THE PEOPLE OF THE PHILIPPINE ISLANDS vs. LOL-LO and laws in force in the Philippine Islands.
n the Philippine Islands. After the demurrer was
SARAW, G.R. No. 17958, February 27, 1922
The days when pirates roamed the seas, when picturesque buccaneers
like Captain Avery and Captain Kidd and Bartholomew Roberts
gripped the imagination, when grostesque brutes like Blackbeard
flourished, seem far away in the pages of history and romance.
Nevertheless, the record before us tells a tale of twentieth century
piracy in the south seas, but stripped of all touches of chivalry or of
generosity, so as to present a horrible case of rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession,
for Peta, another Dutch possession. In one of the boats was one
individual, a Dutch subject, and in the other boat eleven men, women,
and children, likewise subjects of Holland. After a number of days of
navigation, at about 7 o'clock in the evening, the second boat arrived
between the Islands of Buang and Bukid in the Dutch East Indies.
There the boat was surrounded by six vintas manned by twenty-four
Moros all armed. The Moros first asked for food, but once on the
Dutch boat, too for themselves all of the cargo, attacked some of the
men, and brutally violated two of the women by methods too horrible
to the described. All of the persons on the Dutch boat, with the
exception of the two young women, were again placed on it and holes
were made in it, the idea that it would submerge, although as a matter
of fact, these people, after eleven days of hardship and privation, were
succored violating them, the Moros finally arrived at Maruro, a Dutch
possession. Two of the Moro marauder were Lol-lo, who also raped
one of the women, and Saraw. At Maruro the two women were able to
escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-
Tawi, Sulu, Philippine Islands. There they were arrested and were
charged in the Court of First Instance of Sulu with the crime of piracy.
A demurrer was interposed by counsel de officio for the Moros, based
on the grounds that the offense charged was not within the jurisdiction
of the Court of First Instance, nor of any court of the Philippine
Islands, and that the facts did not constitute a public offense, under the
overruled by the trial judge, trial was had, and a judgment was
rendered finding the two defendants guilty and sentencing each of
them to life imprisonment (cadenaperpetua), to return together with
Kinawalang and Maulanis, defendants in another case, to the offended
parties, the thirty-nine sacks of copras which had been robbed, or to
indemnify them in the amount of 924 rupees, and to pay a one-half
part of the costs.
A very learned and exhaustive brief has been filed in this court by the
attorney de officio. By a process of elimination, however, certain
questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime of
piracy are present. Piracy is robbery or forcible depredation on the
high seas, without lawful authority and done animofurandi, and in the
spirit and intention of universal hostility.
It cannot be contended with any degree of force as was done in the
lover court and as is again done in this court, that the Court of First
Instance was without jurisdiction of the case. Pirates are in law
hosteshumani generis. Piracy is a crime not against any particular state
but against all mankind. It may be punished in the competent tribunal
of any country where the offender may be found or into which he may
be carried. The jurisdiction of piracy unlike all other crimes has no
territorial limits. As it is against all so may it be punished by all. Nor
does it matter that the crime was committed within the jurisdictional 3-
mile limit of a foreign state, "for those limits, though neutral to war,
are not neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for
decision for the first time is whether or not the provisions of the Penal
Code dealing with the crime of piracy are still in force. Article 153 to
156 of the Penal Code reads as follows:
ART. 153. The crime of piracy committed against Spaniards, or the
subjects of another nation not at war with Spain, shall be punished
with a penalty ranging from cadena temporal to cadenaperpetua.
Page 1 of 83

If the crime be committed against nonbelligerent subjects of another
nation at war with Spain, it shall be punished with the penalty of
presidio mayor.
ART. 154. Those who commit the crimes referred to in the first
paragraph of the next preceding article shall suffer the penalty of
cadenaperpetua or death, and those who commit the crimes referred to
in the second paragraph of the same article, from cadena temporal to
cadenaperpetua:
1. Whenever they have seized some vessel by boarding or firing upon
the same.
2. Whenever the crime is accompanied by murder, homicide, or by any
of the physical injuries specified in articles four hundred and fourteen
and four hundred and fifteen and in paragraphs one and two of article
four hundred and sixteen.
3. Whenever it is accompanied by any of the offenses against chastity
specified in Chapter II, Title IX, of this book.
4. Whenever the pirates have abandoned any persons without means of
saving themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all
others of this code, when Spain is mentioned it shall be understood as
including any part of the national territory.
ART. 156. For the purpose of applying the provisions of this code,
every person, who, according to the Constitution of the Monarchy, has
the status of a Spaniard shall be considered as such.
The general rules of public law recognized and acted on by the United
States relating to the effect of a transfer of territory from another State
to the United States are well-known. The political law of the former
sovereignty is necessarily changed. The municipal law in so far as it is
consistent with the Constitution, the laws of the United States, or the
characteristics and institutions of the government, remains in force. As
a corollary to the main rules, laws subsisting at the time of transfer,
designed to secure good order and peace in the community, which are
strictly of a municipal character, continue until by direct action of the
new government they are altered or repealed. (Chicago, Rock Islands,
etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application to
the Philippines by the Instructions of President McKinley of May 19,
1898, to General Wesley Meritt, the Commanding General of the
Army of Occupation in the Philippines, when he said:
Though the powers of the military occupant are absolute and supreme,
and immediately operate upon the political condition of the
inhabitants, the municipal laws of the conquered territory, such as
affect private rights of person and property, and provide for the
punishment of crime, are considered as continuing in force, so far as
they are compatible with the new order of things, until they are
suspended or superseded by the occupying belligerent; and practice
they are not usually abrogated, but are allowed to remain in force, and
to be administered by the ordinary tribunals, substantially as they were
before the occupations. This enlightened practice is so far as possible,
to be adhered to on the present occasion. (Official Gazette, Preliminary
Number, Jan. 1, 1903, p. 1. See also General Merritt Proclamation of
August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code
dealing with piracy were meant to include the Philippine Islands.
Article 156 of the Penal Code in relation to article 1 of the
Constitution of the Spanish Monarchy, would also make the provisions
of the Code applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the
same thing as piracy by the civil law, and he has never been disputed.
The specific provisions of the Penal Code are similar in tenor to
statutory provisions elsewhere and to the concepts of the public law.
Page 2 of 83
This must necessarily be so, considering that the Penal Code finds its
inspiration in this respect in the Novelas, the Partidas, and the
NovisimaRecopilacion.
The Constitution of the United States declares that the Congress shall
have the power to define and punish piracies and felonies committed
on the high seas, and offenses against the law of nations. (U.S. Const.
Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books the
necessary ancillary legislation, provided that whoever, on the high
seas, commits the crime of piracy as defined by the law of nations, and
is afterwards brought into or found in the United States, shall be
imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly
death: U.S. Rev. Stat., sec. 5368.) The framers of the Constitution and
the members of Congress were content to let a definition of piracy rest
on its universal conception under the law of nations.
It is evident that the provisions of the Penal Code now in force in the
Philippines relating to piracy are not inconsistent with the
corresponding provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the
United States. A logical construction of articles of the Penal Code, like
the articles dealing with the crime of piracy, would be that wherever
"Spain" is mentioned, it should be substituted by the words "United
States" and wherever "Spaniards" are mentioned, the word should be
substituted by the expression "citizens of the United States and citizens
of the Philippine Islands." somewhat similar reasoning led this court in
the case of United States vs. Smith ([1919], 39 Phil., 533) to give to
the word "authority" as found in the Penal Code a limited meaning,
which would no longer comprehend all religious, military, and civil
officers, but only public officers in the Government of the Philippine
Islands.
Under the construction above indicated, article 153 of the Penal Code
would read as follows:
The crime of piracy committed against citizens of the United States
and citizens of the Philippine Islands, or the subjects of another nation
not at war with the United States, shall be punished with a penalty
ranging from cadena temporal to cadenaperpetua.
If the crime be committed against nonbelligerent subjects of another
nation at war with the United States, it shall be punished with the
penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of
piracy, notably articles 153 and 154, to be still in force in the
Philippines.
The crime falls under the first paragraph of article 153 of the Penal
Code in relation to article 154. There are present at least two of the
circumstances named in the last cited article as authorizing either
cadenaperpetua or death. The crime of piracy was accompanied by (1)
an offense against chastity and (2) the abandonment of persons without
apparent means of saving themselves. It is, therefore, only necessary
for us to determine as to whether the penalty of cadenaperpetua or
death should be imposed. In this connection, the trial court, finding
present the one aggravating circumstance of nocturnity, and
compensating the same by the one mitigating circumstance of lack of
instruction provided by article 11, as amended, of the Penal Code,
sentenced the accused to life imprisonment. At least three aggravating
circumstances, that the wrong done in the commission of the crime
was deliberately augmented by causing other wrongs not necessary for
its commission, that advantage was taken of superior strength, and that
means were employed which added ignominy to the natural effects of
the act, must also be taken into consideration in fixing the penalty.
Considering, therefore, the number and importance of the qualifying
and aggravating circumstances here present, which cannot be offset by
the sole mitigating circumstance of lack of instruction, and the horrible
nature of the crime committed, it becomes our duty to impose capital
punishment.
The vote upon the sentence is unanimous with regard to the propriety
of the imposition of the death penalty upon the defendant and
appellant Lo-lo (the accused who raped on of the women), but is not
unanimous with regard to the court, Mr. Justice Romualdez, registers
Page 3 of 83
his nonconformity. In accordance with provisions of Act No. 2726, it
results, therefore, that the judgment of the trial court as to the
defendant and appellant Saraw is affirmed, and is reversed as to the
defendant and appellant Lol-lo, who is found guilty of the crime of
piracy and is sentenced therefor to be hung until dead, at such time and
place as shall be fixed by the judge of first instance of the Twenty-
sixth Judicial District. The two appellants together with Kinawalang
and Maulanis, defendants in another case, shall indemnify jointly and
severally the offended parties in the equivalent of 924 rupees, and shall
pay a one-half part of the costs of both instances. So ordered.
THE HOLY SEE vs. THE HON. ERIBERTO U. ROSARIO, JR.,
as Presiding Judge of theRegional Trial Court ofMakati,Branch
61 and STARBRIGHT SALESENTERPRISES, INC. G.R. No.
101949 December 1,1994
FACTS:
This petition arose from a controversyover a parcel of land, Lot 5-A,
located in theMunicipalityofParaaque, Metro Manila andregistered in
the name of petitioner. Said Lot5-A is contiguous to Lots5-B and 5-
Dregistered in the name of the Philippine RealtyCorporation (PRC).
The three lots weresoldtoRamonLicup, through Msgr. Domingo
A.Cirilos, Jr., acting as agent to the sellers.Later, Licupassigned his
rights to the sale toprivate respondent, StarbrightEnterprises.The
squatters refused tovacatethelots sold to private respondent so a
disputearose as to who of the parties hastheresponsibility of evicting
and clearing the landof squatters occurred. Complicating
therelationsofthe parties was the sale bypetitioner of Lot 5-A to
Tropicana PropertiesandDevelopmentCorporation (Tropicana).Private
respondent filed a complaint forannulment of the sale of the
threeparcels of land, and specific performance and damagesagainst
petitioner, represented by thePapalNuncio, and three other defendants:
namely,Msgr. Domingo A. Cirilos, Jr., the PRC andTropicana.
ISSUE:
WON the petitioner Holy See is immune from suit.
HELD:
YES.The logical question is whether the foreign state is engaged in the
activity in theregularcourse of business. If the foreign stateis not
engaged regularly in a business or trade,theparticularact or transaction
must then betested by its nature. If the act is in pursuit of asovereign
activity, or anincident thereof, thenit is an act
jureimperii , especially when it isnot undertaken for gain or
profit.Lot5-A was acquired by petitioner as a donation from the
Archdiocese of Manila. Thedonationwasmade not for
commercialpurpose, but for the use of petitioner to construct thereon
the official placeofresidenceof the Papal Nuncio. The right of a foreign
sovereign to acquire property, real orpersonal,in a receiving state,
necessary for the creationand maintenance of its diplomatic mission,
isrecognized in the 1961 Vienna Convention onDiplomaticRelations.In
Article 31(a) of the Convention,a diplomatic envoy is granted
immunity from thecivil and administrative jurisdiction of the
receivingstate over any real action relating toprivate immovable
property situated in the territory of thereceiving state which the
envoyholds on behalf of the sending state for thepurposes of the
mission. Ifthis immunity is provided for a diplomatic envoy, with all
themore reason should immunity berecognized as regards the
sovereign itself, which in this caseis the Holy See
SALIENT POINTS:
There are two conflicting concepts of sovereign immunity, according
to the Supreme Court: (a)Classical or absolute theory
a sovereign cannot, without its consent, be made a respondent in
thecourts of another sovereign; and (b) Restrictive theory
the immunity of the sovereign isrecognized only with regard to
public acts or acts jure imperii (public acof a state, but not with
regardto private acts or acts jure gestionis.ACTS JURE IMPERII AND
JURE GESTIONIS. - "There are two conflicting concepts of
sovereignimmunity, each widely held and firmly established.
According to the classical or absolute theory, asovereign cannot,
without its consent, be made a respondent in the Courts of another
sovereign.According to the newer or restrictive theory, the immunity
of the sovereign is recognized only withregard to public acts or acts
Page 4 of 83
jure imperii of a state, but not with regard to private act or acts
juregestionis. x xxCertainly, the mere entering into a contract by a
foreign state with a private partycannot be the ultimate test. Such an
act can only be the start of the inquiry. The logical question iswhether
the foreign state is engaged in the activity in the regular course of
business. If the foreignstate is not engaged regularly in a business or
trade, the particular act or transaction must then betested by its nature.
If the act is in pursuit of a sovereign activity, or an incident thereof,
then it is anact jure imperii, especially when it is not undertaken for
gain or profit." The service contracts referredto by private respondent
have not been intended by the ADB for profit or gain but are official
actsover which a waiver of immunity would not attach.How does the
Philippine government treat the Holy See or Vatican?
The Philippines has accorded the Holy See the status of a foreign
sovereign. The Holy See, throughits Ambassador, the Papal Nuncio,
has had diplomatic representations with the Philippinegovernment
since 1957. This appears to be the universal practice in international
relations.What is the treaty that governs the sovereign immunity of
diplomats and other state agents?
The Vienna Convention on Diplomatic Relations, which was ratified
on 18 April 1961, is acodification of centuries-old customary law
affording protection to foreign diplomats. The Conventionlists the
classes of heads of diplomatic missions to include(a) ambassadors or
nuncios accredited to the heads of state,(b) envoys, ministers or
internuncios accredited to the heads of states; and
(c) charges d affairs accredited to the ministers of foreign affairs.
Comprising the staff of the(diplomatic) mission are the diplomatic
staff, the administrative staff and the technical and service staff.
Par in parem imperium non habet. An equal has no power over an
equal. Jenk. Cent. 174. Example: One of two judges of the same court
cannot commit the other for contempt.
M.H. Wylie and Capt. James Williams vs. Aurora I. Rarang and
the IAC 209 SCRA 357 (28 May 1992)
FACTS:
AT THE NAVAL BASE. In Feb. 1978, M.H. Wylie was the assistant
administrative officer and Capt.James Williams was the commanding
officer of the US Naval Base in Subic Bay, OlongapoCity.Aurora I.
Rarang was employed as a merchandise control guard in the Office of
the ProvostMarshal.
THE POD. Wylie, in his capacity as asst. admin. officer, supervised
the publication of the NavalBase stations Plan of the Day (POD),
which featured important announcements, necessary precautions, and
general matters of interest to military personnel. One of its regular
features was theaction line inquiry.
THE CAUSE OF THIS MESS. On Feb. 3, 1978, the POD published,
under the NAVSTA Action LineInquiry, the ff:
Question: I have observed that Merchandise Control inspector/
inspectress are (sic) consuming fortheir own benefit things they have
confiscated from Base Personnel. The observation is even
moreaggravated by consuming such confiscated items as cigarettes and
food stuffs PUBLICLY. This is not to mention Auring who is in
herself, a disgrace to her division and to the Office of the
ProvostMarshal. In lieu of this observation, may I therefore, ask if the
head of the Merchandise ControlDivision is aware of this malpractice?
Answer: Merchandise Control Guards and all other personnel are
prohibited from appropriatingconfiscated items for their own
consumption or use. Two locked containers are installed at the
MainGate area for deposit of confiscated items and the OPM evidence
custodian controls access to thesecontainers. Merchandise Control
Guards are permitted to eat their meals at their worksite due to heavy
workload. Complaints regarding merchandise control guards
procedure or actions may bemade directly at the Office of the Provost
Marshal for immediate and necessary action.
Rarang was the Auring referred to here, as she was the only one with
that name in the Office of theProvost Marshall, and Wylies letter of
apology for the inadvertent publication was also conclusive proof of
this.
Page 5 of 83
AN ACTION FOR DAMAGES was instituted by Rarang against
Wylie, Williams, and the US Naval
Base. She prayed for P300K moral damages, exemplary damages, and
P50K attorneys fees.
RARANGS ALLEGATIONS: the article constituted false, injurious,
and malicious defamation andlibel tending to impeach her honesty,
virtue and reputation exposing her to public hatred, contemptand
ridicule; and that the libel was published and circulated in the English
language and read byalmost all the U.S. Naval Base
personnel.WYLIE, WILLIAMS, THE NAVAL BASE FILED A
MOTION TO DISMISS, BASED ON THESEGROUNDS:1. Wylie
and Williams acted in the performance of their official functions as
officers of the US Navyand are immune from suit;2. The US Naval
Base is an instrumentality of the US government which cannot be sued
without itsconsent; and 3. Lack of jurisdiction over the subject matter
and the parties. MOTION DENIED.
THE TCS DECISION: the acts of Wylie and Williams werent
official acts of the US government inthe operation and control of the
Base but personal and tortious acts which are exceptions to thegeneral
rule that a sovereign country cant be sued in the court of another
country without itsconsent. Thus their acts werent imputable a gainst
the US government but were done in theirindividual and personal
capacities. They were ordered to pay Rarang P100K moral and
exemplary damages, and P30K attorneys fees. However, the suit
against the US Naval Base was dismissed.
BOTH PARTIES APPEALED. Wylie and Williams asserted that they
are immune from suit since thepublication was made in their official
capacities as officers of the U. S. Navy, and that they did
notintentionally and maliciously cause the publication. Rarang
appealed as she wasnt satisfied with the award.
THE IAC MODIFIED THE TCS DECISION: Rarang was awarded
P175K moral damages and P60K exemplary damages. WYLIE AND
WILLIAMS ARGUMENT in this Petition for Review: they made the
publication in the performance of their official functions as
administrative assistant (Wylie) and commanding officer(Williams) of
the US Navy and were, therefore, immune from suit for their official
actions.
ISSUE: WON Wylie and Williams are liable for the published article
in the POD. Does the grant ofrights, power, and authority to the US
under the RP-US Bases Treaty cover immunity of its officersfrom
crimes and torts?
HELD:
YES and NO respectively.THE PRINCIPLE OF STATE IMMUNITY
FROM SUIT, QUOTING US v. GUINTO: The rule that astate may
not be sued without its consent, now expressed in Article XVI, Section
3, of the 1987Constitution, is one of the generally accepted principles
of international law that we have adopted as part of the law of our land
under Article II, Section 2Even without such affirmation, we would
still be bound by the generally accepted principles of international law
under the doctrine of incorporation As applied to the local state, the
doctrine of state immunity is based on the justification given by Justice
Holmes that there can be no legal right against the authority which
makes the law on whichthe right depends! (Kawanakoa v. Polybank)
There are other practical reasons for the enforcementof the doctrine. In
the case of the foreign state sought to be impleaded in the local
jurisdiction, theadded inhibition is expressed in the maxim par in
parem, non habetimperium . All states aresovereign equals and cannot
assert jurisdiction over one another. A contrary disposition would,
inthe language of a celebrated case, unduly vex the peace of nations.
(Da Haber v. Queen of Portugal)
While the doctrine appears to prohibit only suits against the state
without its consent, it is alsoapplicable to complaints filed against
officials of the state for acts allegedly performed by them in
thedischarge of their duties. The rule is that if the judgment against
such officials will require the stateitself to perform an affirmative act
to satisfy the same, such as the appropriation of the amountneeded to
pay the damages awarded against them, the suit must be regarded as
against the stateitself although it has not been formally impleaded
(Garcia v. Chief of Staff). In such a situation, thestate may move to
Page 6 of 83
dismiss the complaint on the ground that it has been filed without its
consent.
The doctrine is sometimes derisively called the royal prerogative of
dishonesty because of the privilege it grants the state to defeat any
legitimate claim against it by simply invoking its non-suability. That is
hardly fair, at least in democratic societies, for the state is not an
unfeeling tyrantunmoved by the valid claims of its citizens. In fact, the
doctrine is not absolute and does not say thestate may not be sued
under any circumstance. On the contrary, the rule says that the state
may notbe sued without its consent, which clearly imports that it may
be sued if it consents. The consent ofthe state to be sued may be
manifested expressly or impliedly. Express consent may be
embodiedin a general law or a special law. Consent is implied when
the state enters into a contract it itselfcommences litigation
The above rules are subject to qualification. Express consent is
effected only by the will of the legislature through the medium of a
duly enacted statute. (Rep. v. Purisima) not all contracts entered into
by the government will operate as a waiver of its non-suability;
distinctionmust be made between its sovereign and proprietary acts
(US v. Ruiz). As for the filing of acomplaint by the government,
suability will result only where the government is claiming
affirmativerelief from the defendant. (Lim v. Brownell)
THE NATURE AND EXTENT OF IMMUNITY FROM SUIT, ALSO
UNDER US v. GUINTO: In thecase of the US, the customary rule of
international law on state immunity is expressed with morespecificity
in the RP-
US Bases Treaty
The petitioners also rely heavily on Baer v. Tizon to support their
position that they are not suable, the US not having waived its
sovereign immunity from suit. It is emphasized that in Baer, the
Courtheld:
The invocation of the doctrine of immunity from suit of a foreign
state without its consent is appropriate insofar as alien armed forces
are concerned, the starting point is Raquiza v. Bradford, a 1945
decision. In dismissing a habeas corpus petition for the release of
petitioners confined byAmerican army authorities, Justice Hilado cited
Coleman v. Tennessee, where it was explicitly declared: It is well
settled that a foreign army, permitted to march through a friendly
country or to be stationed in it, by permission of its government or
sovereign, is exempt from the civil and criminal jurisdiction of the
place. Two years later, in Tubb and Tedrow v. Griess, this Court
relied on Raquizav. Bradford and cited in support excerpts from the
works of the authoritative writers Accuracy demands the
clarification that after the conclusion of the Philippine-American
Military BasesAgreement, the treaty provision should control on such
matter, the assumption being that there wasa manifestation of the
submission to jurisdiction on the part of the foreign power whenever
appropriate. More to the point is Syquia v. Almeda Lopez It was
the ruling that respondent Judgeacted correctly considering that the
action must be considered as one against the U.S.Government. The
opinion of Justice Montemayor continued: It is clear that the courts of
thePhilippines including the Municipal Court of Manila have no
jurisdiction over the present case forunlawful detainer. The question of
lack of jurisdiction was raised and interposed at the verybeginning of
the action. The U.S. Government has not given its consent to the filing
of this suit whichis essentially against her, though not in name.
Moreover, this is not only a case of a citizen filing a suit against his
own Government without the latters consent but it is of a citizen filing
an action against a foreign government without said governments
consent, which renders more obvious the lack of jurisdiction of the
courts of his country. The principles of law behind this rule are
soelementary and of such general acceptance that we deem it
unnecessary to cite authorities in support thereof.
The above observations do not confer on the US a blanket immunity
for all acts done by it or itsagents in the Philippines. Neither may the
other petitioners claim that they are also insulated fromsuit in this
country merely because they have acted as agents of the US in the
discharge of theirofficial functions. There is no question that the US,
like any other state, will be deemed to haveimpliedly waived its non-
suability if it has entered into a contract in its proprietary or private
capacity.It is only when the contract involves its sovereign or
governmental capacity that no such waiver may be implied In the
words of Justice Vicente Abad Santos:
Page 7 of 83
The traditional rule of immunity excepts a State from being sued in
the courts of another Statewithout its consent or waiver. This rule is a
necessary consequence of the principles ofindependence and equality
of States. However, the rules of International Law are not petrified;
theyare constantly developing and evolving. And because the activities
of states have multiplied, it hasbeen necessary to distinguish them-
between sovereign and governmental acts (jure imperii) andprivate,
commercial and proprietary acts (jure gestionis). The result is that
State immunity nowextends only to acts jure imperii... The restrictive
application of State immunity is proper only whenthe proceedings
arise out of commercial transactions of the foreign sovereign, its
commercialactivities or economic affairs. Stated differently, a State
may be said to have descended to the levelof an individual and can
thus be deemed to have tacitly given its consent to be sued only when
itenters into business contracts. It does not apply where the contract
relates to the exercise of its sovereign functions.
The other petitioners in the cases before us all aver they have acted in
the discharge of their officialfunctions as officers or agents of the US.
However, this is a matter of evidence. The charges againstthem may
not be summarily dismissed on their mere assertion that their acts are
imputable to theUS, which has not given its consent to be sued. In fact,
the defendants are sought to be heldanswerable for personal torts in
which the US itself is not involved. If found liable, they and theyalone
must satisfy the judgment.
SUMMARY OF THE EVENTS. The POD was published under the
direction and authority of thecommanding officer. The administrative
assistant, among his other duties, is tasked to prepare anddistribute the
POD. The NAVSTA Action Line Inquiry is a regular feature of the
POD , which was toprovide personnel access to the Commanding
Officer on matters they feel should be brought to hisattention for
correction or investigation . According to Wylie, the action line
naming Auring wasreceived about 3 weeks prior to the articles members immunity from suit thus: No civil action shall lie against the
publication. It was forwarded to the Provost Marshal for comment, and
the response included a short note stating that if the article was
published, to remove the name. This note was forwa
rded to the executive officer and to the commanding officerfor
approval. The approval of the commanding officer was forwarded to
the office of theAdministrative Assistant for inclusion in the POD. A
clerk typist in the office of the AdministrativeAssistant prepared the
smooth copy of the POD and Wylie, the administrative assistant
signed the smooth copy of the POD but failed to notice the reference
to Auring in the action line inquiry.
As the article implied that Rarang was consuming and appropriating
confiscated items, she wasinvestigated by her supervisor. Before the
article came out, she had been the recipient ofcommendations by her
superiors for honesty in the performance of her duties.PART OF
OFFICIAL FUNCTIONS. Wylie and Williams actively participated in
screening the featuresand articles in the POD as part of their official
functions. Under the rule that US officials in theperformance of their
official functions are immune from suit, then it should follow that they
may notbe held liable for the questioned publication.BUT: TAKE
NOTE THAT THEY WERE SUED IN THEIR PERSONAL
CAPACITIES for their alleged tortious acts in publishing a libelous
article. And our laws and, we presume, those of the US dont allow the
commission of crimes in the name of official duty, and these arent
covered by the immunity agreement.CHAVEZ v.
SANDIGANBAYAN on the law on immunity from suit of public
officials is applicablehere: the general rule is that public officials can
be held personally accountable for acts claimed tohave been performed
in connection with official duties where they have acted ultra vires or
where there is showing of bad faith A mere invocation of the
immunity clause does not ipso facto result in the charges being
automatically dropped. In the case of PCGG v. Pea, Chief Justice
Teehankeeadded a clarification of the immunity accorded PCGG
officials under Section 4(a) of Exec. Order No.I as follows:First, the
main opinion does not claim absolute immunity for the members of the
Commission, The cited section provides the Commissions
Commission or any member thereof for anything done or omitted in
the discharge of the task contemplated by this order. No absolute
immunity like that sought by Mr. Marcos in hisConstitution for
himself and his subordinates is herein involved. It is understood that
Page 8 of 83
the immunitygranted the members of the Commission by virtue of the
unimaginable magnitude of its task torecover the plundered wealth and
the States exercise of police power was immunity from liability for
damages in the official discharge of the task granted the members of
the Commission much in thesame manner that judges are immune
from suit in the official discharge of the functions of
theiroffice.Immunity from suit cannot institutionalize irresponsibility
and nonaccountability nor grant a privilegedstatus not claimed by any
other official of the Republic. Where the petitioner exceeds his
authority as Solicitor General, acts in bad faith, or maliciously
conspir(es) with the PCGG commissioners inpersecuting respondent
Enrile by filing against him an evidently baseless suit in derogation of
the latters constitutional rights and liberties, there can be no question
that a complaint for damages does not confer a license to persecute or
recklessly injure another. The actions governed by Articles19, 20, 21,
and 32 of the Civil Code on Human Relations may be taken against
public officers orprivate citizens alike.ARGUMENT: that Williams as
commanding officer is far removed in the chain of command from
theoffensive publication and it would be asking too much to hold him
responsible for everything whichgoes wrong on the base.WHILE
THIS IS TRUE AS A GEN. RULE, FOR THIS CASE NO. The
records show that the offensivepublication was sent to the
commanding officer for approval and he approved it. Art. 2176
prescribes a civil liability for damages caused by a persons act or
omission constituting fault or negligence.Fault or negligence in
this Article covers not only acts not punishable by law but also
actscriminal in character, whether intentional or voluntary or
negligent. Moreover, Art. 2219(7) provides
that moral damages may be recovered in case of libel, slander or any
other form of defamation. In effect, the offended party in these cases is
given the right to receive from the guilty party moraldamages for
injury to his feelings and reputation in addition to punitive or
exemplary damages .
ULTRA VIRES ACT CANT BE PART OF OFFICIAL DUTY.
Indeed the imputation of theft contained in the POD is a defamation
against Rarangs character and reputation. Wylie himself admitted that
the Office of the Provost Marshal explicitly recommended the deletion
of the name if the article waspublished, but they were negligent
because under their direction they issued the publication
withoutdeleting the name. Such act or omission is ultra vires and
cannot be part of official duty. It was atortious act which ridiculed
Rarang, and as a result she suffered besmirched reputation,
seriousanxiety, wounded feelings and social humiliation, specially so,
since the article was baseless andfalse. Wylie and Williams alone, in
their personal capacities, are liable for the damages they
caused.WHEREFORE, the petition is hereby DISMISSED. The
questioned decision and resolution of theIAC are AFFIRMED.
US Vs. Ruiz 136 SCRA 487
Facts:
The usa had a naval base in subic, zambales. The base was one of
those provided in the militarybases agreement between phils. and the
US. Respondent alleges that it won in the biddingconducted by the US
for the constrcution of wharves in said base that was merely awarded
toanother group. For this reason, a suit for specific preformance was
filed by him against the US.
Issue:
Whether the US naval base in bidding for said contracts exercise
governmental functions tobe able to invoke state immunity.
Held:
The traditional role of the state immunity excempts a state from being
sued in the courts of anotherstate without its consent or waiver. This
rule is necessary consequence of the principle ofindepemndence and
equality of states. Howecer, the rules of international law are not
petrified; theyare continually and evolving and because the activities
of states have multiplied. It has beennecessary to distinguish them
between sovereign and governmental acts and private,
commercialandproprietory acts. the result is that state immunity now
extends only to sovereign andgovernmentalacts.The restrictive
application of state immunity is proper only when the proceedings
arise out ofcommercial transactions of the foreign sovereign. Its
commercial activities of economic affairs. Astate may be descended to
the level of an individual and can thus be deemed to have tacitly
givenits consent to be sued. Only when it enters into business
Page 9 of 83
contracts. It does not apply where theconracts relates the exercise of its
sovereign function. In this case, the project are integral part of the
naval base which is devoted to the defense of both US and phils.,
indisputably, a function of thegovernment of highest order, they are
not utilized for , nor dedicated to commercial or businesspurposes.
GEORGE L. TUBB and WESLEY TEDROW vs. THOMAS E.
GRIESS, G.R. No. L-1325,April 7, 1947
This is a petition for habeas corpus filed by George L. Tubb and
Wesley Tedrow, citizens of the United States but residents of the
Philippines, under written contract of employment with the Army of
the United States. It appears that sometime between January 13, 1947,
as appearing in the "charge sheet" submitted by respondent, the herein
petitioners were apprehended by the authorities of the United States
Army and have since been held in custody. On January 28, 1947,
petitioners were formally charged by said authorities with violations of
Articles of War regarding misappropriation of United States
Government property destined for military use, said acts having been
committed within premises occupied by the United States Army under
lease contracts.
Petitioners now come before this Court alleging that they are being
unlawfully deprived of their liberty and that Philippine courts have
exclusive jurisdiction over their arrest, confinement and imprisonment
because (1) they are not persons subject to military laws, (2) martial
law is no longer enforced.
In the contract of employment entered into by petitioners with the
United States Army, it is shown that they voluntarily submitted
themselves to United States military law while serving said contract,
thereby submitting themselves to the full extent of the authority of the
United States Army in this area. This, coupled with the fact that
petitioners are American citizens, makes their position during the
subsistence of said contract no different from that of enlisted men,
enlistment after all being nothing more than a contract of voluntary
service in the armed forces of one's country. Petitioners then, in
relation to the United States Army in the Philippines and during the
subsistence of their employment contract, can be deemed to possess
the status of military personnel.
It is a settled principle of International Law that a foreign army
allowed to march through a friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt from the civil
and criminal jurisdiction of the place. In applying this rule in the case
of Raquiza vs. Bradford (75 Phil., 50), this Court held that "if a foreign
army permitted to be stationed in a friendly country, "by permission of
its government or sovereign," is exempt from the civil and criminal
jurisdiction of the place, with much more reason should the Army of
the United States which is not only permitted by the Commonwealth
Government to be stationed here but has come to the islands and
stayed in them for the express purpose of liberating them, and further
prosecuting the war to a successful conclusion, be exempt from the
civil and criminal jurisdiction of this place, at least for the time
covered by said agreement of the two Governments. By analogy, an
attempt of our civil courts to exercise jurisdiction over the United
States Army before such period expires, would be considered as a
violation of this country's faith, which this Court should not be the last
to keep and uphold. By exercising it, paraphrasing the foregoing
quotation, the purpose for which the stationing of the army in the
islands was requested or agreed upon may be hampered or prejudiced,
and a portion of said military force would be withdrawn from the
control of the sovereign to whom they belong. And, again, by analogy,
the agreement for the stationing of the United States Army or a part of
its forces in the Philippines implies a waiver of all jurisdiction over
their troops during the time covered by such agreement, and permits
the allied general or commander-in-chief to retain that exclusive
control and discipline which the government of his army may require."
