2b-pil-compiled-cases.pdf

WESTERN MINDANAO STATE UNIVERSITY COLLEGE OF LAW

PUBLIC INTERNATIONAL LAW

Compiled Cases

Submitted by: WMSU J.D. 2B

Submitted to: Atty. Lucio Mabalod Jr.

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TABLE OF CONTENTS

Abdulajid, Careema A. 1. KURODA VS. JALANDONI ……………………………………………………………………………………………. 6 2. LO CHING VS. ARCHBISHOP OF MANILA …………………………………………………………………...... 7 Adjul, Khalmida T. 3. VICTOR BOROVSKY vs. THE COMMISSIONER OF IMMIGRATION and THE DIRECTOR OF PRISONS ……………………………………………………………………………………………………… 8 4. LAGUNA LAKE DEVELOPMENT AUTHORITY VS CA ………………………………………….………... 10 Ampang, Shiela A. 5. ICHONG VS HERNANDEZ ………………………………………………………………………………………….. 11 6. OETJEN v. CENTRAL LEATHER CO.(1918) ………………………………………………………..……….. 12 Asio, Myka M. 7. PEOPLE OF THE PHILIPPINE ISLANDS vs. GREGORIO PERFECTO ………………….………....... 14 Baltazar, Marlon J. 8. VILAS v. CITY OF MANILA ……………………………………………………………………………………........ 15 Bandigan, Jeanebell R. 9. U.S. SUPREME COURT UNDERHILL V. HERNANDEZ ……………………………………………............ 16 10. THE HOLY SEE VS. ROSARIO …………………………………………………………………………………… 18 Baterna, Christine Divine M. 11. USA VS. RUIZ ………………………………………………………………………………………………………….. 20 12. Republic of the Philippines vs. Marcos ……………………………………………………………..……….. 21 Benito, Jalilah L. 13. U.S VS. GUINTO ……………………………………………………………………………….……………………… 22 14. U.S VS. RODRIGO …………………………………………………………………………………………………...... 23 Bonsato, Kidrelyne Vic S. 15. JUSMAG PHILIPPINES V. NLRC ……………………………………………………………………………….. 24 Camins, Gian Walter F. 16. LASCO VS. UNRFNRE …………………………………………………………………..………………………....... 26 17. WORLD HEALTH ORGANIZATION VS. AQUINO ……………………………..……………………….... 27 Capistrano, Quelmer R. 18. INTERNATIONAL CATHOLIC MIGRATION COMMISSION VS HON. PURA CALLEJA …….. 29 19. ERNESTO L. CALLADO VS. IRRI …………………………………………………………………………..…… 30

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Cataylo, Elfie Paul Y. 20. SEAFDEC VS. NLRC ………………………………………………………………………………………………… 31 21. INTERNATIONAL COURT OF JUSTICE CONTENTIOUS CASE: THE NORTH SEA CONTINENTAL SHELF CASES …………………………………………………………………………………………………... 32 Dirayunan, Marinette S. 22. BLACKMER VS. U.S. …………………………………………………………………………………………..……... 33 23. SCHOONER EXCHANGE V. MACFADDON ………………………………………………………………..... 34 Eslao, Jeff Rey 24. U.S VS. LOOK CHAW ……………………………………………………………………………………..….……... 35 25. PEOPLE VS. WONG CHENG …………………………………………………………………………………….. 36 Fabian, Adrian 26. DE – PERIO-SANTOS V. MACARAIG ……………………………………………………………… 37 27. DICKINSON V. DEL SOLAR ………………………………………………………………………….. 39 Gadaingan, Maefel S. 28. MINUCHER VS. COURT OF APPEALS ……………………………………………………………………….. 40 29. THE VIENNA CONVENTION ON THE LAW OF TREATIES 1969 …………….....…….. 42 Gadingan, Gaspar 30. COMMISSIONER OF CUSTOMS VS. EASTERN SEA TRADING ……………………………………. 70 Hajan, Lholi Alnajib J. 31. SANTOS III V NORTH EASTERN AIRLINES ………………………………………………………………. 71 32. UNITED STATES V. THE DA JEUNE EUGENIE …………………………………………………………. 72 Jamaluddin, Sheara-Jane 33. THE SCOTIA. THE SUPREME COURT OF UNITED STATES …………………………….. 73 34. NO CASE FOUND Jayag, Sharina W. 35. WEST RAND CENTRAL GOLD MINING COMPANY, LIMITED v. THE KING ……… 76 Kipli, Alvin Ryan S. 36. THORINGTON V. SMITH, SUPREME COURT OF THE U.S. …………………………………………. 77 37. NEELY V. HENKEL, SUPREME COURT OF THE U.S. ………………………………….………………. 78

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Lakibul, Mohammad Ashraff N. 38. THE KING VS THE EARL OF CREWE, EX PARTE SEKGOME. ………………………………..……. 80 39. THE THREE FRIENDS, US SUPREME COURT …………………………………………….…………….. 81 Lian, Bob Joel L. 40. THE SAPPHIRE CASE, U.S. SUPREME COURT …………………………………………………..…….… 82 41. KEITH V. CLARK ………………………………………………………………………………………..…………… 83 Maarim, Anson C. 42. TERLINDEN v. AMES ……………………………………………………………………………………………… 85 43. LODEWYK JOHANNES DE JAGER VS. THE ATTORNEY-GENERAL OF NATAL ………..…… 87 Madrigal lll, Alejandro T. 44. AMERICAN BANANA CO. v. UNITED FRUIT CO ……………………………………………….……….. 88 45. STATE OF LOUISIANA v. STATE OF MISSISSIPPI …………………………………….…….. 90 Mariano, Joshua A. 46. THE ANNA HIGH COURT OF ADMIRALTY OF GREAT BRITAIN. …………………………..……. 92 47. MORTENSEN V. PETERS, HIGH COURT OF JUDICIARY OF SCOTLAND ……………….……… 93 Padua, Ella Anne O. 48. CHURCH VS. HUBBART, UNITED STATES SUPREME COURT ……………………………………. 94 49. U.S. SUPREME COURT, THE MARIANNA FLORA, 24 U.S. ………………………………... 96 Pallula, Myralyn A. 50. THE BELGENLAND, US SUPREME COURT ……………………………………..…………………..…….. 98 51. REGINA V. ANDERSON, COURT OF CRIMINAL APPEAL OF GREAT BRITAIN …….……… 100 Sadaya, Mary Therese G. 52. WILDENHUS’ CASE, UNITED STATES SUPREME COURT ……………….…………………...……….. 101 53. UNITED STATES V. RICE, UNITED STATES SUPREME COURT ……………………...….……… 103 Salip, Ashram 54. THE GERASIMO, JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF GREAT BRITAIN………………………….....……………………………………………….. 105

Samla, Nurwisa A.

55. DOOLEY v. U.S. ………………………………………………………………………………………………….…. 107 56. MACLEOD v. U.S. ………………………………………………………………………………………………….. 110

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Santos, Jan Marc B. 57. THE SCHOONER EXCHANGE V. MCFADDON & OTHERS, US. SUPREMECOURT ..……… 114 58. PAPAYANNI AND OTHERS V. THE RUSSIAN STEAM NAVIGATION AND TRADING CO. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BRITAIN…………... 115 Sumalpong, Sharlene Fair D. 59. PARKINSON VS. POTTER (1885), QUEEN’S BENCH DIVISION OF THE HIGH

COURT OF JUSTICE OF GREAT BRITAIN………………….…………………………..117

60. JOHNSON’S AND GRAHAM’S LESSEE V WILLIAM M’ INTOSH, U.S SUPREME

COURT …………………………………………………………………….………………..……… 118

Tarsum, Nadzwada J. 61. STATE OF MARYLAND VS STATE OF WEST VIRGINIA …………………………………………… 119 62. AMERICAN INS. CO. AND THE OCEAN INS. CO OF NEW YORK V. 356 BALES OF COTTON ………………………..…………………………………………………….. 121 Tugal, Charlotte H. 63. VAN DEVENTER V. HANCKE AND MOSSOP …………………………………………………………… 123 64. THE PHILIPPINE SUGAR ESTATES DEVELOPMENT COMPANY (LTD) V. THE UNITED STATES 1904 ………………………………………………………………………… 125 Villegas, Paula Grace V. 65. ALVAREZ Y SANCHEZ V. UNITED STATES …………………………………………………………….. 127 66. VILAS V. MANILA ………………………………………………………………………………………………… 129 Yusop, Mattsalleh S. 67. UNITED STATES OF AMERICA V. PRIOLEAU …………………………………………….…………… 131 68. WEST RAND CENTRAL GOLD MINING COMPANY LIMITED. V. THE KING ………….....… 132

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1. KURODA VS. JALANDONI 83 Phil 171 March 26, 1949 Facts: Shigenori Kuroda, petitioner, was the Commanding General of the Japanese Imperial Forces in the Philippines during the Japanese occupation. He was charged before the Philippine Military Commission of war crimes for having unlawfully disregarded and failed to discharge his duties as such command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of the laws and customs of war. In his defense, Kuroda questioned the constitutionality of Executive Order No. 68 that created the National War Crimes Office and prescribed rules on the trial of accused war criminals. He then contended that the Philippines is not a signatory to The Hague Convention on rules and regulations covering Land Warfare and therefore, he is charged of crimes which are not based on any international or local law.

Issue: Was Executive Order No. 68 valid and constitutional?

Held:

The Court denied the petitioner’s petition and upheld the validity and constitutionality of Executive Order No. 68. Article 2 of our Constitution provides in section 3 that: The Philippine 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 the significant precedents of international jurisprudence established by the United Nations, all those persons - military or civilian - who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offences consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization are held accountable therefore. Consequently, in the promulgation and enforcement of E.O. No. 68, the President of the Philippines has acted in conformity with the generally accepted policies of international law which are part of our Constitution. Such rules 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.

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2. LO CHING VS. ARCHBISHOP OF MANILA 81 Phil 601

Facts:

On August 30, 1940, the Archbishop of Manila through the Bank of the Philippine Islands leased a farm to Lo and So Yun Ching Chong Co. with Nos. 1095 with 1101 R, located at de la Calle Hidalgo, Manila, under a monthly income of P500 by the end of three years counting from the first of September 1940, extendable to two years (two years upon agreement of the parties). The tenant took the property by setting it in a hotel. In February 1942, the Japanese army echoed the tenants of the property and delivered the latter to German Otto Schulze who worked until January 1945 at the advent of the liberation army. In early February 1945, tenant reoccupied the property and paid the monthly rental fee. Before the end of August of that year, the landlord required the tenants to vacate the property, however, they refused. Therefore, the landlord on September 8, 1945 filed for an application for eviction in the Municipal Court of Manila. On October 8, 1945, it ordered the tenants to vacate the property and pay its monthly rent of P625 from the first September 1945, plus damages in the amount of P500 and legal expenses. The appellants contend that they are entitled to occupy the property for three full years, the occupation must be effective, and continuous material, which should not be deprived of the use and enjoyment of the property, and the appellants are entitled to deduct that period of three years, all the time that no longer have the lease available to the Japanese army. Issue: Whether or not The Hague Convention of 1907 allows occupation and seizure of private lands and whether or not the Japanese soldiers occupied the farm in dispute.

Held: No. The Hague Convention of 1907 does not allow an occupying army to seize private property in the territory invaded. In contrast, it states that: "Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated." (Article 46) The farm is not even used as an army barracks and there is no evidence that it was seized by military necessity. What can be deduced is that the Japanese soldiers disposed off the property, not in the legitimate exercise of an occupying army, but spurred on by the uncontrollable desire to take over other people. 7

3. VICTOR BOROVSKY vs. THE COMMISSIONER OF IMMIGRATION and THE DIRECTOR OF PRISONS

G.R. No. L-4352 September 28, 1951

FACTS: Victor A. Borovsky, petitioner, claims to be a stateless citizen, born in Shanghai, China, of Russian parentage. He came to the Philippines in 1936 and had resided herein ever since, if the period of his detention be included. On June 24, 1946, by order of the Commissioner of immigration of the Philippines the petitioner was arrested for investigation as to his past activities. A warrant for deportation was issued by the Deportation Board on the grounds that he has been found to be an undesirable alien, a vagrant and habitual drunkard. Petitioner was deported to China but he was not provided with an entry visa because he was not a a national of China. He was therefore brought back to Manila and was confined to the new Bilibid Prison in Muntinlupa. On December 8, 1947, was granted provisional release by the President through Secretary of Justice for a period of six months. Before the expiration of that period, the Immigration department rearrested him and brought him to Cebu for the purpose of placing him on board a Russian vessel carrying out the deportation order issued against him. However, said deportation failed to materialize as the captain of the ship refused to take him on board without permission from the Russian government. As such, petitioner was again detained. The Immigration Officials however alleged that while in detention, they have been taking steps regarding the disposition of those foreigners subject to deportation while awaiting availability of transportation or arrangements to the place where they may be sent.

Petitioner then filed for a writ of habeas corpus to which the court denied as mainly on the ground that such detention was merely temporary. Over two years had elapsed since the decision was promulgated, but still the Government had not found ways and means of removing the petitioner out of the country. Hence this second petition for writ of habeas corpus.

ISSUE: WON petitioner be continuously detained without a fix period pending deportation

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HELD: NO. Aliens illegally staying in the Philippines have no right of asylum therein (Soewapadji vs. Wixon, Sept. 13, 1946, 157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. Foreign nationals, not enemy, against whom no criminal charges have been formally made or judicial order issued, may not indefinitely be kept in detention. The protection against deprivation of liberty, without due process of law and except for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality. Whether an alien who entered the country in violation of its immigration laws may be detained for as long as the Government is unable to deport him, is beside the point and we need not decide. There is no allegation that the petitioner's entry into the Philippines was not lawful; on the contrary, the inference from the pleadings and the Deportation Board's findings is that he came to and lived in this country under legal permit.

Moreover, by its Constitution (Art. II, sec. 3) the Philippines "adopts the generally accepted principles of international law as part of the law of Nation." And in a resolution entitled "Universal Declaration of Human Rights" and approved by the General Assembly of the United Nations of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. lt was there resolved that "All human beings are born free and equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status (Art. 2) ; that "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary arrest, detention or exile" (Art. 9) etc.

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4. LAGUNA LAKE DEVELOPMENT AUTHORITY VS CA GR No. 120865-71; Dec. 7 1995

FACTS: The Laguna Lake Development Authority (LLDA) was created through Republic Act No. 4850. It was granted, inter alia, exclusive jurisdiction to issue permits for the use of all surface water for any project or activity in or affecting the said region including navigation, construction, and operation of fishpens, fish enclosures, fish corrals and the like. Then came RA 7160, the Local Government Code of 1991. The municipalities in the Laguna Lake region interpreted its provisions to mean that the newly passed law gave municipal governments the exclusive jurisdiction to issue fishing privileges within their municipal waters.

ISSUE: Who should exercise jurisdiction over the Laguna Lake and its environs insofar as the issuance of permits for fishing privileges is concerned, the LLDA or the towns and municipalities comprising the region?

HELD: LLDA has jurisdiction over such matters because the charter of the LLDA prevails over the Local Government Code of 1991. The said charter constitutes a special law, while the latter is a general law. It is basic in statutory construction that the enactment of a later legislation which is a general law, cannot be construed to have repealed a special law. The special law is to be taken as an exception to the general law in the absence of special circumstances forcing a contrary conclusion. In addition, the charter of the LLDA embodies a valid exercise of police power for the purpose of protecting and developing the Laguna Lake region, as opposed to the Local Government Code, which grants powers to municipalities to issue fishing permits for revenue purposes. Thus it has to be concluded that the charter of the LLDA should prevail over the Local Government Code of 1991 on matters affecting Laguna de Bay.

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5. ICHONG VS HERNANDEZ G.R. No. L-7995, May 31, 1957 Facts: Driven by aspirations for economic independence and national security, the Congress enacted Act No. 1180 entitled “An Act to Regulate the Retail Business.” The main provisions of the Act, among others, are: (1) Prohibition against persons, not citizens of the Philippines, and against associations, among others, from engaging directly or indirectly in the retail trade; and (2) Prohibition against the establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business. Lao H. Ichong, in his own behalf and on behalf of other alien residents, corporations and partnerships adversely affected by the said Act, brought an action to obtain a judicial declaration, and to enjoin the Secretary of Finance, Jaime Hernandez, and all other persons acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner attacked the constitutionality of the Act, contending that:   

It denies to alien residents the equal protection of the laws and deprives of their liberty and property without due process of law. The subject of the Act is not expressed or comprehended in the title thereof. The Act violates international and treaty obligations of the Republic of the Philippines.

Issue: Whether or not a law may invalidate or supersede treaties or generally accepted principles. Ruling: Yes, a law may supersede a treaty or a generally accepted principle. In this case, the Supreme Court saw no conflict between the raised generally accepted principle and with RA 1180. The equal protection of the law clause “does not demand absolute equality amongst residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced”; and, that the equal protection clause “is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.”

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6. OETJEN v. CENTRAL LEATHER CO.(1918) No. 268 Decided: March 11, 1918 FACTS: The two cases are suits in replevin and involve the title to two large consignments of hides, which the plaintiff in error claims to own as assignee of Martinez & Co., a partnership engaged in business in the city of Torreon, Mexico, but which the defendant in error claims to own by purchase from the Finnegan-Brown Company, a Texas corporation which it is alleged purchased the hides in Mexico from General Francisco Villa on January 3, 1914. Judgments were rendered for the defendants, which were affirmed by the Court of Errors and Appeals and are brought to the New Jersey court on the theory that the claim of title to the hides by the defendant in error is invalid because based upon a purchase from General Villa, who, it is urged, confiscated them contrary to the provisions of the Hague Convention of 1907 respecting the laws and customs of war on land; that the judgment of the state court denied to the plaintiff in error this right which he 'set up and claimed' under the Hague Convention or treaty; and that this denial gives him the right of review in this court. Moreover, these hides were seized by the Carranza government, then engaged in civil war and sold to an American firm which brought them to New Jersey. The petitioner claims that the seizure was invalid. However, at the time of the seizure, the Carranza government controlled about two-thirds of Mexico but there was no government in that country recognized by the United States on October 19, 1915, recognized the Carranza regime as a de facto government and on August 31, 1917 as de jure government. ISSUE: Whether or not the seizure is valid provided that the government is a de jure government. RULING: When a government which originates in revolution or revolt is recognized by the political department of our government as de jure government of the country in which it is established, such recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence. To these principles we must add that: “Every state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be available of by sovereign powers as between themselves.” The principle that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property 12

brought within the custody of a court, such as we have here, as it was held to the cases cited, in which claims for damages were based upon acts done in a foreign country for it rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign state to be re-examined and perhaps condemned by the courts of another would very certainly imperil the amicable relations between governments and vex the peace of nations.

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7. PEOPLE OF THE PHILIPPINE ISLANDS vs. GREGORIO PERFECTO 43 Phil 887 Facts: On September 7, 1920, Mr. Gregorio Perfecto published an article in the newspaper La Nacion regarding the disappearance of certain documents in the Office of Fernando M. Guerrero, the Secretary of the Philippine Senate. The article of Mr. Perfecto suggested that the difficulty in finding the perpetrators was due to an official concealment by the Senate since the missing documents constituted the records of testimony given by witnesses in the investigation of oil companies. This resulted to a case being filed against Mr. Perfecto for violation of Article 256 of the Penal Code. He was found guilty by the Municipal Trial Court and again in the Court of First Instance of Manila. Mr. Perfecto filed an appeal in the Supreme Court to dismiss the case on the ground that Article 256 was not in force anymore. Issue: Will a law be abrogated by the change of Spanish to American Sovereignty over the Philippines? Held: The Supreme Court held that Article 256 of the Spanish Penal Code was enacted by the Government of Spain to protect Spanish officials who were representative of the King. With the change of sovereignty, a new government, and a new theory of government, was set up in the Philippines. It was no sense a continuation of the old laws. No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only in bated breath. The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris. Ministers of the Crown have no place under the American flag. Judgement is REVERED and the defendant and appellant ACQUITTED.

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8. VILAS v. CITY OF MANILA 220 US 345 FACTS: Petitioners are creditors of the city of Manila before the cession of the Philippine Islands to the United States. The Supreme Court of the Philippine Islands denied relief, holding that the present municipality is a totally different corporate identity from the previous one and is not liable for the debts of the Spanish municipality. ISSUE: Is the present municipality liable for the obligations of the city incurred prior to the cession to the United States?

HELD: The contention that the liability of the city upon such obligations was destroyed by a mere change of sovereignty is one which is without a shadow of moral force. The city, acting as a corporation, possesses two kinds of powers: governmental and public. In view of the dual character of municipal corporations, there is no public reason for the presuming their total dissolution as a consequence of military occupation or territorial cession. The cession did not operate as an extinction or dissolution of corporations. The present city is, in every legal sense, the successor of the old. As such, it is entitled to the property and property rights of the predecessor corporation, and is, in law, subject to all of its liabilities. All three of plaintiffs in error are entitled to judgment.

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9. U.S. SUPREME COURT UNDERHILL V. HERNANDEZ 168 U.S. 250 (1897) Facts: In the early part of 1892, a revolution was initiated in Venezuela against the administration thereof, which the revolutionists claimed had ceased to be the legitimate government .Hernandez was in command of a revolutionary army in Venezuela when an engagement took place with the government forces which resulted in the defeat of the latter, and the occupation of Bolivar by the former. . In October, the party in revolt had achieved success generally, taking possession of the capital of Venezuela October 6, and on October 23, 1892, the "Crespo government," so called, was formally recognized as the legitimate government of Venezuela by the United States. Underhill was living in Bolivar, where he had constructed a waterworks system for the city under a contract with the government, and carried on a machinery repair business. He applied for a passport to leave the city, which was refused by Hernandez with a view to coerce him to operate his waterworks and his repair works for the benefit of the community and the revolutionary forces. Subsequently a passport was given him. The revolutionary government under which Hernandez was acting was recognized by the United States as the legitimate government of Venezuela. Subsequently Underhill sued Hernandez in the Circuit Court for the Second Circuit to recover damages caused by the refusal to grant the passport, for alleged confinement of him to his own house, and for alleged assaults and affronts by Hernandez' soldiers. Judgment being rendered for defendant, the case was taken to the circuit court of appeals, where the judgment was affirmed, the court holding that the acts of the defendant were the acts of Venezuela, and as such are not properly the subject of adjudication in the courts of another government. Issue: Whether or not the circuit court of appeals was justified in that conclusion. Ruling: Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory. A verdict for defendant on the ground that the acts of defendant were those of a military commander, representing a de facto government in the prosecution of a war, he was not civilly responsible therefor. Judgment having been rendered for defendant, the case was taken to the circuit court of appeals, and by that court affirmed upon the ground that the acts of the defendant were the acts of the government of Venezuela, and as such are not properly the subject of adjudication in the courts of another government.

