Midterms Doctrines.docx

Peru issued an arrest warrant against Haya dela Torre in respect of the crime of military rebellion which happened in Peru. Three months after the rebellion, Torree fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre was granted diplomatic asylum and requested safe passage for Torre to leave Peru. However, Peru refused to accept the unilateral qualification and refused to grant safe passage. The Colombian government claims that it had right to grant asylum under agreements between the states and the regional custom in the Latin American States. 01 THE ASYLUM CASE (COLOMBIA v. PERU)

NORTH SEA CONTINENTAL SHELF CASE GERMANY vs. DENMARK AND NETHERLANDS

Paquete Habana v. US

The Case of the S.S. Lotus

The issue is WoN the Colombian government can grant asylum under regional custom – NO. The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party… (that) it is in accordance with a (1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3) the expression of a right appertaining to the State granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this case, Peru). Furthermore, very few states had ratified the conventions which Colombia relied on and there was significant discrepancy in the practice of asylum. Even if Colombia could prove that such a regional custom existed, it would not be binding on Peru, because Peru repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence in matters of diplomatic asylum. This case involves a dispute between Germany and Denmark, and Germany and Netherlands. The said parties wish to delimit the north sea continental shelf but are in disagreement as to what principle of international law to apply. Hence, this case. According to Denmark and Netherlands, the equidistant-special circumstances principle (see footnote 1 for the definition) in Art. 6(2) of the Geneva Convention should be applied. The effect of this is that Germany would get a smaller portion. Meanwhile, Germany argues that what should be applied is the doctrine of just and equitable share where each of the States concerned would have a “just and equitable share” in the available continental shelf, in proportion to the length of its sea-frontage. It argues that the equidistant principle cannot apply because of the existence of a special circumstance negating its application. The ICJ ruled in favor of Denmark and Netherlands, but it emphasized that the equidistant principle is only customary international law. ISSUE: WON the equidistant principle applies—YES. WON the equidistant principle is customary international law—YES. RULING: The equidistant principle applies only in the absence of a delimitation agreement between the parties. The contract between them shall always be the primordial consideration for effecting delimitation. It is only in the absence of such agreement can the equidistant method come in. In this case, there was no such agreement as to the delimitation of the continental shelf. As to the principle being customary international law: Even though the equidistant principle isn’t binding as international law, it is, nevertheless, part of customary law—it came about partly because of subsequent State practice, and eventually became binding upon countries, even those not part of the Geneva Convention. Paquete Habana & Lola were Spanish fishing vessels who would leave Havana ports in order to fish. The 2 vessels were eventually captured as prizes of war by US merchant vessels as part of Admiral William Sampson’s (Sampson) blockade of Cuba who was ordered to execute the blockade in pursuance of the laws of the US & the law of the nations applicable to such cases. The vessels were placed within Cuba’s territorial waters at the onset of the Spanish-American War & then taken to Key West where both vessels were eventually auctioned by the district court as prize of war. They were not treated as exempt to be seized to be treated as prizes of war. The owners of the vessels however made an appeal to the circuit courts, citing a long held tradition by nations of exempting fishing vessels from prize capture in times of war. At the time of capture both vessels had no evidence of aiding the enemy, and were unaware of the US naval blockade. No arms were found on board, and no attempts were made to either run the blockade or resist capture. The US SC held that there are no treaties of the US to the contrary of what is stated in International Law. International Law is part of the law of the US and must be ascertained & administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations. On the way to Constantinople, while it was sailing the High Seas (no nation has criminal jurisdiction over this territory) the French mail steamer Lotus and the Turkish collier “Boz-Kourt” collided with each other. The Boz Kourt was cut in two, sank, and eight Turkish nationals died. Upon arriving in Constantinople, the Turkish authorities held an inquiry into the collision, and instituted joint criminal proceedings in accordance with Turkish law against the captain of the Boz Kourt and the officer on watch on board the Lotus, Lietenant Demons (French citizen). The Court found that Turkish jurisdiction was justifiable not because of the nationality of the victims but because the effects of the offence were produced on a Turkish ship, and consequently, in a place "assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged". Once it was admitted that the effects of the offence 1

The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party

Test to determine the existence of Opinio Juris: a. It must be of a fundamentally norm-creating character such as one regarded as forming the basis of a general rule of law, b. The States must conform to it because they feel a legal obligation to do so, and c. Time

Under international law, coastal fishing vessels pursuing their vocation of catching & bringing in fresh fish have been recognized as exempt with their cargoes & crews from capture as prize of war. International Law is part of the law of the US ad must be ascertained & administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.

Opinio juris is not only reflected by acts of States, but also by its omissions (simply: custom is shown by both what you do, and what you don’t do)

CASE CONCERNING RIGHT TO PASSAGE OVER INDIAN TERRITORY PORTUGAL V. INDIA

NEW ZEALAND VS. FRANCE; AUSTRALIA VS. FRANCE [NUCLEAR TESTS]

Nicaragua vs. US

Republic vs. Sandiganbayan

were produced on the Turkish vessel, it became impossible to hold that there was a rule of international law that prohibited Turkey from prosecuting Lieutenant Demons simply because the author of the offence was on board the French ship. Portugal claims a right of passage between Daman and the enclaves, and between the enclaves, across intervening Indian territory, to the extent necessary for the exercise of its sovereignty. The extent of the right of passage includes private persons, civil official, general goods, armed forces, armed police and arms and ammunitions. Portugal hinges its claim based on the Treart of Poona of 1779 and on 2 sanads (decrees) stating that these conferred sovereignty to Portugal over the enclaves with the right of passage to them. India objects on the ground that the Treaty of 1779 was not validly entered into and never became a treaty. Furthermore, the sanads didn’t conferred sovereignty over the enclaves but it was only a revenue grant to Portugal. Court ruled that indeed, the Treaty of 1779 and the sanads didn’t gave Portugal sovereignty over the enclaves but the situation changed when the British came in. Because of this, the court examined the Portugal’s claim based on the practices which prevailed during the British and post-British periods. The issue in this case is WoN the Government of Portugal can claim right of passage over the enclaves – YES BUT THE RIGHT ONLY APPLIES TO PRIVATE PERSONS, CIVIL OFFICIALS AND GOODS IN GENERAL The Court said that there exists a common ground between the Portugal and Great Britain that the passage of private persons and civil officials was not subject to any restriction beyond routine control during/post British Period. The same is true for general goods which also passed freely during the periods in question. However, it was different for the passage of armed forces, armed police and arms and ammunitions. With regard to armed forces, Par 3 of Art XVIII of the Treaty of Commerce and Extradition provides that armed forces of the Government of Great Britain and Portugal should not enter the Indian dominions of the other expect for certain situations (See Ratio #6). Regarding armed police, it is in the same position as that of the armed forces, passage of which is based on reciprocity and not a right. Exportation of arms and ammunition is also prohibited as stated in the same Treaty (Same Treaty pertaining to armed forces and armed police) In these two cases, Australia and New Zealand applied to the ICJ to enjoin France from conducting nuclear tests at the South Pacific region. Before the case could be completed, France made open declarations that it will cease to conduct nuclear tests, so it moved for the dismissal of the case. The Court held in this case that since France has already made a unilateral declaration of not conducting nuclear tests anymore, the dispute has already disappeared so there is no more need for a judgment. Moreover, once the Court has found that a State has entered into a commitment concerning a future conduct, it is not the Court’s function to contemplate that it will not comply with it The US was initially supportive of the new government in Somoza but this changed. The US decided to plan and undertake activities directed against Nicaragua. The issue is WoN the United States breached its customary international law obligation, which is not to intervene in the affairs of another State? Yes it violated its international obligation by attacking Nicaragua, directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.

The PCGG created the AFP Anti-Graft Board to investigate reports of unexplained wealth and corrupt practices by AFP personnel. Among those investigated was Major General Ramas. After investigation, a complaint was filed against Ramas and Elizabeth Dimaano, an alleged confidential agent of the Philippine Army. Earlier, or on March 3, 1986, a raiding team conducted a search of Dimaano’s residence. Although the search warrant was only for the seizure of illegally possessed firearms, the raiding team also seized communications equipment, jewelries, monies, and land titles. The petitioners argued that Dimaano could not pray for the exclusion of the alleged illegally seized items because the exclusionary right under the Bill of Rights of the 1973 Constitution with respect to the seizure conducted on March 3, 1986 was not in effect. The issues in this case are WoN the revolutionary government was bound by the Bill of Rights of the 1973 Constitution during the interregnum and WoN the protection accorded to individuals under the International Covenant on Civil and Political Rights (“Covenant”) and the Universal Declaration of Human Rights (“Declaration”) remained in effect during the interregnum. For the first issue, the SC held that Bill of Rights under the 1987 Constitution was not operative during the interregnum. The government in power was concededly a revolutionary government bound by no constitution. Thus, no one could validly question the sequestration orders as violative of the Bill of Rights because there was no Bill of Rights during the interregnum. For the second issue, the SC held that even during the interregnum the Filipino people continued to enjoy, under the Covenant and the Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution. The Court has 2

Customs or Practices between countries can be a source of International Law.

A declaration made through unilateral acts may have the effect of creating legal obligations.

If one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far reaching. The Court considers the Declaration as part of customary international law, and that Filipinos as human beings are proper subjects of the rules of international law laid down in the Covenant since the revolutionary government did not repudiate the Covenant or the Declaration during the interregnum.

001 LEGAL STATUS OF EASTERN GREENLAND (DENMARK V. NORWAY, PCIJ REPORTS, SERIES A/B, NO. 53)

NEW ZEALAND; AUSTRALIA v. FRANCE

012 INTERPRETATION OF PEACE TREATIES CASE SECOND PHASE ADVISORY OPINION

RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

interpreted the Declaration as part of the generally accepted principles of international law and binding on the State. Thus, the revolutionary government was also obligated under international law to observe the rights of individuals under the Declaration. Denmark filed a suit against Norway in the Permanent Court of International Justice because Norway declared that it will occupy certain territories (Eirik Raudes Land) in Greenland which belonged to Denmark. Denmark alleged that the declaration of occupation of Norway is invalid because at the time of the declaration, Greenland was already under the sovereignty of Denmark. Norway, on the other hand, alleges that it acquired sovereignty over the Eirik Raudes land because the area lay outside the limits of the Danish colonies in Greenland. According to the court, for a claim of sovereignty, two elements must concur: first, that the country has intention and will to act as sovereign, and second, that there is some actual exercise or display of such authority. (in re: 2nd element) In this case, Denmark is said to have conferred a valid title of sovereignty in Greenland because of various things taken into consideration, one of which is the numerous treaties in which Denmark provided for the nonapplication of the treaty to Greenland. By expressly excluding Greenland in these treaties with other countries, it shows that Greenland is subject to the Danish government. (in re: 1st element) These treaties may also be regarded as demonstrating sufficiently Denmark's will and intention to exercise sovereignty over Greenland. Australia and New Zealand demanded that France cease atmospheric nuclear tests in the South Pacific. France completed a series of nuclear tests in the South Pacific. Australia and New Zealand applied to the ICJ demanding that France cease testing immediately. While the case was pending, France announced the series of tests was complete and that it did not plan any further such tests. France moved to dismiss the applications. The issue is WoN declaration made by way of unilateral acts have the effect of creating legal obligations – YES. The unilateral statements made by French authorities were first communicated to the government of Australia. To have legal effect there was no need tor the statements to be directed to any particular state. The general nature and characteristics of the statements alone were relevant for evaluation of their legal implications. The sole relevant question is whether the language employed in any given declaration reveals a clear intention. One of the basic principles governing the creation and performance of legal obligations is the principle of good faith. The statements made by the President of the French Republic must be held to constitute an engagement of the State in regard to the circumstances and intention with which they were made. The statements made by the French authorities are therefore relevant and legally binding. Applications dismissed. This case concerned the procedure to be adopted in regard to the settlement of (human rights) disputes between the States signatories of the Peace Treaties of 1947 (Bulgaria, Hungary, Romania, on the one hand, and the Allied States, on the other). In the first Advisory Opinion (30 March 1950), the Court stated that the countries, which had signed a Treaty providing an arbitral procedure for the settlement of disputes relating to the interpretation or application of the Treaty, were under an obligation to appoint their representatives to the arbitration commissions prescribed by the Treaty. Notwithstanding this Advisory Opinion, the three States, which had declined to appoint their representatives on the arbitration commissions, failed to modify their attitude. A time-limit was given to them within which to comply with the obligation laid down in the Treaties as they had been interpreted by the Court. After the expiry of the time-limit, the Court was requested to say whether the Secretary-General, who, by the terms of the Treaties, was authorized to appoint the third member of the arbitration commission in the absence of agreement between the parties in respect of this appointment, could proceed to make this appointment, even if one of the parties had failed to appoint its representative. In a further Advisory Opinion of 18 July 1950, the Court replied that this method could not be adopted since it would result in creating a commission of two members, whereas the Treaty provided for a commission of three members, reaching its decision by a majority. During the General Assembly of the UN, several questions and reservations were raised regarding the CPPCG. The questions and answers of the ICJ are as follows: QI: Can the reserving State be regarded as being a party to the Convention while still maintaining its reservation if the reservation is objected to by one or more of the parties to the Convention but not by others? A: A state which has made and maintained a reservation which has been objected to by one or more of the parties but not by others can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the convention; otherwise, State can’t be regarded as being a party to the convention. QII (a): What is the effect of the reservation between the reserving State and the parties which object to the reservation? A: If a party to the convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the convention; 3

A claim to sovereignty is based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority.

Declaration made through unilateral acts may have the effect of creating legal obligations.

One could not remedy the breach of a Treaty obligation by creating a Commission which was not the kind of Commission contemplated by the Treaties. It was the Court's duty to interpret Treaties, not to revise them.

In treaty relations, a state cannot be bound without its consent, hence a State could not be bound by a reservation to which it has not consented. Every State is free to decide for itself whether the state which formulated the reservation was or was not a party to

LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA

Goldwater v. Carter

016 Fisheries Jurisdiction Case (United Kingdom v. Iceland)

QII (b): What is the effect of the reservation between the reserving State and those who accept it? A: If a party accepts the reservation as being compatible with the object and purpose of the convention, it can in fact consider that the reserving State is a party to the convention. QIII (a): What would be the legal effect if an objection to a reservation is made by a signatory which has not yet ratified? A: It can have the legal effect indicated in QI only upon ratification. Until that moment, it merely serves as a notice to the other State of the eventual attitude of the signatory State. QIII (b): What would be the legal effect if an objection to a reservation is made by a state entitled to sign or accede but which has not yet done so? A: It is without legal effect. SUMMARY: An advice is sought before the Court with regard to the legal consequences of the continued presence of South Africa in Namibia. The first issue in this case. a) Member states are under obligation to abstain from entering into treaty relations with South Africa, which involve intergovernmental co-operation, in all cases in which the Government of Africa purports to act on behalf of or concerning Namibia. Wrt multilateral treaties, the same rule cannot be applied to certain general conventions such as those with humanitarian character, the nonperformance of which may adversely affect the people of Namibia: it will be for the competent international organs to take specific measures b) Member states are under obligation to abstain from sending diplomatic or special missions to South Africa including in their jurisdiction the territory of Namibia, to abstain from sending consular agents to Namibia, and to withdraw any such agents already there; and to withdraw any such agents already there; and to make it clear to South Africa that the maintenance of diplomatic or consular relations does not imply any recognition of its authority wrt Namibia c) Member states are under obligation to abstain from entering into economic and other forms of relations with South Africa on behalf of or concerning Namibia which may entrench its authority over the territory d) However, non-recognition should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, the illegality or invalidity of acts performed by the Gov’t of South Africa on behalf of or concerning Namibia after the termination of the Mandate cannot be extended to such acts as the registration of births, deaths, marriages As to States not members of the UN, although they are not bound by Articles 24 and 25 of the Charter, they have been called upon by resolution 276 (1970) to give assistance in the action which has been taken by the UN with regard to Namibia. No state which enters into relations with South Africa concerning Namibia may expect the UN or its Members to recognize the validity or effects of any such relationship. President Jimmy Carter terminated a treaty with Taiwan and a few Congressional members felt that this deprived them The Supreme Court left the question of the of their Constitutional function (they approve actions of the President involving treaties). However, no Congressional constitutionality of the action was taken other than a Resolution that would require the President to get Senate approval but which had no final President Carter's action open. Article II, Section II vote so nothing happened. of the Constitution merely states Issue: WoN President’s termination of a treaty without congressional approval is a non-justiciable political decision that the President cannot make treaties without a YES Senate majority two-thirds vote. As Had the President and Congress reached irreconcilable positions, then it would have eliminated multiple constitutional it stands now, there is no official ruling on whether interpretations. However, the case stood simply as a dispute among unsettled competing political forces between the the President has the power to Legislative and Executive hence political in nature. While the Constitution is express as to the manner in which the break a treaty without the approval of Congress. Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty. It also involves foreign relations which the court finds justification in ruling that this case is political in nature. Main gist of the case: because some circumstances changed, Iceland claimed that a fishing treaty it had with the United Iceland argued that the 1961 Exchanges of Notes Kingdom was no longer applicable. took place when the British Navy had been using SUMMARY: An application was filed before the I.C.J. when Iceland proposed to extend its exclusive fisheries jurisdiction force to oppose the 12-mile fishery limit of Iceland from 12 to 50 miles around its shores in 1972. Iceland attempted to extend its exclusive fishing rights to 50 nautical and that they were void ab initio. The Court miles from the baseline, over its 12-mile allowance. However, Iceland and the United Kingdom reached an agreement in rejected the argument because there was no 1961 stating that the United Kingdom would recognize the 12-mile fishery zone. Iceland terminated this agreement in concrete evidence of use of force and stated: “The 1971 in which it set up its new fishery zone. The UK challenged this extension of jurisdiction and sought to submit the 1961 Exchange of Notes were freely negotiated by case to the International Court of Justice (ICJ.) The UK relied upon an earlier treaty agreement between the parties the interested parties on the basis of perfect where the UK agreed to recognize Iceland’s twelve-mile exclusive fisheries jurisdiction in exchange for Iceland’s equality and freedom of decision on both sides. agreement to submit all disputes over fisheries jurisdiction to the ICJ. Iceland argued that it was not bound by this In order that a change of circumstances may give agreement to submit all disputes to the ICJ, however, because of changing legal circumstances in international law. rise to the premise calling for the termination of a Iceland argued that the standard, default limit for exclusive fisheries jurisdiction for states was typically now twelve treaty, it is necessary that it has resulted in a radical miles. transformation of the extent of the obligations still This was not the case when Iceland first signed its agreement with the UK, however, and the agreement to a twelve-mile to be performed. limit then constituted a compromise for Iceland. Due to changing trends in international law, Iceland argued that its Recourse to the I.C.J. in the event of a dispute was previous agreement to the twelve-mile compromise in exchange for ICJ jurisdiction was now void for lack of the original agreement between the parties. consideration on the UK’s part. Iceland stood to argue that the previous agreement with UK is not valid anymore due to these changes in circumstances. United Kingdom has been fishing in this region for many years and brought this issue to the ICJ when Iceland set up its new parameters. The ICJ found that it had jurisdiction in this matter. M.I.A! - Iceland failed to take part in the proceedings. ISSUES: 1. In order that a change of circumstances may give rise to a ground for invoking the termination of a treaty, is it necessary that it has resulted in a radical transformation of the extent of the obligation still to be performed? Yes. In 4

