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Box 2.3 The Danzig Railway Officials Case
One of the outcomes of the First World War was the creation of the Free
City of Danzig (now the city of Gdansk, Poland) as an entity separate from
Germany and Poland and administered by a High Commissioner answerable
to the League of Nations. Article 104 of the 1919 Treaty of Versailles, which
ended the First World War, called for a treaty between Danzig and Poland that
would transfer the railway system serving Danzig to the Polish Railway
Administration. The 1921 Danzig–Polish Agreement left the Danzig railway
officials unhappy with their new employers over the issues of pay and pensions
and they sued in Danzig civil courts. Poland’s government objected to the use
of Danzig courts to the High Commissioner who finally ruled in 1927 in
Poland’s favor. The Free City of Danzig appealed over the head of the High
Commissioner to the Council of the League, which in turn asked for an advisory
opinion from the Permanent Court of Justice (PCJ).
In its 1928 advisory opinion, the PCJ viewed the 1921 Danzig–Polish
Agreement as an international treaty and, in keeping with legal views of the
day, observed that there was a well-established principle of international law
which precluded international agreements from creating duties and rights for individuals.
However, the justices of the PCJ found that an international agreement
can create rules enforceable in national courts that involve duties and rights for
individuals, as in “contracts of service.” This advisory opinion overruled the
High Commissioner. Danzig and Poland had previously agreed to abide by the
advisory opinion.
Source: Advisory opinion 15, March 3, 1928 found in Manley O. Hudson (ed.), World
Court Reports vol. II, 1927–32 (Dobbs Ferry, NY: Oceana Publications, Inc., 1969),
pp. 236–67. See especially pp. 246–7.
Immediately following the Second World War, the Nuremberg Military Tribunal
probably changed the status of the individual’s role in international law forever. This
terrible war took well over 40 million combat deaths, with millions more dying in
concentration camps simply because they were Jews, Roma (Gypsies), or members
of some other ethnic group the Nazi leaders of Germany wanted eradicated. The
Nuremberg trials handed down long sentences and even the death penalty to German
civilian and military leaders, whose charges included waging a “war of aggression,”
and “crimes against humanity.” The “badge of state,” that is, acting in the name of
the state, could no longer protect individual violators. The claim that an individual
was “only obeying a superior’s orders” would at most a mitigating circumstance. At
the Nuremberg Tribunal, the American Chief Prosecutor, Justice Robert Jackson, in
his opening statement, declared “Crimes against international law are committed by
men, not by abstract entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced.”19 A parallel tribunal in
Tokyo brought charges against Japanese leaders for similar crimes.
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46 Making the World More Lawful
Ethnic Groups
Sometimes scholars speak prematurely of the demise of the state, but one actor that
does, on occasion, tear at the fabric of the state is the ethnic group. This group is a
collective of people who share a special and enduring sense of identity based on a
common history and shared culture. Cultural identification with the group may
depend on language, religion, tribal status, and racial characteristics such as skin
color and facial markers, or any combination of these. Equally important is the
group’s self-perception that its members are different from other peoples around
them. The group may, in fact, feel that it is at risk from one or more other ethnic
groups sharing the same country. The world of states has been hectored by the nearly
complete lack of congruence between states and ethnic groups. The large majority
of states are ethnically heterogeneous, forced to deal with some stress caused by
Box 2.4 Belligerent Recognition: Great Britain and the
With the outbreak of the American Civil War (1861–5), the government of
Great Britain faced a quandary: a humanitarian option versus a power opportunity.
Great Britain could ignore the new Confederate States of America
(CSA) yearning for recognition as a new state and, thus, preserve a good relationship
with Abraham Lincoln’s government with its anti-slavery cause. Or,
the British government could militarily intervene, permanently dividing and
weakening the growing rivalry of a young United States. Britain opted for a
middle choice by offering the South belligerent recognition while continuing full
recognition with the US government in Washington, DC. Although feigning
neutrality, Britain sold armed ships, including the storied cruiser the Alabama,
to the South and supplied most of the South’s infantry with the Enfield musket-
rifle. Any temptation by the British to intervene further, say by extending
full recognition to the CSA government in Richmond or landing troops to
assist Southern independence was stifled by the 1863 Emancipation
Proclamation of President Lincoln, which freed all slaves and firmed British
public opinion’s support of the Union cause. The stalemate at the 1862 Battle
of Antitem and the decisive defeat of the South at the 1863 Battle of Gettysburg
doomed any chance that the South might receive Britain’s full recognition as a
permanent state. Great Britain also had to worry about its power calculations
in Europe, involving especially the rise to great-power status by Prussia.