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That the purpose of the defendant in his treatment of the plaintiff was to coerce the plaintiff to operate his waterworks and his repair business for the benefit of the community and the revolutionary forces, and that it was not sufficient to have warranted a finding by the jury that the defendant was actuated by malice or any personal for private motive, and the court concur in its disposition of the rulings. The decree of the circuit court is affirmed.

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10. THE HOLY SEE VS. ROSARIO 238 SCRA 524 December 1, 1994 Facts: Petitioner is the Holy See who exercises sovereignty over the Vatican City and is represented by the Papal Nuncio in the Philippines. The petition arose from a controversy regarding a lot, Lot 5-A, of 6,000 square meters located in the Municipality of Parañaque, registered in the name of the petitioner. Lot 5-A is contiguous to two other lots, 5-B and 5-D. The three lots were sold to Ramon Licup, who later assigned his rights to the sale to the private respondent, Starbright Sales Enterprises, Inc., involved in real estate. Informal settlers were squatting in the property, and dispute arose as to who would evict them. The conflict intensified when the lot was sold to Tropicana Properties and Development Corporation by the petitioner. The private respondent filed a complaint before the RTC of Makati against the petitioner and three other defendants: Msgr. Domingo Cirilos, who acted as agent to the sellers, the PRC and Tropicana. It prayed for: 1) annulment of the Deeds of Sale between petitioner and the PRC on the one hand and Tropicana on the other; 2) the reconveyance of the lots in question; 3) specific performance of the agreement to sell between it and the owners of the lots and; 4) damages. The petitioners and Cirilos separately moved to dimiss the complaint: petitioners for lack of jurisdiction based on soverign immunity from suit and Cirilos for being an improper party. An opposition to the motion was filed by private respondent. The trial court issued an order denying the petitioner’s motion to dismiss, reason being that the petitioner can no longer be immune as they entered into a business contract. Petitioner moved for reconsideration. They then filed a “Motion for Hearing for the Sole Purpose of Establishing Factual Allegation for Claim of Immunity as a Jurisdictional Defense,” to facilitate the hearing in its defense of sovereign immunity. Private repondents opposed the motion as well as the motion for reconsideration. The trial court ordered the resolution be suspended until after trial on the marits and directing the petitioner to file its answer. Petitioner elevated the matter to the Supreme Court. The petitioner invoked its privilege of sovereign immunity only on its behalf and on behalf of its official representatives, the Papal Nuncio. Eventually, the Department of Foreign Affairs filed for a Motion of Intervention caliming its legal interest on the outcome of the case concerning the diplomatic immunity of the petitioner. It stated its adoption upon the claim of the petitioner with regard to its claim for soeverign immunity from suit. This was opposed by the private respondent. Issue: Whether or not the Holy See can invoke its right to Sovereign Immunity to suit.

Ruling: Generally, there are two accepted concepts of sovereignty: a) classical or absolute theory, wherein a sovereign cannot be made as respondent to courts of another sovereign without its consent and; b) restrictive theory, which puts conditions on when to recognize immunity.

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Under the restrictive theory, sovereign immunity is only recognized with regard to public acts or acts jure imperii (or those in pursuant to governmental functions) . If the act is private or acts jure gestionis (those that are for profit), then immunity cannot be invoked. In this case, the petitioner had denied that the acquisition and subsequent disposal of the Lot 5-A were made for profit. It claimed that it acquired the property for its mission or the Apostolic Nunciature in the Philippines. The lot, allegedly, was acquired by donation from the Archdiocese of Manila for the purpose of building official residence of Papal Nuncio. However, when the informal settlers refused to leave the property, the petitioner decided to dispose the property, not for commercial purpose. The DFA intervened as they established in a Memorandum and Certification the privilege of sovereign immunity of the petitioner, stating that they are a duly accredited diplomatic mission to the Philippines exempt from local jurisdiction and has title to all rights, privileges and immunities of a diplomatic mission or embassy in the country. When the plea of immunity has been recognized by the executive department, such shall be conclusive to courts. The Supreme Court granted the petition and the complaint against the petitioner is dismissed.

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11. USA VS. RUIZ G.R No. L-35645, 135 scra 487 Facts: This is a petition to review, set aside certain orders and restrain perpetually the proceeding done by Hon. Ruiz for lack of jurisdiction on the part of the Trial Court. 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 a couple of repair projects. Eligio de Guzman land Co. Inc responded to the invitation and submitted bids. Subsequent thereto, the company received from the US two telegrams requesting it to confirm its price proposals and for the name of its bonding company. The company construed this as an acceptance of its offer so they complied with the requests. The company received a letter which was signed by William I. Collins of the Department of the Navy of the United States, also one of the petitioner herein informing that the company did not qualify to receive an award for the projects because of its previous unsatisfactory performance rating in repairs, and that the projects were awarded to third parties. By this reason, a suit of specific performance was filed by him against the US. Issue: Whether or not the US naval base in bidding for said contracts exercise governmental functions to be able to invoke state immunity. Ruling: The traditional role of the state immunity exempts a state from being sued in the courts of another state without its consent or waiver. This rule is necessary consequence of the principle of independence and equality of states. However, the rules of international law are not petrified; they are continually 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 (juregestionis). 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. In this case the Supreme Court held that the contract relates to the exercise of its sovereign functions. 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. The restrictive application of state immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign. Its commercial activities of economic affairs, a state may be 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.

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12. REPUBLIC OF THE PHILIPPINES VS. MARCOS 806 Fd. 344, US Court of Appeals Facts: This appeal is from a grant of a preliminary injunction in favor of the Republic of the Philippines by the United States District Court for the Southern District of New York, Pierre N. Leval, Judge. The injunction continued an expiring temporary restraining order conditioned on the posting of a bond of $3 million against the transfer or encumbrance of five pieces of real property, four of which is located in New York and one of which is in Long Island, New York. Judge Leval found that the Republic of the Philippines gad met the standard under the Jackson Dairy vs. H.p Hood & Sons Inc. for issuing a preliminary injunction by amply showing sufficiently serious questions going to the merits to make them a fair ground for litigation together with irreparable harm and a balance of hardships tipping in the Republic’s favor. The original complaint in this action dates March 2, 1986 was filed in the Supreme Court of the State of New York. The complaint charges that Marcos allegedly participated in variety of activities constituting gross denial of human rights, including abduction, murder, torture, summary incarceration and execution and control of media. In addition, he is also alleged to have engaged in wide spread and systematic theft of funds and properties that were and are the property of the Philippine government and people which was accomplished by accepting payment, bribes and other things of value in exchange for the grant of government favors, contracts, licenses, franchises, loans and other public benefits, blatantly expropriating private property for the benefit of persons beholden to or fronting for Marcos, arranging loans by the Philippine government to private parties who were Marcos’ cronies and friend, diverting loans, credits and advances from other governments intended for use by the Philippine government and creating public monopolies which were placed in hands of Marcos’s loyalist or nominees. These actions of Marcos, together with similar acts by his wife, are not only to be in violation of the law of the Philippines but also to have caused a massive drain upon the funds of the Philippine government. However, Marcos argues that the claim or relief sought by the Republic of the Philippines is not justiciable by raising the defense of sovereign immunity, under the act of state doctrine. Issue: Whether or not Ferdinand Marcos can validly invoke the act of state doctrine as a defense? Ruling: No. The act of state doctrine was not designed as a tool to protect heads-of –state from liability for crimes committed in their personal lives. Officials are shielded only when they act in their sovereign capacity for the public interest. Hence, the act of state doctrine invoked by Marcos was not appreciated inasmuch as there was no evidence adduced which showed that the acts were public. Moreover, the acts of torture, execution and disappearance were clearly acts outside of the President’s authority and are not covered by the act of state doctrine.

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13. U.S VS. GUINTO 182 SCRA 644 , February 26, 1990 Facts:

The case involves the doctrine of state immunity. The United States of America was not impleaded in the case at bar but has moved to dismiss on the ground that they are in effect suits against it to which it has not consented. The private respondents are suing several officers of the US Air Force in Clark Air Base in connection with the bidding conducted by them for contracts for barber services in the said base. Among those who submitted their bids were private respondents Roberto T. Valencia, Emerenciana C. Tanglao, and Pablo C. del Pilar. The Bidding was won by Ramon Dizon over the objection of the private respondents who claimed that he had made a bid for 4 facilities, including the Civil Engineering Area which was not included in the invitation to bid. The private respondents filed a complaint in the court below to compel Philippine Area Exchange (PHAX) and the individual petitioners to cancel the award to Dizon, to conduct a rebidding for the barbershop concessions and to allow the private respondents by a writ of preliminary injunction to continue operating the concessions pending litigation. The petitioners filed a motion to dismiss and opposition to the petition for preliminary injunction on the ground that the action was in effect a suit against USA which had not waived its non-suability, but trial court denied the application for a writ of preliminary injunction. Issue:

Whether or not the action was in effect a suit against United States of America; and whether the petitioners were immune from suit under the RP-US Bases Treaty for acts done by them in the performance of their official duties. Ruling: The court finds the barbershops subject to the concessions granted by the US government to be commercial enterprises operated by private persons. They are not agencies of the United States Armed Forces nor are their facilities demandable as a matter of right by the American servicemen. These establishments provide for the grooming needs of their customers. This being the case, the petitioners cannot plead any immunity from the complaint filed by the private respondents in the court below. Petitioners states they have acted in the discharge of their official functions as officers or agents of the United States. They are sought to be held answerable for personal torts in which the United States itself is not involved. If found liable, they and they alone must satisfy the judgment. The Court would have directly resolved the claims against the defendants, except for the paucity of the record in the case at hand. The evidence of the alleged irregularity in the grant of the barbershop concessions is not before the Court. The respondent court will have to receive that evidence first, so it can later determine on the basis thereof if the plaintiffs are entitled to the relief they seek. Accordingly, this case must also be remanded to the court below for further proceedings.

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14. U.S VS. RODRIGO 182 SCRA 644 , February 26, 1990 Facts:

Fabian Genove filed a complaint for damages against petitioners Anthony Lamachia, Wilfredo Belsa, Rose Crtalla and Peter Orascion for his dismissal as a cook in the US Air Force Recreation Center. Belsa, Cartalla and Orascion testified that Genova poured urine into the soup stock that was served to customers. Lamachia suspended him and referred the case to a board of arbitrators who found Genove guilty and recommended his dismissal. Genove then filed an MS complaint in the RTC of Baguio against the individual petitioners, who moved to dismiss the case in the basis that Lamachia was immune from suit as per acts done in his official capacity as an officer of the US Air Force. The motion was denied by the RTC, so the petitioners filed a petition for Certiorari and prohibition with preliminary injunction before the Supreme Court. Issue:

Whether or not the petitioners can use State Immunity as defense in Article XVI, Sec. 3 of the 1987 Philippine Constitution. Ruling: Under Art. XVI, Sec. 3, 1987 Constitution, “The State may not be sued without its consent.” However, this does not mean that at all times; the State may not be sued. There needs to be a consideration on if they were indeed acting within the capacity of their duties, or if they enter into a contract with a private party. The consent of the state to be sued may be manifested expressly or impliedly. Express consent may be embodied in a general law or a special law. Consent is implied when the sate enters into a contract or it itself commences litigation. When the government enters into a contract, it is deemed to have descended to the level of the other contracting party and divested itself of its sovereign immunity from suit with its implied consent. Waiver is also implied when the government files a complaint, thus opening itself to a counterclaim. The petitioner, Lamachia, is a manager of a privately operated service which generates an income. The court assumed that they are an individual entity, and the service they offer partake the nature of a business entered by US in its proprietary capacity. Despite this, the court ruled in favor of the petitioners as the claim for damages cannot be allowed on the strength of evidence before the court. It ruled that the dismissal of the private respondent was justifiable under the circumstance. Further, the Supreme Court declared that the petitioners in the other cases above, stating that they acted in performance of their duties, need evidence.

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15. JUSMAG PHILIPPINES V. NLRC GR No. 108813, 15 December 1994 FACTS: Joint United States Military Assistance Group (JUSMAG) assails the January 29, 1993 Resolution of the NATIONAL LABOR RELATIONS COMMISSION (public respondent), in NLRC NCR CASE NO. 00-03-02092-92, reversing the July 30, 1991 Order of the Labor Arbiter, and ordering the latter to assume jurisdiction over the complaint for illegal dismissal filed by FLORENCIO SACRAMENTO (private respondent) against petitioner. Private respondent was one of the seventy-four (74) security assistance support personnel (SASP) working at JUSMAG-Philippines. He had been with JUSMAG from December 18, 1969, until his dismissal on April 27, 1992. When dismissed, he held the position of Illustrator 2 and was the incumbent President of JUSMAG PHILIPPINES-FILIPINO CIVILIAN EMPLOYEES ASSOCIATION (JPFCEA), a labor organization duly registered with the Department of Labor and Employment. His services were terminated allegedly due to the abolition of his position. He was also advised that he was under administrative leave until April 27, 1992, although the same was not charged against his leave. On March 31, 1992, private respondent filed a complaint with the Department of Labor and Employment on the ground that he was illegally suspended and dismissed from service by JUSMAG. He asked for his reinstatement. JUSMAG then filed a Motion to Dismiss invoking its immunity from suit as an agency of the United States. It further alleged lack of employer-employee relationship and that it has no juridical personality to sue and be sued. ISSUE:

Whether or not 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 private respondent, it was performing a governmental function on behalf of the United States pursuant to the Military Assistance Agreement dated March 21, 1947. Hence, we agree with petitioner that the suit is, in effect, one against the United States Government, albeit it was not impleaded in the complaint. Considering that the United States has not waived or consented to the suit, the complaint against JUSMAG cannot prosper.

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In this jurisdiction, we recognize and adopt the generally accepted principles of international law as part of the law of the land. Immunity of State from suit is one of these universally recognized principles. In international law, “immunity” is commonly understood as the exemption of the state and its organs from the judicial jurisdiction of another state. This is anchored on the principle of the sovereign equality of states under which one state cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium (an equal has no power over an equal)

The doctrine of state immunity from suit has undergone further metamorphosis. The view evolved that the existence of a contract does not, per se, mean that sovereign states may, at all times, be sued in local courts. The complexity of relationships between sovereign states, brought about by their increasing commercial activities, mothered a more restrictive application of the doctrine. Thus, in United States of America vs. Ruiz, we clarified that our pronouncement in Harry Lyons, supra, with respect to the waiver of State immunity, was obiter and “has no value as an imperative authority.” As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign or governmental activities (jure imperii). The mantle of state immunity cannot be extended to commercial, private and proprietary acts (jure gestionis).

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16. LASCO VS. UNRFNRE G.R. Nos. 109095-109107 , February 23, 1995

FACTS: Petitioners were dismissed from their employment with private respondent, the United Nations Revolving Fund for Natural Resources Exploration (UNRFNRE), which is a special fund and subsidiary organ of the United Nations. The UNRFNRE is involved in a joint project of the Philippine Government and the United Nations for exploration work in Dinagat Island. Petitioners are the complainants for illegal dismissal and damages. Private respondent alleged that respondent Labor Arbiter had no jurisdiction over its personality since it enjoyed diplomatic immunity. ISSUE: WON specialized agencies enjoy diplomatic immunity. HELD: Petition is dismissed. This is not to say that petitioner have no recourse. Section 31 of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations states that each specialized agency shall make a provision for appropriate modes of settlement of (a) disputes arising out of contracts or other disputes of private character to which the specialized agency is a party.´ Private respondent is not engaged in a commercial venture in the Philippines. Its presence is by virtue of a joint project entered into by the Philippine Government and the United Nations for mineral exploration in Dinagat Island

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17. WORLD HEALTH ORGANIZATION VS. AQUINO G.R. No. L-35131 , November 29, 1972

FACTS: Dr. Leonce Verstuyft 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: Yes. The executive branch of the Philippines 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 embarrass the executive arm of the government in conducting foreign relations. 27

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.

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18. INTERNATIONAL CATHOLIC MIGRATION COMMISSION VS HON. PURA CALLEJA G.R. no.85750, 28 September 1990 Melencio-Herrera, J.: FACTS: As an aftermath of the Vietnam War, the plight of the Vietnamese refugees fleeing South Vietnam confronted the international community. In response, an agreement was forged between the Philippines and United Nations High Commissioner for Refugees for an operating center in Bataan for processing the refugees for resettlement to other countries. ICMC was one of those accredited by the Philippine Government as a non-profit agency involved in international humanitarian work parallel to International Committee for Migration and International Committee of the Red Cross. TUPAS filed for a petition of certification election for the employees of ICMC which it opposed because it is an international organization which enjoys diplomatic immunity Med-arbiter Bactin sustained ICMC but was reversed by Director Calleja of Bureau of Labor Relations. ICMC filed for preliminary injunction to BLR which the court granted. ISSUE: WON the grant of diplomatic immunities to ICMC extends to immunity from the application of Philippine labor laws. HELD: The grant of immunity from local jurisdiction to ICMC is clearly necessitated by their international character. The objective is to avoid the danger of partiality and interference by the host country in their international workings. The exercise of DOLE in this instance would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure by the host country to the prejudice of member states of the organization and to ensure the unhampered performance of their functions. Moreover, pursuant to Article IV of the MOA between the ICMC and the Philippine government, where there is any abuse of privilege by ICMC, the government is free to withdraw the immunities.

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19. ERNESTO L. CALLADO VS. IRRI G.R. no. 106483, 22 May 1995 FACTS: Callado was a driver at the IRRI. While driving an IRRI vehicle on an official trip to the airport and back to the IRRI, he figured in an accident. IRRI conducted a preliminary investigation and charge some offense to the petitioner. Petitioner submitted his answer to the charges. IRRI issue a notice of termination while petitioner filed a complaint for illegal dismissal before the labor arbiter. IRRI wrote to the LA and Regional Director of DOLE informing them that they enjoy immunity from legal process by virtue of Article III of P.D. 1620 since it is an international organization. The LA consider the defense of immunity no longer a legal obstacle and eventually ordered the reinstatement of the petitioner, although, NLRC set aside the LA’s decision. ISSUE: WON the IRRI waive its immunity form suit which arose from an ER-EE relationship. HELD: IRRI’s immunity from suit is undisputed. Article III of P.D. 1620 provides that the institute shall enjoy immunity from any penal, civil and administrative proceedings, except insofar as that immunity have been expressly waived by the director-general of the institute. A categorical recognition by the executive branch of the government that IRRI enjoys immunities accorded to international organizations which determination has been held to be a political question conclusive upon the courts in order not to embarrass a political department of the government. The grant of immunity to IRRI is clear and an express waiver by its director-general is the only way by which it may relinquish or abandon this immunity.

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20. SEAFDEC VS. NLRC G.R. Nos. 97468-70, September 2 1993, 241 SCRA 580 FACTS : Two labor cases 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. The petitioner, who claims to be an international inter-government organization composed of various Southeast Asian countries, filed a Motion to Dismiss, challenged the jurisdiction of the public respondent in taking cognizance of the above cases. 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. ISSUE: Whether or not the petitioner immune from suit. RULING: The Court ruled for the petitioner. It is beyond question that petitioner SEAFDEC is an international agency enjoying diplomatic immunity. It has already been held in Southeast Asian Fisheries Development Center-Aquaculture Department vs. National Labor Relations Commission (G.R. No. 86773, 206 SCRA 283/1992). Petitioner Southeast Asian Fisheries Development Center -Aquaculture Department (SEAFDEC-AQD) is an international agency beyond the jurisdiction of public respondent NLRC. 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. 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. 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 members states.

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21. INTERNATIONAL COURT OF JUSTICE CONTENTIOUS CASE: THE NORTH SEA CONTINENTAL SHELF CASES Facts: Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and C-D). An agreement on further prolongation of the boundary proved difficult because Denmark and Netherlands wanted this prolongation to take place based on the equidistance principle (B-E and D-E) where as Germany was of the view that, together, these two boundaries would produce an inequitable result for her. Germany stated that due to its concave coastline, such a line would result in her losing out on her share of the continental shelf based on proportionality to the length of its North Sea coastline. The Court had to decide the principles and rules of international law applicable to this delimitation. In doing so, the Court had to decide if the principles espoused by the parties were binding on the parties either through treaty law or customary international law. Issue: Whether or not Germany is under a legal obligation to accept the equidistance-special circumstances principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a customary international law rule or on the basis of the Geneva Convention. Whether or not the 1958 Geneva Convention, and in particular Article 6, binding on Germany.

Ruling: The use of the equidistance method had not crystallised into customary law and the method was not obligatory for the delimitation of the areas in the North Sea related to the present proceedings. Article 6 of the Geneva Convention stated that unless the parties had already agreed on a method for delimitation or unless special circumstances exist, the equidistance method would apply. Germany had signed, but not ratified, the Geneva Convention, while Netherlands and Denmark were parties to the Convention. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general international law on the subject of continental shelf delimitation’ and that it existed independently of the Convention. Therefore, they argued, Germany is bound by the subject matter of Article 6 by way of customary international law.

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22. BLACKMER VS. U.S. 284 U.S. 421

Facts: Petitioner, Harry M. Blackmer, a citizen of the United States and who is a resident of Paris, France, was adjudged guilty of contempt of the Supreme Court of the district of Columbia for failure to respond to subpoenas served upon him in France and requiring him to appear as witness on behalf of the United States at a criminal trial in that court. Two subpoenas were issued, for appearances at different times, and there was a seperate proceeding with respect to each. The two cases were heard together, and a fine of $30,000.00 with cost was imposed in each case,to be satisfied out of the property of the petitioner which had been seized by ther order of the court.The subpoenas were issued and served, and the proceedings to punish for contempt were taken, under the provision of the Statute. The statute provided that whenever the attendance at the trial of a criminal action of a witness abroad, who is a citizen of the United States or domeciled therein, is desired by the Attorney General, or any assistant or district attorney acting under him, the judge of the court in which the action is pendiong may order a subpoena to issue, to be addrresed to a Consul of the United States and to be served by him personally upon the witness with a tender of travelling expenses. Issue: Whether or not the United States can exercise authority or jurisdiction over the person of its citizen who resides in foreign country. Ruling: The Court held that under the Nationality Principle, every state has jurisdiction over its nationals even when those nationals are outside the state.While it appears that the petitioner removed his residence to France, it is undisputed that he was, and continued to be, a citizen of the United States.He continued to owe allegiance to the United States.By virtue of the obligations of citizenship, the U.S. retained its authority over him, and he was bound by its laws made applicable to him in a foreign country.Thus, although resident abroad, the petitioner remained subject to the jurisdiction and authority of the U.S.

