Court, was adopted. It denotes
the cultural, geographical and social entity within which the Islamic Republic
of Mauritania was to be created. According to Mauritania, that entity, at the
relevant period, was the Bilad Shinguitti or Shinguitti country, a distinct
human unit, characterized by a common language, way of life, religion and
system of laws, featuring two types of political authority: emirates and tribal
groups.
Expressly recognizing that these
emirates and tribes did not constitute a State, Mauritania suggested that the
concepts of "nation" and of "people" would be the most
appropriate to explain the position of the Shinguitti people at the time of
colonization. At that period, according to Mauritania, the Mauritanian entity
extended from the Senegal river to the Wad Sakiet El Hamra. The territory at
present under Spanish administration and the present territory of the Islamic
Republic of Mauritania thus together constituted indissociable parts of a
single entity and had legal ties with one another.
The information before the Court
discloses that, while there existed among them many ties of a racial, linguistic,
religious, cultural and economic nature, the emirates and many of the tribes in
the entity were independent in relation to one another; they had no common
institutions or organs. The Mauritanian entity therefore did not have the
character of a personality or corporate entity distinct from the several
emirates or tribes which comprised it. The Court concludes that at the time of
colonization by Spain there did not exist between the territory of Western
Sahara and the Mauritanian entity any tie of sovereignty, or of allegiance of
tribes, or of simple inclusion in the same legal entity. Nevertheless, the
General Assembly does not appear to have so framed Question II as to confine
the question exclusively to those legal ties which imply territorial sovereignty,
which would be to disregard the possible relevance of other legal ties to the
decolonization process. The Court considers that, in the relevant period, the
nomadic peoples of the Shinguitti country possessed rights, including some
rights relating to the lands through which they migrated. These rights
constituted legal ties between Western Sahara and the Mauritanian entity. They
were ties which knew no frontier between the territories and were vital to the
very maintenance of life in the region.
Morocco and Mauritania both laid
stress on the overlapping character of the respective legal ties which they
claimed Western Sahara to have had with them at the time of colonization
(paragraphs 153-160 of the Advisory Opinion). Although their views appeared to
have evolved considerably in that respect, the two States both stated at the
end of the proceedings that there was a north appertaining to Morocco and a
south appertaining to Mauritania without any geographical void in between, but
with some overlapping as a result of the intersection of nomadic routes. The
Court confines itself to noting that this geographical overlapping indicates
the difficulty of disentangling the various relationships existing in the
Western Sahara region at the time of colonization.
*
* *
For these reasons, the Court
(paragraphs 162 and 163 of the Advisory Opinion) gives the replies indicated on
pages 1 and 2 above.
Humanitarian Issues
The environment where humanitarian action takes place is evolving rapidly and continually poses new challenges to the humanitarian community. There is increasing human vulnerability in crisis situations – both in natural disasters (200 million affected in 2003) and in complex emergencies (45 million in need of life-saving assistance in 2003). OCHA’s role is to provide leadership in these situations through effective and systematic crisis management and by placing humanitarian issues at the forefront.
The last decade has seen a marked increase in the
occurrence of natural disasters along with exposure to greater levels of loss
of life, property and material damage. The lives of millions of civilians are
at risk each time an earthquake, hurricane or other natural disaster occurs,
particularly in poor countries with less developed infrastructures, high
population densities and inadequate emergency preparedness.
In terms of complex emergencies, the factors
contributing to human insecurity are tied to the changing nature of
conflicts. Today's armed conflicts are characterized by active and
deliberate targeting of civilians, including humanitarian workers, widespread
human rights abuses, the use of rape and other crimes of sexual violence as
brutal weapons of war, particularly against women and children, and the forced displacement of
hundreds of thousands of people. Forced displacement of large segments of
populations is used increasingly by parties to conflict in furtherance of
military objectives, including ethnic cleansing. Globally, there are twice as
many conflict-induced internally displaced persons (IDPs) as refugees (13
million in Africa alone), while 90% of all refugees stay in their regions of
origin. This has recently led to a new intolerance of refugee flows in some
southern countries and bodes ill for protection in Africa.
The suffering inflicted on innocent civilians is
aggravated by restrictions on humanitarian access.
Indeed, humanitarian access to aid-dependent civilian populations is often
restricted or denied altogether as a political bargaining chip and means of
imposing even greater suffering on civilians. There is an increasing need to
re-examine approaches to security of humanitarian activities in light of the
changing environment. The targeting of aid workers,
which is often planned and deliberate, closes humanitarian space and
jeopardizes relief programmes. In twenty current conflict zones, humanitarian
access is restricted, condemning civilian populations to protracted and
unmitigated suffering. The risks for civilians are exacerbated even further by
the proliferation of small
arms and light weapons and their illicit sale or supply to armed groups or
militias via porous borders and lax regulations, combined with the attractive
economies of war that control of rich natural resources offers.
The Secretary-General’s Millennium Declaration of
September 2000 identified ‘Protecting the Vulnerable’ and developing a ‘Culture
of Protection’ as priorities and noted the need to ‘expand and strengthen the
protection of civilians in complex emergencies in conformity with international
humanitarian law.’ In response, OCHA’s Policy Development and Studies
Branch (PDSB) has
been at the forefront of developing the policy framework for this culture of
protection, in close collaboration with the Security
Council, other UN departments, humanitarian partner agencies and interested
Member States. Since 1999, the Secretary-General has presented three reports on
the protection of
civilians in armed conflict to the Security Council, which in turn, has
issued two resolutions and four presidential statements. While responsibility
for protection of civilians in armed conflict rests primarily with Member
States and the international community, the UN family has a special role in
promoting and leading the global implementation of the Secretary-General's
agenda on protection and translating a collaborative approach into enhanced
response and protection on the ground.
Protecting beneficiaries of assistance, and other
members of the local community from sexual exploitation and abuse, is of
critical concern to the humanitarian community. To this end, a number of concrete
steps have been taken to ensure prevention and protection strategies are in
place, and that clear channels of recourse are available for victims. OCHA has
been at the forefront in developing tools and procedures to assist these goals,
in its capacity as Co-Chair of the Inter-Agency Standing
Committee Task Force on Protection from Sexual Exploitation and Abuse. Key
documents include the adoption of the Inter-Agency Standing Committee's Plan of
Action in 2002, and the promulgation of the Secretary-General's Bulletin on
Special Measures for Protection from Sexual Exploitation and Sexual Abuse in
2003. In early 2004, a number of specific products have been developed to
assist the field-level implementation of this Bulletin. Finally, a number of
useful trainings exist on this issue, which have been posted on Reliefweb's
training database.
In response to the changed nature of conflict,
including the increased number of non-state armed parties to
conflicts, the need for structured and principled engagement of
humanitarian actors with armed groups has increased markedly over the past ten
years. It is indispensable in today’s conflicts to engage armed groups in a
structured dialogue in order both to promote better respect for international
humanitarian and human rights law and to ensure the provision of protection and
humanitarian assistance to vulnerable populations. PDSB has launched a project,
therefore, to compile a ‘Manual of Field Practices on Humanitarian Negotiations
with Armed Groups’. The objective of the Manual is to enhance the capacity of
UN humanitarian agencies to engage in a principled and consistent manner with
armed groups and to provide humanitarian actors with practical advice in this
regard.
Sanctions are an
important tool in promoting and maintaining international peace and security,
and potentially protecting civilians. During the 1990’s the use of sanctions
for coercive ends increased greatly within the framework of the UN system;
however, their frequent use has also raised questions about their impact on
civilian populations and provoked increased concern for their consequences
with regard to the humanitarian situation in the targeted country or region.
This concern has also become evident in the UN Security Council. The Council
now regularly requests assessment reports on the humanitarian implications of
current and even possible future sanction regimes. Within OCHA, PDSB was
mandated to carry out these kinds of assessments and to draft the relevant
reports of the Secretary-General addressed to the Security Council. Given the
high profile and scrutiny of sanction assessments, a consistent approach is
needed to these studies. As a result, PDSB has developed a standardized
methodology for undertaking humanitarian assessments of potential negative
effects of sanctions on vulnerable populations in advance of, during, or
following the conclusion of sanction regimes.
In the context of complex emergencies, the
transition from humanitarian to development-led response is also critical as
peace is consolidated and the demand for humanitarian programmes increases
(e.g. in Angola, Burundi, Cote d’Ivoire, Sudan). Poorly managed transitions can
jeopardize the peace dividend as well as protract dependency and weaken state
institutions, thereby threatening realization of the Millennium Development
Goals. Transition has been a constant and evolving feature of the international
agenda since 1991. The 1996 report on humanitarian coordination to the UN Economic and Social Council
(ECOSOC) explained that relief and development activities often proceed at the
same time, each having an impact upon the other. By the late 1990’s the debate
had shifted. The main concerns expressed in ECOSOC and other fora were the need
to avoid funding gaps that occur as development starts to re-engage, and the
need to forge stronger linkages between relief and development activities.
Despite concerted efforts, the funding gap remains and linkages continue to be
elusive. In transition, food aid and other life-saving interventions are
comparatively better funded, while other sectors that may also provide a key
bridge between relief and development, such as water, health, sanitation,
agriculture, education, the rule of law and good governance, remain chronically
under-funded. In addition, the most recent transition contexts such as Angola
and Sierra Leone suggest that successful transition entails much more than the
creation of linkages; it requires a coherent strategy for restoring stability
and normalcy. The UN is currently engaged in an inter-agency effort, to improve
the coherence and effectiveness of its strategies and response to transition
situations in light of these lessons.
As part of its core functions, OCHA also drafts
annual reports on various humanitarian issues to the General Assembly and the Economic and
Social Council, on behalf of the Secretary-General. The reports are
divided into thematic and country specific areas. The thematic reports
deal with humanitarian assistance in the context of natural disasters and
complex humanitarian emergencies. OCHA’s principle thematic/policy report
on strengthening the coordination of emergency humanitarian assistance of the
United Nations is presented to the GA through the Humanitarian Affairs Segment
of ECOSOC. This report is provided pursuant to General Assembly Resolution 46/182,
which established this Office. All reports presented by OCHA to the GA
and ECOSOC are considered by Member States, who negotiate and adopt resolutions
that are intended to provide guidance to the UN system’s humanitarian
activities. OCHA also provides Member States with substantive
support to facilitate their negotiations processes.
SOUTH-WEST AFRICA CASES
(PRELIMINARY OBJECTIONS)
(PRELIMINARY OBJECTIONS)
Judgment of 21 December 1962
The South West Africa cases
(Ethiopia v. South Africa Liberia v. South Africa), which relate
to the continued existence of the Mandate for South West Africa and the duties
and performance of South Africa as Mandatory thereunder, were instituted
by Applications of the Governments of Ethiopia and Liberia filed in the
Registry on 4 November 1960. The Government of South Africa raised preliminary
objections to the jurisdiction of the Court to hear the cases.
By eight votes to seven the
Court found that it had jurisdiction to adjudicate upon the merits of the
dispute.
Judges Bustamante y Rivero and
Jessup and Judge ad hoc Sir Louis Mbanefo appended Separate Opinions.
President Winiarski and Judge
Basdevant appended Dissenting Opinions; Judges Sir Percy Spender and Sir Gerald
Fitzmaurice appended a Joint Dissenting Opinion; Judge Morelli and Judge ad
hoc van Wyk appended Dissenting Opinions.
Judge Spiropoulos appended a
Declaration of his dissent.
*
* *
In its Judgment, the Court noted
that to found the jurisdiction of the Court, the Applicants, having regard to
Article 80, paragraph 1, of the Charter of the United Nations, relied on
Article 7 of the Mandate of 17 December 1920 for South West Africa and Article
37 of the Statute of the Court.
Before undertaking an
examination of the Preliminary Objections raised by South Africa, the Court
found it necessary to decide a preliminary question relating to the existence
of the dispute which is the subject of the Applications. On this point it found
that it was not sufficient for one party to a contentious case to assert that a
dispute existed with the other party. It must be shown that the claim of one
party was positively opposed by the other. Tested by this criterion, there
could be no doubt about the existence of a dispute between the parties before
the Court, since it was clearly constituted by their opposing attitudes
relating to the performance of the obligations of the Mandate by the Respondent
as Mandatory.
*
* *
The Court then briefly recalled
the origin, nature and characteristics of the Mandates System established by
the Covenant of the League of Nations. The essential principles of this system
consisted chiefly in the recognition of certain rights of the peoples of the
underdeveloped territories; the establishment of a regime of tutelage for each
of such peoples to be exercised by an advanced nation as a
"Mandatory" "on behalf of the League of Nations"; and the
recognition of "a sacred trust of civilisation" laid upon the League
as an organized international community and upon its Members. The rights of the
Mandatory in relation to the mandated territory and the inhabitants had their
foundation in the obligations of the Mandatory and were, so to speak, mere
tools given to enable it to fulfil its obligations.
