Name of the Case: The Lotus Case (FrancevsTurkey); Year of the decision: 1927; and Court: PCIJ.Overview: A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims were Turkish nationals and the alleged offender was French. CouldTurkeyexercise its jurisdiction over the French national under international law?

Facts of the Case:A collision occurred on the high seas between a French vessel Lotus and a Turkish vessel Boz-Kourt. The Boz-Kourtsank and killed eight Turkish nationals on board the Turkish vessel. The 10 survivors of the Boz-Kourt(including its captain) were takento Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were chargedwith manslaughter. Demons, a French national, was sentencedto 80 days of imprisonment and a fine. The French government protested, demanding the release of Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ).

Questions before the Court:Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France?

The Courts Decision:Turkey, by instituting criminal proceedings against Demons, did not violate international law.

Relevant Findings of the Court:Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdictionusing an existing rule of international law or is the mere absence of a prohibition preventing the exercise of jurisdictionenough?The first principle of the Lotus case said that jurisdiction is territorial: A State cannot exercise its jurisdictionoutside its territoryunless an international treaty or customary law permits itto do so. This is what we called the first Lotus Principle.Now the first and foremostrestriction imposed by international law upon a State is that failing the existence ofa permissive rule to the contrary it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.(para 45)The second principle of the Lotus case:Within its territory, a State may exercise its jurisdiction, on any matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law.It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application oftheir laws and the jurisdiction oftheir courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application oftheir laws and the jurisdiction oftheir courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. This discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part ofother States In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.(paras 46 and 47)This applied to civil and criminal cases. If the existenceof a specific rulewas a pre-requisite toexercise jurisdiction, PCIJ argued, thenit wouldin many cases result in paralysing the action ofthe courts, owing to the impossibility of citing a universally accepted rule on which to support the exercise of their [States] jurisdiction(para 48).The PCIJ based this finding on the sovereign will of States.International law governs relations between independent States. The rules of law binding upon States thereforemanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order toregulate the relations between these co-existing independent communities or with a view tothe achievement ofcommon aims. Restrictions upon the independence ofStates cannot therefore be presumed[NB: This was one of the more debated aspects of the judgement. Some argued that the Court placed too much emphasis on sovereignty and consent of States (i.e. took a strong positivist view)].

Criminal Jurisdiction: Territorial JurisdictionFrance alleged thatthe flag State of a vessel would have exclusive jurisdiction over offences committed on board the ship in high seas. The PCIJ disagreed. It held that France, as the flag State, did not enjoy exclusive territorial jurisdiction in the high seas in respect of a collision witha vessel carrying the flag of another State (paras 71 84). The Court held that Turkey and France both have jurisdiction in respect of the whole incident: i.e. there is concurrent jurisdiction.The PCIJheld that a ship in the high seas is assimilatedto the territory of the flag State. This State may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the exclusion ofall other States. In this case, the Court equated the Turkish vessel to Turkish territory. In this case, the PCIJheld that the offence produced its effects on the Turkish vessel and consequentlyin a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners. Turkey had jurisdiction over this case.

If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must beapplied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regardingthe offence as having been committed in its territory and prosecuting, accordingly, the delinquent.

The Lotus Case was also significant in that the PCIJsaid that a State would have territorial jurisdiction, even if the crime was committedoutside its territory, so long as a constitutive element of the crime was committedin that State. Today, we call this subjective territorial jurisdiction. In order for subjective territorial jurisdiction to be established, one must prove that the element ofthe crime and the actual crime are entirely inseparable; i.e., if the constituent element was absent the crime would not have happened.

The offence for which Lieutenant Demons appears to have been prosecutedwas an act of negligence or imprudence having its origin on board the Lotus, whilst its effects made themselves felt on board the Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that their separation renders the offence non-existent It is only natural that each should beable to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.

Customary International LawThe Lotus case gives an important dictumon creatingcustomary international law. France alleged that jurisdictional questions oncollision cases are rarely heard in criminal cases because States tend to prosecute only before the flag State. France argued that this absence of prosecutions points to a positive rule in customary lawoncollisions.TheCourt held that thiswould merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were basedon their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen, there are other circumstances calculated to show that the contrary is true.In other words, opiniojurisisreflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so far as those acts or omissions are donefollowing a belief that the said State is obligatedby law to act or refrain from acting in a particular way.