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23. SCHOONER EXCHANGE V. MACFADDON 7 Cranch 116

Facts: The vessel was owned by a U.S. citizen, and on a voyage, the vessel was violently and forcibly seized by Napoleon of France. The vessel sailed into an American port and the citizens filed a libel action to reclaim it. The district court denied the libel for lack of jurisdiction. The appellate court reversed. Issue: Whether an American citizen can assert, in an American court, a title to an armed national vessel, found within the waters of the United States

Ruling: No. The court found that the vessel was a public armed vessel commissioned by, and in the service of the emperor of France. The court found that the United States was at peace with France and permitted the vessel to enter the ports as a friendly power. The court held that when the vessel entered American territory, it did so under the implied promise that the vessel was exempt from United States jurisdiction and enjoyed sovereign immunity. Court holds that claim should be dismissed. Foreign Sovereign Immunity Doctrine raised. France, a foreign sovereign, owned the boat. Court notes that Emperor took custody of the vessel, albeit improperly, they still took custody of it. Napoleon using it as an official armed ship for military purposes. Not like used for commercial purposes etc. Instead for a public purpose. Court holds that in cases like this, there is immunity, and jurisdiction is waived. We recognize each other's sovereignty there is implied consent to the principle of foreign sovereign immunity. Court will waive the territorial jurisdiction b/c of this principle.

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24. U.S VS. LOOK CHAW 18 Phil 573 Facts: Steamship “Erroll” bound from Hong Kong to Mexico was searched and inspected at the port of Cebu were a large sack of opium was discovered in the hold and a smaller one in the cabin. Cans of opium were also identified around the firemen’s sleeping area subsequently. The defendant, Look Chaw, acknowledged his ownership and control over the sacks of opium found in the search of the vessel. Also, he sold prepared opium the day the vessel arrived at Cebu. The defendant is charged for unlawful possession of opium and unlawful sale of opium at the Court of First Instance of Cebu. The defendant filed an appeal. Issue: Whether or not the Philippine Court has jurisdiction over a foreign vessel and crimes committed within it. Held: Yes. The Court said that although the mere possession of a thing is of prohibited use in these Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a crime triable by the courts of this country, on account of such vessel being considered as an extension of its own nationality, the same rule does not apply when the article, whose use is prohibited within the Philippines Islands, in the present case, a can of Opium, is landed from the vessel upon Philippine soil, thus committing an open violation of the laws of the land, therefore, as it is a violation of the penal law in force at the place of the commission of the crime, only the court established in the said place itself has competent jurisdiction, in the absence of an agreement under an international treaty.

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25. PEOPLE VS. WONG CHENG 46 Phil 729

Facts: In representation of the Attorney General, The appellant, filed an appeal that urges the revocation of a demurrer sustained by the Court of First Instance of Manila presented by the defendant. The defendant, aboard the merchant vessel Changsa of English nationality anchored in Manila Bay, two and a half miles from the shores of the city, was accused of having illegally smoked opium inside the said vessel, in the court pleading, the defendant contended the lack of jurisdiction of the lower court of the said offense, which resulted to the dismissal of the case. Issue: Whether or not the Philippine courts have the jurisdiction over the crime committed aboard merchant vessels anchored in our jurisdictional waters.

Held: Yes. The crime in the case at bar was committed within our internal waters thus the Philippine courts have a right of jurisdiction over the said offense. The Court said that having the opium smoked within our territorial waters even though aboard a foreign merchant ship is an open violation of the laws in force at the place of the commission of the crime, no court other than that established in the said place has jurisdiction of the offense, in the absence of an agreement under an international treaty. Therefore, the demurrer is revoked and the Court ordered further proceedings.

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26. DE – PERIO-SANTOS V. MACARAIG Gr. No. 94070, April 10, 1992

Facts: Petitioner was appointed on July 24, 2986 ny President Cory Aquino to the position of Permanent Representative of the Philippines to the Philippine Mission to the United nations and other International Organizations with station in Geneva, Switzerland. Petitioner sought a leave of absence from the home office to spend the Eastern Holidays in New York, USA at no expense to the Government. She bought two (2) non-transferable, nonrefundable discounted tickets costing Sfr. 1, 597 for herself and her adopted daughter Pia.

Before they could take the trough however, petitioner was instructed to proceed to Havana, Cuba to attend a UNCTAD conference as Philippines Delegate. Instead of buying an economy roundtrip ticket, petitioner used for the Geneva-New York- Geneva portion of her GenevaNew York – Havana – New York – genevea portion of her trip the two (2) discounted tcikets for herself and Pia. Instead of claiming reimbursement for Sfr. 2,996, she received reimbursement of only Sfr. 1,597 which she spent for the Geneva to New York , and New York to Geneva portion of her trip, thereby effecting savings of Sfr. 1,399 for the Government.

On September 21, 1987, the DFA required her to refund the amount representing her daughther’s round-trip ticket. Her co-workers and some MISUNPHIL employees filed administrative charges against her for incompetence, inefficient, corrupt and dishonest actities, rude and uncouth manners; abusive and high-handed behavior; irregular and highy illegal transactions involving funds of the mission.

Secretary of Foreign Affairs affirmed the BFSA’s recommendation declaring Petitioner guilty of lesser offense of misconduct, instead of dishonesty, mete to her the penalty of reprimand, and recalled her to the hpme office. She filed a motion for recommendation, however, President Aquino issued A.O. No 122 finding petitioner guilty of dishonesty and imposed upon her the penalty of reprimand, with recall to the home office. A petition for certiorari was filed aganst the president’s decision.

Issue: Whether the petitioner’s recall to Manila was a valid exercise power by the Secretary.

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Held: The general rule is that the factual findings of administrative agencies are binding on this Court and controlling on the reviewing authorities if supported by substantial evidence. A review of the records fails to yield any evidence of dishonesty on the part of the petitioner, or an intent to cheat and defraud the government.

Using the discounted tickets was beneficial to the Government for they cost 50% less than an economy roundtrip ticket that the petitioner was entitled to purchase for the same trip if she travelled alone.

The order of the DFA and the Office of the President recalling the petitioner to the home office must be sustained. The Court held that under a secret Executive Order No. 168, which provides that a person who has completed a minimum of one year of service, the Secretary of Foreign Affairs can transfer that person to Manila for reassignment and did not have to be explained and justified. The Secretary, as an alter ego of the President, act with the implied imprimatur of the President herself, unless the act is reprobated by her.

The President is the sole organ of the nation in its external relations and its sole representative with foreign nation. The assignment to and recall from posts of ambassadors are prerogatives of the President, for her to exercise as the exigencies of the foreign service and the interests of the nation may from time to time dictate.

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27. DICKINSON V. DEL SOLAR 1 K.B. 376

Facts: Plaintiff, Mr. Robert Edmund Dickinson, sought to recover damages against the defendant, Emilio Del Solar, for injuries to the plaintiff caused by the negligent driving of a motor car by the defendant or his servant. Del Solar contended that he had a policy of insurance with the third parties, the Mobile and General Insurance Company limited and claimed against those third parties a declaration that he is entitled to be indemnified against any amount that he might be adjudged and ordered to pay to the plaintiff by way of damages in the action for having paid a premium to be insured in order npt to be troubled, and invoking that cannot plead any diplomatic immunity. The third party, the insurance company, in their defence, alleged that is was an express term of the said policy that the third party should, subject to the exceptions and conditions contained therein or endorsed thereon, indemnify the defendant against legal liability to members of the public in respect of accidental personal injury sustained or caused through the driving and/or management of the insured vehicle The third party relied upon certain alleged breaches of conditions. The respondent of the insurance company contended that the defendant cannot invoke the diplomatic immunity since the collision had taken place when the car was being use not for official acts but for private acts.

Issue: Whether or not diplomatic privilege impart immunity from legal liability.

Held: Diplomatic immunity does not impart immunity from legal liability, but only exmption from local jurisdiction. The privilege is the privilege of the Sovereign by whom the diplomatic agent is accredited, and it may be waived with the sanction of the Sovereign or of the official superior of the agent. Waiver of diplomatic privilege by the defendant Del Solar was not sufficient to render the company liable on the policy.

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28. MINUCHER VS. COURT OF APPEALS, G.R. NO. 97765, SEPT. 24, 1992 FACTS: Minucher is an Iranian national who came to the Philippines to study in the University of the Philippines in 1974. Scalzo is as a special agent of the US Drugs Enforcement Agency. He conducts surveillance operations on suspected drug dealers in the Philippines believed to be the source of prohibited drugs shipped to the US and makes the actual arrest. Minucher and one Abbas Torabian was charged for a violation of Act. 6425 (Dangerous Drugs Act of 1972) before the Pasig RTC, such criminal charge was followed by a buy-bust operation conducted by the Philippine police narcotic agents to which Scalzo was a witness for the prosecution. They were acquitted. Minucher filed a complaint for damages against Scalzo. He said that some of his properties were missing like Persian carpets, a painting together with his TV and betamax sets. There was nothing left in his house. He averred that his arrest as a heroine trafficker was well publicized and that when we got arrested, he was not given any food or water for 3days. In his defense, Scalzo asserted his diplomatic immunity as evidenced by a Diplomatic Note. He contended that it was recognized by the US Government pursuant to the Vienna Convention on Diplomatic Relations and the Philippine government itself thru its Executive Department and DFA. ISSUE: Whether or not Scalzo is entitled to diplomatic immunity. RULING: Yes, Scalzo is entitled to diplomatic immunity. The Convention lists 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. Only the heads of missions, as well as members of the diplomatic staff, excluding the members of the administrative, technical and service staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the same be restrictively applied.

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main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic nature. Scalzo was an Assistant Attaché of the US diplomatic mission. An attaché belongs to a category of officers in the diplomatic establishment who may be in charge of its cultural, press, administrative or financial affairs. There could also be a class of attaches belonging to certain ministries or departments of the government, other than the foreign ministry or department, who are detailed by their respective ministries or departments with the embassies such as the military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the like. A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is acting within the directives of the sending state. The consent of the host state is an indispensable requirement of basic courtesy between the two sovereigns. While evidence is wanting to show any similar agreement between the governments of the Philippines and of the United States (for the latter to send its agents and to conduct surveillance and related activities of suspected drug dealers in the Philippines), the consent or imprimatur of the Philippine government to the activities of the United States Drug Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. 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, as well as the participation of members of the Philippine Narcotics Command in the “buy-bust operation” conducted at the residence of Minucher at the behest of Scalzo, 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.

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29. 1969 VIENNA CONVENTION ON THE LAW OF TREATIES

Adopted in Vienna, Austria on 23 May 1969 The States Parties to the present ConventiOn, CONSIDERING the fundamental role of treaties in the history of international relations, RECOGNIZING the ever-increasing importance of treaties as a source of international law and as a means of developing peaceful cooperation among nations, whatever their constitutional and social systems, NOTING that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized, AFFIRMING that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law, RECALLING the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained, HAVING IN MIND the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all States, of non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all, BELIEVING that the codification and progressive development of the law of treaties achieved in the present Convention will promote the purposes of the United Nations set forth in the Charter, namely, the maintenance of international peace and security, the development of friendly relations and the achievement of cooperation among nations, AFFIRMING that the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention, HAVE AGREED AS FOLLOWS:

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PART I. INTRODUCTION Article 1 Scope of the Present Convention The present Convention applies to treaties between States. Article 2 Use of Terms 1. For the purposes of the present Convention: (a) “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; (b) “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty; (c) “full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty; (d) “reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State; (e) “negotiating State” means a State which took part in the drawing up and adoption of the text of the treaty; (f) “contracting State” means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force; (g) “party” means a State which has consented to be bound by the treaty and for which the treaty is in force; (h) “third State” means a State not a party to the treaty; (i) “international organization” means an intergovernmental organization. 2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State. Article 3 International Agreements Not within the Scope of the Present Convention

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The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties. Article 4 Non-Retroactivity of the Present Convention Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States. Article 5 Treaties Constituting International organizations and Treaties Adopted within An International organization The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization. PART II. CONCLUSION AND ENTRY INTO FORCE OF TREATIES SECTION 1. CONCLUSION OF TREATIES Article 6 Capacity of States to Conclude Treaties Every State possesses capacity to conclude treaties. Article 7 Full Powers 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.

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2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ. Article 8 Subsequent Confirmation of An Act Performed without Authorization An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State. Article 9 Adoption of the Text 1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. 2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. Article 10 Authentication of the Text The text of a treaty is established as authentic and definitive: (a) by such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or (b) failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text. Article 11 Means of Expressing Consent to be Bound by A Treaty The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed. Article 12 Consent to be Bound by A Treaty Expressed by Signature 45

1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when: (a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or (c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation. 2. For the purposes of paragraph 1: (a) the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed; (b) the signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty. Article 13 Consent to be Bound by A Treaty Expressed by An Exchange of Instruments Constituting A Treaty The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: (a) the instruments provide that their exchange shall have that effect; or (b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect. Article 14 Consent to be Bound by A Treaty Expressed by Ratification, Acceptance or Approval 1. The consent of a State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such consent to be expressed by means of ratification; (b) it is otherwise established that the negotiating States were agreed that ratification should be required; (c) the representative of the State has signed the treaty subject to ratification; or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation. 2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification. Article 15 Consent to be Bound by A Treaty Expressed by Accession 46

The consent of a State to be bound by a treaty is expressed by accession when: (a) the treaty provides that such consent may be expressed by that State by means of accession; (b) it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or (c) all the parties have subsequently agreed that such consent may be expressed by that State by means of accession. Article 16 Exchange or Deposit of Instruments of Ratification, Acceptance, Approval or Accession Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon: (a) their exchange between the contracting States; (b) their deposit with the depositary; or (c) their notification to the contracting States or to the depositary, if so agreed. Article 17 Consent to be Bound by Part of A Treaty and Choice of Differing Provisions 1. Without prejudice to articles 19 to 23, the consent of a State to be bound by part of a treaty is effective only if the treaty so permits or the other contracting States so agree. 2. The consent of a State to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates.

Article 18 Obligation Not to Defeat the Object and Purpose of A Treaty Prior to Its Entry into Force A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

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SECTION 2. RESERVATIONS Article 19 Formulation of Reservations A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Article 20 Acceptance of and Objection to Reservations 1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides. 2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties. 3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization. 4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: (a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States; (b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State; (c) an act expressing a State’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation. 5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the 48

reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later. Article 21 Legal Elects of Reservations and of Objections to Reservations 1. A reservation established with regard to another party in accordance with articles 19, 20 and 23: (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State. 2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. 3. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation. Article 22 Withdrawal of Reservations and of Objections to Reservations 1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal. 2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time. 3. Unless the treaty otherwise provides, or it is otherwise agreed: (a) the withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been received by that State; (b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation. Article 23 Procedure Regarding Reservations 1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty. 2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. 49

3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. 4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing. SECTION 3. ENTRY INTO FORCE AND PROVISIONAL, APPLICATION OF TREATIES Article 24 Entry into Force 1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text. Article 25 Provisional Application 1. A treaty or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed. 2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty. PART III. OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES SECTION 1. OBSERVANCE OF TREATIES Article 26 “Pacta Sunt Servanda” Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

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Article 27 Internal Law and Observance of Treaties A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46. SECTION 2. APPLICATION OF TREATIES Article 28 Non-Retroactivity of Treaties Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. Article 29 Territorial Scope of Treaties Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. Article 30 Application of Successive Treaties Relating to the Same Subject Matter 1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. 2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States Parties to both treaties the same rule applies as in paragraph 3; (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. 5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.

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SECTION 3. INTERPRETATION OF TREATIES Article 31 General Rule of Interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary Means of Interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. Article 33 Interpretation of Treaties Authenticated in Two or More Languages 1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

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2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted. SECTION 4. TREATIES AND THIRD STATES Article 34 General Rule Regarding Third States A treaty does not create either obligations or rights for a third State without its consent. Article 35 Treaties Providing for Obligations for Third States An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing. Article 36 Treaties Providing for Rights for Third States 1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides. 2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty. Article 37 Revocation or Modification of Obligations or Rights of Third States 1. When an obligation has arisen for a third State in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed. 2. When a right has arisen for a third State in conformity with article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State.

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Article 38 Rules in A Treaty becoming Binding on Third States through International Custom Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such. PART IV. AMENDMENT AND MODIFICATION OF TREATIES Article 39 General Rule Regarding the Amendment of Treaties A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except insofar as the treaty may otherwise provide. Article 40 Amendment of Multilateral Treaties 1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs. 2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in: (a) the decision as to the action to be taken in regard to such proposal; (b) the negotiation and conclusion of any agreement for the amendment of the treaty. 3. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended. 4. The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4 (b), applies in relation to such State. 5. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State: (a) be considered as a party to the treaty as amended; and (b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement. Article 41 Agreements to Modify Multilateral Treaties between Certain of the Parties Only 1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty; or

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(b) the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. 2. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides. PART V. INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES SECTION 1. GENERAL PROVISIONS Article 42 Validity and Continuance in Force of Treaties 1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention. 2. The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty. Article 43 Obligations Imposed by International Law Independently of A Treaty The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfill any obligation embodied in the treaty to which it would be subject under international law independently of the treaty. Article 44 Separability of Treaty Provisions 1. A right of a party, provided for in a treaty or arising under article 56, to denounce, withdraw from or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties otherwise agree. 2. A ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty recognized in the present Convention may be invoked only with respect to the whole treaty except as provided in the following paragraphs or in article 60. 3. If the ground relates solely to particular clauses, it may be invoked only with respect to those clauses where:

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(a) the said clauses are separable from the remainder of the treaty with regard to their application; (b) it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole; and (c) continued performance of the remainder of the treaty would not be unjust. 4. In cases falling under articles 49 and 50, the State entitled to invoke the fraud or corruption may do so with respect either to the whole treaty or, subject to paragraph 3, to the particular clauses alone. 5. In cases falling under articles 51, 52 and 53, no separation of the provisions of the treaty is permitted. Article 45 Loss of A Right to Invoke A Ground for Invalidating, Terminating, Withdrawing from or Suspending the Operation of A Treaty A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be. SECTION 2. INVALIDITY OF TREATIES Article 46 Provisions of Internal Law Regarding Competence to Conclude Treaties 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. Article 47 Specific Restrictions on Authority to Express the Consent of A State If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating States prior to his expressing such consent. 56

Article 48 Error 1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. 2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error. 3. An error relating only to the wording of the text of a treaty does not affect its validity; article 79 then applies. Article 49 Fraud If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty. Article 50 Corruption of A Representative of A State If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty. Article 51 Coercion of A Representative of A State The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect. Article 52 Coercion of A State by the Threat or Use of Force A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. Article 53 Treaties Conflicting with A Peremptory Norm of General International Law (“Jus Cogens”) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of

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States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. SECTION 3. TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES Article 54 Termination of or Withdrawal from A Treaty under Its Provisions or by Consent of the Parties The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States. Article 55 Reduction of the Parties to A Multilateral Treaty below the Number Necessary for Its Entry into Force Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force. Article 56 Denunciation of or Withdrawal from A Treaty Containing No Provision Regarding Termination, Denunciation or Withdrawal 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1. Article 57 Suspension of the Operation of A Treaty under Its Provisions or by Consent of the Parties The operation of a treaty in regard to all the parties or to a particular party may be suspended: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States.

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Article 58 Suspension of the Operation of A Multilateral Treaty by Agreement between Certain of the Parties Only 1. Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty, temporarily and as between themselves alone, if: (a) the possibility of such a suspension is provided for by the treaty; or (b) the suspension in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) is not incompatible with the object and purpose of the treaty. 2. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend. Article 59 Termination or Suspension of the Operation of A Treaty Implied by Conclusion of A Later Treaty 1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject matter and: (a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or (b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time. 2. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties. Article 60 Termination or Suspension of the Operation of A Treaty as A Consequence of Its Breach 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State; or (ii) as between all the parties;

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(b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3. A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. Article 61 Supervening Impossibility of Performance 1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty. 2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. Article 62 Fundamental Change of Circumstances 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. 60

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. 3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. Article 63 Severance of Diplomatic or Consular Relations The severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations established between them by the treaty except insofar as the existence of diplomatic or consular relations are indispensable for the application of the treaty. Article 64 Emergence of A New Peremptory Norm of General International Law (“Jus Cogens”) If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. SECTION 4. PROCEDURE Article 65 Procedure to be Followed with Respect to Invalidity, Termination, Withdrawal from or Suspension of the Operation of A Treaty 1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor. 2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in article 67 the measure which it has proposed. 3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations. 4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes. 61

5. Without prejudice to article 45, the fact that a State has not previously made the notification prescribed in paragraph 1 shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation. Article 66 Procedures for Judicial Settlement, Arbitration and Conciliation If, under paragraph 3 of article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed: (a) any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration; (b) any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations. Article 67 Instruments for Declaring Invalid, Terminating, Withdrawing from or Suspending the Operation of A Treaty 1. The notification provided for under article 65, paragraph 1, must be made in writing. 2. Any act of declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of article 65 shall be carried out through an instrument communicated to the other parties. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the State communicating it may be called upon to produce full powers. Article 68 Revocation of Notifications and Instruments Provided for in Articles 65 and 67 A notification or instrument provided for in article 65 or 67 may be revoked at any time before it takes effect. SECTION 5. CONSEQUENCES OF THE INVALIDITY, TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY Article 69 Consequences of the Invalidity of A Treaty 1. A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force. 2. If acts have nevertheless been performed in reliance on such a treaty: 62

(a) each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed; (b) acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty. 3. In cases falling under article 49, 50, 51 or 52, paragraph 2 does not apply with respect to the party to which the fraud, the act of corruption or the coercion is imputable. 4. In the case of the invalidity of a particular State’s consent to be bound by a multilateral treaty, the foregoing rules apply in the relations between that State and the parties to the treaty. Article 70 Consequences of the Termination of A Treaty 1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties from any obligation further to perform the treaty; (b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination. 2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect. Article 71 Consequences of the Invalidity of A Treaty which Conflicts with A Peremptory Norm of General International Law 1. In the case of a treaty which is void under article 53 the parties shall: (a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; and (b) bring their mutual relations into conformity with the peremptory norm of general international law. 2. In the case of a treaty which becomes void and terminates under article 64, the termination of the treaty: (a) releases the parties from any obligation further to perform the treaty; (b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination, provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law.