The first of the Respondent's
preliminary objections maintained that the Mandate for South West Africa had
never been, or at any rate was since the dissolution of the League of Nations
no longer, a treaty or convention in force within the meaning of Article 37 of
the Statute of the Court. In presenting this preliminary objection in this
form, the Respondent stated that it had always considered or assumed that the
Mandate for South West Africa had been a "treaty or convention in itself,
that is, an international agreement between the Mandatory on the one hand, and,
on the other, the Council representing the League and/or its Members" but
"that the alternative view might well be taken that in defining the terms
of the Mandate, the Council was taking executive action in pursuance of the
Covenant (which of course was a convention) and was not entering into an
agreement which would itself be a treaty or convention". At the same time
the Respondent added "this view . . . would regard the Council's
Declaration as setting forth a resolution . . . which would, like any other
valid resolution of the Council, owe its legal force to the fact of having been
duly resolved by the Council in the exercise of powers conferred upon it by the
Covenant". In the Court's opinion, this view was not well-founded. While
the Mandate for South West Africa took the form of a resolution, it was
obviously of a different character. It could not be regarded as embodying only
an executive action in pursuance of the Covenant. In fact and in law it was an
international agreement having the character of a treaty or convention.
It had been argued that the
Mandate in question had not been registered in accordance with Article 18 of
the Covenant, which provided: "No such treaty or international engagement
shall be binding until so registered". If the Mandate had been ab
initio null and void on the ground of non-registration, it would follow
that the Respondent had not and had never had a legal title for its
administration of the territory of South West Africa, it would therefore be
impossible for it to maintain that it had had such a title up to the discovery
of this ground of nullity. Article 18, designed to secure publicity and avoid
secret treaties, could not apply in the same way in respect to treaties to
which the League of Nations was one of the parties as in respect of treaties
concluded among individual Member States.
Since the Mandate in question
had had the character of a treaty or convention at its start, the next relevant
question to be considered was whether, as such, it was still in force either as
a whole including Article 7, or with respect to Article 7 itself. The
Respondent contended that it was not in force, and this contention constituted
the essence of the first preliminary objection. It was argued that the rights
and obligations under the Mandate in relation to the administration of the
territory being of an objective character still existed, while those rights and
obligations relating to administrative supervision by the League and submission
to the Permanent Court of International Justice, being of a contractual
character, had necessarily become extinct on the dissolution of the League of
Nations. The Respondent further argued that the casualties arising from the
demise of the League of Nations included Article 7 of the Mandate by which the
Respondent had agreed to submit to the jurisdiction of the Permanent Court of
International Justice in any dispute whatever between it as Mandatory and
another Member of the League of Nations relating to the interpretation or the
application of the Mandate.
On this point the Court,
recalling the Advisory Opinion which it had given in 1950 concerning the International
Status of South West Africa, stated that its findings on the obligation of
the Union Government to submit to international supervision were crystal clear.
To exclude the obligations connected with the Mandate would be to exclude the
very essence of the Mandate. The Court also recalled that while it had been
divided in 1950 on other points, it had been unanimous on the finding that Article
7 of the Mandate relating to the obligation of the Union of South Africa to
submit to the compulsory jurisdiction of the Court was still "in
force". Nothing had since occurred which would warrant the Court
reconsidering its conclusions. All important facts had been stated or referred
to in the proceedings in 1950.
The Court found that though the
League of Nations and the Permanent Court of International Justice had both
ceased to exist, the obligation of the Respondent to submit to compulsory
jurisdiction had been effectively transferred to the present Court before the
dissolution of the League of Nations. The League had ceased to exist from April
1946; the Charter of the United Nations had entered into force in October 1945;
the three parties to the present proceedings had deposited their ratifications
in November 1945 and had become Members of the United Nations from the dates of
those ratifications. They had since been subjected to the obligations, and
entitled to the rights, under the Charter. By the effect of the provisions of
Article 92 and 93 of the Charter and Article 37 of the Statute of the Court,
the Respondent had bound itself, by ratifying the Charter at a time when the
League of Nations and the Permanent Court were still in existence and when therefore
Article 7 of the Mandate was also in full force, to accept the compulsory
jurisdiction of the present Court in lieu of that of the Permanent Court.
This transferred obligation had
been voluntarily assumed by the Respondent when joining the United Nations. The
validity of Article 7, in the Court's view, had not been affected by the
dissolution of the League, just as the Mandate as a whole was still in force
for the reasons stated above.
The second preliminary objection
centred on the term "another Member of the League of Nations" in
Article 7, the second paragraph of which reads "the Mandatory agrees that,
if any dispute whatever should arise between the Mandatory and another
Member of the League of Nations relating to the interpretation or the application
of the provisions of the Mandate, such dispute . . . shall be submitted to
the Permanent Court of International Justice . . ."
It was contended that since all
Member States of the League lost their membership and its accompanying rights
when the League itself ceased to exist on 19 April 1946, there could no longer
be "another Member of the League of Nations" today. According to this
contention, no State had "locus stand)" or was qualified to
invoke the jurisdiction of the Court in any dispute with the Respondent as
Mandatory.
The Court pointed out that
interpretation according to the natural and ordinary meaning of the words
employed was not an absolute rule, and that no reliance could be placed on it
where it resulted in a meaning incompatible with the spirit, purpose and
context of the provision to be interpreted.
Judicial protection of the
sacred trust in each Mandate was an essential feature of the Mandates System.
The administrative supervision by the League constituted a normal security to
ensure full performance by the Mandatory of the "sacred trust" toward
the inhabitants of the territory, but the specially assigned role of the Court
was even more essential, since it was to serve as the final bulwark of
protection by recourse to the Court against possible abuse or breaches of the
Mandate.
Under the unanimity rule
(Articles 4 and 5 of the Covenant), the Council could not impose its own view
on the Mandatory. If the Mandatory continued to turn a deaf ear to the
Council's admonitions, the only course left to defend the interests of the
inhabitants in order to protect the sacred trust would be to obtain an
adjudication by the Court on the matter connected with the interpretation or
the application of the Mandate. But neither the Council nor the League was
entitled to appear before the Court; the only effective recourse would be for a
Member or Members of the League to invoke Article 7 and bring the dispute as
one between them and the Mandatory to the Permanent Court for adjudication. It
was for this all-important purpose that the provision had been couched in broad
terms. It was thus seen what an essential part Article 7 had been intended to
play as one of the securities in the Mandates System for the observance of the
obligations by the Mandatory.
In the second place, besides the
essentiality of judicial protection for the sacred trust and for the rights of
Member States under the Mandate, and the lack of capacity on the part of the
League or the Council to invoke such protection, the right to implead the
Mandatory Power before the Permanent Court had been specially and expressly
conferred on the Members of the League, evidently also because it was the most
reliable procedure of ensuring protection by the Court.
The third reason for concluding
that Article 7, with particular reference to the term "another Member of
the League of Nations", continued to be applicable, was that obviously an
agreement had been reached among all the Members of the League of Nations at
the session in April 1946 to continue the different Mandates as far as it was
practically feasible with reference to the obligations of the Mandatory Powers
and therefore to maintain the rights of the Members of the League,
notwithstanding the dissolution of the League itself. This agreement was evidenced
not only by the contents of the League dissolution resolution of 18 April 1946
but also by the discussions relating to the question of Mandates in the First
Committee of the Assembly and the whole set of surrounding circumstances. Those
States which had been Members of the League at the time of its dissolution
continued to have the right to invoke the compulsory jurisdiction of the Court
as before the dissolution of the League, and that right continued to exist for
as long as the Respondent held on to the right to administer the territory
under the Mandate.
During the prolonged discussions
which had been held both in the Assembly and in its First Committee the
delegates of the Mandatory Powers present solemnly expressed their intention to
continue to administer the territories entrusted to them in accordance with the
general principles of the existing Mandates. In particular the delegate of
South Africa, on 9 April 1946, stated " . . . the Union will continue
to administer the territory scrupulously in accordance with the obligations of
the Mandate . . . The disappearance of those organs of the League
concerned with the supervision of mandates . . . will necessarily preclude
complete compliance with the letter of the Mandate. The Union Government will
nevertheless regard the dissolution of the League as in no way diminishing its
obligations under the Mandate . . .". There could have been no
clearer recognition on the part of the Government of South Africa of the
continuance of its obligations under the Mandate for South West Africa,
including Article 7, after the dissolution of the League of Nations.
It was clear from the foregoing
that there had been a unanimous agreement among all the Member States present
at the Assembly meeting that the Mandates should be continued to be exercised
in accordance with the obligations therein defined. Manifestly, this
continuance of obligations under the Mandate could not have begun to operate
until the day after the dissolution of the League of Nations; hence the literal
objections derived from the words "another Member of the League of
Nations" were not meaningful, since the resolution of 18 April 1946 had
been adopted precisely with a view to averting them and continuing the Mandate
as a treaty between the Mandatory and the Members of the League of Nations.
In conclusion, any interpretation of the term
"another Member of the League of Nations" must take into
consideration all of the relevant facts and circumstances relating to the act
of dissolution of the League, in order to ascertain the true intent and
purposes of the Members of the Assembly in adopting the final resolution of 18
April 1946.
To deny the existence of the
agreement it had been said that Article 7 was not an essential provision of the
Mandate instrument for the protection of the sacred trust of civilisation. No
comparable clause had been inserted in the Trusteeship Agreements for the
territories previously held under three of the four "C" Mandates.
For the reasons stated above,
the Court dismissed the first and second objections.
The third objection consisted
essentially of the proposition that the dispute brought before the Court was
not a dispute as envisaged in Article 7 of the Mandate. The Court recalled that
Article 7 referred to "any dispute whatever" arising between the
Mandatory and another Member of the League of Nations. The language used was
broad, clear and precise and referred to any dispute whatever relating to all
or any of the provisions of the Mandate, whether they related to substantive
obligations of the Mandatory toward the inhabitants of the territory or toward
the other Members of the League, or to its obligations to submit to supervision
by the League or to protection under Article 7. The scope and purport of these
provisions indicated that the Members of the League were understood to have a
legal right or interest in the observance by the Mandatory of its obligations
both toward the inhabitants and toward the League of Nations and its Members.
While Article 6 of the Mandate provided for administrative supervision by the
League, Article 7 in effect provided, with the express agreement of the
Mandatory, for judicial protection by the Permanent Court. Protection of the
material interests of the Members was of course included within its compass,
but the well-being and development of the inhabitants were not less important.
The Court concluded that the
present dispute was a dispute as envisaged in Article 7 of the Mandate and that
the third preliminary objection must be dismissed.
The Court next considered the
fourth and last objection, which in essence consisted of the proposition that
if a dispute existed within the meaning of Article 7, it was not one which
could not be settled by negotiation with the Applicants and that there had been
no such negotiations with a view to its settlement.
In the Court's view, the fact
that a deadlock had been reached in the collective negotiations in the past,
and the fact that both the written pleadings and oral arguments of the Parties
had clearly confirmed the continuance of this deadlock, compelled a conclusion
that no reasonable probability existed that further negotiations would lead to
a settlement. The Respondent having contended that no direct negotiations
between it and the Applicants had ever been undertaken, the Court found that
what mattered was not so much the form of negotiation as the attitude and views
of the Parties on the substantive issues of the question involved.
Moreover, where the disputed
questions were of common interest to a group of States on one side or the other
in an organised body, parliamentary or conference diplomacy had often been
found to be the most practical form of negotiation.
For the reasons stated, the
fourth objection was not well-founded and should also be dismissed.
The Court concluded that Article 7 of the Mandate
was a treaty or convention still in force within the meaning of Article 37 of
the Statute of the Court and that the dispute was one which was envisaged in
Article 7 and could not be settled by negotiation. Consequently the Court was
competent to hear the dispute on the merits.
YEAR 1998
1998
4 December 1998
General List
No. 96
4 December 1998
General List
No. 96
4 December 1998
FISHERIES JURISDICTION CASE
(SPAIN v. CANADA)
(SPAIN v. CANADA)
JURISDICTION OF THE COURT
Subject of the dispute - Role of the
Application with regard to the determination of the questions on which the
Court must adjudicate - Definition of the dispute by the
Court - Specific acts taken by Canada on the basis of certain
enactments and regulations, and legal consequences of those acts.
Jurisdiction of the Court - Question
to be determined by the Court itself - No burden of proof.
Declarations of acceptance of the Court's
compulsory jurisdiction - Conditions and reservations as elements
serving to determine the scope of acceptance of the Court's jurisdiction and
not as derogations from a wider acceptance already
given - Interpretation of the various elements of a declaration as
forming a single whole - Successive declarations - Régime
applicable to the interpretation of declarations as unilateral acts, and that
established for the interpretation of treaties - Interpretation of
the relevant terms of a declaration, including reservations, in a natural and
reasonable manner, due regard being had to the intention of the declarant
State - Ascertaining the intention - Contra proferentem
rule - Effectiveness principle - Legality of the acts
covered by a reservation not relevant for purposes of interpretation of that
reservation - Article 33 of the Charter.
Subparagraph 2 (d) of the Canadian
declaration of 10 May 1994 - Intention at the time of the
subparagraph's adoption - Links between Canada's new declaration and
its new coastal fisheries protection legislation - Parliamentary
debates.
Interpretation of the text of the reservation:
"Disputes arising out
of" - Broad and comprehensive character of the
phrase - Disputes having as their "subject-matter" the
measures referred to in the reservation, "concerning" such measures
or having their "origin" therein.