HUNGARY v SLOVAKIA

SEI FUJII v. STATE OF CALIFORNIA

order that a change of circumstances may give rise to the premise calling for the termination of a treaty, it is necessary that it has resulted in a radical transformation of the extent of the obligations still to be performed. The change of circumstances alleged by Iceland cannot be said to have transformed radically the extent of the jurisdictional obligation that was imposed in the 1961 Exchange of Notes. 2. Does Iceland have the right to extend its fishery zone from 12 miles to 50 miles? No, Iceland doesn’t have the right to extend its fishery zone from 12 to 50 miles (bawal sobra greedy much). A fishery zone, “between the territorial sea and the high seas, within the coastal State could claim exclusive fisheries jurisdiction.” This area has been accepted to be 12 miles from its baseline. In international law, if a general practice is accepted by states and is practiced, then this concept is law. 3. What role does the agreement between Iceland and United Kingdom play within the court’s decision? A signed agreement/treaty between two nations is binding agreement that must be upheld between nations. This agreement also proves and shows that Iceland accepted the 12-mile fishery zone jurisdiction and was content with it. Thus, the UK has 2 factors that play favorably in the courts eyes; the facts of the case line up with International Law and an agreement was struck between both nations that lined up with what International Law would allow. ICELAND DIDN’T FOLLOW THE SIGNED AGREEMENT WITH UK. 4. What is the law of the high seas and has it been established? Can it be enforced? According to the United Nations Conference on the Law of the Sea it declared freedom of the high seas and this freedom is to be exercised by all states. However, nothing arouses from these conferences concerning fishery jurisdiction and where it stops. A zone between the territorial zone and the high sea is where fishery jurisdiction stops. Although it was not established in a treaty, states accepted this general rule of a 12-mile fishery zone and given that Iceland did not protest this rule it thus gave consent to it. In its Judgment in the case concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia), the Court found that Hungary was not entitled to suspend and subsequently abandon, in 1989, its part of the works in the dam project, as laid down in the treaty signed in 1977 by Hungary and Czechoslovakia and related instruments. It also found that Czechoslovakia was entitled to start, in November 1991, preparation of an alternative provisional solution (called "Variant C"), but not to put that solution into operation in October 1992 as a unilateral measure. Furthermore, the Court found that Hungary's notification of termination of the 1977 Treaty and related instruments on 19 May 1992 did not legally terminate them (and that they are consequently still in force and govern the relationship between the Parties). Lastly, that Slovakia, as successor to Czechoslovakia became a party to the Treaty of 1977. As to the future conduct of the Parties, the Court found that Hungary and Slovakia must negotiate in good faith in the light of the prevailing situation and must take all necessary measures to ensure the achievement of the objectives of the 1977 Treaty. Unless the Parties agree otherwise, a joint operational regime for the dam on Slovak territory must be estab1ished in accordance with the Treaty of 1977 and each Party must compensate the other Party for the damage caused by its conduct. The accounts for the construction and operation of the works must also be settled in accordance with the relevant provisions of the 1977 Treaty and its related instruments. The Court also held that newly developed norms of environmental law are relevant for the implementation of the Treaty and that the Parties could, by agreement, incorporate them through the application of several of its articles. It found that the Parties, in order to reconcile economic development with protection of the environment, "should look afresh at the effects on the environment of the operation of the Gabcikovo power plant. In particular, they must find a satisfactory solution for the vo1ume of water to be released into the old bed of the Danube and into the side-arms of the river.

A Japanese alien assails the judgment of the lower court. The judgment declared that certain land purchased by him in 1948 had escheated to the State based on the Californian Alien Law which prohibits ineligible aliens from owning land. Plaintiff contends that the land law had been invalidated by the provisions of the UN Charter because the member nations pledged to promote the observance of human rights and fundamental freedoms without distinction as to race. He also contends that the law is violates the due process and equal protection clauses. The relevant issue is whether the provisions of UN Charter superseded the domestic legislation. The Court ruled in the negative and distinguished between a self-executing treaty and a non-selfexecuting treaty. In determining whether a treaty is self-executing, courts look at the intent of the signatory parties as manifested by the language of the instrument. If the instrument is uncertain, and intent cannot be easily determined, the circumstances surrounding the execution should be considered. A treaty is self-executing (meaning, no implementing legislation needed) when its provisions prescribe in detail the rules governing 5

The Court observes, first of all, that the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It considers moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis. The following basic conditions set forth in Article 33 of the Draft Article on the International Responsibility of States by the International Law Commission are relevant in the present case: 1. It must have been occasioned by an "essential interest" of the State which is the author of the act conflicting with one of its international obligations; 2. That interest must have been threatened by a "grave and imminent peril"; 3. The act being challenged must have been the "only means" of safeguarding that interest; 4. That act must not have "seriously impaired an essential interest" of the State towards which the obligation existed; 5. The State which is the author of that act must not have "contributed to the occurrence of the state of necessity". A treaty does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing. As said by CJ Marshall: A treaty is “to be regarded in courts of justice as equivalent to an act of Legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract – when either parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department and the

BAYAN v. ZAMORA

NICOLAS v. ROMULO

Lim v. Executive Secretary

the rights and obligations of individuals. The Court ruled that the provisions relied on by plaintiff (preamble, Article 55, and 56) are non-self-executing (see Fact 4a and 4b). Moreover, there are certain provisions in the UN Charter that are self-executing. Meaning, when the framers of the Charter intended to make certain provision effective without the aid of implementing legislation, they employed language which is clear and definite and manifests that intention (See Fact 6a and 6b). The preamble, Article 55, and 56 are framed as a promise of future action by the member nations. Hence, the charter provisions relied on by plaintiff were not intended to supersede existing domestic legislation, and the court cannot hold that they operate to invalidate the Alien Land Law. However, the Court invalidate the Alien Land Law for violating the due process and equal protection clauses of the Constitution. The United States and the Philippines entered into a Visiting Forces Agreement which was approved by President Ramos and subsequently ratified by President Estrada. The required concurrence from the Senate was handed through its Resolution No. 18. Thus, the VFA was officially entered into force. However, the constitutionality of the VFA was assailed by the petitioners and argued that the VFA violates Sec. 25, Article 18 of the 1987 Constitution, which provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate…. and recognized as a treaty by the other contracting State.” The issue is WoN the VFA is constitutional. The court held that it is constitutional. Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state. The first two requirements were present. The concurrence was handed down by the Senate through its Resolution No. 18 which was compliant with regard the manner of voting as provided by the Constitution (16 is the minimum, which is 2/3 of the ALL the members of Senate, while the actual vote was 23 which was clearly in compliance). With regard to the last requirement, the Court is of the firm view that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. Furthermore, International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations Lance Corporal (L/CPL) Daniel Smith (Smith), along with several others, is a member of the US Armed Forces charged with the crime of rape committed against a Filipina, Suzette Nicolas (Suzette). Pursuant to the Visiting Forces Agreement (VFA), US was granted custody of Smith. He was consequently found guity and was detained at Makati City Jail. However, Smith was transferred to a detention facility under the custody of the U.S. gov’t pursuant to the Romulo-Keneddy Agreement. Petitions, thereafter, contest the transfer by alleging that the Philippines should have custody over Smith because the VFA is void and unconstitutional. The issue is whether or not the VFA is void and the SC upheld the constitutionality of the VFA. Laws of one state do not extend or apply except to the extent agreed upon to subjects of another state due to the recognition of extraterritorial immunity given to such bodies like visiting foreign armed forces. It was simply required that the treaty be recognized as a treaty by the other contracting State. With that, it becomes for both parties a binding international obligation and the enforcement of that obligation is left to the normal recourse and processes under international law. In this case, Court finds that there is a different treatment in the issue of detention as against custody. Hence, after conviction, the rule that governs is Section 10 of the VFA. Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces of the United States of America started arriving in Mindanao to take partin "Balikatan 02-1” on January 2002. The Balikatan 02-1 exercises involves the simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United States in 1951. The exercise is rooted from the international anti-terrorism campaign declared by President George W. Bush in reaction to the 3 commercial aircrafts hijacking that smashed into twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin Laden that occurred on September 11, 2001. Arthur D. Lim and Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari and prohibition attacking the constitutionality of the joint exercise. The issue is whether the VFA allows war to be started by the US Troops in the Philippines against the Abu Sayyaf. The SC held in the negative, using cardinal interpretation rules provided by the Vienna Convention. The VFA was not a camouflage for war. 6

Legislature must execute the contract, before it can become a rule for the court.”

In international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.

It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the other contracting State to convert their system to achieve alignment and parity with ours. It was simply required that the treaty be recognized as a treaty by the other contracting State. With that, it becomes for both parties a binding international obligation and the enforcement of that obligation is left to the normal recourse and processes under international law. *sidenote: Customary law can develop to bind only two or a few states, but the state claiming it must prove that it is also binding on the other party/parties, as was proved by Portugal in the Right of Passage over Indian Territory (ICJ). from the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith." Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty."

PIMENTEL v. EXECUTIVE SECRETARY

RENATO v. ROSARIO

PHARMACEUTICAL v. DOH

The Petitioners, each claiming to have the requisite locus standi to file this petition for the issuance of a writ of mandamus, all seek to compel the President to transmit the Rome Statute, which establishes the International Criminal Court, to the Senate for ratification, in compliance with the State’s alleged ministerial duty to ratify the Rome Statute under treaty law and customary international law. The Rome Statute was signed by the Philippines on Dec. 28, 2000. The issues are: (1) Whether the Petitioners have locus standi, and (2) whether the transmittal to the Senate for concurrence is a ministerial duty of the President, thus compellable by mandamus. The Court held that only Sentaro Pimentel had standing to sue on the ground that, to the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. Further, the Court held that the transmittal of documents is discretionary on the part of the President, he being the sole organ and authority in external relations and is the contry’s sole representative with foreign nations. The steps in treatymaking process are: negotitation, signing, ratification, and exchange of instruments. The signing does not signify the final consent of the State to the treaty. After the treaty is signed by the states representative, the President, being accountable to the people, is burdened with the responsibility and duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has discretion even after signing of the treaty on the matter of ratification. There is no legal obligation to ratify a treaty, but refusal must be based on substantial grounds. The role of the Senate is limited only to concurrence to the ratification. Refusal to ratify is within the competence of the President alone. The Aquino regime came up w/ a scheme to reduce the country’s external debt. Their solution was to incur foreign debts. Three restructuring programs were sought to initiate the program for foreign debts – they are basically buyback programs & bond-conversion programs). Renato claims that the buyback and bondconversion schemes are onerous and they do not constitute the loan “contract” or “guarantee” contemplated in Sec. 20, Art. 7 of the Constitution and the power to incur foreign debts is expressly reserved by the Constitution in the person of the President alone. The issue is WoN the president has a borrowing power and if she can delegate it to Rosario. SC held that there is no question that the president has borrowing powers and that the president may contract or guarantee foreign loans in behalf of this country. Also the president can delegate this power to her direct subordinates. SC also held that the Secretary of Finance has the expertise to execute the debt-relief contracts and executing a strategy for managing the government’s debt and that R.A. No. 245. Section 1 empowers the Secretary of Finance with the approval of the President to borrow from time to time on the credit of the Republic of the Philippines such sum or sums as in his judgment may be necessary. SC also noted that there are certain acts which, by their very nature, must be done by the President alone like the power to suspend the writ of habeas corpus and proclaim martial law and the exercise of prerogative of pardon (mercy) Cory issued E.O. 51, also known as the Milk Code, under her legislative powers granted by the Freedom Constitution. The purpose was to give effect to the International Code of Marketing Breastmilk Substitutes (ICMBS) which was adopted by the World Health Assembly (WHA). The WHA issued several resolutions from 1986 onwards which did not permit breastmilk substitutes to claim nutrition or health benefits. In 2006, DOH issued the Rules and Regulations of E.O. 51, Relevant International Agreements, Penalizing Violations thereof and for other purposes (RIRR). The RIRR was meant to implement E.O. 51 plus the WHA resolutions. The RIRR had provisions which mandated exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and promotions of breastmilk substitutes. The said provisions were not in the Milk Code and were based on the WHA resolutions. The Pharmaceutical and Health Care Association of the Philippines filed a Petition for Certiorari under Rule 65, assailing that the RIRR was unconstitutional and went beyond the law it was supposed to implement (E.O.51). ISSUE WoN the pertinent international agreements entered into by the Philippines are part of the law of the land and may be implemented by the DOH through the RIRR. YES, but only the ICBMS became part of the law of the land. The ICMBS is part of domestic law by transformation—by virtue of a local legislative act, which is the Milk Code. However, the SC held that the WHA resolutions were only soft law, thus not binding/obligatory. As defined by Father Bernas: Custom or customary international law means “a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris ].” This statement contains the two basic elements of custom: (1) the material factor, that is, how states behave—includes elements of duration, consistency and generality of the practice of states. The required duration can either be long or short. The more important element is consistency and generality of practice. (2) the psychological or subjective factor, that is, why they behave the way they do—It is important to determine this; do they behave out of obligation or courtesy? It is the belief that a certain form of behavior is obligatory (opinion juris) that makes practice international rule. DOH was not able to prove that the WHA resolutions have the basic elements of customary law. The DOH therefore could not implement a resolution that is not part of the law of the land. Therefore, the 7

The transmittal of a signed treaty to the Senate by the President is discretionary. The President is the sole organ of international relations.

The heads of the executive departments occupy political positions and hold office in an advisory capacity, "are subject to the direction of the President." Without minimizing the importance of the heads of the various departments, their personality is in reality but the projection of that of the President. "each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution. Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts. The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds of all members of the Senate as required under Section 21, Article VII of the 1987 Constitution.

Abaya v. Ebdane

THE PROVINCE OF NORTH COTABATO vs. GRP PEACE PANEL

provisions that relate to the WHA resolutions and those that are outside the Milk Code cannot be enforced since it is not anchored on any domestic legislation. Based on the Exchange of Notes of the Japanese and Philippine Governments through their respective representatives, Japanese loans would be extended to the Philippines for the promotion of the country’s economic stabilization through Japan Bank International Cooperation (JBIC) as provided in the Loan Agreement. Proceeds of the loan would be used to finance the development project, of which the Catanduanes Circumstantial Road was part of. The road was divided into four contract packages; CP I, II, III and IV. DPWH, as the agency assigned to implement the project, held a bid and after evaluation, the project manager recommended the award of the contract to China Road and Bridge Corporation. A contract of Agreement was entered into by DPWH and China Road for the implementation of the CP I project. Petitioners maintain that the reward of the contract to China Road violates RA 9184 which provides for the ceiling for bid prices. hey claim that because the Loan Agreement entered into by JBIC and the Philippines is neither a treaty, international nor executive agreement, it falls under this law. Issue is WoN Contract Agreement executed by and between the Republic of the Philippines, through DPWH, and the China Road & Bridge Corporation, for the implementation of civil works for CP I under JBIC Loan Agreement is void ab initio. Court ruled that it is valid. EO 40 is applicable. The Court also holds that Loan Agreement taken in conjunction with the Exchange of Notes between the Japanese Government and the Philippine Government is an executive agreement. BIC may well be considered an adjunct of the Japanese Government. Further, Loan Agreement is indubitably an integral part of the Exchange of Notes. It forms part of the Exchange of Notes such that it cannot be properly taken independent thereof. The Philippine Government and the MILF were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Malaysia. Howevever, respondent GRP was enjoined from fomally signing it by virtue of a TRO issued by the Court at the issuance of the petitioners prior to the scheduled signing of the MOA-AD. There was a long process of negation and agreements between the two parties. The GRP and MILF Peace Panels signed the Agreement on General Cessation of Hostilities. Then, they signed the General Framework of Agreement of Intent. However, the MILF attacked a number of municipalities in Central Mindanao and took control of the town hall of Kauswagan, Lanao del Norte. In response, then President Estrada declared and carried out an all-out-war against the MILF. When President GMA assumed office, the military offensive against the MILF was suspended and the government sought a resumption of the peace talks. Formal peace talks were held in Libya which resulted to the crafting of the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) which consists of three (3) aspects: a.) security aspect; b.) rehabilitation aspect; and c.) ancestral domain aspect. Various negotiations were held which led to the finalization of the Memorandum of Agreement on the Ancestral Domain (MOA-AD). The said memorandum was set to be signed last August 5, 2008. In its body, it grants ― the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The latter, in addition, has the freedom to enter into any economic cooperation and traderelation with foreign countries. ― The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE. The MOA-AD further provides for the extent of the territory of the Bangsamoro. It describes it as ― the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. With regard to governance, on the other hand, a shared responsibility and authority between the Central Government 8

Significantly, an exchange of notes is considered a form of an executive agreement , which becomes binding through executive action without the need of a vote by the Senate or Congress. Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments – treaties and conventions.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.