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Article 72 Consequences of the Suspension of the Operation of A Treaty 1. Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the operation of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension; (b) does not otherwise affect the legal relations between the parties established by the treaty. 2. During the period of the suspension the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty. PART VI. MISCELLANEOUS PROVISIONS Article 73 Cases of State Succession, State Responsibility and Outbreak of Hostilities The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States. Article 74 Diplomatic and Consular Relations and the Conclusion of Treaties The severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between those States. The conclusion of a treaty does not in itself affect the situation in regard to diplomatic or consular relations. Article 75 Case of An Aggressor State The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State’s aggression. PART VII. DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION Article 76 Depositaries of Treaties 1. The designation of the depositary of a treaty may be made by the negotiating States, either in the treaty itself or in some other manner. The depositary may be one or more States, an international organization or the chief administrative officer of the organization. 2. The functions of the depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their performance. In particular, the fact that a treaty has not entered into force between certain of the parties or that a difference has 64

appeared between a State and a depositary with regard to the performance of the latter’s functions shall not affect that obligation. Article 77 Functions of Depositaries 1. The functions of a depositary, unless otherwise provided in the treaty or agreed by the contracting States, comprise in particular: (a) keeping custody of the original text of the treaty and of any full powers delivered to the depositary; (b) preparing certified copies of the original text and preparing any further text of the treaty in such additional languages as may be required by the treaty and transmitting them to the parties and to the States entitled to become parties to the treaty; (c) receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it; (d) examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the State in question; (e) informing the parties and the States entitled to become parties to the treaty of acts, notifications and communications relating to the treaty; (f) informing the States entitled to become parties to the treaty when the number of signatures or of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited; (g) registering the treaty with the Secretariat of the United Nations; (h) performing the functions specified in other provisions of the present Convention. 2. In the event of any difference appearing between a State and the depositary as to the performance of the latter’s functions, the depositary shall bring the question to the attention of the signatory States and the contracting States or, where appropriate, of the competent organ of the international organization concerned. Article 78 Notifications and Communications Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any State under the present Convention shall: (a) if there is no depositary, be transmitted direct to the States for which it is intended, or if there is a depositary, to the latter; (b) be considered as having been made by the State in question only upon its receipt by the State to which it was transmitted or, as the case may be, upon its receipt by the depositary; 65

(c) if transmitted to a depositary, be considered as received by the State for which it was intended only when the latter State has been informed by the depositary in accordance with article 77, paragraph 1 (e). Article 79 Correction of Errors in Texts or In Certified Copies of Treaties 1. Where, after the authentication of the text of a treaty, the signatory States and the contracting States are agreed that it contains an error, the error shall, unless they decide upon some other means of correction, be corrected: (a) by having the appropriate correction made in the text and causing the correction to be initialled by duly authorized representatives; (b) by executing or exchanging an instrument or instruments setting out the correction which it has been agreed to make; or (c) by executing a corrected text of the whole treaty by the same procedure as in the case of the original text. 2. Where the treaty is one for which there is a depositary, the latter shall notify the signatory States and the contracting States of the error and of the proposal to correct it and shall specify an appropriate time-limit within which objection to the proposed correction may be raised. If, on the expiry of the time-limit: (a) no objection has been raised, the depositary shall make and initial the correction in the text and shall execute a procès-verbal of the rectification of the text and communicate a copy of it to the parties and to the States entitled to become parties to the treaty; (b) an objection has been raised, the depositary shall communicate the objection to the signatory States and to the contracting States. 3. The rules in paragraphs 1 and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the signatory States and the contracting States agree should be corrected. 4. The corrected text replaces the defective text ab initio, unless the signatory States and the contracting States otherwise decide. 5. The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations. 6. Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procès-verbal specifying the rectification and communicate a copy of it to the signatory States and to the contracting States.

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Article 80 Registration and Publication of Treaties 1. Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication. 2. The designation of a depositary shall constitute authorization for it to perform the acts specified in the preceding paragraph. PART VIII. FINAL PROVISIONS Article 81 Signature The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention, as follows: until 30 November 1969, at the Federal Ministry for Foreign Affairs of the Republic of Austria, and subsequently, until 30 April 1970, at United Nations Headquarters, New York. Article 82 Ratification The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations. Article 83 Accession The present Convention shall remain open for accession by any State belonging to any of the categories mentioned in article 81. The instruments of accession shall be deposited with the Secretary- General of the United Nations. Article 84 Entry into Force 1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession. 2. For each State ratifying or acceding to the Convention after the deposit of the thirty-fifth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession. Article 85 Authentic Texts The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

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IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention. DONE at Vienna this twenty-third day of May, one thousand nine hundred and sixty-nine. ANNEX 1. A list of conciliators consisting of qualified jurists shall be drawn up and maintained by the Secretary-General of the United Nations. to this end, every State which is a Member of the United Nations or a party to the present Convention shall be invited to nominate two conciliators, and the names of the persons so nominated shall constitute the list. The term of a conciliator, including that of any conciliator nominated to fill a casual vacancy, shall be five years and may be renewed. A conciliator whose term expires shall continue to fulfill any function for which he shall have been chosen under the following paragraph. 2. When a request has been made to the Secretary-General under article 66, the SecretaryGeneral shall bring the dispute before a conciliation commission constituted as follows: The State or States constituting one of the parties to the dispute shall appoint: (a) one conciliator of the nationality of that State or of one of those States, who may or may not be chosen from the list referred to in paragraph 1; and (b) one conciliator not of the nationality of that State or of any of those States, who shall be chosen from the list. The State or States constituting the other party to the dispute shall appoint two conciliators in the same way. The four conciliators chosen by the parties shall be appointed within sixty days following the date on which the Secretary-General receives the request. The four conciliators shall, within sixty days following the date of the last of their own appointments, appoint a fifth conciliator chosen from the list, who shall be chairman. If the appointment of the chairman or of any of the other conciliators has not been made within the period prescribed above for such appointment, it shall be made by the SecretaryGeneral within sixty days following the expiry of that period. The appointment of the chairman may be made by the Secretary-General either from the list or from the membership of the International Law Commission. Any of the periods within which appointments must be made may be extended by agreement between the parties to the dispute. Any vacancy shall be filled in the manner prescribed for the initial appointment. 3. The Conciliation Commission shall decide its own procedure. The Commission, with the consent of the parties to the dispute, may invite any party to the treaty to submit to it its

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views orally or in writing. Decisions and recommendations of the Commission shall be made by a majority vote of the five members. 4. The Commission may draw the attention of the parties to the dispute to any measures which might facilitate an amicable settlement. 5. The Commission shall hear the parties, examine the claims and objections, and make proposals to the parties with a view to reaching an amicable settlement of the dispute. 6. The Commission shall report within twelve months of its constitution. Its report shall be deposited with the Secretary-General and transmitted to the parties to the dispute. The report of the Commission, including any conclusions stated therein regarding the facts or questions of law, shall not be binding upon the parties and it shall have no other character than that of recommendations submitted for the consideration of the parties in order to facilitate an amicable settlement of the dispute. 7. The Secretary-General shall provide the Commission with such assistance and facilities as it may require. The expenses of the Commission shall be borne by the United Nations.

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30. COMMISSIONER OF CUSTOMS VS. EASTERN SEA TRADING GR No. L-14279, Oct. 31, 1961

FACTS: Several union and garlic shipments imported by respondent consignee from Hong Kong and Japan were seized and subjected to forfeiture proceedings for alleged violation of Section 1363 of the Revised Administrative Code. Allegedly, none of the shipments had the certificate required by Central Bank Circular 44 and 45 for their release. The collector of Customs of Manila rendered judgement declaring the forfeiture of the goods in favor of the Government. Upon appeal, the Commission of Custom upheld the Collector’s decision. Respondent filed a petition for review with the Court of Tax Appeals. The CTA reversed the Commissioner’s decision. CTA Decision based on the following premises: that the Central Bank has no authority to regulate transaction not involving foreign exchange; that the shipments in question are in the nature of no-dollar imports; that, as such, the aforementioned shipments do not involve foreign exchange; that, in so far as Central Bank Circular Nos. 44 and 45 are said to be null and void; and that the seizure and forfeiture of the goods imported from Japan cannot be justified under EO No. 328. Hence, this present petition for review.

ISSUE: Whether the seizure and forfeiture of the goods imported from Japan can be justified under EO 328?

HELD: Yes. Treaties are different from executive agreements. While treaties are formal documents which required ratification by the Senate, executive agreements become binding through executive action without the need of a vote by the Senate or Congress. Further, international agreements involving political issues or changes of national policy and those involving international arrangements of the permanent character usually take the form of treaties; on the other hand, international agreements embodying adjustments of detail carrying out well-established national policy and traditions of those involving arrangements of a more or less temporary nature usually take the form of executive agreements. The right of the Executive to enter into binding agreements without the necessary of subsequent congressional approval has been confirmed by long usage. The decision appealed from is reversed and another one is entered affirming that of the Commissioner of Customs.

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31. SANTOS III V NORTH EASTERN AIRLINES G.R. No. 101538, June 23, 1992

Facts: Petitioner is a minor and a resident of the Philippines. Private respondent Nortwest Orient Airlines (NOA) is a foreign corporation with principal office in Minnesota, U.S.A. and licensed to do business and maintain a branch office in the Philippines. The petitioner purchased from NOA a round-trip ticket in San Francisco, U.S.A. In December 19, 1986, the petitioner checked in the at the NOA counter in the San Francisco airport for his departure to Manila. Despite a previous confirmation and re-confirmation, he was informed that he had no reservation for his flight for Tokyo to Manila. He therefore had to be wait-listed. On March 12, 1987, the petitioner sued NOA for damages in RTC Makati. NOA moved to dismiss the complaint on the ground of lack of jurisdiction. ISSUE: Whether or not Article 28 (1) of the Warsaw Convention is in accordance with the constitution so as to deprive the Philippine Courts jurisdiction over the case HELD: Art. 28. (1) An action for damage must be brought at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.

Does Article 28(1) refer to Jurisdiction or Venue?

...where the matter is governed by the Warsaw Convention, jurisdiction takes on a dual concept. Jurisdiction in the international sense must be established in accordance with Article 28(1) of the Warsaw Convention, following which the jurisdiction of a particular court must be established pursuant to the applicable domestic law. Only after the question of which court has jurisdiction is determined will the issue of venue be taken up. This second question shall be governed by the law of the court to which the case is submitted.

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32. UNITED STATES V. THE DA JEUNE EUGENIE 2 Mason, 409, May Term, 1822.

Facts: This was a libel against the schooner La Jeune Eugenie [Raibaud and Labatut, claimants] for being engaged in the slave trade. By an act passed by the congress of the United States on the 2d of March, 1807, the importation of slaves into any port of the United States was prohibited after the 1st of June, 1808; the time limited by the constitution of the United States, beyond which slaves could not be imported. Under the authority of these acts, and for the purpose of more effectually enforcing the provisions of them, the public armed schooner Alligator, commanded by Robert F. Stockton, Esq. was sent among other vessels to cruise on the coast of Africa early in the year 1821. On the 17th of May last, Captain Stockton fell in with the schooner La Jeune Eugenie at Galenas near Cape Mount, on the western coast of Africa, and captured her on the suspicion of her being engaged in the slave trade; she at that time bearing the French flag, and having French papers.

Issue: Whether or not a suspected vessel on high seas engaged in slave trade be under the jurisdiction of any court.

Held: Yes. The jurisdiction of a nation extends to the whole of its territory, and to its own citizens in every part of the world. The jurisdiction, which a civil society has over the persons of its members, affects them immediately, whether they are within its territories or not.

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33. THE SCOTIA. THE SUPREME COURT OF UNITED STATES.1872. 14 Wallace 170 Facts: The Scotia, a British steamer, steering west by north one-half north, was sailing about midnight on the 8th of April, 1867, near mid-ocean, from Liverpool towards New York. A white light was at her masthead, a green light on her starboard or right side, and a red light on her port or left side, all burning brightly. Sailing at the same hour, equally about midocean, the Berkshire, an American sailing ship, was on her voyage from New Orleans to Havre, and with a wind free, blowing from about south-southwest, was pursuing a course southeast by east one-half east. The Berkshire had no colored lights anywhere, nor any light but a white light, and this was at her bow, fastened to her anchor stock and raised about four feet above her deck. Of course, if the Scotia should mistake this light for a light fastened on the masthead of the Berkshire, she would infer from its apparent proximity to the water that the Berkshire was far off. The Scotia was first seen from the Berkshire bearing one point or so off the ship's port bow, at a distance apparently of five or six miles. Then the steamer's white masthead light only was seen. Immediately on her sighting the steamer, which was at most from fifteen to twenty minutes before the collision, her mate gave an order to luff, and she did luff, so as to head more into the wind. The effect of this was to make her go further to the south and thus diverge farther from the course of the steamer. She continued in this new direction ten or fifteen minutes, when, moving at the rate at which it was proved that the vessels were moving, she could not have been more than one or two miles from the Scotia. Before she bore away, the red light of the steamer was seen by her wheelsman, and probably by her lookout, if not indeed by her master. The Scotia saw the white light on the Berkshire in due time, and first saw it off her port bow, from one to two points. Seeing a white light, the deck officer of the Scotia took the vessel for a steamer, and from the proximity of the light to the water inferred that she was far off, coming in fact just above the horizon, and accounting for the nonappearance of the usual colored lights because he supposed that they had not come up to view. He thus not only supposed the Berkshire to be a steamer, but judged that the supposed steamer was at a much greater distance than it was in fact. After its discovery, the ship's light opened on the steamer's port bow. Soon after, and because of the ship's change of course, her light began to close in on the steamer's bow, and then for the first time was there any apparent danger of collision. Then the Scotia's helm was immediately ported, then hard ported, and observing that the ship's light still closed in, orders were given, in quick succession, to half-speed, slow, reverse, and back, but notwithstanding these orders, which were all promptly obeyed, the vessels came together, and the Berkshire with her cargo went right down in mid-ocean.

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The owners of the Berkshire filed their libel against the Scotia in the district court at New York to recover the loss sustained by the collision. The district court decreed for the respondents stating that the Berkshire was bound to exhibit colored lights, and colored lights alone; and that as she had not done so, she had no remedy. The decree therefore was, that the libel be dismissed, and the circuit court affirming this decree, the case was now here for review. Issue: Whether the Scotia should be held liable for the collision. Ruling: On the 9th of January, 1863, a British order in council, authorized by virtue of the Merchant Shipping Amendment Act of July 29, 1862, 25 and 26 Victoria, made a body of "Regulations for preventing collisions at sea." Among these were "Rules concerning lights," and "Steering and sailing rules." In the first class were these: "LIGHTS FOR STEAMSHIPS" "ART. 3. Sea-going steamships when under way shall carry --" "(a) At the foremast head, a bright white light . . . of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least five miles." "(b) On the starboard side, a green light &c., visible on a dark night, with a clear atmosphere, at a distance of at least two miles." "(c) On the port side, a red light &c., visible on a dark night, with a clear atmosphere, at a distance of at least two miles." "(d) The said green and red side lights shall be fitted with inboard screens, projecting at least three feet forward from the light so as to prevent these lights being seen across the bow." "LIGHTS FOR SAILING SHIPS" "ART. 6. Sailing vessels under way . . . shall carry the same lights as steamships under way, with the exception of the white masthead lights, which they shall never carry." In the steering and sailing rules was this one: "SAILING SHIP AND SHIP UNDER STEAM" 74

"If two ships, one of which is a sailing ship and the other a steamship are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing ship." It is plain that had the ship continued on her course after she first saw the steamer's bright light, there could have been no collision. And still more, had she not afterwards and when near the steamer put her helm to starboard, she would have been out of all danger. Independently, therefore, of any statutory regulations, and looking to the facts with reference to the old maritime law alone, as it was before any modern legislation, we think the Scotia was not chargeable with fault. But we think the Scotia had a right to conclude that the Berkshire was a steamer rather than a sailing vessel, and that, when first seen, she was at the distance of four or five miles, instead of being near at hand. Such was the information given her by the ship's white light, fastened as it was to the anchor stock on deck, and no watchfulness could have enabled her to detect the misrepresentation until it was too late. Both vessels were moving under similar regulations. The Berkshire was an American ship, belonging to the mercantile marine, and she was required by the Act of Congress of April 29, 1864, to carry green and red lights, which she did not carry, and she was forbidden to carry the white light, which she did carry. By exhibiting a white light, she therefore held herself forth as a steamer, and by exhibiting it from her deck, instead of from her masthead, she misrepresented her distance from approaching vessels. It is clear the Scotia would have been justified in taking her for a steamer had she been known to be an American ship. It must be conceded, however, that the rights and merits of a case may be governed by a different law from that which controls a court in which a remedy may be sought. The question still remains what was the law of the place where the collision occurred and at the time when it occurred. Conceding that it was not the law of the United States, nor that of Great Britain, nor the concurrent regulations of the two governments, but that it was the law of the sea, was it the ancient maritime law, that which existed before the commercial nations of the world adopted the regulations of 1863 and 1864, or the law changed after those regulations were adopted? Undoubtedly no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. The violation of maritime law by the Berkshire in carrying a white light (to say nothing of her neglect to carry colored lights) and her carrying it on deck instead of at her masthead were false representations to the Scotia. They proclaimed that the Berkshire was a steamer, and such she was manifestly taken to be. The movements of the Scotia were therefore entirely proper, and she was without fault.

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35. WEST RAND CENTRAL GOLD MINING COMPANY, LIMITED v. THE KING, 1905 2 K.B. 391 FACTS: A petition of right alleged that, before the outbreak of war between the late South African Republic and Great Britain, gold, the produce of a mine in the Republic owned by the suppliants, had been taken from the suppliants by officials acting on behalf of the Government of the Republic; that the Government by the laws of the Republic was liable to return the gold or its value to the suppliants; and that by reason of the conquest and annexation of the territories of the Republic by Her late Majesty the obligation of the Government of the Republic towards the suppliants in respect of the gold was now binding upon His Majesty the King. ISSUE: Whether or not a conquering state is liable to the obligations incurred by the conquered territory before the outbreak of war. RULING: There is no principle of international law by which, after annexation of conquered territory, the conquering State becomes liable, in the absence of express stipulation to the contrary, to discharge financial liabilities of the conquered State incurred before the outbreak of war. Held, on demurrer that the petition disclosed no right on the part of the suppliants which could be enforced against His Majesty in any municipal Court. We therefore allow the demurrer, with costs. Judgment for the Crown.

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36. THORINGTON V. SMITH, SUPREME COURT OF THE U.S., 1868 8 WALLACE 1 Facts: In November of 1864, William Smith and John Hartley purchased land from Jack Thorington near Montgomery, Alabama. The price was $45,000, and they paid $35,000 in confederate money, giving a note to Thorington for $10,000. All parties expected the note to be paid in confederate currency. Near the end of the war, when confederate currency was nearly worthless, Smith and Hartley attempted to pay the note with confederate currency, but Thorington refused to accept that payment and demanded payment in gold, silver, or US currency. Smith and Hartley refused, and in 1867 Thorington filed suit for payment of the $10,000. Smith’s and Hartley’s attorney argued that because the United States didn’t recognize the confederacy as a legal entity, the court couldn’t enforce a contract made with confederate currency. The District Court agreed with this and dismissed the suit. Thorington appealed to the Supreme Court. Issues: Can a contract for the payment of Confederate notes, made during the late rebellion, between parties residing within the so-called Confederate States, be enforced at all in the courts of the United States? Held: It cannot be questioned that the Confederate notes were issued in furtherance of an unlawful attempt to overthrow the government of the United States by insurrectionary force. Nor is it a doubtful principle of law that no contracts made in aid of such an attempt can be enforced through the courts of the country whose government is thus assailed. But was the contract of the parties to this suit a contract of that character? Can it be fairly described as a contract in aid of the rebellion? It is familiar history that early in 1861, the authorities of seven states, supported, as was alleged, by popular majorities, combined for the overthrow of the national Union, and for the establishment within its boundaries of a separate and independent confederation. A governmental organization representing these states was established at Montgomery in Alabama, first under a provisional constitution and afterwards under a constitution intended to be permanent. In the course of a few months, four other states acceded to this confederation, and the seat of the central authority was transferred to Richmond, in Virginia.

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37. NEELY V. HENKEL, SUPREME COURT OF THE U.S., 1901 180 U.S. 109 Facts: On the 28th day of June, 1900, a warrant was issued by Judge Lacombe of the circuit court of the United States for the southern district of New York commanding the arrest of Charles F. W. Neely, who, 'being then and there a public employee, to wit, finance agent of the department of posts in the city of Havana, island of Cuba, on the 6th day of May in the year of our Lord one thousand nine hundred, or about that [180 U.S. 109, 113] time, having then and there charge of the collection and deposit of moneys of the department of posts of the said city of Havana, did unlawfully and feloniously take and embezzle from the public funds of the said island of Cuba the sum of $10,000 and more, being then and there moneys and funds which had come into his charge and under his control in his capacity as such public employee and finance agent, as aforesaid, and by reason of his said office and employment, thereby violating chapter 10, article 401, of the Penal Code of the said island of Cuba,-that is to say, a crime within the meaning of the said act of Congress approved June 6th, 1900, as aforesaid, relating to the 'embezzlement or criminal malversation of the public funds committed by public officers, employees, or depositaries." The warrant directed the accused to be brought before the judge in order that the evidence of probable cause as to his guilt could be heard and considered, and, if deemed sufficient, that the same might be certified, with a copy of all the proceedings, to the Secretary of State, that an order might issue for his return and surrender pursuant to the authority of the above act of Congress. On the same day and upon a like complaint a warrant was issued against Neely by the same judge, commanding his arrest for the crime of having unlawfully and fraudulently, while employed in and connected with the business and operations of a branch of the service of the department of posts in Havana, Cuba, between July 1st, 1899, and May 1st, 1900, embezzled and converted to his own use postage stamps, moneys, funds, and property belonging to and in the custody of that department, which had come into his custody and under his authority as such employee, to the amount of $57,000, in violation of 37 and 55 of the Postal Code of Cuba. Neely having been arrested under these warrants, application was made by the United States for his extradition to Cuba. The accused moved to dismiss the complaints upon various grounds. That motion having been denied, the case was heard [180 U.S. 109, 114] upon evidence. In disposing of the application for extradition, Judge Lacombe said: 'In the opinion of this court, the government has abundantly shown that there is probable cause to believe that Neely is guilty of the offense of 'embezzlement or criminal malversation of the public funds,' he being at the time a 'public officer,' or 'employee,' or 'depositary.' Such an offense is obnoxious to the Penal Code in force in Cuba, article 401 of which provides that 'the public employee who, by reason of his office, has in his charge public funds or property, and who should take (or consent that others should take) any part therefrom, shall be punished,' etc. 78

Issue: Whether or not the said article applies only to persons in the public employ of Spain. Held: There is no merit in the contention that this article applies only to persons in the public employ of Spain. Spain having withdrawn from the island, its successor has become the 'public' to which the Code, remaining unrepealed, now refers. The suggestion that under this Penal Code no public employee could be prosecuted or punished until his superior had heard the case and turned the offender over to the criminal law for trial is matter of defense, and need not be considered here. The evidence shows probable cause to believe that the prisoner is guilty of an offense defined in the act of June 6th, 1900, and which is also a violation of the criminal laws in Cuba, and upon such evidence he will be held for extradition.