"Conservation and management
measures" - "Measure" as an act, step or
proceeding - "Measure" of a "legislative"
nature - Relationship between a statute and implementing regulations
within the legislative system of Canada and other
countries - Interpretation of an international instrument in the
light of international law - Distinction between the definition of a
concept and the legality of an act falling within the scope of that concept - "Conservation
and management" measures as measures having as their purpose the
conservation and management of living resources - Characterization by
reference to factual and scientific criteria - Conservation and
management measures in the sense generally accepted in international law and
practice.
"Taken by Canada with respect to vessels
fishing in the NAFO Regulatory Area, as defined in the Convention on Future
Multilateral Co-operation in the Northwest Atlantic Fisheries,
1978" - Area constituting part of the high seas - Meaning
to be attributed to the word "vessels" - "Natural and
reasonable" interpretation of the text - Declarant's
intention - Parliamentary debates.
"And the enforcement of such
measures" - Use of force - Penal sanctions and
enforcement of conservation and management measures - Canadian
legislation and regulations - Restrictions bringing the authorized
use of force within the recognized category of measures of enforcement for
purposes of conservation - Boarding, inspection and seizure of a
fishing vessel, and minimal use of force for these purposes, as elements coming
within the concept of enforcement of conservation and management measures
according to a "natural and reasonable" interpretation of that
concept.
Interpretation of the reservation not prejudging
the legality of the acts covered thereby - No reason to apply
Article 79, paragraph 7, of the Rules in order to declare that
Canada's objection is not of an exclusively preliminary character.
"Automatic reservation" - Court
not deprived of its competence to interpret Canada's
reservation - Court's findings on its jurisdiction resulting from
that interpretation alone.
Mootness - Determination not
necessary in this case.
__________
JUDGMENT
Present: President SCHWEBEL; Vice-President
WEERAMANTRY; Judges ODA, BEDJAOUI, GUILLAUME, RANJEVA, HERCZEGH, SHI,
FLEISCHHAUER, KOROMA, VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOOIJMANS, REZEK;
Judges ad hoc LALONDE, TORRES BERNÁRDEZ; Registrar VALENCIA-OSPINA.
In the fisheries jurisdiction case,
between
the Kingdom of Spain,
represented by
Mr. José Antonio Pastor Ridruejo, Head of
the International Legal Service of the Ministry of Foreign Affairs, Professor
of International Law at the Complutense University of Madrid,
as Agent and Counsel (until 31 October 1998);
Mr. Aurelio Pérez Giralda, Director of the
International Legal Service of the Ministry of Foreign Affairs,
as Agent (from 1 November 1998);
Mr. Pierre-Marie Dupuy, Professor of
International Law at the University Panthéon-Assas (Paris II),
Mr. Keith Highet, Member of the Bars of the
District of Columbia and New York,
Mr. Antonio Remiro Brotóns, Professor of
International Law at the Autonomous University of Madrid,
Mr. Luis Ignacio Sánchez Rodríguez,
Professor of International Law at the Complutense University of Madrid,
as Counsel and Advocates;
Mr. Félix Valdés Valentín-Gamazo,
Minister-Counsellor, Embassy of Spain to the Netherlands,
as Co-Agent;
Mr. Carlos Domínguez Díaz, Embassy
Secretary, Assistant Director-General for International Fisheries Management
Organizations, Ministry of Agriculture and Fisheries,
Mr. Juan José Sanz Aparicio, Embassy
Secretary, Department of International Legal Affairs, Ministry of Foreign
Affairs,
as Advisers,
and
Canada,
represented by
His Excellency Mr. Philippe Kirsch, Q.C.,
Ambassador and Legal Adviser to the Department of Foreign Affairs and
International Trade,
as Agent and Advocate;
Mr. Blair Hankey, Associate General Counsel,
Department of Foreign Affairs and International Trade,
as Deputy Agent and Advocate;
Mr. L. Alan Willis, Q.C., Department of
Justice,
as Senior Counsel and Advocate;
Mr. Prosper Weil, Professor Emeritus,
University of Paris,
as Counsel and Advocate;
Ms Louise de La Fayette, University of
Southampton,
Mr. Paul Fauteux, Department of Foreign
Affairs and International Trade,
Mr. John F. G. Hannaford, Department of
Foreign Affairs and International Trade,
Ms Ruth Ozols Barr, Department of Justice,
Ms Isabelle Poupart, Department of Foreign
Affairs and International Trade,
Ms Laurie Wright, Department of Justice,
as Counsel;
Mr. Malcolm Rowe, Q.C., Government of
Newfoundland and Labrador,
Mr. Earl Wiseman, Department of Fisheries
and Oceans,
as Advisers;
Ms Manon Lamirande, Department of Justice,
Ms Marilyn Langstaff, Department of Foreign
Affairs and International Trade,
Ms Annemarie Manuge, Department of Foreign
Affairs and International Trade,
Mr. Robert McVicar, Department of Foreign
Affairs and International Trade,
Ms Lynn Pettit, Department of Foreign Affairs and
International Trade,
as Administrative Officers,
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 28 March 1995, the Kingdom of
Spain (hereinafter called "Spain") filed in the Registry of the Court
an Application instituting proceedings against Canada in respect of a dispute
relating to the amendment, on 12 May 1994, of the Canadian Coastal
Fisheries Protection Act, and the subsequent amendments to the regulations
implementing that Act, as well as to specific actions taken on the basis of the
amended Act and its regulations, including the pursuit, boarding and seizure on
the high seas, on 9 March 1995, of a fishing vessel - the Estai
- flying the Spanish flag. The Application invoked as the basis of the
jurisdiction of the Court the declarations whereby both States have accepted
its compulsory jurisdiction in accordance with Article 36,
paragraph 2, of its Statute.
2. Pursuant to Article 40, paragraph 2,
of the Statute, the Application was forthwith communicated to the Canadian
Government by the Registrar; and, pursuant to paragraph 3 of that Article,
all States entitled to appear before the Court were notified of the
Application.
3. By letter of 21 April 1995, the
Ambassador of Canada to the Netherlands informed the Court that, in his
Government's opinion, the Court
"manifestly lacks jurisdiction to deal with the
Application filed by Spain . . ., by reason of paragraph 2 (d)
of the Declaration, dated 10 May 1994, whereby Canada accepted the
compulsory jurisdiction of the Court".
4. At a meeting between the President of the
Court and the representatives of the Parties held on 27 April 1995,
pursuant to Article 31 of the Rules of Court, the Agent of Canada
confirmed his Government's position that the Court manifestly lacked
jurisdiction in the case. At the close of the meeting it was agreed that the
question of the jurisdiction of the Court should be separately determined
before any proceedings on the merits; agreement was also reached on time-limits
for the filing of written pleadings on that question.
By Order of 2 May 1995, the President,
taking into account the agreement reached between the Parties, decided that the
written proceedings should first be addressed to the question of the
jurisdiction of the Court to entertain the dispute and fixed 29 September 1995
and 29 February 1996, respectively, as the time-limits for the filing
of a Memorial by Spain and a Counter-Memorial by Canada on that question.
The Memorial and the Counter-Memorial were duly
filed within the time-limits so prescribed.
5. Since the Court included upon the Bench
no judge of the nationality of the Parties, each of them availed itself of the
right conferred by Article 31, paragraph 3, of the Statute to proceed
to choose a judge ad hoc to sit in the case: Spain chose
Mr. Santiago Torres Bernárdez, and Canada Mr. Marc Lalonde.
6. At a meeting held between the President of the
Court and the Agents of the Parties on 17 April 1996, pursuant to
Article 31 of the Rules of Court, the Agent of Spain expressed the wish of
his Government to be authorized to submit a Reply and the Agent of Canada
stated that his Government was opposed thereto. Each of the Parties
subsequently confirmed its views on the matter in writing, Canada in letters
from its Agent dated 22 April and 3 May 1996, and Spain in
letters from its Agent dated 25 April and 7 May 1996.
By Order of 8 May 1996, the Court
decided that it was sufficiently informed, at that stage, of the contentions of
fact and law on which the Parties relied with respect to its jurisdiction in
the case, and that the presentation, by them, of further written pleadings on
that question therefore did not appear necessary. The case was consequently
ready for hearing with regard to the question of the jurisdiction of the Court.
7. By letter of 8 June 1998, the Agent
of Spain, referring to Article 56, paragraph 4, of the Rules of
Court, submitted to the Court five official Canadian documents which had been
published but not previously produced. A copy thereof was communicated to the
Agent of Canada, who, by letter of 9 June 1998, stated that, in his
Government's opinion, the provision referred to by Spain afforded the
possibility of making reference in oral arguments to documents which were part
of readily available publications, but did not contemplate their production,
adding that despite the late date of submission of the documents in question
Canada would not object to their production, in order to avoid delaying the
work of the Court.
8. In accordance with Article 53,
paragraph 2, of the Rules of Court, the Court, after ascertaining the
views of the Parties, decided that copies of the pleadings and documents
annexed should be made accessible to the public on the opening of the oral
proceedings.
9. Public sittings were held between 9 and
17 June 1998, during which pleadings and replies were heard from the
following:
For Spain: Mr. José Antonio Pastor
Ridruejo,
Mr. Luis Ignacio Sánchez Rodríguez,
Mr. Antonio Remiro Brotóns,
Mr. Keith Highet,
Mr. Pierre-Marie Dupuy.
Mr. Antonio Remiro Brotóns,
Mr. Keith Highet,
Mr. Pierre-Marie Dupuy.
For Canada: H.E. Mr. Philippe Kirsch,
Mr. Blair Hankey,
Mr. L. Alan Willis,
Mr. Prosper Weil.
*
10. In the Application, the following requests
were made by Spain:
"As for the precise nature of the complaint, the
Kingdom of Spain requests:
(A) that the Court declare that the legislation of
Canada, in so far as it claims to exercise a jurisdiction over ships flying a
foreign flag on the high seas, outside the exclusive economic zone of Canada,
is not opposable to the Kingdom of Spain;
(B) that the Court adjudge and declare that Canada is
bound to refrain from any repetition of the acts complained of, and to offer to
the Kingdom of Spain the reparation that is due, in the form of an indemnity
the amount of which must cover all the damages and injuries occasioned; and
(C) that, consequently, the Court declare also that
the boarding on the high seas, on 9 March 1995, of the ship Estai
flying the flag of Spain and the measures of coercion and the exercise of
jurisdiction over that ship and over its captain constitute a concrete
violation of the aforementioned principles and norms of international
law."
11. In the written pleadings, the following
submissions were presented by the Parties:
On behalf of the Spanish Government,
in the Memorial:
"The Kingdom of Spain requests the Court to
adjudge and declare that, regardless of any argument to the contrary, its
Application is admissible and that the Court has, and must exercise,
jurisdiction in this case."
On behalf of the Canadian Government,
in the Counter-Memorial:
"May it please the Court to adjudge and
declare that the Court has no jurisdiction to adjudicate upon the Application
filed by Spain on 28 March 1995."
12. In the oral proceedings, the following
submissions were presented by the Parties:
On behalf of the Spanish Government,
at the sitting of 15 June 1998:
"At the end of our oral arguments, we again note
that Canada has abandoned its allegation that the dispute between itself and
Spain has become moot. At least, it appears to have understood that it cannot
be asserted that the Spanish Application, having no further purpose for the
future, merely amounted to a request for a declaratory judgment. Nor does it
say - a fact of which we take note - that the agreement
between the European Union and Canada has extinguished the present dispute.
Spain's final submissions are therefore as follows:
We noted at the outset that the subject-matter of the
dispute is Canada's lack of title to act on the high seas against vessels
flying the Spanish flag, the fact that Canadian fisheries legislation cannot be
invoked against Spain, and reparation for the wrongful acts perpetrated against
Spanish vessels. These matters are not included in Canada's reservation to the
jurisdiction of the Court.
We also noted that Canada cannot claim to subordinate
the Application of its reservation to the sole criterion of its national
legislation and its own appraisal without disregarding your competence, under
Article 36, paragraph 6, of the Statute, to determine your own
jurisdiction.
Lastly, we noted that the use of force in arresting
the Estai and in harassing other Spanish vessels on the high seas, as
well as the use of force contemplated in Canadian Bills C-29 and C-8, can also
not be included in the Canadian reservation, because it contravenes the
provisions of the Charter.
For all the above reasons, we ask the Court to adjudge
and declare that it has jurisdiction in this case."
On behalf of the Canadian Government,
at the sitting of 17 June 1998:
"May it please the Court to adjudge and
declare that the Court has no jurisdiction to adjudicate upon the Application
filed by Spain on 28 March 1995."
*
* *
13. The Court will begin with an account of
the background to the case.
14. On 10 May 1994 Canada
deposited with the Secretary-General of the United Nations a declaration of
acceptance of the compulsory jurisdiction of the Court which was worded as
follows:
"On behalf of the Government of Canada,
(1) I give notice that I hereby terminate the
acceptance by Canada of the compulsory jurisdiction of the International Court
of Justice hitherto effective by virtue of the declaration made on
10 September 1985 in conformity with paragraph 2 of
Article 36 of the Statute of the Court.
