The General Principles of Law as Applied by International Tribunals to Disputes on Attribution and Exercise of State Jurisdiction: Proefschrift ter Verkrijging van den Graad van Doctor in de Rechtsgeleerdheid aan de Rijksuniversiteit te Leiden, op Gezag v

281 Pages·1946·15.37 MB·English

by  Alexander Marie Stuyt (auth.)

THE GENERAL PRINCIPLES OF LAW
THE GENERAL PRINCIPLES OF LAW
AS APPLIED BY INTERNATIONAL TRIBUNALS TO DISPUTES
ON ATTRIBUTION AND EXERCISE OF STATE JURISDICTION
PROEFSCHRIFT TER VERKRIJGING VAN DEN
GRAAD VAN DOCTOR IN DE RECHTSGELEERD
HElD AAN DE RIJKSUNIVERSITEIT TE LEIDEN. OP
GEZAG VAN DEN RECTOR MAGNIFICUS DR. B. G.
ESCHER. HOOGLEERAAR IN DE FACULT EIT DER
WIS- EN NATUURKUNDE. PUBLIEK TE VERDE
DIGEN OP WOENSDAG 3 APRIL 1946. DES NA
MIDDAGS TE 3 UUR
DOOR
ALEXANDER MARIE STUYT
GEBOREN TE AMSTERDAM
'S-GRAVENHAGE
MARTINUS NIJHOFF
1946
PATRIS PIAE MEMORIAE ET MATRI
IN MEMOR,IAM PR,OFESSOR,IS BENJAMIN MAR,l1 TELDERS
ISBN 978-94-015-0375-4 ISBN 978-94-015-0955-8 (eBook)
DOI 10.1007/978-94-015-0955-8
CONTENTS
page
INTRODUCTION IX
CHAPTER I. TERRITORIAL JURISDICTION
§ 1. NATURE OF TERRITORIAL JURISDICTION 1
§ 2. ATTRIBUTION OF TERRITORIAL JURISDICTION . 7
A. Acquisition 7
B. Delimitation . 22
I. Boundary line 24
II. B 0 u n dar y Z 0 n e 42
§ 3. EXERCISE OF TERRITORIAL JURISDICTION 45
A. International rivers . 45
I. Riparian States . 47
II. Non -rip a ria n S tat e s 55
B. State succession . 69
I. Conflict with jurisdictions of the pre-
decessor State. 71
II. Con f Ii ct wit h juri s d i c ti 0 n s 0 f the pre-
de cess or State or third States . H
CHAPTER II. PERSONAL JURISDICTION
§ 4. NATURE OF PERSONAL JURISDICTION. 96
§ 5. ATTRIBUTION OF PERSONAL JURISDICTION. 99
§ 6. EXERCISE OF PERSONAL JURISDICTION 107
A. Citizens abroad . 107
B. Private vessels outside territorial waters. 122
I. The high seas. 123
II. The mar gin a I sea 136
III. The in I and w ate r s 156
CHAPTER III. GOVERNING JURISDICTION
§ 7. NATURE OF GOVERNING JURISDICTION 172
§ 8. ATTRIBUTION OF GOVERNING JURISDICTION 179
A. Formation of States • 179
B. Transformation of States. 206
VIII
page
§ 9. EXERCISE OF GOVERNING JURISDICTION. 221
A. Diplomatic and consular service. 221
B. Public vessels outside territorial waters . 226
I. The h i g h sea s . 227
II. The mar gin a I sea 228
III. The in I and wa t e r s 231
C. Military forces on foreign territory (military occupation) . 241
I. Military occupation of alien territory
i n tim e 0 f pea c e 241
a. Garrison troops . 241
b. Occupation troops 246
II. 0 c cup a ti 0 11 0 £ en e m y t e r ri tor y i D ti m e
of war 250
a. Relations between the occupying State and its occupation
troops 250
b. Relations between the occupying State and the occupied
State . 251
c. Relations between the occupying State and the
inhabitants of the occupied State 254
CONCLUSIONS 262
ABBREVIATIONS 267
INDEX • 268
INTRODUCTION
When war is being waged, man is inclined to ask himself whether
only force is governing the relations between States. War, it is argued,
rests on a fact, not on law, and so the existence of international law,
asa body of rules applicable to the relations between States or to
the relations between States and international institutions, is called
into question. Is international law-both the law of peace and of
war-really based on general principles of law, such as domestic
law, or is it but a conception of the spirit? The problem of the
significance of general principles in international law has already
been examined bi; many authors, especially in relation to article 38
§ 3 of the Statute of the Permanent Court of International Justice,
which Court is to apply, apart from international conventions and
custom, "the general principles of law recognized bij civilized nations."