The conditional belligerent recognition of the South, as a state-in-waiting,
allowed the British government to back out of a policy that was hurting their
relationship with the Lincoln government, increasingly victorious and certain
to reunite the country. Full recognition of the South would very likely have led
to war between the United States and Great Britain.
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occupation (Cassese 1995: 319). These groups may simply want to secede and
from their own country, even when they are governed by democracies willing to
grant a significant measure of democracy. The Basque people in Spain and, in the
1960s, the French-speakers in Canada are prime examples.
Box 2.5 The Special Case of Kosovo
Kosovo was legally a province of Serbia (aka Yugoslavia) but had a de facto
independence from Serbian rule that became permanent. The attempts by
Slobodan Miloševic´ to create a “Greater Serbia,” as the old Federal Republic
of Yugoslavia broke up, included not only ethnic cleansing in Bosnia and Crotia
but in Kosovo as well. In 1999, the Serbian army attacked the Albanian ethnic
community, who made up the large majority of the citizens of Kosovo, driving
them toward the country of Albania or into the mountains to live a meager
existence. As news of depredations, that included the rape of Albanian women
and the shooting of men of military age, reached Western Europe, NATO
organized a form of humanitarian intervention that consisted mainly of aerial
bombardment directed at the Serbian military and political infrastructure, all
without UN authorization. Serbia finally capitulated.
Following NATO and Russian occupation of Kosovo, the UN set up the
Interim Administration Mission to Kosovo in June 1999. The UN, the EU, and
other international organizations shared nation-building duties to improve
social, economic, and political conditions in Kosovo. The United States and
European states mulled over whether Kosovo was to remain a province of
Serbia or become an independent country, Kosovarian leaders declared the
country’s independence in February 2008. The United States and the EU states
quickly recognized the new country. While the Kosovo case does not meet
the legal criteria for self-determination based on either colonial status, racist
rule, or foreign occupation, Kosovarian leaders could at least make the moral
claim that they were ruled badly and undemocratically by the Serbs.

Box 3.2 The Paquette Habana and the Lola Case
Judgment delivered 1900 by the US Supreme Court (Summary and Commentary)
The Paquette Habana and the Lola were coastal fishing boats operating near
the Cuban coast while flying the Spanish flag. When the Spanish–American
war began in 1898, a US naval squadron intercepted and took the two fishing
vessels as prizes of war. Usually a “prize” is suspected of serving the enemy in
some capacity. The appropriate federal district and circuit courts upheld the
seizure as a legal act of war.
The Supreme Court reversed the lower courts and returned the two fishing
vessels to their owners. The majority opinion of the court included an extensive
review of various states’ practices regarding the status of fishing boats
going back to the policy of Henry IV of England in the early fifteenth century.
Over the centuries, numerous states made an exception for fishing vessels in
their prize courts; thus, customary law on the matter appeared clear. Moreover,
this case resorted to customary law as a source because the US Constitution,
treaties, and federal law failed to address the issue at hand.
Once wireless codes could be transmitted ship to ship and ship to land, the
status of fishing craft began to change. This technology was available before the
First World War, although it was usually found only on major ships. In 1912, the
Titanic teletyped for help after it struck an iceberg. By the time of the Second
World War, even small fishing craft would likely have voice radio and, thus,
could serve as spies for the naval forces of their country. When the famous
Jimmy Doolittle mission of 1942 was approaching Japan, the American carrier
equipped with B-25 medium bombers was spotted by Japanese fishing craft.
The Americans sank the fishing boats as quickly as possible but had to assume
the Japanese fishermen sent a radio message to Japan. For this reason, the raid
was launched several hundred miles ahead of the planned launch point. The
raid was an overall success, but several planes, due to the early launch, ran out
of fuel and had to ditch in the sea near the coast of China, their destination.
Source: This case can be read at
pl?court=US&vol=175&invol=677, pp. 1–24.
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Sources: Creating Law without Government 63
states have even tried to argue that a principle of persistent objector is valid. As a new
custom is forming, some states might make a point of objecting to the rule year after
year, with the intent that they are exempt from compliance with the rule. Actually,
there is no solid support for the principle of persistent objector in case law or practice
(Cassese 2001b: 123).
The classic case on consistency is the well-known 1950 asylum issue between
Colombia and Peru. Not only does Latin America have treaties on asylum but some
customary practices too. Asylum in Latin America is an excellent example of what is
known as regional international law. Most countries around the world do not wish
to to embrace asylum practices that would encourage political refugees to seek shelter
in their embassies and thus stir up trouble with the countries hosting foreign
embassies. Colombia tried to argue before the ICJ that even if Peru had not ratified
the 1933 Monteveido Convention on Political Asylum, customary practice in Latin
Box 3.3 The Asylum Case Judgments in 1950 and 1951 by
the ICJ (Summary)
The Colombian ambassador in Lima, Peru, granted asylum to M. Victor Raúl
Haya de la Torre, head of a political party in Peru. The ambassador allowed
him to enter the Colombian embassy in 1949 following a military rebellion that
the Peruvian government claimed Hoya de la Torre instigated in 1948. Asylum
is recognized as regional Latin American international law, and so all that
seemed to remain was for the Peruvian government to grant a safe conduct
pass to Hoya de la Torre so he could leave the country.