(2) I declare that the Government of Canada accepts as
compulsory ipso facto and without special convention, on condition of
reciprocity, the jurisdiction of the International Court of Justice, in
conformity with paragraph 2 of Article 36 of the Statute of the
Court, until such time as notice may be given to terminate the acceptance, over
all disputes arising after the present declaration with regard to situations or
facts subsequent to this declaration, other than:
(a) disputes in regard to which the parties
have agreed or shall agree to have recourse to some other method of peaceful
settlement;
(b) disputes with the Government of any other
country which is a member of the Commonwealth, all of which disputes shall be
settled in such manner as the parties have agreed or shall agree;
(c) disputes with regard to questions which by
international law fall exclusively within the jurisdiction of Canada; and
(d) disputes arising out of or concerning
conservation and management measures taken by Canada with respect to vessels
fishing in the NAFO Regulatory Area, as defined in the Convention on Future
Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the
enforcement of such measures.
(3) The Government of Canada also reserves the right
at any time, by means of a notification addressed to the Secretary-General of
the United Nations, and with effect as from the moment of such notification,
either to add to, amend or withdraw any of the foregoing reservations, or any
that may hereafter be added.
It is requested that this notification be communicated
to the Governments of all the States that have accepted the Optional Clause and
to the Registrar of the International Court of Justice."
The three reservations set forth in
subparagraphs (a), (b) and (c) of paragraph 2 of the
above-mentioned declaration had already been included in Canada's prior
declaration of 10 September 1985. Subparagraph (d) of the
1994 declaration, however, set out a new, fourth reservation, further excluding
from the jurisdiction of the Court
"(d) disputes arising out of or concerning
conservation and management measures taken by Canada with respect to vessels
fishing in the NAFO Regulatory Area, as defined in the Convention on Future
Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the
enforcement of such measures."
15. On the same day that the Canadian
Government deposited its new declaration, it submitted to Parliament Bill C-29
amending the Coastal Fisheries Protection Act by extending its area of
application to include the Regulatory Area of the Northwest Atlantic Fisheries
Organization (NAFO). Bill C-29 was adopted by Parliament, and received the
Royal Assent on 12 May 1994.
Section 2 of the Coastal Fisheries
Protection Act as amended defined the "NAFO Regulatory Area" as
"that part of the Convention Area of the Northwest Atlantic Fisheries
Organization that is on the high seas . . .".
The new Section 5.1 of the Act contained the
following declaration:
"5.1 Parliament, recognizing
(a) that straddling stocks on the Grand Banks
of Newfoundland are a major renewable world food source having provided a
livelihood for centuries to fishers,
(b) that those stocks are threatened with
extinction,
(c) that there is an urgent need for all
fishing vessels to comply in both Canadian fisheries waters and the NAFO
Regulatory Area with sound conservation and management measures for those
stocks, notably those measures that are taken
under the Convention on Future Multilateral
Co-operation in the Northwest Atlantic Fisheries, done at Ottawa on
October 24, 1978, Canada Treaty Series 1979 No. 11, and
(d) that some foreign fishing vessels continue
to fish for those stocks in the NAFO Regulatory Area in a manner that
undermines the effectiveness of sound conservation and management measures,
declares that the purpose of section 5.2. is to enable
Canada to take urgent action necessary to prevent further destruction of those
stocks and to permit their rebuilding, while continuing to seek effective
international solutions to the situation referred to in paragraph (d)."
The new Section 5.2 read as follows:
"5.2 No person, being aboard a foreign
fishing vessel of a prescribed class, shall, in the NAFO Regulatory Area, fish
or prepare to fish for a straddling stock in contravention of any of the
prescribed conservation and management measures."
Sections 7 ("Boarding by protection
officer"), 7.1 ("Search") and 8.1 ("Use of
force") of the Act as amended dealt with the activities of Canadian
fisheries protection officers within the NAFO Regulatory Area. These sections
read as follows:
"7. A protection officer may
(a) for the purpose of ensuring compliance
with this Act and the regulations, board and inspect any fishing vessel found
within Canadian fisheries waters or the NAFO Regulatory Area; and
(b) with a warrant issued under
section 7.1, search any fishing vessel found within Canadian fisheries waters
or the NAFO Regulatory Area and its cargo.
"7.1. (1) A justice of the peace who on ex
parte application is satisfied by information on oath that there are
reasonable grounds to believe that there is in any place, including any
premises, vessel or vehicle, any fish or other thing that was obtained by or
used in, or that will afford evidence in respect of, a contravention of this
Act or the regulations, may issue a warrant authorizing the protection officer
named in the warrant to enter and search the place for the fish or other thing
subject to any conditions that may be specified in the warrant.
(2) A protection officer may exercise the powers
referred to in paragraph 7 (b) without a warrant if the
conditions for obtaining a warrant exist but, by reason of exigent
circumstances, it would not be practical to obtain a warrant."
"8.1. A protection officer may, in the
manner and to the extent prescribed by the regulations, use force that is
intended or is likely to disable a foreign fishing vessel, if the protection
officer
(a) is proceeding lawfully to arrest the
master or other person in command of the vessel; and
(b) believes on reasonable grounds that the
force is necessary for the purpose of arresting that master or other
person."
Finally, the new Section 18.1, which was
concerned with the application of criminal law, stated:
"An act or omission that would be an offence
under an Act of Parliament if it occurred in Canada is deemed to have been
committed in Canada if it occurs, in the course of enforcing this Act,
(a) in the NAFO Regulatory Area on board or by
means of a foreign fishing vessel on board or by means of which a contravention
of section 5.2 has been committed; or
(b) in the course of continuing pursuit that
commenced while a foreign fishing vessel was in Canadian fisheries waters or
the NAFO Regulatory Area."
16. On 12 May 1994, following the
adoption of Bill C-8, Canada also amended Section 25 of its Criminal
Code relating to the use of force by police officers and other peace officers
enforcing the law. This Section applied as well to fisheries protection
officers, since their duties incidentally included those of peace officers.
17. On 25 May 1994 the Coastal
Fisheries Protection Regulations were also amended.
The new Sections 19.3 to 19.5 regulated
"the use of force" by Canadian fisheries protection officers pursuant
to Section 8.1 of the amended Act.
The new subsection 2 of Section 21 of
the Regulations provided as follows:
"(2) For the purposes of section 5.2 of
the Act,
(a) straddling stocks are,
(i) in Division 3L, Division 3N and Division 3O, the
stocks of fish set out in Table I to this section, and
(ii) in Division 3M, the stocks of fish set out in
Table II to this section;
(b) vessels without nationality and foreign
fishing vessels that fly the flag of any state set out in Table III to
this section are prescribed classes of vessels; and
(c) a prohibition against fishing for
straddling stocks, preparing to fish for straddling stocks or catching and
retaining straddling stocks is a prescribed conservation and management
measure."
The "straddling stocks" referred to in
"Table I" included the "Greenland halibut" (also
called in French "flétan noir"). This was the only stock mentioned in
"Table II". "Table III" specified Belize, the
Cayman Islands, Honduras, Panama, Saint Vincent and the Grenadines and
Sierra Leone.
18. These Regulations were further amended
on 3 March 1995.
In their amended version, paragraphs (b)
to (d) of Section 21 (2) read as follows:
"(b) the following classes of foreign
fishing vessels are prescribed classes namely
(i) foreign fishing vessels without nationality,
(ii) foreign fishing vessels that fly the flag of any
state set out in Table III to this section, and
(iii) foreign fishing vessels that fly the flag of any
state set out in Table IV to this section;
(c) in respect of a foreign fishing vessel of a
class prescribed by subparagraph (b) (i) or (ii), prohibitions
against fishing for the straddling stocks set out in Table I or II to this
section, preparing to fish for those straddling stocks and catching and
retaining those straddling stocks are prescribed conservation and management
measures; and
(d) in respect of a foreign fishing vessel of a
class prescribed by subparagraph (b) (iii), the measures set
out in Table V to this section are prescribed conservation and management
measures".
"Table IV" referred to Spain
and Portugal. "Table V", which was headed "Prescribed
Conservation and Management Measures", began by laying down the following
prohibitions:
"1. Prohibitions against fishing for, or
catching and retaining, Greenland halibut in Division 3L,
Division 3M, Division 3N or Division 3O during the period
commencing on March 3 and terminating on December 31 in any
year."
19. On 9 March 1995, the Estai,
a fishing vessel flying the Spanish flag and manned by a Spanish crew, was
intercepted and boarded some 245 miles from the Canadian coast, in
Division 3L of the NAFO Regulatory Area (Grand Banks area), by Canadian
Government vessels. The vessel was seized and its master arrested on charges of
violations of the Coastal Fisheries Protection Act and its implementing
regulations. They were brought to the Canadian port of St. John's,
Newfoundland, where they were charged with
offences under the above legislation, and in particular illegal fishing for
Greenland halibut; part of the ship's catch was confiscated. The members of the
crew were released immediately. The master was released on
12 March 1995, following the payment of bail, and the vessel on 15 March 1995,
following the posting of a bond.
20. The same day that the Estai was
boarded, the Spanish Embassy in Canada sent two Notes Verbales to the
Canadian Department of Foreign Affairs and International Trade. The second of
these stated inter alia that: "the Spanish Government categorically
condemn[ed] the pursuit and harassment of a Spanish vessel by vessels of the
Canadian navy, in flagrant violation of the international law in force, since
these acts [took] place outside the 200-mile zone". On 10 March 1995,
the Spanish Ministry of Foreign Affairs sent a Note Verbale to the Canadian
Embassy in Spain which contained the following passage:
"In carrying out the said boarding operation, the
Canadian authorities breached the universally accepted norm of customary international
law codified in Article 92 and articles to the same effect of the 1982
Convention of the Law of the Sea, according to which ships on the high seas
shall be subject to the exclusive jurisdiction of the flag
State . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Spanish Government considers that the wrongful act
committed by ships of the Canadian navy can in no way be justified by presumed
concern to conserve fisheries in the area, since it violates the established
provisions of the NAFO Convention to which Canada is a party."
In its turn, on 10 March 1995 the
Canadian Department of Foreign Affairs and International Trade sent a Note
Verbale to the Spanish Embassy in Canada, in which it was stated that
"[t]he Estai resisted the efforts to board her made by Canadian
inspectors in accordance with international practice" and that "the
arrest of the Estai was necessary in order to put a stop to the
overfishing of Greenland halibut by Spanish fishermen".
Also on 10 March 1995, the European
Community and its member States sent a Note Verbale to the Canadian Department
of Foreign Affairs and International Trade which included the following:
"The arrest of a vessel in international waters
by a State other than the State of which the vessel is flying the flag and
under whose jurisdiction it falls, is an illegal act under both the NAFO
Convention and customary international law, and cannot be justified by any
means. With this action Canada is not only flagrantly violating international
law, but is failing to observe normal behaviour of responsible States.
This act is particularly unacceptable since it
undermines all the efforts of the international community, notably in the
framework of the FAO and the United Nations Conference on Straddling Fish
Stocks and Highly Migratory Fish Stocks, to achieve effective conservation
through enhanced cooperation in the management of fisheries resources.
This serious breach of international law goes far
beyond the question of fisheries conservation. The arrest is a lawless act
against the sovereignty of a Member State of the European Community.
Furthermore, the behaviour of the Canadian vessels has clearly endangered the
lives of the crew and the safety of the Spanish vessel concerned.
The European Community and its Member States demand
that Canada immediately release the vessel, repair any damages caused, cease
and desist from its harassment of vessels flying the flag of Community Member
States and immediately repeal the legislation under which it claims to take
such unilateral action."
21. On 16 April 1995, an
"Agreement constituted in the form of an Agreed Minute, an Exchange of
Letters, an Exchange of Notes and the Annexes thereto between the European
Community and Canada on fisheries in the context of the NAFO Convention"
was initialled; this Agreement was signed in Brussels on
20 April 1995.
In Part A ("Control and Enforcement")
of the Agreed Minute, the Community and Canada agreed on proposals which would
"constitute the basis for a submission to be jointly prepared and made to
the NAFO Fisheries Commission, for its consideration and approval, to establish
a Protocol to strengthen the NAFO Conservation and Enforcement Measures";
at the same time the parties decided to implement immediately, on a provisional
basis, certain control and enforcement measures. In Part B ("Total
Allowable Catch and Catch Limits"), they agreed on the total allowable
catch for 1995 for Greenland halibut within the area concerned, and to certain
management arrangements for stocks of this fish. In Part C ("Other
Related Issues") Canada undertook to
"repeal the provisions of the Regulation of
3 March 1995 pursuant to the Coastal Fisheries Protection Act which
subjected vessels from Spain and Portugal to certain provisions of the Act and
prohibited these vessels from fishing for Greenland halibut in the NAFO
Regulatory Area";
it was further stated that, for the European
Community, "any re-insertion by Canada of vessels from any European Community
member State into legislation which subjects vessels on the high seas to
Canadian jurisdiction" would be considered as a breach of the Agreed
Minute. It was likewise stated in that Part that Canada would regard as a
breach of the Agreed Minute
"any systematic and sustained failure of the
European Community to control its fishing vessels in the NAFO Regulatory Area
which clearly has resulted in violations of a serious nature of NAFO
conservation and enforcement measures".