The basis of this ruling is the leading case of The Schooner Exchange
vs. McFadden (7 Cranch, 116) in which the United States Supreme
Court speaking through Chief Justice Marshall, held that "a third case
in which a sovereign is understood to cede a portion of his territorial
jurisdiction is, where he allows the troops of a foreign prince to pass
through his dominions. In such case, without any express declaration
waving jurisdiction over the army to which this right of passage has
Page 10 of 83
been granted, the sovereign who should attempt to exercise it would
certainly be considered as violating his faith. By exercising it, the
purpose for which the free passage was granted would be defeated, and
a portion of the military force of a foreign independent nation would
be diverted from those national objects and duties to which it was
applicable, and would be withdrawn from the control of the sovereign
whose power and whose safety might greatly depend on retaining the
exclusive command and disposition of this force. The grant of a free
passage therefore implies a waiver of all jurisdiction over the troops
during their passage, and permits the foreign general to use that
discipline, and to inflict those punishments which the government of
his army may require."
Since then, this principle has been consistently embodied in treaties of
military character among friendly nations and has been accepted by all
the countries of the world. The most authoritative writers on
International Law firmly concur in this rule. To quote
Wheaton. A foreign army or fleet, marching through, sailing over
or stationed in the territory of another State, with whom the foreign
sovereign to whom they belong is in amity, are also, in like manner,
exempt from the civil and criminal jurisdiction of the place. (Elements
of International Law, section 95.)
Hall. Military forces enter the territory of a state in amity with that
to which they belong, either when crossing to and fro between the
main part of their country and an isolated piece of it, or as allies
passing through for the purposes of a campaign, or furnishing
garrisons for protection. In cases of the former kind, the passage of
soldiers being frequent, it is usual to conclude conventions, specifying
the line of road to be followed by them, and regulating their transit so
as to make it as little onerous as possible to the population among
whom they are. Under such conventions offenses committed by
soldiers against the inhabitants are dealt with by the military
authorities of the state to which the former belong; and as their general
object in other respects is simply regulatory of details, it is not
necessary to look upon them as intended in any respect to modify the
rights of jurisdiction possessed by the parties to them respectively.
There can be no question that the concession of jurisdiction over
passing troops to the local authorities would be extremely
inconvenient; and it is believed that the commanders, not only of
forces in transit through a friendly country with which no convention
exists, but also of forces stationed there, assert exclusive jurisdiction in
principle in respect of offenses committed by persons under their
command, though they may be willing as a matter of concession to
hand over culprits to the civil power when they have confidence in the
courts, and when their stay is likely to be long enough to allow of the
case being watched. The existence of a double jurisdiction in a foreign
country being scarcely compatible with the discipline of an army, it is
evident that there would be some difficulty in carrying out any other
arrangement. (Emphasis supplied; International Law, 7th ed., section
56.)
Lawrence. The universally recognized rule of modern time is that a
state must obtain express permission before its troops can pass through
the territory of another state .. . Permissions may be given as a
permanent privilege by treaty for such a purpose as sending relief to
garrisons, or it may be granted as a special favor for the special
occasion on which it is asked. The agreement for passage generally
contains provisions for the maintenance of order in the force by its
own officers, and makes them, and the state in whose service they are,
responsible for the good behavior of the soldiers towards the
inhabitants. In the absence of special agreement the troops would not
be amenable to the local law, but would be under the jurisdiction and
control of their own commanders, as long as they remained within
their own lines or were away on duty, but not otherwise. (Principles of
International Law, 6th ed., section 107, p. 246.)
Oppenhein. Whenever armed forces are on foreign territory in the
service of their home State, they are considered exterritorial and
remain, therefore, under its jurisdiction. A crime committed on foreign
territory by a member of these forces cannot be punished by the local
civil or military authorities, but only by the commanding officer of the
forces or by another authorities of their home State. This rule,
however, applies only in case the crime is committed, either within the
place where the force is stationed, or in some place where the criminal
Page 11 of 83
was on duty; it does not apply, if, for example, soldiers belonging to a
foreign garrison of a fortress leave the rayon of the fortress not on duty
but for recreational and pleasure, and then and there commit a crime.
The local authorities are in that case competent to punish them.
(International Law, 4th ed., Vol. I, section 445.)
Westlake affirmed Wheaton's view.
Hyde. Strong grounds of convenience and necessity prevent the
exercise of jurisdiction over a foreign organized military force which,
with the consent of the territorial sovereign, enters its domain.
Members of the force who there commit offenses are dealt with by the
military or other authorities of the State to whose service they belong,
unless the offenders are voluntarily given up. (I International Law,
section 247.)
McNair and Lauterpacht. It is a principle of international law that
the armed forces of one State, when crossing the territory of another
friendly country, with the acquiescence of the latter, is not subject to
the jurisdiction of the territorial sovereign, but to that of the officers
and superior authorities of its own command. (Annual of Digest, 1927-
1928, Case No. 114.)
Vattel. . . . the grant of passage includes that of every particular
thing connected with the passage of troops, and of things without
which it would not be practicable; such as the liberty of carrying
whatever may be necessary to an army; that of exercising military
discipline on the officers and soldiers . . .. (III, 8, section 130, as
quoted in Woolsey's International Law, 6th ed., section 68.)
Without applying the recent treaty on military bases concluded
between the governments of the Philippines and the United States, it
having reference to base sites not involved in this case, and
considering that a part of the United States Army is stationed in the
Philippines with permission of our government, and that petitioners
who belong to the military personnel of that army are charged with
violations of Articles of War for offenses committed in areas under the
control of the United States Army, thereby giving said army
jurisdiction over their person and the offenses charged, petition is
dismissed, without costs.
Haw Pia vs China Banking Corp. G.R. No. L-554 April 9, 1948
Facts:
Plaintiff-appellants indebtedness to the defendant-appellee China
Banking Corporation in the sum of P5,103.35 by way of overdraft in
current account payable on demand together with its interests, has
been completely paid, on different occasions to the defendant Bank
China Banking Corporation through the defendant Bank of Taiwan,
Ltd., that was appointed by the Japanese Military authorities as
liquidator of the China Banking Corporation.
The trial court held that, as there was no evidence presented to show
that the defendant Bank had authorized the Bank of Taiwan, Ltd., to
accept the payment of the plaintiffs debt to the said defendant, and
said Bank of Taiwan, as an agency of the Japanese invading army, was
not authorized under the international law to liquidate the business of
the China Banking Corporation, the payment has not extinguished the
indebtedness of the plaintiff to the said defendant under Article 1162
of the Civil Code.
Issues:
1. Whether or not the Japanese Military Administration had authority
to order the liquidation or winding up of the business of defendant-
appellee China Banking Corporation, and to appoint the Bank of
Taiwan liquidator authorized as such to accept the payment by the
plaintiff-appellant to said defendant-appellee; and
2. Whether or not such payment by the plaintiff-appellant has
extinguished her obligation to said defendant-appellee.
Ruling:
Page 12 of 83
1. YES. The Japanese military authorities had power, under the
international law, to order the liquidation of the China Banking
Corporation and to appoint and authorize the Bank of Taiwan as
liquidator to accept the payment in question, because such liquidation
is not confiscation of the properties of the bank appellee, but a mere
sequestration of its assets which required the liquidation or winding up
of the business of said bank. The sequestration or liquidation of enemy
banks in occupied territories is authorized expressly by the United
States Army and Navy Manual of Military Government and Civil
Affairs F.M. 2710 OPNAV 50-E-3.
2. YES. It having been shown above that the Japanese Military Forces
had power to sequestrate and impound the assets or funds of the China
Banking Corporation, and for that purpose to liquidate it by collecting
the debts due to said bank from its debtors, and paying its creditors,
and therefore to appoint the Bank of Taiwan as liquidator with the
consequent authority to make the collection, it follows evidently that
the payments by the debtors to the Bank of Taiwan of their debts to the
China Banking Corporation have extinguished their obligation to the
latter. Said payments were made to a person, the Bank of Taiwan,
authorized to receive them in the name of the bank creditor under
article 1162, of the Civil Code. Because it is evident the words a
person authorized to receive it, as used therein, means not only a
person authorized by the same creditor, but also a person authorized by
law to do so, such as guardian, executor or administrator of estate of a
deceased, and assignee or liquidator of a partnership or corporation, as
well as any other who may be authorized to do so by law (Manresa,
Civil Code, 4th ed. p. 254.)
The fact that the money with which that debts have been paid were
Japanese war notes does not affect the validity of the payments. The
power of the military governments established in occupied enemy
territory to issue military currency in the exercise of their
governmental power is based, not only on the occupants general
power to maintain law and order recognized in article 43 of the Hague
Regulations (Feilchenfeld of Belligerent Occupation, paragraph 6), but
on military necessity as shown by the history of the use of money or
currency in wars.
HERBERT BROWNELL, JR., as Attorney General of the United
States vs. SUN LIFE ASSURANCE COMPANY OF CANADA,
G.R. No. L-5731 June 22, 1954
This is a petition instituted in the Court of the First Instance of Manila
under the provisions of the Philippine Property Act of the United
States against the Sun Life Assurance Company of Canada, to compel
the latter to comply with the demand of the former to pay him the sum
of P310.10, which represents one-half of the proceeds of an
endowment policy (No. 757199) which matured on August 20, 1946,
and which is payable to one NaogiroAihara, a Japanese national.
Under the policy Aihara and his wife, FilomenaGayapan, were insured
jointly for the sum of P1,000, and upon its maturity the proceeds
thereof were payable to said insured, share and share alike, or P310.10
each. The defenses set up in the court of origin are: (1) that the
immunities provided in section 5 (b) (2) of the Trading With the
Enemy Act of the United States are of doubtful application in the
Philippines, and have never been adopted by any law of the
Philippines as applicable here or obligatory on the local courts; (2) that
the defendant is a trustee of the funds and is under a legal obligation to
see it to that it is paid to the person or persons entitled thereto, and
unless the petitioner executes a suitable discharge and an adequate
guarantee to indemnify and keep it free and harmless from any further
liability under the policy, it may not be compelled to make the
payment demanded. The Court of First Instance of Manila having
approved and granted the petition, the respondent has appealed to this
Court, contending that the Court of origin erred in holding that the
Trading With the Enemy Act of the United States is binding upon the
inhabitants of this country, notwithstanding the attainment of complete
independence on July 4, 1946, and in ordering the payment prayed for.
On July 3, 1946, the Congress of the United States passed Public Law
485-79th Congress, known as the Philippine Property Act of 1946.
Section 3 thereof provides that "The Trading with the Enemy Act of
October 6, 1917 (40 Stat. 411), as amended, shall continue in force in
the Philippines after July 4, 1946, ...." To implement the provisions of
the act, the President of the United States on July 3, 1946, promulgated
Page 13 of 83
Executive Order No. 9747, "continuing the functions of the Alien
Property Custodian and the Department of the Treasury in the
Philippines." Prior to and preparatory to the approval of said
Philippine Property Act of 1946, an agreement was entered into
between President Manuel Roxas of the Commonwealth and U. S.
Commissioner Paul V. McNutt whereby title to enemy agricultural
lands and other properties was to be conveyed by the United States to
the Philippines in order to help the rehabilitation of the latter, but that
in order to avoid complex legal problems in relation to said enemy
properties, the Alien Property Custodian of the United States was to
continue operations in the Philippines even after the latter's
independence, that he may settle all claims that may exist or arise
against the above-mentioned enemy properties, in accordance with the
Trading With the Enemy Act of the United States. (Report of the
Committee on Insural Affairs No. 2296 and Senate Report No. 1578
from the Committee on Territories and Insular Affairs, to accompany
S. 2345, accompanying H. R. 6801, 79th Congress, 2nd Session.) This
purpose of conveying enemy properties to the Philippines after all
claims against them shall have been settled is expressly embodied in
the Philippine Property Act of 1946.
SEC. 3. The Trading With the Enemy Act of October 6, 1917 (40 Stat.
411) is amended, shall continue in force in the Philippines after July 4,
1946, and all powers and authority conferred upon the President of the
United States or the Alien Property Custodian by the terms of the said
Trading With the Enemy Act, as amended, with respect to the
Philippines, shall continue thereafter to be exercised by the President
of the United States, or such officer or agency as he may designate:
Provided, That all property vested in or transferred to the President of
the United States, the Alien Property Custodian, or any such officer or
agency as the President of the United States may designate under the
Trading With the Enemy Act, as amended, which was located in the
Philippines at the time of such vesting, or the proceeds thereof, and
which shall remain after the satisfaction of any claim payable under
the Trading With the Enemy Act, as amended, and after the payment
of such costs and expenses of administration as may be law be charged
against such property or proceeds, shall be transferred by the President
of the United States to the Republic of the Philippines: Provided
further, That such property, or proceeds thereof, may be transferred by
the President of the United States to the Republic of the Philippines
upon indemnification acceptable to the President of the United States
by the Republic of the Philippines for such claims, costs, and expenses
of administration as may by law be charged against such property or
proceeds thereof before final adjudication of such claims, costs and
expenses of administration. Provided further, That the courts of first
instance of the Republic of the Philippines are hereby given
jurisdiction to make and enter all such rules as to notice or otherwise,
and all such orders and decrees and to issue such process as may be
necessary and proper in the premises to enforce any orders, rules, and
regulations issued by the President of the United States, the Alien
Property Custodian, or such officer or agency designated by the
President of the United States pursuant to the Trading With the Enemy
Act, as amended, with such right of appeal therefrom as may be
provided by law: And provided further, That any suit authorized under
the Trading With the Enemy Act, as amended, with respect to property
vested in or transferred to the President of the United States, the Alien
Property Custodian, or any officer or agency designated by the
President of the United States hereunder, which at the time of such
vesting or transfer was located with the Philippines, shall after July 4,
1946, be brought in the appropriate court of first instance of the
Republic of the Philippines, against the officer or agency hereunder
designated by the President of the United States with right of appeal
therefrom as may be provided by law. In any litigation authorized
under this section, the officer or administrative head of the agency
designated hereunder may appear personally, or through attorneys
appointed by him, without regard to the requirements of law other than
this section.
And when the proclamation of the independence of the Philippines by
President Truman was made, said independence was granted "in
accordance with the subject to the reservations provided in the
applicable statutes of the Unites States." The enforcement of the
Trading With the Enemy Act of the United States was contemplated to
be made applicable after independence, within the meaning of the
reservations.
Page 14 of 83
On the part of the Philippines, conformity to the enactment of the
Philippine Property Act of 1946 of the United States was announced
by President Manuel Roxas in a joint statement signed by him and by
Commissioner Mcnutt. Ambassador Romulo also formally expressed
the conformity of the Philippines Government to the approval of said
act to the American Senate prior to its approval. And after the grant of
independence, the Congress of the Philippines approved Republic Act
No. 8, entitled.
AN ACT TO AUTHORIZE THE PRESIDENT OF THE
PHLIPPINES TO ENTER INTO SUCH CONTRACT OR
UNDERTAKINGS AS MAY BE NECESSARY TO EFFECTUATE
THE TRANSFER TO THE REPUBLIC OF THE PHILIPPINES
UNDER THE PHILIPPINES PROPERTY ACT OF NINETEEN
HUNDRED AND FORTY-SIX OF ANY PROPERTY OR
PROPERTY RIGHTS OR THE PROCEEDS THEREOF
AUTHORIZED TO BE TRANSFERRED UNDER SAID ACT;
PROVIDING FOR THE ADMINISTRATION AND DISPOSITION
OF SUCH PROPERTIES ONCE RECEIVED; AND
APPROPRIATING THE NECESSARY FUND THEREFOR.
The Congress of the Philippines also approved Republic Act No. 7,
which established a Foreign Funds Control Office. After the approval
of the Philippine Property Act of 1946 of the United States, the
Philippine Government also formally expressed, through the Secretary
of Foreign Affairs, conformity thereto. (See letters of Secretary dated
August 22, 1946, and June 3, 1947.) The Congress of the Philippines
has also approved Republic Act No. 477, which provides for the
administration and disposition of properties which have been or may
hereafter be transferred to the Republic of the Philippines in
accordance with the Philippines Property Act of 1946 of the United
States.
It is evident, therefore, that the consent of the Philippine Government
to the application of the Philippine Property Act of 1946 to the
Philippines after independence was given, not only by the Executive
Department of the Philippines Government, but also by the Congress,
which enacted the laws that would implement or carry out the benefits
accruing from the operation of the United States law. The respondent-
appellant, however, contends that the operation of the law after
independence could not have actually taken, or may not take place,
because both Republic Act No. 8 and Republic Act No. 477 do not
contain any specific provision whereby the Philippine Property Act of
1946 or its provisions is made applicable to the Philippines. It is also
contended that in the absence of such express provision in any of the
laws passed by the Philippine Congress, said Philippine Property Act
of 1946 does not form part of our laws and is not binding upon the
courts and inhabitants of the country.
There is no question that a foreign law may have extraterritorial effect
in a country other than the country of origin, provided the latter, in
which it is sought to be made operative, gives its consent thereto. This
principle is supported by the unquestioned authority.
The jurisdiction of the nation within its territory is necessarily
exclusive and absolute. It is susceptible of no limitation not imposed
by itself. Any restriction upon it, deriving validity from an external
source, would imply a diminution of its sovereignty to the extent of the
restriction, and an investment of that sovereignty to the same extent in
that power in which would impose such restriction. All exceptions,
therefore, to the full and complete power of a nation within its own
territories, must be traced up to the consent of the nation itself. They
can flow from no other legitimate source. This consent may be either
express or implied. (Philippine Political Law by Sinco, pp. 27-28,
citing Chief Justice Marshall's statement in the Exchange, 7 Cranch
116)
In the course of his dissenting opinion in the case of S. S. Lotus,
decided by the Permanent Court of International Justice, John Bassett
Moore said:
1. It is an admitted principle of International Law that a nation
possesses and exercises within its own territory an absolute and
exclusive jurisdiction, and that any exception to this right must be
traced to the consent of the nation, either express or implied (Schooner
Exchange vs. McFadden [812], 7 Cranch 116, 136). The benefit of this
Page 15 of 83
principle equally enures to all independent and sovereign States, and is
attended with a corresponding responsibility for what takes place
within the national territory. (Digest of International Law, by
Backworth, Vol. II, pp. 1-2)
The above principle is not denied by respondent-appellant. But its
argument on this appeal is that while the acts enacted by the Philippine
Congress impliedly accept the benefits of the operation of the United
States law (Philippine Property Act of 1946), no provision in the said
acts of the Philippine Congress makes said United States law expressly
applicable. In answer to this contention, it must be stated that the
consent of a Senate to the operation of a foreign law within its territory
does not need to be express; it is enough that said consent be implied
from its conduct or from that of its authorized officers.
515. No rule of International Law exists which prescribe a necessary
form of ratification. Ratification can, therefore, be given tacitly as
well as expressly. Tacit ratification takes place when a State begins the
execution of a treaty without expressly ratifying it. It is usual for
ratification to take the form of a document duly signed by the Heads of
the States concerned and their Secretaries for Foreign Affairs. It is
usual to draft as many documents as there are parties to the
Convention, and to exchange these documents between the parties.
Occasionally the whole of the treaty is recited verbatim in the ratifying
documents, but sometimes only the title, preamble, and date of the
treaty, and the names of the signatory representatives are cited. As
ratification is only the confirmation of an already existing treaty, the
essential requirements in a ratifying document is merely that it should
refer clearly and unmistakably to the treaty to be ratified. The citation
of title, preamble, date, and names of the representatives is, therefore
quite sufficient to satisfy that requirements. (Oppenheim, pp. 818-819;
emphasis ours.)
International Law does not require that agreements between nations
must be concluded in any particular form or style. The law of nations
is much more interested in the faithful performance of international
obligations than in prescribing procedural requirements. (Treaties and
Executive Agreements, by Myers S. McDougal and Asher Lands, Yale
Law Journal, Vol. 54, pp. 318-319)
In the case at bar, our ratification of or concurrence to the agreement
for the extension of the Philippine Property Act of 1946 is clearly
implied from the acts of the President of the Philippines and of the
Secretary of Foreign Affairs, as well as by the enactment of Republic
Acts Nos. 7, 8, and 477.
We must emphasize the fact that the operation of the Philippine
Property Act of 1946 in the Philippines is not derived from the
unilateral act of the United States Congress, which made it expressly
applicable, or from the saving provision contained in the proclamation
of independence. It is well-settled in the United States that its laws
have no extraterritorial effect. The application of said law in the
Philippines is based concurrently on said act (Philippine Property Act
of 1946) and on the tacit consent thereto and the conduct of the
Philippine Government itself in receiving the benefits of its provisions.
It is also claimed by the respondent-appellant that the trial court erred
in ordering it to pay the petitioner the amount demanded, without the
execution by the petitioner of a deed of discharge and indemnity for its
protection. The Trading With the Enemy Act of the United States, the
application of which was extended to the Philippines by mutual
agreement of the two Governments, contains an express provision to
the effect that delivery of property or interest therein made to or for the
account of the United States in pursuance of the provision of the law,
shall be considered as a full acquittance and discharge for purposes of
the obligation of the person making the delivery or payment. (Section
5(b) (2), Trading With the Enemy Act.) This express provision of the
United States law saves the respondent-appellant from any further
liability for the amount ordered to be paid to the petitioner, and fully
protects it from any further claim with respect thereto. The request of
the respondent-appellant that a security be granted it for the payment
to be made under the law is, therefore, unnecessary, because the
judgment rendered in this case is sufficient to prove such acquittance
and discharge.
Page 16 of 83
The decision appealed from should be as it is hereby affirmed, with
costs against the respondent-appellant.
UNITED STATES OF AMERICA, CAPT. JAMES E.
GALLOWAY, WILLIAM I. COLLINS and ROBERT GOHIER
vs. HON. V. M. RUIZ, Presiding Judge of Branch XV, Court of
First Instance of Rizal and ELIGIO DE GUZMAN & CO., INC.,
G.R. No. L-35645 May 22, 1985
This is a petition to review, set aside certain orders and restrain the
respondent judge from trying Civil Case No. 779M of the defunct
Court of First Instance of Rizal.
The factual background is as follows:
At times material to this case, the United States of America had a
naval base in Subic, Zambales. The base was one of those provided in
the Military Bases Agreement between the Philippines and the United
States.
Sometime in May, 1972, the United States invited the submission of
bids for the following projects
1. Repair offender system, Alava Wharf at the U.S. Naval Station
Subic Bay, Philippines.
2. Repair typhoon damage to NAS Cubi shoreline; repair typhoon
damage to shoreline revetment, NAVBASE Subic; and repair to Leyte
Wharf approach, NAVBASE Subic Bay, Philippines.
Eligio de Guzman & Co., Inc. responded to the invitation and
submitted bids. Subsequent thereto, the company received from the
United States two telegrams requesting it to confirm its price proposals
and for the name of its bonding company. The company complied with
the requests. [In its complaint, the company alleges that the United
States had accepted its bids because "A request to confirm a price
proposal confirms the acceptance of a bid pursuant to defendant
United States' bidding practices." (Rollo, p. 30.) The truth of this
allegation has not been tested because the case has not reached the trial
stage.]
In June, 1972, the company received a letter which was signed by
Wilham I. Collins, Director, Contracts Division, Naval Facilities
Engineering Command, Southwest Pacific, Department of the Navy of
the United States, who is one of the petitioners herein. The letter said
that the company did not qualify to receive an award for the projects
because of its previous unsatisfactory performance rating on a repair
contract for the sea wall at the boat landings of the U.S. Naval Station
in Subic Bay. The letter further said that the projects had been awarded
to third parties. In the abovementioned Civil Case No. 779-M, the
company sued the United States of America and Messrs. James E.
Galloway, William I. Collins and Robert Gohier all members of the
Engineering Command of the U.S. Navy. The complaint is to order the
defendants to allow the plaintiff to perform the work on the projects
and, in the event that specific performance was no longer possible, to
order the defendants to pay damages. The company also asked for the
issuance of a writ of preliminary injunction to restrain the defendants
from entering into contracts with third parties for work on the projects.
The defendants entered their special appearance for the purpose only
of questioning the jurisdiction of this court over the subject matter of
the complaint and the persons of defendants, the subject matter of the
complaint being acts and omissions of the individual defendants as
agents of defendant United States of America, a foreign sovereign
which has not given her consent to this suit or any other suit for the
causes of action asserted in the complaint." (Rollo, p. 50.)
Subsequently the defendants filed a motion to dismiss the complaint
which included an opposition to the issuance of the writ of preliminary
injunction. The company opposed the motion. The trial court denied
the motion and issued the writ. The defendants moved twice to
reconsider but to no avail. Hence the instant petition which seeks to
restrain perpetually the proceedings in Civil Case No. 779-M for lack
of jurisdiction on the part of the trial court.
The petition is highly impressed with merit.
Page 17 of 83

The traditional rule of State immunity exempts a State from being sued
in the courts of another State without its consent or waiver. This rule is
a necessary consequence of the principles of independence and
equality of States. However, the rules of International Law are not
petrified; they are constantly developing and evolving. And because
the activities of states have multiplied, it has been necessary to
distinguish them-between sovereign and governmental acts (jure
imperii) and private, commercial and proprietary acts (jure gestionis).
The result is that State immunity now extends only to acts jure imperil
The restrictive application of State immunity is now the rule in the
United States, the United Kingdom and other states in western Europe.
(See Coquia and Defensor Santiago, Public International Law, pp.
207-209 [1984].)
The respondent judge recognized the restrictive doctrine of State
immunity when he said in his Order denying the defendants' (now
petitioners) motion: " A distinction should be made between a strictly
governmental function of the sovereign state from its private,
proprietary or non- governmental acts (Rollo, p. 20.) However, the
respondent judge also said: "It is the Court's considered opinion that
entering into a contract for the repair of wharves or shoreline is
certainly not a governmental function altho it may partake of a public
nature or character. As aptly pointed out by plaintiff's counsel in his
reply citing the ruling in the case of Lyons, Inc., [104 Phil. 594
(1958)], and which this Court quotes with approval, viz.:
It is however contended that when a sovereign state enters into a
contract with a private person, the state can be sued upon the theory
that it has descended to the level of an individual from which it can be
implied that it has given its consent to be sued under the contract. ...
xxx xxx xxx
We agree to the above contention, and considering that the United
States government, through its agency at Subic Bay, entered into a
contract with appellant for stevedoring and miscellaneous labor
services within the Subic Bay Area, a U.S. Naval Reservation, it is
evident that it can bring an action before our courts for any contractual
liability that that political entity may assume under the contract. The
trial court, therefore, has jurisdiction to entertain this case ... (Rollo,
pp. 20-21.)
The reliance placed on Lyons by the respondent judge is misplaced for
the following reasons:
In Harry Lyons, Inc. vs. The United States of America, supra, plaintiff
brought suit in the Court of First Instance of Manila to collect several
sums of money on account of a contract between plaintiff and
defendant. The defendant filed a motion to dismiss on the ground that
the court had no jurisdiction over defendant and over the subject
matter of the action. The court granted the motion on the grounds that:
(a) it had no jurisdiction over the defendant who did not give its
consent to the suit; and (b) plaintiff failed to exhaust the administrative
remedies provided in the contract. The order of dismissal was elevated
to this Court for review.
In sustaining the action of the lower court, this Court said:
It appearing in the complaint that appellant has not complied with the
procedure laid down in Article XXI of the contract regarding the
prosecution of its claim against the United States Government, or,
stated differently, it has failed to first exhaust its administrative
remedies against said Government, the lower court acted properly in
dismissing this case.(At p. 598.)
It can thus be seen that the statement in respect of the waiver of State
immunity from suit was purely gratuitous and, therefore, obiter so that
it has no value as an imperative authority.
The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to
be sued only when it enters into business contracts. It does not apply
Page 18 of 83
where the contract relates to the exercise of its sovereign functions. In
this case the projects are an integral part of the naval base which is
devoted to the defense of both the United States and the Philippines,
indisputably a function of the government of the highest order; they
are not utilized for nor dedicated to commercial or business purposes.
That the correct test for the application of State immunity is not the
conclusion of a contract by a State but the legal nature of the act is
shown in Syquia vs. Lopez, 84 Phil. 312 (1949). In that case the
plaintiffs leased three apartment buildings to the United States of
America for the use of its military officials. The plaintiffs sued to
recover possession of the premises on the ground that the term of the
leases had expired. They also asked for increased rentals until the
apartments shall have been vacated.
The defendants who were armed forces officers of the United States
moved to dismiss the suit for lack of jurisdiction in the part of the
court. The Municipal Court of Manila granted the motion to dismiss;
sustained by the Court of First Instance, the plaintiffs went to this
Court for review on certiorari. In denying the petition, this Court said:
On the basis of the foregoing considerations we are of the belief and
we hold that the real party defendant in interest is the Government of
the United States of America; that any judgment for back or Increased
rentals or damages will have to be paid not by defendants Moore and
Tillman and their 64 co-defendants but by the said U.S. Government.
On the basis of the ruling in the case of Land vs. Dollar already cited,
and on what we have already stated, the present action must be
considered as one against the U.S. Government. It is clear hat the
courts of the Philippines including the Municipal Court of Manila have
no jurisdiction over the present case for unlawful detainer. The
question of lack of jurisdiction was raised and interposed at the very
beginning of the action. The U.S. Government has not , given its
consent to the filing of this suit which is essentially against her, though
not in name. Moreover, this is not only a case of a citizen filing a suit
against his own Government without the latter's consent but it is of a
citizen filing an action against a foreign government without said
government's consent, which renders more obvious the lack of
jurisdiction of the courts of his country. The principles of law behind
this rule are so elementary and of such general acceptance that we
deem it unnecessary to cite authorities in support thereof. (At p. 323.)
In Syquia,the United States concluded contracts with private
individuals but the contracts notwithstanding the States was not
deemed to have given or waived its consent to be sued for the reason
that the contracts were for jure imperii and not for jure gestionis.
WHEREFORE, the petition is granted; the questioned orders of the
respondent judge are set aside and Civil Case No. is dismissed. Costs
against the private respondent.
UNITED STATES OF AMERICA vs. REYES
FACTS:
Respondent Nelia Montoya, an American Citizen, worked as an ID
checker at the US Navy Exchange (NEX) at the US Military
Assistance Group (JUSMAG) headquarters in Quezon City. Shes
married to Edgardo Montoya, a Filipino-American serviceman
employed by the US Navy & stationed in San Francisco.
Petitioner Maxine is an American Citizen employed at the JUSMAG
headquarters as the activity exchange manager.
Jan. 22, 1987 Montoya bought some items from the retail store
Bradford managed, where she had purchasing privileges. After
shopping & while she was already at the parking lot, Mrs. Yong
Kennedy, a fellow ID checker approached her & told her that she
needed to search her bags upon Bradfords instruction. Montoya
approached Bradford to protest the search but she was told that it was
to be made on all JUSMAG employees on that day. Mrs. Kennedy
then performed the search on her person, bags & car in front of
Bradford & other curious onlookers. Nothing irregular was found thus
she was allowed to leave afterwards.
Montoya learned that she was the only person subjected to such
search that day & she was informed by NEX Security Manager
Roynon that NEX JUSMAG employees are not searched outside the
Page 19 of 83
store unless there is a strong evidence of a wrong-doing. Montoya
cant recall any circumstance that would trigger suspicion of a wrong-
doing on her part. She is aware of Bradfords propensity to suspect
Filipinos for theft and/or shoplifting.
Montoya filed a formal protest w/Mr. Roynon but no action was
taken.
Montoya filed a suit against Bradford for damages due to the
oppressive & discriminatory acts committed by petitioner in excess of
her authority as store manager. She claims that she has been exposed
to contempt & ridicule causing her undue embarrassment & indignity.
She further claims that the act was not motivated by any other reason
aside from racial discrimination in our own land w/c is a blow to our
national pride & dignity. She seeks for moral damages of P500k and
exemplary damages of P100k.
May 13, 1987 Summons & complaint were served on Bradford but
instead of filing an answer, she along with USA government filed a
motion to dismiss on grounds that: (1) this is a suit against US w/c is a
foreign sovereign immune from suit w/o its consent and (2) Bradford
is immune from suit for acts done in the performance of her official
functions under Phil-US Military Assistance Agreement of 1947 &
Military Bases Agreement of 1947. They claim that US has rights,
power & authority w/in the bases, necessary for the establishment, use
& operation & defense thereof. It will also use facilities & areas w/in
bases & will have effective command over the facilities, US personnel,
employees, equipment & material. They further claim that checking of
purchases at NEX is a routine procedure observed at base retail outlets
to protect & safeguard merchandise, cash & equipment pursuant to
par. 2 & 4(b) of NAVRESALEACT SUBIC INST. 5500.1.
July 6, 1987 Montoya filed a motion for preliminary attachment
claiming that Bradford was about to leave the country & was removing
& disposing her properties w/intent to defraud her creditors. Motion
granted by RTC.
July 14, 1987 Montoya opposed Bradfords motion to dismiss. She
claims that: (1) search was outside NEX JUSMAG store thus its
improper, unlawful & highly-discriminatory and beyond Bradfords
authority; (2) due to excess in authority and since her liability is
personal, Bradford cant rely on sovereign immunity; (3) Bradfords
act was committed outside the military base thus under the jurisdiction
of Philippine courts; (4) the Court can inquire into the factual
circumstances of case to determine WON Bradford acted w/in or
outside her authority.