However, the ICJ declared that Colombia was not qualified to decide unilaterally
that the offense was a political one as opposed to a common crime.
Thus, Peru was not obliged to regard Hoya de la Torre as a political refugee
and Colombia could not under any treaty bind Peru to do so. The 1911
Bolivarian Agreement and the 1928 Havana Convention on Political Asylum did not
permit unilateral assignment of refugee status. Furthermore, the 1933
Montevideo Convention on Asylum had not been ratified by Peru and so could
not be invoked against that country. The court ruled Colombia was unable to
demonstrate a constant and uniform practice of asylum as customary American
international law. The ICJ found too many inconsistencies in asylum practices.
The ICJ was asked in what manner the issue could be resolved. The court
only replied it was not part of its judicial function to end what was in effect a
political situation, but did allow that Colombia was under no obligation to surrender
Hoya de la Torre to Peruvian authorities. Hoya de la Torre finally left
the Colombian embassy and Peru in 1954, basically as a political outcome
rather than a legal one.
Source: This case can be read at > cases > contentious cases >
1949 Asylum Case.
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unfortunately a sizable gap has always existed between the written rule and the
actual human condition. Promoting and enforcing human rights standards in a
world of sovereign states, with governments historically accustomed to treating their
populations as they saw fit, is a major undertaking.
Box 3.4 The Filartiga v. Peña-Irala Case
Appearing in US Federal District of Eastern New York and the Second Circuit
Court of Appeals, 1979–1980 (Summary and Commentary)
Seventeen-year-old Joelito Filartiga was tortured to death in 1976 at the hands
of Americo Norberto Penˇa-Irala, the Inspector-General of Police in Ascension,
Paraguay. This cruel act was aimed as a punishment for Joelito’s father who
opposed the government of Paraguay. Joelito’s sister, Dolly Filartiga, sought
asylum in the United States in 1978, only to discover Inspector Penˇa-Irala was
living in the United States on an expired visitor’s visa.
Ms Filartiga filed a civil suit for the torture and wrongful death of her
brother under the 1789 Alien Tort Claims Act. The Federal District Court of
Eastern New York refused to hear such a novel case, but on appeal to the
Second Circuit Court of Appeals, the case was heard in 1979 and the decision
rendered in 1980. Since Penˇa-Irala had been deported for overstaying
his visa, a default judgment of over $10 million was awarded to Dolly
Awards of this kind are easier to make than to collect, and of course a
criminal charge that might place Penˇa-Irala in prison was not at stake. At
least the wall of national sovereignty was breached with the message that
the way individuals are treated by their governments can be a concern elsewhere.
Sources: To read this case and interesting commentary, enter “Diana Online Human
Rights Archive” in a search engine and select “cases” and then “Filartiga” ; also go to:; http://www.womenon

Box 4.2 Tribunal for the Law of the Sea
Another important court that is a world court of sorts is the International
Tribunal for the Law of the Sea created in 1996 and located in the Baltic seaport
of Hamburg, Germany. The Tribunal has its own special bureaucracy
known as the Registry. The ITLOS judicially oversees the application of the
UN Convention on the Law of the Sea promulgated in 1982 and entered into
force in 1994, once there were enough signatories. Most countries of the
world have both direct and indirect interests in the seas and oceans of
the world. The UNLOS stands as the longest and largest diplomatic undertaking
as far as UN-sponsored conventions are concerned.
The ITLOS has 21 independent members to adjudicate the LOS convention,
a body which usually breaks up into Chambers on “summary procedures,”
“fisheries disputes,” “marine environment disputes,” and a special chamber on
“swordfish stocks” created in 2000. The tribunal can hear cases involving states,
private companies, and the International Seabed Authority that administers the
sharing of the seabed’s resources under the principle of the “common heritage
of humankind.” The ITLOS exercises compulsory jurisdiction and can offer
advisory opinions. As of 2004, this tribunal has heard 12 cases, issued 6 judgments
and issued 26 orders. Seventeen states have been before the Tribunal.
A typical case has involved one state’s flagged fishing vessel violating the fishing
jurisdiction of another state.