Point 1 of Part D ("General Provisions")
of the Agreed Minutes provided as follows:
"The European Community and Canada maintain their
respective positions on the conformity of the amendment of
25 May 1994 to Canada's Coastal Fisheries Protection Act, and
subsequent regulations, with customary international law and the NAFO
Convention. Nothing in this Agreed Minute shall prejudice any multilateral
convention to which the European Community and Canada, or any Member State
of the European Community and Canada, are parties, or their ability to
preserve and defend their rights in conformity with international law, and the
views of either Party with respect to any question relating to the Law of the
Sea."
Finally, Part E ("Implementation")
stated that the "Agreed Minute [would] cease to apply on
31 December 1995 or when the measures described in this Agreed Minute
[were] adopted by NAFO, if this [should be] earlier".
The Exchange of Letters noted the agreement of
the parties on two points. It was agreed, on the one hand, that the posting of a
bond for the release of the vessel Estai and the payment of bail for the
release of its master
"[could] not be interpreted as meaning that the
European Community or its Member States recognize[d] the legality of the arrest
or the jurisdiction of Canada beyond the Canadian 200-mile zone against fishing
vessels flying the flag of another State"
and, on the other hand, that
"the Attorney-General of Canada [would] consider
the public interest in his decision on staying the prosecution against the
vessel Estai and its master; in such case, the bond, bail and catch or
its proceeds [would] be returned to the master".
The European Community emphasized that the stay
of prosecution was essential for the application of the Agreed Minute.
22. On 18 April 1995 the proceedings
against the Estai and its master were discontinued by order of the
Attorney-General of Canada; on 19 April 1995 the bond was discharged
and the bail was repaid with interest; and subsequently the confiscated portion
of the catch was returned. On 1 May 1995 the Coastal Fisheries
Protection Regulations were amended so as to remove Spain and Portugal from
Table IV to Section 21. Finally, the Proposal for Improving Fisheries
Control and Enforcement, contained in the Agreement of 20 April 1995,
was adopted by NAFO at its annual meeting held in September 1995 and
became measures binding on all Contracting Parties with effect from
29 November 1995.
*
* *
23. Neither of the Parties denies that there
exists a dispute between them. Each Party, however, characterizes the dispute
differently. Spain has characterized the dispute as one relating to Canada's
lack of entitlement to exercise jurisdiction on the high seas, and the
non-opposability of its amended Coastal Fisheries Protection legislation and
regulations to third States, including Spain. Spain further maintains that
Canada, by its conduct, has violated Spain's rights under international law and
that such violation entitles it to reparation. Canada states that the dispute
concerns the adoption of measures for the conservation and management of
fisheries stocks with respect to vessels fishing in the NAFO Regulatory Area
and their enforcement.
24. Spain contends that the purpose of its
Application is not to seise the Court of a dispute concerning fishing on the
high seas or the management and conservation of biological resources in the
NAFO Regulatory Area. Claiming that its exclusive jurisdiction over ships
flying its flag on the high seas has been disregarded and swept aside, it
argues that
"the object of the Spanish Application relates
essentially to Canada's entitlement in general, and in particular in relation
to Spain, to exercise its jurisdiction on the high seas against ships flying
the Spanish flag and their crews, and to enforce that right by a resort to
armed force".
25. Spain maintains that the Agreement of
20 April 1995 between the European Community and Canada on fisheries
in the context of the NAFO Convention (see paragraph 21 above) settled as
between Canada and the Community certain aspects of a dispute provoked by the
unilateral actions of Canada within the area of the high seas subject to
regulation by NAFO (an organization of which both the Community and Canada are
members). Spain also stresses that it co-operated in the conclusion of this
Agreement as a member State of the Community, to which, it states, competence
in respect of fisheries conservation and management has been transferred.
However, according to Spain, its Application is based on a right exclusive to
itself and concerns a dispute whose subject-matter differs from that covered by
the Agreement; this dispute, therefore, is not merely a matter of fisheries
conservation and management.
26. For its part, Canada is of the view
that:
"this case arose out of and concerns conservation
and management measures taken by Canada with respect to Spanish vessels fishing
in the NAFO Regulatory Area and the enforcement of such measures".
Canada contended at the hearing that Spain's
Application constitutes
"a claim in State responsibility on account of
Canada's alleged violation of the international obligations incumbent upon it
under the rules and principles of general international law",
and maintained that a dispute consists of an
indivisible whole comprising facts and rules of law. In its view the Court
cannot have jurisdiction with regard to one of these elements and not have
jurisdiction with regard to the other.
27. Canada, referring to the notes of
protest addressed to it by the European Community and by Spain (see
paragraph 20 above), points out that they contain no trace of any
distinction between a dispute with the European Community and a dispute with
Spain, and that both the protests of the Community and those by the Spanish
authorities "are founded on the dual, inextricably linked grounds of the
fisheries protection legislation and general principles of international
law". Canada argues that this conclusion is confirmed by the Agreement of
20 April 1995 between the European Community and Canada, inasmuch as
"here, too, those questions relating to fisheries and those relating to
State jurisdiction, legal entitlement and respect for the rights of the flag
State are closely interlinked".
28. Spain insists that it is free, as the
Applicant in this case, to characterize the dispute that it wishes the Court to
resolve.
*
29. There is no doubt that it is for the
Applicant, in its Application, to present to the Court the dispute with which
it wishes to seise the Court and to set out the claims which it is submitting
to it.
Paragraph 1 of Article 40 of the
Statute of the Court requires moreover that the "subject of the
dispute" be indicated in the Application; and, for its part,
paragraph 2 of Article 38 of the Rules of Court requires "the
precise nature of the claim" to be specified in the Application. In a
number of instances in the past the Court has had occasion to refer to these
provisions. It has characterized them as "essential from the point of view
of legal security and the good administration of justice" and, on this
basis, has held inadmissible new claims, formulated during the course of
proceedings, which, if they had been entertained, would have transformed the
subject of the dispute originally brought before it under the terms of the
Application (Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 266-267;
see also Prince von Pless Administration, Order of
4 February 1933, P.C.I.J., Series A/B, No. 52,
p. 14 and Société Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series
A/B, No. 78, p. 173).
In order to identify its task in any proceedings
instituted by one State against another, the Court must begin by examining the
Application (see Interhandel, Preliminary Objections, Judgment, I.C.J.
Reports 1959, p. 21; Right of Passage over Indian Territory,
Merits, Judgment, I.C.J. Reports 1960, p. 27; Nuclear
Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
p. 260, para. 24). However, it may happen that uncertainties or
disagreements arise with regard to the real subject of the dispute with which
the Court has been seised, or to the exact nature of the claims submitted to
it. In such cases the Court cannot be restricted to a consideration of the
terms of the Application alone nor, more generally, can it regard itself as
bound by the claims of the Applicant.
Even in proceedings instituted by Special
Agreement, the Court has determined for itself, having examined all of the
relevant instruments, what was the subject of the dispute brought before it, in
circumstances where the parties could not agree on how it should be
characterized (see Territorial Dispute (Libyan Arab Jamahiriya/Chad),
Judgment, I.C.J. Reports 1994, pp. 14-15, para. 19 and
p. 28, para. 57).
30. It is for the Court itself, while giving
particular attention to the formulation of the dispute chosen by the Applicant,
to determine on an objective basis the dispute dividing the parties, by
examining the position of both Parties:
"[I]t is the Court's duty to isolate the real
issue in the case and to identify the object of the claim. It has never been
contested that the Court is entitled to interpret the submissions of the
parties, and in fact is bound to do so; this is one of the attributes of its
judicial functions" (Nuclear Tests (New Zealand v. France), Judgment,
I.C.J. Reports 1974, p. 466, para. 30; see also Request
for an Examination of the Situation in Accordance with Paragraph 63 of the
Court's Judgment of 20 December 1974 in the Nuclear Tests (New
Zealand v. France) Case, Order of 22 September 1995, I.C.J. Reports 1995,
p. 304, para. 55.)
The Court's jurisprudence shows that the Court
will not confine itself to the formulation by the Applicant when determining
the subject of the dispute. Thus, in the case concerning the Right of
Passage over Indian Territory, the Court, in order to form a view as to its
jurisdiction, defined the subject of the dispute in the following terms:
"A passage in the Application headed 'Subject of
the Dispute' indicates that subject as being the conflict of views which arose
between the two States when, in 1954, India opposed the exercise of Portugal's
right of passage. If this were the subject of the dispute referred to the
Court, the challenge to the jurisdiction could not be sustained. But it
appeared from the Application itself and it was fully confirmed by the
subsequent proceedings, the Submissions of the Parties and statements made in
the course of the hearings, that the dispute submitted to the Court has a
threefold subject:
(1) The disputed existence of a right of passage in
favour of Portugal;
(2) The alleged failure of India in July 1954 to
comply with its obligations concerning that right of passage;
(3) The redress of the illegal situation flowing from
that failure." (Right of Passage over Indian Territory, Merits, Judgment,
I.C.J. Reports 1960, pp. 33-34.)
31. The Court will itself determine the real
dispute that has been submitted to it (see Maritime Delimitation and
Territorial Questions between Qatar and Bahrain, Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1995, pp. 24-25). It will
base itself not only on the Application and final submissions, but on
diplomatic exchanges, public statements and other pertinent evidence (see
Nuclear Tests (Australia v. France), Judgment,
I.C.J. Reports 1974, pp. 262-263).
32. In so doing, the Court will distinguish
between the dispute itself and arguments used by the parties to sustain their
respective submissions on the dispute:
"The Court has . . . repeatedly
exercised the power to exclude, when necessary, certain contentions or
arguments which were advanced by a party as part of the submissions, but which
were regarded by the Court, not as indications of what the party was asking the
Court to decide, but as reasons advanced why the Court should decide in the
sense contended for by that party." (Nuclear Tests (Australia v.
France), Judgment, I.C.J. Reports 1974, p. 262, para. 29; see
also cases concerning Fisheries, Judgment, I.C.J. Reports 1951,
p. 126; Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953,
p. 52; Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955,
p. 16.)
33. In order to decide on the preliminary
issue of jurisdiction which arises in the present case, the Court will
ascertain the dispute between Spain and Canada, taking account of Spain's
Application, as well as the various written and oral pleadings placed before
the Court by the Parties.
34. The filing of the Application was
occasioned by specific acts of Canada which Spain contends violated its rights
under international law. These acts were carried out on the basis of certain
enactments and regulations adopted by Canada, which Spain regards as contrary
to international law and not opposable to it. It is in that context that the
legislative enactments and regulations of Canada should be considered.
35. The specific acts (see paragraph 34
above) which gave rise to the present dispute are the Canadian activities on
the high seas in relation to the pursuit of the Estai, the means used to
accomplish its arrest and the fact of its arrest, and the detention of the
vessel and arrest of its master, arising from Canada's amended Coastal
Fisheries Protection Act and implementing regulations. The essence of the
dispute between the Parties is whether these acts violated Spain's rights under
international law and require reparation. The Court must now decide whether the
Parties have conferred upon it jurisdiction in respect of that dispute.
* *
36. As Spain sees it, Canada has in
principle accepted the jurisdiction of the Court through its declaration under
Article 36, paragraph 2, of the Statute, and it is for Canada to
show that the reservation contained in paragraph 2 (d) thereto
does exempt the dispute between the Parties from this jurisdiction. Canada, for
its part, asserts that Spain must bear the burden of showing why the clear
words of paragraph 2 (d) do not withhold this matter from the
jurisdiction of the Court.
37. The Court points out that the
establishment or otherwise of jurisdiction is not a matter for the parties but
for the Court itself. Although a party seeking to assert a fact must bear the
burden of proving it (see Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984,
p. 437, para. 101), this has no relevance for the establishment of
the Court's jurisdiction, which is a "question of law to be resolved in
the light of the relevant facts" (Border and Transborder Armed Actions
(Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 1988, p. 76, para. 16).
38. That being so, there is no burden of
proof to be discharged in the matter of jurisdiction. Rather, it is for the
Court to determine from all the facts and taking into account all the arguments
advanced by the Parties, "whether the force of the arguments militating in
favour of jurisdiction is preponderant, and to 'ascertain whether an intention
on the part of the Parties exists to confer jurisdiction upon it'" (Border
and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction
and Admissibility, Judgment, I.C.J. Reports 1988, p. 76,
para. 16; see also Factory at Chorzów, Jurisdiction, Judgment
No. 8, 1927, P.C.I.J. Series A, No. 9, p. 32).
* *
39. As the basis of jurisdiction, Spain
founded its claim solely on the declarations made by the Parties pursuant to
Article 36, paragraph 2, of the Statute. On 21 April 1995 Canada
informed the Court, by letter, that in its view the Court lacked jurisdiction
to entertain the Application because the dispute was within the plain terms of
the reservation in paragraph 2 (d) of the Canadian declaration
of 10 May 1994. This position was elaborated in its Counter-Memorial
of February 1996, and confirmed at the hearings.