RTC granted Montoyas motion for the issuance of a writ of
preliminary attachment and later on issued writ of attachment opposed
by Bradford. Montoya allowed to present evidence & Bradford
declared in default for failure to file an answer. RTC ruled in favor of
Montoya claiming that search was unreasonable, reckless,
oppressive& against Montoyas liberty guaranteed by Consti. She was
awarded P300k for moral damages, P100k for exemplary damages &
P50k for actual expenses. Bradford filed a Petition for Restraining
Order. SC granted TRO enjoining RTC from enforcing decision.
Montoya claims that Bradford was acting as a civilian employee thus
not performing governmental functions. Even if she were performing
governmental acts, she would still not be covered by the immunity
since she was acting outside the scope of her authority. She claims that
criminal acts of a public officer/employee are his private acts & he
alone is liable for such acts. She believes that this case is under RP
courts jurisdiction because act was done outside the territorial control
of the US Military Bases, it does not fall under offenses where US has
been given right to exercise its jurisdiction and Bradford does not
possess diplomatic immunity. She further claims that RP courts can
inquire into the factual circumstances & determine WON Bradford is
immune.
ISSUES/RATIO:
1. WON the case is under the RTCs jurisdiction - YES
Intervention of a third party is discretionary upon the Court. US did
not obtain leave of court (something like asking for Courts
permission) to intervene in the present case. Technically, it should not
be allowed to intervene but since RTC entertained its motion to
dismiss, it is deemed to have allowed US to intervene. By voluntarily
appearing, US must be deemed to have subjected itself to RTCs
jurisdiction.
Page 20 of 83
2. WON RTC committed a grave abuse of discretion in denying
Bradfords motion to dismiss. - NO
Petitioners failed to specify any grounds for a motion to dismiss
enumerated in Sec. 1, Rule 16, Rules of Court. Thus, it actually lacks
cause of action. A cause of action is necessary so that Court would be
able to render a valid judgment in accordance with the prayer in the
complaint. A motion to dismiss w/c fails to state a cause of action
hypothetically admits the truth of the allegations in the complaint.
RTC should have deferred the resolution instead of denying it for lack
of merit. But this is immaterial at this time since petitioners have
already brought this petition to the SC.
3. WON case at bar is a suit against the State. - NO
Doctrine of state immunity is expressed in Art. XVI, Sec. 3 of the
1987 Constitution. This immunity also applies to complaints filed
against officials of the state for acts allegedly performed by them in
discharge of their duties since it will require the state to perform an
affirmative act such as appropriation of amount to pay damages. This
will be regarded as a case against the state even if it has not be
formally impleaded. But this is not all encompassing. Its a different
matter where the public official is made to account in his capacity as
such for acts contrary to law & injurious to rights of plaintiff. State
authorizes only legal acts by its officers. Action against officials by
one whose rights have been violated by such acts is not a suit against
the State w/in the rule of immunity of the State from suit. The doctrine
of state immunity cannot be used as an instrument for perpetrating an
injustice. It will not apply & may not be invoked where the public
official is being sued in his private & personal capacity as an ordinary
citizen. This usually arises where the public official acts w/o authority
or in excess of the powers vested in him. A public official is liable if
he acted w/malice & in bad faith or beyond the scope of his authority
or jurisdiction. (Shauf vs. CA) Also, USA vs. Guinto declared that
USA is not conferred with blanket immunity for all acts done by it or
its agents in the Philippines merely because they have acted as agents
of the US in the discharge of their official functions. In this case,
Bradford was sued in her private/personal capacity for acts done
beyond the scope & place of her official function, thus, it falls w/in the
exception to the doctrine of state immunity.
4. WON Bradford enjoys diplomatic immunity. - NO
First of all, she is not among those granted diplomatic immunity under
Art. 16(b) of the 1953 Military Assistance Agreement creating the
JUSMAG. Second, even diplomatic agents who enjoy immunity are
liable if they perform acts outside their official functions (Art. 31,
Vienna Convention on Diplomatic Relations).
HELD: Petition denied. TRO lifted.
JUSMAG Philippines v. NLRC GR No. 108813, 15 December 1994
DOCTRINES:
A suit against JUSMAG is one against the United States Government,
and in theabsence of any waiver or consent of the latter to the suit, the
complaint against JUSMAGcannot prosper
Immunity of State from suit is one of the universally recognized
principles of internationallaw that the Philippines recognizes and
adopts as part of the law of the land
FACTS:
Joint United States Military Assistance Group (JUSMAG) assails the
January 29, 1993Resolution of the NATIONAL LABOR
RELATIONS COMMISSION (public respondent), inNLRC NCR
CASE NO. 00-03-02092-92, reversing the July 30, 1991 Order of the
LaborArbiter, and ordering the latter to assume jurisdiction over the
complaint for illegaldismissal led by FLORENCIO SACRAMENTO
(private respondent) against petitioner.
Private respondent was one of the seventy-four (74) security
assistance supportpersonnel (SASP) working at JUSMAG-Philippines.
He had been with JUSMAG fromDecember 18, 1969, until his
dismissal on April 27, 1992. When dismissed, he held theposition of
Illustrator 2 and was the incumbent President of JUSMAG
PHILIPPINES-FILIPINO CIVILIAN EMPLOYEES ASSOCIATION
(JPFCEA), a labor organization dulyregistered with the Department of
Page 21 of 83
Labor and Employment. His services were terminatedallegedly due to
the abolition of his position. He was also advised that he was
underadministrative leave until April 27, 1992, although the same was
not charged against hisleave.
On March 31, 1992, private respondent led a complaint with the
Department of Laborand Employment on the ground that he was
illegally suspended and dismissed fromservice by JUSMAG. He asked
for his reinstatement. JUSMAG then led a Motion toDismiss
invoking its immunity from suit as an agency of the United States. It
furtheralleged lack of employer-employee relationship and that it has
no juridical personality tosue and be sued.
ISSUE:Whether JUSMAG was immune from suit as an agency of the
United States.
RATIO:
YES,from the foregoing, it is apparent that when JUSMAG took the
services of privaterespondent, it was performing a governmental
function on behalf of the United Statespursuant to the Military
Assistance Agreement dated March 21, 1947. Hence, we agreewith
petitioner that the suit is, in eect, one against the United States
Government, albeitit was not impleaded in the complaint. Considering
that the United States has not waivedor consented to the suit, the
complaint against JUSMAG cannot prosper.
In this jurisdiction, we recognize and adopt the generally accepted
principles ofinternational law as part of the law of the land. Immunity
of State from suit is one of theseuniversally recognized principles. In
international law, immunity is commonlyunderstood as the
exemption of the state and its organs from the judicial jurisdiction
ofanother state. This is anchored on the principle of the sovereign
equality of states underwhich one state cannot assert jurisdiction over
another in violation of the maxim par inparem non habet imperium (an
equal has no power over an equal)
The doctrine of state immunity from suit has undergone further
metamorphosis. Theview evolved that the existence of a contract does
not, per se, mean that sovereignstates may, at all times, be sued in
local courts. The complexity of relationships betweensovereign states,
brought about by their increasing commercial activities, mothered
amore restrictive application of the doctrine. Thus, in United States of
America vs. Ruiz,we claried that our pronouncement in Harry Lyons,
supra, with respect to the waiver ofState immunity, was obiter and
has no value as an imperative authority. As it standsnow, the
application of the doctrine of immunity from suit has been restricted
tosovereign or governmental activities (jure imperii). The mantle of
state immunity cannotbe extended to commercial, private and
proprietary acts (jure gestionis).
WHO vs Aquino
Facts:
Dr. LeonceVerstuyft was assigned by WHO to its regional office in
Manila as Acting Assistant Director of Health Services. His personal
effects, contained in twelve (12) crates, were allowed free entry from
duties and taxes. Constabulary Offshore Action Center (COSAC)
suspected that the crates contain large quantities of highly dutiable
goods beyond the official needs of Verstuyft. Upon application of the
COSAC officers, Judge Aquino issued a search warrant for the search
and seizure of the personal effects of Verstuyft.
Secretary of Foreign Affairs Carlos P. Romulo advised Judge Aquino
that Dr. Verstuyft is entitled to immunity from search in respect for his
personal baggage as accorded to members of diplomatic missions
pursuant to the Host Agreement and requested that the search warrant
be suspended. The Solicitor General accordingly joined Verstuyft for
the quashal of the search warrant but respondent judge nevertheless
summarily denied the quashal. Verstuyft, thus, filed a petition for
certiorari and prohibition with the SC. WHO joined Verstuyft in
asserting diplomatic immunity.
Issue: Whether or not personal effect of Verstuyft can be exempted
from search and seizure under the diplomatic immunity.
Held:
Page 22 of 83
Yes. The executive branch of the Phils has expressly recognized that
Verstuyft is entitled to diplomatic immunity, pursuant to the provisions
of the Host Agreement. The DFA formally advised respondent judge
of the Philippine Government's official position. The Solicitor
General, as principal law officer of the gorvernment, likewise
expressly affirmed said petitioner's right to diplomatic immunity and
asked for the quashal of the search warrant.
It is a recognized principle of international law and under our system
of separation of powers that diplomatic immunity is essentially a
political question and courts should refuse to look beyond a
determination by the executive branch of the government, and where
the plea of diplomatic immunity is recognized and affirmed by the
executive branch of the government as in the case at bar, it is then the
duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the Solicitor
General in this case, or other officer acting under his discretion. Courts
may not so exercise their jurisdiction by seizure and detention of
property, as to embarass the executive arm of the government in
conducting foreign relations.
The Court, therefore, holds the respondent judge acted without
jurisdiction and with grave abuse of discretion in not ordering the
quashal of the search warrant issued by him in disregard of the
diplomatic immunity of petitioner Verstuyft. (World Health
Organization vs. Aquino, G.R. No. L-35131, November 29, 1972, 48
SCRA 243)
KHOSROW MINUCHER vs. HON. COURT OF APPEALS and
ARTHUR SCALZO (G.R. No. 142396 February 11, 2003)
Facts
Violation of the Dangerous Drugs Act of 1972, was filed against
Minucher following a buy-bust operation conducted by Philippine
police narcotic agents accompanied by Scalzo in the house of
Minucher, an Iranian national, where heroin was said to have been
seized. Minucher was later acquitted by the court.
Minucher later on filed for damages due to trumped-up charges of
drug trafficking made by Arthur Scalzo.
Scalzo on his counterclaims that he had acted in the discharge of his
official duties as being merely an agent of the Drug Enforcement
Administration of the United States Department of Justice.
Scalzo subsequently filed a motion to dismiss the complaint on the
ground that, being a special agent of the United States Drug
Enforcement Administration, he was entitled to diplomatic immunity.
He attached to his motion Diplomatic Note of the United States
Embassy addressed to DOJ of the Philippines and a Certification of
Vice Consul Donna Woodward, certifying that the note is a true and
faithful copy of its original. Trial court denied the motion to dismiss.
ISSUE
Whether or not Arthur Scalzo is indeed entitled to diplomatic
immunity.
RULLING
YES.
A foreign agent, operating within a territory, can be cloaked with
immunity from suit as long as it can be established that he is acting
within the directives of the sending state.
The consent or imprimatur of the Philippine government to the
activities of the United States Drug Enforcement Agency, however,
can be gleaned from the undisputed facts in the case.
The official exchanges of communication between agencies of the
government of the two countries
Certifications from officials of both the Philippine Department of
Foreign Affairs and the United States Embassy
Page 23 of 83
Participation of members of the Philippine Narcotics Command in the
buy-bust operation conducted at the residence of Minucher at the
behest of Scalzo
These may be inadequate to support the diplomatic status of the
latter but they give enough indication that the Philippine government
has given its imprimatur, if not consent, to the activities within
Philippine territory of agent Scalzo of the United States Drug
Enforcement Agency.
The job description of Scalzo has tasked him to conduct surveillance
on suspected drug suppliers and, after having ascertained the target, to
inform local law enforcers who would then be expected to make the
arrest.
In conducting surveillance activities on Minucher, later acting as the
poseur-buyer during the buy-bust operation, and then becoming a
principal witness in the criminal case against Minucher,
Scalzo hardly can be said to have acted beyond the scope of his
official function or duties.
SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER
represented by its Chief, DR. FLOR J. LACANILAO vs. DANILO
ACOSTA in his capacity as Labor Arbiter of the National Labor
Relations Commission, Regional Arbitration, Branch VI,
CORAZON CANTO, DAN BALIAO, ELIZABETH SUPETRAN,
CARMELITA FERRER, CATHRYN CONTRADOR, and
DORIC VELOSO, G.R. Nos. 97468-70 September 2, 1993
This is an original petition for certiorari and prohibition, with a prayer
for the issuance of a restraining order, to set aside the order of
respondent labor arbiter, dated 20 September 1990, denying herein
petitioner's motion to dismiss the cases subject matter of the petition
for lack of jurisdiction.
Two labor cases, docketed as RAB Case No. VI- 0156-86 and RAB
case No. VI - 0214-86, were filed by the herein private respondents
against the petitioner, Southeast Asian Fisheries Development Center
(SEAFDEC), before the National Labor Relations Commission
(NLRC), Regional Arbitration Branch, Iloilo City. In these cases, the
private respondents claim having been wrongfully terminated from
their employment by the petitioner.
On 22 August 1990, the petitioner, contending to be an international
inter-government organization, composed of various Southeast Asian
countries, filed a Motion to Dismiss, challenging the jurisdiction of the
public respondent in taking cognizance of the above cases.
On 20 September 1990, the public respondent issued the assailed order
denying the Motion to Dismiss. In due course, a Motion for
Reconsideration was interposed but the same, in an order, dated 07
January 1991, was likewise denied.
Hence, the instant petition. This Court, on 20 March 1991, issued the
temporary restraining order prayed for.
The private respondents, as well as respondent labor arbiter, allege that
the petitioner is not immune from suit and assuming that if, indeed, it
is an international organization, it has, however, impliedly, if not
expressly, waived its immunity by belatedly raising the issue of
jurisdiction.
The Solicitor General, on his part, filed a Manifestation and Motion,
which the Court granted, praying that he be excused from filing his
comment for respondent Labor Arbiter, he not being in agreement with
the latter's position on this matter.
On 30 March 1992, this Court dismissed the instant petition in a
resolution which reads:
. . . Considering the allegations, issues and arguments adduced in
the petition for certiorari as well as the separate comments thereon of
the public and private respondents, and the consolidated reply thereto
of the petitioner, the Court RESOLVED to dismiss the petition for
failure to sufficiently show that the questioned judgment is tainted
Page 24 of 83
with grave abuse of discretion. The temporary restraining order issued
on March 20, 1991 is hereby LIFTED effective immediately.
In time, the petitioner moved for a reconsideration, arguing that the
ground for its seeking the allowance of the petition is the labor
arbiter's lack of jurisdiction over the dispute.
The court is now asked to rule upon the motion for reconsideration.
We rule for the petitioner.
It is beyond question that petitioner SEAFDEC is an international
agency enjoying diplomatic immunity. This, we have already held in
Southeast Asian Fisheries Development Center-Aquaculture
Department vs. National Labor Relations Commission, G.R. No.
86773, 206 SCRA 283/1992; see also Lacanilao v. de Leon, G.R. No.
76532, 147 SCRA, 286/1987/, where we
said
Petitioner Southeast Asian Fisheries Development Center-Aquaculture
Department (SEAFDEC-AQD) is an international agency beyond the
jurisdiction of public respondent NLRC.
It was established by the Governments of Burma, Kingdom of
Cambodia, Republic of Indonesia, Japan, Kingdom of Laos, Malaysia,
Republic of the Philippines, Republic of Singapore, Kingdom of
Thailand and Republic of Vietnam . . . .
The Republic of the Philippines became a signatory to the Agreement
establishing SEAFDEC on January 16, 1968. Its purpose is as follows:
The purpose of the Center is to contribute to the promotion of the
fisheries development in Southeast Asia by mutual co-operation
among the member governments of the Center, hereinafter called the
'Members', and through collaboration with international organizations
and governments external to the Center.
(Agreement Establishing the SEAFDEC, Art. 1; . . .).
SEAFDEC-AQD was organized during the Sixth Council Meeting of
SEAFDEC on July 3-7, 1973 in Kuala Lumpur, Malaysia as one of the
principal departments of SEAFDEC. . . . to be established in Iloilo for
the promotion of research in aquaculture. Paragraph 1, Article 6 of the
Agreement establishing mandates:
1. The Council shall be the supreme organ of the Center and all powers
of the Center shall be vested in the Council.
Being an intergovernmental organization, SEAFDEC including its
Departments (AQD), enjoys functional independence and freedom
from control of the state in whose territory its office is located.
As Senator Jovito R. Salonga and Former Chief Justice Pedro L. Yap
stated in their book, Public International Law (p. 83,1956 ed.):
Permanent international commissions and administrative bodies have
been created by the agreement of a considerable number of States for a
variety of international purposes, economic or social and mainly non-
political. Among the notable instances are the International Labor
Organization, the International Institute of Agriculture, the
International Danube Commission. In so far as they are autonomous
and beyond the control of any one State, they have a distinct juridical
personality independent of the municipal law of the State where they
are situated. As such, according to one leading authority they must be
deemed to possess a species of international personality of their own.
(Salonga and Yap, Public International Law, 83 [1956 ed.]
Pursuant to its being a signatory to the Agreement, the Republic of the
Philippines agreed to be represented by one Director in governing
SEAFDEC Council (Agreement Establishing SEAFDEC, Art. 5, Par.
1,. . .), and that its national laws and regulations shall apply only
insofar as its contributions to SEAFDEC of "an agreed amount of
money, movable and immovable property and services necessary for
the establishment and operation of the Center" are concerned (Art. 11,
ibid). It expressly waived the application of the Philippine laws on the
Page 25 of 83
disbursement of funds of petitioner SEAFDEC-AQD (Section 2, P.D.
No. 292).
The then Minister of Justice likewise opined that Philippine Courts
have no jurisdiction over SEAFDEC-AQD in Opinion No. 139, Series
of 1984
4. One of the basic immunities of an international organization is
immunity from local jurisdiction, i.e., that it is immune from the legal
writs and processes issued by the tribunals of the country where it is
found. (See Jenks, Id., pp. 37-44). The obvious reason for this is that
the subjection of such an organization to the authority of the local
courts would afford a convenient medium thru which the host
government may interfere in their operations or even influence or
control its policies and decisions of the organization; besides, such
objection to local jurisdiction would impair the capacity of such body
to discharge its responsibilities impartially on behalf of its member-
states. In the case at bar, for instance, the entertainment by the
National Labor Relations Commission of Mr. Madamba's
reinstatement cases would amount to interference by the Philippine
Government in the management decisions of the SEARCA governing
board; even worse, it could compromise the desired impartiality of the
organization since it will have to suit its actuations to the requirements
of Philippine law, which may not necessarily coincide with the
interests of the other member-states. It is precisely to forestall these
possibilities that in cases where the extent of the immunity is specified
in the enabling instruments of international organizations
(jurisdictional immunity, is specified in the enabling instruments of
international organizations), jurisdictional immunity from the host
country is invariably among the first accorded. (See Jenks, Id.; See
Bowett. The Law of International Institutions. pp. 284-285).
At its Sixth Meeting held at Kuala Lumpur, Malaysia, on 3 to 7 July
1973, the SEAFDEC Council approved the formal establishment of its
Aquaculture Department in the province of Iloilo, Philippines, to
promote research in Aquaculture as so expressed in the "Whereas"
Clauses of Presidential Decree No. 292 issued on 13 September 1973
1. Furthermore, Section 2 of the same decree had provided for the
autonomous character of SEAFDEC, thus:
. . . .All funds received by the Department shall be receipted and
disbursed in accordance with the Agreement establishing the Southeast
Asian Fisheries Development Center and pertinent resolutions duly
approved by the SEAFDEC Council.
As aptly pointed out by Associate Justice Isagani Cruz of this Court
Certain administrative bodies created by agreement among states may
be vested with international personality when two conditions concur,
to wit:, that their purposes are mainly non-political and that they are
autonomous, i.e., not subject to the control of any state. 2
Anent the issue of waiver of immunity, suffice it to say at the moment
that the petitioner has timely raised the issue of jurisdiction. While the
petitioner did not question the public respondent's lack of jurisdiction
at the early stages of the proceedings, it, nevertheless, did so before it
rested its case and certainly well before the proceedings thereat had
terminated.
WHEREFORE, our resolution, dated 30 March 1992, dismissing the
petition for certiorari, is hereby reconsidered, and another is entered
(a) granting due course to the petition; (b) setting aside the order, dated
20 September 1990, of the public respondent; and (c) enjoining the
public respondent from further proceeding with RAB Case No. VI-
0156-86 and RAB Case No. VI-0214-86. No costs.
SO ORDERED.
INTERNATIONAL CATHOLIC IMMIGRATION
COMMISSION, petitioner vs. HON. PURA CALLEJA IN HER
CAPACITY AS DIRECTOR OF THE BUREAU OF LABOR
RELATIONS AND TRADE UNIONS OF THE PHILIPPINES
AND ALLIED SERVICES (TUPAS) WFTU respondents.
FACTS:
Page 26 of 83

ICMC an accredited refugee processing center in Morong Bataan, is a
non-profit agency involved in international humanitarian and
voluntary work. It is duly registered with the United Nations
Economic and Social Council (ECOSOC) and enjoys Consultative
status II. It has the activities parallel to those of the International
Committee for Migrtion (ICM) and the International Committee of the
Red Cross (ICRC).
On July 14, 1986, Trade Union of the Philippines and Allied Services
(TUPAS) filed with the then Ministry of Labor and Employment a
Petition for Certification Election among the rank and file members
employed by the ICMC. The latter opposed the petition on the ground
that it enjoys diplomatic immunity.
On Februaury 5, 1987 Med Arbiter Anastacio L. Bactin sustained
ICMC and dismissed the petition of TUPAS for lack of jurisdiction.
On appeal, The Director of the Bureau of Labor Relations reversed the
Med Arbiters Decisionand ordered the immediate conduct of a
certification election.
This present Petition for Certiorari with Preliminary Injunction
assailing the BLR Order.
ISSUE:Whether or not the grant of diplomatic privileges and
immunities to ICMC extends to immunity from the application of
Philippine labor laws.
HELD:
The Petition is GRANTED, the order of the Bureau of Labor Relations
for Certification election is SET ASIDE, and the Temporary
Restraining Order earlier issued is made PERMANENT.
It is a recognized principle of international law and under our system
of separation of powers that diplomatic immunity is essentially a
political question and courts should refuse to look beyond a
determination by the executive branch of the government, and where
the plea of diplomatic immunity is recognized and affirmed by the
executive branch of the government as in the case at bar, it is then the
duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government . . . or other
officer acting under his direction. Hence, in adherence to the settled
principle that courts may not so exercise their jurisdiction . . . as to
embarrass the executive arm of the government in conducting foreign
relations, it is accepted doctrine that in such cases the judicial
department of (this) government follows the action of the political
branch and will not embarrass the latter by assuming an antagonistic
jurisdiction.
BASIS:
Article II of the Memorandum of Agreement between the Philippine
Government and ICMC provides that ICMC shall have a status
similar to that of a specialized agency.
Article III, Section 4. The specialized agencies, their property and
assets, wherever located and by whomsoever held, shall enjoy
immunity from every form of legal process except in so far as in any
particular case they have expressly waived their immunity. It is,
however, understood that no waiver of immunity shall extend to any
measure of execution.
LIANG VS PEOPLE OF THE PHILIPPINES GR no. 125865
January 28, 2000
FACTS:
Petitioner is an economist working with the Asian Development Bank
(ADB). Sometime in 1994, for allegedly uttering defamatory words
against fellow ADB worker Joyce Cabal, he was charged before the
MeTC of Mandaluyong City with two counts of oral defamation.
Petitioner was arrested by virtue of a warrant issued by the MeTC.
After fixing petitioners bail, the MeTC released him to the custody of
the Security Officer of ADB. The next day, the MeTC judge received
an office of protocol from the DFA stating that petitioner is covered
by immunity from legal process under section 45 of the Agreement
Page 27 of 83
between the ADB and the Philippine Government regarding the
Headquarters of the ADB in the country. Based on the said protocol
communication that petitioner is immune from suit, the MeTC judge
without notice to the prosecution dismissed the criminal cases. The
latter filed a motion for reconsideration which was opposed by the
DFA. When its motion was denied, the prosecution filed a petition for
certiorari and mandamus with the RTC of Pasig City which set aside
the MeTC rulings and ordered the latter court to enforce the warrant of
arrest it earlier issued. After the motion for reconsideration was
denied, the petitioner elevated the case to the SC via a petition for
review arguing that he is covered by immunity under the Agreement
and that no preliminary investigation was held before the criminal
case.
ISSUES:
(1) Whether or not the petitioners case is covered with immunity
from legal process with regard to Section 45 of the Agreement
between the ADB and the Philippine Govt.
(2) Whether or not the conduct of preliminary investigation was
imperative.
HELD:
(1) NO. The petitioners case is not covered by the immunity. Courts
cannot blindly adhere to the communication from the DFA that the
petitioner is covered by any immunity. It has no binding effect in
courts. The court needs to protect the right to due process not only of
the accused but also of the prosecution. Secondly, the immunity under
Section 45 of the Agreement is not absolute, but subject to the
exception that the acts must be done in official capacity. Hence,
slandering a person could not possibly be covered by the immunity
agreement because our laws do not allow the commission of a crime,
such as defamation, in the name of official duty.
(2) NO. Preliminary Investigation is not a matter of right in cases
cognizable by the MeTC such as this case. Being purely a statutory
right, preliminary investigation may be invoked only when specifically
granted by law. The rule on criminal procedure is clear that no
preliminary investigation is required in cases falling within the
jurisdiction of the MeTC.
Hence, SC denied the petition.
Forbes, Harding, Trowbridge vs.ChuocoTiaco, Crossfiled
Presidential immunity from suit; president is immune from civil
liability and may not be sued during his tenure.
Facts: This is an original action commenced in this court to secure a
writ of prohibition against the Hon. A. S. Crossfield, as one of the
judges of the Court of First Instance of the city of Manila, to prohibit
him from taking or continuing jurisdiction in a certain case
commenced and PENDING before him in which ChuocoTiaco
(respondent herein) is plaintiff, and W. Cameron Forbes, J. E. Harding,
and C. R. Trowbridge (petitioners herein) are defendants. The
plaintiffs are W. Cameron Forbes is the Governor-General of the
Philippine Islands and CHIEF OF POLICE J. E. Harding and CHIEF
OF THE SECRET SERVICE of the city of Manila C. R. Trowbridge.
Defendant A. S. Crossfield is one of the judges of the Court of First
Instance of the city of Manila. Defendant ChuocoTiaco is a foreigner
of Chinese nationality and a resident of the Philippine Islands for the
last 35 years having a family in the country and some properties.
ChuocoTiaco filed a case for DAMAGES (monetary) alleging that
defendants forcibly deported the plaintiff to China and forcibly
prevented his return for some months in violation of the right of the
said plaintiff herein to be and to remain in the Philippine Islands as
established by law. Crossfield issued an INHIBITION against Forbes
et al from spelling or deporting or threatening to expel or deport
ChuocoTiaco. Forbes, Harding, and Trowbridge sued for writs of
prohibition against the judge and the respective plaintiffs, alleging that
the expulsion was carried out in the public interest and at the request
of the proper representative of the Chinese government in the
Philippines, and was immediately reported to the Secretary of War.
The complaints were demurred to, but the Supreme Court overruled
the demurrers, granted the prohibition, and ordered the actions
dismissed. The judge, having declined to join in the applications for
writs of error, was made a respondent, and the cases are here on the
ground that the plaintiffs have been deprived of liberty without due
process of law.
Page 28 of 83

Issue: WON the Governor General, as Chief Executive, can be sued in
a civil action.
Ruling: The principle of nonliability, as herein enunciated, does not
mean that the judiciary has no authority to touch the acts of the
Governor-General; that he may, under cover of his office, do what he
will, unimpeded and restrained. Such a construction would mean that
tyranny, under the guise of the execution of the law, could walk
defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean,
either, that a person injured by the executive authority by an act
unjustifiable under the law has no remedy, but must submit in silence.
On the contrary, it means, simply, that THE GOVERNOR-
GENERAL, LIKE THE JUDGES OF THE COURTS AND THE
MEMBERS OF THE LEGISLATURE, MAY NOT BE
PERSONALLY MULCTED IN CIVIL DAMAGES FOR THE
CONSEQUENCES OF AN EXECUTED IN THE PERFORMANCE
OF HIS OFFICIAL DUTIES. The judiciary has full power to, and
will, when the matter is properly presented to it and the occasion justly
warrants it, declare an act of the Governor-General illegal and void
and but he is not protected if the lack of authority to act is so plain that
two such men could not honestly differ over its determination. The
thing which the judiciary can not do is to mulct the Governor-General
personally in damages which result from the performance of his
official duty. it clearly appears from the discussion heretofore had. not
as Governor-General. as such. reasonably qualified for that position. In
such a case. In other words. particularly that portion which touched the
liability of judges and drew an analogy between such liability and that
of the Governor-General. Neither does this principle of nonliability
mean that the chief executive may not be personally sued at all in
relation to acts which he claims to perform as such official. Public
policy forbids it. . he acts. WHAT IS HELD HERE IS THAT HE
WILL BE PROTECTED FROM PERSONAL LIABILITY FOR
DAMAGES NOT ONLY WHEN HE ACTS WITHIN HIS
AUTHORITY. he is still protected provided the question of his
authority was one over which two men. PROVIDED HE ACTUALLY
USED DISCRETION AND JUDGMENT. when his personal or
property rights have been invaded. however humble or of whatever
country. THE JUDICIAL FACULTY. but as a private individual. On
the contrary. even by the highest authority of the state.place as nearly
as possible in status quo any person who has been deprived of his
liberty or his property by such act. that the latter is liable when he acts
in a case so plainly outside of his power and authority that he can not
be said to have exercised discretion in determining whether or not he
had the right to act. might honestly differ. BUT ALSO WHEN HE IS
WITHOUT AUTHORITY. and. he is entitled to protection in
determining the question of his authority. If he decide wrongly. IN
DETERMINING WHETHER HE HAD AUTHORITY TO ACT OR
NOT. any more than it can a member of the Philippine Commission or
the Philippine Assembly. must answer for the consequences of his act.
This remedy is assured every person.
Kuroda v. Jalandoni, G.R. No. L-2662, March 26, 1949
I. THE FACTS
Petitioner Shigenori Kuroda, the Commanding General of the Japanese
Imperial Forces in the Philippines during the Japanese occupation, was
charged before the Philippine Military Commission of war crimes. He
questioned the constitutionality of E.O. No. 68 that created the
National War Crimes Office and prescribed rules on the trial of
accused war criminals. He contended the Philippines is not a signatory
to the Hague Convention on Rules and Regulations covering Land
Warfare and therefore he is charged of crimes not based on law,
national and international.
II. THE ISSUE Was E.O. No. 68 valid and constitutional?
III. THE RULING
[The Court DENIED the petition and upheld the validity and
constitutionality of E.O. No. 68.]
YES, E.O. No. 68 valid and constitutional.
Article 2 of our Constitution provides in its section 3, that
Page 29 of 83
The Philippines renounces war as an instrument of national policy and
adopts the generally accepted principles of international law as part of
the law of the nation.
In accordance with the generally accepted principle of international
law of the present day including the Hague Convention the Geneva
Convention and significant precedents of international jurisprudence
established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of
aggression and of the commission of crimes and offenses
consequential and incidental thereto in violation of the laws and
customs of war, of humanity and civilization are held accountable
therefor. Consequently in the promulgation and enforcement of
Execution Order No. 68 the President of the Philippines has acted in
conformity with the generally accepted and policies of international
law which are part of the our Constitution.
xxxxxxxxx
Petitioner argues that respondent Military Commission has no
jurisdiction to try petitioner for acts committed in violation of the
Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only in
1947. It cannot be denied that the rules and regulation of the Hague
and Geneva conventions form, part of and are wholly based on the
generally accepted principals of international law. In facts these rules
and principles were accepted by the two belligerent nations the United
State and Japan who were signatories to the two Convention. Such rule
and principles therefore form part of the law of our nation even if the
Philippines was not a signatory to the conventions embodying them for
our Constitution has been deliberately general and extensive in its
scope and is not confined to the recognition of rule and principle of
international law as contained in treaties to which our government may
have been or shall be a signatory.
David v. Arroyo, GR No. 171396; May 3, 2006
FACTS:
President Arroyo issued PP1017 declaring a state of national
emergency. This case covers the seven consolidated petitions for
cetiorari assailing the constitutionality of PP1017 and General Order
No. 5 implementing the former. it is alleged that in doing so, President
Gloria Macapagal-Arroyo committed grave abuse of discretion and
that respondent officials of the Government, in their professed efforts
to defend and preserve democratic institutions are actually trampling
upon the very freedom guaranteed and protected by the constitution.
ISSUE:
Whether or not PP1017 and GO No. 5 are constitutional
HELD:
The assailed PP1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate decrees. legislative power is
peculiarly within the province of the Legislature, Section 1, Article VI
categorically states that "the legislative power shall be vested in the
Congress of the Philippines, which shall consist of a Senate and a
House of Representatives". To be sure, neither martial law nor a state
of rebellion nor a state of emergency can justify President Arroyo's
exercise of legislative power by issuing decrees. It follows that these
decrees are void and, therefore, cannot be enforced. With respect to
"laws", she cannot call the military to enforce or implement certain
laws such as customs laws, laws governing family and property
relations, laws on obligations and contracts, and the like. She can only
order the military under PP1017, to enforce laws pertinent to its duty
to suppress lawless violence.
Maximo Hilao, Class Plaintiff v. Estate of Ferdinand Marcos;
Imelda R. Marcos; and Ferdinand R. Marcos, Jr., 393 F.3d 987
(9th Cir. 2004)
The Republic of the Philippines appeals from two orders issued by the
district court, even though the Republic is not a party to this litigation.