Source: See, and

Box 4.3 The Southwest Africa Cases
Southwest Africa, a former German colony, became a Mandate territory under
the auspices of the League of Nations following the First World War and was
placed under the stewardship of South Africa, a country controlled by white
elites operating a strictly segregated society. When the League was replaced
by the UN in 1945, South Africa argued that it did not have to place Southwest
Africa in the new UN Trusteeship program. In 1949, the UN General Assembly
requested an advisory opinion from the ICJ. The court ruled in 1950 that South
Africa’s Mandate obligations were still in force and that South Africa could not
unilaterally alter Southwest African status, but that South Africa did not have
to move Southwest Africa into the Trusteeship system.
South Africa ignored the court’s opinion, and in 1960 Ethiopia and Liberia,
as former members of the League, began proceedings against South Africa,
mainly charging that South Africa was practicing Apartheid (a strict form of
race segregation) in South-West Africa and preventing this territory from making
progress toward self-government. In an 8–7 preliminary decision of 1962,
the court ruled the Mandate obligations continued and that Ethiopia and Liberia
could rightfully bring a case against South Africa.
A final judgment, in another close vote, by the ICJ came in 1966 focused on
the standing of Ethiopia and Liberia. The court ruled that only League organs
could bring a case and, with the League now defunct, no basis for enforcement
against South Africa existed. The upshot was utter dismay by all the Third
World countries, which were intensely committed to ending all vestiges of
racism and colonialism in the world. Disillusionment with the ICJ was the paramount
view for many years on the part of many countries. After years of a
bloody insurgency, Southwest Africa became the country of Namibia in 1990
and joined the UN in the same year.
Source: See, > cases > see under 1949 “Advisory Opinion of 11 July
1950,” and under contentious cases, see “Preliminary Objections 1961” and “Merits
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The Efficacy of International Law 103
Criminal courts
Interest in an international criminal court has risen and fallen over time as the following
brief narrative indicates. At the time of the 1864 Geneva Conventions, an
unrealized proposal was made that a criminal court be established to adjudicate the
laws of war. At least after the Second World War, ad hoc tribunals were established in
1945 in Nuremberg and Tokyo to try German and Japanese civilian and military
leaders for crimes committed during the war. Although these tribunals were somewhat
tainted as exercises in “victors’ justice,” they stamped history indelibly with the
notion that individuals cannot hide behind the “badge of state” but instead held
accountable for their crimes. A typical response by those accused at these tribunals
was, “I was only obeying orders.”
While the victorious states of France, Great Britain, the Soviet Union, and the
United States showed little interest in turning the Nuremberg experience into a
permanent court, the shock over the horror of “ethnic cleansing” practices decades
later in the former Yugoslavia and Rwanda led the UN Security Council to create
an ad hoc war crimes tribunal for each area, the International Criminal Tribunal for
Box 4.4 The Lori Berenson Case
American citizen Lori Berenson was originally convicted of high treason in
Peru in 1996 by a secretive military tribunal and sentenced to life without
parole. Then, under strong US diplomatic pressure, Peru tried her a second
time in 2000–1 in a civilian criminal court. The second trial found her guilty of
collaborating with terrorists and reduced her sentence to 20 years. Berenson’s
managed to appeal her case to the Inter-American Court of Human Rights. In
2004, the Inter-American Court upheld the 20-year sentence but did at least
order Peru to cancel Berenson’s $30,300 fine and to provide Berenson with
medical and psychological treatment as well more humane prison conditions.
Her defense, led by former US Attorney-General Ramsey Clark, argued
that she was tried under draconian anti-terrorist laws and by hostile judges
who accepted coerced testimony and tainted evidence. Her defense was supported
by the Inter-American Human Rights Commission which voted sympathetically
7–0 in 2002 to condemn the legal system used to convict Berenson.
The Peruvian government rejoiced over the Inter-American Court of
Human Rights’ decision to uphold the 20-year sentence. They were convinced
that Berenson was at least a collaborator with the terrorist group, Tupac
Amaru Revolutionary Movement, helping them prepare for an attempt at seizing
the Peruvian Congress.
Source: For a website friendly to Lori Berenson but also providing additional information,
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The Efficacy of International Law 109
such ready acceptance worldwide is part and parcel of a new international legal culture
now being forged. When countries choose not to incorporate an important treaty
or protocol, such as the environmental rules of the Kyoto agreement, they risk damage
to their international reputation as has happened to the United States
Box 4.5 Treaties as Superior Law
The most avid supporter of the dualist approach cannot escape the ultimate
requirement of complying with international law. Even if a powerful political
force builds up in a country and demands a new policy direction, the proposed
change can be trumped by a treaty obligation.