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38. THE KING VS THE EARL OF CREWE, EX PARTE SEKGOME. 1910 2 K.B. 576 Facts: This case related to the English Court’s common law jurisdiction to issue a writ of habeas corpus to a native chief of Bechuanaland, the latter being a territory where Britain is its protectorate. The Protectorate was not part of the Crown’s dominions within the meaning of the 1862 Act,28 nor did the British Government assert sovereignty over it. It did, however, control and administer the territory. On the evidence of the Secretary of State for the Colonies it was merely a “foreign country within which [the Crown] had power and jurisdiction by treaty, grant, usage, sufferance, or other lawful means * * * and that it had never been acquired by settlement, or ceded to, or conquered, or annexed by His Majesty or any of his Royal predecessors * * * The writ of Habeas Corpus was sought on behalf of an individual who claimed to be the chief of a native tribe but nevertheless a British subject. Counsel for the respondent (the Secretary of State for the Colonies) conceded that it was immaterial whether or not the applicant was a British subject. The Court nevertheless considered that concession to have been well-founded and to accurately represent the law. Moreover, the majority (Lord Justice Vaughan Williams and Lord Justice Farwell) held that the writ ran to the Protectorate, notwithstanding that it was not a British colony or dominion. Issue: WON the writ of habeas corpus to native chief can be issued notwithstanding that the protectorate/Bechuanaland is not part of the Crown’s dominion nor did the British Government assert sovereignty over it.

Ruling: Yes. It was the fact of presence in territory under the control of the State and the assertion of power over the individual by the State—not sovereignty or nationality based ties to the State—which triggered the protection of the writ. He, Lord Justice William, said that “the writ may be addressed to any person who has such control over the imprisonment that he could order the release of the prisoner.” Additionally, Lord Justice Farwell also indicated “Where a man who owes obedience to laws imposed by England is imprisoned and kept imprisoned without trial in a place maintained by England, and placed under the control of an officer of the Crown who acts under the orders of the Colonial Office, and who has acted in the particular case with the assent and approval of and is supported by the Colonial Office, I should be slow to conclude that the Secretary of State could not be called upon to make a return to the writ.”

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39. THE THREE FRIENDS, US SUPREME COURT, 1897 166 US 1 Facts: The steamer Three Friends which was fitted out on the seventh of May, 1896, in the St. John's River, Florida, with supplies, arms, and munitions intended for the service of the Cuban insurgents then in rebellion against the King of Spain, was seized by the collector of customs and libelled on behalf of the United States for violation of section 5283 of the Revised Statutes, the material portion of which provided for the forfeiture of any vessel and its equipment which should be fitted out in the United States for the purpose of waging hostilities in "the service of any foreign prince or state, or of any colony, district, or people. “ The owners of the vessel filed exceptions to the libel on the ground that it did not show any intent that the vessel should be employed “in the service of a foreign prince, or state, or of a colony, district or people with whom the United States are at peace," or of "any body politic recognized by or known to the United States as a body politic.” These exceptions having been sustained, an appeal was taken by the United States to the Circuit Court of Appeals from which the case was brought on a writ of certiorari to this court. Issue:

WON the owners of the vessel’s contention are tenable? Ruling: No. as agreeably to the principles of international law and the reason of the thing, the recognition of belligerency, while not conferring all the rights of an independent state, concedes to the Government recognized the rights, and imposes upon it the obligations, of an independent state in matters relating to the war being waged, no adequate ground is perceived for holding that acts in aid of such a Government are not in aid of a state in the sense of the statute. Even if the word "state" as previously employed admitted of a less liberal signification, why should the meaning of the words "colony, district, or people" be confined only to parties recognized as belligerent? Neither of these words is used as equivalent to the word "state," for they were added to enlarge the scope of a statute which already contained that word. The statute does not say foreign colony, district, or people, nor was it necessary, for the reference is to that which is part of the dominion of a foreign prince or state, though acting in hostility to such prince or state. Nor are the words apt if confined to a belligerent. As argued by counsel for the Government, an insurgent colony under the act is the same before as after the recognition of belligerency, as shown by the instance of the colonies of Buenos Ayres and Paraguay, the belligerency of one having been recognized but not of the other, while the statute was plainly applicable to both. Nor is district an appropriate designation of a recognized power de facto, since such a power would represent not the territory actually held but the territory covered by the claim of sovereignty. And the word "people," when not used as the equivalent of state or nation, must apply to a body of persons less than a state or nation, and this meaning would be satisfied by considering it as applicable to any consolidated political body.

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40. THE SAPPHIRE CASE, U.S. SUPREME COURT, 1871 11 Wallace, 164 Facts:

French vessel Euryale had a collision with the vessel Sapphire .Louis Napoleon as Emperor of France filed a suit in California court a civil claim for damages in connection with the collision but was subsequently deposed while the case was pending. Issue:

WON the suit has been abated / extinguished by the recent deposition of the Emperor?

Ruling:

The US Supreme Court says; The reigning sovereign represents the national sovereignty, and the sovereignty is perpetual and continuous. On the deposition of the Emperor sovereignty did not change but merely the person or persons to whom it resides. A change in such representative works no change in the national sovereignty or its rights. In the case at bar, the next successor recognized by the government is competent to carry on a suit already commenced and receive the fruits of it.

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41. KEITH V. CLARK 97 US 454 Facts: The plaintiff in error, who was plaintiff below, sued the defendant for the sum of $40, which he had paid in lawful money under protest for taxes due the State of Tennessee, after he had tendered to the defendant that sum in the circulating notes of the Bank of Tennessee, which defendant refused to receive. The suit was commenced before a justice of the peace, taken by appeal to the Common-Law Chancery Court of Madison County, and from there to the Supreme Court of Tennessee, and by writ of error from this court it is now before us for review. In all the trials in the State courts, judgment was rendered against the plaintiff. The jurisdiction of this court is denied again.

Issue: WON the appeallate court has jurisdiction over this case. WON the act of state doctrine applies.

Ruling: 1. That question was, whether the twelfth section of the charter of the bank constituted a contract which brought the issues of the bank after the 6th of May, 1861, within the protective clause of the Constitution of the United States against impairing the obligation of contracts by State laws. Of that question this court has jurisdiction, and we proceed to its consideration. It is, in substance, that what was called the State of Tennessee prior to the 6th of May, 1861, became, by the ordinance of secession passed on that day, subdivided into two distinct political entities, each of which was a State of Tennessee. One of them was loyal to the Federal government, the other was engaged in rebellion against it. One State was composed of the minority who did not favor secession, the other of the majority who did. That these two States of Tennessee engaged in a public war against each other, to which all the legal relations, rights, and obligations of a public war attached. That the government of the United States was the ally of the loyal State of Tennessee, and the confederated rebel States were the allies of the disloyal State of Tennessee. That the loyal State of Tennessee, with the aid of her ally, conquered and subjugated the disloyal State of Tennessee, and by right of conquest imposed upon the latter such measure of punishment and such system of law as it chose, and that by the law of conquest it had the right to do this. That one of the laws so imposed by the conquering State of Tennessee on the conquered State of Tennessee was this one, declaring that the issues of the bank during the temporary control of affairs by the rebellious State was to be held void; and that, as conqueror and by right to conquest, the loyal State had power to enact this as a valid law.

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It is a sufficient answer to this fanciful theory that the division of the State into two States never had any actual existence; that, as we shall show hereafter, there has never been but one political society in existence as an organized State of Tennessee, from the day of its admission to the Union in 1796 to the present time. That it is a mere chimera to assert that one State of Tennessee conquered by force of arms another State of Tennessee, and imposed laws upon it; and, finally, that the logical legerdemain by which the State goes into rebellion, and makes, while thus situated, contracts for the support of the government in its ordinary and usual functions, which are necessary to the existence of social life, and then, by reason of being conquered, repudiates these contracts, is as hard to understand as similar physical performances on the stage. 2. We cannot agree to this doctrine. It is opposed by the inherent powers which attach to every organized political society possessed of the right of self-government; it is opposed to the recognized principles of public international law; and it is opposed to the wellconsidered decisions of this court. 'Nations or States,' says Vattel, 'are bodies politic, societies of men united together for the promotion of their mutual safety and advantage by the joint efforts of their combined strength. Such a society has her affairs and her interests. She deliberates and takes resolutions in common, thus becoming a moral person who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.' Law of Nations, sect. 1. Cicero and subsequent public jurists define a State to be a body political or society of men united together for the purpose of promoting their mutual safety and advantage by their combined strength. Wheaton, International Law, sect. 17. Such a body or society, when once organized as a State by an established government, must remain so until it is destroyed. This may be done by disintegration of its parts, by its absorption into and identification with some other State or nation, or by the absolute and total dissolution of the ties which bind the society together. We know of no other way in which it can cease to be a State. No change of its internal polity, no modification of its organization or system of government, nor any change in its external relations short of entire absorption in another State, can deprive it of existence or destroy its identity. Id., sect. 22.

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42. TERLINDEN v. AMES(1902) FACTS: August 15, A. D. 1901, Dr. Walther Wever, Imperial German Consul at Chicago, filed his complaint before Mark A. Foote, Esq., a commissioner of the United States and specially authorized to issue warrants for the apprehension of fugitives from justice of foreign governments, and charging that one Gerhard Terlinden, alias Theodor Graefe, a subject of the Kingdom Dom of Prussia, did, within the first six months of the year 1901, 'commit within the jurisdiction of the said Kingdom of Prussia various crimes of forgery and counterfeiting and the utterance of forged papers,' in that as a director of the Gerhard Terlinden Stock Company, organized and doing business in said Kingdom, said Terlinden forged and counterfeited certain certificates of the stock of said company amounting to about a million and a half of marks, and put out, uttered, and disposed of the same to Robert Suermont of the city of Aachen, Prussia. On or about the 1st day of July, 1901, he fled into the jurisdiction of the United States of America for the purpose of seeking an asylum therein and that the crimes with which he was charged were crimes embraced within the treaty of extradition between the United States and the Kingdom of Prussia, concluded on the 16th day of June, 1852, and ratified May 30, 1853. It was therefore prayed that a warrant be issued for the apprehension and commitment of Terlinden 'in order that the evidence of his criminality may be inquired into. The complaint was duly verified and the commissioner issued his warrant, which was placed in the hands of John C. Ames, United States marshal in and for the northern district of Illinois, and Terlinden was apprehended and held to be dealt with according to law. Subsequently and on September 25, 1901, Dr. Wever, in his capacity aforesaid, made another complaint before the commissioner. On the 17th of October, before any evidence was taken before the commissioner, Terlinden presented to the district court of the United States for the northern district of Illinois his petition praying for a writ of habeas corpus on the following grounds: (1). No treaty or convention for the extradition of fugitives from justice exists between the United States and the German Empire. (2) That the treaty or convention for the extradition of fugitives from justice concluded between the United States and the Kingdom of Prussia was terminated by the creation of the German Empire and the adoption of the Constitution of said Empire in A. D. 1871. (3)Said complaint does not charge an extraditable offense under the provisions of the treaty of 1852, concluded between the United States and Prussia and other German states, were said treaty still in force and of binding effect. (4)Your petitioner is not guilty of any extraditable offense under the provisions of said treaty of 1852, were said treaty still in force and of binding effect. (5) All proceedings had or attempted to be had before said commissioner under said complaint and warrant are illegal, void, and without authority in law because said commissioner did not have jurisdiction over the person of this petitioner.

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Issue: Whether or not its treaty obligations including extradition could be exercised in the name of its King notwithstanding the fact that he had subsequently acquired “the title of German emperor”. Ruling: Treaties of extradition are executory in their character. The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States. It is their duty to interpret it and administer it according to its terms. And it would be impossible for the Executive Department of the government to conduct our foreign relations with any advantage to the country, and fulfil the duties which the Constitution has imposed upon it, if every court in the country was authorized to inquire and decide whether the person who ratified the treaty on behalf of a foreign nation had the power, by its Constitution and laws, to make the engagements into which he entered.' Extradition may be sufficiently defined to be the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender. In the United States, the general opinion and practice have been that extradition should be declined in the absence of a conventional or legislative provision.

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43. LODEWYK JOHANNES DE JAGER VS. THE ATTORNEY-GENERAL OF NATAL (1907) Facts: The petitioner was adjudged guilty of high treason and was sentenced to five years' imprisonment and to pay a fine of £5000. It alleged that the petitioner was a burgher of the late South African Republic, who for ten years and at the date of the outbreak of war in 1899 was peacefully residing in Waschbank, in Natal, and continued to do so after the battle of Elandslaagte on October 21 of that year while the Boer forces occupied that part of Natal in which Waschbank is situated and the British forces had retired to Ladysmith, whereby he lost the effective protection of Her late Majesty; that the Boers administered the government and remained in occupation till March, 1900; that the petitioner was thereupon compellable to join, and did join, the Boer forces, and aided and assisted them both as commandant and as a commissioner and justice of the peace; and that after judgment as aforesaid he had undergone imprisonment and paid the fine imposed. The petition sought special leave to appeal on the grounds that the judgment failed to distinguish between the allegiance which the petitioner owed to Her late Majesty while within her protection and the allegiance which he owed to the late South African Republic, between his rights and duties with regard to hostilities whilst he was actually enjoying the protection of the Queen and after he had ceased to enjoy. Issue: Whether or not Lodewyk Johannes, Petitioner is guilty of treason based on his service to the invading country. Ruling: It is an old law that an alien resident within British territory owes allegiance to the Crown, and may be indicted for high treason, though not a subject. It was not alleged against him that he had joined the invading forces prior to their having become established in possession and government of the territory. Thereupon, as a burgher of the Republic, he was compellable to serve. His duty of allegiance to the Queen had ceased, and his acts of service to his own Government were not treasonable as alleged. Their Lordships are of opinion that there is no ground for this contention. The questions raised are, no doubt, of general importance, but their Lordships do not consider the case to be attended with doubt, and they will therefore humbly advise His Majesty to dismiss this petition.

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44. AMERICAN BANANA CO. v. UNITED FRUIT CO.(1909) FACTS: The plaintiff is an Alabama corporation, organized in 1904. The defendant is a New Jersey corporation, organized in 1899. Long before the plaintiff was formed, the defendant, with intent to prevent competition and to control and monopolize the banana trade, bought the property and business of several of its previous competitors, with provision against their resuming the trade, made contracts with others, including a majority of the most important, regulating the quantity to be purchased and the price to be paid, and acquired a controlling amount of stock in still others. For the same purpose it organized a selling company, of which it held the stock that by agreement sold at fixed prices all the bananas of the combining parties. By this and other means it did monopolize and restrain the trade and maintained unreasonable prices. The defendant being in this ominous attitude, one McConnell in 1903 started a banana plantation in Panama, then part of the United States of Colombia, and began to build a railway (which would afford his only means of export), both in accordance with the laws of the United States of Colombia. He was notified by the defendant that he must either combine or stop. Two months later, it is believed at the defendant's instigation, the governor of Panama recommended to his national government that Costa Rica be allowed to administer the territory through which the railroad was to run, and this although that territory had been awarded to Colombia under an arbitration agreed to by treaty. The defendant, and afterwards, in September, the government of Costa Rica, it is believed by the inducement of the defendant, interfered with McConnell. As a result of the defendant's acts the plaintiff has been deprived of the use of the plantation, and the railway, the plantation and supplies have been injured. The defendant also, by outbidding, has driven purchasers out of the market and has compelled producers to come to its terms, and it has prevented the plaintiff from buying for export and sale. This is the substantial damage alleged. There is thrown in a further allegation that the defendant has "sought to injure" the plaintiff's business by offering positions to its employees and by discharging and threatening to discharge persons in its own employ who were stockholders of the plaintiff. But no particular point is made of this. It is contended, however, that, even if the main argument fails and the defendant is held not to be answerable for acts depending on the cooperation of the government of Costa Rica for their effect, a wrongful conspiracy resulting in driving the plaintiff out of business is to be gathered from the complaint and that it was entitled to go to trial upon that. ISSUE: Does US Court have jurisdiction over a U.S. corporation who breaks U.S. law in another nation’s territory? RULING/DOCTRINE: NO.

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While a country may treat some relations between its own citizens a governed by its own law in regions subject to no sovereign, like the high seas, or to no law recognized as adequate, the general rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where it is done. Law is a statement of the circumstances in which the public force will be brought to bear upon men through the courts, but the word commonly is confined to such prophecies or threats when addressed to persons living within the power of the courts. A statute will, as a general rule, be construed as intended to be confined in its operation and effect to the territorial limits within the jurisdiction of the lawmaker, and words of universal scope will be construed as meaning only those subject to the legislation. The prohibitions of the Sherman Anti-Trust Law of July 2, 1890, c. 647. 26 Stat. 209, do not extend to acts done in foreign countries even though done by citizens of the United States and injuriously affecting other citizens of the United States. Sovereignty means that the decree of the sovereign makes law, and foreign courts cannot condemn the influences persuading the sovereign to make the decree. Rafael v. Verelst, 2 Wm.Bl. 983, 1055, distinguished. Acts of soldiers and officials of a foreign government must be taken to have been done by its order. A conspiracy in this country to do acts in another jurisdiction does not draw to itself those acts and make them unlawful if they are permitted by the local law.

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45. STATE OF LOUISIANA v. STATE OF MISSISSIPPI(1906) Facts: The state of Louisiana, by leave of court, filed her bill against the state of Mississippi, October 27, 1902, to obtain a decree determining a boundary line between the two states, and requiring the state of Mississippi to recognize and observe the line so determined. The bill alleged: That the state of Louisiana was admitted into the Union of the United States of America by the act of Congress found in chapter 50 of the United States Statutes at Large, vol. 2, page 701, approved April 8th, 1812, and therein the boundaries of the said state of Louisiana, in the preamble of said act. That the territory lying adjacent to, and to the eastward of, the state of Louisiana, is the state of Mississippi, which latter state was admitted into the Union of the United States of America by the act of Congress found in the United States Statutes at Large, vol. 3, chap. 23, page 348, approved March 1st, 1817, whereby the inhabitants of the western part of the then Mississippi territory were authorized to form for themselves a state constitution and to be admitted into the Union, the boundaries of the thento-be-created state. That the islands included between the shore line and the southern boundary of the state of Mississippi are the islands heretofore described, viz.: the western end of Petit Bois island, with all of Horn island, Ship island, and Cat island, and the small islands north of them, those islands being large, and well known to Congress at the time of the passage of the act, all of which islands and the southern boundary of the state of Mississippi will more fully appear from the diagram No. 3, made a part of this bill. The bill then set forth that 'to avoid an armed conflict between the sheriff and officers of the parish of St. Bernard, in the state of Louisiana, and the sheriff and officers of the county of Harrison in the state of Mississippi,' a meeting of citizens of Louisiana was called by the governor of that state, which met in New Orleans, and resulted in the appointment by the governor of commissioners on the part of Louisiana 'to consider the determination of the water boundary line between the two states, and arrange for its easy location and identification by a proper system of buoys,' and the request that the governor of Mississippi appoint like commissioners on the part of that state, which appointment was made. The joint commission met and considered the subject, and subsequently the Mississippi commission reported its inability to agree with the Louisiana commission, stating, among other things, 'It is apparent that the only hope of settlement is a friendly suit in the Supreme Court of the United States, and we respectfully suggest that course. Thereupon the state of Mississippi, on leave, filed her answer and cross bill. The cross bill averred that the southern boundary line of the state of Mississippi was fixed by the act of Congress, approved March 1, 1817. Issue: Whether or not the decree obtained by state of Louisiana determines the boundary between the two states. Ruling: The boundary of Louisiana separating her from the state of Mississippi to the east is the thread of the channel of the Mississippi river, and this extends south until it reaches the 31st degree of north latitude and then runs directly east along that degree until Pearl river is reached; thence south along the channel of that river to Lake Borgne. Pearl river flows into Lake Borgne, Lake Borgne into Mississippi sound, and Mississippi sound into the open Gulf of Mexico through, among other outlets, South pass separating Cat island from Isle a Pitre. If 90

the doctrine of the thalweg is applicable, the correct boundary line separating Louisiana from Mississippi in these waters is the deep- water channel. The term 'thalweg' is commonly used by writers on international law in definition of water boundaries between states, meaning, the middle, or deepest, or most navigable channel. And while often styled 'fairway' or 'midway' or 'main channel,' the word itself has been taken over into various languages. Thus, in the treaty of Lunevillc, February 9, 1801, we find 'le thalweg de l'Adige,' 'le thalweg du Rhin,' and it is similarly used in English treaties and decisions, and the books of publicfsts in every tongue. The official maps of Mississippi recognized Louisiana's ownership of the disputed territory. The state map of October 26, 1866, which was approved by Governor Humphrey and also by Governor Alcorn, did this; and other maps, as the official map of Mississippi, published under an act of the legislature of that state on March 8, 1882; Rand McNally's section map of Mississippi, compiled from the records of the office of the surveyor general of the board of immigration and agriculture, Jackson, Mississippi; and the railroad commissioners' map of Mississippi gave like recognition. The only exception seems to be a map of the railroad commission, issued in 1904, two years after this suit was instituted, wherein, on the 18-mile theory, Mississippi for the first time cartographically extended her claims into the St. Bernard, Louisiana, peninsula. The record contains much evidence of the exercise by Louisiana of jurisdiction over the territory in dispute, and of the general recognition of it by Mississippi as belonging to Louisiana. Apparently Louisiana had exercised complete dominion over it from 1812 with the acquiescence of Mississippi, unless the fact that the latter made a general reference to islands within 6 leagues of her shore in her Code of 1880 indicated otherwise. But the evidence fails to satisfy us that she attempted any physical possession or control until after 1900. The few instances referred to as showing that Mississippi asserted rights in the disputed area are of little weight and require no discussion. Our conclusion is that complainant is entitled to the relief sought. Decree accordingly. As the act admitting Mississippi was passed five years after the act admitting Louisiana, Congress could not take away any portion of Louisiana and give it to Mississippi. Section 3, Art. IV of the Constitution does not permit the claims of any particular state to be prejudiced by the exercise of the power of Congress therein conferred.Acts of Congress passed at different times for the admission of different states where their respective subjects are not identical with or similar to each other do not form part of a homogeneous whole, of a common system, so as to allow a claimant under the later act to claim that it changed the earlier act by construction, and the rule of in pari materia does not apply.