BAYAN MUNA V. ROMULO

China Nationality Machinery v. Santamaria

DEUTSCHE BANK v. CIR

and BJE was provided. The relationship was described as ― associativeǁ . With the formulation of the MOA-AD, petitioners aver that the negotiation and finalization of the MOA-AD violates constitutional and statutory provisions on public consultation, as mandated by Executive Order No. 3, and right to information. They further contend that it violates the Constitution and laws. Hence, the filing of the petition. The issues are: PROCEDURAL: 1) W/N the case if ripe for adjudication? – Yes. The case was ripe for adjudication for it was held that any alleged violation of the Constitution by any branch of the government is a proper matter for judicial review. 2) W/N the petitions have become moot and academic? – No, the controversy was an exception to the “moot and academic” principle due to tis nature. SUBSTANTIVE: 1) WoN the respondents violated constitututional and statutory provisions on public consultation and right to information when they negotiated and later initiated the MOA-AD – Yes. 2) W/N the signing of the MOA, the Government of the Republic of the Philippines would be binding itself a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not recognized by law; - Yes. b) to revise or amend the Constitution and existing laws to conform to the MOA; - Yes. c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of Republic Act No. 8371. Bayan Muna through its representatives is assailing the validity of the RP-US non surrender agreement because it was said that the said agreement were just mere exchange of notes by the Ambassador of US and the DFA secretary. Basically, the RP-US agreement talks about protection of Filipino and American national from harassment suits. Petitioners are claiming that it is in contravention to the existing international law principles, treaties, the Rome statute and most importantly the constitution for it failed to undergo Senate concurrence for ratification. The main issue is whether or not the agreement is valid and the Supreme Court ruled on various issues but to sum it up it said that the Agreement is valid as an Executive agreement which does not need ratification and it does not violate principles of international law. CNMEG entered into a Memorandum of Understanding with Northrail for the conduct of a feasibility study on a possible railway line from Manila to San Fernando, La Union (the Northrail Project). Thereafter, they executed a Contract Agreement for the construction of Section I, Phase I of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis for USD 421,050,000. Then, the Philippine government and EXIM Bank entered into a counterpart financial agreement Buyer Credit Loan Agreement. The respondents filed complaint with regard to the Contract Agreement and the Loan Agreement. The issue in the case is WoN the Contract Agreement is an executive agreement, such that it cannot be questioned by or before a local court. The SC ruled in the negative. The 1st and 3rd requisite to be considered an executive agreement. CNMEG is not a government nor a government agency and the Contract Agreement is governmenrd by the Philippine Law. Deutsche Bank AG Manila Branch paid 15% of the gross amount of the profits it remitted to Deutsche Germany to the BIR. Claiming that it overpaid, it filed with the BIR an administrative claim for refund and later a confirmation with BIR-ITAD of its entitlement of 10% preferential tax under the RP-Germany Tax Treaty. Due to the inaction of BIR, it filed a petition for review with the CTA. The CTA 2nd Division ruled that Deutsche violated the 15-day period provided for RMO No. 1-2000 and that it should have first filed with ITAD prior to the payment of of its BPRT and remittance of its profits to Germany OR prior to its availment of the preferential tax rate of 10% under the RP-Germany Tax Treaty. The CTA En Banc affirmed this also citing the Mirant case which held that a prior ruling of ITAD must 9

An exchange of notes falls into the category of intergovernmental agreements, which is an internationally accepted form of international agreement. It is fairly clear from the foregoing disquisition that the Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound is a recognized mode of concluding a legally binding international written contract among nations. An executive agreement is similar to a treaty, except that the former (a) does not require legislative concurrence; (b) is usually less formal; and (c) deals with a narrower range of subject matters. Despite these differences, to be considered an executive agreement, the following three requisites provided under the Vienna Convention must nevertheless concur: (a) the agreement must be between states; (b) it must be written; and (c) it must governed by international law. The time-honored international principle of pacta sunt servanda demands the performance in good faith of treaty obligations on the part of the states that enter into the agreement. Tax treaties are entered into to reconcile the national fiscal legislations of the contracting parties and in turn, help the taxpayer avoid simultaneous taxations in two different jurisdictions. Thus, laws and issuances must

Saguisag v. Executive Secretary(

INTERNATIONAL STATUS OF SOUTH WEST AFRICA

Filartiga v. Pena-Irala

be secured first before the availment of a preferential tax rate. On appeal to the Supreme Court the high court ruled that first, the Mirant case is not a binding precedent because it was a minute resolution. With respect to the same subject matter and same issues concerning the same parties it constitutes res judicata but if other parties or another subject matter (even with the same parties and same issues) is involved, the minute resolution is not binding precendent. There are differences in parties, taxes, taxable periods, and treaties involved. Furthermore, the generally accepted principle of pacta sunt servanda provides the performance in good faith of treaty obligations on the part of the states that enter into the agreement. Every treaty in force is binding upon the parties, and the obligations under the treaty must be performed by them in good faith. Tax treaties are drafted for the apparent rationale for doing away with double taxation is to encourage the free flow of goods and services and the movement of capital, technology and persons between countries, conditions deemed vital in creating robust and dynamic economies. The period of application for availment of tax treaty relief should not operate to divest entitlement to the relief as it would constitute a violation of the duty required by good faith in complying with a tax treaty. Petitioners are arguing that EDCA should have been in the form of a treaty concurred in by the Senate, not an executive agreement. The Court distinguished between treaties, which are formal documents that require ratification with the approval of two-thirds of the Senate, and executive agreements become binding through executive action without the need of a vote by the Senate or by Congress. The SC basically ruled that the President may enter into the EDCA as an executive agreement because it was necessary to implement the existing provisions of the Visiting Forces Agreement and the Mutual Defense Treaty between the Philippines and the United States. Hence, there was no need for a treaty that required ratification. GENERAL PRINCIPLES After the end of WWII, the Union Gov’t of South Africa is seeking to integrate South-West Africa after the dissolution of the League (w/c was responsible for the administration of the SW Africa). Accdg to the Union, the dissolution of the League brought with it the extinguishment of all international legal rights and obligation under the Mandates System. Hence, the Union would then be free to regulate the status of South-West Africa as a domestic matter. UN General Assembly (UN GA) asked the International Court of Justice (ICJ) to advise on the international status of SW Africa. ICJ said that SW Africa cannot be integrated with the Union. SW Africa’s administration is under the UN, not the Union Gov’t of South Africa. The dissolution of the League of Nations and its supervisory machinery had not entailed the lapse of the Mandate, and that the mandatory power was still under an obligation to give an account of its administration to UN. McNair, in his opinion, explained that it is akin to a “Trust System” and it would be in violation of the trust to absorb SW into South Africa. The Mandatory created a status for SW Africa. This status –valid in rem – gives the element of permanence which would enable the legal condition of SW to survive the disappearance of the League. This is still true even if there were no surviving personal obligation bet. The Union and former members of the League. Hence, the dissolution of the League did not transfer its functions to the United Nations with regard to the administration of the territory. The continuing international obligations of the Union of South Africa under the Mandate for SW do not include the obligation to accept the administrative supervision of UN. Pena tortured and killed Joselito, the son of Dr. Joel. When Dolly, daughter of Dr. Joel found out that Pena and his partner, Villalaba, is living in the US, she informed the Immigration and Naturalization Service which, later on, arrested them for staying beyond what is allowed in his visa. Dolly caused Pena to be served with a summons and civil complaint at the Brooklyn Navy Yard, where he 10

ensure that reliefs granted under tax treaties are accorded to the parties entitled thereto.

The President may generally enter into executive agreements subject to limitations defined by the Constitution and may be in furtherance of a treaty already concurred in by the Senate.

This Anglo-American Trust is akin to the Mandates System trustees are vested with the property and its management in order that the public or some class of the public may derive benefit or that some public purpose may be served. It would be in violation of the trust to absorb South West Africa into South Africa. International status created for South-West Africa subsists. Although there is no longer any League to supervise the exercise of the Mandate, it would be an error to think that there is no control over the Mandatory

An act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.

Trendtex v. Central Bank of Nigeria

TANADA v. ANGARA

was being held pending deportation. Dolly’s Complaint contained the fact that Pena had caused Joelito’s death by torture and sought (1) compensatory and punitive damages of $10m and (2) to enjoin Pena’s deportation to ensure his availability for testimony at trial. However, Judge Nickerson dismissed the complaint on jurisdictional grounds. The issue in this case is whether or not deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties. The court ruled that prohibition not only was part of Customary International Law, but was also part of the Universal Declaration of Human Rights. Members of the UN cannot claim ignorance of what human rights they promised the Charter. The UDHR is an authoritative statement of the international community. It creates an expectation of adherence. The international consensus surrounding torture has been manifested in numerous treaties and is also reflected in modern municipal law. Torture is prohibited in the constitutions of over 55 nations including the US and Paraguay. The Central Bank of Nigeria issued a letter of credit drawn on the Midland Bank in London in favour of Trendtex Trading Corporation, a Swiss company. It was to pay for a large quantity of cement sold by Trendtex to an English company. The bank assured Trendtex by letter that there was no need to get the letter of credit confirmed by another bank: the money would be available. So Trendtex went ahead, bought the cement from a German company, sold it to the English company, and shipped it to Nigeria. Now the bank refuses to pay and treats the letter of credit as a scrap of paper. The cement was bought by the English company to build barracks for the Ministry of Defence of the Government of Nigeria, which had agreed to buy it from the English company. The bank claims to be an arm or department of that government and to have performed an act of government in granting Trendtex this letter of credit. Whether the grant was a public act of government or a private commercial transaction, it would offend against the dignity of the sovereign state of Nigeria and the comity of civilised nations if the bank had to defend Trendtex’s claim to payment in accordance with the letter of credit in the courts of this country against the Nigerian Government’s will; and it would be a breach of international law if the High Court of Justice in England were to compel the bank to defend the claim. We have to consider whether that was rightly done or whether he should have held that he was not required by international law to uphold the plea of sovereign immunity in respect of an act done by the bank in the ordinary course of banking business in connection with an ordinary commercial transaction and should have allowed the action to go on. The court held that the restrictive immunity must be applied in this case and plea of sovereign immunity, does not avail the Central Bank of Nigeria . There is no doubt that in the last 20 years the restrictive theory has steadily gained ground. According to a list compiled by reference to the various textbooks on international law and put before their Lordships by agreement between the parties there are now comparatively few countries outside the Commonwealth which can be counted adherents of the absolute theory. Many countries have now departed from the rule of absolute immunity . So many have departed from it that it can no longer be considered a rule of international law. It has been replaced by a doctrine of restrictive immunity. This doctrine gives immunity to acts of a governmental nature, as jure imperii , but no immunity to acts of a commercial nature, jure gestionis . And in this case, if a government department goes into the market places of the world and buys boots or cement – as a commercial transaction – that government department should be subject to all the rules of the market place. The seller is not concerned with the purpose to which the purchaser intends to put the goods. This is a petition seeking to nullify the Philippine ratification of the World Trade Organization (WTO) Agreement. Petitioners question the concurrence of herein respondents acting in their capacities as Senators via signing the said agreement. The WTO opens access to foreign markets, especially its major trading partners, through the reduction of tariffs on its 11

Applying the generally accepted principle of restrictive immunity, (because the international community has now departed from absolute immunity), it states that if a certain act is jure impreii, it gives immunity to acts of a governmental nature, but no immunity to acts of a commercial nature, jure gestionis.

The alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by the adoption of the generally

MIJARES v. RANADA

exports, particularly agricultural and industrial products. Thus, provides new opportunities for the service sector cost and uncertainty associated with exporting and more investment in the country. These are the predicted benefits as reflected in the agreement and as viewed by the signatory Senators, a “free market” espoused by WTO. Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair Philippine economic sovereignty and legislative power. That the Filipino First policy of the Constitution was taken for granted as it gives foreign trading intervention. The issue in this case is whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement. In its Declaration of Principles and state policies, the Constitution “adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered automatically part of our own laws. Pacta sunt servanda – international agreements must be performed in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the parties. Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because it is a regulation of commercial relations among nations. Such as when Philippines joined the United Nations (UN) it consented to restrict its sovereignty right under the “concept of sovereignty as autolimitation.” What Senate did was a valid exercise of authority. As to determine whether such exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of signing the said agreement is not a legislative restriction as WTO allows withdrawal of membership should this be the political desire of a member. Also, it should not be viewed as a limitation of economic sovereignty. WTO remains as the only viable structure for multilateral trading and the veritable forum for the development of international trade law. Its alternative is isolation, stagnation if not economic self-destruction. Thus, the people be allowed, through their duly elected officers, make their free choice. Mijares et al., (petitioners), are prominent victims of human rights during the Marcos regime. They filed a civil case in the RTC of Makati enforing a judgment of the US District Court in Hawaii awarding the plaintiffs in that case (it was a class suit) around $1.9Billion (but later in the facts it stated that what they sought to enforce was $2.25Billion na). The Marcos Estate filed a motion to dismiss on the ground that Mijares et al. did not pay the proper filing fees (they paid P410 only, on the ground that the action is incapable of pecuniary estimation as it is an action enforcing a foreign judgment, while the Marcos Estate believes they should pay P472M since it’s an enforcement of a monetary claim which is capable of pecuniary estimation). Judge Ranada then dismissed the case and denied Mijares et al’s MR. The case was then elevated to the Supreme Court. The Court ruled that perhaps in theory, such an action is primarily for the enforcement of the foreign judgment, but there is a certain obtuseness to that sort of argument since there is no denying that the enforcement of the foreign judgment will necessarily result in the award of a definite sum of money. The complaint to enforce the US District Court judgment is one capable of pecuniary estimation. But at the same time, it is also an action based on judgment against an estate, thus placing it beyond the ambit of Section 7(a) of Rule 141. Hence the applicable rule would be Rule 141 Section 7(b)(3) because it is an action not involving property. The amount paid as docket fees by Mijares et al. on the premise that it was an action incapable of pecuniary estimation corresponds to the same amount required for other actions not involving property. The Court also discussed enforcement of foreign judgments in local courts. There is no hard and fast rule and states have different procedures for such. But although there is no express rule discussing the procedure to be taken, relative to the enforcement of foreign 12

accepted principles of international law as part of the law of the land and the adherence of the Constitution to the policy of cooperation and amity with all nations. The Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement thereby making it “a part of the law of the land” is a legitimate exercise of its sovereign duty and power. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda -- international agreements must be performed in good faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.

There is no obligatory rule derived from treaties or conventions that requires the Philippines to recognize foreign judgments, or allow a procedure for the enforcement thereof. However, generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations.

MEDELLIN vs. TEXAS

LEGAL STATUS OF EASTERN GREENLAND CASE (DENMARK v. NORWAY)

judgments in the Philippines, it emerges that there is a general right recognized within our body of laws, and affirmed by the Constitution, to seek recognition and enforcement of foreign judgments, as well as a right to defend against such enforcement on the grounds of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. Medellin together with his gang, raped 2 girls. He was arrested and was convicted of murder and sentenced to death. Upon his arrest, the officers failed to inform him of his right under the Vienna Convention to notify the Mexican consulate of his detention. He only raised this on appeal but the state trial court held that the claim was procedurally defaulted because he had failed to raise it at trial or on direct review. Pending his appeal, the ICJ decided on the case (Avena case) and ruled that his right under the convention was violated but the domestic courts still refused to apply the ICJ decision. The issue is WoN the ICJ decision on Avena has automatic domestic legal effect.-NO because not all treaties are self-executory and becomes domestic law automatically. The SC held that Article 94 of the convention does not provide that the US “shall” or “must” comply with an ICJ decision, nor indicate that the Senate that ratified the U. N. Charter intended to vest ICJ decisions with immediate legal effect in domestic courts. Instead, “[t]he words of Article 94 . . . call upon governments to take certain action. WRITINGS AND OTHER SOURCES A suit was instituted before the Permanent Court of International Justice (PCIJ) by Royal Danish Government against the Royal Norwegian Gov’t over the legal status of certain territories in Eastern Greenland. The Norwegian Minister for Foreign Affairs to the Danish Minister at Oslo, the Norwegian Government stated in its Royal Resolution (July 10th, 1931) that the occupation in the Eastern Greenland is officially confirmed and is placed under Norwegian sovereignty. The Danish Government informed the Norwegian Government that it had submitted the question on the same day to the Permanent Court of International Justice. The Danish Gov’t contends that (1) Denmark had enjoyed and had peacefully and continuously exercised an uncontested sovereignty over Greenland for a long time (up till 1921, no Power disputed the Danish claim to sovereignty) (2) Norway had recognized Danish sovereignty over the whole Greenland (through conventions and treaties) and (3) that the Norway is bound by the Ihlen Declaration (Fact#16 but this basically talks about how the Norwegian Minister bound Norway by saying that the Danish sovereignty over the whole of Greenland would meet with no difficulties on the part of Norway). Norway counters that Denmark possessed no sovereignty over the area which Norway occupied because the word "Greenland" is not used in the geographical sense, but means only the colonies or the colonized area on the West coast and that at the time of the occupation the area was terra nullius (nobody’s island). Issue is WoN Eastern Greenland belongs to Norway? The Court ruled that Eastern Greenland rightfully belongs to Denmark. The importance of these treaties is that they show a willingness on the part of the States with which Denmark has contracted to admit her right to exclude Greenland. To some of these treaties, Norway has herself been a Party, and these must be dealt with later because they are relied on by Denmark as constituting binding admissions by Norway that Greenland is subject to Danish sovereignty. Denmark possesses sovereignty over Greenland as a whole and to the extent that these treaties constitute evidence of recognition of her sovereignty over Greenland in general Denmark is entitled to rely upon them. Norway is now estopped from claiming Greenland because until 1931 there was no claim by ANY STATE other than Denmark to Greenland, Norwegian government as undertakings which recognized DANISH over all GREENLAND as evidenced by hey entered Bilateral and multilateral agreements (Norway and Denmark have enetered agrrements wherein Greenland was described as Denmark’s colony) and the existence of the Ihlen Declaration (Norway debarred herself or under obligation 13

There are various kinds of treaties. Some have automatic effect of becoming domestic law while others do not. The Vienna Convention is not selfexecutory and does not convert ICJ decision into domestic law automatically.