A recent case between the former Czechoslovakia and Hungary illustrates
the power of treaty law. The two states entered into a 1977 treaty to create
the Gabcikovo-Nagimaros system of dams on the Danube River. After
Czechoslovakia experienced its “friendly divorce” and became the Republics
of Czech and Slovakia, due to the geography of the situation, the issue then
existed between Slovakia and Hungary. Hungary, responding to its rising environmentalist
movement, wanted out of the treaty obligation, but the new
Republic of Slovakia would not agree. In a 1997 decision, the ICJ ruled the
agreement to build the system of dams would have to stand unless both countries
agreed to terminate the treaty. Neither the momentous change of both
countries converting from communism to democracy nor the break up of
Czechoslovakia reduced the treaty obligation in any way.
Sources: See, Eyal Benvenisti, “Domestic Politics and International Resources: What
Role for International Law?” in Michael Byers (ed.), The Role of Law in International
Politics (New York: Oxford University Press, 2000), pp. 107–29; see also www.icj-cij.
org/ > cases > contentious cases > 1993 Hungary-Slovakia.

Box 5.1 A Foreign Merchant Ship in Port
Mali v. Keeper of the Common Jail of Hudson Country, U.S. Supreme Court 1887,
120 U.S. 1
While the Belgian merchant ship the Noordland was in the port of Jersey City,
NJ, a fight broke out below decks with Belgian Joseph Wildenhaus stabbing
and killing a fellow seaman. Under customary law, if incidents on board a ship
in port do not disturb the peace and tranquility of the port, the officers of the
ship handle discipline and exercise the law of their flag. This practice was reinforced
by the Belgium–US Consular Convention of 1880.
When Wildenhaus and witnesses from the ship were incarcerated in the
local Hudson Country Jail, Belgian Consul M. Charles Mali sued for their release
to his custody. The case rose to the US Supreme Court, which ruled murder
was of such gravity that the port tranquility exception to Belgium’s jurisdiction
could be invoked. Wildenhaus remained in jail to face local charges.
Source: This case can be accessed at
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Jurisdiction: Domain over Places and Persons 123
has tangled with pirates since raiding Barbary Coast pirate strongholds on the
southern rim of the Mediterranean Sea in the early nineteenth century.
The last, and at one time the most controversial, issue centers on the provision of
a Seabed Mining Authority for licensing mining activities and ensuring that profits
are shared by all states. The name seems innocuous enough, but this Authority,
beginning its operations in Kingston, Jamaica, in 1996, became caught in a crossfire
of ideologies. In 1970, Third World states, with a socialist orientation of sharing the
world’s wealth, won approval for a UN General Assembly declaration to apply the
principle of “common heritage of humankind” to the expected wealth of polymetallic
nodules on the floor of the seas. These states secured the same principle in
Part XI of the LOS convention dealing with the seabed of the ocean. The Western,
industrialized states had accepted the 1970 declaration yet, by the 1980s, led by
President Ronald Reagan, these states took a strong capitalist view that seabed mining
should be a matter of private enterprise, a position obviously privileging the
advanced Western countries with the technology to mine the nodules at great ocean
depths. It was anathema to capitalist states that countries without any investment in
the enterprise should reap a dividend.
Box 5.2 Piracy against the Alondra Rainbow
The Alondra Rainbow was attacked and seized off the coast of Indonesia in
1999. It was of Panamanian registry, owned by a Japanese corporation, and
crewed mostly by Filipinos. Based on a reported sighting at sea in 2000, the
Indian Navy gave chase, although India had no connection to the ship. Indian
planes and ships fired on the repainted and renamed ship for 35 hours as it
made for Pakistani waters.
India captured and tried 14 pirates in 2001, and they were sentenced to
7 years of “rigorous imprisonment.” India could have claimed to exercise
universal jurisdiction under long-standing customary law treating pirates as a
scourge of humankind or applied the 1982 LOS Convention’s articles on
piracy. Yet, when filing charges against the captured pirates, India used its own
national laws on armed robbery, attempted murder, theft, and forgery of ship’s
documents. India chose this legal path because it had no assigned penalties in
its laws for piracy. As a British-influenced common-law country, India normally
converts international rules into national law before exercising authority.
According to William Langewiesche, more interesting is the fact that India’s
prosecution of these pirates, as an exercise of universal jurisdiction, is the
first case in history of prosecuting pirates that had nothing to do with the
prosecuting state.
Source: William Langewiesche, The Outlaw Sea: A World of Freedom, Chaos, and Crime
(New York: North Point Press, 2004), pp. 71–80.
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Jurisdiction: Domain over Places and Persons 133
can define nationality in its municipal laws, the 1948 Universal Declaration of
Human Rights insists in Article 15 that every person is to have a nationality, and the
1966 International Covenant on Civil and Political Rights asserts in Article 24 that
every child has a legal right to a nationality. Movement across borders, whether as a
tourist, the representative of an NGO, a business person, exchange student, or even
a diplomat, usually requires that a person possess a nationality and a passport to
prove it.