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46. THE ANNA HIGH COURT OF ADMIRALTY OF GREAT BRITAIN. 1805. 5C. ROBINSON, 373 Facts:

The case regarding a ship under American colors, with a cargo of logwood and about 13,000 dollars on board,bound from Spanish main to New Orleans, and was captured by the Minerva privateer near the mouth of the River Mississippi. A claim was given under the direction of the American Ambassador for the ship and cargo, "When the ship was brought into this country a claim was given of a grave nature, alledging a violation of the territory of the United States of America. This great leading fact has very properly been made a matter of much discussion, and charts have been laid before the Court to show the place of capture, though with different representations from the adverse parties. The capture was made, it seems, at the mouth of the River Mississippi, and, as it is contended in the claim, within the boundaries of the United States. Since the introduction of fire-arms that distance has usually been recognized to be about three miles from the shore. but it so happens in this case, that a question arises as to what is to be deemed the shore, since there are a number of little mud islands composed of earth and trees drifted down by the river, which form a kind of portico to the main-land Issue: 1. Whether the mud islands are to considered shore from where the 3 mile should start? 2. Whether the seizure was lawful? Ruling: 1. It is contended that these are not to be considered as any part of the territory of America, that they are a sort of “no man’s land” not of consistency enough t support the purpose of life, uninhabited and resorted to, only for shooting and taking birds nest, It is argued that the line of territory is to be taken only from the bails, which is a fort raised on made land by the former Spanish possessors. 2. The seizure was unlawful for the captors must understand that they are not to station themselves in the mouth of a neutral river, for the purpose of exercising the rights of war from that river.

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47. MORTENSEN V. PETERS, HIGH COURT OF JUDICIARY OF SCOTLAND, 1906 14 Scot Law Times Reports, 227 Facts: The facts of this case are that the appellant being a foreign subject, and master of a vessel registered in a foreign country, exercised the method of fishing known as otter trawling at a point with in the Moray Firth, more than three miles from the shore, but to the west of a line drawn from Duneansby Head in Caithness to Rattray point in Aberdeenshire, that being thereafter found within British territory, to wit, at Grimsby, he was summoned to the Sheriff court at Dornoch to answer to a complaint against him for having contravened the 7th section of the Herring Fishery Act, 1889, and the bye-law of the Fishery Board, thereunder made, and was convicted. Issue: 1. Whether, in view of the facts stated as proved, and having regard to the bye-laws and the enactments of the sections of the statutes above mentioned, the appellant was subject to the jurisdiction of Dornoch sheriff court? Ruling: The Statutes and bye-laws on which this prosecution is founded are municipal statutes and bye-laws and, therefore, only confer jurisdiction over (1) British subjects, and (2) foreign subjects within British Territory. There is no reservation in the statutes of the rights of foreigners, but the words “any person” mean “any person over whom the courts have jurisdiction.” Our legislation is primarily territorial. it can atleast in no case apply to foreigners outside British territory

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48. UNITED STATES SUPREME COURT, CHURCH VS. HUBBART February 1, 1804 FACTS: John Barker Church, Jun. instituted an action against the defendant on two policies of insurance, whereby he had caused to be insured twenty dollars upon the cargo of the brigantine Aurora, Shaler, from New York, to one or two Portuguese ports on the coast of Brazil and from then back to New York. The destination of the vessel after she left Rio Janeiro was by order of the plaintiff to be kept secret. Mr. Church was arrested and the Aurora and the vessel were taken possession of by a body of armed men and carried into Para. The trade to Para was prohibited. The vessel and the cargo were condemned by the governor of the capital of Para as having been seized for illicit trade. The loss for which the defendant, as an insurer, was not liable, according to the exception in both policies. To prove that the trade to Para was illicit, the defendant offered a copy of a law of Portugal entitled “a law by which foreign vessels are prohibited from entering the ports of India, Brazil, Guiana and Islands and other provinces of Portugal”. The terms of this law expressly prohibit the trade and subject the vessel and cargo, violating its provisions, to seizure and forfeiture, and the persons engaged in the same to the punishment of death. It is contended that this vessel was not within the Portuguese dominions, and therefore not in violation of any of their laws. It falls within the meaning and true intent of the exceptions in the policies, viz. ‘that the insurers should not be liable for seizure by the Portuguese for illicit trade,’ and that you ought to find for the defendant. That the circuit court erred. The words themselves are not essentially variant from each other. The unlawfulness of the voyage was perfectly understood by both parties. ISSUE:

Whether or not the brig Aurora and cargo (insured by these policies) were seized by the Portuguese for (or on account of) illicit trade. RULING: In Church v. Hubbart (1804) 6 U.S. 187, the Supreme Court observed that even an attempt to violate the law injures the state. Any attempt to violate the laws made to protect this right, is an injury to itself which it may prevent, and it has a right to use the means necessary for its prevention. These means do not appear to be limited within any certain marked boundaries, which remain the same at all times and in all situations. If they are such as unnecessarily to vex and harass foreign lawful commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to. Chief Justice Marshall writing for the Court in Church v. Hubbart, said: "In different seas and on different coasts, a wider or more contracted range, in which to exercise the vigilance of the government, will be assented to. Thus in the channel, where a very great part of the commerce to and from all the north of Europe, passes through a very 94

narrow sea, the seizure of vessels on suspicion of attempting an illicit trade, must necessarily be restricted to very narrow limits, but on the coast of South America, seldom frequented by vessels but for the purpose of illicit trade, the vigilance of the government may be extended somewhat further; and foreign nations submit to such regulations as are reasonable in themselves, and are really necessary to secure that monopoly of colonial commerce, which is claimed by all nations holding distant possessions."

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49. U.S. SUPREME COURT, THE MARIANNA FLORA, 24 U.S. 24 U.S. (11 Wheat.) FACTS: On the morning of 5 November, 1821, the Alligator and the Marianna Flora were mutually descried by each other on the ocean at the distance of about nine miles, the Alligator being on a cruise against pirates and slave traders under the instructions of the President, and the Portuguese vessel being bound on a voyage from Bahia to Lisbon with a valuable cargo on board. The two vessels were then steering on courses nearly at right angles with each other, the Marianna Flora being under the lee bow of the Alligator. A squall soon afterwards came on which occasioned an obscuration for some time. Upon the clearing up of the weather, it appeared that the Marianna Flora had crossed the point of intersection of the courses of the two vessels, and was about four miles distant on the weather bow of the Alligator. Soon afterwards, she shortened sail and hove to, having at this time a vane or flag on her mast, somewhat below the head, which, together with her other maneuvers, induced Lieutenant Stockton to suppose she was in distress or wished for information. Accordingly he deemed it his duty, upon this apparent invitation, to approach her, and immediately changed his course towards her. When the Alligator was within long shot of the Portuguese ship, the latter fired a cannon shot ahead of the Alligator and exhibited the appearance and equipments of an armed vessel. Lieutenant Stockton immediately hoisted the United States flag and pendant. The Marianna Flora then fired two more guns, one loaded with grape, which fell short, the other loaded with round shot, which passed over and beyond the Alligator. This conduct induced Lieutenant Stockton to believe the ship to be a piratical or a slave vessel, and he directed his own guns to be fired in return; but as they were only carronades, they did not reach her. The Alligator continued to approach, and the Marianna Flora continued firing at her at times until she came within musket shot, and then a broadside from the Alligator produced such intimidation that the Portuguese ship almost immediately ceased firing. At that time, and not before, the Portuguese ship hoisted her national flag. Lieutenant Stockton ordered the ship to surrender, and send her boat on board, which was accordingly done. He demanded an explanation, and the statement made to him by the Portuguese master and other officers was that they did not know him to be an American ship of war, but took him to be a piratical cruiser. Under these circumstances, without much examination of the papers or the voyage of the ship, Lieutenant Stockton determined to send her into the United States on account of this, which he deemed a piratical aggression. She was accordingly manned and sent, with her officers and crew, under the orders of Lieutenant Abbot, into Boston. ISSUE: Where damages have been given or refused on restitution. 96

RULING: The question upon which damages must depend, is not whether he might not have released the ship, but, whether he was, at all events, bound so to do; and whether that obligation was so imperative, that the omission ought to be visited with damages. To consider the real difficulties of Lieutenant Stockton's situation. An attack had been made upon a national ship under his command without cause. It was a hostile act, an indignity to the nation, and a trespass upon its rights and sovereignty. It was not an accidental, but a meditated act; not necessarily carrying own excuse along with it, but susceptible of different interpretations. It was not an affair in which he was at liberty to consult his own wishes or honour merely, although a brave and distinguished officer might naturally feel some solicitude to preserve his high reputation untarnished in the eyes of his government. He was bound to look to the rights of his country. He might well hesitate in assuming the arbitration of national wrongs. He might well feel a scrupulous delicacy in undertaking to waive any claim which the government had authority to enforce, or to defeat any redress which it might choose to seek, or to prevent any inquiries which, through its established tribunals, it might think fit to institute, in respect to his conduct, or that of the offending vessel. Considerations of this nature could not but weight heavily upon the mind of a gallant officer; and they are not unfit to be entertained by this Court in forming its own judgment.

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50. THE BELGENLAND, US SUPREME COURT, 1885 114 US 355 FACTS: This case was brought in an American court which grew out of a collision that took place on the high seas between the Norwegian bark Luna and the Belgian steam-ship Belgenland, by which the former was run down and sunk. Part of the crew of the Luna, including the master, were rescued by the Belgenland and brought to Philadelphia. The master immediately libeled the steam-ship on behalf of the owners of the Luna and her cargo, and her surviving crew, in a cause civil and maritime. The libel stated in substance that the bark Luna, of 359 tons, was on a voyage from Porto Rico to Queenstown, or Falmouth, with a cargo of sugar, and when in latitude 44º33', and longitude 21º43', was met by the steam-ship Belgenland, end on, between 1 and 2 in the morning, and was run down and sunk by her, only five of her crew escaping; that the light of the steam-ship was observed right ahead when a mile or more off; that the bark kept her course, as was her duty to do; and that the steam-ship took no measures to avoid her, but came on at full speed until she struck the Luna; and that the collision was altogether the fault of those in charge of the steam-ship. The proctor for the Belgenland, at the time of filing his answer, excepted to the jurisdiction of the court, and stated for cause that the alleged collision took place between foreign vessels on the high seas, and not within the jurisdiction of the United States; that the Belgenland was a Belgian vessel, belonging to the port of Antwerp, in the kingdom of Belgium, running a regular line between Antwerp and the ports of New York and Philadelphia; and that the bark Luna was a Norwegian vessel, and that no American citizen was interested in the bark or her cargo. ISSUE: What law should an admiralty court in the USA apply to determine responsibility for a collision on the high seas between a Norwegian ship and a Belgian ship? DECISION: The Supreme Court of the United States faced precisely this question where the master of the Norwegian ship which had sunk as a result of collision, brought a suit on behalf of the owners against the Belgian ship in a court in Philadelphia. The case ultimately went to the Supreme Court of the United States. The court had no doubt that it had jurisdiction over the case, despite the fact that the only connection with the territorial sovereignty of the United States was the presence of the Belgian ship. On the question of jurisdiction, the court referred to an English decision about salvage, “The Two Friends” by Sir William Scott in which The Two Friends was a case of salvage, but the same principles would seem to apply to the case of destroying or injuring a ship, as to that of saving it. Both, when acted on the high seas, between persons of different nationalities, come within the domain of the general law of nations, or communis juris and are prima facie proper subjects of inquiry in any court of 98

admiralty which first obtains jurisdiction of the rescued or offending ship at the solicitation in justice of the meritorious or injured parties. The nature of this response about jurisdiction points the way to the Court’s conclusion about choice of law. If jurisdiction is proper over matters occurring with “the domain of the general law of nations,” it follows that the law to be applied is that of the said law. On the question of governing law, the Court said: “As to the law which should be applied in cases between parties or ships of different nationalities, arising on the high seas, not within the jurisdiction of any nation, there can be no doubt that it must be the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted.”

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51. REGINA V. ANDERSON, COURT OF CRIMINAL APPEAL OF GREAT BRITAIN, 1868 11 Cox, Criminal Cases, 198

Facts: James Anderson, American citizen, was indicted for murder on board of a vessel belonging to the port of Yarmouth, Nava Scotia. The ship was registered in Great Britain. At the time when the offense was committed, the ship was moving to the river of Garronne, on its way to the French city of Berdeaux, some ninety miles from the coast of France in the internal water of the France Empire. The accused was detained on the ship until it returned to the England and was charged with murder in the central criminal court of London. He was convicted of manslaughter, despite his plea that the court lacked jurisdiction to try him since the offense was committed in France territory, in colonial vessel by an American citizen. The judgment of the criminal court was appealed. Issue: Which country had jurisdiction to try the accused?

Decision: The appellate court affirmed the conviction holding that the British court had jurisdiction to try the offense committed in the British ship. The appellate found that the accused is subject to American jurisdiction being an American citizen. At the same time, the accused was under the jurisdiction of France, for having committed an offense in the territory of France, as well as, under the jurisdiction of Great Britain as the ship was registered in Britain. Yet the British court extends the protection of British vessel no matter where those vessels might be at any given time. The French authorities could have enforced law arresting Anderson and place him on trial for his offense, but in this case, Great Britain had the control over the vessel and exercised its authority by prosecuting Anderson.

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52. Wildenhus’ Case, United States Supreme Court 1887, 120 U.S. 1 FACTS: Wildenhus, a Belgian national and crew member on board a Belgian ship docked at Jersey City in the United States, killed a fellow crew member and Belgian national onboard the ship. Local American police arrested Wildenhus and detained him and two other Belgian crew members as witnesses. The Belgian consul applied for a writ of habeas corpus pursuant to Article 11 of the Convention Concerning the Rights, Privileges, and Immunities of Consular Officers between the United States and Belgium. This Convention provided that the consuls of a home State should exercise exclusive jurisdiction over the internal matters affecting that State’s vessels, regardless of whether the vessel is located within a foreign State’s territory. However, the Convention provided that when a matter is of such a nature as to disturb the peace and tranquility of the local State, that State’s authorities may exercise jurisdiction over the matter without interference from the home State. The circuit court refused to grant the Belgian consul’s application for a writ of habeas corpus, and the consul appealed to the United States Supreme Court. ISSUE: Whether or not the local State may exercise jurisdiction. RULING: Yes. The court affirmed the circuit court's denial of the writ and found that the onboard incident was such that it disturbed the onshore public peace, despite the fact that only those in the ship witnessed the incident. The felonious homicide was a subject for the local jurisdiction, and the consul had no right to interfere to prevent the proper local authorities from proceeding with the case in a regular way. As such, Convention Concerning the Rights, Privileges, and Immunities of Consular Officers did not entitle the consul to take custody of the sailor. Also, the sailor was not entitled to be discharged from his incarceration. A circuit court of the United States has jurisdiction to issue a writ of habeas corpus to determine whether one of the crew of a foreign vessel in a port of the United States, who is in the custody of the state authorities charged with the commission of a crime within the port against the laws of the state, is exempted from local jurisdiction under the provisions of a treaty between the United States and the foreign nation to which the vessel belongs. Unless exempted by treaty, a foreign merchant vessel entering a port of the United States for purposes of trade is subject to the local law, and the local courts may punish for crimes committed upon the vessel within the port by one foreigner upon another foreigner. 101

Article XI of the Convention between Belgium and the United States of March 9, 1880, 21 Stat. 181, conferring power upon Belgian consuls in the United States to take cognizance of differences between captains, officers, and crews of Belgian merchant vessels which are in parts of the United States, and providing that the local authorities shall not interfere except when a disorder arises of such a nature as to disturb tranquility or public order on shore or in the port, does not apply to a case of felonious homicide committed on board of a Belgian merchant vessel in a port of the United States, and does not deprive the local authorities of the port of jurisdiction over such a crime so committed by one Belgian upon the person of another Belgian, both belonging to the crew of the vessel. The court affirmed the circuit court's judgment.

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53. United States v. Rice, United States Supreme Court 1819, 4 Wheaton, 246

FACTS: This was an action for debt brought by the United States against the defendant Henry Rice upon a bond for the penal sum of $15,000, dated April 17, 1815, with the following condition: "The condition of this obligation is such that if the above-bounden Henry, Rufus, and David, or either of them or either of their heirs, executors, or administrators shall do, on or before October 17 and truly pay or cause to be paid unto the Collector of the Customs for the District of Penobscot for the time being the sum of $7,500 or the amount of the duties to be ascertained as due and arising on certain goods, wares, and merchandises entered by the above-bounden Henry Rice as imported into Castine during the occupation by the British troops, as per entry dated this date, then the above obligation to be void, otherwise to remain in full force and virtue.” The United States imposed liability upon Henry Rice for the duties to be paid arising from the goods, wares and merchandises imported during the occupation of the United Kingdom. The defendant Henry Rice pleaded that at the time of the purchase and importation and during all the time that the said Town and Harbor of Castine were so held and possessed, Thomas Adams, Samuel Upton, and Greenleaf Porter were inhabitants of the said Town of Castine and domiciled and carrying on commerce in said town under the protection, government, and authority of the King of the United Kingdom. And the defendant further averred that after the said goods and merchandises were imported as aforesaid, and after the entry of the Collector of the District of Penobscot and the making and executing of the said supposed writing obligation on April 27, 1815, in pursuance of the treaty made and ratified, the said Town of Castine was evacuated by the troops and forces of the King of United Kingdom, and possession thereof was taken by the United States. Also, after the ratification of the treaty and after hostilities had ceased between the United States and the United kingdom and its dependencies on April 15, 1815, the said Thomas, Samuel, and Greenleaf were paid by Henry for a valuable consideration, and so they bargained, sold and delivered to Henry the goods and merchandises aforesaid, in the condition of said supposed writing obligation mentioned, the same being then in Castine. There was a second plea not varying materially from the first. To these pleas, the attorney for the United States demurred generally and the defendant joined in demurrer. Judgment was rendered for the defendant in the circuit court, and the cause was brought by writ of error to this Court. ISSUE: Whether or not duties arising from the goods, imported in the United States during enemy occupation, should be paid to the U.S. when its sovereignty resumes. 103

RULING: No. By the conquest and military occupation of a portion of the territory of the United States by a public enemy, that portion is to be deemed a foreign country in respect to our revenue laws. Goods imported into it are not imported into the United States, and are subject to such duties only as the conqueror may impose. The subsequent evacuation of the conquered territory by the enemy, and resumption of authority by the United States cannot change the character of past transactions. The jus postliminii does not apply to the case. The previous importation of goods, wares and merchandises to the United States does not bring forth the liability for the payment of duties to said U.S. by the resumption of its sovereignty over the conquered territory.

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54. THE GERASIMO, JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BRITAIN. 1857. 11 MOORE, PRIVY COUNCIL, 88. FACT: In the Crimean War, the Gerasimo, a ship under the Wallachian flag, with a cargo of corn belonging to residents of Galatz, Moldavia, was captured by the British. At that time of the cargo being shipped, the Russians were in possession of Moldavia and Wallachia, but disclaimed any intention of altering their political status or of incorporating them in the Russian empire. The Court of Admiralty however condemned the cargo on the ground that it belonged to inhabitants of enemy territory. ISSUE/S: Whether or not the occupancy or possession of a territory by an enemy converts the said territory into a hostile territory RULING: No. Lord Stowell, with respect to the meaning of the term “dominions of the enemy”, and what constitutes it, cited the cases; In the case of The Fama (5 Rob. 115), he lays it down that in order to complete the right of property, there must be both right to the thing and possession of it; both jus ad rem and jus in re. That the national character of a place is not changed by the mere circumstance that it is in the possession and under the control of a hostile force, is a principle held to be of such importance. In the case of The Manilla (1 Edw. 3), several parts of the the Island of St. Domingo had been in actual possession of insurgent negroes, who had detached them, as far as actual occupancy could do, from the mother country of France and its authority, and maintained, within those parts at least, an independent government of their own. It was contended, therefore, that St. Domingo could not be considered as a colony of the enemy. The Court of Appeal, however, decided, though after long deliberation, and with much expressed reluctance, that nothing had been declared or done by the British Government that could authorize a British tribunal to consider this Island generally, or parts of it (notwithstanding a Power hostile to France had established itself within it, to that degree of force, and with that kind of allowance from some other States), as being other than still a colony, or parts of a colony of the enemy. In the case of The Bouetta (1 Edw. 171), Lord Stowell recognized the distinction between hostile occupation and possession clothed with a legal right by cession or conquest, or confirmed by length of time. A question there arose whether certain property belonging to merchants at Zante, which had been captured by a British privateer, was to be considered as French or as Russian property, that question depending upon the national character of Zante at the time of the capture. Lord Stowell observes, "On the part of the Crown it has been contended, that the possession taken by the French was of a forcible and temporary nature, and that such a possession does not change the national character of the country until it is confirmed by a formal cession, or by long lapse of time. That may be true, when possession has been taken by force of arms and by violence; but this is not an occupation of that nature. France and Russia had settled their differences by the treaty of Tilsit, and the two countries 105

being at peace with each other, it must be understood to have been a voluntary surrender of the territory on the part of Russia." On this ground he held the territory to have become French territory, remarking in a subsequent passage of his judgment that this was a cession by treaty, and not a hostile occupation by force of arms, liable to be lost, again the next day. These authorities, with the other cases cited at the Bar, seem to establish the proposition, that the mere possession of a territory by an enemy's force does not of itself necessarily convert the territory so occupied into hostile territory, or its inhabitants into enemies.

