Túnel de viento de circuito cerrado

On the 8th August, 1945, the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic, and the Government of the Union of Soviet Socialist Republics entered into an agreement establishing this Tribunal for the trial of war criminals whose offences have no particular geographical location. In accordance with Article 5, the following Governments of the United Nations have expressed their adherence to the Agreement:

Greece, Denmark, Yugoslavia, the Netherlands, Czechoslovakia, Poland, Belgium, Ethiopia, Australia, Honduras, Norway, Panama, Luxemburg, Haiti, New Zealand, India, Venezuela, Uruguay, and Paraguay.

It is estimated that there are forty-eight members of the group, that eight of these are dead and seventeen are now on trial, leaving only twenty-three at the most as to whom the declaration could have any importance.

The Tribunal consisted of four members (each with an alternate), one appointed by each of the signatories of the Agreement. The members of the Tribunal were Lord Justice Geoffrey Lawrence, president, (United Kingdom), Mr Francis Biddle (United States), M. Donnedieu de Vabres (France) and Major General I.T. Nikitchenko (Soviet Union)

Proceedings before the Tribunal were conducted in the Palace of Justice, Nuremberg, which in normal times housed the German regional appellate court. The trial began on 20th November 1945 and the hearing of evidence and the speeches of counsel concluded on 31st August 1946. The Tribunal delivered its judgment on 1st October 1946.

The Charter of the Tribunal included the following provisions:

Jurisdiction and General Principles ARTICLE 6

The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organisations, committed any of the following crimes.

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for

(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war;

or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

ARTICLE 7

The official position of Defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

ARTICLE 8

The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

Extracted below are some observations made by the Tribunal on general issues including state jurisdiction, the liability of individuals for crimes under public international law, act of state as a defence and the scope of crimes against humanity as defined in the Charter.]

The Tribunal: ...

The Law of the Charter

The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive, and binding upon the Tribunal.

The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world. The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.

The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law. ...

It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon states has long been recognized. ... 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. ...

The principle of international law, which under certain circumstances, protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. ...

On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law. ...

War Crimes and Crimes Against Humanity

The evidence relating to war crimes has been overwhelming, in its volume and its detail. It is impossible for this judgment adequately to review it, or to record the mass of documentary and oral evidence that has been presented. The truth remains that war crimes were

armament production and similar tasks connected with the war effort. Hostages were taken in very large numbers from the civilian populations in all the occupied countries, and were shot as suited the German purposes. Public and private property was systematically plundered and pillaged in order to enlarge the resources of Germany at the expense of the rest of Europe. Cities and towns and villages were wantonly destroyed without military justification or necessity. ...

The persecution of the Jews at the hands of the Nazi Government has been proved in the greatest detail before the Tribunal. It is a record of consistent and systematic inhumanity on the greatest scale. ...

With regard to Crimes Aainst Humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic. The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt.

To constitute Crimes Against Humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were Crimes Against Humanity within the meaning of the Charter, but from the beginning of the war in 1939 War Crimes were committed on a vast scale, which were also Crimes Against Humanity; and in-so-far as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute War Crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted Crimes Against Humanity.

V. Territory (A.

Modes of Acquisition)

1. Acosta Islands of Las Palmas Case (US v. Netherlands), 2 UN RIAA 829

2. Abong Minquiers and Ecrehos Case, ICJ, 1953

3. Vitorillo Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia)

ICJ, 17 December 2002

4. Culajara Legal Status of Eastern Greenland, Permanent Court of International Justice

5 April 1933 5. Sarmiento Case Concerning the Temple of Preah Vihear

ICJ, 15 June 1962

(B. UNCLOS)

6. Dadayan Magallona v. Executive Secretary G.R. No. 187167, 16 July 2011

7. Fontanilla Arigo v. Swift G.R. No. 206510,

16 September 2014

8. Mediodia The Corfu Channel Case ICJ, 1949

9. Alih Camouco Case (Panama v. France), 7 February 2000 10. Pelausa M/V Saiga, (St. Vincent & Grenadines v. Guinea) 1 July 1999

11. Dizon Gulf of Maine Case, (Canada v. US) ICJ Reports 1994 12. Manda Southern Blue Fin Tuna Cases (New Zealand and

Australia v. Japan, Order on Request for Provisional Measures

27 August 1999.

1. ISLANDS OF LAS PALMAS CASE (U.S. VS. NETHERLANDS), 2 UN RIAA 829 Facts:

The US and Netherlands are both claiming sovereignty over the Islands of Palmas (called Miangas by Netherlands). Palmas/Miangas is an island located about halfway between Cape San Augustin (Mindanao, Philippine Islands under US colonial regime) and the most northerly island of the Nanusa group (Indonesia under the Netherlands East Indies)

On January 23, 1925, both countries, through an exchange of letters, agreed to arbitration by Permanent Court of Arbitration at The Hague. Pursuant to their agreement, since both countries could not agree who to select as arbitrator, Max Huber, of Zurich (Switzerland), member of the Permanent Court of Arbitration was to act as sole arbitrator.

