Page 188 - Law of Peace, Volume ,

1. Can the state granting the asylum unilaterally rights of the United States in Morocco were such that no
determine if the refugee is a political offender or a Moroccan law or regulations could be applied to United
common criminal? States nationals in Morocco without its previous consent.
No, here Colombia cannot make, under the The Court considered that the controls were dis-
treaty, such a unilateral determination. However, criminatory and therefore contrary to U.S. treaty rights.
Peru has not proven that de la Torre is a common The second contention of the U.S. gave the Court an op-
criminal.
portunity to explore the extent of U.S. consular court ju-
2. If de la Torre is a political offender lawfully in the risdiction. Such jurisdiction was formerly very common.
Colombian embassy, must Peru afford the neces- Under treaties known as "Capitulations" various states in
sary guaranteesto enablehim to leave the country the 19th century secured special immunities from local ju-
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in safety? risdiction for their citizens living in African or Asiatic
No. The 1928 treaty only provides for asylum in countries. The Court here dealt with such a treaty on its
an embassy, not for immunity while going from merits and by implication saw nothing contrary to interna-
the embassy to the border of the country. tional law in them. Now practically all "capitulation"
3. If de la Tone is a political offender, was the treaties have been terminated.
asylum granted according to the terms of the 1928 The Nottebohm Case (Liechtenstein v. Guatemala)
treaty? (195 1-1955). 125 By the Application filed on December
No, because no emergency appears to have ex- 17th, 1951, the Government of Liechtenstein instituted
isted. proceedings before the Court in which it claimed restitu-
Peru then called upon Colombia to surrender the refugee. tion and compensation on the ground that the Govern-
Colombia refused to do so, maintaining that the Court's ment of Guatemala had "acted toward the person and
judgment did not place it under an obligation to surrender property of Mr. Friedrich Nottebohm, a citizen of
de la Torre to the Peruvian authorities. A second heating Liechtenstein, in a manner contrary to international law."
was held at which the Court agreed with Colombia. The In its Counter-Memorial, the Government of Guatemala
1928 Havana Convention provided only for the surrender contended that this claim was inadmissible on a number
of common criminals. No such obligation existed in of grounds, and one of its objections to the admissibility of
regard to political offenders. The Court reasoned that Col- the claim related to the nationality of the person for whose
ombia was under an obligation to terminate the asylum. protection Liechtenstein had seized the Court.
Surrender of the refugee to the local authorities is only Nottebohm was originally a German citizen. In 1905 he
one method of terminating an asylum. Colombia was not went to Guatemala, established his center of business
restricted to that single method. there, and established a residency on and off, for a period
Throughout the case the Court was careful to point out of 34 years. In October, 1939, he applied for Liechten-
that the granting of asylum in an embassy is a derogation stein citizenship and after paying certain sums of money as
of the sovereignty of the local state, and that such deroga- waivers, and receiving preferential treatment, received his
tion, if made by treaty, must be strictly construed. It found citizenship in that same month. He then returned to
no evidence of any Latin American customary interna- Guatemala. In 1943 Nottebohm was removed to the
tional law which would permit the granting of asylum in United States by Guatemala in a war measure on the basis
the absence of a treaty. of his beiia citizen of a belligerent state. Guatemala then
The Rights of Nationals of the United States of America in proceeded against his property as an enemy alien.
Morocco Case (France v. United States) (1950-1952). 124 The case is of fundamental importance. Diplomatic pro-
In 1836 the United States and Morocco entered into a tection can only be exercised by a state on behalf of its
treaty which granted the United States "most favored na- own nationals. Nationality is conferred by a state under its
tion privileges" and certain extraterritorial rights in own laws. International law does not lay down any criteria
Morocco. In 1906 Morocco became a protectorate of which a state must meet before it canconfer its nationality
France. In the General Act of Algeciras, of that year, on an individual. Such is left to the domestic law of each
France agreed to continue foreign rights in Morocco. state. However, here the real issue was not whether Not-
By a decree of December 30, 1948, the French tebohm was a national of Liechtenstein under the laws of
authorities in the Moroccan Protectorate imposed a Liechtenstein, but whether he was the typeof national for
system of license control on certain imports. The United whom Liechtenstein had an international right to protect
States maintained that such controls did not apply to from the actions of other states. This international right
United States nationals in Morocco because, (1) they requires not merely nationality, but nationality coupled
were discriminatory in favor of France contrary to the with a real connection of interests.
General Act of Algeciras, and (2) the extraterritorial Under the circumstances, the Court found that
I Guatemala was under no obligation to recognize the
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124. [I9521 I.C.J. Rep. 1975;reported in 47 Am. J. Int'l L. 136
(1 953). 125. 11955)I.C.J. Rep.4;reportedin 49 Am. J. In17L. 396 (1955).