The nationality of a person is determined either by jus soli (law of the soil) or jus
sanguinis (law of blood). Some of the Western Hemispheric countries, including the
United States and Mexico, apply the jus soli, or “birthright citizenship,” rule meaning
that any person born in a country can be a citizen. Exceptions are often made for
children born to diplomats, parents temporarily in another country, or parents stationed
abroad in the military service. The trend among states is moving away from
jus soli. While a constitutional issue, some members of Congress have wanted to
depart this approach because newborns of illegal immigrants automatically become
citizens. Other states use the jus sanguinis rule, with the nationality of the parents
passing to their children regardless of where births occur. If a child is born to parents
of differing nationalities, many states have accorded the nationality of the father to
the offspring, a practice women’s groups have understandably opposed. For the large
majority of people, the distinction between jus soli and jus sanguinis is not important
because they are usually born on the territory where both parents are citizens.
Most people readily meet both criteria (Aleinikoff & Klusmeyer 2002: 7; see also
Castles & Davidson 2000).
Box 5.3 The United States as a Jus Soli State
U.S. v. Wong Kim Ark, U.S. Supreme Court 1898, 169 U.S. 649
As a 21-year-old, Wong Kim Ark left the United States for China in 1894 and
when he returned in 1895 was refused entrance by customs. He had been
born in San Francisco in 1873 to Chinese parents still possessing Chinese
nationality. At the time, naturalization for Chinese as American citizens was
not allowed, and Chinese persons entered the United States as laborers at the
US government’s discretion.
Wong Kim Ark sued, insisting he was an American citizen by reason of birth
on US soil. The case reached the US Supreme Court, which cited the 14th
Amendment to the US Constitution: “All persons born or naturalized in the
United States and subject to the jurisdiction thereof, are citizens of the United
States.” The case affirms the status of the United States as a jus soli state.
Source: Further reading on this case is available at
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have two countries any more than two wives (Koslowski 2003: 158). The 1930 Hague
Convention on Certain Questions Relating to the Conflict of Nationality Laws contains in
its preamble the much-quoted phrase, “[E]very person should have a nationality and
should have one nationality only” (Aleinikoff & Klusmeyer 2002: 158).
Box 5.4 “Genuine Link” and Citizenship
Friedrich Nottebohm was born a German national in 1881 but spent most of his
life in Guatemala as a rich landowner. Given the looming outbreak of the Second
World War and Guatemala’s likely alliance with the United States, Nottebohm
anticipated being interned with loss of property for being a citizen of an enemy
state. To avoid an ill fate, Nottebohm managed to acquire citizenship in the
neutral country of Liechtenstein, even having the usual three-year waiting period
waived. Upon returning to Guatemala with Liechtenstein passport in hand, he
was nonetheless interned and lands seized. After the war, Liechtenstein brought
a case against Guatemala, under the compulsory jurisdiction of the ICJ, to assert
Nottebohm’s citizenship status.
The ICJ ruled against Liechtenstein, noting that Nottebohm’s new citizenship
was a matter of convenience and not a “genuine link” to a country where
he had no intention of living. Guatemala was under no obligation to accept a
citizenship of contrivance.
Source: This case can be read at > cases > contentious cases >
1951 Nottebohm.
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136 Making the World More Lawful
Against this bedrock of resistance, a new climate about nationality gradually
evolved. The way many people live today no longer comports well with a single
national identity. Millions of people migrate as “guest-workers,” transnational marriages
are commonplace, people have business interests in more than one country,
and inexpensive travel and communication allow people to carry on lives in more
than one country.19
Dual nationality status typically originates from being born in a jus soli country
to parents who have emigrated from a jus sanguinis state. An individual has a citizenship
because of where he or she is born and a second through the bloodline of parents.
As David A. Martin has observed, it just so happens that the most common
migration pattern of the world involves people going to jus soli countries while leaving
those that are jus sanguinnis (Martin & Hailbronner 2003: 5–12).
An estimated 500,000 children born each year in the United States could potentially
acquire dual nationality. The United States reluctantly began accepting dual
nationality based on federal court decisions beginning in the 1960s, despite the
retention of a citizen-naturalization oath that calls on a new citizen to renounce past
Box 5.5 Citizenship and Treason
Kawakita v. U.S., United States Supreme Court 1952, 343 U.S. 717
Choosing to switch allegiances in time of war can be a very risky decision,
sometimes resulting in a charge of treason. Although the definition and punishment
for this crime varies, treason generally means giving aid and comfort to
the enemy of one’s country, in an effort to defeat said country or to overthrow
its government. The death penalty has been a common punishment in
time of war.