Treaties constitute evidence of recognition of sovereignty

NUCLEAR TESTS CASE (AUSTRALIA V. FRANCE)

Montevideo Convention on Rights and Duties of States (1934)

to refrain from contesting a historic Danish sovereignty) Australia instituted a dispute proceeding against France concerning tests of nuclear weapons conducted in the South Pacific region. France stated that it considered the court manifestly lack jurisdiction and refrained from appearing at the public hearings and from filing any pleadings. However, there was an announcement made by the French government in 1974 hat it had finished the nuclear atmospheric tests. Such being the case, the court by 9 votes to 6, has found that the claim of Australia no longer had any object and that the Court was therefore not called upon to give a decision thereon. In the reasoning of its Judgment, the Court adduces the following considerations: • Even before turning to the questions of jurisdiction and admissibility, the Court has first to consider the essentially preliminary question as to whether a dispute exists and to analyse the claim submitted to it; • the original and ultimate objective of Australia is to obtain a termination of those tests; • France, by various public statements made in 1974, has announced its intention, following the completion of the 1974 series of atmospheric tests, to cease the conduct of such tests; • Court finds that the objective of Australia has in effect been accomplished, inasmuch as France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific; • the dispute having thus disappeared, the claim no longer has any object and there is nothing on which to give judgment Thus the Court finds that no further pronouncement is required in the present case. It does not enter into the adjudicatory functions of the Court to deal with issues in abstract, once it has reached the conclusion that the merits of the case no longer fall to be determined. The object of the claim having clearly disappeared, there is nothing on which to give judgment The Montevideo Convention on the Rights and Duties of States is a treaty signed at Montevideo, Uruguay, on December 26, 1933, during the Seventh International Conference of American States. The Convention codifies the declarative theory of statehood as accepted as part of customary international law. At the conference, United States President Franklin D. Roosevelt and Secretary of State Cordell Hull declared the Good Neighbor Policy , which opposed U.S. armed intervention in inter-American affairs. The convention was signed by 19 states. The acceptance of three of the signatories was subject to minor reservations. Those states were Brazil, Peru and the United States. As a restatement of customary international law, the Montevideo Convention merely codified existing legal norms and its principles and therefore does not apply merely to the signatories, but to all subjects of international law as a whole.

One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international cooperation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.

Declaration on Granting the Independence To Colonial Countries and Peoples AUSTRO-GERMAN CUSTOMS UNION CASE, ADVISORY OPINION,

FRENCH INDEMNITY OF 1831

France paid the US compensation to be distributed among US nationals in respect of certain damage caused during the Napoleonic Wars. Some claims were made that related to injuries apparently caused by Holland and Denmark and the question arose whether France was responsible for them. The report of the US Commission that distributed the compensation was supplemented by notes of Commissioner Kane indicating the general principles upon which the Commission had relied. The issue is WON France was liable for the injuries caused by Holland and Denmark? YES for Holland, NO for 14

(from the notes of the Commission) Independence as a requirement of statehood means, to some extent, factual, as well as legal, independence from other states. Although it is accepted that states may influence the policies and conduct of

CASE CONCERNING RIGHTS OF NATIONALS OF THE UNITED STATES OF AMERICA IN MOROCCO

REPORT OF THE FIFTH COMMITTEE OF FIRST ASSEMBLY

Denmark. France was liable for injuries caused by Holland because Holland was already a dependent kingdom (to France) and King Louis was merely a sovereign existing only by name. It was noted that Holland after some 10 years of political changes during which, though nominally independent, she was tributary to all the projects of France and had received King Louis, a king of the Napoleon family. Although King Louis had sovereignty over Holland, he was reminded that the country was a French Conquest and that his highest and imprescriptible duties were to the imperial crown, France. His submission was seen in the French-Dutch Treaty of March 16, 1810 where King Louis had no choice but to yield as he was a prisoner at the time at Paris. France was not liable for the injuries caused by Denmark because Denmark was an actual sovereign state. The question that was raised before the Commission pertained to France and not Denmark. One cannot be charged with the acts of the other; for neither was dependent. The conduct of King Frederic (King of Denmark) was an act of his own; the Kingdom of Denmark was then, as now, independent. Commissioner Kane explained that the broad distinction between the cases of Holland and Denmark which mainly referred to independence as a requirement of statehood. Holland was a nominal sovereignty (sovereign only by name) and Denmark was an actual sovereignty. Here, the U.S. is questioning several provisions revolving around the question of US imports without official allocation of currency in the French Zone of Morocco were subject to licensing control, the extent of consular jurisdiction of the U.S. in the same area, and whether or not U.S. nationals are subject to taxation. As regards the regulation of imports, the ICJ held that the General Act of Algeciras guarantees economic liberty to all participating countries. At the time this case was decided, Morocco was still under the Protectorate of France. The U.S. now argues that several provisions of a residential decree issued which states that all imports without official allocation of currency were subject to a licensing system, except for imports coming from France/French Union. The ICJ held that Morocco, being under the Protectorate of France, did not cede its personality as a State under international law. Therefore, following the principle of economic equality, France cannot now give itself advantages over other states with mostfavorednation clauses such as the U.S. As regards the extent of consular jurisdiction, the ICJ held that the U.S. exercises consular jurisdiction in the French Zone of Morocco because several Conventions such as the one between France and Great Britain, presuppose that the U.S. was already exercising consular jurisdiction at the time. Therefore, U.S.’ consular jurisdiction is only to the extent that these provisions will be put into effect. Lastly, the ICJ held that the U.S. is bound by Moroccan laws even if it does not give its prior assent. The right of assent that the U.S. is trying to invoke only pertains to the need for U.S.’ assent before its own consular court in Morocco can apply Moroccan law to its nationals. This does not mean that the consular courts have the power to completely prohibit the application of Moroccan laws to their nationals. As for taxation, the exemption granted is only for proteges – people in the diplomatic service – and that the blanket exemption has been abrogated when Spain and Britain abrogated the same rights because this is what U.S. was trying to invoke. The Principality of Lichtenstein sought admission to the League of Nations. In order to be admitted to the membership, it required that any fully governing state, Dominion or Colony should be able to observe and guarantee the fulfillment of international obligations and such regulations imposed under 15

another state, there may come a point, where factual dependence by one state upon another is so great that it is really no more than a “puppet” state and will not be treated as meeting the requirement of independence.

he question now is whether or not France is also bound by this principle of equality, and thus making it improper for France to put itself in a more favored position than the other States. It is not disputed that Morocco, even under the protection of the French Government, has RETAINED ITS PERSONALITY AS A STATE UNDER INTERNATIONAL LAW. The rights of France in Morocco are defined by the Protectorate Treaty of 1912, and therefore, France is not accorded a privileged position even in Morocco, the state it protects.

OF THE LEAGUE OF NATIONS, WITH REFERENCE TO ADMISSION TO THE LEAGUE OF LICHTENSTIEN

TINOCO ARBITRATION

Western Sahara Case

the covenant, with regard to its military, naval and air forces and armaments (military weapons and equipment). However, although the application was in order, the Commission rejected the application of Lichtenstein for the ultimate reason that the Principality of Lichtenstein will not be able to discharge al the international obligations that may be prescribed. The Principality of Lichtenstein has been recognized as a de jure government, as proven by the treaties it has concluded and that it possesses a stable government and fixed frontiers, there is no doubt that it is a sovereign state. However, by reason of its limited area, small population, and geographical position, it had to delegate certain aspects of its sovereignty. It even had diplomatic representations from other countries, and had to rely on such for decisions in certain judicial cases. Furthermore, the Principality of Lichtenstein has no army. Thus, it would be difficult for Lichtenstein to comply with the international obligations that may be set in accordance with the Covenant. However, the League of Nations sought the special committee to look for other means to allow these kind of sovereign states to be admitted, although not as ordinary members. Tinoco, then Secretary of War under Pres. Gonzalez, used the army and the navy to seize the government and become the commander-in-chief. He constituted a provisional government at once and summoned the people to an election for deputies to a constituent assembly on the first of May, 1917. Tinoco then was inaugurated as the President to administer his powers under the former constitution until the creation of a new one. A new constitution was adopted June 8, 1917, supplanting the constitution of 1871. For a full two years Tinoco and the legislative assembly under him peaceably administered the affairs of the Government of Costa Rica, and there was no disorder of a revolutionary character during that interval. However, he renounced his presidency because of his health. Under the government of Barquero, the old constitution was restored. Subsequently, Congress passed a Law of Nullities which invalidated all contracts between the executive power and private persons, made with or without approval of the legislative power covering the period of the Tinoco government. Because of this, Great Britain made claims on the basis done to its nationals caused by the annulments. Costa Rica denies its liability and argued that since Great Britain did not recognize the Tinoco government, it is now estopped from claiming. W/N Great Britain was estopped from its claim because of its non-recognition of the Tinoco Regime? NO, the failure to recognize the de facto government did not lead the succeeding government to change its position in any way upon the faith of it. Non-recognition may have aided the succeeding government to come into power; but subsequent presentation of claims based on the de facto existence of the previous government and its dealings does not work an injury to the succeeding government in the nature of a fraud or breach of faith. The nonrecognition of the Tinoco regime by Great Britain did not dispute the de facto existence of that regime. There is no estoppel since the successor government had not been led by British non-recognition to change its position. In question are the legal ties and the existence of the Sultan of Morroco and some of the tribes in Western Sahara. Back then, the tribes consisted of nomadic people who transferred from one portion of land to another. This fact was taken into consideration by the Courts in arriving at a conclusion for the advisory opinion. The court couldn’t limit themselves to the question of legal ties in relation to territory alone. According to the Court, there are legal ties between the (1)Western Sahara and the Kingdom of Morocco and the legal ties between(2) Western Sahara and the Mauritian entity. As for the first pair, the court says that even considering the special structure of Morocco which claims its authority over the tribes via religion and not territory, there are no legal ties in relation to sovereignty over territory. But there are legal 16

Non-recognition may have aided the succeeding government to come into power; but subsequent presentation of claims based on the de facto existence of the previous government and its dealings does not work an injury to the succeeding government in the nature of a fraud or breach of faith.

Legal ties must be understood as the legal ties as may affect the policy to be followed in the decolonization of Western Sahara. The court cannot consider the view that the ties could be limited to ties established directly with the territory. It must also consider the ties with its population.

Commonwealth of South Australia v. State of New South Wales

INT’L STATUS OF SOUTHWEST AFRICA

LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA (SOUTH-WEST AFRICA) NOTWITHSTANDING SECURITY COUNCIL RESOLUTION

ties between Western Sahara and the Kingdom of Morocco because of allegiance to the Sultan of Morocco. The Sultan, in some of the tribes, was recognized by some of the tribes as one who has authority and influence over them. As for the second pair, the court said that even though there existed between the two linguistic, religious etc ties, there was no common institution or organ. The court cannot consider Mauritanian entity as a character of personality or corporate entity distinct from the several emirates or tribes which composed it. Therefore, there was no legal tie of allegiance or sovereignity. BUT! The court did consider that because of the nature of the nomadic tribes that migrated, there are rights over the lands that the nomadic tribes migrated through. This constituted the legal ties between the two states. An action for damages was instituted by the Commonwealth against the State of New South Wales because of a collision which took place in Port Jackson. The defendant (New South Wales) argued that the High Court has no jurisdiction to entertain an action brought by the Commonwealth against the State of New South Wales without the consent of that State. The case was brought before the Full Court. The issue is WON the High Court has jurisdiction to try cases filed against the State of New South Wales without its consent. The Court ruled in the affirmative saying that the Australian Constitution conferred jurisdiction to it. More importantly (and in relation to our topic), the State of New South Wales cannot argue that the Commonwealth sued it without its consent. As a consequence of the absolute independence of every sovereign authority and of the international comity which induces every sovereign State to respect the independence of every other sovereign State, each State declines to exercise by means of any of its Courts any of its territorial jurisdiction. There is nothing in the Constitution to prevent the Court from observing in a proper case the respect due to the independence and dignity of foreign nations on the principle of international comity. In this case, however, the State of New South Wales, as an Australian State, cannot be regarded as a sovereign State. It is not a foreign country as regards the Commonwealth. After the war of 1914-1918, South-West Africa ws placed under a Mandate conferred upon the Union of South Africa. The Union was to have full power of administration and legislation over the territory. After WW II, the Union alleged that the Mandate System has lapsed and sought recognition from the UN to integrate South-West Africa to the Union. The UN declined and instead suggested that South-West Africe be placed under Trusteeship of the Union. The Union refused, hence the GA went to the ICJ for advisory opinion. The ICJ held that the Union cannot unilaterally modify the international status of the Territory under it, or any other international rules. The consent of the Council of the League, now the GA of the UN, is required for any medication. The ICJ also held that putting the territories is not in fact mandatory for the Union to do, but that the Mandatory (Union) was still under an obligation to give an account of its administration to the UN, which was legally qualified to discharge the supervisory functions formerly exercised by the League of Nations. The Mandate for South West Africa was terminated. This Mandate was created by the League of Nations to aid humanity as a sacred trust of civilisation. The concept of sacred trust was given to all territories that have not yet attained self-government. The Mandate gave South Africa the right to administer Namibia. But, due to several reasons, the General Assembly terminated such mandate. Security Council declared that the continued presence of the South African authorities in Namibia was illegal and that all acts taken by the South African Government on behalf of or concerning Namibia after the termination of the Mandate were illegal and invalid. Security Council decided to request of the Court an advisory opinion on the legal consequences for States of the continued presence of South Africa in Namibia. Hence, this document. Read 17

The High Court has jurisdiction to entertain an action for a tort brought by the Commonwealth against a State without the consent of that State. In this case, the State of New South Wales is not a “sovereign State” which is protected by the principle of international comity.

The international status of the Territory results from the international rules regulating the rights, powers and obligations relating to the administration of the Territory and the supervision of that administration. The Mandatory (the Union herein) has no competence to modify unilaterally the international status of the Territory or any of these international rules. Art. 7 of the Mandate expressly provides that the consent of the Council of the League of Nations (now UN GA) is required for any modification of the terms of the Mandate. In the view of the Court, the termination of the Mandate and the declaration of the illegality of South Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of the situation which is in violation of international law.

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,

In Re Seccession of Quebec

Province of North Cotabato v. GRP Peace Panel

Ratio for the consequences. The ICJ was requested by the UN General Assembly to give its Advisory Opinion on whether or not the declaration of the independence of Kosovo in 17 February 2008 by the persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration violated general international law. The Court first notes that during the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation. A great many new States have come into existence as a result of the exercise of this right. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases. The Court observes, however, that while the Security Council has condemned particular declarations of independence, in all of those instances it was making a determination as regards the concrete situation existing at the time that those declarations of independence were made; it states that “the illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)”. For the reasons already given, the Court considers that general international law contains no applicable prohibition of declarations of independence. Accordingly, it concludes that the declaration of independence of 17 February 2008 did not violate general international law. The Court further arrives at the conclusion, the authors of the declaration of independence of 17 February 2008 did not act as one of the Provisional Institutions of Self-Government within the Constitutional Framework created by the United Nations, but rather as persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration. Or in other words, the actors disregarded the framework set up by the UN Security Council, but instead declared independence on its own terms. Following the close referendum result in the 1995 referendum, Government of Canada initiated a reference to the Supreme Court to question the legal issues surrounding the unilateral secession of Quebec. The Quebec government chose not to participate in the decision, so André Jolicoeur was assigned as an amicus curiae by the Court. He argued that the matter was purely a matter of international law that the Supreme Court of Canada has no jurisdiction over, and that the matter was entirely a political question and not justiciable Canada wins. Quebec can’t just leave. Petitioners, the Province of Cotabato, comprised of several groups, challenges the constitutionality of the MOA- AD (Memorandum of Agreement in the Ancestral Domain) entered into between the Government of the Republic of the Philippines (GRP) and the MILF. On August 2, 2008, the GRP and MILF were scheduled to sign the MOA-AD in Kuala Lumpur, Malaysia. However, upon the initiative of several groups, the SC issued a Temporary Restraining Order Enjoining the GRP from signing the same. The MOA- AD is challenge on several grounds, among which is the creating of a “Bangsamoro Juridical Entity” (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro people. The MOA-AD seeks to introduce the concept of an “associative relationship” between the BJE and the Central Government. Issue are: (1) WoN the MOA-AD is inconsistent with the Constitution and laws; (2 ) W/N the signing of the MOA-AD, the Government of the Republic of the Philippines 18

Self-determination is about nations, and not specific people inside the nation unless they are subjugated or oppressed.

The MOA-AD contains many provisions which are consistent with the international legal concept of association, specifically the following: (a) the BJE’s capacity to enter into economic and trade relations with foreign countries, (b) the commitment of the Central Government to ensure the BJE’s participation in meetings and events in the ASEAN and the specialized UN agencies, and (c) the continuing responsibility of the Central Government over external defense, etc. These provisions of the MOA indicate that the Parties

would be binding itself: (a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not recognized by law; (b) to revise or amend the Constitution and existing laws to conform to the MOA. The court held that MOA-AD is inconsistent with the constitution and laws because it would have included foreign dignitaries as signatories. The mere fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the agreement is internationalized so as to create obligations in international law. SC held further that the signing of the MOA-AD, the Government of the Republic of the Philippines would be binding itself to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not recognized by law MOA-AD contains many provisions which are consistent with the international legal concept of association. These provisions of the MOA indicate that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it.

Ebdalin: “The International Criminal Court: An Overview

INTERNATIONAL ORGANIZATIONS On 17 July 1998, 120 States gathered in Rome for the Rome Diplomatic Conference to adopt the Statute for the Establishment of the International Criminal Court . The International Criminal Court (ICC) has jurisdiction to try individuals for the most serious crimes of international concern. It is permanent in character and not limited by geographical boundaries. Historical Background The genesis of the ICC began in 1946 with the realization that important principles and precedents should serve as basis for further codification of international law. UN Security Council established ad hoc tribunal for such crimes, which led to the realization that there was no mechanism to punish perpetrators of heinous crimes when national systems failed or were unwilling to take action against them. Statute in Brief Established as a permanent institution, has the power to exercise jurisdiction over persons for the most serious crimes of international concern and complementary to national criminal jurisdictions. Crimes covered are genocide, crimes against humanity, war crimes, and the crime of aggression Philippine Position Philippines was for the establishment of an effective and efficient ICC. In order for it to be effective and efficient, the Philippines submitted that the ICC should have its own international legal personality Salient Issues Crime of aggression remains undefined and will not come within the jurisdiction of the Court until a definition is adopted. Article 17 of the Statute – Standards to determine whether a State is unwilling or unable to carry out the case. Role of the Security Council in the ICC 19

aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it. This cannot be since the Constitution provides that, No province, city, or municipality, not even the ARMM, is recognized under our laws as having an “associative” relationship with the national government. The concept implies powers that go beyond anything granted by the Constitution to any local or regional government. The Constitution does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. Positive International law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish. The grant or refusal of the right to a portion of tits population of determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every State.

REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS

Direct v. Indirect Obligations of Corporations Under International Law

After the assassination of Count Folke Bernadotte (United Nations Mediator in Palestine) and other members of the United Nations during a Mission in Palestine, Jerusalem on September 1948, the General Assembly sought the opinion of the ICJ on whether UN had the capacity to bring an international claim against the State responsible with a view to obtaining reparation for damage caused to the UN and to the victim and the manner the reparation could be reconciled with the State which the victim is a national. In the ICJ’s Advisory Opinion of 11 April 1949, it held that the UN can claim reparation not only in respect of damage caused to itself, but also in respect of damage suffered by the victim or persons entitled through him. The capacity to claim reparation caused to itself is based on the UN’s intended functions and rights which could only be explained on its possession of a large measure of international personality and the capacity to operate upon the international plane. Although, according to the traditional rule, diplomatic protection had to be exercised by the national State, the UN should be regarded in international law as possessing the powers which, even if they are not expressly stated in the Charter, are conferred upon the UN as being essential to the discharge of its functions. Therefore, the capacity to claim damage done to its agents stems from necessity of supporting and protecting its agents when they are carrying out the duties entrusted to them by the UN in the most disturbed parts of the world. In resolving the risk of possible competition between the UN and the victim’s national State, ICJ held that it could be eliminated either by means of a general convention or by a particular agreement in any individual case. INDIVIDUALS AND CORPORATIONS Abstract: International law today addresses the conduct of private corporations in a variety of areas. With very few exceptions, however, international law regulates corporate conduct indirectly – that is, by requiring states to enact and enforce regulations applicable to corporations and other non-state actors. Only a small number of international legal norms - primarily those relating to war crimes, crimes against humanity, and forced labor – apply directly to non-state actors. Scholars have argued forcefully that international law should move in the direction of directly imposing obligations on corporations. These arguments overlook important aspects of the problem. If international legal norms were extended to corporations and backed by effective enforcement mechanisms, states would lose control over compliance with norms. If not accompanied by an effective enforcement mechanism, the norms would probably be widely disregarded. The first option is likely to be strongly resisted by states; the second option would do little for the interests sought to be protected and would be bad for international law.

20

UN can claim reparation not only in respect of damage caused to itself, but also in respect of damage suffered by the victim or persons entitled through him. Although, according to the traditional rule, diplomatic protection had to be exercised by the national State, the UN should be regarded in international law as possessing the powers which, even if they are not expressly stated in the Charter, are conferred upon the UN as being essential to the discharge of its functions.

Summary: It is unlikely that states will agree to a wholesale extension of current human rights obligations to private corporations backed by an international enforcement mechanism, and if the creation of such obligations without an enforcement mechanism would do little for human rights, a number of other legal strategies remain for protecting the interests of those adversely affected by corporate conduct. One possibility would be an agreement imposing discrete human rights obligations on private corporations, such as the obligation to refrain from torture. Whether states would be willing to extend certain human rights obligations directly to non-state actors will likely depend in large part on the strength of their conviction that violations of the obligation should never be condoned. Another possibility would be to impose more significant obligations on private corporations indirectly that is, by requiring states to enact and enforce such obligations. Whether agreements of either type would be feasible or wise are entirely separate questions. As noted above, those concerned about corporate conduct in developing countries that impinges upon human rights have turned their attention to international

JUDGMENT OF THE NUREMBERG INTERNATIONAL MILITARY TRIBUNAL

The case brings under the prosecution various individuals and organizations involved who were active during WWII, particularly those who were connected to the Nazi regime. The indictment charges the defendants with Crimes Against Peace, with War Crimes, Crimes Against Humanity, and with participating in the formulation or execution of a common Plan or Conspiracy to Commit all these Crimes. Defendant Robert Ley committed suicide while in detention, while Defendant Martin Bormann was tried in absentia. To this end, the Prosecution presented a voluminous body of evidence pointing to the Nazi’s planning or aggressive war, which resulted in the invasion of Austria, the seizure of Czecchoslovakia, the aggression against Poland, the invasion of Denmark and Norway, the invasion of Belgium, the Netherlands, and Luxemburg, the aggression against Yugoslavia and Greece, the aggressive war against the Union of Soviet Socialist Republics, violations of the Hague Conventions, the Versailles Treaty, Treaties of Mutual Guarantee, Arbitration, and Non-Aggression, and the Kellogg-Briand Pact. The Prosecution also presented evidence on the war crimes and crimes against humanity alleged to have been committed by the defendants, to wit: Murder and Ill-treatment of prisoners of war, murder and ill-treatment of civilian population, slave labour policy, and the persecution of the Jews. The issue before the Tribunal is whether it has jurisdiction over the persons and organizations charged with the above crimes. The Tribunal held that they did. It held that it is bound by the Charter or the League of Nations, granting it jurisdiction over Crimes Against Peace, War Crimes, and Crimes Against Humanity. It held further that war is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from 21

law because of the perceived unwillingness or inability of the governments of those countries to control the large multinationals that are harming their citizens. Although few would shed tears over the circumvention of governments unwilling to protect their own citizens, such circumvention is not entirely unproblematic and is likely to be resisted. An alternative would be to focus on eliminating corruption and promoting democratic governance. The international community has taken steps in both areas; undoubtedly much more should be done. But even if bad governments were made good, there would remain in discrepancy in enonomic power between large corporations and small governments, and the feared race to the bottom. A race to the bottom is, of course, a collective action problem, and an obvious solution to a collective action problem is an international agreement. But is a global convention imposing human rights obligations on corporations the answer? The states facing the collective action problem are the developing countries confronting large multinationals. Perhaps the best solution would be an agreement by developing countries regarding standards for multinationals operating in their territory Crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced.

other war crimes in that it contains within itself the accumulated evil of the whole. The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime; and it is therefore not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement. It was urged on behalf of the defendants that a fundamental principle of all law — international and domestic - is that there can be no punishment of crime without a pre-existing law. "Nullum crimen sine lege, nulla poena sine lege." To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring States without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. Occupying the positions they did in the Government of Germany, the defendants, or at least some of them, must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all International Law when in complete deliberation they carried out their designs of invasion and aggression. It was submitted that International Law is concerned with the actions of sovereign States and provides no punishment for individuals; and further, that where the act in question is ad act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That International Law imposes duties and liabilities upon individuals as well as upon States has long been recognized. Crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced. the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under International Law. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible. Planning and preparation are essential to the making of war. In the opinion of the Tribunal aggressive war is a crime under International Law. The Charter defines this offence as planning, preparation, initiation, or waging of a war of aggression "or participation in a common plan or conspiracy for the accomplishment . . . of the foregoing." Conspiracy is not defined in the Charter. But in the opinion of the Tribunal the conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action. The planning, to be criminal, must not rest merely on the declarations of a Party programme, such as are found in the twenty-five points of the Nazi Party, announced in 1920, or the political affirmations expressed in Mein Kampf in later years. The Tribunal must examine whether a concrete plan to wage war existed, and determine the participants in that concrete plan. the evidence establishes the common planning to prepare and wage war by certain of the defendants. It is immaterial to consider whether a single conspiracy to the extent and over the time set out in the Indictment has been conclusively proved. Continued planning, with aggressive war as the objective, has been established beyond doubt. But the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war. Article 10 of the Charter makes clear that the declaration of criminality against an accused organization is final, and cannot be challenged in any subsequent criminal proceeding against a member of the organization. In effect, therefore, a member of an organization which the Tribunal has declared to be criminal may be subsequently convicted of the crime of membership and be punished for that 22

TEXACO v. LIBYA

crime by death. Article 9, it should be noted, uses the words "The Tribunal may declare," so that the Tribunal is vested with discretion as to whether it will declare any organization criminal. This discretion is a judicial one and does not permit arbitrary action, but should be exercised in accordance with well-settled legal principles, one of the most important of which is that criminal guilt is personal, and that mass punishments should be avoided. If satisfied of the criminal guilt of any organization or group, this Tribunal should not hesitate to declare it to be criminal because the theory of "group criminality" is new, or because it might be unjustly applied by some subsequent tribunals. On the other hand, the Tribunal should make such declaration of criminality so far as possible in a manner to ensure that innocent persons will not be punished. A criminal organization is analogous to a criminal conspiracy in that the essence of both is co-operation for criminal purposes. There must be a group bound together and organized for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter. Since the declaration with respect to the organizations and groups will, as has been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members of the organization. Membership alone is not enough to come within the scope of these declarations. Since declarations d criminality which the Tribunal makes will be used by other courts in the trial of persons on account of their membership in the organizations found to be criminal, the Tribunal feels it appropriate to make the following recommendations: 1. That so far as possible throughout the four zones of occupation in Germany the classifications, sanctions and penalties be standardized. Uniformity of treatment so far as practicable should be a basic principle. This does not, of course, mean that discretion in sentencing should not be vested in the court; but the discretion should be within fixed limits appropriate to the nature of the crime. 2. Law No. 10, to which reference has already been made, leaves punishment entirely at the discretion of the trial court even to the extent of inflicting the death penalty. The De-Nazification Law of 5th March, 1946, however, passed for Bavaria, Greater Hesse, and Wü rttemberg-Baden, provides definite sentences for punishment in each type of offence. The Tribunal recommends that in no case should punishment imposed under Law No. 10 upon any members of an organization or group declared by the Tribunal to be criminal exceed the punishment fixed by the De-Nazification Law. No person should be punished under both laws. 3. The Tribunal recommends to the Control Council that Law No. 10 be amended to prescribe limitations on the punishment which may be imposed for membership in a criminal group or organization, so that such punishment shall not exceed the punishment prescribed by the De- Nazification Law. The Indictment asks that the Tribunal declare to be criminal the following organizations: The Leadership Corps of the Nazi Party; the Gestapo; the SD; the SS; the SA; the Reich Cabinet, and the General Staff and High Command of the German Armed Forces. A decree to nationalize all Texaco’s rights, interest and property in Libya was promulgated by Libya. This action of the Libyan Government led Texaco to request for arbitration, but it was refused by Libya. A sole arbitrator was appointed by the International Court of Justice on Texaco’s request. Libya contests that its acts were functions of their sovereignty. The issue in this case is WoN international law applies to contracts entered into by States and private companies. The tribunal used the agreement between the two parties to decide the case saying 23

Though international law involves subjects of a diversified nature, legal international capacity is not solely attributable to a state. A private contracting party, unlike a state, has only a limited capacity and is limited to invoke only those rights that he derives from his contract.

NANNI v. PACE AND THE SOVEREIGN ORDER OF MALTA

Province of North Cotabato v. GRP Peace Panel

that the principle of international law on contracts is applicable. The tribunal found Libya to have breached its obligations under the Deeds of Concessions and was also legally bound to perform in accordance with their terms. By a petition Mattia Count Pace asked the Lieutenant of the Sovereign Order of Jerusalem and Malta for permission to endow, an ecclesiastical benefice in favour of the family. The request was granted and by a deed executed in Rome the Church of S. Rocco was endowed for the maintenance of an incumbency which was to descend in the founder’s family in the mail line according to primogeniture and when the line became extinct, was to pass to the Order. Mattia Pace was succeeded by his son, Annibale, who sold part of the land on which the Church stood to several persons, including the petitioners. Annibale died in 1921. The Council of the Sovereign Order of Malta granted investiture of the benefice to the eldest son, Guisseppe Pace, subject to the condition that he recovered the part of the property sold by his father. However, the Tribunal of Avezzano made a declaration that the acts by which the benefice was endowed were null and void on the ground that State authorization had not been obtained for the acquisition of the property under the Law of June 5, 1980. The petititioners argued that the endowment of the benefice was a nullity because the approval required by a Neopolitan Law of 1819 had not been obtained and because the Church was at the material date in Neopolitan Territory. They argued also that the Order must be regarded as a religious institution in the canonical sense, and that a gift or endowment in favour of the Order required State authorization by the Law of June 5, 1980. *Note: However, a higher court ordered the restitution, hence, this petition by Nanni and Others. Issue: WoN restitution of the properties is proper. YES, because the Sovereign Order of Malta enjoyed independence from domestic legislation of Italy. The court dealt at some length with the legal character of the endowment according to Italian law; it rejected, in particular, the suggestion that the founder had created a fideicommissum. The Court also rejected the proposition that the Order was a moral entity in Italian Law. Such a proposition was entirely refuted by the essential juridical charater of the Sovereign Order of Jerusalem and Malta resulting from its origins, its historical development and the position actually held by it in the international legal community. It was inexact to regard the Order as a religious institution in the canonical sense. The Court pointed out that although the Order had adopted a monastic rule “such monastic constitution had not in any way brought about a substatntial transformation of the community… which preserved entirely unaltered its characted as a community of hospitallers.” Just as the Order had a special legal character, so had the endowment which, for reasons stated by the Court, did not require the State authorization as contented by the petitioners. Formal peace talks between the GRP and MILF were held in Tripoli, the outcome of which was the GRP-MILF Tripoli Agreement on Peace containing the basic principles on the following aspects of negotiation: Security, Rehabilitation and Ancestral Domain. Talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form, which was set to be signed last August 5, 2008 by the GRP and MILF. The main body of the MOA-AD is divided into four strands: Concepts and Principles, Territory, Resources and Governance. Under Concepts and Principles, MOA-AD mentions the “Bangsamoro Juridical Entity” (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro. The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted on ancestral territoriality. The signing of the MOA-AD between the GRP and the MILF did not materialize because the Court issued a TRO due to petitions filed to declare the MOA-AD unconstitutional. Issue is WoN the MOA-AD is inconsistent with the Constitution and laws. The Court held that the MOA-AD 24

As as sovereign under International Law, the Sovereign Military Order of Malta enjoyed independence from the domestic legislation of Italy and every other state.

Public statements of a state representative may be construed as a unilateral declaration only when the following conditions are present: the statements were clearly addressed to the international community, the state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be detrimental to the security of international intercourse.

ISLAND OF PALMAS CASE (NETHERLANDS v. US)

was inconsistent with laws and the Constitution. The MOA-AD would have included foreign dignitaries as signatories. Representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of a binding international agreement had it been signed. Assessing the MOA-AD in light of this, it would not have amounted to a unilateral declaration on the part of the Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator. The mere fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the agreement is internationalized so as to create obligations in international law. The United States and the Netherlands submitted to the Permanent Court of Arbitration the question of which State owned the Island of Palmas (Palmas). Palmas is located within the boundary of the Philippines (territory ceded to the United States from Spain as of the 1898 Treaty of Paris). Spain first discovered Palmas in the early seventeenth century and thus claimed title to it. However, Palmas was also considered by the Netherlands to be a part of its territory since it began peacefully and continuously possessing the area in 1677 or before. The US argued that it could claim sovereignty based on the fact that Spain had ceded its title to the US. Spain could do so because Spain’s title to the island was based on either the discovery of the island, the 1648 Treaty of Munster, or the geographical unity with other islands (contiguity). The Netherlands argued that it had possessed and exercised sovereignty even before 1648, and which was reinforced by subsequent treaties. These treaties included treaties with native states that established Dutch suzerainty over them. The sole arbitrator was asked to determine whether the Island of Palmas (or Miangas) in its entirety formed a part of the territory belonging to the US or of the territory of the Netherlands. In his award, the sole arbitrator attached limited significance to discovery as a basis of title and elaborated on the legal effect of the peaceful and continuous display of state authority over territory. Issue: WoN an inchoate title can prevail over a definite title founded on continuous and peaceful display of sovereignty. – No. An inchoate title cannot prevail. The Netherland’s title of sovereignty holds good over the inchoate title of the US. The latter’s title cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. Further, Spain could not transfer more rights than she herself possessed. The arbitrator found that the establishment of Dutch authority had already reached such a degree of development, that the importance of maintaining this state of things ought to be considered as prevailing over a claim, possibly based either on discovery in very distant times and unsupported by occupation or mere geographical position. For these reasons, the arbitrator held that the Island of Palmas (or Miangas) formed in its entirety a part of Netherlands territory. An inchoate title cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. The continuous and peaceful display of territorial sovereignty is as good as title. Discovery alone, without any subsequent act, cannot suffice to prove sovereignty over the island. There is no positive rule of international law that islands situated outside territorial waters should belong to a state whose territory forms the nearest continent or large island. No one contested the exercise of territorial rights by the Netherlands from 1700 to 1906. The title of discovery, at best an inchoate title, 25

Discovery is not enough to establish sovereignty; it is at most an ’inchoate’, or incomplete title. A state must actually exercise sovereignty over that discovered territory. It must be accompanied by effective control.