40. Spain appears at times to contend that
Canada's reservation is invalid or inoperative by reason of incompatibility
with the Court's Statute, the Charter of the United Nations and with
international law. However, Spain's position mainly appears to be that these
claimed incompatibilities require an interpretation to be given to
paragraph 2 (d) of the declaration different from that
advanced by Canada. In its Memorial at paragraph 39 Spain thus stated:
"Although the Court has hitherto avoided making a
concrete determination on the compatibility or incompatibility, with the
Statute, of the literal content of certain reservations, and on which certain
judges have commented, initiating a major doctrinal debate, the reservation in
paragraph 2 (d) of the Canadian Declaration does not raise any
problems of this kind.
There may be reservations which, owing to their
wording, are incompatible with the Statute, but the Canadian Declaration is not
one of them. On the other hand, what may be incompatible with the Statute is a
certain interpretation of that reservation which Canada now appears to claim to
present as the sole authentic interpretation of its reservation with a view to
evading the jurisdiction of the Court.
There are - or there may be - not
just anti-statutory reservations; there are also anti-statutory
interpretations of certain reservations."
While in the oral argument reference was made by
Spain to "invalidity" and "nullity", and to the reservation
being without effect and applying to "nothing", here again the
emphasis was on the need for an interpretation of the reservation that would be
compatible with international law.
41. Accordingly, the Court concludes that
Spain contends that the interpretation of paragraph 2 (d) of
its declaration sought for by Canada would not only be an anti-statutory
interpretation, but also an anti-Charter interpretation and an anti-general
international law interpretation, and thus should not be accepted. The issue
for the Court is consequently to determine whether the meaning to be accorded
to the Canadian reservation allows the Court to declare that it has
jurisdiction to adjudicate upon the dispute brought before it by Spain's
Application.
* *
42. Spain and Canada have both recognized
that States enjoy a wide liberty in formulating, limiting, modifying and
terminating their declarations of acceptance of the compulsory jurisdiction of
the Court under Article 36, paragraph 2, of the Statute. They equally both
agree that a reservation is an integral part of a declaration accepting
jurisdiction.
43. However, different views were proffered
as to the rules of international law applicable to the interpretation of
reservations to optional declarations made under Article 36, paragraph 2,
of the Statute. In Spain's view, such reservations were not to be interpreted
so as to allow reserving States to undermine the system of compulsory
jurisdiction. Moreover, the principle of effectiveness meant that a reservation
must be interpreted by reference to the object and purpose of the declaration,
which was the acceptance of the compulsory jurisdiction of the Court. Spain did
not accept that it was making the argument that reservations to the compulsory
jurisdiction of the Court should be interpreted restrictively; it explained its
position in this respect in the following terms:
"It is said that Spain argues for the most
restrictive scope permitted of reservations, namely a restrictive
interpretation of them . . . This is not true. Spain supports
the most limited scope permitted in the context of observing of the general
rule of interpretation laid down in Article 31 of the Vienna Convention on
the Law of Treaties."
Spain further contended that the contra
proferentem rule, under which, when a text is ambiguous, it must be
construed against the party who drafted it, applied in particular to unilateral
instruments such as declarations of acceptance of the compulsory jurisdiction
of the Court and the reservations which they contained. Finally, Spain
emphasized that a reservation to the acceptance of the Court's jurisdiction
must be interpreted so as to be in conformity with, rather than contrary to,
the Statute of the Court, the Charter of the United Nations and general
international law.
For its part, Canada emphasized the unilateral
nature of such declarations and reservations and contended that the latter were
to be interpreted in a natural way, in context and with particular regard for
the intention of the reserving State.
44. The Court recalls that the
interpretation of declarations made under Article 36, paragraph 2, of the
Statute, and of any reservations they contain, is directed to establishing
whether mutual consent has been given to the jurisdiction of the Court.
It is for each State, in formulating its
declaration, to decide upon the limits it places upon its acceptance of the
jurisdiction of the Court: "This jurisdiction only exists within the
limits within which it has been accepted" (Phosphates in Morocco,
Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 23). Conditions
or reservations thus do not by their terms derogate from a wider acceptance
already given. Rather, they operate to define the parameters of the State's
acceptance of the compulsory jurisdiction of the Court. There is thus no reason
to interpret them restrictively. All elements in a declaration under Article
36, paragraph 2, of the Statute which, read together, comprise the
acceptance by the declarant State of the Court's jurisdiction, are to be
interpreted as a unity, applying the same legal principles of interpretation
throughout.
45. This is true even when, as in the
present case, the relevant expression of a State's consent to the Court's
jurisdiction, and the limits to that consent, represent a modification of an
earlier expression of consent, given within wider limits. An additional
reservation contained in a new declaration of acceptance of the Court's
jurisdiction, replacing an earlier declaration, is not to be interpreted as a
derogation from a more comprehensive acceptance given in that earlier
declaration; thus, there is no reason to interpret such a reservation restrictively.
Accordingly, it is the declaration in existence that alone constitutes the
unity to be interpreted, with the same rules of interpretation applicable to
all its provisions, including those containing reservations.
46. A declaration of acceptance of the
compulsory jurisdiction of the Court, whether there are specified limits set to
that acceptance or not, is a unilateral act of State sovereignty. At the same
time, it establishes a consensual bond and the potential for a jurisdictional
link with the other States which have made declarations pursuant to
Article 36, paragraph 2, of the Statute, and "makes a standing
offer to the other States party to the Statute which have not yet deposited a
declaration of acceptance" (Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v. Nigeria), Preliminary Objections,
I.C.J. Reports 1998, para. 25). The régime relating to the
interpretation of declarations made under Article 36 of the Statute is not
identical with that established for the interpretation of treaties by the
Vienna Convention on the Law of Treaties (ibid., para. 30). Spain
has suggested in its pleadings that "[t]his does not mean that the legal
rules and the art of interpreting declarations (and reservations) do not
coincide with those governing the interpretation of treaties". The Court
observes that the provisions of that Convention may only apply analogously to
the extent compatible with the sui generis character of the unilateral
acceptance of the Court's jurisdiction.
47. In the event, the Court has in earlier
cases elaborated the appropriate rules for the interpretation of declarations
and reservations. Every declaration "must be interpreted as it stands,
having regard to the words actually used" (Anglo-Iranian Oil Co.,
Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 105). Every
reservation must be given effect "as it stands" (Certain Norwegian
Loans, Judgment, I.C.J. Reports 1957, p. 27). Therefore, declarations
and reservations are to be read as a whole. Moreover, "the Court cannot
base itself on a purely grammatical interpretation of the text. It must seek
the interpretation which is in harmony with a natural and reasonable way of
reading the text." (Anglo-Iranian Oil Co., Preliminary Objection,
Judgment, I.C.J. Reports 1952, p. 104.)
48. At the same time, since a declaration
under Article 36, paragraph 2, of the Statute, is a unilaterally
drafted instrument, the Court has not hesitated to place a certain emphasis on
the intention of the depositing State. Indeed, in the case concerning Anglo-Iranian
Oil Co., the Court found that the limiting words chosen in Iran's
declaration were "a decisive confirmation of the intention of the
Government of Iran at the time when it accepted the compulsory jurisdiction of
the Court" (ibid., p. 107).
49. The Court will thus interpret the
relevant words of a declaration including a reservation contained therein in a
natural and reasonable way, having due regard to the intention of the State
concerned at the time when it accepted the compulsory jurisdiction of the
Court. The intention of a reserving State may be deduced not only from the text
of the relevant clause, but also from the context in which the clause is to be
read, and an examination of evidence regarding the circumstances of its preparation
and the purposes intended to be served. In the Aegean Sea Continental Shelf
case, the Court affirmed that it followed clearly from its jurisprudence that
in interpreting the contested reservation
"regard must be paid to the intention of the
Greek Government at the time when it deposited its instrument of accession to
the General Act; and it was with that jurisprudence in mind that the Court
asked the Greek Government to furnish it with any available evidence of
explanations of the instrument of accession given at that time" (Aegean
Sea Continental Shelf, Judgment, I.C.J. Reports 1978, p. 29,
para. 69).
In the present case the Court has such
explanations in the form of Canadian ministerial statements, parliamentary
debates, legislative proposals and press communiqués.
50. Where, moreover, an existing declaration
has been replaced by a new declaration which contains a reservation, as in this
case, the intentions of the Government may also be ascertained by comparing the
terms of the two instruments.
51. The contra proferentem rule may
have a role to play in the interpretation of contractual provisions. However,
it follows from the foregoing analysis that the rule has no role to play in
this case in interpreting the reservation contained in the unilateral declaration
made by Canada under Article 36, paragraph 2, of the Statute.
52. The Court was addressed by both Parties
on the principle of effectiveness. Certainly, this principle has an important
role in the law of treaties and in the jurisprudence of this Court; however,
what is required in the first place for a reservation to a declaration made
under Article 36, paragraph 2, of the Statute, is that it should be
interpreted in a manner compatible with the effect sought by the reserving
State.
53. Spain has contended that, in case of
doubt, reservations contained in declarations are to be interpreted
consistently with legality and that any interpretation which is inconsistent
with the Statute of the Court, the Charter of the United Nations or with
general international law is inadmissible. Spain draws attention to the
following finding of the Court in the Right of Passage over Indian Territory
case, where the Court had to rule on the compatibility of a reservation with
the Statute:
"It is a rule of interpretation that a text
emanating from a Government must, in principle, be interpreted as producing and
as intended to produce effects in accordance with existing law and not in
violation of it." (Right of Passage over Indian Territory, Preliminary
Objections, Judgment, I.C.J. Reports 1957, p. 142.)
Spain argues that, to comply with these precepts,
it is necessary to interpret the phrase "disputes arising out of or
concerning conservation and management measures taken by Canada with respect to
vessels fishing in the NAFO Regulatory Area . . . and the
enforcement of such measures" to refer only to measures which, since they
relate to areas of the high seas, must come within the framework of an existing
international agreement or be directed at stateless vessels. It further argues
that an enforcement of such measures which involves a recourse to force on the
high seas against vessels flying flags of other States could not be consistent
with international law and that this factor too requires an interpretation of
the reservation different from that given to it by Canada.
54. Spain's position is not in conformity
with the principle of interpretation whereby a reservation to a declaration of
acceptance of the compulsory jurisdiction of the Court is to be interpreted in a
natural and reasonable way, with appropriate regard for the intentions of the
reserving State and the purpose of the reservation. In point of fact,
reservations from the Court's jurisdiction may be made by States for a variety
of reasons; sometimes precisely because they feel vulnerable about the legality
of their position or policy. Nowhere in the Court's case-law has it been
suggested that interpretation in accordance with the legality under
international law of the matters exempted from the jurisdiction of the Court is
a rule that governs the interpretation of such reservations:
"Declarations of acceptance of the compulsory
jurisdiction of the Court are facultative, unilateral engagements, that States
are absolutely free to make or not to make. In making the declaration a State
is equally free either to do so unconditionally and without limit of time for
its duration, or to qualify it with conditions or reservations." (Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
1984, p. 418, para. 59.)
The holding of the Court relied on by Spain in
the Right of Passage over Indian Territory case, which was concerned
with a possible retroactive effect of a reservation, does not detract from this
principle. The fact that a State may lack confidence as to the compatibility of
certain of its actions with international law does not operate as an exception
to the principle of consent to the jurisdiction of the Court and the freedom to
enter reservations.
55. There is a fundamental distinction
between the acceptance by a State of the Court's jurisdiction and the
compatibility of particular acts with international law. The former requires
consent. The latter question can only be reached when the Court deals with the
merits, after having established its jurisdiction and having heard full legal
argument by both parties.
56. Whether or not States accept the
jurisdiction of the Court, they remain in all cases responsible for acts
attributable to them that violate the rights of other States. Any resultant
disputes are required to be resolved by peaceful means, the choice of which,
pursuant to Article 33 of the Charter, is left to the parties.
*
* *
57. In order to determine whether the
Parties have accorded to the Court jurisdiction over the dispute brought before
it, the Court must now interpret subparagraph (d) of paragraph 2 of
Canada's declaration, having regard to the rules of interpretation which it has
just set out.
* *
58. However, before commencing its
examination of the text of the reservation itself, the Court feels bound to
make two observations which it considers essential in order to ascertain the
intention which underlay the adoption of that text. The first of these concerns
the importance attaching to the reservation in the light of the acceptance by
Canada of the Court's jurisdiction; the second concerns the relationship
between that reservation and the Canadian coastal fisheries protection
legislation.
59. The Court has already pointed out (see
paragraph 14 above) that the current Canadian declaration replaced a
previous one, dated 10 September 1985. The new declaration differs
from its predecessor in one respect only: the addition, to paragraph 2, of
a subparagraph (d) containing the reservation in question. It follows
that this reservation is not only an integral part of the current declaration
but also an essential component of it, and hence of the acceptance by Canada of
the Court's compulsory jurisdiction.