CASE NAME: Trail Smelter Case/1937

I. IDENTIFICATION1. The Issue The Consolidated Mining and Smelting Company Limited of Canada operated a zinc and lead smelter along the Columbia river at Trail, British Columbia about 10 miles north of the international boundary with the State of Washington. In the period between 1925 and 1935, the U.S. Government objected to the Canadian Government that sulfur dioxide emissions from the operation were causing damage to the Columbia River valley in an 30 mile stretch from the international boundary to Kettle Falls, Washington. The two governments resorted twice to legal arbitration, once from 1928 to 1931 and again from 1935 to 1941, in an attempt to resolve the dispute. The outcome of each decision involved some payment by the Canadian Government for damages caused to the State of Washington. The latter decision also prescribed a set of operational guidelines under which the smelter at Trail should conclude its operations for at least a year-and-a-half. The main concern of the United States was that the smelter's sulfur dioxide emissions were harming the land and the trees of the Columbia River Valley which were used for logging, farming, and cattle grazing; the three industries crucial to the area. The main species affected were yellow pines, Douglas firs, larch, and cedar. Affected harvests included alfalfa, wheat, and oats.

2. Description In 1896, a smelter located in Trail, British Columbia, began operating under American ownership. However, in 1906, the Consolidated Mining and Smelting Company of Canada, Ltd. Bought the smelter plant in Trail. This company expanded the plant in size and in turn in its capacity to smelt zinc and lead ores. However, in 1925 and in 1927, two large, 400-foot smoke stacks were built. There was a resulting increase in the amount of sulfur emitted into the air. Within that same time period the amount of sulfur released from the plant on a monthly basis almost doubled from what it had been in 1924. The amount of sulfur released in 1924 was about 4,700 tons per month. But in 1927, the amount had risen to 9,000 tons per month. These increases continued because this smelting operation of zinc and lead had become one of the largest in North America. Finally, the effects of these harmful amounts of sulfur being released were noticed in the State of Washington. The effects were noticeable because for every ton of sulfur released into the air there are two tons of sulfur dioxide created. It was this increase in sulfur dioxide that was detected through the rains. In the period between 1928 and 1935, the Government of the United States filed complaints with the Government of Canada that sulfur dioxide emissions from the Trail smelter had damaged the Columbia River Valley. On August 7, 1928, the issue was referredto the International Joint Commission by the United States and Canada (IJC-UC) for settlement. The IJC-UC decided on February 28, 1931 that the Trail smelter should limit its sulfur dioxide emissions and that Canada should pay the United States US$350,000 as compensation for damages.

Despite the IJC-UC decision, the conditions at the Trail smelter did not improve. Consequently, by February 1933 the U.S. Government was refiled complaints to the Canadian Government about the situation at the smelter. These set of complaints led to an emissions convention which was signed by the two parties on April 15, 1935. The Convention called for the creation of a Tribunal to determine the answers to four questions:

1. Had damage been done to Washington State by the smelter since January 1, 1932? 2. If the smelter was found to have done damage, should it be made to refrain from doing so in the future? 3. Should the smelter operate under any restrictions? 4. Should any compensation be paid in light of the answers to questions 2 and 3?{2}

After both the Canadian and U.S. Governments presented their evidence to the Tribunal in January of 1938, the Tribunal informed the governments on April 16, 1938 that it had a final decision on Question 1, but required more time to answer the other 3 questions. It also asked that the smelting operation at Trail have restrictions placed on it to study the effects of its sulfur dioxide emissions. The two governments agreed to the trial restrictions (1938-1940). As for the Tribunal's decision on question 1, it was determined that the Government of Canada should pay the United States US$78,000 for damage that the Trail Smelter had done to the State of Washington from 1932 to October 1, 1937.

This compensation was primarily for damage done to land along the Columbia River valley in the United States. The Tribunal decided that the United States had not displayed enough evidence for damage to livestock or businesses in Washington State from the operation of the Trail smelter.

Following the trial restrictions, the Tribunal gave its answer to the final 3 questions on March 11, 1941. It had decided that the Trail Smelter should refrain from causing any future damage to the State of Washington from its sulfur dioxide emissions. To ensure this, it mandated that the smelter maintain equipment to measure the wind velocity and direction, turbulence, atmospheric pressure, barometric pressure, and sulfur dioxide concentrations at Trail. Readings from these instruments were to be used by the smelter to keep its sulfur dioxide emissions at or below levels determined by the Tribunal. Moreover, copies of the readings were to be supplied to both governments monthly so that they could see the smelter's compliance. If the smelter could not keep to the prescribed sulfur dioxide levels, then compensation could be awarded to the United States as determined by the Tribunal and the Canadian Government.