CLIPPERTON ISLAND CASE: FRANCE v. MEXICO

Minquiers and Ecrehos Case (France v. UK),

LEGAL STATUS OF EASTERN GREENLAND CASE (DENMARK v. NORWAY) (

does not prevail over the Netherlands, claim of sovereignty. Lt. Victor Le Coat de Kerweguen of the French Navy, commissioner of the French Government, while cruising about one-half mile off Cliipperton, proclaimed and declared that the sovereignty of the said island beginning from that date belonged to his majesty, Emperor Napoleon III and to his heirs and successors. As the expedition left the island, no mark of sovereignty was then left. Thereafter until the end of 1887, no positive and apparent act of sovereignty can be recalled either on the part of France or any other powers. The island remained without population, at least stable and no administration that was organized. Later on, The French navy took a close surveillance of the island and it discovered that there are three persons who resided on the island and Mexico was claiming that it is has the superior right to exercise sovereignty over the said island. Both countries agreed to submit the said case to arbitration. The Court ruled in favor of France by saying that Mexico failed to substantiate its claim that it succeeded the rights of the Spanish explorers in Clipperton island. Furthermore, France by occupying an uninhabited land was able to make its possession and occupation complete. The Minquiers and Ecrehos are two groups of islets situated between the British island of Jersey and the coast of France. Under a Special Agreement between France and the United Kingdom, the Court was asked to determine which of the Parties had produced the more convincing proof of title to these groups of islets. In its Judgment, the Court considered that what was of decisive importance was direct evidence of possession and the actual exercise of sovereignty. After considering this evidence, the Court arrived at the conclusion that the sovereignty over the Minquiers and Ecrehos belonged to the United Kingdom. With regard to the Ecrehos in particular, the Court held the view that the King of England exercised his justice and levied his rights in these islets. The Court attached probative value to various acts relating to the exercise by Jersey (a region part of England ) of jurisdiction and local administration and to legislation, such as criminal proceedings concerning the Ecrehos, the levying of taxes on habitable houses or huts built in the islets since 1889, the registration in Jersey of contracts dealing with real estate on the Ecrehos. With regard to the Minquiers, the Court noted that in 1615, 1616, 1617 and 1692, the Manorial court of the fief of Noirmont in Jersey exercised its jurisdiction in the case of wrecks found at the Minquiers, because of the territorial character of that jurisdiction. Other evidence concerning the end of the eighteenth century, the nineteenth and the twentieth centuries pertained to, the erection on the islets of habitable houses or huts by persons from Jersey who paid property taxes on that account, the registration in Jersey of contracts of sale relating to real property in the Minquiers. A suit was instituted before the Permanent Court of International Justice (PCIJ) by Royal Danish Government against the Royal Norwegian Gov’t over the legal status of certain territories in Eastern Greenland. The Norwegian Minister for Foreign Affairs to the Danish Minister at Oslo, the Norwegian Government stated in its Royal Resolution (July 10th, 1931) that the occupation in the Eastern Greenland is officially confirmed and is placed under Norwegian sovereignty. The Danish Government informed the Norwegian Government that it had submitted the question on the same day to the Permanent Court of International Justice. The Danish Gov’t contends that (1) Denmark had enjoyed and had peacefully and continuously exercised an uncontested sovereignty over Greenland for a long time (up till 1921, no Power disputed the Danish claim to sovereignty) (2) Norway had recognized Danish sovereignty over the whole Greenland (through conventions and treaties) and (3) that the Norway is bound by the Ihlen Declaration (Fact#16 but this basically talks about how the Norwegian Minister bound Norway by saying that the Danish sovereignty over the whole of Greenland would meet with no difficulties on the part of Norway). Norway 26

Thus, if a terrirtory by virtue of the fact that it was completely uninhabited and from the first moment when the occupying state makes its appearance, at the absolute and undisputed disposition, from that moment the taking and possession must be considered accomplished and occupation completed.

The exercise of ordinary local administration in respect to a territory for a long period of time as well as the exercise of State functions are important indications of which country has sovereignty over the particular territory.

The basic requirements for the establishment of sovereignty are (a) There must be the intention and will to act as sovereign, and some actual exercise or display of such authority (although very little actual exercise of authority was necessary, especially in thinly populated or unsettled areas) and (b)There must be no competing or stronger claim to sovereignty. Claim to sovereignty is not based upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves these two elements.

Western Sahara Case, Advisory Opinion,

counters that Denmark possessed no sovereignty over the area which Norway occupied because the word "Greenland" is not used in the geographical sense, but means only the colonies or the colonized area on the West coast and that at the time of the occupation the area was terra nullius (nobody’s island). Issue is WoN Eastern Greenland belongs to Norway? The Court ruled that Eastern Greenland rightfully belongs to Denmark. Denmark had enjoyed and had peacefully and continuously exercised an uncontested sovereignty over Greenland for a long time. The date at which such Danish sovereignty must have existed in order to render the Norwegian occupation invalid is the date at which the occupation took place, viz., July 10th, 1931. According to the Palmas Case the basic requirements for the establishment of such a title are (a) There must be the intention and will to act as sovereign, and some actual exercise or display of such authority (although very little actual exercise of authority was necessary, especially in thinly populated or unsettled areas) and (b)There must be no competing or stronger claim to sovereignty. Court mentioned that claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves these two elements. One of the peculiar features of the present case is that up to 1931 there was no claim by any Power other than Denmark to the sovereignty over Greenland. After the founding of Hans Egede's colonies in 1721, there is in part at least of Greenland a manifestation and exercise of sovereign rights. Consequently, both the elements necessary to establish a valid title to sovereignty - the intention and the exercise - were present. The importance of these treaties is that they show a willingness on the part of the States with which Denmark has contracted to admit her right to exclude Greenland. To some of these treaties, Norway has herself been a Party, and these must be dealt with later because they are relied on by Denmark as constituting binding admissions by Norway that Greenland is subject to Danish sovereignty. Denmark possesses sovereignty over Greenland as a whole and to the extent that these treaties constitute evidence of recognition of her sovereignty over Greenland in general Denmark is entitled to rely upon them. Norway is now estopped from claiming Greenland because until 1931 there was no claim by ANY STATE other than Denmark to Greenland, Norwegian government as undertakings which recognized DANISH over all GREENLAND as evidenced by hey entered Bilateral and multilateral agreements (Norway and Denmark have entered agreements wherein Greenland was described as Denmark’s colony) and the existence of the Ihlen Declaration (Norway debarred herself or under obligation to refrain from contesting a historic Danish sovereignty) The Secretary General of the United Nations sent a letter to the President of the Court for an advisory opinion on Resolution 3292 on the status of Western Sahara’s status as a territory at the time of its colonization by Spain and its legal ties with Kingdom of Morocco and the Mauritanian entitity. The Court’s opinion states that Westerns Sahara (Rio de Oro and Sakiet El Hamra) at the time of Colonization by Spain was not a territory belonging to no one. The information furnished to the Court shows that at the time of colonization Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized into tribes and under chiefs competent to represent them. The State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through “occupation” of terra nullius by original title but through agreements concluded with local rulers. On occasion, it is true, the word “occupation” was used in a non-technical sense denoting simply acquisition of sovereignty; but that did not signify that the acquisition of sovereignty through such agreements with authorities of the country was regarded as an “occupation” of a “terra nullius” in the proper sense of these terms. On the contrary, such agreements with local 27

In law, "occupation" was a means of peaceably acquiring sovereignty over territory otherwise than by cession or succession; it was a cardinal condition of a valid "occupation" that the territory should be terra nullius. The acquisition of sovereignty over territories inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them were effected through agreements concluded with local rulers and not through “occupation” of terra nullius by original title.

The Chamizal Case

UNITED KINGDOM v. NORWAY

(The Corfu Channel Case) UNITED KINGDOM OF GREAT BRITAIN & NORTHEN IRELAND v. ALBANIA

rulers, whether or not considered as an actual “cession” of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terra nullius. The Mexican-American War had just ended, with both governments entering into the Treaty of Guadalupe and the Convention of 1884 to establish the boundaries between the two states. The border was established along the Rio Grande river, between El Paso, Texas, and Ciudad Juarez, Chihuahua. Before the Convention of 1884, there were instances of gradual erosion and deposit of alluvion that formed a new piece of land called the Chamizal tract, which was occupied by Mexico. Decades later, there was also a flood that changed a few changes in the land. There was a boundary dispute that was brought to the International Boundary Commission. The issue was WoN the Chamizal tract was supposed to belong to the US as a result of the changes in the course of the river. The commissioners ruled in favor of the Mexican Government and stated that the creation of the Chamizal tract was a result of slow and gradual erosion and slow alluvion. Since 1911 British trawlers had been seized and condemned for violating measures taken by the Norwegian Government specifying the limits within which fishing was prohibited to foreigners. In 1935, a Decree was adopted establishing the lines of delimitation of the Norwegian fisheries zone. On 28 September 1949, the Government of the United Kingdom filed with the Registry of the ICJ an application instituting proceedings against Norway. The subject of the proceedings was the validity, under international law, of the lines of delimitation of the Norwegian fisheries zone as set forth in a Decree of 12 July 1935. The question at issue was whether this decree, which laid down a method for drawing the baselines from which the width of the Norwegian territorial waters had to be calculated, was valid international law. This question was rendered particularly delicate by the intricacies of the Norwegian coastal zone, with its many bays, islands, islets and reefs. The United Kingdom contended, inter alia, that some of the baselines fixed by the decree did not accord with the general direction of the coast and were not drawn in a reasonable manner. In its Judgment of 18 December 1951, the Court found that, contrary to the submissions of the United Kingdom, neither the method nor the actual baselines stipulated by the 1935 Decree were contrary to international law. Norway puts forward the 1935 decree as the application of a traditional system of delimitation in accordance with international law. In its view, international law takes into account the diversity of facts and concedes that delimitation must be adapted to the special conditions obtaining in different reguons. The Judgment notes that a Norwegian Decree of 1812, as well as a number of subsequent texts (Decrees, Reports, diplomatic correspondence) show that the method of straight lines, imposed by geography, has been established in the Norwegian system and consolidated by a constant and sufficiently long practice. The application of this system encountered no opposition from other States. Even the United Kingdom did not contest it for many years: it was only in 1933 that the United Kingdom made a formal and definite protest. And yet, concerned with maritime questions, it could not have been ignorant of the reiterated manifestations of Norwegian practice, which was so well- known. Two British destroyers were severly damaged while crossing the North Corfu Channel, which was within Albanian territory. Lives were lost and the United Kingdom Government sought after compensation against Albania for damages. There are three issues: 1. WoN Albania is liable for the loss of lives and damage of the destroyers. The Court ruled that Albania is liable because it did not matter who laid the mines when the ships crossed. What was important was the obligation of the Albanian Government to warn the ships that there were mines laid out. Considering that two hours had lapsed between the time the coastal defense spotted the ships entering until the explosion, there was enough time to warn the 28

The International Boundary Commission confirmed two international laws regarding the Rio Grande and its shifting course. First, if the river shifted gradually and slowly, then the international boundary shifted with the river. Second, if the river changed course quickly, like in a flood for example, then the international boundary would not change.

Delimitation of seaareas has always an international aspect since it interests States other than the coastal State; consequently, it cannot be dependent merely upon the will of the latter. Certain basic considerations inherent in the nature of the territorial sea bring to light the following criteria which can provide guidance to the Courts: since the territorial sea is closely dependent upon the land domain, the baseline must not depart to any appreciable extent from the general direction of the coast; certain waters are particularly closely linked to the land formations which divide and surround them (an idea that should be liberally applied in view of the configuration of the coast. It may be necessary to have regard to certain economic interests peculiar to a region when their reality and importance are clearly evidenced by a long usage.

Territorial sovereignty extends to a State’s waters. Such sovereignty must be respected by other States and may not commit certain acts that represent disrespect or mocks the sovereignty of the State inside their territory. Though there are exceptions to these acts, such as the safe passage of warships during times of peace between States, so long as it is considered as innocent passage.

NORTH ATLANTIC FISHERIES ARBITRATION (US v. BRITAIN)

Right of Passage case (Portugal v. India)

British ships. The Court ruled that Albania had the obligation to warn them because it would have been easy coastal defense to spot whoever would lay mines on the waters. Such omission of warning led to the grave damage of the ships and the loss of lives. 2. WoN the United Kingdom violated the sovereignty of Albania by crossing the Corfu Channel on Oct. 22, 1946. This is the envoy that crossed the Corfu Channel on Oct. 22, 1946 and the two destroyers exploded. The envoy was meant to send a message to the Albanian Government to invite them to have diplomatic relations. The Court ruled that the United Kingdom did not violate the sovereignty of Albania. It was ruled that the Corfu Channel was an international highway. It is accepted as international custom that straits, including this Channel, are accessible to warships innocently passing through during times of peace between the States. 3. WoN the United Kingdom violated the sovereignty of Albania by their acts in Albanian waters on November 12 & 13, 1946. After the explosion, the United Kingdom Government sent ships to Albanian waters to create a main line of defense and to protect the mines laid in the waters. They wanted to protect the mines because the author of the mine-laying could have come and taken the mines away, thus removing evidence of what happened. The Court ruled that their acts violated such sovereignty. The justifications of the United Kingdom in sending their warships in Albanian territory, and not just passing through the Corfu Channel, amounted to the violation of Albania’s territory. This is evident by the constant refusal of the British ships in Albanian waters by the Albanian Government. The sovereignty of a State over its waters is one of the principles of international law, and must be respected by other States. The Court ruled that sending warships to another’s territory without its consent and constant refusal is a sign of disrespect towards that sovereignty. It was also noted that intervention by a State, even to protect the corpus delicti of the crime to be complained about, is reserved as an extreme measure because history has shown that this tends to lead to grave abuse and exploitation. Great Britain and the US entered into a Treaty which stipulated that inhabitants of the US can fish and cure, perpetually, from the Southern coast of Newfoundland. Differences arose as to the scope and meaning of Article 1 of said Treaty, hence they submitted the matter to the Permanent Court of Arbitration at the Hague. The US alleges that Great Britain, being able to regulate their fishing through municipal laws amounted to international servitude. However, the Tribunal ruled that there was no international servitude. This is because a servitude in IL predicates an express grant of sovereign right. The Treaty involves the grant of liberty to fish, which is NOT a sovereign right but a purely economic right. The doctrine of international servitude has found no support from modern publicists. Also, even if the liberties of fishery constituted an International servitude, the servitude would derogate from the sovereignty of the servient state only insofar as the exercise of the rights of sovereignty by the servient State would be contrary to the exercise of the servitude right by the dominant State. The fishery to which the US inhabitants were granted was also a regulated fishery. India prevented Portgual from exercising Portugal’s alleged right of passage over the enclaves in the Indian Peninsula. Portugal thus requested the ICJ to declare that a right of passage was possessed by Portugal and must be respected by India. Portugal invokes this right only to the extent necessary for the exercise of its sovereignty, subject to the regulation and control of India. India, on the other hand, argues that the right of passage claimed by Portugal was too vague and contradictory. The is WoN Portugal possessed the right of passage over the territory of India to the extent necessary for the exercise of Portuguese sovereignty over the enclaves, which 29

A servitude in International law predicates an express grant of a sovereign right and involves an analogy to the relation of a praedium dominans and a praedium serviens; whereas by the Treaty of 1818 one State grants a liberty to fish, which is not a sovereign right, but a purely economic right, to the inhabitants of another State.

During the British and post-British periods, the passage of private persons and civil officials had not been subject to any restrictions beyond routine control. Merchandise other than arms and ammunition had also passed freely subject only, at certain times, to customs regulations and such regulation and control as were

right was subject to the regulation and control of India – YES, but only with regard to private persons, civil officials and goods in general. This does not extend to armed forces, armed police, and arms and ammunition. This right of passage was established as a custom.

The Case of S.S. Wimbledon

Magallona v Executive Secretary

There was a war going on between Poland and Russia. S.S. Wimbledon, a steamship, was used to deliver munitions and supplies to Poland. When it was about to pass the Kiel Canal in Germany, it was refused passage because Germany issued neutrality orders wherein it wished not to support either Russia or Poland. The French Ambassador at Berlin requested the German government to withdraw the prohibition and to allow S.S. Wimbledon to pass through the Kiel Canal, in conformity with Article 380 of the Treaty of Versailles. However, the German government still refused. They argued that Article 380 of the Treaty of Versailles did not have the effect of limiting their sovereignty over their land. Because of Germany’s refusal to let S.S. Wimbledon to pass through the Kiel Canal, there was a delay in the delivery of the shipment (the boat was detained for eleven days and it took two extra days to find another route). The plaintiffs (“British et. al governments”) thus filed this case with the Permanent Court of International Justice (“PCIJ”). They claim that Germany violated the Treaty of Versailles. They also claimed damages for the lost time and money in the transport of the goods. ISSUE: WoN a state is obligated to allow free passage based on a treaty even if it would violate its right to neutrality in times of war— YES, GERMANY SHOULD HAVE ALLOWED PASSAGE BASED ON THEIR TREATY. IT IS CLEAR FROM ART. 380 THAT THE PROHIBITION ON PASSAGE APPLIES ONLY TO STATE VESSELS WHO ARE AT WAR WITH GERMANY. BRITISH ET. AL GOVERNMENT, NOT BEING AT WAR WITH GERMANY, SHOULD HAVE BEEN ALLOWED PASSAGE. RULING: It is clear from Art. 380 of the Treaty that Germany is obligated to allow free passage to all vessels, without distinction as to the nature of their cargo or their destination. The only vessels which cannot pass through are those belonging to nations at war with Germany. In this case, British et. al governments were not at war with Germany. If free access to the Kiel Canal could be modified in the event of German neutrality, then the Treaty should have said so. Its omission should thus be construed as an intentional exclusion. Also, the German neutrality orders could not preempt the provisions of the Treaty of Versailles because Article 380 explicitly authorized passage of the Wimbledon. Allowing the ship to pass cannot be imputed to Germany as a failure to fulfill its duties as a neutral, for Germany's neutrality would have remained intact and irreproachable. In March 2009, Republic Act 9522, an act defining the archipelagic baselines of the Philippines was enacted – the law is also known as the Baselines Law. This law was meant to comply with the terms of the third United Nations Convention on the Law of the Sea (UNCLOS III), ratified by the Philippines in February 1984.Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among others, that the law decreased the national territory of the Philippines hence the law is unconstitutional. Some of their particular arguments are as follows: (a) the law abandoned the demarcation set by the Treaty of Paris and other ancillary treaties-this also resulted to the exclusion of our claim over Sabah; (b) the law, as well as UNCLOS itself, describes the Philippine waters as “archipelagic” waters which, in international law, opens our waters landward of the baselines to maritime passage by all vessels (innocent passage) and aircrafts (overflight), undermining Philippine sovereignty and national security, contravening the country’s nuclear-free policy, and damaging marine resources, in violation of relevant constitutional 30

necessitated by considerations of security or revenue. However, as regards armed forces, armed police and arms and ammunition, during the British and post-British periods, Portuguese armed forces and armed police had not passed between Daman and the enclaves as of right. A neutrality order issued by an individual state cannot hold more power than the provisions of an international treaty of peace.