The first "Memorandum and Order" reinstates a 1999 settlement
agreement between the Estate of Ferdinand E. Marcos and a class of
plaintiffs who had sued the Estate for violations of their human rights.
The second "Order Directing Compliance" facilitates the first order by
enjoining foreign banks from transferring certain assets that could be
used to fund the settlement. The Republic asks us to vacate both
orders. But, because the Republic is neither a party to the settlement
Page 30 of 83
agreement nor a person or banking institution bound by the Order
Directing Compliance, we dismiss its appeal for lack of standing.
BACKGROUND
Before turning to the present dispute, we pause to place it in its
historical context.
A. The Hilao Litigation and the Abandoned Settlement Agreement
Ferdinand Marcos and his family fled to Hawaii in 1986. Almost
immediately, several lawsuits were filed on behalf of individuals who
had been arrested, tortured, executed, or dis-appeared during Marcos'
15-year tenure as President of the Philippines. Hilao v. Estate of
Marcos (In re Estate of Ferdinand Marcos, Human Rights Litig.)
(Estate II), 25 F.3d 1467, 1469 (9th Cir. 1994). The Judicial Panel on
Multi-District Litigation consolidated all those cases in the District of
Hawaii; the consolidated case was later certified as a class action. Id.
Ferdinand Marcos died three years after the litigation commenced. In
February 1995, the district court entered a final judgment in the class
action, approving jury awards of $1.2 billion in exemplary damages
and $766 million in compensatory damages against the Marcos Estate.
Hilao v. Estate of Ferdinand Marcos (Hilao II), 103 F.3d 767, 772 (9th
Cir. 1996). We affirmed that judgment. Id. at 787.
Collecting that judgment proved exceedingly difficult for the Hilao
plaintiff class (who are Plaintiffs in this case) because of two
developments. First, to settle a separate suit by the Republic against
the Marcos Estate, the Estate agreed to transfer to the Republic the
bulk of the portion of the Estate's assets that had been impounded by
United States customs officials in Hawaii. Hilao v. Estate of Marcos
(In re Estate of Ferdinand Marcos, Human Rights Litig.) (Estate III),
94 F.3d 539, 542 (9th Cir. 1996). Although the district court tried to
enjoin the Republic from participating in that transfer, we vacated the
injunction to the extent that it purported to enjoin the Republic
directly, on the ground of foreign sovereign immunity. Id. at 548.
Second, in August 1995 the Republic asked Switzerland's federal
government to transfer frozen Estate assets, which were held in Swiss
banks, to a Philippine National Bank ("PNB") escrow account. The
request was somewhat unusual in that the Republic sought an "early
transfer" of assets before a final Philippine-court adjudication of the
ownership of those assets. But the Swiss Federal Supreme Court
confirmed orders approving the Republic's request in December 1997.
Those two developments brought the bulk of the Estate's assets under
the Republic's control. Yet Plaintiffs were owed almost $2 billion. As
a result of this dilemma, Plaintiffs and the Estate entered into an
"Agreement and Compromise" in December 1998 under which the
Estate would pay Plaintiffs $150 million to satisfy all claims. To fund
the settlement, it was agreed that " [a]ll parties shall make efforts to
obtain all necessary consents to trigger release and transfer of the
US$150 million from the [PNB] Escrow of the Settlement Fund and
shall execute all documents necessary to accomplish the release and
transfer."
The Republic did not sign, and was not a party to, the settlement
agreement. Nonetheless, the chairman of the Philippine Presidential
Commission on Good Government ("PCGG"),1 Magdangal Elma,
signed a February 1999 "Undertaking" under which the PCGG would
seek to transfer $150 million from the PNB escrow account to the
settlement fund. The Undertaking conditioned that transfer on "the
approval of the Sandiganbayan2 and other competent court, and the
President of the Republic of the Philippines." On April 29, 1999, the
district court granted final approval of the settlement agreement
between the Estate and Plaintiffs.
In a July 27, 1999, decision, the Sandiganbayan rejected the PCGG's
request to transfer $150 million to the settlement fund because, among
other reasons, the Sandiganbayan concluded that the settlement was
not in Plaintiffs' best interests. That decision left no viable source of
funding for the settlement agreement. In light of the parties' failure to
acquire settlement funds, the district court terminated the settlement
agreement in January 2001.
B. The District Court's Past Efforts to Preserve Estate Assets in
Connection with the Hilao Litigation
Page 31 of 83

Both before and after the parties' attempt to settle the Hilao litigation,
the district court took a number of measures to secure funding for the
sizable judgment against the Estate. Plaintiffs first moved for a
preliminary injunction in November 1991 to prevent the Estate from
transferring or secreting any of its assets. We upheld that injunction
against a challenge from the Estate. Estate II, 25 F.3d at 1480. When
the Estate later settled its dispute with the Republic by agreeing to
transfer certain assets to the Republic, the district court modified the
injunction to bring the Republic within its scope. We agreed with the
Republic that, under the Foreign Sovereign Immunities Act of 1976,3
it was immune from the district court's jurisdiction. So, as noted
above, we vacated the injunction insofar as it purported to enjoin the
Republic. Estate III, 94 F.3d at 548.
The district court next ordered several Swiss banks to deposit into the
court registry "as an interpleader proceeding all [Estate] assets in the
possession of the BANKS that are the subject matter of this
proceeding." Hilao v. Estate of Marcos (Hilao I), 95 F.3d 848, 851 (9th
Cir. 1996). We vacated that order, holding that "neither California law
nor [Federal Rule of Civil Procedure] 69(a) gave the district court the
authority to order the Banks to deposit the contested funds into the
court registry." Id. at 856.
Undeterred, the district court next entered an identical order,
suasponte, against the Swiss banks in connection with an action that
Plaintiffs' lawyer had filed against those banks in Rosales v. Credit
Suisse & Swiss Bank Corp., No. CV 96-6419 (C.D. Cal.) . The Swiss
banks petitioned for a writ of mandamus. We granted the writ in Credit
Suisse v. United States District Court, 130 F.3d 1342 (9th Cir. 1997).
There, we concluded that the act-of-state doctrine prohibited the
district court's order in view of the "paradigmatically sovereign"
executive orders issued by the Swiss Federal Council, freezing all
Estate assets held in Switzerland. Id. at 1347. Consequently, we
directed "the district court to refrain from taking any further action in
the Rosales action or any other case involving any or all of the Real
Parties in Interest4 and any assets of the Estate of Ferdinand E.
Marcos held or claimed to be held by the Banks." Id. at 1348. But we
retained jurisdiction and later clarified that the district court could
continue to "perform its Rule 23 and/or settlement duties in [the Hilao
action] so long as such duties do not involve an attempt to reach
Marcos assets held or claimed to be held by the banks,5 and as long as
such duties do not involve taking any further action in the Rosales
action." Credit Suisse v. United States Dist. Court, 130 F.3d 1342 (9th
Cir. 1997) (unpublished order).
C. The "Memorandum and Order" and "Order Directing Compliance"
While Plaintiffs were attempting to secure Estate assets to fund the
judgment that they had obtained, or at least the settlement, in the Hilao
litigation, the Republic was pursuing forfeiture proceedings in
Philippine courts against the Estate's assets. In July 2003, those
proceedings ended in a lengthy Philippine Supreme Court judgment,
which concluded that the Estate's assets were "ill-gotten wealth" stolen
from the Republic. The Philippine Supreme Court thus granted
summary judgment in favor of the Republic and ordered the assets in
the PNB escrow account forfeited to the Republic.
On September 2, 2003, upon learning of the Philippine Supreme
Court's decision and the impending transfer of the Estate's assets, the
district court entered suasponte the "Memorandum and Order" and
"Order Directing Compliance" that are at the center of this case. The
first order discusses perceived deficiencies in the Philippine Supreme
Court decision, as well as the Republic's involvement in the Hilao
litigation and settlement proceedings. Its operative text, however,
merely reinstates the 1999 settlement agreement between Plaintiffs and
the Estate and directs Plaintiffs' lawyer to serve notice of the order,
and the accompanying Order Directing Compliance, "on all depository
institutions in Singapore6 and Switzerland, past and present, and
counsel for the Republic in the related proceeding pending in this
Court, as well as the Swiss government."
The Order Directing Compliance notes the "worldwide scope" of the
injunction against the dissipation of the Estate's assets7 and concludes
that the injunction would be violated by any transfer of the Estate's
assets now held in the PNB escrow account. The operative text states:
Page 32 of 83

IT IS HEREBY ORDERED that any such transfer, without first
appearing and showing cause in this Court as to how such transfer
might occur without violating the Court's injunction shall be
considered contempt of the Court's earlier order. Any and all persons
and banking institutions participating in such transfers, including but
not limited to the Swiss banks, which were the original depository
institutions and the depository institutions where the money is
currently invested, are hereby notified that such transfer would be
considered in contempt of this Court's injunction....
The Order Directing Compliance was not entirely successful in
preventing the transfer of assets from the PNB escrow account. The
Singapore branch of the German bank West Landesbank, which holds
$22 million under the PNB escrow agreement, filed an interpleader in
Singapore, rather than transferring that sum to the Republic. PNB,
however, transferred the escrowed funds it controlled to the Republic.
Upon learning of this transfer in February 2004, the district court
entered an order requiring PNB to show cause why that transfer did
not put PNB in contempt of the injunction. PNB appealed the order to
show cause, contesting the validity of the Order Directing Compliance;
that separate appeal (No. 04-71843) was submitted to another panel of
this court on June 16, 2004.
The Republic filed an appeal, challenging the Order Directing
Compliance, as well as the Memorandum and Order. It claims that the
orders violate our past holdings related to this litigation, the Foreign
Sovereign Immunities Act, and the act-of-state doctrine. Although the
Republic did not raise those issues or even appear before the
district court, it now asks us to vacate both orders.
STANDARD OF APPEAL
We review de novo questions of standing. Envtl. Prot. Info. Ctr., Inc.
v. Pac. Lumber Co., 257 F.3d 1071, 1075 (9th Cir. 2001).
DISCUSSION
We have consistently held that" [a] nonparty has standing to appeal a
district court's decision only in exceptional circumstances. We have
allowed such an appeal only when (1) the appellant, though not a
party, participated in the district court proceedings, and (2) the equities
of the case weigh in favor of hearing the appeal." S. Cal. Edison Co. v.
Lynch, 307 F.3d 794, 804 (9th Cir. 2002) (citations and internal
quotation marks omitted). Generally, we have found that equities
support nonparty standing when a party "has haled the non-party into
the proceeding against his will, and then has attempted to thwart the
nonparty's right to appeal by arguing that he lacks standing," SEC v.
Wencke, 783 F.2d 829, 834 (9th Cir. 1986), or when judgment has
been entered against the nonparty, Hal Roach Studios, Inc. v. Richard
Feiner& Co., 896 F.2d 1542, 1546 (9th Cir. 1989).
Looking to each order with that standard in mind, we conclude that the
Republic does not have standing to bring this appeal.
The Memorandum and Order is the vehicle by which the district court
determined to "reinstate" the settlement agreement between Plaintiffs
and the Estate. The Republic's request that we vacate that order is
perplexing in view of the Republic's insistence, in both its briefing and
at oral argument, that it is in no way bound by the agreement. In its
opening brief, for example, the Republic observes that the funding of
the settlement agreement depended on the acquiescence of the
Republic. "The Republic, however, never signed or was a party to the
settlement agreement." Similarly, during oral argument, the Republic's
lawyer stressed that the PCGG, although it signed the conditional
Undertaking, "did not in fact enter into a settlement agreement [with
Plaintiffs or the Estate]."
A party (or, in this case, a nonparty) is bound by concessions made in
its brief or at oral argument. United States v. Crawford, 372 F.3d 1048,
1055 (9th Cir. 2004) (en banc), petition for cert. filed, ___ U.S.L.W.
___, ___ S. Ct. ___, ___ L. Ed. 2d ___ (U.S. Sept. 15, 2004) (No. 04-
6368). In view of the Republic's concession that it is not bound by the
settlement agreement, its argument for nonparty appellate standing to
challenge that same agreement collapses.
We independently agree with that concession because the Republic is
required to do nothing under the settlement agreement. At most, the
Page 33 of 83
separate Undertaking bound the PCGG to ask the Sandiganbayan to
approve a transfer of $150 million from the PNB escrow account to
fund the settlement. The PCGG made that request, but the
Sandiganbayan refused it. The Republic agreed to nothing more.
The district court has taken no steps signaling an intent to bind the
Republic to the settlement agreement. In the circumstances, the
Republic cannot show that it is prejudiced by the Memorandum and
Order, let alone demonstrate that exceptional circumstances or
equitable considerations justify nonparty appellate standing.
The Republic contends that the Order Directing Compliance threatens
it with contempt in the event that any funds are transferred from Swiss
or Singaporean banks to the Republic. The crucial phrase in the order
states:
Any and all persons and banking institutions participating in such
transfers, including but not limited to the Swiss banks, which were the
original depository institutions and the depository institutions where
the money is currently invested, are hereby notified that such transfer
would be considered in contempt of this Court's injunction....
The Republic contends that " [a]ny and all persons and banking
institutions participating in such transfers," includes the Republic
because the Republic "participates" in the "transfers" by receiving the
money. We read the order differently. The qualifying phrase
"including but not limited to the Swiss banks, which were the original
depository institutions and the depository institutions where the money
is currently invested" casts considerable light on the order's
intended effect. The district court clearly sought to bring within the
scope of its injunction all financial institutions and escrow agents who
handled the funds once they left the Swiss bank accounts. Our reading
is consistent with the threatened sanctions against "all persons and
banking institutions." (Emphasis added.) Notably absent from that list
is the term "countries" or "nations," or any reference to the Republic.
Also, the district court's enforcement of its Order Directing
Compliance is inconsistent with the Republic's interpretation. After
PNB transferred the bulk of the escrowed funds to the Republic, the
district court issued an order to show cause against PNB. It did not,
however, issue such an order against the Republic or threaten the
Republic with contempt sanctions despite its receipt of the funds. In
view of the history of this case and the strong wording of the
Memorandum and Order, we think it unlikely that the district court
voluntarily would have stayed its hand had it intended to bring the
Republic within the scope of the order.
Reading the Order Directing Compliance in its proper context, the
Republic's challenge suffers from the same defect as its challenge to
the Memorandum and Order. The present case stands in marked
contrast to Estate III, where we held that the Republic had nonparty
standing to appeal because
[t]he permanent injunction ... finds as a matter of fact that the Republic
is "an agent, representative, aider or abettor of the Estate" and
expressly enjoins not only the Estate but also "its agents,
representatives, aiders and abettors". Thus, the court clearly expressed
its view that the injunction binds the Republic.
Estate III, 94 F.3d at 544 (emphasis added). By contrast, neither the
text of the Order Directing Compliance nor the court's efforts to
enforce it suggest that the order binds, or was meant to bind, the
Republic.
The Republic asserts that the Order Directing Compliance has
interfered with its efforts, pursuant to the Philippine Supreme Court
judgment, to collect all funds held in the PNB escrow account. As we
have noted, one bank has elected to withhold $22 million pending the
resolution of an interpleader action in the High Court of Singapore.
That inconvenience to the Republic, however, does not rise to the level
of an "exceptional circumstance" justifying nonparty standing to
appeal. Lynch, 307 F.3d at 804. Were we to hold otherwise, any
judgment creditor whose interests may be adversely affected by a
district court's decision in wholly separate litigation, to which the
creditor is not a party, would have nonparty standing to appeal. We
decline to stretch nonparty standing to appeal that far.
Page 34 of 83

CONCLUSION
The Republic is not a party to the settlement agreement that is
reinstated by the Memorandum and Order. Nor is the Republic a
"person or banking institution" that is threatened with contempt under
the Order Directing Compliance. Accordingly, the Republic, as a
nonparty, lacks standing to challenge either order in this court.
APPEAL DISMISSED.
Regina v. Bartle, Bow Street Stipendiary Magistrate and
Commissioner of Police, Ex parte Pinochet
Procedural History:
Appeal from arrest and extradition order.
Overview:
-Pinochet (D) claimed that he could not be extradited because he was
not guilty of any crime under English law. An English magistrate
issued an arrest warrant for Pinochet (D), the former head of state of
Chile, at the request of a Spanish investigating judge for extradition.
-The House of Lords found that Pinochet (D) could not claim
immunity in regard to torture that had been made a universal crime by
the International Convention Against Torture and other Cruel,
Inhuman, or Degrading Treatment or Punishment of 1984.
-Pinochet (D) claimed torture was not strictly an international crime in
the highest sense.
Issue:
Is torture an international crime?
Rule:
Yes, torture is an international crime.
Analysis:
The Torture Convention created an exception to the otherwise
applicable immunity of present and former heads of state from
criminal process. Pinochet (D) ultimately was found to be too sick to
stand trial. He was allowed to return to Chile.
Outcome:
-Torture is an international crime. The Torture Convention was agreed
not to create an international crime that had not previously existed but
to provide an international system under which the international
criminal-the torturer-could find no safe haven.
-All state parties are required to prohibit torture on their territory and
to take jurisdiction over any alleged offender who is found within their
territory.
-Torture is to be treated as an extraditable offense and will be
considered to have been committed not only in the place where it
occurred but also in the state where either the alleged offender or
victim is a national.
CLINTON v. JONES
certiorari to the united states court of appeals for the eighth circuit
No. 95-1853. Argued January 13, 1997 -- Decided May 27, 1997
Respondent sued under 42 U.S.C. 1983 and 1985 and Arkansas law
to recover damages from petitioner, the current President of the United
States, alleging, inter alia, that while he was Governor of Arkansas,
petitioner made "abhorrent" sexual advances to her, and that her
rejection of those advances led to punishment by her supervisors in the
state job she held at the time. Petitioner promptly advised the Federal
District Court that he would file a motion to dismiss on Presidential
immunity grounds, and requested that all other pleadings and motions
be deferred until the immunity issue was resolved. After the court
granted that request, petitioner filed a motion to dismiss without
prejudice and to toll any applicable statutes of limitation during his
Presidency. The District Judge denied dismissal on immunity grounds
and ruled that discovery could go forward, but ordered any trial stayed
until petitioner's Presidency ended. The Eighth Circuit affirmed the
dismissal denial, but reversed the trial postponement as the "functional
equivalent" of a grant of temporary immunity to which petitioner was
Page 35 of 83
not constitutionally entitled. The court explained that the President,
like other officials, is subject to the same laws that apply to all
citizens, that no case had been found in which an official was granted
immunity from suit for his unofficial acts, and that the rationale for
official immunity is inapposite where only personal, private conduct
by a President is at issue. The court also rejected the argument that,
unless immunity is available, the threat of judicial interference with
the Executive Branch would violate separation of powers.
Held:
1. This Court need not address two important constitutional issues not
encompassed within the questions presented by the certiorari petition:
(1) whether a claim comparable to petitioner's assertion of immunity
might succeed in a state tribunal, and (2) whether a court may compel
the President's attendance at any specific time or place. Pp. 7-9.
2. Deferral of this litigation until petitioner's Presidency ends is not
constitutionally required. Pp. 7-28.
(a) Petitioner's principal submission--that in all but the most
exceptional cases, the Constitution affords the President temporary
immunity from civil damages litigation arising out of events that
occurred before he took office--cannot be sustained on the basis of
precedent. The principal rationale for affording Presidents immunity
from damages actions based on their official acts--i.e., to enable them
to perform their designated functions effectively without fear that a
particular decision may give rise to personal liability, see, e.g., Nixon
v. Fitzgerald, 457 U.S. 731, 749, 752, and n. 32--provides no support
for an immunity for unofficial conduct. Moreover, immunities for acts
clearly within official capacity are grounded in the nature of the
function performed, not the identity of the actor who performed it.
Forrester v. White, 484 U.S. 219, 229. The Court is also unpersuaded
by petitioner's historical evidence, which sheds little light on the
question at issue, and is largely canceled by conflicting evidence that
is itself consistent with both the doctrine of presidential immunity as
set forth in Fitzgerald, and rejection of the immunity claim in this case.
Pp. 9-15.
(b) The separation of powers doctrine does not require federal courts
to stay all private actions against the President until he leaves office.
Even accepting the unique importance of the Presidency in the
constitutional scheme, it does not follow that that doctrine would be
violated by allowing this action to proceed. The doctrine provides a
self executing safeguard against the encroachment or aggrandizement
of one of the three co equal branches of Government at the expense of
another. Buckley v. Valeo, 424 U.S. 1, 122. But in this case there is no
suggestion that the Federal Judiciary is being asked to perform any
function that might in some way be described as "executive."
Respondent is merely asking the courts to exercise their core Article
III jurisdiction to decide cases and controversies, and, whatever the
outcome, there is no possibility that the decision here will curtail the
scope of the Executive Branch's official powers. The Court rejects
petitioner's contention that this case--as well as the potential additional
litigation that an affirmance of the Eighth Circuit's judgment might
spawn--may place unacceptable burdens on the President that will
hamper the performance of his official duties. That assertion finds
little support either in history, as evidenced by the paucity of suits
against sitting Presidents for their private actions, or in the relatively
narrow compass of the issues raised in this particular case. Of greater
significance, it is settled that the Judiciary may severely burden the
Executive Branch by reviewing the legality of the President's official
conduct, see e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, and may direct appropriate process to the President himself, see
e.g., United States v. Nixon, 418 U.S. 683. It must follow that the
federal courts have power to determine the legality of the President's
unofficial conduct. The reasons for rejecting a categorical rule
requiring federal courts to stay private actions during the President's
term apply as well to a rule that would, in petitioner's words, require a
stay "in all but the most exceptional cases." Pp. 15-24.
(c) Contrary to the Eighth Circuit's ruling, the District Court's stay
order was not the "functional equivalent" of an unconstitutional grant
of temporary immunity. Rather, the District Court has broad discretion
to stay proceedings as an incident to its power to control its own
docket. See, e.g., Landis v. North American Co., 299 U.S. 248, 254.
Page 36 of 83
Moreover, the potential burdens on the President posed by this
litigation are appropriate matters for that court to evaluate in its
management of the case, and the high respect owed the Presidency is a
matter that should inform the conduct of the entire proceeding.
Nevertheless, the District Court's stay decision was an abuse of
discretion because it took no account of the importance of respondent's
interest in bringing the case to trial, and because it was premature in
that there was nothing in the record to enable a judge to assess whether
postponement of trial after the completion of discovery would be
warranted. Pp. 25-27.
(d) The Court is not persuaded of the seriousness of the alleged risks
that this decision will generate a large volume of politically motivated
harassing and frivolous litigation and that national security concerns
might prevent the President from explaining a legitimate need for a
continuance, and has confidence in the ability of federal judges to deal
with both concerns. If Congress deems it appropriate to afford the
President stronger protection, it may respond with legislation. Pp. 27-
28.
72 F. 3d 1354, affirmed.
Belgium v. Senegal: The International Court of Justice Affirms the
Obligation to Prosecute or Extradite HissneHabrUnder the
Convention Against Torture
On July 20, 2012, the International Court of Justice (ICJ) following a four-year investigation by Belgian authorities into the
confirmed the obligation of states parties to the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (theCAT or theConvention)[1] to times over the ensuing years as Senegal delayed prosecution on a
either prosecute alleged perpetrators or extradite them to another
country with jurisdiction for prosecution.[2] Adopted under the
auspices of the United Nations in 1984 and entered into force in 1987,
the Convention currently has 151 states parties who are required to
take effective measures to prevent torture and hold accountable those
who engage in torture.
The case, Questions Concerning the Obligation to Prosecute or
Extradite (Belgium v. Senegal), involved HissneHabr, the
former president of Chad, who is accused of engaging in torture, war
crimes, and crimes against humanity against thousands of victims
during his term in office from 19821990. Habr has been
residing in Senegal as a political asylee since the overthrow of his
government two decades ago.[3]
This Insight reviews the case and offers thoughts about its importance
and its implications for similar situations in the future.
Background
On February 19, 2009, Belgium filed an application instituting
proceedings against Senegal at the ICJ alleging that Senegal had
breached its obligations under the CAT by failing to prosecute
Habr or to extradite him to Belgium for prosecution. Belgium
invoked the CAT as the basis for the Courts jurisdiction as both
Belgium and Senegal are parties to the treaty. Belgium filed its
application on behalf of Chadian citizens and Belgian citizens of
Chadian origin who claimed to be victims of Habrs regime.
In addition, Belgium asserted that, regardless of the victims
nationalities, all states parties to the CAT have an obligation to prevent
and punish torture.
Belgium originally requested the extradition of Habr in 2006,
victims allegations and several failed attempts to bring Habr
to justice elsewhere. Belgium repeated its extradition request multiple
variety of legal and financial grounds.
Senegal asserted it had taken a number of steps to facilitate the
prosecution of Habr, including changes in its domestic laws in
2007-2008 to implement the CAT and the referral of the matter to the
African Union (AU ). The AU Assembly of Heads of State
and Government issued Decision 127 (VII) in 2006 deciding that the
case falls within the competence of the AU and instructed Senegal to
Page 37 of 83
prosecute Habr, but Senegal claimed that it lacked financial
resources and requested international financial assistance.[4] Senegal
also claimed that it was hindered in the prosecution of Habr in its
domestic courts due to a separate decision by the Economic
Community of West African States (ECOWAS), which
concluded that Habrs human rights could be violated by a
failure to abide by the principle of non-retroactivity.[5]
Jurisdiction
Senegal contested the ICJs jurisdiction on the ground that no
dispute existed between the parties regarding the interpretation of the
CAT or under any other relevant rule of international law, as required
by Article 30 of the CAT and the parties declarations accepting
the ICJs jurisdiction.[6] In this regard, Senegal claimed that it
never opposed or refused to accept the extent or the principle of the
obligations imposed by the CAT.[7] The parties, according to Senegal,
simply had different understandings of the pace at which the
obligations are to be performed.
The ICJ found that because of Senegals legislative reforms to
implement the CAT in 2007-2008, whatever dispute existed with
respect to Senegals failure to timely implement the CAT under
its Article 5 no longer existed at the time Belgium filed the ICJ
application.[8] However, disputes continued to exist with respect to
Senegals compliance with CAT Article 6, which requires a state
party to the Convention to conduct a preliminary inquiry into the facts
when a person accused of torture is found within that states
territory, and CAT Article 7, which requires a state party to submit the
case to its competent authorities for prosecution or to extradite the
accused to another state for prosecution.[9]
The ICJ also determined that the other conditions for jurisdiction under
CAT Article 30 had been met.[10] First, although many years had
passed, the dispute had not been settled through negotiations. Second,
Belgium had properly requested arbitration more than six months prior
to the institution of proceedings with no response from Senegal.
Accordingly, for the first time in its history, the Court concluded that it
had jurisdiction to entertain a dispute between parties to the CAT.[11]
This decision is significant because the Court has few opportunities to
opine on the obligations established by international human rights
treaties.[12]
Admissibility of Belgiums Claims
The ICJ also considered objections to admissibility. While jurisdiction
deals with the Courts authority to hear a case, admissibility refers
to other legal or prudential bars, such as the requirement to exhaust
domestic remedies. Here, Senegal objected to the admissibility of
Belgiums claims on the ground that Belgium cannot invoke the
international responsibility of Senegal when none of the alleged
victims of Habr were of Belgian nationality at the time when the
acts were committed.[13] Belgium responded that present jurisdiction
is based in part on complainants who are Belgian nationals of Chadian
origin. Belgium also claimed that the victims nationalities are
irrelevant because every state party to the CAT is entitled to insist that
other state parties fulfill their obligations under the Convention.[14]
In this regard, the ICJ agreed with Belgium, finding that States
parties to the Convention have a common interest to ensure . . . that
acts of torture are prevented and that, if they occur, their authors do
not enjoy impunity. [15] The Court defined these obligations as
obligationsergaomnespartes in the sense that each State
party has an interest in compliance with them in any given
case. [16] This common interest entitles each state party to the
Convention to make a claim for the cessation of any breach by another
state party regardless of whether the applicant state has a special
interest in bringing the claim due to the nationality of the victims.
Violations of the CAT
On the merits, the ICJ found that Senegals failure to enact
implementing legislation for the CAT until 2007 delayed the
submission of the case to Senegalese authorities, thus causing Senegal
to breach its obligation under CAT Article 6 to immediately make
a preliminary inquiry into the facts as soon as a suspect is
Page 38 of 83
identified in the territory of the state party.[17] The Court clarified the
obligation to carry out a preliminary investigation, stating that a
competent authority should draw up a case file and collect facts and
evidence, including documents and witness statements relating to the
events and to the suspects possible involvement. In this case, the
first complaint against Habr was filed in Dakar, Senegal in 2000
and, at that time, it becameimperative for Senegal to conduct
the preliminary inquiry.[18] Senegal failed to include any materials
demonstrating that it had carried out such an inquiry with respect to
Habrs involvement.[19]
The ICJ also determined that Senegal breached CAT Article 7, which
requires the state party having jurisdiction over the territory where a
person accused of offenses under the CAT is found to submit the case
to its competent authorities for prosecution or to extradite him.[20]
The ICJ opined that [e]xtradition is an option . . . whereas
prosecution is an international obligation under the Convention, the
violation of which is a wrongful act engaging the responsibility of the
State. [21]
A question also arose during the proceedings regarding the temporal
scope of CAT Article 7 in light of the fact that Senegal did not join the
Convention until 1987, and Belgium did not join until 1999.[22] In
considering this question, the Court observed that the prohibition
on torture is part of customary international law and has become a
peremptory norm (jus cogens). [23] However, the obligation to
prosecute alleged perpetrators of torture only arises after the
Convention has entered into force for that state party.[24] In this case,
Senegals obligations under the Convention date back to June
1987 when Senegal joined the CAT. [25] The Court noted that there
were a number of complaints regarding serious offenses committed by
Habr after that date for which Senegal is obligated to prosecute.
The Court also observed that while not required to do so, Senegal is
free to institute proceedings concerning acts committed before that
date as well. In addition, the Court found that Belgium is entitled to
invoke Senegals compliance with the Convention beginning in
1999 and has, in fact, requested Senegals compliance since 2000
when the first complaint against Habr was filed in Senegal.[26]
Finally, the Court addressed some of the obstacles Senegal claimed
existed in prosecuting of Habr. In one brief sentence, the ICJ
dismissed Senegals concerns regarding the ECOWAS judgment,
stating that the judgment cannot affect Senegals duty to comply
with the Convention.[27] Likewise, the Court stated that neither
Senegals referral of the matter to the AU nor its financial
difficulties could justify Senegals delays in complying with the
CAT.[28] In addition, the ICJ reminded Senegal that under Article 27
of the Vienna Convention on the Law of Treaties, which reflects
customary international law, Senegal cannot justify its breach of the
CAT by invoking its domestic law.[29]
With respect to the timing of Senegals compliance, the ICJ
observed that CAT Article 7 does not contain any indication as to the
time frame for performance. The Court held that a reasonable
time, in a manner compatible with the object and purpose of the
Convention is implicit in the text and added that proceedings
should be undertaken withoutdelay.[30] Notably, the
ICJs finding of jurisdiction under the Convention was
unanimous, as was its holding that Senegal must submit the case of
Habr to its authorities for prosecution or otherwise extradite him
without delay.[31]
The ICJs judgment affirms that all 151 states parties to the CAT
may insist on performance of obligations under the Convention, even
if the alleged torture occurred before the applicant state joined the
Convention and even if the alleged torturer or victims have no
connection with the applicant state. This holding therefore allows
more states to act to ensure accountability worldwide for acts of
torture. The Court also added to the understanding of what a
preliminary investigation of torture allegations should consist of and
how quickly it must be carried out.
It remains to be seen whether Senegal will comply with the judgment.
In a hopeful sign, immediately after the ICJ judgment was announced,
Senegal renewed negotiations to create a special court to try Habr.
Human Rights Watch reports that those talks resulted in an agreement
Page 39 of 83
to adopt an AU plan to try Habr before a special court, to be
known as the Extraordinary African Chambers.[32]The
Chambers would be created inside the existing court structure in
Dakar, Senegal and consist of Senegalese and other African judges.
The Chambers mandate would be to prosecute the person or
persons most responsible for atrocity crimes in Chad between 1982
and 1990. Parliamentary approval for the plan is still necessary in
Senegal, and Senegal has indicated that it will seek additional
international funding. However, the agreement represents some
positive movement towards bringing justice to the victims.
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo
vs Belgium); Year of the decision: 2002; and Court: ICJ.
Overview: A Belgium Judge issued and circulated, internationally, an
arrest warrant against the incumbent Foreign Minister of Congo based
on universal jurisdiction. Congo asked the Court to decide that
Belgium violated international law because it did not respect the
inviolability and immunities of the foreign minister from criminal
process before Belgian courts.
Facts of the Case:
On 11 April 2000, a Belgian Magistrate issued an international arrest
warrant against Mr. Yerodia. At the time, Yerodia was the Foreign
Minister of Congo. The Court issued the warrant based on universal
jurisdiction. It accused Yerodia of inciting racial hatred. These
speeches, allegedly, incited the population to attack Tutsi residents in
Rwanda, which resulted in many deaths. The warrant alleged Yerodia
committed grave breaches of the Geneva Conventions of 1949 and its
Additional Protocols and crimes against humanity. Belgium sent the
arrest warrant to Interpol and circulated it to all States, including to
Congo. The warrant asked States to arrest, detain, and extradite
Yerodia to Belgium. After Belgium issued the warrant, in November
2000, Yerodia became the Education Minister. At the time of the
judgement, he did not hold a Ministerial post in Congo.
Questions before the Court:
Did Belgium violate customary international law principles concerning
the absolute inviolability and immunity from criminal process of an
incumbent Foreign Minister, when it issued and internationally
circulated the arrest warrant? If yes, did it violate the principle of
sovereign equality amongst States, does this unlawfulness preclude
States who received the warrant from exercising it, should the Court
order reparations and should Belgium recall and cancel its arrest
warrant?