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55. DOOLEY v. U.S. (1901) 182 U.S. 222 Facts: This was an action begun in the circuit court, as a court of claims, by the firm of Dooley, Smith, & Co., engaged in trade and commerce between Porto Rico and New York, to recover back certain duties to the amount of $ 5,374.68, exacted and paid under protest at the port of San Juan, Porto Rico, upon several consignments of merchandise imported into Porto Rico from New York between July 26, 1898, and May 1, 1900, viz.: 1. From July 26, 1898, until August 19, 1898, under the terms of the proclamation of General Miles, directing the exaction of the former Spanish and Porto Rican duties. 2. From August 19, 1898, until February 1, 1899, under the customs tariff for Porto Rico, proclaimed by order of the President. [182 U.S. 222, 223] 3. From February 1, 1899, to May 1, 1900, under the amended tariff customs promulgated January 20, 1899, by order of the President. It thus appears that the duties were collected partly before and partly after the ratification of the treaty, but in every instance prior to the taking effect of the Foraker act. The revenues thus collected were used by the military authorities for the benefit of the provisional government. Issue: Whether or not it is valid to imposed duties laid on goods under the tariff military commander and under tariffs proclaimed by the President as Commander in Chief. Ruling: Before the outbreak of the war with Spain it cannot be disputed that Porto Rico was embraced within the words 'foreign country,' as used in the tariff laws. Why was that island so embraced without specific reference to it in such laws? is the question which naturally arises. To answer this question it is essential to determine what is the import of the words 'foreign country,' not internationally, but within the meaning of the tariff laws. It is settled that the power of Congress to lay an impost duty does not give the right to levy such a duty on merchandise coming from one part of the United States to the other. Woodruff v. Parham, 8 Wall. 123, 19 L. ed. 382. It follows, therefore, that when, in the exercise of its power to lay 107

impost duties, Congress specifies such duties are to be collected on merchandise from foreign countries, those words but generically embody the declaration of Congress that it is exerting its taxing power conformably to the Constitution; that is, it is causing the taxes which are levied to be applicable to the entire area to which they may be extended under the Constitution. The command, then, in tariff laws, that impost duties when laid shall be collected on all merchandise coming from 'foreign countries,' is but a provision that they are to be levied on merchandise arriving from countries which are not a part of the United States, within the meaning of the tariff laws, and which are hence subject to such duties. It must follow that, as long as a locality is in a position where it is subject to the power of Congress to levy an impost tariff duty on merchandise coming from that country into the United States, such country must be a foreign country within the meaning of the tariff laws. Now, this court has just decided in Downes v. Bidwell, 181 U.S. 244 , 21 Sup. Ct. Rep. 770, that, despite the treaty of cession, Porto Rico remained in a position where Congress could impose a tariff duty on goods coming from that island into the United States. If, however, it remained in that position, how then can it be now declared that it ceased to be in that relation because it was no longer foreign country within the meaning of the tariff laws? But, it is said, although when the treaty was ratified the coun- [182 U.S. 222, 240] try at once ceased to be foreign within the meaning of the tariff lawsit yet subsequently became foreign for the purpose of the tariff laws when the act of Congress imposing a duty on goods from Porto Rico took effect. To what, in reason, does this proposition come? In my opinion only to this: Congress, under the Constitution, may not impose a tariff duty on goods brought from a country which has ceased to be foreign, but, although a country has so ceased to be foreign within the meaning of the tariff laws, nevertheless Congress may thereafter cause it to become foreign within such intendment by levying an impost upon its products coming into the United States. This is but to say an act of Congress can have the effect of changing the status of a territory from not foreign within the meaning of the tariff laws to foreign within such meaning, although a law attempting to so do would be plainly in violation of the Constitution, if the principle announced in this case be true, that the treaty from the moment of its ratification by its own force caused the ceded territory to be no longer foreign within the meaning of the tariff laws. Passing these considerations, it is impossible for me to conceive that Porto Rico ceased to be subject to the tariff laws, for the reasons fully stated by me in my concurring opinion in Downes v. Bidwell, which need not be reiterated. But, for the purposes of this case and arguendo only, let me now admit that the treaty incorporated Porto Rico into the United States despite the provisions which were contained in that instrument. Does it follow that such territory at once ceased to be subject to the [182 U.S. 222, 241] tariff laws before Congress had the time to act? I am constrained to think not. The power to originate revenue laws is lodged by the Constitution in the House of Representatives. When a tariff bill is drawn the revenue to arise from it must depend upon the sum of the articles which are to be imported and which are to pay the duty provided in 108

the law. Let me illustrate it: Suppose a tariff law is so adjusted that the greater portion of the revenue which it seeks to provide is drawn from a few articles of general consumption. The duties to be paid on these articles, when imported, will therefore largely furnish the revenues essential to carry on the government. Suppose a treaty of cession which embraces territory producing in large quantities the articles upon which the existing tariff laws mainly rely for revenue to sustain the government. If, instantly, on the ratification of the treaty, before Congress can remodel or change the laws so as to provide for the support of the government, the articles stated coming into the United States from the country in question would be within the tariff line, and thereby entitled to free entry into the United States, what would become of the power of the House of Representatives and of the Congress on the subject of revenue as provided in the Constitution? It may be said in answer to this suggestion that Congress could make the change, and whilst of course a brief interval of disaster would ensue, during which there would be no revenue, the country must suffer the consequences during such interval. But does this follow? Suppose the political state of the country should be such that there was a difference of opinion as to the policy to be embodied in a tariff law, analogous to that which existed when California was acquired from Mexico, where, in consequence of division on the subject of the slavery question between the different branches of Congress, it was impossible to enact legislation conferring a territorial government upon California, what would be the situation then? Look at it practically from another point of view. Certainly, before revenue laws can be made operative in a district or country it is essential that the situation be taken into account, for the purpose of establishing ports of entry, collection districts, and the necessary [182 U.S. 222, 242] machinery to enforce them. Of course, it is patent that such investigations cannot be made prior to acquisition. But, as the laws immediately extend, without action of Congress, as the result of acquisition, it must follows that they extend, although none of the means and instrumentalities for their successful enforcement can possibly be devised until the acquisition is completed. This must be, unless it be held that there is power in the government of the United States to enter a foreign country, examine its situation, and enact legislation for it before it has passed under the sovereignty of the United States. From the point of view of the United States, then, it seems to me that the doctrine of the immediate placing of the tariff laws outside the line of newly acquired territory, however extreme may be the opinion entertained of the doctrine of immediate incorporation, is inadmissible and in conflict with the Constitution.

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56. MACLEOD v. U.S. (1913) Facts: The claimant firm, comprised of the appellant (the survivor) and two others, all citizens of Great Britain, had its head office at Manila, and was engaged in doing a [229 U.S. 416, 418] general mercantile business there and elsewhere in the Orient. On January 13, 1899. the claimants chartered an American steamship, the Venus, at Manila, and cleared her in ballast for Saigon, China, whence she sailed for the port of Cebu with a cargo of rice of January 22d, carrying the usual consular papers. Prior to that time it had been the practice of the military authorities at Manila to require importers, residing in that city and shipping rice to points in the Philippines not actually occupied by the United States forces, to present certified manifests covering their cargoes, and to pay the duties thereon to the United States military collector of customs at Manila, which practice was a matter of common knowledge and discussion among the business men in that city, but there is no other evidence charging the claimants with knowledge of the fact. The collector at Manilla was informed by competitors of the claimants that the latter proposed to ship the cargo to Cebu without paying duty at Manila, and that, as they complied with the requirements of the United States authorities, they would be unable to compete, under such unfair conditions, with the claimants; and the collector received confirmation of such report from the consul at Saigon on the 21st of January, and on the 23d officially notified the claimants that a certified manifest must be presented and duties paid on the cargo at the custom house at Manila. The next day one of the claimants presented in person to the collector a letter stating that there had been no secret as to the movement of the Venus; that she had been openly despatched to Saigon to load a cargo of rice for the Philippines, and that the captain had instructions to secure consular papers, if ordered to Cebu, in case that port should be in the possession of the United States authorities upon his arrival, and that they presumed his papers were in order; that according to their advice, Cebu was in the hands of the republican gov- [229 U.S. 416, 419] ernment, whose authorities would exact the payment of duties, the same in amount as under the Manila tariff; that in selling the cargo they had been required to guarantee that the duties would not exceed those under the Manila tariff; that the claimants protested against paying the duties twice, as it was through no fault of theirs that the duties went to the Cebu authorities, and that, desiring to respect the notification, they would, if instructed, request their Cebu friends to protest against the payment in Cebu because, according to the notification, the Cebu customs were under the control of the United States. At the same time the collector was informed that a ship of the claimants was about to leave Manila for Cebu, which should arrive in time to head off the Venus (which did in fact sail from Manila that day and arrived in Cebu before the Venus ); that their intention in so advising the collector was that he might take the steps he thought 110

most expedient, but that the claimants, unless otherwise ordered by the United States, intended to carry out their contract with the purchasers of the cargo, even if required to pay double duties. Upon the arival of the Vcnus at Cebu, January 29, 1899, the native government demanded the payment of duties on the cargo, and refused to allow its discharge until such payment was made. On February 4, 1899, the duties were paid and the cargo delivered to the purchasers. Upon the arrival of the Venus thereafter at Manila, with a cargo from Cebu, she was at first prevented from discharging her cargo without paying the duties involved in this case, but later was permitted to do Subsequently the collector refused to receive further business from the claimants until the duties in question were paid, and because of such refusal, and in order to transanct further business with the collector, the claimants, involuntarily and under protest, paid the duties demanded. [229 U.S. 416, 420] War was declared with Spain on April 25, 1898, and on May 1, 1898, the forces of the United States captured Manila bay and harbor. The following order of the President was thereafter promulgated: By virtue of the authority vested in me as Commander in Chief of the Army and Navy of the United States of America, I do hereby order and direct that upon the occupation and possession of any ports and places in the Philippine Islands by the forces of the United States the following tariff of duties and taxes, to be levied and collected as a military contribution, and regulations for the administration thereof, shall take effect and be in force in the ports and places so occupied. Issue: Whether or not there was an error in holding the duties collectible in Manila. Ruling: When the Spanish fleet was destroyed at Manila, May, 1, 1898, it became apparent that the government of the[229 U.S. 416, 425] United States might be required to take the necessary steps to make provision for the government and control of such part of the Philippines as might come into the military occupation of the forces of the United States. The right to thus occupy an enemy's country and temporarily provide for its government has been recognized by previous action of the executive authority, and sanctioned by frequent decisions of this court. The local government being destroyed, the conqueror may set up its own authority, and make rules and regulations for the conduct of temporary government, and to that end may collect taxes and duties to support the military authority and carry on operations incident to the occupation. Such was the course of the government with respect to the territory acquired by conquest and afterwards ceded by the Mexican government to the United States. Cross v. Harrison, 16 How. 164, 14 L. ed. 889. See also in this connection, 111

Fleming v. Page, 9 How. 603, 13 L. ed. 276; New Orleans v. New York Mail S. S. Co. 20 Wall. 387, 22 L. ed. 354; Dooley v. United States, 182 U.S. 222 , 45 L. ed. 1074, 21 Sup. Ct. Rep. 762; 7 Moore's International Law Digest, 1143 et seq., in which the history of this government's action following the Mexican War, and during and after the Spanish-American War, is fully set forth; and also Taylor on International Public Law, chapter IX.; Military Occupation and Administration 568 et seq., and 2 Oppenheim on International Law, 166 et seq. There has been considerable discussion in the cases and in works of authoritative writers upon the subject of what constitutes an occupation which will give the right to exercise governmental authority. Such occupation is not merely invasion, but is invasion plus possession of the enemy's country for the purpose of holding it temporarily at least. 2 Oppenheim, 167. What should constitute military occupation was one of the matters before The Hague Convention in 1899, respecting laws and customs of war on land, and the following articles were adopted [229 U.S. 416, 426] by the nations giving adherence to that Convention, among which is the United States (32 Stat. at L. 1821): Article 42. Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself. Article 43. The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.' A reference to the Messages and Papers of the Presidents, to which we may refer as matters of public history, shows that the President was sensible of and disposed to conform the activities of our government to the principles of international law and practice. See 10 Messages and Papers of the Presidents, 208, Executive order of the President to the Secretary of War, in which the President said (p. 210): While it is held to be the right of a conqueror to levy contributions upon the enemy in their seaports, towns, or provinces which may be in his military possession by conquest, and to apply the proceeds to defray the expenses of the war, this right is to be exercised within such limitations that it may not savor of confiscation. As the result of military occupation, the taxes and duties payable by the inhabitants to the former government become payable to the military occupant, unless he sees fit to substitute for them other rates or modes of contributions to the expenses of the government. The moneys so collected are to be used for the purpose of paying the expenses of government under the military occupation, such as the salaries of the judges and the police, and for the payment of the expenses of the 112

army.' [229 U.S. 416, 427] To the same effect, Executive order of the President to the Secretary of the Treasury, in which the President said (p. 211): Determined the order that all ports or places in the Philippines which may be in the actual possession of our land and naval forces by conquest shall be opened, while our military occupation may continue, to the commerce of all neutral nations, as well as our own, in articles not contraband of war, upon payment of the rates of duty which may be in force at the time when the goods are imported. In pursuance of this policy, the order of July 12, 1898, was framed. By its plain terms the President orders and directs the collection of tariff duties at ports in the occupation and possession of the forces of the United States. More than this would not have been consistent with the principles of international law, nor with the practice of this government in like cases. While the subsequent order of December 21, 1898, made after the signing of the treaty of peace, is referred to in the brief of counsel for the government, it was not alluded to in the findings of fact of the court of claims; but we find nothing in that order indicating a change of policy in respect to the collection of duties. While the signing of the treaty of peace between the United States and Spain on December 10, 1898, was stated, the responsible obligations imposed upon the United States by reason thereof were recited and acknowledged, and the necessity of extending the government with all possible despatch to the whole of the ceded territory was emphasized, no disposition was shown to enlarge the number of ports and places in the Philippine Islands at which duties should be collected so as to include those not occupied by the United States, and the President said (p. 220): [229 U.S. 416, 428] 'All ports and places in the Philippine Islands in the actual possession of the land and naval forces of the United States will be opened to the commerce of all friendly nations. All goods and wares not prohibited for military reasons, by due announcement of the military authority, will be admitted upon payment of such duties and other charges as shall be in force at the time of their importation. That the tariff duties, both import and export, imposed by the authorities of the United States or of the provisional military government thereof in the Philippine Islands prior to March eighth, nineteen hundred and two, at all ports and places in said islands, upon all goods, wares, and merchandise imported into said islands from the United States, or from foreign countries, or exported from said islands, are hereby legalized and ratified, and the collection of all such duties prior to March eighth, nineteen hundred and two, is hereby legalized and ratified and confirmed as fully to all intents and purposes as if the same had, by prior act of Congress, been specifically authorized and directed.

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57. THE SCHOONER EXCHANGE V. MCFADDON & OTHERS, US. SUPREMECOURT, 1812 7 Cranch, 116 Facts: Two Americans claimed they owned and were entitled to the schooner Exchange they seized on the high seas. The claim which the United States Attorney put forward for the prevention of the ship leaving was that, the ship which was owned by the Emperor of France had been forced to enter the port of Philadelphia due to bad weather conditions. At this point in time, the U.S and France were on friendly terms. The United States request for the dismissal of ownership and release of the ship was granted by the district court. However, this judgment was reversed by the circuit court and this did not prevent the United States from appealing to the U.S. Supreme Court. Issue: Are National ships of war viewed as been exempted by the consent of the power of the friendly jurisdiction whose port the ship enters? Ruling: Yes. National ships of war are viewed as been exempted by consent of the power of the friendly jurisdiction whose port the ship enters. A nation’s jurisdiction within its sovereign territory is exclusive and absolute. The Exchange been a public armed ship, currently under the control and supervision of a foreign power, who at the time of the ship’s entry into the United States territory, was at peace with the United States, must be viewed as having entered the states territory under an implied promise that while in such environment, would be exempt from the jurisdiction of the country. Reversed.

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58. PAPAYANNI AND OTHERS V. THE RUSSIAN STEAM NAVIGATION AND TRADING CO. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BRITAIN, 1863 2 Moore, Privy Council (N.S.) 161 Facts: On the 20th of March, 1862, the screw steamer Laconia, owned by George Papayanni and other persons resident in England, and the screw steamer Colchide, belonging to the Russian Steam Navigation and Trading Company, a company incorporated by an ukase of the Emperor of Russia, came into collision in the Marmora, whereby the Colchide and her cargo with some fifty of her passengers and crew were lost. On the 19th of April following, the owners of the Colchide having, pursuant to Art 64 of the Order in Council of the 27th of August, 1860, obtained and filed the requisite consent in writing of the Russian Consul General at Constantinople to submit, and having submitted to the jurisdiction of her Majesty's Supreme Consular Court, and having given security to the satisfaction of the Court to abide by and perform such decision as might be given by that Court, instituted a suit in rem against the Laconia, then undergoing repairs at Constantinople. The petition by which the proceedings were commenced claimed the sum of 43,000. as damages to the plaintiffs, and for that amount the Laconia was arrested by the Supreme Consular Court. The owners of the Laconia protested against the right of the plaintiffs to bring the action on the ground that the Court had no jurisdiction in the matter. Counsel on both sides having been heard on the subject matter of the protest, the following judgment was delivered by Sir Edmond Hornby, the Judge of the Supreme Consular Court, on the 22nd of May, 1862. The owners of the Laconia obtained leave to appeal to her Majesty in Council against this judgment, and then filed their answer on the merits. On the 4th of June a petition was filed by leave of the Supreme Consular Court, whereby the owners of the Laconia claimed 10,000. damages in a cross-action against the Russian Steam Navigation and Trading Company; and an order was subsequently made that that Company should come in and submit to the jurisdiction of the Supreme Consular Court in the action wherein they were defendants, and that they should give security for the execution of any judgment which might be given against them therein; further proceedings in their action against the Laconia to be stayed in default of their so doing. The owners of the Colchide complied with the order; and both actions came on for trial before Mr. Legal Vice-Consul Francis, sitting as Judge of the Supreme Consular Court, and two assessors. On the 5th of November judgment was given that both vessels were to blame; and that each party should bear a moiety of the total damage resulting from the collision. Against this judgment, as well as against the judgment on their protest to the jurisdiction, the owners of the Laconia appealed ISSUE: 115

Whether or not the British Supreme Consular Court has jurisdiction to the action of the plaintiffs? RULING: Yes. The Court affirms its jurisdiction, not on the ground that it is a Court of Admiralty, or that it has jurisdiction in all cases taken cognizance of by Courts of Admiralty, but simply on the ground that it has jurisdiction in cases of collision within Turkish waters, and that it can exercise that jurisdiction in rem as well as in personam. The Court further observes, that, although it is true no mention of a jurisdiction in actions in rem is specially made in the Order in Council of the 27th August, 1860, yet, under the 26th section of that order, *' all jurisdiction, power, and authority, legal, equitable, or other, which “any consul of Her Majesty, by custom, has or may exercise in the dominions of the Sublime Ottoman Porte," is specially reserved to Consular Courts, and there is no doubt that consuls in the Levant have customarily exercised, and still continue to exercise, jurisdiction over ships in the sense of ordering their detention and sale. In actions on bottomry bonds, vessels are constantly stopped, sequestered, and sold. The Court also draws attention to the fact that practically as between the different foreign Consular Courts in the Levant, much proceeds from and depends on a principle of reciprocity. To a great extent custom has created a certain uniformity and consensus of action with reference to the exercise of different jurisdictions possessed by the different Consulates, and for the Supreme Court to declare now that it will no longer recognize a custom so long observed, generally known, and acted on, of stopping ships, to answer claims upon them, would be productive not only of great inconvenience but of great injustice, as in a great many cases individuals who had suffered grievous wrong and injury would be practically without remedy.

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59. PARKINSON VS. POTTER (1885), QUEEN’S BENCH DIVISION OF THE HIGH COURT OF JUSTICE OF GREAT BRITAIN 16 Q.B.D.152 FACT: The statute in question was a local Act relating to the Parish of Saint Marylebone. The enactment provided that rates, or assessments made in virtue of the Acts in respect of the property inhabited by an ambassador, envoy, resident, agent or other public minister of any foreign practice or state or any other person not liable by law to pay such rate ot assessement, should be paid and recoverable from the landlord of such property. ISSUE: Whether or not the Portuguese Embassy occupying property within the description of the Act was a ‘person not liable by law” RULING: Yes. The decision necessarily involves the proposition that the statute making occupiers of which, the attaché fell within the provision, liable to pay the rate, imposed no liability upon persons enjoying the diplomatic immunities. The privilege of embassy was recognized as common law as forming part of the international law, and according to that law it was clear that all persons associated in the performance of duties of embassy were privileged; and that an attaché was within that privilege.

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60. JOHNSON’S AND GRAHAM’S LESSEE V WILLIAM M’ INTOSH, U.S SUPREME COURT,1823 8 WHEATON, 543 FACTS: In 1775, Thomas Johnson and other British citizens purchased land in Virginia from members of the Piankeshaw Indian Tribe under 1763 proclamation by the King of England. When Thomas Johnson died his land was left to his heirs. In 1881, William M’ Intosh purchased from Congress 11,000 acres of the land originally purchased by Johnson. Johnson’s heirs sued M’Intosh in the United States District court to recover the land, ruling that Piankeshaw tribe did not have the right to convey the land, the federal district court held that Johnson’s initial purchase and the chain of title stemming from it were invalid. ISSUES: Do the Indians have the power to give and can a private individuals receive from Indians title to land. RULING: The Indians do not have the power to grant land, therefore a title obtained from the Indians cannot be sustained in the courts of the United States. The Supreme Court Opinion: Written by Chief Justice John Marshall, the Supreme Court affirms the district court’s decision. The United States “ has a power to grant the soil, while yet in possession of the natives, subject only to the Indians right of occupancy. This rule is based on Discovery Doctrine. This principle was, that discovery gave title to the government by whose subject or by whose authority, it was made against all other European governments. Rights acquired by Britain through discovery were later assumed by America in the declaration of Independence the Revolutionary War. Marshall states that it is the courts role to consider matters at “ Original Justice or natural law as they relate to the “ Discovery Doctrine”. Generally, the conqueror gets to determine the limits of title and to enforce them. It usually make sense of the conquered inhabitants to be able to regain rights to property. However, because the Indians were “ Fierce savages” the European governments could not give them back title, because they were ready to repel all attempts to control them. Therefore, Indian inhabitants are considered occupants, who had the right to possess land, but were incapable of transferring absolute title to others.