Far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’ decision to classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’ under the Republic of the Philippines consistent with Article 121" of UNCLOS III manifests the Philippine State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by water, which is above water at high tide," such as portions of the KIG, qualifies

North Sea Continental Shelf Cases (Germany v. Denmark/Holland)

provisions; (c) the classification of the Kalayaan Island Group (KIG), as well as the Scarborough Shoal (bajo de masinloc), as a “regime of islands” pursuant to UNCLOS results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen. The issue is WoN RA 9522 is unconstitutional?- NO because it allows an internationally-recognized delimitation of the breadth of the Philippines’ maritime zones and continental shelf. The Court held that RA 9522, or UNCLOS, itself is not a means to acquire, or lose, territory. The treaty and the baseline law has nothing to do with the acquisition, enlargement, or diminution of the Philippine territory. What controls when it comes to acquisition or loss of territory is the international law principle on occupation, accretion, cession and prescription and NOT the execution of multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental shelves.The law did not decrease the demarcation of our territory. In fact it increased it. Under the old law amended by RA 9522 (RA 3046), we adhered with the rectangular lines enclosing the Philippines. The area that it covered was 440,994 square nautical miles (sq. na. mi.). But under 9522, and with the inclusion of the exclusive economic zone, the extent of our maritime was increased to 586,210 sq. na. mi. The law did not abandon the Sabah claim. This is evident on the provision of Section 2 of RA 9522. UNCLOS may term our waters as “archipelagic waters” and that we may term it as our “internal waters”, but the bottom line is that our country exercises sovereignty over these waters and UNCLOS itself recognizes that. However, due to our observance of international law, we allow the exercise of others of their right of innocent passage. No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community. The classification of the KIG (or the Spratly’s), as well as the Scarborough Shoal, as a regime of islands did not diminish our maritime area. Under UNCLOS and under the baselines law, since they are regimes of islands, they generate their own maritime zones – in short, they are not to be enclosed within the baselines of the main archipelago (which is the Philippine Island group). This is because if we do that, then we will be enclosing a larger area which would already depart from the provisions of UNCLOS – that the demarcation should follow the natural contour of the archipelago. Nevertheless, we still continue to lay claim over the KIG and the Scarborough Shoal through effective occupation. Germany, Denmark, and the Netherlands failed to reach an agreement on how to delimit their continental shelves in the North Sea. Denmark and the Netherlands both contended that the delimitation of their continental shelves should be determined in accordance with the principle of equidistance. The delimitation of the boundaries near the coast had been made on the basis of this principle. However, Germany considered that such an arrangement would result in an inequitable delimitation for them. Thus, the three states agreed to submit the matter to the ICJ to determine whether or not the equidistance rule should be applied in delimiting their continental shelves. The ICJ ruled that equidistance rule should not be applied, because (1) it is not customary IL and (2) to apply the rule would result to an inequity since Germany has a shorter coastline compared to Denmark and the Netherlands. Delimitation is to be effected by agreement in accordance with equitable principles , and taking account of all relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other; If, in the application of this method, the delimitation left to the Parties areas that overlap, these are to be divided between them in agreed proportions or, failing 31

under the category of "regime of islands," whose islands generate their own applicable maritime zones.

Equidistance rule is not customary international law, and the continental shelf must be delimited according to agreement of the three States. The Continental shelf is an extension of the territory of a coastal state seaward because it is an extension of soil and subsoil.

CASE CONCERNING DELIMITATION OF THE MARITIME BOUNDARY IN THE GULF OF MAIN AREA CANADA V. UNITED STATES OF AMERICA

LIBYA/MALTA CONTINENTAL SHELF CASE

Fisheries Jurisdiction Case [UK v. Iceland]

agreement, equally, unless they decide on a regime of joint jurisdiction, user, or exploitation for the zones of overlap or any or part of them. The Court also discussed why delimiting the continental shelf is important, and stated that the continental shelf is an area physically extending the territory of most coastal States into a species of platform. Since the land is the legal source of the power which a State may exercise over territorial extensions to seaward, it must first be clearly established what features do in fact constitute such extensions. The dispute originated from the 1960’s where petroleum exploration had begun. The dispute involves the delimitation of the Gulf of Maine specially that of the Georges Bank, because of its resources and natural importance. Both USA and Canada have been in a long negotiation to find an amicable agreement between them however, such failed, and now the dispute is submitted before the ICJ. Both of them agree that the delimitation must be made in accordance with the equitable rules and principles of international law. However, they have different views on how it would apply. Canada believes that the geographic adjacency constituted the basis of the title of the coastal State to the continental shelves. USA on the other hand provided that the coasts must be differentiated between a primary coast and secondary coast. Primary coasts are those which follow the mainland coast while the seconday coasts diviates from it. The issue before the court is What rules and principles of international law applies in the delimitation. The ICJ opposed the views of both Canada and USA. With regard to the contention of Canada, ICJ stated that it is not necessarily the adjancency of the continental shelves to the coastal State which gives the State jurisdiction over it. It is international law which gives the State a legal title over an adjacent continental shelf. With regard to the USA, the ICJ stated that such distinction cannot be appretiated as it only provides for assertions without giving any convincing evidence to show the international rule which was applied. Therefore, following customary international law which states that delimitation of Continental Shelves must be based on the agreement of the parties involve and in case the agreement fails, the delimitation must be based on the equitable rules and principles of international law , the ICJ did not follow the proposal of the two parties and made its own independent method of delimitation. The ICJ applied a more neutral approach and turned the case to a criterion especially derived from geography with the aim of an equal division of the areas where the maritime projections of the coasts of the States between which delimilitation is to be effected converge and overlap Libya and Malta wanted to settle the dispute between them concerning the delimitation of their continental shelves. Libya posited the view that the delimitation should start from the rift zone, while Malta claimed that the starting point of the delimitation process should be the equidistance line. The Court rejected both views. As to Libya’s claim, the Court said that the law only enables a State to claim a continental shelf of 200 miles or more from its coast and in this case, the distance between the coasts of both parties is less than 400 miles, which means that no geophysical feature can lie more than 200 miles from each of their coasts. For Malta’s argument that the equidistance line should be the starting point, the Court held that the equidistance principle is not the only method that can be used. The Court also cannot consider Malta’s view that a delimitation should be influenced by the relative economic position of the two States in question. In order to apply the equitable principles which were elicited by the taking account of the relevant circumstances, the Court proceeds by stages; it begins by making a provisional delimitation, which it then compares with the requirements derived from other criteria. (Please see page 3 for the summary of the Court’s conclusions.) Iceland sought to extend its exclusive fisheries jurisdiction from 12 to 50 miles around its shores. The United Kingdom challenged this extension of 32

Delimitation of Continental Shelves and Fisheries Zone must be based on the agreement of the parties involve. In case the agreement fails, the delimitation must be based on the equitable rules and principles of international law.

The delimitation is to be effected in accordance with equitable principles.

The validity of delimitations depends upon International Law. The

PEOPLE v. TULIN

jurisdiction, wherein UK relied upon an earlier treaty agreement between the parties where the UK agreed to recognize Iceland’s twelve-mile exclusive fisheries jurisdiction in exchange for Iceland’s agreement to submit all disputes over fisheries jurisdiction to the ICJ. Iceland argued that it was not bound by this agreement to submit all disputes to the ICJ because of changing legal circumstances in international law. Iceland argued that the standard, default limit for exclusive fisheries jurisdiction for states was typically now twelve miles. This was not the case when Iceland first signed its agreement with the UK, however, and the agreement to a twelve-mile limit then constituted a compromise for Iceland. Due to changing trends in international law, Iceland argued that its previous agreement to the twelvemile compromise in exchange for ICJ jurisdiction was now void for lack of consideration on the UK’s part. The issues in this case are: WoN Iceland can extend its fishery zone from 12 to 50 miles – NO; WoN the agreement between Iceland and the UK play within the court’s decision – YES; WoN the law of the high seas can be enforced in this case – YES For the first issue, Iceland’s extension of its fishery zone is not permissible. A fishery zone has been accepted to be 12 miles from its baseline and is treated as a general practice accepted by the states. Although Iceland has preferential rights over the fishery zone, it must reconcile it with the interests of the UK. For the second issue, agreement between Iceland and UK, being signed is binding on both nations, and also proves that Iceland accepted the 12-mile fishery jurisdiction and was content with it. For the third issue, according to the UNCLOS, the freedom of the high seas is to be exercised by all states. Although it was not established in a treaty, states accepted this general rule of a 12 nautical mile fishery zone and given that Iceland did not protest this rule, it thus gave its silent consent, making it law. M/T Tabangao is a cargo vessel owned by PNOC Shipping and Transport Corporation and it was loaded with barrels of kerosene, gasoline, and diesel oil. As it was sailing off the coast of Mindoro near Silonay Island, the vessel was suddenly boarded by 7 fully armed pirates led by Emilio Changco. The name M/T Tabangao was painted over with black paint with the name Galilee. The crew was forced to sail to Singapore, while sending misleading radio messages to PNOC that the ship was undergoing repairs. It anchored about 10-18 nautical miles from Singapore’s shoreline where another vessel called “Navi Pride” anchored beside it. Emilio Changco ordered the crew to transfer the cargo to Navi Pride while Cheong San Hiong supervised the crew of Navi Pride in receiving the cargo. Once the transaction was complete, the vessel went back to the Philippines. It arrived at Batangas and the members of the crew were released in 3 batches, with the stern warning not to report the incident to government authorities for a period of 2 days, otherwise they would be killed. The Chief Engineer, accompanied by the members of the crew, called the office of PNOC to report the incident. A series of arrests were made and soon after, an information was filed charging against them qualified piracy or violation of PD 532. They pleaded not guity to the charge. Tulin, Infante, Loyola, and Changco gave a defense of denial. Hiong on the other hand claimed that he did not know that M/T Tabangao was raided by pirates. He maintained that his company was then dealing with a certain Paul Gan who offered to sell to them bunker oil, and was just asked to supervise the ship-to-ship transfer. The trial court convicted Tulin, Loyola, Infante and Changco as principals, and Hiong as accomplice, to the said crime. The matter was then elevated to the Supreme Court. Hiong argues that PD 532 refers to Philippine Waters and that he was convicted for acts done outside Philippine waters or territory. The issue is WoN Hiong can be convicted of the crime of piracy even if the acts allegedly committed were done outside Philippine waters and territory? – YES. The attack on and seizure of "M/T Tabangao" and its cargo were committed in Philippine waters. PD 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters. The disposition by the pirates of the vessel and its cargo is 33

freedom of the high seas is made subject to the consideration that its utilization shall be with reasonable regard to the interest of other states. Both concepts of “fishery zone” and “preferential right” are crystallized into customary law. However, preferential rights are implemented by agreement between states concerned, and it is wholly inconsistent with the idea of excluding fishing activities of all other states

Piracy is a reprehensible crime against the whole world. It falls under Title One of Book Two of the Revised Penal Code. As such, it is an exception to the rule on territoriality in criminal law.

THE LOTUS CASE: FRANCE V. TURKEY

ATTORNEY GENERAL OF THE GOVERNMENT OF ISRAEL v. EICHMANN

still deemed part of the act of piracy, hence, the same need not be committed in Philippine waters. A collision occurred on the high seas between a French mail steamer (Lotus) and a Turkish collier (Boz-Kourt). Basically they’re both steamships. Boz-Kourt sank, and 8 Turkish nationals on board were killed. The 10 survivors of the Boz-Kourt, including its captain, were taken to Constantinople (Turkey) on board the Lotus. In Turkey, M. Demons, the officer on watch of the Lotus who is a French national, and the captain of the Boz-Kourt, Hassan Bey, were charged with manslaughter by a Turkish court. M. Demons was sentenced to 80 days of imprisonment and a fine of 22 Turkish pounds. France protested this, demanding the release of M. Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ). According to France, the convention of Lausanne does not allow Turkish courts to take cognisance of criminal proceedings directed against a French citizen for crimes committed outside Turkey. Moreover that International law states that a State is not entitled to extend the jurisdiction of their courts to crimes that happened abroad even if the victim is a citizen of their State UNLESS stipulated in a special agreement. Meanwhile Turkey contends that it has jurisdiction over the case. The PCIJ ruled that first, a State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. Second, within its territory, a State may exercise its jurisdiction, in any matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law. This applies to civil and criminal cases. In this case, the incident happened between 2 vessels. While the principle of the freedom of the seas says that in the absence of any territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them, a corollary of this principle states that a ship on the high seas is assimilated to the territory of the State the flag of which it flies, for, just as in its own territory, that State exercises its authority upon it, and no other State may do so. Since, there no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown, both France and Turkey have concurrent jurisdiction over the case. The offence for which Lieutenant Demons appears to have been prosecuted was an act of negligence or imprudence-having its origin on board the Lotus, whilst its effects made themselves felt on board the Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that their separation renders the offence non-existent. Neither the exclusive jurisdiction of either State, nor the limitations of the jurisdiction of each to the occurrences which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of the two States. It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. There is no principle of international law, within the meaning of Article 15 of the Convention of Lausanne which precludes the institution of the criminal proceedings under consideration. Consequently, Turkey, by instituting, in virtue of the discretion which international law leaves to every sovereign State, the criminal proceedings in question, has not, in the absence of such principles, acted in a manner contrary to the principles of international law within the meaning of the special agreement. Eichmann (one of Hitler’s high ranking generals) was tried before an Israel Court for war crimes he allegedly committed during the Second World War – more particularly genocide against he Jewish Race. The issue is WoN the Israel Court have jurisdiction even if the acts were committed elsewhere? YES. When a person commits a crime against the law of nations such as piracy (or in this case genocide), he becomes an enemy to all mankind – a hostis humani generis. He places himself beyond the protection of any state. It is in fact the moral duty of every state to enforce the natural right to punish such criminals guilty of the most extreme violations of the laws of nature so detrimental to the welfare of the international community. 34

First, a State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. Second, within its territory, a State may exercise its jurisdiction, in any matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law. This applies to civil and criminal cases. (Basically this means that under international law, if its a collision in the high seas between 2 vessels of different nationalities, both have concurrent jurisdiction since the vessel is basically an extension of their territory -under the second doctrine-- UNLESS there is an international law which prohibits such)

The universal principle of jurisdiction recognizes that a sovereign can adopt criminal laws that apply to the person who has committed any crime of universal nature (jus cogens, war crime, mass killing, etc) anywhere in the world when the conduct is recognized by nations as being of universal concern.

ARREST WARRANT CASE CONGO v. BELGIUM

BLACKMER v. US

People v. Tulin

Thus, while as a general rule, criminal jurisdiction is territorial, the jurisdiction of a state may extend to punishment of offenses against the laws of nations. Genocide has already been recognized as such under various conventions – such as the Charter of the Nuremberg Trial, the Convention on the Prevention of the Crime of Genocide (under the UN), and various affirmations of the UN General Assembly. The punishment of genocide is a matter if international concern condemned by all of the civilized world. The same would apply to slavery, crimes against peace, and torture. Belgium issued a warrant of arrest against Mr. Abdulaye Yerodia Ndomasi , then Congo’s Minister for Foreign Affairs for violations of international humanitarian law. Congo filed an application before the ICJ to have the warrant discharged. The ICJ ruled that the issuance of the warrant was a violation of customary international law. Incumbent foreign ministers enjoy inviolability and immunity from criminal prosecution in the performance of their official function.It must be noted that the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States. (As to the allegation that the minister violated human rights, the alleged crimes are not exonerated. What Belgium only violated is that it issued the warrant WHILE the minister is INCUMBENT. He may still be made liable) Blackmer was a citizen of the US residing in France. He was found guilty of contempt by the SC of the District of Columbia for failure to respond to subpoenas served upon him in France because he was being asked to appear as a witness on behalf of the US at a criminal trial. The statute on the basis of such provided that whenever the attendance of a witness abroad is desired, the judge may order a subpoena to be issued and served to that witness personally and failure of the witness to show up, they may be punished for contempt. Hence, this petition. The issue in this case is whether or not the US has jurisdiction over Blackmer despite Blackmer being outside the State. The Court here held in the affirmative. This is because Blackmer continued to be a citizen of the US. He continued to owe allegiance to the the US and by virtue of the obligations of citizenship, the US retained its authority over him. He was bound by its laws made applicable to him in the foreign country. And although he was a resident abroad, he remained to be in the taxing power of the US. US possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal. This is based on the nationality principle which provides that every state has jurisdiction over its nationals even when those nationals are outside the state. M/T Tabangao is a cargo vessel owned by PNOC Shipping and Transport Corporation and it was loaded with barrels of kerosene, gasoline, and diesel oil. As it was sailing off the coast of Mindoro near Silonay Island, the vessel was suddenly boarded by 7 fully armed pirates led by Emilio Changco. The name M/T Tabangao was painted over with black paint with the name Galilee. The crew was forced to sail to Singapore, while sending misleading radio messages to PNOC that the ship was undergoing repairs. It anchored about 10-18 nautical miles from Singapore’s shoreline where another vessel called “Navi Pride” anchored beside it. Emilio Changco ordered the crew to transfer the cargo to Navi Pride while Cheong San Hiong supervised the crew of Navi Pride in receiving the cargo. Once the transaction was complete, the vessel went back to the Philippines. It arrived at Batangas and the members of the crew were released in 3 batches, with the stern warning not to report the incident to government authorities for a period of 2 days, otherwise they would be killed. The Chief Engineer, accompanied by the members of the crew, called the office of PNOC to report the incident. A series of arrests were made and soon after, an information was filed charging against them qualified piracy or violation of PD 532. They pleaded not guity to the charge. Tulin, Infante, Loyola, and Changco gave a defense of denial. Hiong on the other hand claimed that he did not know 35

The functions exercised by a Minister for Foreign Affairs were such that, throughout the duration of his or her office, a Minister for Foreign Affairs when abroad enjoyed full immunity from criminal jurisdiction and inviolability.

The nationality principle provides that every state has jurisdiction over its nationals even when those nationals are outside the state.