60. As regards the objectives which the
reservation was intended to achieve, the Court is bound to note, in view of the
facts as summarized above (paragraphs 14 et seq.), the close links
between Canada's new declaration and its new coastal fisheries protection
legislation. The new declaration was deposited with the Secretary-General on
10 May 1994, that is to say the very same day that Bill C-29 was
submitted to the Canadian Parliament; moreover, the terms in which Canada
accepted the compulsory jurisdiction of the Court on that day echo those of the
Bill then under discussion. Furthermore, it is evident from the parliamentary
debates and the various statements of the Canadian authorities that the purpose
of the new declaration was to prevent the Court from exercising its
jurisdiction over matters which might arise with regard to the international
legality of the amended legislation and its implementation. Thus on
10 May 1994 Canada issued a News Release on "Foreign
overfishing", explaining its policy in this field and adding that:
"Canada has today amended its acceptance of the
compulsory jurisdiction of the International Court of Justice in the Hague to
preclude any challenge which might undermine Canada's ability to protect the
stocks. This is a temporary step in response to an emergency situation."
Further, on 12 May 1994, the Canadian
Minister for Foreign Affairs made the following statement in the Senate:
"As you know, to protect the integrity of this
legislation, we registered a reservation to the International Court of Justice,
explaining that this reservation would of course be
temporary. . ."
* *
61. The Court recalls that
subparagraph 2 (d) of the Canadian declaration excludes the Court's
jurisdiction in the following terms:
"disputes arising out of or concerning
conservation and management measures taken by Canada with respect to vessels
fishing in the NAFO Regulatory Area, as defined in the Convention on Future
Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the
enforcement of such measures" (see paragraph 14 above).
Canada contends that the dispute submitted to the
Court is precisely of the kind envisaged by the cited text; it falls entirely
within the terms of the subparagraph and the Court accordingly has no jurisdiction
to entertain it.
For Spain, on the other hand, whatever Canada's
intentions, they were not achieved by the words of the reservation, which does
not cover the dispute; thus the Court has jurisdiction. In support of this view
Spain relies on four main arguments: first, the dispute which it has brought
before the Court falls outside the terms of the Canadian reservation by reason
of its subject-matter; secondly, the amended Coastal Fisheries Protection Act
and its implementing regulations cannot, in international law, constitute
"conservation and management measures"; thirdly, the reservation
covers only "vessels" which are stateless or flying a flag of
convenience; and fourthly, the pursuit, boarding and seizure of the Estai
cannot be regarded in international law as "the enforcement
of . . ." conservation and management "measures".
The Court will examine each of these arguments in turn.
*
62. The Court will begin by pointing out
that, in excluding from its jurisdiction "disputes arising out of or
concerning" the conservation and management measures in question and
their enforcement, the reservation does not reduce the criterion for exclusion
to the "subject-matter" of the dispute. The language used in the
English version - "disputes arising out of or concerning" - brings
out more clearly the broad and comprehensive character of the formula employed.
The words of the reservation exclude not only disputes whose immediate
"subject-matter" is the measures in question and their enforcement,
but also those "concerning" such measures and, more generally,
those having their "origin" in those measures ("arising out
of") - that is to say, those disputes which, in the absence
of such measures, would not have come into being. Thus the scope of the
Canadian reservation appears even broader than that of the reservation which
Greece attached to its accession to the General Act of 1928 ("disputes
relating to the territorial status of Greece"), which the Court was called
upon to interpret in the case concerning the Aegean Sea Continental Shelf
(I.C.J. Reports 1978, p. 34, para. 81 and p. 36,
para. 86).
63. The Court has already found, in the
present case, that a dispute does exist between the Parties, and it has
identified that dispute (see paragraph 35 above). It must now determine
whether that dispute has as its subject-matter the measures mentioned in the
reservation or their enforcement, or both, or concerns those measures, or
arises out of them. In order to do this, the fundamental question which the
Court must now decide is the meaning to be given to the expression "conservation
and management measures . . ." and "enforcement
of such measures" in the context of the reservation.
*
64. Spain recognizes that the term "measure"
is "an abstract word signifying an act or provision, a démarche or the
course of an action, conceived with a precise aim in view" and that in
consequence, in its most general sense, the expression "conservation
and management measure" must be understood as referring to an act,
step or proceeding designed for the purpose of the "conservation and
management of fish".
However, in Spain's view this expression, in the
particular context of the Canadian reservation, must be interpreted more
restrictively.
Initially, Spain contended that the reservation
did not apply to the Canadian legislation, which merely represented "the
legal title which [was] the origin and basis of the prohibition of fishing on
the high seas", or "frame of reference". The reservation covered
only "the consequences of that Act for the conservation and management of
resources", that is to say "the actual procedures for enforcement or
implementation of the Act". However, in oral argument, it no longer
pursued this point.
Spain's main argument, on which it relied
throughout the proceedings, is that the term "conservation and management
measures" must be interpreted here in accordance with international law
and that in consequence it must, in particular, exclude any unilateral
"measure" by a State which adversely affected the rights of other States
outside that State's own area of jurisdiction. Hence, in international law only
two types of measures taken by a coastal State could, in practice, be regarded
as "conservation and management measures": those relating to the
State's exclusive economic zone; and those relating to areas outside that zone,
in so far as these came within the framework of an international agreement or
were directed at stateless vessels. Measures not satisfying these conditions
were not conservation and management measures but unlawful acts pure and
simple. In the course of this argument, Spain referred to
Article 1 (1) (b) of the "Agreement for the
Implementation of the Provisions of the United Nations Convention on the Law of
the Sea of 10 December 1982 Relating to the Conservation and
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks"
(hereinafter referred to as the "United Nations Agreement on Straddling
Stocks of 1995"), which reads as follows
"1. For the purposes of this Agreement:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) 'Conservation and management measures'
means measures to conserve and manage one or more species of living marine
resources that are adopted and applied consistent with the relevant rules of
international law as reflected in the Convention and this Agreement."
65. Canada, by contrast, stresses the very
wide meaning of the word "measure". It takes the view that this is a
"generic term", which is used in international conventions to
encompass statutes, regulations and administrative action.
Canada further argues that the expression
"conservation and management measures" is "descriptive" and
not "normative"; it covers "the whole range of measures taken by
States with respect to the living resources of the sea". Canada further
states that "a generic category is never limited to the known examples it
contains". Finally, Canada contends that the United Nations Agreement on
Straddling Stocks of 1995 is not relevant for the purpose of determining the
general meaning of the expression in question and its possible scope in other
legal instruments.
66. The Court need not linger over the
question whether a "measure" may be of a "legislative"
nature. As the Parties have themselves agreed, in its ordinary sense the word
is wide enough to cover any act, step or proceeding, and imposes no particular
limit on their material content or on the aim pursued thereby. Numerous
international conventions include "laws" among the "measures"
to which they refer (see for example, as regards "conservation and
management measures", Articles 61 and 62 of the 1982 United
Nations Convention on the Law of the Sea). There is no reason to suppose that
any different treatment should be applied to the Canadian reservation, the text
of which itself refers not to measures adopted by the executive but simply to
"Canada", that is to say the State as a whole, of which the
legislature is one constituent part. Moreover, as the Court has already pointed
out (see paragraph 60), the purpose of the reservation was specifically to
protect "the integrity" of the Canadian coastal fisheries protection
legislation. Thus to take the contrary view would be to disregard the evident
intention of the declarant and to deprive the reservation of its effectiveness.
67. The Court would further point out that,
in the Canadian legislative system as in that of many other countries, a
statute and its implementing regulations cannot be dissociated. The statute
establishes the general legal framework and the regulations permit the
application of the statute to meet the variable and changing circumstances
through a period of time. The regulations implementing the statute can have no
legal existence independently of that statute, while conversely the statute may
require implementing regulations to give it effect.
68. The Court shares with Spain the view
that an international instrument must be interpreted by reference to
international law. However, in arguing that the expression "conservation and
management measures" as used in the Canadian reservation can apply only to
measures "in conformity with international law", Spain would appear
to mix two issues. It is one thing to seek to determine whether a concept is
known to a system of law, in this case international law, whether it falls
within the categories proper to that system and whether, within that system, a
particular meaning attaches to it: the question of the existence and content of
the concept within the system is a matter of definition. It is quite another
matter to seek to determine whether a specific act falling within the scope of
a concept known to a system of law violates the normative rules of that system:
the question of the conformity of the act with the system is a question of legality.
69. At this stage of the proceedings, the
task of the Court is simply to determine whether it has jurisdiction to
entertain the dispute. To this end it must interpret the terms of the Canadian
reservation, and in particular the meaning attaching in the light of
international law to the expression "conservation and management
measures" as used in that reservation.
70. According to international law, in order
for a measure to be characterized as a "conservation and management
measure", it is sufficient that its purpose is to conserve and manage
living resources and that, to this end, it satisfies various technical
requirements.
It is in this sense that the terms
"conservation and management measures" have long been understood by
States in the treaties which they conclude. Notably, this is the sense in which
"conservation and management measures" is used in paragraph 4 of
Article 62 of the 1982 United Nations Convention on the Law of the Sea
(see also 1923 Convention between the United States of America and Canada for
the Preservation of the Halibut Fisheries of the Northern Pacific Ocean,
especially Articles 1 and 2; 1930 Convention between the United States of
America and Canada for the Preservation of the Halibut Fisheries of the
Northern Pacific Ocean and Bering Sea, Arts. 1, 2 and 3; 1949
International Convention for the Northwest Atlantic Fisheries,
Art. IV (2) and especially Art. VIII; 1959 North-East Atlantic
Fisheries Convention, Art. 7; 1973 Convention on
Fishing and Conservation of the Living Resources
in the Baltic Sea and the Belts, Art. I and especially Art. X. Cf.
1958 Geneva Convention on Fishing and Conservation of the Living Resources of
the High Seas, Art. 2). The same usage is to be found in the practice of
States. Typically, in their enactments and administrative acts, States describe
such measures by reference to such criteria as: the limitation of catches
through quotas; the regulation of catches by prescribing periods and zones in
which fishing is permitted; and the setting of limits on the size of fish which
may be caught or the types of fishing gear which may be used (see, among very
many examples, Algerian Legislative Decree No. 94-13 of
28 May 1994, establishing the general rules relating to fisheries;
Argentine Law No. 24922 of 6 January 1998, establishing the
Federal Fishing Régime; Malagasy Ordinance No. 93-022 of 1993 regulating
fishing and aquaculture; New Zealand Fisheries Act 1996; as well as, for
the European Union, the basic texts formed by Regulation (EEC)
No. 3760/92 of 20 December 1992, establishing a Community system
for fisheries and aquaculture, and Regulation (EC) No. 894/97 of
29 April 1997, laying down certain technical measures for the
conservation of fisheries resources. For NAFO practice, see its document entitled
Conservation and Enforcement Measures (NAFO/FC/Doc. 96/1)). International
law thus characterizes "conservation and management measures" by
reference to factual and scientific criteria.
In certain international agreements (for example
the United Nations Agreement on Straddling Stocks of 1995 and the
"Agreement to Promote Compliance with International Conservation and
Management Measures by Fishing Vessels on the High Seas" (FAO 1993),
neither of which has entered into force) the parties have expressly stipulated,
"for purposes of th[e] Agreement", that what is generally understood
by "conservation and management measures" must comply with the
obligations of international law that they have undertaken pursuant to these
agreements, such as, compatibility with maximum sustainable yield, concern for
the needs of developing States, the duty to exchange scientific data, effective
flag State control of its vessels, and the maintenance of detailed records of
fishing vessels.
The question of who may take conservation and
management measures, and the areas to which they may relate, is neither in
international law generally nor in these agreements treated as an element of
the definition of conservation and management measures. The authority from
which such measures derive, the area affected by them, and the way in which
they are to be enforced do not belong to the essential attributes intrinsic to
the very concept of conservation and management measures; they are, in
contrast, elements to be taken into consideration for the purpose of
determining the legality of such measures under international law.
71. Reading the words of the reservation in
a "natural and reasonable" manner, there is nothing which permits the
Court to conclude that Canada intended to use the expression "conservation
and management measures" in a sense different from that generally accepted
in international law and practice. Moreover, any other interpretation of that
expression would deprive the reservation of its intended effect.
72. The Court has already given a brief
description of the amendments made by Canada on 12 May 1994 to the
Coastal Fisheries Protection Act and on 25 May 1994 and
3 March 1995 to the Coastal Fisheries Protection Regulations (see
paragraphs 15, 17 and 18).
It is clear on reading Section 5.2 of the
amended Act that its sole purpose is to prohibit certain sorts of fishing,
while Sections 7, 7.1 and 8.1 prescribe the means for giving effect to
that prohibition. The same applies to the corresponding provisions of the
amended Regulations. In its version of 25 May 1994, subsection 2
of Section 21 of the Regulations, which implements Section 5.2 of the
Act, defines the protected straddling stocks and "the prescribed
classes" of vessels, and states that for such vessels "a prohibition
against fishing for straddling stocks, preparing to fish for straddling stocks
or catching and retaining straddling stocks is a prescribed conservation and
management measure". Table V to Section 21 of the Regulations as
amended on 3 March 1995 lists seven types of "conservation and
management measures" applicable to ships flying the Spanish or Portuguese
flag; the first two of these specify the species of fish in respect of which
fishing is prohibited in certain areas and during certain periods; the next two
specify the types of fishing gear which are prohibited; the fifth lays down
size limits; while the last two lay down certain rules with which ships must
comply in connection with inspection by protection officers.