Japanese–American Tomoya Kawakita, born in the United States, left
America in 1939 at age 18 to study in Japan. Living there as the Second World
War began, he registered as a Japanese citizen and acquired a Japanese passport.
His specific crime was to work for Japanese authorities, primarily as a
translator, supervising American POWs in a cruel slave-labor system that cost
many Americans their lives.
Justice William O. Douglas referred to Kawakita’s “fair-weather citizenship”
as he voted with the majority in 1952 to confirm a lower federal court’s conviction
and sentence of death. Later, President Dwight Eisenhower commuted
his sentence to life in prison, followed by President John Kennedy’s decision a
decade later to free and deport him to Japan.
Sources: Also, see Thomas M. Franck, “Clan and Super-clan: Loyalty, Identify and
Community in Law and Practice,” American Journal of International Law (1996) 90 (3),
p. 378, see footnote 67. Further reading on this case is available at http://supreme.
9781405197649_4_005.indd 136 11/5/2009 3:39:15 PM
Jurisdiction: Domain over Places and Persons 139
because of a large gap in views among states about such matters as a speedy and fair
trial, appropriate punishments, and the quality of prison conditions. The Third
World sees the international standards position as a way to insist that foreigners
receive special treatment, but the West counters that justice anywhere should be
applied according to a minimal standard derived from universal human rights.
More alien issues have probably arisen over foreign business enterprises, or MNCs,
than individuals. Communist and Third World countries for decades tended to be
unfriendly toward MNCs, which were viewed as exploiters. Their capitalist enterprises
resulted in profit-making that was wealth sent back home instead of re-invested in
Third World national economies. This interpretation caused foreign corporations to
be viewed as candidates for expropriation. This is a seizure of foreign-held property
and its transfer to the control of the government of the seizing state. The Western
states, as the home-states of most MNCs, expected prompt compensation but payment
was not always forthcoming. Investment agreements and arbitration have
helped relieve this problem.
When business and other contract disputes have surfaced involving aliens, Latin
American and other Third World countries have tried in the past to apply the Calvo
Clause (not to be confused with the Calvo Doctrine), which requires aliens to rely
on local remedies instead of turning to the diplomatic services of their countries. To
a Third World country, the Calvo Clause puts home-grown and foreign businesses
on an equal footing and therefore seems fair. To a foreign government, however, its
Box 5.6 The Ehime Maru and State Responsibility
On February 9, 2001, the nuclear submarine USS Greenville, while practicing an
emergency surfacing drill, struck and sank the Ehime Maru 9 miles from the
Hawaiian Island of Oahu. This vessel was a Japanese fishing-training vessel
180 feet in length and with 830 tons displacement. The Ehime Maru went
down in 10 minutes with 26 people rescued and 9 lost, including 4 teenagers.
Responsibility of the United States was undisputed. The case could have
been settled by American Admiralty Law, since the wreck occurred in US territorial
waters, or by rules of international law. International law would require
an award for replacement costs only. The Japanese government, however,
wanted the raising of the fishing vessel so the bodies could be recovered for
proper burial, a very important practice in Japanese culture. By November
2002, an agreement was reached with $11.47 million given to replace the boat
and for other associated costs. The United States additionally spent millions
more to drag the vessel to a depth that allowed for the recovery of all the bodies
save one, and then the United States made an official apology to Japan.
Source: The information presented here depends in part on Thomas J. Schoebaum,
“The Ehime Maru Incident and the Law,” > Publications > Insights >
ASIL Insights > 2001.
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142 Making the World More Lawful
Box 5.7 The S.S. Lotus Case
September 7, 1927
On August 2, 1926, the French-flagged SS Lotus wrecked with the Turkish coalcarrier
Boz-Kourt, causing the latter to sink with a loss of eight lives. The Lotus
picked up the survivors and the next day docked in Constantinople. The
Turkish government began prosecution against both Lt Demons, the deck
officer of the Lotus and the Turkish captain of the Boz-Kourt, finding them both
culpable. A Turkish court sentenced Demons to 80 days confinement and a
22-pound fine, with the Turkish captain receiving a slightly more severe punishment.
France objected and demanded an indemnity of 6,000 Turkish pounds for
what the French government regarded as the wrongful arrest and conviction
of Lt Demons. However, the PCIJ ruled in favor of Turkey on the grounds that
the Turkish vessel assimilates to Turkish territory allowing the application of
Turkish criminal law.
This precedent was overturned later by the 1958 Convention on the High
Seas and the 1982 LOS Convention. If a similar incident occurred today, jurisdiction
would belong to the French under the nationality principle based on
the nationality of Lt Demons and that of the S.S. Lotus. This position is exactly
the one the French government took in 1927. The Permanent Court of
International Justice (PCIJ) merely reflected on the passive personality principle
where Turkish loss of life was concerned, but did not grant jurisdiction to
Turkey on this basis.