[NB: Congo placed two separate legal questions before the Court at
the time of it made its application to the ICJ. It contested Belgiums
basis of jurisdiction universal jurisdiction stating that it violated the
principle of sovereign equality (see para 17). Both Congo and the
Court did not discuss this in its final submissions and judgement (see
paras 41 43, 45, 46). Several judges in their separate opinions
discussed the issue (see below).]
Belgiums Objections:
Belgium raised four objections to the jurisdiction of the Court. One
argument was that there was no longer a legal dispute because Yerodia
was no longer the Foreign Minister. The Court rejected all four
objections (see paras 23 40, 44).
The Courts Decision:
The issuance and circulation of the arrest warrant violated Belgiums
international obligations towards Congo. Belgium failed to respect,
and infringed, Yerodias immunity and the inviolability enjoyed by
him under international law.
Relevant Findings of the Court:
1. It is an established principle of international law that Heads of
States and Governments, Foreign Ministers and Diplomatic and
Consular agents enjoys immunities from civil and criminal
jurisdictions of other States.
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2. In the absence of treaty law, customary international law determines
the immunities of Ministers of Foreign Affairs. These immunities
are not given for their personal benefit; but to ensure the effective
performance of their functions of behalf of theirStates. The
functions of the Foreign Minister require frequent travel to other
countries. International law recognizes him as a representative of the
State solely by virtue of his office. The functions of a Foreign Minister
are such that during his tenure he enjoys absolute immunity from
criminal jurisdiction and inviolability when he is abroad.
3. As the incumbent Foreign Minister, Yerodia enjoys immunity
(during his tenure) for acts performed, both, in an official capacity and
in a private capacity. The immunity applies regardless of whether the
Minister is on foreign territory in an official visit or private visit. This
immunity extends not only to his actions during his tenure; but, also to
his actions before he became Foreign Minister.
Thus, if a Minister for Foreign Affairs is arrested in another State on
a criminal charge, he or she is thereby prevented from exercising the
functions of his or her office. The consequences of such impediment to
the exercise of those official functions are equally serious.
Furthermore, even the mere risk that, by travelling to or transiting
another State a Minister for Foreign Affairs might be exposing himself
or herself to legal proceedings could deter the Minister from travelling
internationally when required to do so for the purposes of the
performance of his or her official functions.
4. The Court rejected Belgiums argument that the Minister does not
enjoy immunity because he is accused of having committed war
crimes or crimes against humanity. (Belgium relied on the Pinochet
Case (decided by the House of Lords, UK), the Qaddafi Case (decided
by the French Court of Cassation) and Statutes of International
Criminal Court and Tribunals.) The Court held that there was no
exception in customary international law to the absolute immunity of
an incumbent Foreign Minister.
It (the Court) has been unable to deduce from this practice that there
exists under customary international law any form of exception to the
rule according immunity from criminal jurisdiction and inviolability to
incumbent Ministers of Foreign Affairs, when they are suspected of
having committed war crimes or crimes against humanityThe Court
has also examined the rules concerning the immunity or criminal
responsibility of persons having an official capacity contained in the
legal instruments creating international criminal tribunals, and which
are specifically applicable It finds that these rules likewise do not
enable it to conclude that any such an exception exists in customary
international law in regard to national courts.
5. International Conventions give jurisdiction to national Courts over
various crimes and, at times, requires them to exercise this jurisdiction
[for example, the Torture Convention]. This requirement does not
affect the immunities given to Foreign Ministers under international
law. Despite international conventions establishing domestic
jurisdiction, Foreign Ministers are immune before foreign courts.
6. Immunity does not mean impunity. The person continues to be
individually responsible for the crime he committed.
While jurisdictional immunity is procedural in nature, criminal
responsibility is a question of substantive law. Jurisdictional immunity
may well bar prosecution for a certain period or for certain offences; it
cannot exonerate the person to whom it applies from all criminal
responsibility.
7. The Court set out four situations where an incumbent or former
Foreign Minister could be prosecuted:
a. Prosecution in his own country according to the domestic law (the
international law of immunity is not recognized before a persons
national courts);
b. If his country waives his immunity, prosecution before a foreign
court;
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c. Once he ceases to be the Foreign Minister, he no longer enjoys
immunity before foreign courts for private acts committed during his
tenure as Foreign Minister; and for all acts committed before or after
his tenure in office; and
d. Prosecution before an international criminal body, with the
necessary jurisdiction (for example the ICC).
8. The ICJ concluded that the issuance and circulation of the arrest
warrant violated Belgiums obligations towards Congo, in that it
failed to respect the immunity of that Minister and, more particularly
infringed the immunity from criminal jurisdiction and the inviolability
enjoyed by him under international law. It did not matter that Yerodia
was never arrested.
Since Mr. Yerodia was called upon in that capacity to undertake
travel in the performance of his duties, the mere international
circulation of the warrant could have resulted, in particular, in his
arrest while abroad. The Court observes Mr. Yerodia, on applying
for a visa to go to two countries, [apparently] learned that he ran the
risk of being arrested as a result of the arrest warrant issued against
him by Belgium the arrest warrant sometimes forced Minister After three years of discovery, the plaintiffs presented evidence
Yerodia to travel by roundabout routes.
9. Congo asked the Court to rule that the unlawfulness of the arrest
warrant precludes States who received the warrant from exercising it.
The Court refused to indicate what the judgments implications might
be for third States. Its determination is limited to Congo and Belgium.
[NB: the Statute of the ICJ requires that its rulings should not create
binding obligations on States who are not parties to the dispute.]
10. On reparation, the Court held that the issuance and circulation of
the arrest warrant engaged Belgiums international responsibility. The
Court considers that Belgium must, by means of its own choosing,
cancel the warrant in question and so inform the authorities to whom it
was circulated. The Court did not order any other reparations.
Doe v. Unocal
Unocal has agreed to settle the claims in Doe v. Unocal and
compensate the villagers who sued the firm for complicity in forced
labor, rape, and murder.
Plaintiffs in this case sought redress for the human rights abuses
associated with the Unocal pipeline project in Burma. The plaintiffs
were Burmese peasants who suffered a variety of egregious violations
at the hands of Burmese army units that were securing the pipeline
route. These abuses included forced relocation, forced labor, rape,
torture, and murder. In addition to EarthRights International (ERI),
counsel for the plaintiffs included Paul Hoffman, the Center for
Constitutional Rights, Hadsell&Stormer, and Judith Brown Chomsky.
The case began with a landmark decision in 1997, when a U.S. federal
district court in Los Angeles agreed to hear Doe v. Unocal. The court
concluded that corporations and their executive officers can be held
legally responsible under the Alien Tort Statute for violations of
international human rights norms in foreign countries, and that U.S.
courts have the authority to adjudicate such claims.
demonstrating that, in the court's words, Unocal knew that the
military had a record of committing human rights abuses; that the
Project hired the military to provide security for the Project, a military
that forced villagers to work and entire villages to relocate for the
benefit of the Project; that the military, while forcing villagers to work
and relocate, committed numerous acts of violence; and that Unocal
knew or should have known that the military did commit, was
committing and would continue to commit these tortious acts.
The court also concluded that "the evidence does suggest that Unocal
knew that forced labor was being utilized and that [Unocal and Total, a
co-venturer in the Yadana project] benefited from the practice" and
that "The violence perpetrated against Plaintiffs is well documented in
the deposition testimony filed under seal with the Court." Nonetheless,
the court dismissed the case, concluding that Unocal could not be held
liable under the Alien Tort Statute unless Unocal actually controlled
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the military units that committed abuses, and that plaintiffs had not
made this showing. Once the ATS claims were dismissed, the court
also declined to hear the plaintiffs claims under state law, without
ruling on whether these claims had merit.
After this decision, the case proceeded on two tracks. The plaintiffs
appealed the dismissal of the international human rights claims under
the ATS to the United States Court of Appeals for the Ninth Circuit.
At the same time, the plaintiff re-filed their state-law claims in
California state court, the Superior Court for Los Angeles County.
Unocal petitioned the federal court to reassert jurisdiction over those
claims, but the court rejected Unocal's motion.
Subsequently, on August 20, 2001, Unocals motion to dismiss the
case from state court was rejected. Unocal argued to the state court
that the federal courts dismissal barred plaintiffs state case because
federal and state law are the same. The court did not accept that
argument, noting that state law differs from federal law. Unocal also
made a number of arguments based upon the decisions of the U.S.
Supreme Court and the U.S. Court of Appeals for the First Circuit that
struck down Massachusetts' Burma Sanctions law. In particular,
Unocal argued that it would violate the U.S. Constitution for a state
court to hear plaintiffs' claims because doing so would intrude upon
U.S. foreign relations, and that plaintiffs' claims are preempted by the
federal Burma sanctions law. The court rejected all of these arguments.
June 11, 2002, marked another precedent-setting day in the case
against Unocal when the lawsuit survived Unocals motion for
summary judgment, the last stage before trial. The Superior Court of
Californias decision made the case against Unocal the first in U.S.
history in which victims of human rights abuses committed abroad
gained the right to a trial against a corporation.
California Superior Court Judge Victoria Chaney held that the case
against Unocal should go to trial because the plaintiffs had presented
evidence that Unocal was responsible for human rights violations.
Specifically, Judge Chaney found evidence that would allow a jury to
find that Unocals joint venture hired the military to provide security
and that Unocal is therefore liable for the militarys human rights
abuses, and to conclude that Unocal breached California constitutional
and statutory law in its operations.
At the same time, the appeal of the federal ATS claims continued. On
September 18, 2002, the United States Court of Appeals for the Ninth
Circuit reversed the District Courts decision, and allowed the lawsuit
against Unocal to go forward. The three-judge panel held that the
District Court was wrong in determining that the plaintiffs had to show
that Unocal controlled the Burmese militarys actions in order to
establish Unocals liability. The Ninth Circuit held that the plaintiffs
need only demonstrate that Unocal knowingly assisted the military in
perpetrating the abuses. Under this standard, the Court of Appeals
determined that the plaintiffs had presented enough evidence to go to
trial. In February 2003, however, the Ninth Circuit Court decided to
rehear the appeal before an eleven-judge en banc panel.
The trial in state court began in late 2003. In the first phase of the trial,
Judge Chaney concluded that the Unocal subsidiaries involved in the
pipeline project were not sham entities. On September 14, 2004, Judge
Chaney ruled that the plaintiffs were entitled to a trial on their other
theories of liability. In so doing, she rejected Unocal's argument that
she should dismiss the case in light of her prior decision, noting that
decision "does not preclude [the plaintiffs] from proving defendants
controlled specific aspects of the Yadana project to an extent beyond
that permissible by a mere owner." Judge Chaney set a trial date for
June of 2005 for a jury trial on the plaintiffs' claims of murder, rape,
and forced labor.
In March of 2005, Unocal agreed to compensate the plaintiffs in a
historic settlement that ended the lawsuit. Shortly thereafter, Unocal
was acquired by Chevron.
Jurisdictional Immunities of the State (Germany vs Italy); Year of
the decision: 2012; and Court: ICJ.
Overview: Italian Courts allowed civil claims to be brought against
Germany based on violations of international humanitarian law
Page 43 of 83
committed by Germany from 1943 1945 against Italian citizens.
Italian courts also permitted the enforcement of a judgement of the
Greek courts in Italy against Germany and took measures of constraint
against a German property in Italy. Did Italys actions violate the
customary international law right of jurisdictional immunity of
Germany?
Facts of the Case:
In 1940, Italy entered the Second World War as an ally of the German
Reich. In 1943, Italy surrendered to the Allies and declared war
against Germany. At the time, German forces occupied significant
Italian territory. It committed many crimes against civilians and
soldiers, including massacres, deportations and forced labour. After
the end of the war, Germany enacted several laws to facilitate the
payment of compensation to these victims. However, thousands of
former Italian military internees did not fall within these laws and they
could not get compensation in Germany (paras 20 27). These
internees brought civil cases against Germany in Italian Courts to
claim compensation. Germany objected to the proceedings on the
basis of jurisdictional immunity before foreign courts. Italian Courts
held that jurisdictional immunity is not absolute and that in
cases of crimes under international law, the jurisdictional immunity of
States should be set aside. (paras 27 29).
Greek courts also set aside the immunity of Germany, in a similar
situation, and ordered Germany to pay damages. Germany refused to
pay on the basis that these Greek judicial decisions could not be
recognized within the German legal order because they have been
given in breach of Germans entitlement of State Immunity. The
judgement could not be given effect to in Greece due to a decision of
the executive. The Greek claimants then asked Italian courts to enforce
the Greek judgement. Italian courts ordered a legal charge over a
property of Germany in Italy as a measure of enforcement (paras 30
36).
Questions before the Court:
Is jurisdictional immunity available to a State for acts committed by its
armed forces in the conduct of an armed conflict? If so, did Italy
violate this immunity by allowing civil claims against Germany to be
brought before its courts and by enforcing the Greek judgement in
Italy? Did Italy violate its international law obligations relating to
Germanys jurisdictional immunities when it took measures of
constraint against German property in Italy?
The Courts Decision:
Italy violated its obligation to respect Germanys immunity under
international law by allowing civil claims to be brought against
Germany based on violations of international humanitarian law
committed by the German Reich between 1943 and 1945, by declaring
enforceable in Italy decisions of Greek courts and by taking measures
of constraint against German property in Italy.
The Court requested Italy to enact legislation, or resort to other
methods of its choosing, to ensure that the decisions of its courts and
those of other judicial authorities infringing the immunity which
Germany enjoys under international law cease to have effect.
Relevant Findings of the Court
Did the ICJ have jurisdiction to hear this case?
ICJs jurisdiction was on the basis of the European Convention for the
Peaceful Settlement of Disputes. Article 27(a) of the Convention states
that the Convention did not apply to disputes relating to facts or
situations prior to the entry into force of this Convention as between
the parties to the dispute. The relevant year of entry into force was
1961. The Court held that the subject matter of the dispute the crimes
for which reparations are sought occurred during between 1943 and
1945. However, the facts or situations which have given rise to
the (present) dispute before the Court are constituted by Italian judicial
decisions that denied Germany the jurisdictional immunity and by
measures of constraint applied to property belonging to Germany
Page 44 of 83
This occurred between 2004 and 2011. The ICJ had jurisdiction to hear
the case.
Is jurisdictional immunity available to a State for acts committed by its
armed forces during an armed conflict?
The ICJ affirmed that jurisdictional immunities are available to a State
before foreign courts, for acts of its armed forces, which were
committed during the conduct of an armed conflict. In coming to this
conclusion, the ICJ analysed:
(1) the customary nature of State immunity
State immunity derives from the principle of sovereign equality found
in Article 2(1) of the UN Charter. It is one of the fundamental pillars
of the international legal order. As between Italy and Germany this
right is derived from customary international law, in the absence of a
treaty to that effect. Based on its analysis of State practice and opinio
juris, the ICJ said, practice shows that, whether in claiming
immunity for themselves or according it to others, States generally
proceed on the basis that there is a right to immunity under
international law, together with a corresponding obligation on the part
of other States to respect and give effect to that immunity. (paras 55
56).
(2) the relationship between jurisdictional immunity and the territorial
sovereignty of the forum State
This principle [of State immunity] has to be viewed together with the
principle that each State possesses sovereignty over its own territory
and that there flows from that sovereignty the jurisdiction of the State
over events and persons within that territory. Exceptions to the
immunity of the State represent a departure from the principle of
sovereign equality. Immunity may [also] represent a departure from
the principle of territorial sovereignty and the jurisdiction which flows
from it (para 57).
(3) the classification of acts as falling under jus imperii or jus
gestionis.
The ICJ discussed jus imperii (law governing the exercise of sovereign
power) and jus gestionis (law relating to non-sovereign activities of a
State, especially private and commercial activities). A domestic court
has to assert the nature of the act (whether imperii or gestionis) before
it hears the case; because, this will determine if the State is entitled to
immunity before the domestic court (para 59 -60).
The acts of the German armed forces and other State organs which
were the subject of the proceedings in the Italian courts clearly
constituted acta jure imperiinotwithstanding that they were
unlawful. To the extent that this distinction (between jus imperii and
jus gestionis) is significant for determining whether or not a State is
entitled to immunity from the jurisdiction of another States courts in
respect of a particular act, it has to be applied before that jurisdiction
can be exercised, whereas the legality or illegality of the act is
something which can be determined only in the exercise of that
jurisdiction (para 60. Emphasis added).
The Court concluded that German enjoyed jurisdictional immunity
before foreign courts for acts committed by its armed forces.
Did Italy violate the jurisdictional immunity of Germany by allowing
civil claims against Germany before its courts?
Itay argued that Germany was not entitled to immunity or that its
immunity before Italian courts was restricted because of the: (1)
territorial tort principle (see below) and (2) fact that the rules that
were violated were of juscogens nature and, if Germany was to
succeed in its claim of immunity, no alternative means of redress was
available (para 61).
Italys First Argument: Territorial Tort Principle
Italy argued that under customary international law Germany was not
entitled to immunity for acts causing death, personal injury or damage
Page 45 of 83
to property in the territory of the forum State (in this case italy) even
if the acts in question falls within jus imperii. The ICJ disagreed.
The ICJ based its determination on an analysis of the European
Convention on State Immunities, the UN convention on Jurisdictional
Immunities, work of the International Law Commission on State
Immunity, national legislation and national judicial decisions ( paras
64 -76) and concluded that
State immunity for acta jure imperii continues to extend to civil
proceedings for acts occasioning death, personal injury or damage to
property committed by the armed forces and other organs of a State in
the conduct of armed conflict, even if the relevant acts take place on
the territory of the forum State In light of the foregoing, the Court
considers that customary international law continues to require that a
State be accorded immunity
Italys Second Argument: The Jus Cogens Nature of the Crime
Italy argued that Germany was not entitled to immunity because: (1)
the acts which gave rise to the claims constituted war crimes and
crimes against humanity i.e. serious violations of IHL; (2) these rules
of international law were peremptory norms (jus cogens); (3) these
individuals were denied all other forms of redress (for example, before
German and Greek Courts) and, therefore, the exercise of jurisdiction
by the Italian courts was necessary as a last resort; and in its oral
arguments Italy argued that Italian courts could deny Germany
immunity because of the combined effect of all three arguments. The
ICJ disagreed.
Denial of immunity on the basis that Acts amount to war crimes and
crimes against humanity
Italy argued that international law does not give immunity to a State,
or at least restricts its right to immunity, when that State has
committed serious violations of IHL. The ICJ held that Italys
argument did not reflect customary international law. This was
supported by decisions of courts in Canada, France, Slovenia and the
United Kingdom, which rejected similar arguments relating to human
rights law, war crimes or crimes against humanity.
The ICJ said that the availability of immunity would not depend on the
gravity of the unlawful act or its jus cogens nature. The ICJ said that
jurisdictional immunity is preliminary in nature it determines if a
State can be subjected to trial by a domestic court of another country
before the domestic court looks at the merits (and the gravity) of the
case.
Consequently, a national court is required to determine whether or
not a foreign State is entitled to immunity as a matter of international
law before it can hear the merits of the case brought before it and
before the facts have been established. If immunity were to be
dependent upon the State actually having committed a serious
violation of international human rights law or the law of armed
conflict, then it would become necessary for the national court to hold
an enquiry into the merits in order to determine whether it had
jurisdiction If, on the other hand, the mere allegation that the State
had committed such wrongful acts were to be sufficient to deprive the
State of its entitlement to immunity, immunity could, in effect be
negated simply by skilful construction of the claim.
Distinction from Pinochet case
The Court distinguished this case from the Pinochet case. As you
would recall in the Pinochet case Lord Brownie-Wilinson said the
notion of continued immunity for ex-heads of state is inconsistent with
the provisions of the Torture convention
he ICJ, in this case said that:
The Court does not consider that the United Kingdom judgment in
Pinochet is relevant Pinochet concerned the immunity of a former
Head of State from the criminal jurisdiction of another State, not the
immunity of the State itself in proceedings designed to establish its
liability to damages. The distinction between the immunity of the
official in the former type of case and that of the State in the latter case
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was emphasized by several of the judges in Pinochet In its later
judgment in Jones v. Saudi Arabia, the House of Lords further
clarified this distinction, Lord Bingham describing the distinction
between criminal and civil proceedings as fundamental to the
decision in Pinochet (para. 32). Moreover, the rationale for the
judgment in Pinochet was based upon the specific language of the
1984 United Nations Convention against Torture, which has no
bearing on the present case. In reaching that conclusion, the Court
must emphasize that it is addressing only the immunity of the State
itself from the jurisdiction of the courts of other States; the question of
whether, and if so to what extent, immunity might apply in criminal
proceedings against an official of the State is not in issue in the present
case.
Denial of Immunity on the Basis of a Violation of a Jus Cogens Norm
Italy argued Germanys acts constituted violations of IHL rules, which
were peremptory norms (jus cogens). Therefore, there was a conflict
between jus cogens rules and according immunity to Germany. Since
jus cogens rules always prevail over any inconsistent rule of
international law, whether contained in a treaty or in customary
international law and since the rule which accords one State
immunity before the courts of another does not have the status of jus
cogens, the rule of immunity must give way. The ICJ said that there
was no conflict between jus cogens norms and granting immunity.
This argument therefore depends upon the existence of a conflict
between a rule, or rules, of jus cogens, and the rule of customary law,
which requires one State to accord immunity to another. In the opinion
of the Court, however, no such conflict exists. Assuming for this
purpose that the (relevant) rulesare rules of jus cogens, there is no
conflict between those rules and the rules on State immunity. The two
sets of rules address different matters. The rules of State immunity are
procedural in character and are confined to determining whether or not
the courts of one State may exercise jurisdiction in respect of another
State. They do not bear upon the question whether or not the conduct
in respect of which the proceedings are brought was lawful or
unlawful.
The ICJ emphasised that recognizing the immunity of a foreign State
does not amount to recognizing as lawful a situation created by the
breach of a jus cogens rule.
To the extent that it is argued that no rule which is not of the status of
jus cogens may be applied, if to do so would hinder the enforcement of
a jus cogens rule, even in the absence of a direct conflict, the Court
sees no basis for such a proposition. A jus cogens rule is one from
which no derogation is permitted but the rules which determine the
scope and extent of jurisdiction and when that jurisdiction may be
exercised do not derogate from those substantive rules which possess
jus cogens status, nor is there anything inherent in the concept of jus
cogens which would require their modification or would displace their
application. The Court has taken that approach in two cases,
notwithstanding that the effect was that a means by which a jus cogens
rule might be enforced was rendered unavailable. In Armed Activities
(on the Territory of the Congo case), it held that the fact that a rule has
the status of jus cogens does not confer upon the Court a jurisdiction
which it would not otherwise possess. In Arrest Warrant, the Court
held, albeit without express reference to the concept of jus cogens, that
the fact that a Minister for Foreign Affairs was accused of criminal
violations of rules which undoubtedly possess the character of jus
cogens did not deprive the Democratic Republic of the Congo of the
entitlement which it possessed as a matter of customary international
law to demand immunity on his behalf The Court considers that the
same reasoning is applicable to the application of the customary
international law regarding the immunity of one State from
proceedings in the courts of another.
The ICJ analysed national legislation and case law to determine that
even on the assumption that the proceedings in the Italian courts
involved violations of jus cogens rules, the applicability of the
customary international law on State immunity was not affected. a
jus cogens norm cannot displace State immunity. [NB: The ICJ
avoided a discussion on the jus cogens status of the rules mentioned by
Italy].
Page 47 of 83
Denial of Immunity on Basis that Italian Courts were the Last Resort
Italy also argued that the alleged shortcomings in Germanys
legislation in giving reparations to Italian victims entitled the Italian
courts to deprive Germany of jurisdictional immunity.
In addition national courts have to determine questions of
immunity at the outset of the proceedings, before consideration of the
merits. Immunity cannot, therefore, be made dependent upon the
outcome of a balancing exercise of the specific circumstances of each
case to be conducted by the national court before which immunity is
claimed. The third and final strand of the Italian argument is that the
Italian courts were justified in denying Germany the immunity to
which it would otherwise have been entitled, because all other
attempts to secure compensation for the various groups of victims
involved in the Italian proceedings had failed.+
The ICJ held that there is no customary international law that makes
the entitlement of a State to immunity dependent upon the existence of
effective alternative means of securing redress.
Germanys obligations
The Court did not agree with the fact that Germany decided to deny
compensation to a group of victims through the operation and
interpretation of its legislation.
Moreover, as the Court recalled that the immunity of State officials
from criminal proceedings, the fact that immunity may bar the exercise
of jurisdiction in a particular case does not alter the applicability of the
substantive rules of international law. In that context, the Court would
point out that whether a State is entitled to immunity before the courts
of another State is a question entirely separate from whether the
international responsibility of that State is engaged and whether it has
an obligation to make reparation It [the ICJ] considers however that
the claims arising from the treatment of the Italian military internees
together with other claimscould be the subject of further negotiation
involving the two States concerned, with a view to resolving the
issue.
Did Italy violate the customary international law obligation to respect
the jurisdictional immunity of Germany when it declared enforceable
in Italy the judgement of the Greek courts against Germany?
The court held that in this situation, Italy violated its obligation to
respect Germanys immunity. In its findings, the ICJ focused on:
(1) The ability of a national court (Italy) to determine if a judgement
of a foreign court (Greece) was made in violation of the jurisdictional
immunity of a third State (Germany)
The ICJ said that there is nothing to prevent national courts from
ascertaining that a foreign judgment has not breached the immunity of
a third State, before looking to enforce a judgement against that third
state. The ICJ justified this on the basis that, when an enforcement
measure is requested against a third state, the national court is itself
being called upon to exercise its jurisdiction in respect of the third
State. in granting or refusing exequatur, the court exercises a
jurisdictional power which results in the foreign judgment being given
effects corresponding to those of a judgment rendered on the merits in
the requested State.
the court seised of an application for exequatur of a foreign
judgment rendered against a third State has to ask itself whether the
respondent State enjoys immunity from jurisdiction having regard
to the nature of the case in which that judgment was given before
the courts of the State in which exequatur proceedings have been
instituted. In other words, it has to ask itself whether, in the event that
it had itself been seised of the merits of a dispute identical to that
which was the subject of the foreign judgment, it would have been
obliged under international law to accord immunity to the respondent
State.
The ICJ held that, in this case, it would not rule on the legality of the
decisions of the Greek courts because Greece was not a party to the
Page 48 of 83
current proceedings. It would confine itself to the question whether
Italy, when declaring enforceable the judgement of the Greek courts,
violated international law.
(2) The need for waiver of immunity before enforcement of a
judgement
In doing its analysis as mentioned above, the national court may find
that the judgement did not violate the immunity of a third State. For
example, in certain situations, the third State may waive its immunity
before the courts hearing the merits of the case. However, a waiver of
immunity at the trial stage does not imply that the State has waived
immunity in the exequatur proceedings (enforcement proceedings).
The rules of customary international law governing immunity from
enforcement and those governing jurisdictional immunity (understood
strictosensu as the right of a State not to be the subject of judicial
proceedings in the courts of another State) are distinct, and must be
applied separately. Even if a judgment has been lawfully rendered
against a foreign State, in circumstances such that the latter could not
claim immunity from jurisdiction (NB: for example acts falling under
jus gestionis), it does not follow ipso facto that the State against which
judgment has been given can be the subject of measures of constraint
on the territory of the forum State or on that of a third State, with a
view to enforcing the judgment in question. Similarly, any waiver by a
State of its jurisdictional immunity before a foreign court does not in
itself mean that that State has waived its immunity from enforcement
as regards property belonging to it situated in foreign territory.
Therefore, before taking any measure of constraint against a property
of a third State, the court must be satisfied:
(1) that the property in question must be in use for an activity not
pursuing government non-commercial purposes, or
(2) that the State which owns the property has expressly consented to
the taking of a measure of constraint, or
(3) that that State has allocated the property in question for the
satisfaction of a judicial claim
The ICJ held that in the present case the property which was the
subject of the measure of constraint at issue is being used for
governmental purposes that are entirely non-commercial and hence for
purposes falling within Germanys sovereign functions. The court
held that Italy violated Germanys immunity in this respect.
Israel v. Eichmann, 36 ILR 277
Summary
The crimes perpetrated by the Nazis during Hitlers reign against
Jewish citizens were some of the worst recorded in history. Although
accurate figures may never be known, it is estimated that some 6
million Jewish individuals died men, women, and children from all
over Europe. They were deported from their homes in large freight
trains in appalling conditions, others starved or froze to death, others
still were taken away to concentration camps where the fit were forced
to perform manual labour whilst the weak were shot to death or later,
gassed to death in their thousands.
The Accused, Adolf Eichmann, was an Austrian by birth who
volunteered to work for the Security Service (SD) in Berlin. He rose
through the ranks and eventually occupied the position of Head of
Section (Referant) for Jewish Affairs charged with all matters related
to the implementation of the Final Solution to the Jewish Question. In
this capacity, he oversaw the transport and deportation of Jewish
persons, set up and personally ran an operations centre in Hungary in
order to implement the Final Solution there, organised the transfer of
money from evacuated Jews to the State and was responsible for the
administration of the camps at Terezin and Bergen-Belsen.
He was captured by Israeli Security Forces in Argentina and handed
over to the District Court of Jerusalem to stand trial for war crimes,
crimes against humanity and crimes against the Jewish people. He was
convicted of all 15 counts and sentenced to death. He was unsuccessful
Page 49 of 83
in contesting the jurisdiction of the Court or defending his actions by
relying on superior orders.
Procedural history
In May 1960, the Israeli intelligence service, Mossad, abducted
Eichmann from his hiding place in Argentina and transferred him to
Jerusalem to face an Israeli court.
The trial commenced on 11 April 1961 with the indictment charging
Eichmann with 15 counts of crimes against the Jewish people, crimes
against humanity, war crimes and membership in an organisation
declared criminal by the International Military Tribunal in Nuremberg
15 years earlier.
Related developments
Eichmann appealed the decision of the District Court. The Supreme
Court dismissed his appeal on 29 May 1962.
Eichmann was executed on 31 May 1962.
Legally relevant facts
Prior to the outbreak of World War II, the Accused was a member of
the Austrian SS and later volunteered for a position with the Head
Office of the Security Service (SD) in Berlin (para. 59). When the SD
merged with the State Secret Police (Gestapo) to form the Head Office
for Reich Security (RSHA), the Accused occupied the role of Special
Officer of Zionist Affairs (para. 61). He was transferred to Vienna in
1938 to administer the Central Office for the Emigration of Austrian
Jews (para. 64). His success was such that approximately 150,000
Austrian Jews were forced to emigrate and he was appointed head of
the new Reich Central Office for Jewish Emigration in October 1939
(para. 65).
From the outbreak of the War to mid-1941, the Accused devised and
carried out the mass deportation of Jewish persons from his role as the
Special Referent for Emigration and Evacuation within the RSHA
(paras. 71-75) and explored the possibility of setting up a slave Jewish
state in Madagascar (para. 76).
In early 1942, the Accused was appointed the Referant of the RSHA in
matters connected to the Final Solution (para. 88). In implementing the
Final Solution, the Accused received information as to the number of
persons to be expelled (para. 90), organised the transfer of money from
evacuated Jews for the disposal of the SS (para. 91), and oversaw the
handling of the transport of Jews (para. 93), not only in the Reich but
also in other countries (para. 98). In particular, he headed the
Eichmann Special Operations Unit in Hungary and did his utmost to
carry out the Final Solution (para. 111). These "Transport Jews" were
taken to concentration camps and those who were unfit for hard labour
were exterminated immediately (para. 145).
In autumn 1942, a cover up effort was begun as bodies in mass graves
were burned in an effort to hide the slaughter (para. 148). The
concentration camps were evacuated (para. 149) the Accused in
particular was responsible for all administrative matters connected
with the Terezin Ghetto (para. 152) and the camp at Bergen-Belsen
(para. 153).
Core legal questions
Does the District Court of Jerusalem have jurisdiction to try the case in
light of the fact that Eichmann is a foreign national and crimes were
committed on foreign territory?
In the affirmative, is jurisdiction negated by the abduction of the
Accused from a foreign country?
Is obeying superior orders a defence excluding criminal responsibility?
Specific legal rules and provisions
Section 19 of the Criminal Code Ordinance of 1936.
Sections 1(a)(1),(2),(3), 1(b) and 8 of the the Nazis and Nazi
Collaborators (Punishment) Law.
Court's holding and analysis
The Courts jurisdiction is founded upon it by the Nazis and Nazi
Collaborators (Punishment) Law 5710-1950. This law does not violate
the principles of international law (para. 10). Israels right to punish
is founded on two elements. First, the universal character of the crimes
Page 50 of 83
in question, which are grave offences against the law of nations itself
and, in the absence of an international court, grant jurisdiction to any
domestic court (para. 12). Second, the specific character of the crimes,
which was the extermination of the Jewish people, provides the
necessary linking point between the Accused and the newly-founded
State of Israel, a State established and recognised as the State of the
Jews (para. 34). The crimes committed by the Accused concern the
vital interests of the State, thus it has a right to punish the Accused
pursuant to the protective principle (para. 35).
This jurisdiction is not negated by the manner in which the Accused
was brought before the Court. It is an established rule of law that a
person standing trial for an offence against the laws of a State may not
oppose his being tried by reason of the illegality of his arrest or the
means by which he was brought to the jurisdiction of the court (para.
41). This rule applies equally in cases where the accused is relying on
violations of international, rather than domestic, law (para. 47). Such a
violation of international law constitutes an international tort, which
may be cured by waiver. In the present instance, the joint decision of
the Governments of Argentina and Israel of 3 August 1960 cured the
international tort committed by Israel when it entered Argentinian
territory to abduct the Accused (para. 50).
Having examined the command structure in place at the SS and the
scope of the Accuseds authority, the Court concluded that the latter
acted in accordance with general directives from his superiors but he
retained wide powers of discretion (para. 180). Under Section 8 of the
Punishment Law, the defence of superior orders (contained in Section
19(b) of the Criminal Code Ordinance of 1936) is not available in case
of offences enumerated by the afore-mentioned Law but may be taken
into account as a factor at sentencing (para. 218).