Despite the U.S. Government's contention that the emissions from Trail damaged the land, livestock, and businesses in almost 140,000 acres along the Columbia River valley in northern Washington State, the Tribunal only found that real damage had been done to the uncleared forest land and cleared farm land along the Columbia River. In November of 1949, the U.S. Secretary of State wrote a note to the Canadian Ambassador to the United States to offer to refund to the Canadian Government US$8,828.19 of the money that the Canadian Government had paid to the United States as compensation for damages caused by operation of the Trail smelter. This money was what was left over from the US$428,179.51 that the Canadian Government had paid as damages after the U.S. Government had paid off all of the claims of individual property owners in Washington State against the Trail smelter. The Canadian Government accepted this refund in January of 1950.

BLACKMER V. UNITED STATESHarry M. Blackmer (defendant) is a United States citizen but a resident of Paris, France. The United States government (plaintiff) issued two subpoenas requesting Blackmer appear as a witness on its behalf at a criminal trial. Blackmer failed to appear, and two separate contempt actions were instituted against him in the Supreme Court of the District of Columbia. The contempt actions were based on a United States statute which provides that whenever the attendance at the trial of a criminal action of a witness abroad, who is a citizen of the United States or domiciled therein, is desired by the Attorney General, or any assistant or district attorney acting under him, the judge of the court in which the action is pending may order a subpoena to issue, to be addressed to a consul of the United States and to be served by him personally upon the witness with a tender of traveling expenses. Additionally, upon issuance of the subpoena and failure of the witness to appear, the court may issue an order requiring the witness to show cause why he should not be punished for contempt. Once the order is issued, the court may seize the property of the witness to be held by the United States to satisfy any judgment which might be rendered against the witness in the proceeding. Service is affected through both personal service on the witness and through publication in a newspaper of general circulation in the district where the court is sitting. If, after a hearing, the charge against the witness is sustained, the court may find the witness guilty of contempt and impose upon him a fine to be satisfied by the seized property. Blackmer was found guilty of contempt on both counts, and a fine of $30,000 was imposed in both cases. The fine was to be satisfied out of Blackmers property which had been seized by the court. On appeal, Blackmer objected to the statute supporting his contempt convictions on the ground that it violated the Fifth Amendment to the United States Constitution. Blackmer stated five arguments in support of this contention. Most notably, he argued that the statute did not comply with due process requirements under the United States Constitution. The court of appeals affirmed the contempt decrees, and the United States Supreme Court granted certiorari.ISSUEHELD1. A citizen of the United States residing in a foreign country continues to owe allegiance to the United States and is bound by its laws made applicable to his situation. P.284 U. S. 436.2. The power to require the return of absent citizens in the public interest is inherent in sovereignty, and what in England was the sovereign prerogative in this respect pertains, under our constitutional system, to the national authority, exercisable by Congress, to prescribe the duties of the citizens of the United States. P.284 U. S. 437.3. One of the duties of such absent citizens to the United States is that of attending its courts to give testimony when properly summoned, and Congress may provide for the performance of this duty and prescribe penalties for disobedience.NOTTEBOHM CASE (SECOND PHASE) Judgment of 6 April 1955Brief Fact Summary.A month after the start of World War II, Nottebohn (P), a German citizen who had lived in Guatemala (D) for 34 years, applied for Liechtenstein (P) citizenship.Synopsis of Rule of Law.Nationality may be disregarded by other states where it is clear that it was a mere device since the nationality conferred on a party is normally only the concerns of that nation

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

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, Judgead 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.

Filartiga v. Pena-Irala, Court of Appeals, Second Circuit, 30 June 1980FACTS:The suit was brought by an alien residing in the United States against a former official of Paraguay then visiting the United States. The complaint alleged torture of the plaintiff's brother (see below) leading to his death. The court of appeals ruled that deliberate torture perpetrated by a person invested with official authority was a violation of customary law supporting the jurisdiction of the district courts over "a civil action by an alien for a tort only, committed in violation of the law of nations." (see 28 U.S.C. 1350) The court further declared that "indeed, for purposes of civil liability, the torturer has become like the pirate and slave trader before himhostis humani generis, an enemy of all mankind" (at 890). The court found that torture perpetrated by a person invested with official authority violates universally accepted human rights norms, regardless of the nationality of the parties. Whenever an alleged torturer is found and served with process by an alien within US territory, 28 U.S.C. 1350 applies and provides federal jurisdiction.