The purpose of this study was to construct a new method of inquiry
into the general principles, upon which international law is based.
International law is unwritten law. Its positive rules must be sought
in treaty texts, diplomatic correspondence, or decisions of interna
tional tribunals. The latter material will be especially used in this
study, so as to avoid data of a rather political and subjective nature.
Moreover, the international judge or arbitrator is mostly asked to
apply general rules of international law.1) I shall have occasion,
furthermore, to justify my contention in the Preface of my "Survey
of international arbitrations, 1794-1938" that decisions of arbitral
tribunals have "attained an increasing influence on the development
of international law."
How should decisions of international tribunals be analysed in
order to arrive at a synthesis of the general principles of international
law? Some authors 2) gather a number of precedents, such as "it is
a principle of universal jurisprudence that ..." , "the general principle
of civil law, according to which ..." , "according to general and uni
versally rec()gnized principles of justice ..." , etc., and they conclude
then, that, bi; way of analogy, principles of civil law, of natural law,
1) As to international arbitrations, cf. my "Survey of international arbitrations,
1794-1938", The Hague 1939, under 4b of each case.
2) Such as J. Spiropoulos: Die allgemeinen Rechtsgrundsatze im Volkerrecht, Kiel
1928; A. von Verdross: Les principes gene raux du droit dans la jurisprudence
internationale, Recueil des Cours 52 (1935) -191, etc.
x
INTRODUCTION
etc., could be transmitted into international law. It seems, however,
to be a too simple method of gathering precedents without any logic
connection: international law, as was observed by Professor J. H. W.
Verzijl, acting as President of the French-Mexican Claims Commis
sion of 1924, is something else than the simple result of an arithmetical
addition and substraction of precedents.3)
Since it is generally accepted that the elements of a State are:
t€rritory, population, and a political organization,4) it may be argued
that each State is invested with a territorial, a personal, and a go
verning jurisdiction. It is clear that, in the relations between States
as members of the international community, conflicts of state juris
dictions may arise. Such a conflict-apart from a conflict with a politic
al character-may regard, in general, either the attribution of juris
diction (e.g.: does territorial jurisdiction over island P belong to
State A or to State B?), or the exercise of jurisdiction (e.g.: is State
A, in the exercise of its territorial jurisdiction, obliged, by virtue of a
general rule of international law, to admit vessels of State B into its
ports?). It appears, as shall be seen hereafter, that general rules of
international law originate, inter alia, in the conflict of state juris
dictions and that some general principles of law underlie the category
of rules regarding the attribution of state jurisdictions, whereas other
general principles of law underlie the category of rules with respect
to the exercise of state jurisdictions. The following scheme has been
drawn up: Chapter I deals with territorial jurisdiction; § 1 with the
nature of this jurisdiction, § 2 with the attribution of territorial juris
diction, § 3 with the exercise of that jurisdiction. Chapter II deals with
personal jurisdiction; § 4 with the nature of personal jurisdiction, § 5
with the attribution of that jurisdiction, § 6 with the exercise of perso
nal jurisdiction. Chapter III deals with governing jurisdiction; § 7 with
the nature of governing jurisdiction, § 8 with the attribution of that
jurisdiction, and § 9 with the exercise of governing jurisdiction.