The Accused was convicted on all fifteen counts and sentenced to
death (para. 244).
Ker v. Illinois, 119 U.S. 436 (1886)
A plea to an indictment in a state court that the defendant has been
brought from a foreign country to this country by proceedings which
are a violation of a treaty between that country and the United states,
and which are forbidden by that treaty, raises a question, if the right
asserted by the plea is denied, on which this Court can review, by writ
of error, the judgment of the state court.
But where the prisoner has been kidnapped in the foreign country and
brought by force against his will within the jurisdiction of the state
Page 119 U. S. 437
whose law he has violated, with no reference to an extradition treaty,
though one existed, and no proceeding or attempt to proceed under the
treaty, this Court can give no relief, for these facts do not establish any
right under the Constitution or laws or treaties of the United States.
The treaties of extradition to which the United States are parties do not
guarantee a fugitive from the justice of one of the countries an asylum
in the other. They do not give such person any greater or more sacred
right of asylum than he had before. They only make provision that for
certain crimes, he shall be deprived of that asylum and surrendered to
justice, and they prescribe the mode in which this shall be done.
The trespass of a kidnapper, unauthorized by either of the governments
and not professing to act under authority of either, is not a case
provided for in the treaty, and the remedy is by a proceeding against
him by the government whose law he violates or by the party injured.
How far such forcible transfer of the defendant so as to bring him
within the jurisdiction of the state where the offense was committed
may be set up against the right to try him is the province of the state
court to decide, and presents no question in which this Court can
review its decision.
The plaintiff in error, being convicted of embezzlement in a state court
of Illinois, sued out this writ of error. The federal question which
makes the case is stated in the opinion of the Court.
Page 51 of 83

MR. JUSTICE MILLER delivered the opinion of the Court.
This case is brought here by a writ of error to the Supreme Court of the
State of Illinois. The plaintiff in error, Frederick M. Ker, was indicted,
tried, and convicted in the Criminal Court of Cook County, in that
state, for larceny. The indictment also included charges of
embezzlement. During the proceedings connected with the trial, the
defendant presented a plea in abatement, which, on demurrer, was
overruled, and, the defendant refusing to plead further, a plea of not
guilty was entered for him, according to the statute of that state, by
Page 119 U. S. 438
order of the court, on which the trial and conviction took place.
The substance of the plea in abatement, which is a very long one, is
that the defendant, being in the City of Lima, in Peru, after the
offenses were charged to have been committed, was in fact kidnapped
and brought to this country against his will. His statement is that,
application having been made by the parties who were injured,
Governor Hamilton, of Illinois, made his requisition, in writing, to the
Secretary of State of the United States for a warrant requesting the
extradition of the defendant, by the executive of the Republic of Peru,
from that country to Cook County; that on the first day of March,
1883, the President of the United States issued his warrant, in due
form, directed to Henry G. Julian, as messenger, to receive the
defendant from the authorities of Peru upon a charge of larceny, in
compliance with the treaty between the United States and Peru on that
subject; that the said Julian, having the necessary papers with him,
arrived in Lima, but, without presenting them to any officer of the
Peruvian government or making any demand on that government for
the surrender of Ker, forcibly and with violence arrested him, placed
him on board the United States vessel Essex, in the harbor of Callao,
kept him a close prisoner until the arrival of that vessel at Honolulu,
where, after some detention, he was transferred in the same forcible
manner on board another vessel, to-wit, the City of Sydney, in which
he was carried a prisoner to San Francisco, in the State of California.
The plea then states that before his arrival in that city, Governor
Hamilton had made a requisition on the Governor of California, under
the laws and Constitution of the United States, for the delivery up of
the defendant as a fugitive from justice, who had escaped to that state
on account of the same offenses charged in the requisition on Peru and
in the indictment in this case. This requisition arrived, as the plea
states, and was presented to the Governor of California, who made his
order for the surrender of the defendant to the person appointed by the
Governor of Illinois, namely, one Frank Warner, on the 25th day of
June, 1883. The defendant arrived in the City of San
Page 119 U. S. 439
Francisco on the 9th day of July thereafter, and was immediately
placed in the custody of Warner, under the order of the Governor of
California, and, still a prisoner, was transferred by him to Cook
County, where the process of the criminal count was served upon him,
and he was held to answer the indictment already mentioned.
The plea is very full of averments that the defendant protested, and
was refused any opportunity whatever, from the time of his arrest in
Lima until he was delivered over to the authorities of Cook County, of
communicating with any person, or seeking any advice or assistance in
regard to procuring his release by legal process or otherwise, and he
alleges that this proceeding is a violation of the provisions of the treaty
between the United States and Peru, negotiated in 1870, which was
finally ratified by the two governments, and proclaimed by the
President of the United States, July 27, 1874. 18 Stat. 719.
The judgment of the Criminal Court of Cook County, Illinois, was
carried by writ of error to the supreme court of that state, and there
affirmed, to which judgment the present writ of error is directed. The
assignments of error made here are as follows:
"First, that said Supreme Court of Illinois erred in affirming the
judgment of said Criminal Court of Cook County, sustaining the
demurrer to plaintiff in error's plea to the jurisdiction of said criminal
court; second, that said Supreme Court of Illinois erred in its judgment
Page 52 of 83
aforesaid in failing to enforce the full faith and credit of the federal
treaty with the Republic of Peru, invoked by plaintiff in error in his
said plea to the jurisdiction of said criminal court."
The grounds upon which the jurisdiction of this Court is invoked may
be said to be three, though from the briefs and arguments of counsel it
is doubtful whether, in point of fact, more than one is relied upon. It is
contended in several places in the brief that the proceedings in the
arrest in Peru, and the extradition and delivery to the authorities of
Cook County, were not "due process of law," and we may suppose,
although
Page 119 U. S. 440
it is not so alleged, that this reference is to that clause of Article XIV
of the amendments to the Constitution of the United States which
declares that no state shall deprive any person of life, liberty, or
property "without due process of law." The "due process of law" here
guaranteed is complied with when the party is regularly indicted by the
proper grand jury in the state court, has a trial according to the forms
and modes prescribed for such trials, and when, in that trial and
proceedings, he is deprived of no rights to which he is lawfully
entitled. We do not intend to say that there may not be proceedings
previous to the trial in regard to which the prisoner could invoke in
some manner the provisions of this clause of the Constitution, but, for
mere irregularities in the manner in which he may be brought into
custody of the law, we do not think he is entitled to say that he should
not be tried at all for the crime with which he is charged in a regular
indictment. He may be arrested for a very heinous offense by persons
without any warrant, or without any previous complaint, and brought
before a proper officer, and this may be in some sense said to be
"without due process of law." But it would hardly be claimed that,
after the case had been investigated and the defendant held by the
proper authorities to answer for the crime, he could plead that he was
first arrested "without due process of law." So here, when found within
the jurisdiction of the State of Illinois and liable to answer for a crime
against the laws of that state, unless there was some positive provision
of the Constitution or of the laws of this country violated in bringing
him into court, it is not easy to see how he can say that he is there
"without due process of law" within the meaning of the constitutional
provision.
So, also, the objection is made that the proceedings between the
authorities of the State of Illinois and those of the State of California,
and was not with the act of Congress on that subject, and especially
that at the time the papers and warrants were issued from the
Governors of California and Illinois, the defendant was not within the
state of California, and was not there a fugitive from justice. This
argument is not much pressed by counsel, and was scarcely noticed in
the Supreme
Page 119 U. S. 441
Court of Illinois, but the effort here is to connect it as a part of the
continued trespass and violation of law which accompanied the
transfer from Peru to Illinois. It is sufficient to say in regard to that
part of this case that when the governor of one state voluntarily
surrenders a fugitive from the justice of another state to answer for his
alleged offenses, it is hardly a proper subject of inquiry on the trial of
the case to examine into the details of the proceedings by which the
demand was made by the one state and the manner in which it was
responded to by the other. The case does not stand, when a party is in
court and required to plead to an indictment, as it would have stood
upon a writ of habeas corpus in California, or in any of the states
through which he was carried in the progress of his extradition, to test
the authority by which he was held, and we can see in the mere fact
that the papers under which he was taken into custody in California
were prepared and ready for him on his arrival from Peru, no sufficient
reason for an abatement of the indictment against him in Cook County,
or why he should be discharged from custody without a trial.
But the main proposition insisted on by counsel for plaintiff in error in
this Court is that, by virtue of the treaty of extradition with Peru, the
defendant acquired by his residence in that country a right of asylum --
a right to be free from molestation for the crime committed in Illinois,
a positive right in him that he should only be forcibly removed from
Page 53 of 83
Peru to the State of Illinois in accordance with the provisions of the
treaty -- and that this right is one which he can assert in the courts of
the United States in all cases, whether the removal took place under
proceedings sanctioned by the treaty or under proceedings which were
in total disregard of that treaty amounting to an unlawful and
unauthorized kidnapping. This view of the subject is presented in
various forms, and repeated in various shapes, in the argument of
counsel. The fact that this question was raised in the Supreme Court of
Illinois may be said to confer jurisdiction on this Court because, in
making this claim, the defendant asserted a right under a treaty of the
United States, and, whether the assertion was
Page 119 U. S. 442
well founded or not, this Court has jurisdiction to decide it, and we
proceed to inquire into it.
There is no language in this treaty or in any other treaty made by this
country on the subject of extradition of which we are aware which says
in terms that a party fleeing from the United States to escape
punishment for crime becomes thereby entitled to an asylum in the
country to which he has fled. Indeed, the absurdity of such a
proposition would at once prevent the making of a treaty of that kind.
It will not be for a moment contended that the government of Peru
could not have ordered Ker out of the country on his arrival or at any
period of his residence there. If this could be done, what becomes of
his right of asylum?
Nor can it be doubted that the government of Peru could, of its own
accord, without any demand from the United States, have surrendered
Ker to an agent of the State of Illinois, and that such surrender would
have been valid within the dominions of Peru. It is idle, therefore, to
claim that, either by express terms or by implication, there is given to a
fugitive from justice in one of these countries any right to remain and
reside in the other, and if the right of asylum means anything, it must
mean this. The right of the government of Peru voluntarily to give a
party in Ker's condition an asylum in that country is quite a different
thing from the right in him to demand and insist upon security in such
an asylum. The treaty, so far as it regulates the right of asylum at all, is
intended to limit this right in the case of one who is proved to be a
criminal fleeing from justice, so that, on proper demand and
proceedings had therein, the government of the country of the asylum
shall deliver him up to the country where the crime was committed.
And to this extent, and to this alone, the treaty does regulate or impose
a restriction upon the right of the government of the country of the
asylum to protect the criminal from removal therefrom.
In the case before us, the plea shows that although Julian went to Peru
with the necessary papers to procure the extradition of Ker under the
treaty, those papers remained in his pocket, and were never brought to
light in Peru; that no steps
Page 119 U. S. 443
were taken under them, and that Julian, in seizing upon the person of
Ker and carrying him out of the territory of Peru into the United States,
did not act, nor profess to act, under the treaty. In fact, that treaty was
not called into operation, was not relied upon, was not made the
pretext of arrest, and the facts show that it was clear case of
kidnapping within the dominions of Peru, without any pretense of
authority under the treaty or from the government of the United States.
In the case of United States v. Rauscher, just decided, ante, 119 U. S.
407, and considered with this, the effect of extradition proceedings
under a treaty was very fully considered, and it was there held that
when a party was duly surrendered by proper proceedings under the
treaty of 1842 with Great Britain, he came to this country clothed with
the protection which the nature of such proceedings and the true
construction of the treaty gave him. One of the rights with which he
was thus clothed, both in regard to himself and in good faith to the
county which had sent him here, was that he should be tried for no
other offense than the one for which he was delivered under the
extradition proceedings. If Ker had been brought to this country by
proceedings under the treaty of 1870-74 with Peru, it seems probable
from the statement of the case in the record that he might have
successfully pleaded that he was extradited for larceny, and convicted
Page 54 of 83
by the verdict of a jury of embezzlement, for the statement in the plea
is that the demand made by the President of the United States, if it had
been put in operation, was for an extradition for larceny, although
some forms of embezzlement are mentioned in the treaty as subjects of
extradition. But it is quite a different case when the plaintiff in error
comes to this country in the manner in which he was brought here,
clothed with no rights which a proceeding under the treaty could have
given him, and no duty which this country owes to Peru or to him
under the treaty. We think it very clear, therefore, that in invoking the
jurisdiction of this Court upon the ground that the prisoner was denied
a right conferred upon him by a treaty of the United States, he has
failed to establish the existence of any such right.
Page 119 U. S. 444
The question of how far his forcible seizure in another country and
transfer by violence, force, or fraud to this country could be made
available to resist trial in the state court for the offense now charged
upon him is one which we do not feel called upon to decide, for in that
transaction we do not see that the Constitution or laws or treaties of the
United States guarantee him any protection. There are authorities of
the highest respectability which hold that such forcible abduction is no
sufficient reason why the party should not answer when brought within
the jurisdiction of the court which has the right to try him for such an
offense, and presents no valid objection to his trial in such court.
Among the authorities which support the proposition are the
following: Ex Parte Scott, 9 B. & C. 446 (1829); Lopez & Sattler's
Case, 1 Dearsly& Bell's Crown Cases 525; State v. Smith, 1 Bailey
283 (1829); State v. Brewster, 7 Vt. 118 (1835); Dow's Case, 18
Penn.St. 37 (1851); State v. Ross, 21 Ia. 467 (1866); The Richmond v.
United States, 9 Cranch 102. However this may be, the decision of that
question is as much within the province of the state court as a question
of common law or of the law of nations of which that court is bound to
take notice, as it is of the courts of the United States. And though we
might or might not differ with the Illinois court on that subject, it is
one in which we have no right to review their decision.
It must be remembered that this view of the subject does not leave the
prisoner or the government of Peru without remedy for his
unauthorized seizure within its territory. Even this treaty with that
country provides for the extradition of persons charged with
kidnapping, and, on demand from Peru, Julian, the party who is guilty
of it, could be surrendered, and tried in its courts for this violation of
its laws. The party himself would probably not be without redress, for
he could sue Julian in an action of trespass and false imprisonment,
and the facts set out in the plea would without doubt sustain the action.
Whether he could recover a sum sufficient to justify the action would
probably depend upon moral aspects of the case, which we cannot here
consider.
Page 119 U. S. 445
We must, therefore, hold that so far as any question in which this
Court can revise the judgment of the Supreme Court of the State of
Illinois is presented to us, the judgment must be Affirmed.
United States v. Alvarez-Machain
What happens if a country suspects a national of another country of
being involved in the murder of one of its officials? In many cases, the
former country will request an extradition of the suspect. But what
happens if the latter country refuses?
In this case, the United States Drug Enforcement Agency, having lost
one of its own at the hands of a Mexican drug cartel, took matters in its
own hands and forcibly abducted one of the suspects, Humberto
AlvarezMachain. In the United States, he was indicted for
participation in kidnap and murder. Both the District Court and the
Court of Appeal established that the forcible abduction stood in the
way of Alvarez-Machains trial in the United States. The Supreme
Court disagreed, stating that while crossing another states border to
abduct someone might constitute a violation of international law, it
was not a violation of the extradition treaty. Relying on previous case
Page 55 of 83
law, the Supreme Court established that Alvarez-Machains forcible
abduction did not prohibit his trial in a United States court.
Procedural history
Humberto Alvarez-Machain, a Mexican citizen and resident was
forcibly kidnapped from his home and flown to Texas, where he was
arrested for his participation in the kidnapping and murder of a Drug
Enforcement Administration (DEA) agent and the agent's pilot. After
concluding that DEA agents were responsible for the abduction, the
District Court dismissed the indictment on the ground that it violated
the extradition treaty between the United States and Mexico and
ordered Alvarez-Machains repatriation. The Court of Appeals
confirmed. Based on one of its prior decisions, the Court found that,
since the United States had authorised the abduction and since the
Mexican government had protested against the treaty violation,
jurisdiction was improper. The Supreme Court held that jurisdiction
was not affected by the manner in which the accused was brought
before it.
Related developments
On remand, Alvarez-Machain was tried in federal court. The District
Court acquitted him. Alvarez-Machain returned to Mexico and brought
a lawsuit against the United States for false arrest and against Mexican
national Sosa for violating the law of nations. The District Court and
Court of Appeal (also en banc) confirmed his claim in part. The
Supreme Court reversed this decision, ruling that neither Sosa not the
US could be found liable of violation of the law of nations.
Legally relevant facts
After investigating the kidnapping and murder of a US Drug
Enforcement Agency (DEA) special agent, the DEA concluded that
physician Humberto Alvarez-Machain had participated in the murder.
It was alleged that he had prolonged the agents life so that others
could further torture and interrogate him. An arrest warrant was issued
and the United States negotiated with the Mexican government
without any formal extradition request. On 2 April 1990, Alvarez-
Machain was forcibly kidnapped and flown to El Paso, Texas, where
he was arrested by DEA officials and indicted (p. 657). Alvarez-
Machain motioned for dismissal of the indictment, claiming that his
abduction constituted outrageous governmental conduct, and that the
District Court lacked jurisdiction to try him because he was abducted
in violation of the extradition treaty between the United States and
Mexico (p. 658).
Core legal questions
The Court of Appeals affirmed the District Courts dismissal of the
indictment and the repatriation of Alvarez-Machain. The United States
appealed and the Supreme Court had to assess the following issue:
Does a criminal defendant, abducted to the United States from a nation
with which it has an extradition treaty, thereby acquire a defense to the
jurisdiction of United States courts? In order to answer this question,
the Court inquired whether Alvarez-Machains abduction from Mexico
violated the Extradition Treaty between the two countries. This
question is of specific relevance with regard to Article 9 of the Treaty,
which outlines the procedure to be followed if an extradition request is
not granted.
Specific legal rules and provisions
Article 9 of the Extradition Treaty between the United States and the
Mexico, 1978.
Court's holding and analysis
The judges cited Ker v. Illinois, which addressed the issue of a
defendant brought before the court by forcible abduction. In that case,
the Court had held that such forcible abduction is no sufficient reason
why the party should not answer when brought within the jurisdiction
of the court which has the right to try him for such an offence, and
presents no valid objection to his trial in such court (pp. 660-661).
Still, the Court acknowledged differences between this case and Ker v.
Illinois: the latter case was decided on the premise that there was no
governmental involvement in the abduction; and Peru, from which Ker
was abducted, did not object to his prosecution. However, the Court
established that the Ker v. Illinois judgment can be applied, since
forcible abduction does not constitute a violation of the Extradition
Page 56 of 83
Treaty. The treaty does not specifically define forcible abduction as a
violation, despite both parties knowledge of, for example, the doctrine
formulated in Ker v. Illinois (pp. 665-666). While exercising power in
another state might violate international law, it does not violate the
Extradition Treaty (p. 669). Thus, Alvarez-Machains forcible
abduction did not prohibit his trial in a United States Court.
Sosa v. Alvarez-Machain
Facts of the case
A U.S. Drug Enforcement Agency (DEA) special agent was kidnapped
and murdered by a Mexican drug cartel in 1985. After an
investigation, the DEA concluded that Humberto Alvarez-Machain
had participated in the murder. A warrant for his arrest was issued by a
federal district court. The DEA, however, was unable to convince
Mexico to extradite Alvarez-Machain, so they hired several Mexican
nationals to capture him and bring him back to the United States. His
subsequent trial went all the way to the Supreme Court, which found
that the government could try a person who had been forcibly
abducted, but that the abduction itself might violate international and
provide grounds for a civil suit. When the case went back to the
district court for trial, Alvarez-Machain was found not guilty for lack
of evidence.
Alvarez-Machain then filed a group of civil suits in federal court
against the United States and the Mexican nationals who had captured
him under the Federal Tort Claims Act (FTCA), which allows the
federal government to be sued on tort claims, and the Alien Tort
Statute (ATS), which permits suits against foreign citizens in
American courts. The government argued that the FTCA applied only
to claims arising from actions that took place in the United States and
therefore did not cover Alvarez-Machain's case because the arrest took
place in Mexico. Further, the government and the Mexican nationals
argued that the ATS gave federal courts jurisdiction to hear tort claims
against foreign citizens, but did not allow private individuals to bring
those suits.
The federal district court disagreed with the government's contention
that the FCTA claim did not apply, finding that plan to capture
Alvarez-Machain was developed on U.S. soil and therefore covered.
However, the court then ruled that the DEA had acted lawfully when
they arrested Alvarez-Machain and was therefore not liable. On the
ATS claims, the court rejected the argument that private individuals
could not bring suit under the Act. The court found that Jose Francisco
Sosa, one of the Mexican nationals who kidnapped Alvarez- Machain,
had violated international law and was therefore liable under the ATS.
On appeal, the Ninth Circuit Court of Appeals overturned the district
court's FTCA decision, ruling that the DEA could not authorize a
citizen's arrest of Alvarez-Machain in another country and was
therefore liable. The appeals court did, however, affirm the lower
court's finding on the ATS claim, upholding the judgment against
Sosa.
Question
Does the Alien Tort Statute permit private individuals to bring suit
against foreign citizens for crimes committed in other countries in
violation of the law of nations or treaties of the United States?
May an individual bring suit under the Federal Tort Claims Act for a
false arrest that was planned in the United States but carried out in a
foreign country?
Conclusion
No and No. On the Alien Tort Statute claim, the Court unanimously
ruled that the ATS did not create a separate ground of suit for
violations of the law of nations. Instead, it was intended only to give
courts jurisdiction over traditional law of nations cases - those
involving ambassadors, for example, or piracy. Because Alvarez-
Machain's claim did not fall into one of these traditional categories, it
was not permitted by the ATS. On the FTCA claim, the Court ruled
that the arrest had taken place outside the United States and therefore
was exempted from the Act. It rejected Alvarez-Machain's argument
that the exemption should not apply because the arrest had been
planned in the United States.
Page 57 of 83
 State v. Ebrahim, 1991 (2) SALR 553
In Ebrahim, two men identifying themselves as South African police
officers seized a South African member of the military wing of the
anti-apartheid African National Congress in Swaziland in December
1986. Ebrahim was bound, gagged, blindfolded, and brought to
Pretoria and charged with treason. Swaziland did not protest this
abduction. Ebrahim argued that his abduction and rendition violated
international law, and that the trial court was thus incompetent to try
him because international law was a part of South African law.
Invoking Roman-Dutch common law, the Court concluded that it
lacked jurisdiction to try a person brought before it from another state
by means of state-sponsored abduction. These common law rules
embodies fundamental legal principles, including "the preservation
and promotion of human rights, friendly international relations, and
the sound administration of justice." The Court continued:
The individual must be protected from unlawful arrest and abduction,
jurisdictional boundaries must not be exceeded, international legal
sovereignty must be respected, the legal process must be fair towards
those affected by it, and the misuse thereof must be avoided in order to
protect and promote the dignity and integrity of the judicial system.
This applies equally to the State. When the State is itself party to a
dispute, as for example in criminal cases, it must come to court "with
clean hands" as it were. When the State is itself involved in an
abduction across international borders as in the instant case, its hands
cannot be said to be clean.
The Court also noted that "the abduction was a violation of the
applicable rules of international law, that these rules are part of [South
African] law, and that this violation of these rules deprived the trial
court competence to hear the matter." In a subsequent civil proceeding,
Ebrahim was awarded compensation for the kidnapping.
USA v. Hon. Purganan, GR. NO. 148571 Sept. 24, 2002
FACTS:
Petition is a sequel to the case Sec. of Justice v. Hon. Lantion.
The Secretary was ordered to furnish Mr. Jimenez copies of the
extradition request and its supporting papers and to grant the latter a
reasonable period within which to file a comment and supporting
evidence. But, on motion for reconsideration by the Sec. of Justice, it
reversed its decision but held that the Mr. Jimenez was bereft of the
right to notice and hearing during the evaluation stage of the
extradition process. On May 18, 2001, the Government of the USA,
represented by the Philippine Department of Justice, filed with the
RTC, the Petition for Extradition praying for the issuance of an order
for his immediate arrest pursuant to Sec. 6 of PD 1069 in order to
prevent the flight of Jimenez. Before the RTC could act on the
petition, Mr. Jimenez filed before it an Urgent Manifestation/Ex-Parte
Motion praying for his application for an arrest warrant be set for
hearing. After the hearing, as required by the court, Mr. Jimenez
submitted his Memorandum. Therein seeking an alternative prayer
that in case a warrant should issue, he be allowed to post bail in the
amount of P100,000. The court ordered the issuance of a warrant for
his arrest and fixing bail for his temporary liberty at P1M in cash.
After he had surrendered his passport and posted the required cash
bond, Jimenez was granted provisional liberty.
Government of the USA filed a petition for Certiorari under Rule 65
of the Rules of Court to set aside the order for the issuance of a
warrant for his arrest and fixing bail for his temporary liberty at P1M
in cash which the court deems best to take cognizance as there is still
no local jurisprudence to guide lower court.
ISSUES:
i. Whether or NOT Hon. Purganan acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction in adopting a procedure of first hearing a
potential extraditee before issuing an arrest warrant under Section 6 of
PD No. 1069
ii. Whether or NOT Hon. Purganan acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction in granting the prayer for bail
Page 58 of 83
iii. Whether or NOT there is a violation of due process
HELD: Petition is GRANTED. Bail bond posted is CANCELLED.
Regional Trial Court of
Manila is directed to conduct the extradition proceedings before it.
i. YES.
By using the phrase if it appears, the law further conveys that
accuracy is not as
important as speed at such early stage. From the knowledge and the
material then available to it, the court is expected merely to get a good
first impression or a prima facie finding sufficient to make a speedy
initial determination as regards the arrest and detention of the accused.
The prima facie existence of probable cause for hearing the petition
and, a priori, for issuing an arrest warrant was already evident from the
Petition itself and its supporting documents. Hence, after having
already determined therefrom that a prima facie finding did exist,
respondent judge gravely abused his discretion when he set the matter
for hearing upon motion of Jimenez. The silence of the Law and the
Treaty leans to the more reasonable interpretation that there is no
intention to punctuate with a hearing every little step in the entire
proceedings. It also bears emphasizing at this point that extradition
proceedings are summary in nature. Sending to persons sought to be
extradited a notice of the request for their arrest and setting it for
hearing at some future date would give them ample opportunity to
prepare and execute an escape which neither the Treaty nor the Law
could have intended.
Even Section 2 of Article III of our Constitution, which is invoked
by Jimenez, does not require a notice or a hearing before the issuance
of a warrant of arrest. To determine probable cause for the issuance
of arrest warrants, the Constitution itself requires only the examination
under oath or affirmation of complainants and the witnesses they may
produce.
The Proper Procedure to Best Serve The Ends Of Justice In
Extradition Cases
Upon receipt of a petition for extradition and its supporting
documents, the judge must study them and make, as soon as possible,
a prima facie finding whether
a) they are sufficient in form and substance
b) they show compliance with the Extradition Treaty and Law
c) the person sought is extraditable
At his discretion, the judge may require the submission of further
documentation or may personally examine the affiants and witnesses
of the petitioner. If, in spite of this study and examination, no prima
facie finding is possible, the petition may be dismissed at the
discretion of the judge. On the other hand, if the presence of a prima
facie case is determined, then the magistrate must immediately issue a
warrant for the arrest of the extraditee, who is at the same time
summoned to answer the petition and to appear at scheduled summary
hearings. Prior to the issuance of the warrant, the judge must not
inform or notify the potential extraditee of the pendency of the
petition, lest the latter be given the opportunity to escape and frustrate
the proceedings.
ii. Yes.
The constitutional provision on bail on Article III, Section 13 of the
Constitution, as well
as Section 4 of Rule 114 of the Rules of Court, applies only when a
person has been arrested and detained for violation of Philippine
criminal laws. It does not apply to extradition proceedings, because
extradition courts do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail flows from the presumption
of innocence in favor of every accused who should not be subjected to
the loss of freedom as thereafter he would be entitled to acquittal,
unless his guilt be proved beyond reasonable doubt. In extradition, the
presumption of innocence is not at issue. The provision in the
Constitution stating that the right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended finds
application only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
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 That the offenses for which Jimenez is sought to be extradited are
bailable in the United States is not an argument to grant him one in the
present case. Extradition proceedings are separate and distinct from
the trial for the offenses for which he is charged. He should apply for
bail before the courts trying the criminal cases against him, not before
the extradition court.
Exceptions to the No Bail Rule
Bail is not a matter of right in extradition cases. It is subject to
judicial discretion in the context of the peculiar facts of each case.
Bail may be applied for and granted as an exception, only upon a clear
and convincing showing
1) that, once granted bail, the applicant will not be a flight risk or a
danger to the community; and
2) that there exist special, humanitarian and compelling
circumstances including, as a matter of reciprocity, those cited by the
highest court in the requesting state when it grants provisional liberty
in extradition cases therein
Since this exception has no express or specific statutory basis, and
since it is derived essentially from general principles of justice and
fairness, the applicant bears the burden of proving the above two-
tiered requirement with clarity, precision and emphatic forcefulness.
It must be noted that even before private respondent ran for and won
a congressional seat in Manila, it was already of public knowledge that
the United States was requesting his extradition. Therefore, his
constituents were or should have been prepared for the consequences
of the extradition case. Thus, the court ruled against his claim that his
election to public office is by itself a compelling reason to grant him
bail.
Giving premium to delay by considering it as a special circumstance
for the grant of bail would be tantamount to giving him the power to
grant bail to himself. It would also encourage him to stretch out and
unreasonably delay the extradition proceedings even more.
Extradition proceedings should be conducted with all deliberate speed
to determine compliance with the Extradition Treaty and Law; and,
while safeguarding basic individual rights, to avoid the legalistic
contortions, delays and technicalities that may negate that purpose.
That he has not yet fled from the Philippines cannot be taken to
mean that he will stand his ground and still be within reach of our
government if and when it matters; that is, upon the resolution of the
Petition for Extradition.
iii. NO.
Potential extraditees are entitled to the rights to due process and to
fundamental fairness. The doctrine of right to due process and
fundamental fairness does not always call for a prior opportunity to be
heard. A subsequent opportunity to be heard is enough. He will be
given full opportunity to be heard subsequently, when the extradition
court hears the Petition for Extradition. Indeed, available during the
hearings on the petition and the answer is the full chance to be heard
and to enjoy fundamental fairness that is compatible with the summary
nature of extradition.
It is also worth noting that before the US government requested the
extradition of respondent, proceedings had already been conducted in
that country. He already had that opportunity in the requesting state;
yet, instead of taking it, he ran away.
Other Doctrines:
Five Postulates of Extradition
1) Extradition Is a Major Instrument for the Suppression of Crime
In this era of globalization, easier and faster international travel, and
an expanding ring of
international crimes and criminals, we cannot afford to be an
isolationist state. We need to cooperate with other states in order to
improve our chances of suppressing crime in our own country.
2) The Requesting State Will Accord Due Process to the Accused
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By entering into an extradition treaty, the Philippines is deemed to
have reposed its trust
in the reliability or soundness of the legal and judicial system of its
treaty partner, as well as in the ability and the willingness of the latter
to grant basic rights to the accused in the pending criminal case
therein.
3) The Proceedings Are Sui Generis
An extradition proceeding is sui generis:
a) It is not a criminal proceeding which will call into operation all
the rights of an accused as guaranteed by the Bill of Rights. It does
not involve the determination of the guilt or innocence of an accused.
His guilt or innocence will be adjudged in the court of the state where
he will be extradited.
b) An extradition proceeding is summary in nature while criminal
proceedings involve a full-blown trial.
c) In terms of the quantum of evidence to be satisfied, a criminal
case requires proof beyond reasonable doubt for conviction while a
fugitive may be ordered extradited upon showing of the existence of a
prima facie case
d) Unlike in a criminal case where judgment becomes executory
upon being rendered final, in an extradition proceeding, our courts
may adjudge an individual extraditable but the President has the final
discretion to extradite him.
Extradition is merely a measure of international judicial assistance
through which a person charged with or convicted of a crime is
restored to a jurisdiction with the best claim to try that person. The
ultimate purpose of extradition proceedings in court is only to
determine whether the extradition request complies with the
Extradition Treaty, and whether the person sought is extraditable.
4) Compliance Shall Be in Good Faith.
We are bound by pactasuntservanda to comply in good faith with our
obligations
under the Treaty. Accordingly, the Philippines must be ready and in a
position to deliver the
accused, should it be found proper
5) There Is an Underlying Risk of Flight
Indeed, extradition hearings would not even begin, if only the accused
were
willing to submit to trial in the requesting country. Prior acts of herein
respondent:
a) leaving the requesting state right before the conclusion of his
indictment proceedings there; and
b) remaining in the requested state despite learning that the
requesting state is seeking his return and that the crimes he is charged
with are bailable
Extradition is Essentially Executive
Extradition is essentially an executive, not a judicial, responsibility
arising out of the presidential power to conduct foreign relations and to
implement treaties. Thus, the Executive Department of government
has broad discretion in its duty and power of implementation
CORFU CHANNEL CASE
The Corfu Channel case was the first contentious case heard by the
International Court of Justice, the supreme arbitration organ of the
United Nations and one of the principal sources of authoritative rulings
on international law.
FACTS OF THE CASE:
On May 15th 1946 the British warships passed through the Channel
without the approval of the Albanian government and were shot at.
Later, on October 22nd, 1946, a squadron of British warships (two
cruisers and two destroyers), left the port of Corfu and proceeded
northward through a channel previously swept for mines in the North
Corfu Strait. Both destroyers were struck by mine and were heavily
damaged. This incident resulted also in many deaths. The two ships
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were mined in Albanian territorial waters in a previously swept and
check-swept channel. After the explosions of October 22nd, the United
Kingdom Government sent a note to the Albanian Government, in
which it announced its intention to sweep the Corfu Channel shortly.