Source: This case can be read in Manley O. Hudson (ed.), World Court Reports, vol. II,
1927–32 (Dobbs Ferry, NY: Oceana Publications, 1969).
citizens could randomly or deliberately become the victims of terrorist attack anywhere
or political repression in many countries.
The third and fourth principles of extraterritorial jurisdiction involve the effects
and protective principles. Some legal writers collapse the two together, but that is not
the choice here. Both involve wrongful acts that begin outside a country but, nonetheless,
impact that country in some way. The effects principle applies to nonsecurity
issues such as environmental damage that begins in one country but affects
another as happened in the Trail Smelter case between Canada and the United States,
when the territory of the United States was harmed environmentally by a smelting
process in Canada. When security threats arise outside a country, the perpetrators,
whether they are citizens of the threatened country or foreigners, may find themselves
sought under the protective principle. Acts to overthrow the government,
commit espionage, carry on smugg

Box 6.2 Consular Immunity Has Limits
In 1926, a Princess Zizianoff, originally of Russia, sued Consul Bigelow for
defamation of character in a French court. Mr Bigelow was an American official
working for the American Consulate General in Paris and in charge of
passports and visas. After turning down the Princess for a visa to enter the
United States, he shared his rationale for the visa denial with the press, including
the accusation that Princess Zizianoff was an international spy. Bigelow,
along with persons associated with the Paris office of the Boston Sunday Post,
was successfully sued by the Princess in 1927 at the bar of the Conventional
Tribunal of the Seine.
On Bigelow’s appeal, the case made its way to the Court of Appeal of Paris
in 1928. The court ruled that the 1853 Consular Convention did not protect
him from what the court called a “private act,” providing negative information
about the Princess to the public via the public press. The question for the court
was whether Bigelow’s action fell outside the purview of his official duties, and
it ruled that his action did so. Undoubtedly, the 1963 Consular Convention
would not protect a consular officer performing an injurious private act.
Sources: This case was reprinted as “Princess Zizianoff v. Kahn and Bigelow,” AJIL, 21
(4) (1927), pp. 811–15; and see the case as appealed, “Bigelow v. Princess Zizianoff
et al.,” American Journal of International Law, 23 (1) (1929), pp. 172–9.
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162 Making the World Safer
Box 6.3 Radwan v. Radwan
England, Family Division, 1972, 3 W.L.R. 735
Although there may be in the public mind an image of embassies and consulates
representing foreign soil as an exercise of extraterritorial jurisdiction,
modern international law does not support this position, as the Radwan case
demonstrates. Mary Isobel Radwan filed for divorce in 1970 in English courts
and at the same time argued that her husband’s effort at a Muslim divorce
earlier that same year be set aside.
Mr Radwan, a Muslim and citizen of Egypt, had married Mary Radwan as his
second wife in a Egyptian consulate in Paris, France. He sought to divorce her
by exercising Talaq rules in the Egyptian Consulate-General’s offices in London.
He decreed three times before two witnesses, “I divorce you” in reference to
Mary Radwan. In 90 days the divorce would then be final.
The question for the English judge was whether this divorce was an Egyptian
divorce on Egyptian soil. Or, put another way, are the premises of an embassy
or consulate part of the territory of the sending state or of the receiving state?
While embassies and consulates have considerable immunities for diplomatic
business, they are not foreign soil with all sorts of foreign law applying within
them. Mrs Radwan acquired an English divorce on the grounds of cruelty.
Sources: Portions of the case are quoted in Christopher L. Blakesley, International Legal
System: Cases and Materials, 5th edn. (New York: Foundation Press, 2001), pp. 792–4.
Box 6.4 Beyond the Call of Duty
Japanese Consul Chiune Sugihara, assigned to Kaunas, Lithuania, on the eve of
the Second World War, defied his orders by working 18–20 hours per day to
handwrite over 2,000 visas allowing Jewish refugees to flee Europe early in the
Second World War and find sanctuary in Japan. The refugees traveled by the
Trans-Siberian Railway across much of the Soviet Union, finally arriving in Japan
and staying there for most of the war. Although the refugees were eventually sent
to a Jewish ghetto in Shanghai, China, Japan did resist its German ally’s pressures
to turn the refugees over to them. Sugihara had quit his prior post in Manchuria
in protest of the Japanese Army’s mistreatment of the local population. Given
Japan’s egregious human rights and humanitarian record during the war, this generous
act of Consul Sugihara stands out as an extraordinary exception.
Source: Reported in U.S. News and World Report (May 9, 2005), p. 72.