Filrtiga v. Pea-Irala, 630 F.2d 876 (2d Cir.1980), was a landmark case inUnited Statesandinternational law. It set the precedent forUnited States federal courtsto punish non-American citizensfortortiousacts committed outside theUnited Statesthat were in violation ofpublic international law(the law of nations) or any treaties to which theUnited Statesis a party. It thus extends thejurisdictionof United States courts to tortious acts committed around the world. The case was decided by a panel of judges from theUnited States Court of Appeals for the Second Circuitconsisting of JudgesFeinberg,Kaufman, andKearse.The Filrtiga family contended that on March 29, 1976, their seventeen-year-old son Joelito Filrtiga waskidnappedandtorturedto death by Amrico Norberto Pea Irala. All parties were living inParaguayat the time, and Pea was theInspector GeneralofPoliceinAsuncin, the capital of Paraguay. Later that same day, police brought Dolly Filrtiga (Joelito's sister) to see the body, which evidenced marks of severe torture. The Filrtigas claimed that Joelito was tortured in retaliation for the political activities and beliefs of his father Joel Filrtiga.

Filrtiga broughtmurdercharges against Pea and the police in Paraguay, but the case went nowhere. Subsequently, the Filrtigas' attorney was arrested, imprisoned, and threatened with death. He was later allegedlydisbarredwithout just cause.In 1978, Dolly Filrtiga and (separately) Amrico Pea came to the United States. Dolly applied for political asylum, while Pea stayed under a visitor's visa. Dolly learned of Pea's presence in the United States and reported it to theImmigration and Naturalization Service, who arrested anddeportedPea for staying well past the expiration of his visa.

When Pea was taken to theBrooklyn Navy Yardpending deportation, Filrtiga lodged a civil complaint in U.S. courts, brought forth by theCenter for Constitutional Rights, for Joelito'swrongful deathby torture, asking for damages in the amount of $10 million.[1]After an initial district court dismissal citing precedents that limited the function of international law to relations between states, on appeal, the circuit ruled that freedom from torture was guaranteed under customary international law.[1]"The torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind", wrote the court.

The appellants argued that Pea's actions had violated wrongful death statutes, theUnited Nations Charter, theUniversal Declaration of Human Rights, theAmerican Declaration of the Rights and Duties of Man, and other customary international law. Petitioner claimed the U.S. courts had jurisdiction to hear the case under theAlien Tort Statute, which grants district courts original jurisdiction to hear tort claims brought by an alien that have been "committed in violation of the law of nations or a treaty of the United States".[2]This case interpreted that statute to grant jurisdiction over claims for torts committed both within the United States and abroad.

HELD:U.S. courts eventually ruled in favor of the Filrtigas, awarding them roughly $10.4 million. Torture was clearly a violation of the law of nations, and the United States did have jurisdiction over the case since the claim was lodged when both parties were inside the United States. Additionally, Pea had sought to dismiss the case based onforum non conveniens, arguing that Paraguay was a more convenient location for the trial, but he did not succeed.United States v. Yunis 924 F.2d 1086 (1991)CASE SYNOPSIS:Defendant was convicted of conspiracy, aircraft piracy, and hostage taking. The United States District Court for the District of Columbia denied his pretrial motions that related to jurisdiction, illegal arrest, and the government's withholding of classified documents during discovery. Defendant appealed the denial of his motions.

CASE FACTS:Defendant and four other men boarded an airline flight before its departure from Beirut, Lebanon. They carried military assault rifles, ammunition bandoleers, and hand grenades. The hijackers explained to the crew and passengers that they wanted the plane to fly to Tunis, where a conference of the Arab League was under way and that they wanted a meeting with delegates to the conference. Their ultimate goal was removal of all Palestinians from Lebanon. At defendant's trial, he admitted participation in the hijacking and offered the affirmative defense of obedience to military orders and asserted that he acted on instructions given by his superiors in Lebanon's Amal Militia. The jury convicted him of conspiracy, hostage taking, and air piracy.HELD:Nor is jurisdiction precluded by norms of customary international law. The district court concluded that two jurisdictional theories of international law, the "universal principle" and the "passive personal principle," supported assertion of U.S. jurisdiction to prosecute Yunis on hijacking and hostage-taking charges. See Yunis, 681 F.Supp. at 899-903. Under the universal principle, states may prescribe and prosecute "certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism," even absent any special connection between the state and the offenseUnder the passive personal principle, a state may punish non-nationals for crimes committed against its nationals outside of its territory, at least where the state has a particularly strong interest in the crime. See id. at Sec. 402 comment g; United States v. Benitez, 741 F.2d 1312, 1316 (11th Cir.1984) (passive personal principle invoked to approve prosecution of Colombian citizen convicted of shooting U.S. drug agents in Colombia), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 698 (1985).