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61. STATE OF MARYLAND VS STATE OF WEST VIRGINIA 217 U.S 1

FACTS: This case originates in a bill filed by the state of Maryland, October 12, 1891, against the state of West Virginia, invoking the original jurisdiction of this court, conferred by the Constitution for the settlement of controversies between states. At its January session of 1890 the general assembly of the state of Maryland passed an act authorizing and directing its attorney general to take such steps as might be necessary to obtain a decision of the Supreme Court of the United States which would settle the controversy between the states of Maryland and West Virginia concerning the true location of that portion of the boundary line between the two states lying between Garrett county, Maryland, and Preston county, West Virginia. The boundary in controversy runs between the two states from the head waters of the Potomac to the Pennsylvania line. The territories contained within the charters erecting the colonies of Maryland, Pennsylvania, North and South Carolina, are hereby ceded, released, and forever confirmed to the people of those colonies respectively, with all the rights of property, jurisdiction, and government, and all other rights whatsoever which might, at any time heretofore, have been claimed by Virginia, except the free navigation and use of the rivers Potomac and Pokomoke, with the property of the Virginia shores or strands bordering on either of the said rivers, and all improvements which have been or shall be made thereon.

ISSUE: WON long continued possession by a state of territory has ripen into sovereignty

RULING: The provisional line of 1787, or 'Deakins line,' as it was called, had long done duty as a boundary; and as the state granted no lands beyond it, it came to be looked upon, despite the emphatic protest of the assembly of 1788, as the true boundary line of the state. This record leaves no doubt as to the truth of the statement contained in the report of the committee of the Maryland Historical Society, that the Deakins line, before the passage of the act under which the Michler line was run, had long been recognized as a boundary and served as such. Even after the Michler line was run and marked, the testimony shows that the people generally adhered to the old line as the true boundary line. There are numerous Virginia grants and private deeds of land given in the record, which call for this old Maryland line as the boundary. The question is one of boundary, and this court has many times held that, as between the states of the Union, long acquiescence in the assertion of a particular boundary, and the exercise of dominion and sovereignty over the territory within it, should be accepted 119

as conclusive, whatever the international rule might be in respect of the acquisition by prescription of large tracts of country claimed by both. The effect to be given to such facts as long-continued possession 'gradually ripening into that condition which is in conformity with international order' depends upon the merit of individual cases as they arise. A right in its nature prescriptive has arisen, practically undisturbed for many years, not to be overthrown without doing violence to principles of established right and justice equally binding upon states and individuals.

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62. AMERICAN INS. CO. AND THE OCEAN INS. CO OF NEW YORK V. 356 BALES OF COTTON (1828) FACTS: Alleged that five hundred and eighty-four bales of cotton insured by the libellants, were shipped on board the ship Point a Petre, on a voyage from New-Orleans to Havre de Grace in France, and was in February, 1825, wrecked on the coast of Florida; from which it was saved, and carried into Key West, in the territory of Florida, where it was sold, without any previous adjudication by a Court of competent jurisdiction, for the ostensible purpose of satisfying a claim for salvage, amounting to seventy-six per cent. of the property saved. That another part of the cargo, amounting to between three hundred and three hundred and fifty-six bales, had arrived in the port of Charleston, within the jurisdiction of the Court, in the possession of one David Canter, and was fraudulently sold in Charleston, at auction, on the 13th of April, 1825. Restitution of this last mentioned part was therefore prayed by the libellants, and process was issued against the said Canter in personam. The marshal returned to the warrant that he had taken one hundred and sixty bales of cotton, and the person of Canter. Fifty-four bales of the cotton, specifically brought into Court, were ordered to be sold and the proceeds paid into the Registry; and the supposed value of the remainder in dispute, to be secured by stipulation.

ISSUE: WON Superior Courts of the said territory are vested with plenary and exclusive jurisdiction over all admiralty and maritime cases?

RULING: The libel filed in the District Court, sought the restoration of the cotton, subject to a reasonable salvage. The claimant asserts his right to it under a sale, and the inquiry is, whether the property was changed by the proceedings directing the sale. The decision upon this inquiry, rests upon the right of the Court to take jurisdiction of the subject matter. The common law rule is, that when a Court acts within its powers, its acts are binding on all the world; but if beyond them, they are entirely void. It is therefore necessary to look into the constitution of the Court. It was a case of salvage, and salvage is of admiralty jurisdiction. 1 Wheat. 335-Sergeant's Constitutional Law, 206.-In England there was a great contest upon this question, but it was finally settled in favour of the jurisdiction of the admiralty, by the statute of Rich. 3d. Abbot on Ship. 433. It is now to be inquired, could the Court at Key West, lawfully exercise admiralty jurisdiction? The Constitution was made for the whole people of the United States, without reference to their being within the original thirteen states.-The 3d article 2d section defines, 121

'the judicial powers,' and declares 'it shall extend to all cases of admiralty and maritime jurisdiction.'-[26 U.S. 511, 524] The treaty with Great Britain of 1783, ceded a large tract of country to the United States, a great portion of which, if not the whole, was within the limits of the thirteen states, and was claimed by several of the states, but was afterwards ceded to the United States. Thus the United States became possessed of all these territories by cession, all of which, except that ceded by Georgia, having been acquired under the confederation, the people upon those territories became citizens of the United States by those cessions, and were entitled to all the rights and privileges of citizens. In the articles of confederation, there is no provision for acquiring rights to lands; but on the contrary, the lands within the territories of the several states, were considered as belonging to those states. By what authority did the confederation acquire a right to the lands ceded to them? Whence then, did the confederation draw the capacity to take and hold those lands? Not from any municipal regulations, or from the laws of the states; or from the express terms of the articles of confederation; but from the great principles of public law. The powers of Congress were to make war, and peace, and to make treaties; and in those and the other powers, were included those under which territories were acquired and governed.

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63. VAN DEVENTER V. HANCKE AND MOSSOP 1903 TS 401 FACTS: The plaintiff sued the defendants for delivery of thirty (30) bales of wool or, in default, the value thereof. It appeared that the parties at the happening of the events referred to were all burghers of the late South African Republic, residing in the district of Vryheid. The wool in question had been shorn from the flocks of the defendants in March, 1901. In July, 1901, the officers of the late Republic, purporting to confiscate the wool, sold it by public auction to the plaintiff, who obtained delivery. Six months before the transactions took place, the late Republic was, by Proclamation No. 15 of 1900, annexed to, and declared to form part of, Her Majesty's dominions. After the annexation, defendants continued to reside on the farm Cliffdale until they were ordered to move to Natal. Plaintiff contended that the defendants had voluntarily surrendered to the enemy (British), and that the wool had thereupon been legally confiscated by the Republican officers in terms of the laws and military usages of the Republic, and more especially of a certain Executive Council Resolution having the force of law and dated the 26th December, 1900; in the alternative he maintained that the said officers, acting under their powers as the leaders of military forces subject to martial law, had confiscated and sold the wool, and that this action having once been taken could not now be interfered with. ISSUE: 1. Whether or not annexation made by the British Crown was premature? 2. Whether or not the sale of wool is a valid sale (this depends on whether the confiscation was a valid confiscation) RULING: 1. Yes. The general rule of international law provides that two (2) circumstances are necessary to create a complete title by conquest: (1) the conqueror must express in some clear manner his intention of adding the territory in question to his dominions; and (2) he must by the exercise of military force demonstrate his power to hold it as part of his own possessions. In the case at bar, South African Republic were by Proclamation No. 15 of 1900 annexed to, and declared to form part of, Her Majesty's dominions, satisfying the 1st requirement. However, at the time of annexation, there had been no effectual occupation of it as a country, and no subjugation of its people. Thus, annexation was premature. 2. No. Judgment for the defendant, with cost. a. The Court did not recognize the existence of the Government of the South African Republic, or the validity of any laws purporting to be passed by that Government after the 1st September, 1900 and if the Court cannot recognize their existence at the date of the alleged purchase, it follows that the plaintiff cannot establish his right to the wool he claims upon the grounds set out in his first count. b. Law No. 20 of 1898 was clearly intended to provide for all legitimate exercise of power by the military authorities on the proclamation of martial law and that there was nothing in that Law which allowed the confiscation of the private property of a 123

burgher without trial. The Executive Council Resolution of December, 1900, which purported to legalize confiscation in certain cases, did not apply to burghers who surrendered to superior force, whether with or without show of resistance, and were conveyed out of the country, and that the Republican officers therefore had no power to confiscate the wool of the defendants, who had not surrendered voluntarily to the enemy. In the case at bar, the defendants surrendered with a pistol at their heads. They yielded to superior force. The court believes that surrender under such conditions can properly be said to have been voluntary.

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64. THE PHILIPPINE SUGAR ESTATES DEVELOPMENT COMPANY (LTD) V. THE UNITED STATES 1904 39 Court of Claims Reports, 225 FACTS: This was an action for the recovery of rent for the use and occupation of certain buildings and a tramway in the Philippine Islands. The property was owned by the order of Dominican friars, who made a contract for its sale to one Richard Henry Andrews, a British subject, now deceased. Andrews acquired title August 8, 1898, and transferred his interest to the plaintiff company, which was incorporated in January, 1900. The authorities of the United States came into the possession of the premises after the insurgents (who had previously taken forcible possession), and occupied and used the parcels set forth in the findings. No compensation or rental was paid for the use, but at no time has any claim of title or equity been asserted by the United States. Claims for rent of the property were recognized as just, but doubts as to the true ownership having been suggested by various military and civil officers of the government, compensation had been withheld until the doubt as to the title could be determined. Under these circumstances there was no express contract for the government to pay, but the court held that a promise would be implied to pay a reasonable rent to the true owner. ISSUE: Whether or not the plaintiff company has legal title over the said claim? (this depends on whether local authorities were competent to create plaintiff a corporation) RULING: Yes. Judgment was given for the plaintiff. The ground of the defendants' contention was that at the time of the cession of the archipelago, only such laws were continued in force as did not involve a sovereign grant. Accordingly, general rule of international law in regard to all conquered or ceded territory that the old laws continue until repealed by the proper authorities. However, the Court held that, “Special privileges, grants, or franchises flowing from the grace and pleasure of the sovereign in favor of some one particular person or body distinguished from the general body of the inhabitants are the things forbidden. It needs no reference to international law to say that any exercise of authority by the ceding sovereignty, after cession, could not have force with reference to such things as grants of land, or the bestowal of special franchises, such as the construction of roads, the keeping of ferries, and the erection of bridges with the right to collect toll upon them. These are grants by the authority of the state as particular privileges which look to the promotion and protection of the public good. But the municipal laws promulgated during the time the ceding authority existed and which are generally recognized as necessary to the peace and good order of the community 125

remained in full force and effect. Any other rule would hold in abeyance civil functions with respect to the use, enjoyment, and transfer of private property that would lead to results harmful to the inhabitants of the ceded territory and injurious to the best interests and authority of the new sovereign as well. This is something that has not been tolerated in modern times.” The court finally held that the existence of a state of insurrection at the place of incorporation would not affect the validity of judicial acts (which would include the incorporation of this association under the municipal law), which were not hostile in their purpose or method of enforcement to the authority of the national government.

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65. ALVAREZ Y SANCHEZ V. UNITED STATES 216 U.S. 167 (1910) FACTS: In the year 1878, the claimant, Sanchez, purchased from one Florenzio Berrios y Lopez, for a valuable consideration, the office known as "numbered procurador [solicitor] of the courts of first instance of the capital of Porto Rico," at Guayamo, in perpetuity, and in the same year the Governor General of Porto Rico issued a provisional patent in his favor. In 1881, the claimant's tenure of the office was approved and confirmed, and a final patent therefor was issued by the King of Spain, in accordance with the laws, practice, and custom of Spain and Porto Rico governing the sale, surrender, and transfer of such an office. The claimant, it is alleged, thereby became vested with all the legal rights and privileges appertaining to the office. From the date of the provisional patent issued to him until, as will be presently stated, he was deprived of his office, August 31st, 1899, the claimant exercised all the rights and privileges belonging to the office of procurador or solicitor. Under the laws of Spain and Porto Rico, it will be assumed, the office was transferable in perpetuity, and vested the incumbent with exclusive rights and privileges, and, as a consequence thereof, the claimant was entitled, under the laws of Spain in force in Porto Rico, during all the time he held the office, to perform its duties and receive its fees and emoluments, which, prior to August 31st, 1899, averaged, it is alleged, more than $200 per month, of which he could not be legally deprived except by due process of law. On the tenth day of December, 1898, a Treaty of Peace between the United States and Spain was concluded, and having been duly ratified by the respective countries, was duly proclaimed April 11th, 1899. The treaty contained these provisions: "Spain cedes to the United States the Island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and the Island of Gaum in the Marianas or Ladrones." A military government was organized in Porto Rico and was maintained there from October, 1898, up to and after April 30th, 1900. On the latter date, General Davis, as military governor, issued what is known as General Order 134, containing these, among other, paragraphs: "XI. The office of solicitor ('procurador') is abolished. Those who have heretofore practiced as such before any court, and are of good repute, shall, in default of lawyers, have the right to be appointed municipal judges or clerks of municipal courts." The claimant proceeds in his petition on the ground that the effect of the eighth section of the Act of Congress of April 12th, 1900, was to confiscate, finally and effectually, without compensation to him, the office which he claims to have lawfully purchased in perpetuity prior to the occupation of Porto Rico by the military forces of the United States, and the cession of that island to this country; which confiscation, he insists, could not have been 127

legally done without violating the treaty between the United States and Spain which was in force when the Act of 1900 was passed. ISSUE: Whether or not the abolition of the office was in violation of any provision of the Constitution and it infringe any right of property which the claimant could assert as against the United States. RULING: We do not think that the present claim is covered by the treaty. It is true that a treaty negotiated by the United States is a part of the supreme law of the land, and that it is expressly provided in the treaty in question that it "cannot in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds . . . of private individuals." But clearly those provisions have no reference to public or quasi-public stations, the functions and duties of which it is the province of government to regulate or control for the welfare of the people, even where the incumbents of such stations are permitted, while in the discharge of their duties, to earn and receive emoluments or fees for services rendered by them. The words in the treaty, "property . . . of private individuals," evidently referred to ordinary private property, of present, ascertainable value, and capable of being transferred between man and man. It is inconceivable that the United States, when it agreed in the treaty not to impair the property or rights of private individuals, intended to recognize, or to feel itself bound to recognize, the salability of such positions in perpetuity, or to so restrict its sovereign authority that it could not, consistently with the treaty, abolish a system that was entirely foreign to the conceptions of the American people and inconsistent with the spirit of our institutions. The abolition of the office was not, we think, in violation of any provision of the Constitution, nor did it infringe any right of property which the claimant could assert as against the United States.

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66. VILAS V. MANILA 220 U.S. 345 ERROR TO AND APPEALS FROM THE SUPREME COURT OF THE PHILIPPINE ISLANDS FACTS: Even if there is no remedy adequate to the collection of a claim against a governmental subdivision when reduced to judgment, a plaintiff having a valid claim is entitled to maintain an action thereon and reduce it to judgment. The plaintiffs in error, who were plaintiffs below, are creditors of the City of Manila as it existed before the cession of the Philippine Islands to the United States by the Treaty of Paris, December 10, 1898. Upon the theory that the city, under its present charter from the government of the Philippine Islands, is the same juristic person and liable upon the obligations of the old city, these actions were brought against it. The Supreme Court of the Philippine Islands denied relief, holding that the present municipality is a totally different corporate entity, and in no way liable for the debts of the Spanish municipality. ISSUE: The fundamental question is whether, notwithstanding the cession of the Philippine Islands to the United States, followed by a reincorporation of the city, the present municipality is liable for the obligations of the city incurred prior to the cession to the United States. RULING: That there is a total abrogation of the former political relations of the inhabitants of the ceded region is obvious. That all laws theretofore in force which are in conflict with the political character, constitution, or institutions of the substituted sovereign lose their force is also plain. Alvarez y Sanchez v. United States, 216 U. S. 167. But it is equally settled in the same public law that that great body of municipal law which regulates private and domestic rights continues in force until abrogated or changed by the new ruler. That the United States might, by virtue of its situation under a treaty ceding full title, have utterly extinguished every municipality which it found in existence in the Philippine Islands may be conceded. That it did so, in view of the practice of nations to the contrary, is not to be presumed, and can only be established by cogent evidence. That during military occupation the affairs of the city were in a large part administered by officials put in place by military order did not operate to dissolve the corporation, or relieve it from liability upon obligations incurred before the occupation, nor those created for municipal purposes by the administrators of its affairs while its old officials were displaced. During that occupation and military administration, the business of the city was carried on 129

as usual. Taxes were assessed and taxes collected and expended for local purposes, and many of the officials carrying on the government were those found in office when the city was occupied. The continuity of the corporate city was not inconsistent with military occupation or the constitution or institutions of the occupying power. This is made evident by the occurrences at the time of capitulation. Thus, the property and property rights of municipal corporations were protected and safeguarded precisely as were the property and property rights of individuals. That the cession did not operate as extinction or dissolution of corporations is herein recognized, for the stipulation against impairment of their property rights has this plain significance. The conclusion we reach, that the legal entity survived both the military occupation and the cession which followed, finds support in the cases which hold that the Pueblos of San Francisco and Los Angeles, which existed as municipal organizations prior to the cession of California by Mexico, continued to exist with their community and property rights intact. Were corporate identity and corporate liability extinguished as a necessary legal result of the new charter granted in 1901 by the Philippine Commission? The inhabitants of the old city are the incorporators of the new. There is substantially identity of area. There are some changes in the form of government and some changes in corporate powers and methods of administration. The new corporation is endowed with all of the property and property rights of the old. It has the same power to sue and be sued which the former corporation had. There is not the slightest suggestion that the new corporation shall not succeed to the contracts and obligations of the old corporation. Laying out of view any question of the constitutional guaranty against impairment of the obligation of contracts, there is, in the absence of express legislative declaration of a contrary purpose, no reason for supposing that the reincorporation of an old municipality is intended to permit an escape from the obligations of the old, to whose property and rights it has succeeded. The juristic identity of the corporation has been in no wise affected, and, in law, the present city is, in every legal sense, the successor of the old. As such, it is entitled to the property and property rights of the predecessor corporation, and is, in law, subject to all of its liabilities. Our conclusion is that the decree in the Aguado case must be reversed and the case remanded, with direction to render judgment and such other relief as may seem in conformity with law. The judgments in the Trigas and Vilas cases will be reversed, and the cases remanded with direction to overrule the respective demurrers, and for such other action as may be consistent with law, and consistent with this opinion.

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67. UNITED STATES OF AMERICA V. PRIOLEAU

35 L.R.-Ch. 7 (1865)

Facts: The U.S. government filed against Prioteau on July 26, 1865, this was the case of Aline, of eight Confederate-owned blockade runners with cargoes assigned to Fraser, Trenholm and Co. It was the only one of the eight that cleared the blockade before the end of the war. It had cotton from Galveston that was sold in Havana. The U.S. lost the case, but Prioteau had to file a countersuit to recover some of his money.

Issue: Whether or not recovery by succession in the existence of rebel body as de facto government is possible.

Held: The cotton owned by the Confederacy with a lien held by members of an English firm was property of the United States, subject to all of the conditions and liabilities to which the property is subject. The court said: But this right is the right of succession, is the right of representation, is a right not paramount, but derived, I will not say under, but through, the suppressed and displaced authority, and can only be enforced in the same way, and to the same extent, and subject to the same correlative obligations and rights as if that authority had not been suppressed and displaced and was itself seeking to enforce it. Sir W. Page Wood, V.C., said: " If the case had been that of a body of mere robbers devastating and plundering the territory of United States, our court might have interfered to restore the property acquired; but then the rightful claimants would have been not the United States Government, but the person who had been robbed. It is only because the money was raised by a de facto government that the United States can come here to claim at all. Had the money obtained by mere robbery it would never become public property. It only acquired that character because it was levied by an authority exercising rights of government."

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68. WEST RAND CENTRAL GOLD MINING COMPANY LIMITED. V. THE KING

2 K.B. 391 (1905)

Facts: June 1904, The Attorney-General, on behalf of the Crown, demurred to a petition of right by the West Rand Central Gold Mining Company, Ltd. It alleged that two parcels of gold, amounting in all to the value of 3804l., had been seized by officials of the South African Republic-1104l. On October 2 in course of transit from Johannesburg to Cape Town, and 2700l. On October 9, taken from the bank premises of the petitioners. No further statement was made in the petition of the circumstances under which, or the right by which, the Government of the Transvaal Republic claimed to seize the gold; but it was stated in paragraph 6, "That the gold was in each case taken possession of by, and on behalf of, and for the purposes of, the then existing Government of the said Republic, and that the said Government, by the laws of the said Republic, was under the liability to return the gold, or its value, to your suppliants. None of the said gold has been returned to your suppliants, nor did the said Government make any payment in respect thereof." The petition then alleged that the a state of war commenced at 5 P.M. on October 11, 1899, that the forces of the late Queen conquered the Republic, and that by the proclamation of September 1, 1900, the whole of the territories of the Republic were annexed to, and became part of, Her Majesty's Dominions, and that Government of the Republic ceased to exist. The petition then averred that by reason of the conquest and annexation Her Majesty Succeeded to the sovereignty of the Transvaal Republic, and became entitled to its property; and that the obligation which vested in the Government was binding upon His present Majesty the King. Counsel for Great Britain argued, on the contrary, that there was "no principle of international law by which a conquering State becomes ipso facto liable to discharge all the contractual obligations of the conquered State."

Issue: Whether or not conquering State becomes liable to discharge financial liabilities of the conquered State.

Held: Lord Alverstone C.J., writing for the Court, rejected the application by the claimant. He indicated that the proposition submitted by the claimant "that by international law the conquering country is bound to fulfill the obligations of the conquered" could not be sustained. 132

He added that: "When making peace the conquering Sovereign can make any conditions he thinks fit respecting the financial obligations of the conquered country, and it is entirely at his option to what extent he will adopt them." The Lord Justice also indicated that there was no "reason at all why silent should be supposed to be equivalent to a promise of universal novation of existing contracts with the Government of the conquered State". The decision was summarized as follows in the headnote of the case: "There is no principle of international law by which, after annexation of conquered territory, the conquering State becomes liable , in the absence of stipulation to the contrary, to discharge financial liabilities of the conquered State incurred before the outbreak of war.

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