The Albanian reply, which was received in London on October 31st,
stated that the Albanian Government would not give its consent to this
unless the operation in question took place outside Albanian territorial
waters. Meanwhile, at the United Kingdom Governments request, the
International Central Mine Clearance Board decided, in a resolution of
November 1st, 1946, that there should be a further sweep of the
Channel, subject to Albanias consent. The United Kingdom
Government having informed the Albanian Government, in a
communication of November 10th, that the proposed sweep would
take place on November 12th, the Albanian Government replied on the
11th, protesting against this unilateral decision of His Majestys
Government. It said it did not consider it inconvenient that the British
fleet should undertake the sweeping of the channel of navigation, but
added that, before sweeping was carried out, it considered it
indispensable to decide what area of the sea should be deemed to
constitute this channel, and proposed the establishment of a Mixed
Commission for the purpose. It ended by saying that any sweeping
undertaken without the consent of the Albanian Government outside
the channel thus constituted, i.e., inside Albanian territorial waters
where foreign warships have no reason to sail, could only be
considered as a deliberate violation of Albanian territory and
sovereignty. After this exchange of notes, Operation Retail took
place on November 12th and 13th. One fact of particular importance is
that the North Corfu Channel constitutes a frontier between Albania
and Greece, that a part of it is wholly within the territorial waters of
these States, and that the Strait is of special importance to Greece by
reason of the traffic to and from the port of Corfu.
ISSUES:
The British government claimed the minefield which caused the
explosions was laid between May 15th, 1946, and October 22nd, 1946,
by or with the approval or knowledge of the Albanian Government.
Thus Albania was responsible for the explosions and loss of life and
had to compensate the UK government. In addition to the passage of
the United Kingdom warships on October 22nd, 1946, the second
question in the Special Agreement relates to the acts of the Royal
Navy in Albanian waters on November 12th and 13th, 1946 when the
British government carried out a minesweeping operation called
Operation Retail without the consent of Albania. UK held the
opinion the passage on October 22nd, 1946 was innocent and that
according to rules of international law it had the right to innocent
passage through the North Corfu Channel as it is considered part of
international highways and does not need a previous approval of the
territorial state. The Albanian Government does not dispute that the
North Corfu Channel is a strait in the geographical sense; but it denies
that this Channel belongs to the class of international highways
through which a right of passage exists, on the grounds that it is only
of secondary importance and not even a necessary route between two
parts of the high seas, and that it is used almost exclusively for local
traffic to and from the ports of Corfu. Thus a previous approval of the
territorial state is necessary.
1) Should the North Corfu Channel as it is considered part of
international highways?
2) Is Albania responsible under international law for the explosions
which occurred on the 22nd October 1946 in Albanian waters and for
the damage and loss of human life which resulted from them and is
there any duty to pay compensation?
ANALYSIS:
The court analyzed the geographical situation of the channel
connecting two parts of the high seas and was in fact frequently being
used for international navigation. Taking into account these various
considerations, the Court concluded that the North Corfu Channel
should be considered as belonging to the class of international
highways through which an innocent passage does not need special
approval and cannot be prohibited by a coastal State in time of peace.
The UK government claimed that on October 22nd, 1946, Albania
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neither notified the existence of the minefield, nor warned the British
warships of the danger they were approaching.
According to the principle of state responsibility, they should have
done all necessary steps immediately to warn ships near the danger
zone, more especially those that were approaching that zone. In fact,
nothing was attempted by the Albanian authorities to prevent the
disaster. These grave omissions involve the international responsibility
of Albania.But Albanias obligation to notify shipping of the existence
of mines in her waters depends on her having obtained knowledge of
that fact in sufficient time before October 22nd; and the duty of the
Albanian coastal authorities to warn the British ships depends on the
time that elapsed between the moment that these ships were reported
and the moment of the first explosion.
CONCLUSION OF THE COURT:
The Court therefore reached the conclusion that Albania is responsible
under international law for the explosions which occurred on October
22nd, 1946, in Albanian waters, and for the damage and loss of human
life which resulted from them, and that there is a duty upon Albania to
pay compensation to the United Kingdom.
In the second part of the Special Agreement, the following question is
submitted to the Court:
Has the United Kingdom under international law violated the
sovereignty of the Albanian Peoples Republic by reason of the acts of
the Royal Navy in Albanian waters on the 22nd October and on the
12th and 13th November 1946 and is there any duty to give
satisfaction?
Albania was in fact in war with Greece which means that the coastal
state was not in time of peace. UK had not an innocent passage due to
the way it was carried out. The court assessed the manner of UK
warships after they had been shot at May 15th. Having thus examined
the various contentions of the Albanian Government in so far as they
appear to be relevant, the Court has arrived at the conclusion that the
United Kingdom did not violate the sovereignty of Albania by reason
of the acts of the British Navy in Albanian waters on October 22nd,
1946. The United Kingdom Government does not dispute that
Operation Retail was carried out against the clearly expressed wish
of the Albanian Government. It recognizes that the operation had not
the consent of the international mine clearance organizations, that it
could not be justified as the exercise of a right of innocent passage,
and lastly that, in principle, international law does not allow a State to
assemble a large number of warships in the territorial waters of
another State and to carry out minesweeping in those waters. The
United Kingdom Government states that the operation was one of
extreme urgency, and that it considered itself entitled to carry it out
without anybodys consent. The Court can only regard the alleged
right of intervention as the manifestation of a policy of force, such as
has, in the past, given rise to most serious abuses and such as cannot,
whatever be the present defects in international organization, The
United Kingdom Agent, in his speech in reply, has further classified
Operation Retail among methods of self-protection or self-help. The
Court cannot accept this defense either find a place in international
law.
Final conclusion of the court:
On the first question put by the Special Agreement of March 25th,
1948,
The court gives judgment that the Peoples Republic of Albania is
responsible under international law for the explosions which
occurred on October 22nd, 1946, in Albanian waters, and for the
damage and loss of human life that resulted there from; and Reserves
for further consideration the assessment of the amount of
compensation and regulates the procedure on this subject.
2) On the second question put by the Special Agreement on the
violation of state sovereignty, The court gives judgment that the
United Kingdom did not violate the sovereignty of the Peoples
Republic of Albania by reason of the acts of the British Navy in
Albanian waters on October 22nd, 1946; and unanimously, gave
judgment that by reason of the acts of the British Navy in Albanian
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waters in the course of the Operation of November 12th and 13th,
1946, the United Kingdom violated the sovereignty of the Peoples
Republic of Albania, and that this declaration by the Court constitutes
in itself appropriate satisfaction.
Rainbow Warrior (New Zealand v. France)
Brief Fact Summary. Two agents, who were convicted of destroying a
ship docked in New Zealand, were removed by France on the premise
that they required emergency medical treatment.
Synopsis of Rule of Law. The wrongfulness of an act of a state not in
consonance with an international obligation is precluded by the
distress of the author state if there exists a situation of extreme peril
in which the organ of the state has, at that particular moment, no
means of saving himself or persons entrusted to his care other than to
act in a manner inconsistent with the requirements of the obligation.
Facts. A civilian vessel which was docked in New Zealand was
destroyed by a team of French agents. The agents, Mafart and Prieur,
were extradited and New Zealand sought reparation from the incident.
The agents were transferred to a French military facility and
subsequently transported to Paris on the basis that they needed medical
attention. This dispute was brought before an arbitral tribunal in which
New Zealand demanded a declaration that France had breached its
obligation and ordered that it return the agents to the facility for the
remainder of their sentences.
Issue. Is the wrongfulness of an act of a state not in consonance with
an international obligation precluded by the distress of the author
state if there exists a situation of extreme peril in which the organ of
the state has, at that particular moment, no means of saving himself or
persons entrusted to his care other than to act in a manner inconsistent
with the requirements of the obligation at issue?
Held. Yes. the wrongfulness of an act of a state not in consonance with
an international obligation is precluded by the distress of the author
state if there exists a situation of extreme peril in which the organ of
the state has, at that particular moment, no means of saving himself or
persons entrusted to his care other than to act in a manner inconsistent
with the requirements of the obligation.
In order to justify France conduct, three conditions are required: (1)
very exceptional circumstances of extreme urgency involving medical
or other considerations, provided by New Zealand; (2) the
reestablishment of the original situation of compliance; and (3) a good
faith effort to try to obtain the consent of New Zealand. While the
removal of Mafart was justified, the removal of Prieur without the
knowledge of New Zealand was unjustifiable; and this was a material
breach on the part of France.
Discussion. France contention that the circumstances here constituted
a force majeure was rejected by the court. force majeure is usually
invoked to justify unintentional acts and refers to unforeseen external
events that render it materially impossible to act in conformity with
the obligation.
Concerning United States Diplomatic and Consular Staff in
Tehran (United Statesof America v. Iran)
Facts
a. Filed in The International Court of Justice on 24 May 1980.
b. On 4 November 1979, a militant group of Iranian students entered
the United States Embassy and overtook it, taking its 65 occupants
hostage. 13 women and blacks were released, leaving 52 hostages.
Although Iran had promised protection to the U.S. Embassy, the
guards disappeared during the takeover and the government did not
attempt to stop it or rescue the hostages. The U.S. arranged to meet
with Iranian authorities todiscuss the release of the hostages; however,
Ayatollah Khomeini forbid officials to meet them. The U.S.
subsequently ceased relations with Iran, stopped U.S. exports, oil
imports, and Iranian assets were blocked. Although the militants were
not acting onbehalf of the State, neither did the State uphold their
agreement to protect U.S. nationals.
The militants said they would hold the hostages until the Shah, who
was receiving medical treatment in the U.S., was returned to Iran.
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c. The United States argued that Iran violated the Vienna Convention
of 1961 which statedthe Embassy would be protected, as well as the
Vienna Convention of 1963 which statedthe nationals would be
protected while in their country. Furthermore, the 1955 Treaty was in
effect, which promoted good relations between the U.S. and Iran and
promised protection to its territory and nationals.
d. Iran did not argue its side, instead deciding to make no response to
the Courts notices.
Issues:
a. Did Iran violate the Vienna Conventions of 1961 and 1963 as well
as the 1955 Treaty?
b. Even though the State of Iran did not overtake the United States
Embassy, does it have the responsibility of ensuring the hostages
release?
c. Should Iran be held responsible for the takeover by the militants?
That is, should Iran have to make reparation to the United States for
these actions?
Decision
a. The Court found that the Vienna Conventions and the Treaty were
violated, as the Government of Iran knew of the militants actions and
made no attempt to help the United States hostages. Iran had stepped
in on other militant attacks of embassies, but did not do so in this case.
Therefore, the Court determined that the Government knowingly
decided to not intervene in this case.
b. Iran, through its 1955 Treaty and the Vienna Conventions, must
ensure the protection of the United States citizens while they are in
Iran. Therefore, Iran is responsible for releasing the hostages even
though they themselves did not contain them. Iran was under
obligation to ensure that the people as well as the property were
protected, and therefore should remedy this.
c. The Court determined that Iran was more than negligent in these
circumstances. They had, on 1 March 1979, claimed to be making
arrangements to prevent the United States from any takeovers or
attacks. Many Iranian authorities approved of the takeover and the
Foreign Minister claimed that America was responsible for the
incident. Iran deliberately ignored requests for the hostages to be
released and should, for these reasons, be help to make reparation for
the actions.
Principles
a. The international law elements are the power of Treaties and Vienna
Conventions and, from that, the responsibility of a State to enforce
these against militant groups.
b. The rules of law in this case are the Vienna Convention of 1961, the
Vienna Convention of 1963, and the 1955 Treaty.
c. This case touches on the extradition rules, as it discusses bringing
the militants to the United States if Iran did not try them. It discusses
the importance of Government responsibility over its unruly citizens.
Furthermore, it addresses the importance of keeping to binding
documents made between States.
Conclusions
This case stressed the importance of the Vienna Conventions rules as
well as Treaties. Additionally, it emphasized that a Government is
responsible for what goes on within its boundaries even if the actions
are not specifically Government-related. The Government should be
held to the Vienna Conventions and Treaties, no matter the
circumstances. Furthermore, the case heavily impacted the relations
between the United States and Iran even still today as this was a
pivotal moment in the relationship between the two States.
John Doe I, et al., v. UNOCAL Corp., et al., 395 F.3d 932 (9 Cir.
2002)
Summary
In 1979, fourteen Burmese villagers filed a complaint against the oil
company UNOCAL. They claimed that they suffered abuses including
torture and rape during the construction of the Yadana Pipeline.
UNOCAL allegedly assisted in the abuses perpetrated by the military
government in Rangoon.
The Burmese villagers based their claim on the Alien Tort Claims Act
(ATCA), which allows US courts to decide cases in respect of foreign
nationals for crimes that occurred outside of the US.
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In the particular decision, the Superior Court held that even though one
of the theories of the Burmese villagers was refused, the case was not
dismissed and as a result, they were allowed to proceed with their
further theories. On 14 September 2004, the defendants motion for
judgment was denied.
Procedural history
In March 1997, the US District Court for the Central District of
California agreed to hear the case of fourteen Burmese villagers who
had filed a complaint against the now defunct oil company,
UNOCAL. According to the claim, based on the ATCA, the villagers
had suffered abuses including torture and rape during the construction
of the Yadana Pipeline. UNOCAL was allegedly complicit in the
abuses perpetrated by the military government in Rangoon.
The Court ruled that corporations and their executives could be liable
under the ATCA for violations of international law committed abroad,
which the US courts had authority to hear. However, the Court found
that UNOCAL could not be held liable for the abuses claimed in the
suit. On 4 October 2000, the plaintiffs brought a second complaint.
The plaintiffs claimed negligent supervision because UNOCAL knew
or reasonably should have known that SLORC military... would
violate plaintiffs' rights; violation of Business and Professionals Code
17200 as a result of UNOCALs fraudulent and deceptive
practices; violation of the California Constitution, Art. 1, 6, which
prohibits slavery and involuntary servitude, amongst others.
Nevertheless, following an appeal, the US Court of Appeals for the
Ninth Circuit overturned the decision in September 2002, allowing the
case to proceed.
In February 2003, the Ninth Circuit Court decided to rehear the appeal
before an eleven-judge en banc panel. In late 2003, in the first phase of
the trial in state court, Judge Chaney concluded that the UNOCAL
subsidiaries involved in the pipeline project and the parent companies
had separate personalities. On 14 September 2004, Judge Chaney
dismissed the defendants motion for judgment. Judge Chaney held
that the decision in the first phase of the trial did not preclude the
plaintiffs from relying on other theories of liability.
Related developments
After various interim decisions, UNOCAL announced in December
2004 that it would settle the claim out of court, agreeing to provide
compensation for the victims. The decision to settle followed the
rejection by the District Court of a motion for summary judgment.
Under the terms of the settlement, which remain confidential,
UNOCAL agreed to provide funds to improve living conditions in the
region, in addition to providing compensation.
Legally relevant facts
Neither UIC, UGVL, UIPC, UMOC nor MGTC, the UNOCAL
subsidiaries involved in the pipeline project, is an alter-ego company
of Unocal Corporation. Based on that finding, Judge Chaney
concluded that the parents and the subsidiaries had separate
personalities. (See p. 4 of the Ruling on UNOCAL Defendants'
Motion for Judgment, and its reference to p. 31 of the Statement of
Decision).
Core legal questions
Does summary judgment dispose of individual issues? (p. 8)
Is alter ego the only theory under which the owners of a corporation
can be held liable for the corporations debts? (p. 3)
Specific legal rules and provisions
Alien Tort Statute, Section 1350 of Chapter 28 of the US Code.
Section 14M(a) of the Restatement (Second) of Agency .
Sections 2295, 2307 and 2296 of the California Civil Code.
Section 437c(f) of the California Code of Civil Procedure.
Court's holding and analysis
The Superior Court rejected the UNOCAL Defendants' Motion for
Judgment.
The Superior Court held that the fact that the parent and the subsidiary
companies were separate entities does not lead to a disposal of the case
Page 66 of 83
because there are other theories under which a corporation can be held
liable for the corporations debt (p. 3). In particular, the Court held that
it cannot find that the owner of a corporation can be held liable for the
corporations debts only when the corporate veil is pierced (p. 6).
In addition, the Superior Court held that its summary judgment does
not dispose of further claims of the plaintiffs. The reasoning was that a
summary judgment disposes of causes of action not individual
issues (p. 8).
Case Note on The Chorzow Factory (Germany v Poland, 1928)
This is a case about violation of international agreement known as
The Chorzow Factory Case. The question before the court was
whether Poland can be made liable for such violation of an
international agreement.
Fact:
After the First World War due to a bipartite agreement between
Germany and Poland; Germany agreed to transfer the control of Upper
Silesia area to Poland. On an agreement that Poland would not forfeit
any property of Germany, but thereafter Poland forfeited two of
German Companies situated at that area.
Issue:
Whether the court has its jurisdiction over the matter or not?
Whether there was any violation of the agreement between Germany
and Poland or not?
Whether there was any international obligation on Poland due to the
breach of bipartite agreement between Germany and Poland?
Decision:
The Permanent Court of International Justice has its jurisdiction to try
the case.
Poland had violated the international agreement between Germany and
Poland.
Poland would be liable to repair any loss suffered by the Germany due
to the forfeit of that two company as they violated that international
agreement.
Analysis:
The rule of Permanent Court of International Justice was very
appropriate, which was given in favour of Germany as the attitude of
Polish Government towards two German companies was not in
conformity with the articles of Convention concerning Upper
Silesia[1], concluded at Geneva on May 15th, 1922 (hereinafter
referred as Geneva Convention), thus violating the international
agreement by unlawful expropriation of the said companies and that
infers the state responsibility on Poland for reparation for such
violation.
It is a general principal of International law that every violation of an
engagement involves an obligation to make reparation[2] adopted form
municipal law, which is applied in this case along with the principal of
state responsibility as a state is considered as an individual entity when
come to an international dispute and it was accepted by all, repetition
of which confirms that the decision is conform to existing law. A
recent initiative of International Law Commission at its fifty-third
session, in 2001 gave the state responsibility a more precise scope for
the application of the principal of state responsibility[3]. Observation
of similar cases undertook by Permanent Court of International justice.
If compared with the reasoning with this case would be quite new to
that time[4], therefore it is highly unlikely that any consistent previous
reasoning could be found in similar cases. But the decision has already
been significantly influenced the jurisprudence of International law
and its impact can be seen in various cases such i.e. Genocide
Convention Case[5], Phosphates in Morocco case[6], Corfu Channel
case[7], Gabkovo-Nagymaros[8] and others.
The PCIJ adequately justified its reasoning by bringing all the disputed
matters and argument presented before it or by suo moto. At first it had
justified its jurisdiction which was under question by the Poland as
raised in respect of res judicata[9] showing Article 23 of Geneva
Page 67 of 83
Convention, but the court justified its jurisdiction by referring Article
36 of the Statute of the Court. In order to reason the compensation
declared was also justified by Article 6 -22, special by Article 7 of
Geneva Convention and by its interpretation. It also interpreted the
municipal laws as well as customary international laws with a new
view of International law concerning the subject matter of
international law.
The appropriate interpretation were made by PCIJ in every point, such
as the interpretation of Article 36 of the Statute of the Court to justify
its jurisdiction[10]. The Article said the parties can go to the court in
all or any of the classes of legal dispute concerning a) the
interpretation of a Treaty; c) the existence of any fact which, if
established, would constitute a breach of an international obligation d)
the nature or extent of the reparation to be made for the breach of an
international obligation. It bring the general concept of law that every
violation of an engagement involves an obligation reparation.[11] And
the violation was clarified as the Poland violated the Article 7 of
Geneva convention and illegally expropriate two of German factories
.In this case, the court further interpreted that the expropriating state
must, in addition to paying the compensation due in respect of a lawful
expropriation, pay also damages for any loss sustained by the injured
party.[12]
The reasoning that the PCIJ has given is logical and consistent to me.
First of all, the court acted interpreting the Geneva Convention, where
the parties agreed to come before the court on any violation of the
convention. Secondly, as one party denied the jurisdiction of the court
citing the concerning law, the court clear the ambiguity of that matter
and the shadow over the jurisdiction became clear. Thirdly, when the
court saw the violation of Geneva convention Articles 6 -22, the court
ordered indemnity referring the principal of international law, as
mentioned by the court, It is a principle of international law that the
reparation of a wrong may consist in an indemnity corresponding to
the damage which the nationals of the injured State have suffered as a
result of the act which is contrary to international law.[13] Fourthly,
It was a question who would indemnify as therefor the court held, in a
different plane to private law, with the claimant State being the one
entitled to claim damages. Id. It also noted that it was open for states to
create private tribunals to adjudicate private claimants claims for
breach of international law, but that nothing in Article 23 of the
Geneva Convention affected Germanys entitlement to claim damages
in this case.[14] So the state (Poland) was made liable to indemnify
Germany.
In the question of whether the expropriation was legal or illegal the
PCIJ held that this was not a situation where a governmental seizure
would have been made lawful by simply paying fair
compensation; it was a seizure of a kind that was
Banned outright under the 1922 Geneva Convention and would only
have been lawful had the treatys exceptional procedures been
followed. Which is the fifth reasoning with adequate logic[15]
Where the indemnity amount is concerned the court give its reasoning,
is the sixth consistent point. The court held The essential principle
contained in the actual notion of an illegal act-a principle which seems
to be established by international practice and in particular by the
decisions of arbitral tribunals-is that reparation must, as far as possible,
wipe out all the consequences of the illegal act and reestablish the
situation which would, in all probability, have existed if that act had
not been committed. Restitution in kind, or, if this is not possible,
payment of a sum corresponding to the value which a restitution in
kind would bear; the award, if need be, of damages for loss sustained
which would not be covered by restitution in kind or payment in place
of it-such are the principles which should serve to determine the
amount of compensation due for an act contrary to international
law[16]
Thought the liability, indemnity or reparation as well as state
responsibility was not questioned but M. EHRLICH, Advocate of
Poland has raised some point on his dissenting opinion that the court
had ignored some issues as well as some arguments[17] regarding the
jurisdiction of the PCIJ, but as far the documents is concerned it is
evident in my prospect; the court had considered his arguments with
explanation. So, it can be concluded on the question of consideration,
Page 68 of 83
that the court did not omit any issues or arguments. Therefore the
decision was nether questioned nor weakened. Moreover, it was highly
appreciated by jurists all over the world.
This case has strengthen the interpretation about the jurisdiction of
international law. it confirms the use of municipal law consistently in
international law, but most importantly this case lead the jurists of
international law to have some new thought about state responsibility
and therefore they decided to include the interpretation of the court in
the material source of international law. The light of the present case
decision has observed in Draft Articles on Responsibility of States for
Internationally Wrongful Acts, by International Law Commission[18]
and Article 60 of Vienna convention 1969 as well as the Rule 150 of
Geneva convention (1949)[19]
In every sphere of life, there always been another way, it depends on
us how we want to treat it. So I think if I say there was no alternative
approach I must be wrong but so far my limited knowledge sees the
approach is very appropriate to the public policy. In my opinion the
decision is very satisfactory as and it could not be any better.
Conclusion:
This extra ordinary case with exclusive interpretation bind the jurists
of international law to have new thoughts about the matters of
jurisdiction of international court, state responsibility, reparation as
well as the necessary elements to weight this matter by the of law. It
also give use legal precedent which will be a supportive material for
understanding and analyzation of the cases which is in the nature is
similar to the fact or in the matter of concerning issues regarding the
matter of international law but it would not have any binding force as
International Law doesnt consider the previous judgments as binding
for during the judgment of new cases as the international law treats
every new case with a fresh view as every case have its different facts
as well as merits, which they think should considered not being
influenced by other case.
The Prosecutor v. DukoTadi a/k/a Dule
After the takeover of Prijedor (Bosnia and Herzegovina) and the attack
launched against the town of Kozarac (Bosnia and Herzegovina) in
1992, the non-Serb civilians were detained in several prison facilities,
where they were beaten, sexually assaulted, tortured, killed and
otherwise mistreated. DukoTadi was the President of the Local
Board of the Serb Democratic Party in Kozarac (Bosnia and
Herzegovina).
Trial Chamber II held that the elements required for the establishment
of grave breaches of the Geneva Conventions have not been met.
Particularly, the Muslim victims were not in the hands of the party to
the conflict of which they were not nationals, since the armed forces of
the RepublikaSrpska were not an organ or agent of the Federal
Republic of Yugoslavia. Therefore, the victims could not be seen as
protected persons within the meaning of the Geneva Conventions; as
such, Trial Chamber II acquitted Tadi of all charges of grave breaches
of the Geneva Conventions.
Trial Chamber II found Tadi guilty of crimes against humanity
(persecutions and inhumane acts) and of violations of the laws or
customs of war (cruel treatment).
Procedural history
The amended indictment was filed on 14 December 1995. The trial
commenced on 7 May 1996, and closing arguments were heard
between 25 and 26 November 1996.
Related developments
On 14 July 1997, Trial Chamber II sentenced Tadi to 20 years of
imprisonment. The parties appealed against this Opinion and Judgment
of 7 May 1997, and Tadi further filed an appeal against the
Sentencing Judgment of 14 July 1997.
The Appeals Chamber rendered its judgment on the appeals against the
Opinion and Judgment on 15 July 1999, founding that Tadi was
guilty of additional counts. The Appeals Chamber remitted the issue of
Page 69 of 83
sentence concerning the additional counts to a Trial Chamber to be
designated by the President of the Tribunal.
On 11 November 1999, Trial Chamber II bis rendered its sentencing
judgment on the additional counts, imposing a sentence of 25 years of
imprisonment.
On 25 November 1999, Tadi filed a notice of appeal against the
Sentencing Judgment of 11 November 1999. Pursuant to his request,
the Appeals Chamber ordered that the appeal be joined with the
Appeal against the Sentencing Judgment of 14 July 1997.
The Appeals Chamber rendered its judgment on 26 January 2000; it
upheld the convictions for war crimes and crimes against humanity,
but found that the trial Chamber had erred in the sentencing. Hence,
the prison sentence was reduced to twenty years.
On 31 October 2000, DukoTadi was transferred to Germany to serve
his sentence (see ICTY, 'DukoTadi Transferred to Germany to Serve
Prison Sentence', ICTY Press Release, 31 October 2000).
On 18 June 2001, DukoTadi filed a request for a review of his
complete case, in light of the decision on contempt of the Tribunal.
The Appeals Chamber dismissed the request on 30 July 2002. On 17
July 2008, DukoTadi was granted early release.
During the Tadi procedure, contempt hearings were initiated against
Milan Vujin, lead counsel for the Defence of DukoTadi. On 31
January 2000, the Appeals Chamber found Vujin in contempt of the
Tribunal and fined him. A subsequent appeal was dismissed by the
Appeals Chamber on 27 February 2001 (see ICTY, 'Milan Vujin,
former Counsel for DuskoTadic, Found in Contempt of the Tribunal,
and Fined 15,000 Dutch Guilders', ICTY Press Release, 31 January
2000).
Legally relevant facts
On 30 April 1992, the Serb Democratic Party (SDS) took over control
in the town of Prijedor (Bosnia and Herzegovina). On 24 May 1992,
the nearby town of Kozarac (Bosnia and Herzegovina) was attacked,
resulting in the killing of some 800 civilians, and the removal of non-
Serbs from the town. During the attack on Kozarac, non-Serb civilians
were beaten, robbed and murdered by the Serb forces. After the
takeover of Prijedor and the surrounding areas, the Serb forces
detained non-Serb civilians in three major prison camps: the Omarska,
Keraterm, and Trnopolje camps (all near Prijedor, Bosnia and
Herzegovina). Those who were detained were subjected to beatings,
sexual assaults, torture, executions, and psychological abuse.
Furthermore, the detainees were held in unhygienic conditions in
overcrowded rooms (para. 53 et seq.).
DukoTadi was the President of the Local Board of the Serb
Democratic Party in Kozarac (Bosnia and Herzegovina).
Core legal questions
Have the elements of the charged crimes been fulfilled?
If so, can DukoTadi be held liable for these crimes?
Specific legal rules and provisions
Articles 2, 3, 5 and 7(1) of the ICTY Statute.
Court's holding and analysis
Trial Chamber II considered that since Article 2 of the Statute is
applicable only to acts committed against protected persons within
the meaning of the Geneva Conventions, and since it cannot be said
that any of the victims were at any relevant time in the hands of a
party to the conflict of which they were not nationals, the accused
must be found not guilty of the counts which rely upon that Article
(para. 608).
Trial Chamber II found Tadi committed all of these acts against non-
Serbs with the intent of furthering the establishment of a Greater
Serbia and that he shared the concept that non-Serbs should forcibly be
removed from the territory, thereby exhibiting a discriminatory basis
for his actions and that this discrimination was on religious and
Page 70 of 83
political grounds (para. 714), finding beyond reasonable doubt that
the accused is guilty of the crime of persecution (para. 718).
Tadi was further found guilty of cruel treatment (as a violation of the
laws or customs of war) since those beatings and other acts which
each of those Muslim victims suffered constitute violence to their
persons and that the perpetrators intended to inflict such suffering
(para. 726). These acts also constitute inhumane acts and are crimes
against humanity (para. 730).\
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territories
General Assembly resolution ES-10/14 of 8 December 2003 requested
the International Court of Justice (ICJ) to give an Advisory Opinion on
the following question:
What are the legal consequences arising from the construction of the
wall being built by Israel, the occupying Power, in the Occupied
Palestinian Territory, including in and around East Jerusalem, as
described in the report of the Secretary-General, considering the rules
and principles of international law, including the Fourth Geneva
Convention of 1949, and relevant Security Council and General
Assembly resolutions?
The Court agreed to the request and delivered the Advisory Opinion
(entitled Legal consequences of the construction of a wall in the
Occupied Palestinian Territory) on 9 July 2004. The key point of the
Opinion is that the construction of the wall and its associated rgime
are contrary to international law.
Right of self-determination
The Court gives a variety of reasons for this conclusion, but the
primary reason is that it infringes upon the right of the Palestinian
people to self-determination as laid down in Article 1 to the UN
Charter.
In coming to that conclusion, the Court rejected Israels assertion that
the wall is a temporary security barrier without any political
significance, which can be taken down at any time as part of a political
settlement. Rather, the Court comes close to saying that the
construction of the wall is a preliminary to the annexation by Israel of
the so-called Closed Area lying between the Green Line and the wall:
The Court considers that the construction of the wall and its
associated rgime create a fait accompli on the ground that could
well become permanent, in which case, and notwithstanding the
formal characterization of the wall by Israel, it would be tantamount to
de facto annexation. (paragraph 121)
That essentially political judgement about Israels intentions is central
to the Courts final conclusion.
The Opinion notes that the route of the wall seems to have little to do
with the security of Israel, but to have been chosen with one aim in
mind: to include as many settlers as possible within the Closed Area:
The Court notes that the route of the wall as fixed by the Israeli
Government includes within the Closed Area some 80 per cent of
the settlers living in the Occupied Palestinian Territory. Moreover, it is
apparent that the walls sinuous route has been traced in such a way
as to include within that area the great majority of the Israeli
settlements in the occupied Palestinian Territory (including East
Jerusalem). (paragraph 119)
The net result would be that:
the planned route would incorporate in the area between the Green
Line and the wall more than 16 per cent of the territory of the West
Bank. Around 80 per cent of the settlers living in the Occupied
Palestinian Territory, that is 320,000 individuals, would reside in that
area, as well 237,000 Palestinians. Moreover, as a result of the
construction of the wall, around 160,000 other Palestinians would
reside in almost completely encircled communities. (paragraph 122)
Page 71 of 83

The Opinion also notes that the construction of the wall has been
accompanied by the creation of a new administrative rgime:
Thus in October 2003 the Israeli Defence Forces issued Orders
establishing the part of the West Bank lying between the Green Line
and the wall as a Closed Area. Residents of this area may no longer
remain in it, nor may non-residents enter it, unless holding a permit or
identity card issued by the Israeli authorities. According to the report
of the Secretary-General, most residents have received permits for a
limited period. Israeli citizens, Israeli permanent residents and those
eligible to immigrate to Israel in accordance with the Law of Return
may remain in, or move freely to, from and within the Closed Area
without a permit. Access to and exit from the Closed Area can only be
made through access gates, which are opened infrequently and for
short periods. (paragraph 85)
(It appears that Jews resident in New York are allowed to move freely
within the Closed Area but Arabs who have lived there all their lives
have to seek a permit from the Occupying Power to do so).
All this led the Court to their tentative conclusion that the wall was not
a temporary security fence, as claimed by Israel, but a first step
towards annexation of the Closed Area, and therefore its construction
severely impedes the exercise by the Palestinian people of its right
self-determination, and is therefore a breach of Israels obligation to
respect that right (paragraph 122).
Fourth Geneva Convention
The Court also finds (paragraph 132) that in constructing the wall
Israel has breached the Fourth Geneva Convention (on the Protection
of Civilians Persons in Time of War), because the destruction or
requisition of property in order to make way for the wall is contrary to
Article 53 of the Convention, which says:
Any destruction by the Occupying Power of real or personal property
belonging individually or collectively to private persons, or to the
State, or to other public authorities, or to social or cooperative
organizations, is prohibited, except where such destruction is rendered
absolutely necessary by military operations.
Confiscating property is also contrary to the Hague Regulations of
1907, article 46 of which says that private property must be
respected and that it cannot be confiscated.
(Alone in the world, Israel has always insisted that the Fourth Geneva
Convention doesnt apply to the West Bank and Gaza, because, it says,
these areas are not occupied territories within the meaning of the
Convention. Its argument, such as it is, arises from the indefinite
status of the West Bank and Gaza in 1967.
Article 49, paragraph 6, of the Convention says:
The Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it occupies.
The presence of that paragraph in the Convention is the real reason
why Israel cannot possibly concede that it applies to the West Bank
and Gaza. To do so, would be to concede that establishment of
settlements there is contrary to the Convention.