73. The Court concludes from the foregoing
that the "measures" taken by Canada in amending its coastal fisheries
protection legislation and regulations constitute "conservation and
management measures" in the sense in which that expression is commonly
understood in international law and practice and has been used in the Canadian
reservation.
*
74. The conservation and management measures
to which this reservation refers are measures "taken by Canada with
respect to vessels fishing in the NAFO Regulatory Area, as defined in the
Convention on Future Multilateral Co-operation in the Northwest Atlantic
Fisheries, 1978".
Article 1, paragraph 2, of that
Convention defines the NAFO "Regulatory Area" as "that part of
the Convention Area which lies beyond the areas in which coastal States
exercise fisheries jurisdiction"; paragraph 1 of this same Article
states that the "Convention Area" is "the area to which this
Convention applies" and defines that area by reference to geographical
co-ordinates.
The NAFO "Regulatory Area" is therefore
indisputably part of the high seas. The Court need not return to the doubts
which this part of the reservation may have raised on the Spanish side, in view
of the construction placed by the latter on the expression "conservation
and management measures". For its part the Court has determined that this
expression must be construed in a general and customary sense, without any
special connotations with regard to place.
75. Thus the only remaining issue posed by
this part of the reservation is the meaning to be attributed to the word
"vessels". Spain argues that it is clear from the parliamentary
debates which preceded the adoption of Bill C-29 that the latter was intended
to apply only to stateless vessels or to vessels flying a flag of convenience.
It followed, according to Spain - in view of the close links between
the Act and the reservation - that the latter also covered only
measures taken against such vessels.
Canada accepts that, when Bill C-29 was being
debated, there were a number of references to stateless vessels and to vessels
flying flags of convenience, for at the time such vessels posed the most
immediate threat to the conservation of the stocks that it sought to protect.
However, Canada denies that its intention was to restrict the scope of the Act
and the reservation to these categories of vessels.
76. The Court will begin by once again
pointing out that declarations of acceptance of its jurisdiction must be
interpreted in a manner which is in harmony with the "natural and
reasonable" way of reading the text, having due regard to the intention of
the declarant. The Canadian reservation refers to "vessels
fishing . . .", that is to say all vessels fishing in the
area in question, without exception. It would clearly have been simple enough
for Canada, if this had been its real intention, to qualify the word
"vessels" so as to restrict its meaning in the context of the
reservation. In the opinion of the Court the interpretation proposed by Spain
cannot be accepted, for it runs contrary to a clear text, which, moreover,
appears to express the intention of its author.
77. Furthermore, the Court cannot share the
conclusions drawn by Spain from the parliamentary debates cited by it. It is,
indeed, evident from the replies given by the Canadian Ministers of Fisheries
and Oceans and for Foreign Affairs to the questions put to them in the House of
Commons and in the Senate that at that time the principal target of the Bill
was stateless vessels and those flying flags of convenience; however, these
were not the only vessels covered. Thus the Minister of Fisheries and Oceans
expressed himself as follows before the House of Commons:
"as to what is meant by 'vessels of a prescribed
class', it is simply a reference that allows the government to prescribe or
designate a class, a type or kind of vessel we have determined is fishing in a
manner inconsistent with conservation rules and therefore against which
conservation measures could be taken.
For example, we could prescribe stateless
vessels. Another example is that we could prescribe flags of convenience. That
is all that is meant." (Emphasis added.)
Similarly, the Minister for Foreign Affairs
stated in the Senate:
"We have said from the outset, and Canada's
representatives abroad in our various embassies have explained to our European
partners and other parties, that this measure is directed first of all
toward vessels that are unflagged or that operate under so-called flags of
convenience." (Emphasis added.)
Furthermore, the following statement by the
Minister of Fisheries and Oceans to the Speaker of the House of Commons leaves
no doubt as to the scope of the proposed Act:
"The legislation gives Parliament of Canada the
authority to designate any class of vessel for enforcement of conservation
measures. The legislation does not categorize whom we would enforce against.
The legislation makes clear that any vessel fishing in a manner inconsistent
with good, widely acknowledged conservation rules could be subject to action by
Canada. We cite as an example the NAFO conservation rules. Any vessel from any
nation fishing at variance with good conservation rules could under the
authority granted in the legislation be subject to action by Canada. There are
no exceptions."
This is confirmed by the inclusion in the
"prescribed classes of foreign fishing vessels", as a result of the
amendment of 3 March 1995, of vessels flying the Spanish and
Portuguese flags (see paragraph 18 above). Indeed, it should not be
forgotten that, through the enactment of the legislation by means of
regulations as well as statute, from the outset the potential was deliberately
left open to add prescribed classes of vessels, the term "class"
referring not only to types of vessels but also to the flags the vessels were
flying.
*
78. The Court must now examine the phrase "and
the enforcement of such measures", on the meaning and scope of which
the Parties disagree. Spain contends that an exercise of jurisdiction by Canada
over a Spanish vessel on the high seas entailing the use of force falls outside
of Canada's reservation to the Court's jurisdiction. Spain advances several
related arguments in support of this thesis. First, Spain says that the use of
force by one State against a fishing vessel of another State on the high seas
is necessarily contrary to international law; and as Canada's reservation must
be interpreted consistently with legality, it may not be interpreted to subsume
such use of force within the phrase "the enforcement of such
measures". Spain further asserts that the particular use of force directed
against the Estai was in any event unlawful and amounted to a violation
of Article 2, paragraph 4, of the Charter, giving rise to a separate
cause of action not caught by the reservation.
79. The Court has already indicated that
there is no rule of interpretation which requires that reservations be
interpreted so as to cover only acts compatible with international law. As
explained above, this is to confuse the legality of the acts with consent to
jurisdiction (see paragraphs 55 and 56 above). Thus the Court has no need
to consider further these aspects of Spain's argument.
80. By Section 18.1 of the 1994 Act, the
enforcement of its provisions in the NAFO Regulatory Area was made subject to
the application of criminal law. In turn, Section 25 of the Criminal Code
was amended following the adoption of Bill C-8 (see paragraph 16 above).
Spain contends in this context that Canada has thus provided for penal measures
related to the criminal law and not enforcement of conservation and management
measures. Spain also contends that the expression "enforcement of such
measures" in paragraph 2 (d) of Canada's declaration
contained no mention of the use of force and that the expression should not be
interpreted to include it - not least because the relevant provisions
of the 1982 United Nations Law of the Sea Convention relating to
enforcement measures also make no mention of the use of force.
81. The Court notes that, following the
adoption of Bill C-29, the Coastal Fisheries Protection Act authorized
protection officers to board and inspect any fishing vessel in the NAFO
Regulatory Area and "in the manner and to the extent prescribed by the
regulations, use force that is intended or is likely to disable a foreign
fishing vessel", if the officer "believes on reasonable grounds that
the force is necessary for the purpose of arresting" the master or crew
(Section 8.1). Such provisions are of a character and type to be found in
legislation of various nations dealing with fisheries conservation and
management, as well as in Article 22 (1) (f) of the United Nations
Agreement on Straddling Stocks of 1995.
82. The Coastal Fisheries Protection Regulations
Amendment of May 1994 specifies in further detail that force may be used
by a protection officer under Section 8.1 of the Act only when he is
satisfied that boarding cannot be achieved by "less violent means
reasonable in the circumstances" and if one or more warning shots have
been fired at a safe distance (Sections 19.4 and 19.5). These limitations also
bring the authorized use of force within the category familiar in connection
with enforcement of conservation measures.
83. As to Spain's contention that
Section 18.1 of the 1994 Act and the amendment of Section 25 of the
Criminal Code constitute measures of penal law other than enforcement of
fisheries conservation measures, and thus fall outside of the reservation, the
Court notes that the purpose of these enactments appears to have been to
control and limit any authorized use of force, thus bringing it within the
general category of measures in enforcement of fisheries conservation.
84. For all of these reasons the Court finds that
the use of force authorized by the Canadian legislation and regulations falls
within the ambit of what is commonly understood as enforcement of conservation
and management measures and thus falls under the provisions of
paragraph 2 (d) of Canada's declaration. This is so
notwithstanding that the reservation does not in terms mention the use of
force. Boarding, inspection, arrest and minimum use of force for those purposes
are all contained within the concept of enforcement of conservation and
management measures according to a "natural and reasonable"
interpretation of this concept.
* *
85. In this Judgment, the Court has had to
interpret the words of the Canadian reservation in order to determine whether
or not the acts of Canada, of which Spain complains, fall within the terms of
that reservation, and hence whether or not it has jurisdiction. For this
purpose the Court has not had to scrutinize or prejudge the legality of the
acts referred to in paragraph 2 (d) of Canada's declaration.
Because the lawfulness of the acts which the
reservation to the Canadian declaration seeks to exclude from the jurisdiction
of the Court has no relevance for the interpretation of the terms of that
reservation, the Court has no reason to apply Article 79,
paragraph 7, of its Rules in order to declare that Canada's objection to
the jurisdiction of the Court does not possess, in the circumstances of the
case, an exclusively preliminary character.
* *
86. In the course of the proceedings Spain
argued that the reservation contained in paragraph 2 (d) of
Canada's declaration might be thought to have the characteristics of an
"automatic reservation" and thus be in breach of Article 36,
paragraph 6, of the Statute. It is clear from the Court's interpretation
of the reservation as set out above that it cannot be regarded as having been
drafted in terms such that its application would depend upon the will of its
author. The Court has had full freedom to interpret the text of the
reservation, and its reply to the question whether or not it has jurisdiction
to entertain the dispute submitted to it depends solely on that interpretation.
*
* *
87. In the Court's view, the dispute between
the Parties, as it has been identified in paragraph 35 of this Judgment,
had its origin in the amendments made by Canada to its coastal fisheries
protection legislation and regulations and in the pursuit, boarding and seizure
of the Estai which resulted therefrom. Equally, the Court has no doubt
that the said dispute is very largely concerned with these facts. Having regard
to the legal characterization placed by the Court upon those facts, it
concludes that the dispute submitted to it by Spain constitutes a dispute
"arising out of" and "concerning" "conservation and
management measures taken by Canada with respect to vessels fishing in the NAFO
Regulatory Area" and "the enforcement of such measures". It
follows that this dispute comes within the terms of the reservation contained
in paragraph 2 (d) of the Canadian declaration of
10 May 1994. The Court consequently has no jurisdiction to adjudicate
upon the present dispute.
*
* *
88. Finally, the Court notes that, in its
Counter-Memorial of February 1996, Canada maintained that any dispute with
Spain had been settled, since the filing of the Application, by the agreement
concluded on 20 April 1995 between the European Community and Canada,
and that the Spanish submissions were now without object. However, at the
beginning of Canada's oral argument, its Agent informed the Court that his
Government intended to challenge the Court's jurisdiction solely on the basis
of its reservation: "It is on this problem, and no other, that the Court
is called upon to rule". This position was confirmed at the end of the
oral proceedings. Spain nonetheless draws attention to the "Court's
statutory duty to verify the existence of a dispute between States in order to
exercise its function".
It is true that it is for the Court to satisfy
itself, whether at the instance of a party or proprio motu, that a
dispute has not become devoid of purpose since the filing of the Application
and that there remains reason to adjudicate that dispute (see Northern
Cameroons (Cameroon v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1963, p. 38; Nuclear Tests
(Australia v. France), Judgment, I.C.J. Reports 1974,
p. 271, para. 58). The Court has, however, reached the conclusion in
the present case that it has no jurisdiction to adjudicate the dispute
submitted to it by Spain (see paragraph 87 above). That being so, in the
view of the Court it is not required to determine proprio motu whether
or not that dispute is distinct from the dispute which was the subject of the
Agreement of 20 April 1995 between the European Community and Canada,
and whether or not the Court would have to find it moot.
*
* *
89. For these reasons,
THE COURT,
By twelve votes to five,
Finds that it has no jurisdiction to adjudicate
upon the dispute brought before it by the Application filed by the Kingdom of
Spain on 28 March 1995.
IN FAVOUR: President Schwebel; Judges
Oda, Guillaume, Herczegh, Shi, Fleischhauer, Koroma, Higgins, Parra-Aranguren,
Kooijmans, Rezek; Judge ad hoc Lalonde;
AGAINST: Vice-President Weeramantry; Judges
Bedjaoui, Ranjeva, Vereshchetin; Judge ad hoc Torres Bernárdez.
Done in English and in French, the English text
being authoritative, at the Peace Palace, The Hague, this fourth day of
December, one thousand nine hundred and ninety-eight, in three copies, one of
which will be placed in the archives of the Court and the others transmitted to
the Government of the Kingdom of Spain and the Government of Canada.
(Signed) Stephen M. Schwebel,
President.
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Registrar.
__________
President SCHWEBEL and Judges ODA, KOROMA and
KOOIJMANS append separate opinions to the Judgment of the Court.
Vice-President WEERAMANTRY, Judges BEDJAOUI,
RANJEVA and VERESHCHETIN, and Judge ad hoc TORRES BERNÁRDEZ append
dissenting opinions to the Judgment of the Court.
(Initialled) S.M.S.
(Initialled) E.V.O.
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