On January 21, 1906 General Leonard Wood, who was then Governor of the Province of Moro, Philippine Islands, arrived in the island of Palmas and discovered that the Netherlands was claiming sovereignty over it. Thereafter, the US made a statement that it is part of the Philippine Islands based on the Treaty of Paris where Spain ceded the Philippine Islands to the US. They allege that “the most reliable cartographers and authors and even by treaty, particularly the Treaty of Münster of 1648, which was agreed to by Spain and the Netherlands.” In the said treaty, between Spain and Netherlands, the latter recognizes the territories conquered by the former. Thus, the US, as successor of Spain in the Philippine Islands, by virtue thereof, they discovered the islands had sovereignty over it.

In addition, the US maintains that Palmas forms a geographical part of the Philippine islands and by virtue of the principle of contiguity, it belongs to the Power having the sovereignty over the Philippines.

As a consequence, the US believes that since they are successors of Spain, who had sovereignty over the island, they no longer have to prove that they exercise actual sovereignty over it.

The Netherlands argues that it has possessed and exercised rights of sovereignty from 1677, or probably from a date prior even to 1648, to the present day. This sovereignty arose out of conventions entered into with native princes of the Island of Sangi, establishing the suzerainty of the Netherlands over the territories of these princes, including Palmas (or Miangas).

Issue: W.O.N the US has sovereignty over the islands of Las Palmas.

Ruling:

No.

Spain could not transfer more rights than she herself possessed. Thus, the US cannot claim sovereignty. The Netherlands title of sovereignty, acquired by continuous and peaceful display of state authority during a long period of time going probably back beyond the year 1700, therefore holds good.

Discussion:

Titles of acquisition of territorial sovereignty in present- day international law are either based on:

a) an act of effective apprehension, such as occupation or conquest, or,

b) cession which presuppose that the ceding and the cessionary Power or at least one of them, have the faculty of effectively disposing of the ceded territory.

c) natural accretion can only be conceived of as an accretion to a portion of territory where there exists an actual sovereignty capable of extending to a spot which falls within its sphere of activity.

Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a state. This right has as corollary a duty: the obligation to protect within the territory the rights of other states, in particular their right to integrity and inviolability in peace and in war, together with the rights which each state may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the state cannot fulfill this duty.

Practice, as well as doctrine, provides that “continuous and peaceful display of territorial sovereignty”

(peaceful in relation to other States) is as good as a title. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas.

In this case, the US cannot rely on Spain’s cession of the Philippine Islands because Spain did not exercise sovereignty in Las Palmas. First, Spain was silent on the matter. Second, Spain nor the US did not provide evidence of exercising actual sovereignty.

If we consider as positive law at the period in question the rule that discovery as such, i.e., the mere fact of seeing land, without any act, even symbolical, of taking possession, involved ipso jure territorial sovereignty and not merely an “Inchoate title,” a jus ad rem, to be completed eventually by an actual and durable taking of possession within a reasonable time, the question arises whether sovereignty yet existed at the critical date. If Spain had been exercising sovereignty then there should be evidence of conflict between Spain and the Netherlands.

In any case, it is conclusive that, Spain may have had title to the island upon discovery, but it failed to maintain it as it did not exercise its authority.

Even admitting that the Spanish title still existed as inchoate in 1898 and must be considered as included in the cession under Article III of the Treaty of Paris, an inchoate title could not prevail over the continuous and peaceful display of authority

Re: Contiguity Argument

Although states have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation, it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong

than another, either by agreement between the parties, or by a decision not necessarily based on law;

but as a rule establishing ipso jure the presumption of sovereignty in favor of a particular state, this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation between the right to exclude other states from a region and the duty to display therein the activities of a state. Nor is this principle of contiguity admissible as a legal method of deciding questions of territorial sovereignty; for it is wholly lacking in precision and would in its application lead to arbitrary results.

The Netherlands had actual title because it had exercised authority on the island since 1677.

The East India Company established Dutch sovereignty over the Island of Palmas (or Miangas) as early as the 17^th century, by means of conventions with the princes of Tabukan and Taruna, two native chieftains of the Island of Sangi, and that sovereignty has been displayed during the past two centuries The acts of indirect or direct display of Netherlands sovereignty at Palmas (or Miangas), especially in the 18th and early 19th centuries are not numerous, and there are considerable gaps in the evidence of continuous display. But apart from the consideration that the manifestations of sovereignty over a small and distant island, inhabited only by natives, cannot be expected to be frequent, it is not necessary that the display of sovereignty should go back to a very far distant period. It may suffice that such display existed in 1898, and had already existed as continuous and peaceful before that date long enough to enable any Power who might have considered herself as possessing sovereignty over the island, or having a claim to sovereignty, to have, according to local conditions, a reasonable possibility for ascertaining the existence of a state of things contrary to her real or alleged rights Thus, the Netherlands has sovereignty.

Submitted by: Acosta