Successive Security Council resolutions, beginning with number 446
passed on 22 March 1979, have asserted that the Convention does
apply and demanded that settlement activity stop, on the grounds that
it is contrary to the Convention. The US did not disagree with that
view, otherwise these resolutions would not have passed.
Paragraphs 90-101 of the Advisory Opinion are devoted to arguing,
and concluding, that the West Bank and Gaza are occupied
territories within the meaning of the Convention. And paragraph 120
concurs with the Security Councils view that settlement activity is
contrary to the Convention.)
Paragraph 133 of the Opinion summarises a variety of other ways in
which the lives of Palestinians have been affected adversely by the
construction of the wall and the imposition of its associated rgime:
Page 72 of 83

That construction, the establishment of a closed area between the
Green Line and the wall itself and the creation of enclaves have
moreover imposed substantial restrictions on the freedom of
movement of the inhabitants of the Occupied Palestinian Territory
(with the exception of Israeli citizens and those assimilated thereto).
Such restrictions are most marked in urban areas, such as the Qalqiliya
enclave or the City of Jerusalem and its suburbs. They are aggravated
by the fact that the access gates are few in number in certain sectors
and opening hours appear to be restricted and unpredictably applied.
There have also been serious repercussions for agricultural
production, as is attested by a number of sources.
It has further led to increasing difficulties for the population
concerned regarding access to health services, educational
establishments and primary sources of water.
In this respect also the construction of the wall would effectively
deprive a significant number of Palestinians of the freedom to choose
[their] residence. In addition, however, in the view of the Court, since
a significant number of Palestinians have already been compelled by
the construction of the wall and its associated rgime to depart from
certain areas, a process that will continue as more of the wall is built,
that construction, coupled with the establishment of the Israeli
settlements , is tending to alter the demographic composition of the
Occupied Palestinian Territory.
In view of that, paragraph 134 concludes that, by the imposition of this
rgime on Palestinians, Israel has acted contrary to various
international conventions:
To sum up, the Court is of the opinion that the construction of the
wall and its associated rgime impede the liberty of movement of the
inhabitants of the Occupied Palestinian Territory (with the exception
of Israeli citizens and those assimilated thereto) as guaranteed under
Article 12, paragraph 1, of the International Covenant on Civil and
Political Rights.
They also impede the exercise by the persons concerned of the right
to work, to health, to education and to an adequate standard of living
as proclaimed in the International Covenant on Economic, Social and
Cultural Rights and in the United Nations Convention on the Rights of
the Child.
Lastly, the construction of the wall and its associated rgime, by
contributing to demographic changes , contravene Article 49,
paragraph 6, of the Fourth Geneva Convention and the Security
Council resolutions [446, 452 & 465].
Reply to General Assembly
The Opinion ends with a formal response to the question put to the
Court by the General Assembly. It is as follows (paragraph 163):
A. The construction of the wall being built by Israel, the occupying
Power, in the Occupied Palestinian Territory, including in and around
East Jerusalem, and its associated rgime, are contrary to international
law;
B. Israel is under an obligation to terminate its breaches of
international law; it is under an obligation to cease forthwith the works
of construction of the wall being built in the Occupied Palestinian
Territory, including in and around East Jerusalem, to dismantle
forthwith the structure therein situated, and to repeal or render
ineffective forthwith all legislative and regulatory acts relating thereto,
in accordance with paragraph 151 of this Opinion;
C. Israel is under an obligation to make reparation for all damage
caused by the construction of the wall in the Occupied Palestinian
Territory, including in and around East Jerusalem;
D. All States are under an obligation not to recognize the illegal
situation resulting from the construction of the wall and not to render
aid or assistance in maintaining the situation created by such
Page 73 of 83
construction; all States parties to the Fourth Geneva Convention
relative to the Protection of Civilian Persons in Time of War of 12
August 1949 have in addition the obligation, while respecting the
United Nations Charter and international law, to ensure compliance by
Israel with international humanitarian law as embodied in that
Convention;
E. The United Nations, and especially the General Assembly and the
Security Council, should consider what further action is required to
bring to an end the illegal situation resulting from the construction of
the wall and the associated rgime, taking due account of the present
Advisory Opinion.
(The Court came to conclusions A, B, C & E by 14 votes to 1, and to
D by 14 votes to 2. An American judge, Thomas Buergenthal,
dissented in each instance, saying that the Court had not taken proper
account of Israels security needs, though he didnt go so far as to say
that the wall was justified by Israels security needs. A British judge,
Rosalyn Higgins, voted for all five conclusions.)
Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro)
Brief Fact Summary. Bosnia and Herzegovina (P) brought suit against
the Federal Republic of Yugoslavia (Serbia and Montenegro) (D) in
the International Court of Justice in 1993, on the grounds of violations
of the Convention on the Prevention and Punishment of the Crime of
Genocide.
Synopsis of Rule of Law. Under International law, the conduct of any
state organ is to be considered an act of the state, therefore giving rise
to the responsibility of the state if the conduct constitutes a breach of
an international obligation of the state.
Facts. The republics of Bosnia and Herzegovina (P), Croatia,
Macedonia and Slovenia declared independence when the Socialist
Federal Republic of Yugoslavia began to break up in the early 1990s.
this led Serbia and Montenegro to declare themselves the Federal
Republic of Yugoslavia (FRY) (D). A massacre was perpetrated by
Serbian forces on 8000 Bosnia Muslim men of fighting age in a small
village called Srebrenica in July 1995 during armed conflicts that arose
in 1992-1995 within Bosnia and Herzegovina (P). A suit was filed
against the FRY (Serbia and Montenegro) (D) by Bosnia and
Herzegovina (P) in 1993 in the International Court of Justice, claiming
violations of the Convention on the Prevention and Punishment of the
Crime of Genocide, on the theory that the FRY (D) was responsible
for the actions of Serbian forces.
Issue. Under International law, is the conduct if any state organ
considered an act of the state, which can give rise to the responsibility
of the state if the conduct constitutes a breach of an international
obligation of the state?
Held. (Judge not identified in casebook excerpt). Yes. Under
International law, the conduct of any state organ is to be considered an
act of the state, therefore giving rise to the responsibility of the state if
the conduct constitutes a breach of an international obligation of the
state. This is a rule of customary international law that was codified in
Article 4 of the ILC Articles of State responsibility.
No evidence showed that the Serbian forces were de jure organs of
FRY (D) and this case did not show that the army of the FRY (D) took
part in the massacres or that the political leaders of the state had any
part of it. Though the FRY (D) was providing some sought of financial
and other support to the Serbian forces, this does not automatically
make them organs of the FRY (D).
Also, no evidence was provided to prove that the Serbs were under the
effective control of FRY (D) while conducting the massacre at
Srebrenica. This can only imply that those who were responsible for
the massacre were not organs of the FRY (D) and the FRY (D) cannot
take responsibility under international law for the massacres.
Discussion. The brief for the first part of this case, interpreting the
requirements of the Genocide Convention, which is excerpted on page
166 of the casebook, should be looked into. The I.C.J. had to refer to a
standard set by Nicaraguan v. United States in deciding whether to
Page 74 of 83
hold FRY (D) liable for the alleged genocide at Srebrenica by certain
Bosnian Serbs, in which the United States was found not to be legally
responsible for the actions of the Contra guerrillas, despite their
common goal and public support.
Trail Smelter Arbitration (United States v. Canada)
Brief Fact Summary. The United States (P) sought damages from
Canada by suing them to court and also prayed for an injunction for air
pollution in the state of Washington, by the Trail Smelter, a Canadian
corporation which is domiciled in Canada (D).
Synopsis of Rule of Law. The duty to protect other states against
harmful acts by individuals from within its jurisdiction at all times is
the responsibility of a state.
Facts. The Tail Smelter located in British Columbia since 1906, was
owned and operated by a Canadian corporation. The resultant effect of
from the sulfur dioxide from Trail Smelter resulted in the damage of
the state of Washington between 1925 and 1937. This led to the United
States (P) suit against the Canada (D) with an injunction against
further air pollution by Trail Smelter.
Issue. Is it the responsibility of the State to protect to protect other
states against harmful acts by individuals from within its jurisdiction at
all times?
Held. Yes. It is the responsibility of the State to protect other states
against harmful act by individuals from within its jurisdiction at all
times. No state has the right to use or permit the use of the territory in
a manner as to cause injury by fumes in or to the territory of another or
the properties or persons therein as stipulated under the United States
(P) laws and the principles of international law.
By looking at the facts contained in this case, the arbitration held that
Canada (D) is responsible in international law for the conduct of the
Trail Smelter Company. Hence, the onus lies on the Canadian
government (D) to see to it that Trail Smelters conduct should be in
line with the obligations of Canada (D) as it has been confirmed by
International law. The Trail Smelter Company will therefore be
required from causing any damage through fumes as long as the
present conditions of air pollution exist in Washington.
So, in pursuant of the Article III of the convention existing between
the two nations, the indemnity for damages should be determined by
both governments. Finally, a regime or measure of control shall be
applied to the operations of the smelter since it is probable in the
opinion of the tribunal that damage may occur in the future from the
operations of the smelter unless they are curtailed.
Discussion. Responsibility for pollution of the sea or the existence of a
duty to desist from polluting the sea has never been laid at the feet of
any country by any international tribunal. Although regulation of
pollution is just commencing, it must ensure that there is equilibrium
against freedom of the seas guaranteed under general and long
established rules of international law.
Union Bridge Company (United States) v.Great Britain
Short Version: The Union Bridge Co., an American firm, contracted
with the Orange Free State to supply and deliver material for a steel
road bridge. During the voyage from New York to South Africa, a war
broke out between Great Britain and the Orange Free State and the
material was unloaded at Port Elizabeth. Orange Free State refused to
pay and eventually, it lost the war to Great Britain. After several years,
the material was transferred to Bloemfontein by the Railway
Storekeeper. The Imperial Railway authorities there resented the
transfer and sold the material by auction, but the Union Bridge
Company received nothing. Tribunal held that the Great Britain was
liable to pay the USA. The consignment of the material to
Bloemfontein was a wrongful interference with neutral property. It
was an international tort committed in respect of neutral property, and
because of this, consisted with the broad and well-recognized principle
of international law which gives fair compensation for the wrong
suffered by the neutral owner, the USA should be paid. Facts: By a
Page 75 of 83
contract in writing, contained in two tenders and acceptances, the
Union Bridge Company agreed with the Orange Free State, acting
through its general agents Messrs. William Dunn & Co., to supply and
deliver for 2,200 in accordance with a specification, the material for a
wrought steel road bridge. o The material was bought f.o.b. New York
and was delivered in two consignments, on board the steamers
Kurrachee and Clan Robertson which sailed from New York for Algoa
Bay, South Africa. The consignments were addressed as follows:
"In Dienst, Inspector-General of Public Works, Orange Free State
Government, Bloemfontein, South Africa." o A certificate of
acceptance of the material and of the absence of unnecessary delay in
the manufacture of the finished material was given. During the
voyage from New York to Algoa Bay, war broke out between Great
Britain and the Orange Free State. The two steamers arrived at Port
Elizabeth on October 25, 1899 and November 12, 1899. The bridge
material was unloaded at that port, and stored on depositing ground
belonging to the Harbor Board. Meanwhile, the bills of lading had
been presented for payment in London to Messrs. William Dunn &
Co., who refused payment. On May 24th. 1900, the Orange Free
State was, by proclamation, annexed to Great Britain. In June 1900,
a firm of agents Messrs. Mackie, Dunn & Co. took steps to get into
communication with the InspectorGeneral of Public Works at
Bloemfontein, with a view to selling the bridge material to the British
authorities. o Throughout this correspondence, the firm in question
asserted the property rights of the Union Bridge Co. in the bridge
material, by whom they are instructed to sell and on whose behalf they
hold the documents of title. o On his side, the Inspector of Public
Works, acting on behalf of the Military Governor, accepted Messrs.
Mackie. Dunn & Go's statement of the position and discussed the price
to be paid for the material and the reductions to be made. Finally, on
January 10th. 1901, an offer of 3,000 was made by the Inspector of
Public Works, to remain open for acceptance till January 28th. o By a
letter dated January 31 st, acceptance of this offer was intimated by
Messrs. Mackie, Dunn & Co., but was rejected on February 18th by
the British authorities as being out of time and because of the unsettled
state of the country. o To this letter Messrs. Mackie. Dunn & Co.
replied on February 23rd regretting the decision came to and suggested
that the matter may be reopened and another offer made by the British
authorities at a more opportune moment. The material continued to
lie at Port Elizabeth till August 1901, when, without inspection and
without notice to Messrs. Mackie, Dunn & Co., it was forwarded by
the order of Mr. W. H. Harrison, the Storekeeper of the Cape
Government Railways at Port Elizabeth, by rail to the charge of the
District Storekeeper, Bloemfontein--a distance of 400 miles. o Mr.
Harrison purported to act upon instructions given to him, shortly after
the outbreak of war, when he was storekeeper at East London, to
forward all bridge material intended for the Orange Free State
railways, to the Imperial Military Railways, Bloemfontein. The
Imperial Railway authorities were much annoyed by the arrival of this
material at Bloemfontein and refused at first to receive it but it was
eventually unloaded and stored at Bloemfontein by the railway
authorities where it lay till September 1909. Messrs. Mackie, Dunn
& Co. were aware early in October, 1901, that the material had been
unloaded at Bloemfontein and would remain there for the present. Yet,
during the eight years that it lay there, the Imperial Railway authorities
at Bloemfontein received from that firm neither protest nor demand
that it should be returned to Port Elizabeth or sent to any other
destination.
corrosion. Dunn & Co. which the Union Bridge Co. It was certainly
within the scope of Mr. RULING: The consignment of the material to
Bloemfontein was a wrongful interference with neutral property. on
the evidence. Mackie. but by reference to that broad and well-
recognized principle of international law which gives what. the
material was put up to auction and a year later. Dispositive: The
Tribunal decides that His Britannic Majesty's Government shall pay to
the Government of the United States of America the sum of 750
sterling.500 as the value of the material in 1909. in our view.
committed in respect of neutral property . inasmuch as it (1) was
neutral property. Dunn & Co. that action constitutes an international
tort. and he did so under instructions which fix liability on His
Britannic Majesty's Government. is fair compensation for the wrong
suffered by the neutral owner. therefore. therefore. and bending but
this deterioration would have resulted. justice will be met by an award
of 750 without interest. two letters were written by the General
Manager of the Central South African Railways to the Union Bridge
Page 76 of 83
Company offering to return to them the material on certain terms as to
payment of charges and indemnity. and (2) was intended for a road. in
1907. and deducting from those amounts the sums of 249 and 17.
for 1.500. in all the circumstances. would have to pay in any case. in
our view. is the true measure of damages. This. There is evidence that
the material had deteriorated by reason of rust. and not the contract
value of the material. coupled with their failure for eight years to make
any protest or demand for its return is relevant. and falls to be decided
not by reference to nice distinctions between trover.10s for charges at
Port Elizabeth and 123 for marine freight due to the Clan Robertson.
in default of instructions. The knowledge of Messrs. and does not
qualify the intrinsic wrongfulness of Mr. must be admitted. Harrison's
action. That liability is not affected either by the fact that he did so
under a mistake as to the character and ownership of the material or
that it was a time of pressure and confusion caused by war. ISSUE: Is
there any liability on His Britannic Majesty's Government? YES. and
making some allowance for storage at Bloemfontein. In so forwarding
this material. 1. the consignment to Bloemfontein did not cause the
deterioration. It is a reasonable inference that it was because of their
inability to find a purchaser that Messrs. 1901 that the material was at
Bloemfontein. Taking. the railways would sell it by public auction to
defray the expenses already incurred by them in the matter. o The
Union Bridge Company received nothing by way of payment for the
material. he made two mistakes. trespass and action on the case.
perhaps to an even greater degree. let the material lie in store for so
many years. . In this aspect of the case. in October. and intimating
that. Finally. and not a railway bridge. only to the question of
quantum of compensation. Harrison's duty as Railway Storekeeper to
forward material by rail. These letters were unanswered. that there was
no intention on the part of the British authorities to appropriate the
material in question. which. o Accordingly. or by the fact. Mackie. In
other words. had the material lain near the sea at Port Elizabeth. the
material was sold to the Crown Mines Ltd.
ZAFIRO v. UNITED STATES, (1993)
Petitioners were indicted on federal drug charges and brought to trial
together pursuant to Federal Rule of Criminal Procedure 8(b), which
provides that defendants may be charged together "if they are alleged
to have participated . . . in the same series of acts or transactions
constituting . . . offenses." At various points during the proceeding,
they each argued that their defenses were mutually antagonistic, and
moved for severance under Rule 14, which specifies that, "[i]f it
appears that a defendant or the government is prejudiced by a joinder
of . . . defendants . . . for trial . . . the court may order an election or
separate trials of counts, grant a severance of defendants or provide
whatever relief justice requires." The District Court denied the
motions, and each petitioner was convicted of various offenses.
Although acknowledging other lower court cases saying that a
severance is required when defendants present "mutually antagonistic
defenses," the Court of Appeals found that petitioners had not suffered
prejudice, and affirmed the denial of severance.
Held:
Rule 14 does not require severance as a matter of law when
codefendants present "mutually exclusive defenses." While the Rule
recognizes that joinder, even when proper under Rule 8(b), may
prejudice either a defendant or the Government, it does not make
mutually exclusive defenses prejudicial per se or require severance
whenever prejudice is shown. Rather, severance should be granted
only if there is a serious risk that a joint trial would compromise a
specific trial right of a properly joined defendant or prevent the jury
from making a reliable judgment about guilt or innocence. The risk of
prejudice will vary with the facts in each case, and the Rule leaves
determination of the risk, and the tailoring of any necessary remedy, to
the sound discretion of the district courts. Although separate trials will
more likely be necessary when the risk is high, less drastic measures,
such as limiting instructions, often will suffice. Because petitioners,
who rely on an insupportable bright-line rule, have not shown that
their joint trial subjected them to any legally cognizable prejudice, the
District Court did not abuse its discretion in denying their motions to
sever. Moreover, even if there were some risk of prejudice, here it is of
the type that can be cured [506 U.S. 534, 535] with proper
instructions, which the District Court gave. Pp. 537-541.
Page 77 of 83
 NEER CLAIM
Facts: In 1924, Paul Neer, an American citizen, was killed in Mexico
by a group of armed men. This claim was presented to the U.S.
Mexico General Claims Commission alleging that the Mexican
authorities had shown culpable lack of diligence in prosecuting the
culprits. Held: The claim must be disallowed, since there was no
evidence of such lack of diligence as to constitute an international
delinquency: the propriety of governmental acts was decided
according to international minimum standards, and the treatment of an
alien, in order to constitute an international delinquency, should
amount to an outrage, to bad faith, to willful neglect of duty, or to an
insufficiency of governmental action so far short of international
standards that every reasonable and impartial man would readily
recognize its insufficiency, it being immaterial whether the
insufficiency proceeds from deficient execution of an intelligent law or
from the fact the laws of the country do not empower the authorities to
measure up to international standards.2
CASE EXCERPTS
This claim is presented by the United States against the United
Mexican States in behalf of L. Fay H. Neer, widow, and Pauline E.
Neer, daughter, of Paul Neer, who, at the time of his death, was
employed as superintendent of a mine in the vicinity of Guanacevi,
State of Durango, Mexico. On November 16, 1924, about eight o'clock
in the evening, when he and his wife were proceeding on horseback
from the village of Guanacevi to their home in the neighborhood, they
were stopped by a number of armed men who engaged Neer in a
conversation, which Mrs. Neer did not understand, in the midst of
which bullets seem to have been exchanged and Neer was killed. It is
alleged that, on account of this killing, his wife and daughter,
It is immaterial whether the expression "denial of justice" be taken in
that broad sense in which it applies to acts of executive and legislative
authorities as well as to acts of the courts. 787). .identical to that
whichunder the name of "denial of justice"applies to acts of the
judiciary. There might have been reason for the higher authorities of
the State to intervene in the matter. on the one hand. MAGALANG
American citizens.3 As to lack of diligence.NEER CLAIM SANDRA
M. on the other hand. it would seem that in the early morning after the
tragedy these authorities might have acted in a more vigorous and
effective way than they did The Commission is mindful that the task
of the local Mexican authorities was hampered by the fact that the only
eyewitness of the murder was unable to furnish them any helpful
information.T.00. and that therefore the Mexican Government ought to
pay to the claimants the said amount. p. sustained damages in the sum
of $100. as they apparently did. Id. In 1910 John Bassett Moore
observed that he did "not consider it to be practicable to lay down in
advance precise and unyielding formulas by which the question of a
denial of justice may in every instance be determined" (American
Journal of International Law. on the part of the Mexican authorities.
1 at 60-61. will applybe it under a different nameto unwarranted
acts of executive and legislative 3 4 Id.000. that the Mexican
authorities showed an unwarrantable lack of diligence or an
unwarrantable lack of intelligent investigation in prosecuting the
culprits. or whether it be used in a narrow sense which confines it to
acts of judicial authorities only. 1910. 280). after the killing of Paul
Neer had been brought to their notice. 1923. and holding that this
record presents such lack of diligence and of intelligent investigation
as constitutes an international delinquency. p. or lack of intelligent
investigation. for in the latter case a reasoning.4 The Commission
recognizes the difficulty of devising a general formula for determining
the boundary between an international delinquency of this type and an
unsatisfactory use of power included in national sovereignty. II. 3 at
61. and in 1923 De Lapradelle and Politis stated that the evasive and
complex character (le caractrefuyant et complexe) of a denial of
justice seems to defy any definition (Recueil des
AibitragesInternationaux. But in the view of the Commission there is a
long way between holding that a more active and more efficient course
of procedure might have been pursued.
or in a pronounced degree of improper action. towilful neglect of duty.
should amount to an outrage. and to hold (first) that the propriecy of
governmental acts should be put to the test of international standards.
Whether the insufficiency proceeds from deficient execution of an
intelligent law or from the fact that the laws of the country do not
Page 78 of 83
empower the authorities to measure up to international standards is
immaterial. whether another course of procedure taken by the local
authorities at Guanacevi might have been more effective. that arrests
were made of persons suspected. and (second) that the treatment of an
alien. Without attempting to announce a precise formula. No attempt is
made to establish the second point. inwilful neglect of their duties.
though the Commission feels bound to state once more that in its
opinion better methods might have been used. on the very night of the
tragedy. 4 at 61-62. In the light of the entire record in this case the
Commission is not prepared to hold that the Mexican authorities have
shown such lack of diligence or such lack of intelligent investigation
in apprehending and punishing the culprits as would render Mexico
liable before this 5 Id. in bad faith. to bad faith. among them Mrs. that
on November 17 the Judge proceeded to the examination of some
witnesses. MAGALANG authorities. The American Agency in
rebuttal offers nothing but affidavits stating individual impressions or
suppositions. On the contrary.NEER CLAIM SANDRA M. November
16. that investigations were continued for several days. in order to
constitute an international delinquency. the grounds of liability limit its
inquiry to whether there is convincing evidence either (1) that the
authorities administering the Mexican law acted in an outrageous way.
.T. Neer. 5 (emphasis supplied) It is not for an international tribunal
such as this Commission to decide. went to the spot where the killing
took place and examined the corpse. From this record it appears that
the local authorities. it is in the opinion of the Commission possible to
go a little further than the authors quoted. or to an insufficiency of
governmental action so far short of international standards that every
reasonable and impartial man would readily recognize its
insufficiency. The first point is negatived by the full record of police
and judicial authorities produced by the Mexican Agent. and that they
were subsequently released for want of evidence. or (2) that Mexican
law rendered it impossible for them properly to fulfil their task.
MAGALANG Commission. Nielsen (p. He says: "The sovereignty
united to the domain establishes the jurisdiction of the nation in her
territories. to the prejudice of his subjects. Vattel. 1869. regularly
pronounced. anodius distinction made. in asserting a general principle
in relation to these rights. 62-66) The sovereign rights of a nation with
regard to the enactment and execution of laws of this character within
its jurisdiction is of course well understood. Id. 6 at 62. It is her
province.6 The Commission accordingly decides that the claim of the
United States is disallowed.T. or of foreigners in general.NEER
CLAIM SANDRA M. (Chitty's edit. as the administration of justice
necessarily requires that every definitive sentence." Law of Nations.
And. 5 at 62. to take cognizance of the crimes committed. ought not
to interfere in the causes of his subjects in foreign countries. To
undertake to examine the justice of a definitive sentence is an attack on
the jurisdiction of him who has passed it. 165-166. and grant them his
protection. finally. Book II. excepting in cases where justice is refused.
and executed as suchwhen once a cause in which foreigners are
interested has been decided in form. adds some observations as to the
respect that should be accorded to the measures employed by nations
in the exercise of such rights. or. to exercise justice in all the places
under her jurisdiction.) 6 7 Id.7 Separate opinion of Commissioner
Fred K. or the country that belongs to her. pp. or rules and forms
openly violated. can not hear their complaints. The prince. therefore.
"Other nations ought to respect this right. or that of her sovereign. and
the differences that arise in the country. the sovereign of the
defendants. or palpable and evident injustice done. . be esteemed just.
the denial of the means of defense at the trial.T. in re minimedubia'. in
all matters depending upon the judiciary power. And it seems to be
possible to indicate with still further precision the broad. and that any
failure to meet those requirements is a failure to perform a legal duty.
or gross injustice. the consequence is that in the protection of its
subjects residing abroad a government. or fraud. besides an equality oj
treatment with the natives according to the conventional law
established by treaties. Hence a strict conformity by authorities of a
government with its domestic law is not necessarily conclusive
evidence of the observance of legal duties imposed by international
law.NEER CLAIM SANDRA M. The thought is expressed to some
extent in an opinion given by Commissioner Bertinatti in the Medina
case under the Convention of July 2. I860. equal under the law.
general ground upon which a demand for redress based on a denial of
justice may be made by one nation upon another. "Only a formal
denial of justice. (see opinion of Phillimore in 8 Id. it is also clear that
Page 79 of 83
the domestic law and the measures employed to execute it must
conform to the requirements of the supreme law of members of the
family of nations which is international law. MAGALANG Although
there is this clear recognition in international law of the scope of
sovereign rights relating to matters that are subject of domestic
regulation. 'the case of torture. at 64. although it may be important
evidence on that point. It has been said that such a demand is justified
when the treatment of an alien reveals an obvious error in the
administration of justice. the dishonesty or prevaricatio of a judge
legally proved.8 It may perhaps be said with a reasonable degree of
precision that the propriety of governmental acts should be determined
according to ordinary standards of civilization. and as such an
international delinquency. between Costa Rica and the United States in
which it was said: "It being against the independence as well as the
dignity of a nation that a foreign government may interfere either with
its legislation or the appointment of magistrates for the administration
of justice. or a clear outrage. even though standards differ considerably
among members of the family of nations. must confine itself to secure
for them free access to the local tribunals. .
and that the action taken by them may well be adversely criticized. at
65. But in the light of the entire record in the case before us I am not
prepared to decide that a charge of a denial of justice can be
maintained against the Government of Mexico conformably to the
principles which according to my views as above expressed should
govern the action of the Commission. I accordingly concur in the
decision that the claim of the United States is disallowed." Moore. 3.
that the proceedings of investigation were of such a public character as
to put persons implicated in the crime on guard and to enable them to
escape.9 It was argued in behalf of the United States that there was an
unwarranted delay in steps taken to apprehend the persons who killed
Neer.NEER CLAIM SANDRA M. but it seems to be clear that an
international tribunal is guided by a reasonably certain and useful
standard if it adheres to the position that in any given case involving
an allegation of a denial of justice it can award damages only on the
basis of convincing evidence of a pronounced degree of improper
governmental administration. at 66. There may of course be honest
differences of opinion with respect to the character of governmental
acts. Vol. . 2317.T. that detectives might have been employed to
apprehend the offenders. Id. p. MAGALANG the controversy between
the governments of Great Britain and Paraguay) may justify a
government in extending further its protection. I am of the opinion that
better methods might have been used by the Mexican authorities.10 9
10 Id. International Arbitrations
Bayan Muna vs. Romulo - GR No. 159618
Petitioner Bayan Muna is a duly registered party-list group established
to represent the marginalized sectors of society. Respondent Blas F.
Ople, now deceased, was the Secretary of Foreign Affairs during the
period material to this case. Respondent Alberto Romulo was
impleaded in his capacity as then Executive Secretary.
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute
establishing the International Criminal Court (ICC) with the power to
exercise its jurisdiction over persons for the most serious crimes of
international concern x xx and shall be complementary to the national
criminal jurisdictions. The serious crimes adverted to cover those
considered grave under international law, such as genocide, crimes
against humanity, war crimes, and crimes of aggression.
On December 28, 2000, the RP, through Charge dAffaires Enrique A.
Manalo, signed the Rome Statute which, by its terms, is subject to
ratification, acceptance or approval by the signatory states. As of the
filing of the instant petition, only 92 out of the 139 signatory countries
appear to have completed the ratification, approval and concurrence
process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US
Embassy Note No. 0470 to the Department of Foreign Affairs (DFA)
proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
Page 80 of 83
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N
BFO-028-03, hereinafter), the RP, represented by then DFA Secretary
Ople, agreed with and accepted the US proposals embodied under the
US Embassy Note adverted to and put in effect the Agreement with the
US government. In esse, the Agreement aims to protect what it refers
to and defines as persons of the RP and US from frivolous and
harassment suits that might be brought against them in international
tribunals.8 It is reflective of the increasing pace of the strategic
security and defense partnership between the two countries. As of May
2, 2003, similar bilateral agreements have been effected by and
between the US and 33 other countries.
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are current or former
Government officials, employees (including contractors), or military
personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not,
absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any international
tribunal for any purpose, unless such tribunal has been established by
the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or
third country, or expelled to a third country, for the purpose of
surrender to or transfer to any international tribunal, unless such
tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a
person of the Philippines to a third country, the [US] will not agree to
the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of
the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a
person of the [USA] to a third country, the [GRP] will not agree to the
surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of
the [US].
5. This Agreement shall remain in force until one year after the date on
which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation arising, before the
effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo
on the status of the non-surrender agreement, Ambassador Ricciardone
replied in his letter of October 28, 2003 that the exchange of
diplomatic notes constituted a legally binding agreement under
international law; and that, under US law, the said agreement did not
require the advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to
respondents in concluding and ratifying the Agreement and prays that
it be struck down as unconstitutional, or at least declared as without
force and effect.
Issue: Whether or not the RP-US NON SURRENDER AGREEMENT
is void ab initio for contracting obligations that are either immoral or
otherwise at variance with universally recognized principles of
international law.
Ruling: The petition is bereft of merit.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its
threshold posture being that E/N BFO-028-03 cannot be a valid
medium for concluding the Agreement.
Page 81 of 83
Petitioners contentionperhaps taken unaware of certain well-
recognized international doctrines, practices, and jargonsis
untenable. One of these is the doctrine of incorporation, as expressed
in Section 2, Article II of the Constitution, wherein the Philippines
adopts the generally accepted principles of international law and
international jurisprudence as part of the law of the land and adheres to
the policy of peace, cooperation, and amity with all nations. An
exchange of notes falls into the category of inter-governmental
agreements, which is an internationally accepted form of international
agreement. The United Nations Treaty Collections (Treaty Reference
Guide) defines the term as follows:
An exchange of notes is a record of a routine agreement, that has
many similarities with the private law contract. The agreement consists
of the exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the other. Under
the usual procedure, the accepting State repeats the text of the offering
State to record its assent. The signatories of the letters may be
government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either because
of its speedy procedure, or, sometimes, to avoid the process of
legislative approval.
In another perspective, the terms exchange of notes and executive
agreements have been used interchangeably, exchange of notes being
considered a form of executive agreement that becomes binding
through executive action. On the other hand, executive agreements
concluded by the President sometimes take the form of exchange of
notes and at other times that of more formal documents denominated
agreements or protocols. As former US High Commissioner to the under its national criminal laws and dispense justice fairly and
Philippines Francis B. Sayre observed in his work, The
Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other
governments ends and agreements whether denominated executive
agreements or exchange of notes or otherwise begin, may sometimes
be difficult of ready ascertainment. x xx
It is fairly clear from the foregoing disquisition that E/N BFO-028-03
be it viewed as the Non-Surrender Agreement itself, or as an integral
instrument of acceptance thereof or as consent to be boundis a
recognized mode of concluding a legally binding international written
contract among nations.
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio
for imposing immoral obligations and/or being at variance with
allegedly universally recognized principles of international law. The
immoral aspect proceeds from the fact that the Agreement, as
petitioner would put it, leaves criminals immune from responsibility
for unimaginable atrocities that deeply shock the conscience of
humanity; x xx it precludes our country from delivering an American
criminal to the [ICC] x x x.63
The above argument is a kind of recycling of petitioners earlier
position, which, as already discussed, contends that the RP, by
entering into the Agreement, virtually abdicated its sovereignty and in
the process undermined its treaty obligations under the Rome Statute,
contrary to international law principles.
The Court is not persuaded. Suffice it to state in this regard that the
non-surrender agreement, as aptly described by the Solicitor General,
is an assertion by the Philippines of its desire to try and punish crimes
under its national law. x xxThe agreement is a recognition of the
primacy and competence of the countrys judiciary to try offenses
judiciously.
Petitioner, we believe, labors under the erroneous impression that the
Agreement would allow Filipinos and Americans committing high
crimes of international concern to escape criminal trial and
punishment. This is manifestly incorrect. Persons who may have
committed acts penalized under the Rome Statute can be prosecuted
and punished in the Philippines or in the US; or with the consent of the
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RP or the US, before the ICC, assuming, for the nonce, that all the
formalities necessary to bind both countries to the Rome Statute have
been met. For perspective, what the Agreement contextually prohibits
is the surrender by either party of individuals to international tribunals,
like the ICC, without the consent of the other party, which may desire
to prosecute the crime under its existing laws. With the view we take
of things, there is nothing immoral or violative of international law
concepts in the act of the Philippines of assuming criminal jurisdiction
pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.

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