This study is merely an essay in method, having for its object the
analysis of general rules of international law 5) in order to arrive at
a synthesis of the underlying general principles. It is not the purpose
3) "Heureusement, toutefois, Ie droit international est autre chose que Ie simple
resultat d'une addition et soustraction arithmetiques de precedents.", Pinson case,
ed. Paris 1933, p. 48, Survey No. 363.
4) "Or, un Etat n'existe qu'a la condition de posseder un territoire, une collec
tivite d'hommes habitant ce territoire, une puissance publique s'exen;:ant sur cette
collectivite et ce territoire. Ces conditions sont reconnues indispensables et I'on
ne peut concevoir un Etat sans e1les.", Mixed Arbitral Tribunal Germany-Poland,
decision of August I, 1929, vol. 9 of the French Recueil, p. 344.
5) Rules concerning the law of treaties, of procedure, of damages, have been
.left aside.
INTRODUCTION XI
of this study, however, to examine the nature of these general prin
ciples as well-that activity lying outside the domain of the positive
science of law -, but the conclusions may, perhaps, have some in
terest as an introduction to the philosophy of law, while the three
Chapters may have a more practical interest with regard to the juri
dical aspect of some state-activities in the international community.
I am greatly indebted to Mr. R. Borregaard, M.A., of London, for
kindly reading the original text and making a number of valuable
suggestions for correcting and improving the technical language
used, a task which he conscientiously performed. 6)
6) I must apologizE. to my countrymen for not having publishe,d this dissertation
in my own language, but this book joins my Survey, which has also been published
in the English language since the Anglo-American arbitral decisions take the
greatest part in it. .
CHAPTER I
TERRITORIAL JURISDICTION
§ 1. NATURE OF TERRITORIAL JURISDICTION
Territory is something which has not only a political significance
for the existence of a State, but also a juridical one: it entitles a State
to territorial jurisdiction, whereby it may exercise its legislative, exe
cutive, and judicial power over all persons and things within that
territory. The following arbitration decisions prove this statement.
The Permanent Court of Arbitration at the Hague gave an award on
September 10, 1910,1} concerning questions between Great Britain
and the United States of America about fisheries on the North Atlant
ic Coast wherein it was held that
the right to regulate the liberties conferred by the Treaty of 1818 is an
attribute of sovereignty, and as such must be held to reside in the territorial
sovereign, unless the contrary be provided; and considering that one of the
essential elements of sovereignty is that it is to be exercised within territorial
limits, and that, failing proof to the contrary, the territory is coterminous,
with the sovereignty. 2)
Thus, within territorial limits, the territorial sovereign may rule as
he likes,3) unless the contrary be provided. Whoever seeks to rely
on a contrary rule, must prove the existence of such rule in inter
national law. This principle applies not only to citizens or inhabitants
of the country, but also to foreigners.4}
1) Survey No. 291.
2) AJ.I.L. 4 (1910) -956.
3) "Is is certain that among the most widely recognized principles of international
law are the principles that the jurisdiction of a State is territorial in character
and that in respect of its nationals a State has preferential, if not sole jurisdiction.",
France-Turkey, P.C.I.J., Judgment No.9, diss. op. Altamira, Series A No. 10, p.95.
4) "The principle of absolute and exclusive jurisdiction within the national
territory applies to foreigners as well as to citizens or inhabitants of the country,
and the foreigner can claim no exemption from the exercise of such jurisdiction,
except so far as he may be able to show either: 1) that he is, by reason of some
special immunity, not subject to the operation of the local law, or 2) that the local
law is not in conformity with international law. No presumption of immunity
arises from the fact that the person accused is a foreigner .... It is evident that
this claim is at variance not only with the principle of the exclusive jurisdiction
of a State over its own territory, but also with the equally well-settled principle
that a person visiting a foreign country, far from radiating for his protection the
jurisdiction of his own country, falls under the dominion of the local law and,
Stu y t, The general principles of law