Although Presidential Decree No. 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence, the same need not be committed in Philippine waters. Republic Act No. 7659 neither superseded nor amended the provisions on piracy under Presidential Decree No. 532. There is no contradiction between the two laws. There is likewise no ambiguity and hence, there is no need to construe or interpret the law. All the presidential decree did was to widen the coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring

KURODA v. JALANDONI

In the Matter of the Requested Extradition of Joseph Patrick Thomas Doherty by the Govt of the United Kingdom of Great Britain and Northern Ireland

that M/T Tabangao was raided by pirates. He maintained that his company was then dealing with a certain Paul Gan who offered to sell to them bunker oil, and was just asked to supervise the ship-to-ship transfer. The trial court convicted Tulin, Loyola, Infante and Changco as principals, and Hiong as accomplice, to the said crime. The matter was then elevated to the Supreme Court. Hiong argues that PD 532 refers to Philippine Waters and that he was convicted for acts done outside Philippine waters or territory. The issue is WoN the Philippines has jurisdiction to try a crime committed outside the Philippine waters and territory. SC held in the affirmative, As regards the contention that the trial court did not acquire jurisdiction over the person of accused-appellant Hiong since the crime was committed outside Philippine waters, suffice it to state that unquestionably, the attack on and seizure of "M/T Tabangao" and its cargo were committed in Philippine waters, although the captive vessel was later brought by the pirates to Singapore where its cargo was off-loaded, transferred, and sold. And such transfer was done under accused-appellant Hiong's direct supervision. Although Presidential Decree No. 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence the same need not be committed in Philippine water. Kuroda was a former Lt. Gen. and Commanding Gen. of the Japanese Imperial Army from 1943-1944. He is now charged before the Military Commission for having unlawfully disregarded and failed to control the operations of his command and allowing them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners. EO No. 68 established a National War Crimes Office and prescribed rules and regulations governing the trial of accused war criminals. His arguments are: (1) EO 68 is illegal, (2) enjoin and prohibit Hussey and Port from participating in the prosecution, (3) permanently prohibiting respondents from proceeding. The issue is WoN EO 68 is constititutional. SC said yes, because the Military Commission was convened by virtue of a valid law, with jurisdiction over the crimes charged which fall under the provisions of EO No. 68, and having jurisdiction over Karudo by having him in its custody. President exercised his power as Commander in Chief in the issuance of the EO. Also, the Military Commission was established by a special law, which does not require that the counsel must be those duly qualified to practice law in the Phil. Doherty is a member of the provisional Irish Republican Army (PIRA) and, with his group, took over a house in 371 Antrim Road, Belfast, Ireland to engage and attack a convoy of British soldiers. A shootout ensued between Doherty’s group and members of the Special Air Service (SAS) of the British army and resulted to the death of Captain Herbert Westmactott and Doherty’s arrest. He was held in Crumlin Road prison pending trial. After trial completed, Doherty and 7 others escaped the prison. He was conviceted in absentia for murder, attempted murder, and illegal possession of firearms and ammunition, and other offenses allegedly commited in the course of his escape from prison. (he was caught by US authorities after his escape from prison) Pursuant to Art. IX of the Treaty of Extradition between the UK and Northern Ireland , the US acts on behalf of UK and Northern Ireland to extradite Doherty ot the UK because of his prior conviction in absentia. Doherty argues that Art V(1)(c)(i) of the Treaty justifies denial of his extradition to UK since what he committed was a political offense. Issue: WoN Doherty may be extradited – NO This case involves the application of the political offense doctrine in relation to the Treaty of Extradition between US UK and Northern Ireland. This case presents the assertion of the political offense exception in its most classic form. The death of Captain Westmacott, while a most tragic event, occurred in the context of an attempted ambush of a British army patrol. The 36

states from crimes against the law of nations. As expressed in one of the "whereas" clauses of Presidential Decree No. 532, piracy is "among the highest forms of lawlessness condemned by the penal statutes of all countries." For this reason, piracy under the Article 122, as amended, and piracy under Presidential Decree No. 532 exist harmoniously as separate laws.

War crimes committed against our people and our government while we are a Commonwealth, are triable and punishable by our present Republic. Military Commission is a special military tribunal governed by a special law and not by the Rules of Court which govern ordinary civil courts. The Military Commission having been convened by virtue of a valid law, with jurisdiction over the crimes charged which fall under the provisions of Executive Order No. 68, SC will not interfere with the due processes of such Military Commission. The political offense exception is not limited to actual armed insurrections or more traditional and overt military hostilities. (See Ratio 6 subcategories for reasoning). Factors which the Court must assess in determining political offense doctrine: a. the nature of the act b. the context in which it is committed c. the status of the party committing the act d. the nature of the organization on whose behalf it is committed e. the particularized circumstances of the place where the act takes place.

U.S. v. Alvarez-Machain

British Army’s response gave rise to Captain Westmacott’s death. Had this conduct occurred during the course of more traditional military hostilities there could be little doubt that it would fall within the political offense exception. The Court is not persuaded by the argument that Doherty’s offense must or should be regarded as political merely because the UK has recognized the necessity to enact special legislation and to create special courts to deal with problems created by the escalating violence between Republicans and Unionitsts in Northern Ireland. Nevertheless , the fairness of the administration of justice in those courts does not and cannot deprive Doherty’s offenses of their essentially political character . (see Ratio 14 for full explanation) Having political character, the request for Doherty to be extradited to UK must be denied. Agents of the DEA abducted Alvarez-Machain from his office in Mexico because he was wanted in the U.S. for alleged complicity in the torture-murder of a DEA agent. But by contending that his abduction violated a U.S.-Mexico extradition treaty, Alvarez sought to dismiss the indictment. His prayer was granted by the district court and the indictment was dismissed. The court of appeals affirmed while the U.S. Supreme Court granted review. Issue: Does the presence of an extradition treaty between the United States and another country does not necessarily preclude obtaining a citizen of that nation through abduction? The presence of an extradition treaty between the United States and another country does not necessarily preclude obtaining a citizen of that nation through abduction. It has been established that abduction, in and of itself, does not invalidate prosecution against a foreign national. The only question to be answered is whether the abduction violates any extradition treaty that may be in effect between the U.S. and the nation in which the abductee was to be found. The international law applies only to situations where no extradition treaty exists, so it is irrelevant here. Since the extradition treaty does not prohibit an abduction as it occurred in this case, then it is not illegal. The fact of respondent's forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws. (a) A defendant may not be prosecuted in violation of the terms of an extradition treaty. However, when a treaty has not been invoked, a court may properly exercise jurisdiction even though the defendant's presence is procured by means of a forcible abduction. Thus, if the Extradition Treaty does not prohibit respondent's abduction, the rule of Ker case applies and jurisdiction was proper. (b) Neither the Treaty's language nor the history of negotiations and practice under it supports the proposition that it prohibits abductions outside of its terms. The Treaty says nothing about either country refraining from forcibly abducting people from the other's territory or the consequences if an abduction occurs. In addition, although the Mexican government was made aware of the Ker doctrine as early as 1906, and language to curtail Ker was drafted as early as 1935, the Treaty's current version contains no such clause. (c) General principles of international law provide no basis for interpreting the Treaty to include an implied term prohibiting international abductions. It would go beyond established precedent and practice to draw such an inference from the Treaty based on respondent's argument that abductions are so clearly prohibited in international law that there was no reason to include the prohibition in the Treaty itself. It was the practice of nations with regard to extradition treaties that formed the basis for this Court's decision in Rauscher, supra, to imply a term in the extradition treaty between the United States and England. Respondent's argument, however, would require a much larger inferential leap with only the most general of international law principles to support it. While respondent may be correct that his abduction was "shocking" and in violation of general international 37

The presence of an extradition treaty between the United States and another country does not necessarily preclude obtaining a citizen of that nation through abduction.

SECRETARY OF JUSTICE vs. LANTION RESOLUTION

SECRETARY OF JUSTICE vs. LANTION MAIN DECISION

law principles, the decision whether he should be returned to Mexico, as a matter outside the Treaty, is a matter for the Executive Branch. On 13 January 1977, then President Ferdinand E. Marcos issued Presidential Decree 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". On 13 November 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America. "The Senate, by way of Resolution 11, expressed its concurrence in the ratification of said treaty. On 18 June 1999, the Department of Justice received from the Department of Foreign Affairs U. S. Note Verbale 0522 containing a request for the extradition of Mark Jimenez to the United States. Jimenez was charged in the United States for several violations. Pending evaluation of the aforestated extradition documents, Jimenez requested copies of the official extradition request from the US Government, as well as all documents and papers submitted therewith, and that he be given ample time to comment on the request after he shall have received copies of the requested papers. The Secretary denied the request. Jimenez filed with the RTC a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus, certiorari, prohibition, and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of Jimenez to the United States, with an application for the issuance of a temporary restraining order and a writ of preliminary injunction. The trial court ruled in favor of Jimenez. The Secretary filed a petition for certiorari before the Supreme Court. On January 18, 2000, by a vote of 9-6, the SC dismissed the petition and ordered the Justice Secretary to furnish Jimenez copies of the, extradition request and its supporting papers and to grant him a reasonable period within which to file his comment with supporting evidence. Hence, this petition by the Secretary of Justice. The issue is WoN Jimenez had the right to notice and hearing during the evaluation stage of an extradition process? The SC held that he did not. There is no provision in the Treaty and in PD 1069 which gives an extraditee the right to demand from the Justice Secretary copies of the extradition request from the US government and its supporting documents and to comment thereon while the request is still undergoing evaluation. The DFA and the DOJ, as well as the US government, maintained that the Treaty and PD 1069 do not grant the extraditee a right to notice and hearing during the evaluation stage of an extradition process. It is neither an international practice to afford a potential extraditee with a copy of the extradition papers during the evaluation stage of the extradition process. Jimenez is, thus, bereft of the right to notice and hearing during the extradition process’ evaluation stage. Further, as an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not necessarily apply to the former. On 13 January 1977, then President Ferdinand E. Marcos issued Presidential Decree 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". On 13 November 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America. "The Senate, by way of Resolution 11, expressed its concurrence in the ratification of said treaty. On 18 June 1999, the Department of Justice received from the Department of Foreign Affairs U. S. Note Verbale 0522 containing a request for the extradition of Mark Jimenez to the United States. Jimenez was charged in the United States for several 38

An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation.

The papers by Jimenez pertain to official government action from the US government. However, no official action from the Philippines has yet been taken. Also, the papers have some relation to matters of foreign relations with the US Government. During the evaluation procedure, no official governmental action of our government has as yet been done; hence, the

Secretary of Justice v. Muñoz

violations. Pending evaluation of the aforestated extradition documents, Jimenez requested copies of the official extradition request from the US Government, as well as all documents and papers submitted therewith, and that he be given ample time to comment on the request after he shall have received copies of the requested papers. The Secretary denied the request. Jimenez filed with the RTC a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus, certiorari, prohibition, and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of Jimenez to the United States, with an application for the issuance of a temporary restraining order and a writ of preliminary injunction. The trial court ruled in favor of Jimenez. The Secretary filed a petition for certiorari before the Supreme Court. The issues are WoN during the evaluation stage of the extradition proceedings, Mark B. Jimenez is entitlted to the basic due process rights of notice and hearing and WoN the entitlement of basic due process rights at the evaluation stage of the extradition proceedings would constitute a rbeach of the legal commitments and obligations of the Philippine government under the RP-US Extradition Treaty. For the first issue, the SC held YES, because in the absence of a law or principle of law, we must apply the rules of fair play. The basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties. As for the second issue, the SC held NO, because an application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Nothing is written in the the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, regarding any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. Hong Kong Magistrate’s Court issued a warrant for the arrest of Muñoz for seven counts of accepting an advantage as an agent contrary to the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong and seven counts of conspiracy to defraud, contrary to the common law of Hong Kong. Philippine DOJ then received a request for the provisional arrest of Muñoz from HK DOJ pursuant to the RP-Hong Kong Extradition Agreement. RTC Manila then issued an order granting the application for provisional arrest and issuing the corresponding Order of Arrest. Muñoz was arrested and detained at the NBI detention cell. Muñoz filed with the CA assailing the validity of the Order of Arrest. CA declared the Order of Arrest null and void on the ground that there was no urgency, the request for provisional arrest and the accompanying warrant of arrest and summary of facts were unauthenticated, the requirement of dual criminality was not satisfied, among others. Thus, the Secretary of Justice filed the instant petition assailing the decision of CA. Muñoz filed an Urgent Motion for Release Pending Appeal contending that since PD 1069 sets the maximum of provisional arrest at 20 days, and he has been detained beyond the said period, without both a request for extradition having been received by the Philippine DOJ and the corresponding petition for extradition having been filed in the proper RTC, he should be released from detention. The issue is whether the order of arrest issued by the RTC is valid. The SC ruled in the affirmative and addressed each contention of respondent. The Court ruled that there was urgency for the provisional arrest of respondent. Second, Second, 12 days after respondent was provisionally arrested, the Philippine DOJ received from the HK DOJ a request for the surrender or extradition of respondent which is in 39

invocation of the right is premature. However, later, records of the extradition hearing would already fall under matters of public concern because of our government by then shall have already made an official decision to grant the extradition request.

The process of preparing a formal request for extradition and its accompanying documents, and transmitting them through diplomatic channels, is not only time consuming but also leakage-prone. There is naturally a great likelihood of flight by criminals who get an intimation of the pending request for their extradition. To solve this problem, speedier initial steps in the form of treaty stipulations for provisional arrest were formulated.

GOV’T. OF USA v. HON. PURGANAN

Gov’t of Hongkong v. Olalia

conformity with the provisions of the extradition agreement and the extradition law. The crucial event which tolls the provisional detention period is the transmittal of the request for the extradition or surrender of the extradite. On the contention that his incarceration cannot continue beyond the 20-day period without a petition for his extradition having been filed in court, Court ruled that from the provisions of the extradition agreement and PD 1069, for the provisional arrest of an accused to continue, the formal request for extradition is not required to be filed in court. It only need be received by the requested state within the periods provided in the agreement and in the law. Also, the request for provisional arrest of respondent and its accompanying documents are valid despite lack of authentication. Lastly, there was sufficient factual and legal basis for the determination of probable cause as a requisite for the issuance of the Order of Arrest. Mark Jimenez aka. Mario Batacan Crespo is the subject of a Petition for Extradition applied for by the US Gov’t. US Gov’t. filed this Petition for Certiorari assailing the procedure adopted by RTC of hearing first a potential extraditee, Mark Jimenez, before issuing a warrant for his arrest under Sec. 6 of PD No. 1069 (PH Extradition Law). US Gov’t. contended that the procedure gives Jimenez notice to escape and to avoid extradition. It also assailed the RTC’s granting of Jimenez's prayer for bail, which allows him to go on provisional liberty while extradition proceedings are pending. Issues are WON Jimenez, as an extraditee, is entitled to notice and hearing before a warrant for his arrest can be issued, and WON he is entitled to bail and provisional liberty while the extradition proceedings are pending. SC held NO on both issues. SC held that the present extradition case validates the premise that persons sought to be extradited have a propensity to flee. Prior acts of Jimenz clearly speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all costs. Thus, first, it was grave abuse of discretion on the part of the RTC judge Purganan to set the hearing for the issuance of the warrant of arrest when it was already evident from the Petition for Extradition itself and its supporting documents that a prima facie finding did exist and he may issue a warrant for the immediate arrest of the accused. Second, there is no requirement to notify and to hear Jimenez (accused) before the issuance of a warrant of arrest under the Constitution which requires only an examination under oath or affirmation of complainants and the witnesses they may produce. Third, since Jimenez was allowed by the RTC to be heard and to present evidence at this early stage, it could convert the determination of a prima facie case into a full-blown trial, which is contrary to the summary nature of the proceedings and to the ultimate purpose of extradition proceedings i.e. to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable. SC also held that Jimenez’s immediate detention prior to his being heard does not violate the due process clause; that the right to bail applies only in ordinary criminal proceedings; but that in extradition proceedings, after a potential extraditee has been arrested, bail may be applied for and granted as an exception. Philippines and Hongkong have an extradition treaty in effect. Private respondent Munoz was charged before the Hong Kong Court of a crime in violation of the Bribery laws of Hongkong. Munoz is in the Philippines and thus, the Hong Kong government requested to the DOJ for the arrest of Munoz. Hong Kong also filed a petition for the extradition of Munoz. Munoz was arrested and applied for bail. The bail was granted. Hence, Gov’t of Hong Kong appealed such grant. The Court held that while the current jurisprudence does not allow bail for extradition cases because it is not a criminal proceeding, the current trends on international law warrants a shift towards upholding human rights. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the 40

Extradition is different from an ordinary criminal proceeding. Extradition is basically an executive responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states w/c is not normally a judicial prerogative.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired.

THE EXCHANGE v. MCFADDON

Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes

recognition that the individual person may properly be a subject of international law is now taking root. The United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Furthermore, our jurisprudence had already allowed bail for deportation proceedings. The court sees no reason why the same should not apply to extradition proceedings. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired. Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. While there is a treaty between the Philippines and Hong Kong, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditee's rights to life, liberty, and due process. The schooner Exchange, owned by John McFaddon and William Greetham, sailed from Baltimore, Maryland for San Sebastián, Spain. The Exchange was seized by order of Emperor Napoleon Bonaparte. The Exchange was then armed and commissioned as a French warship under the name of Balaou . When the vessel later docked in Philadelphia due to storm damage, McFaddon and Greetham filed an action in the district court to seize the vessel, claiming that it had been taken illegally. The district court found that it did not have jurisdiction over the dispute. On appeal, the circuit court reversed the decision of the district court, and ordered the district court to proceed to the merits of the case. The issue in this case wi WoN national ships of war is viewed as been exempted by the consent of the power of the friendly jurisdiction whose port the ship enters? -YES. The Supreme Court ruled that they had no jurisdiction since the ship was a public armed ship under the control and supervision of France, who at that time was at peace with the US. the ship is deemed to have entered the US territory under an implied promise that while in such environment, it would be exempt from US jurisdiction.

Victory Transport chartered a ship to Comisaria General (Spain) to carry surplus wheat purchased by the Spanish Government under an Agricultural Commodities Agreement w/ the US. There was an arbitration clause. The ship was damaged while in the ports of Spain w/c were allegedly unsafe for large vessels. Comisaria refused to arbitrate; thus Victory brought an action to compel the same to submit to arbitration. Comisaria invokes state immunity. Issue is WoN state immunity applies in this case – NO, Immunity cannot apply in this case. The transaction was a commercial act (jure gestionis) – not a strictly political or sovereign act. There was even an arbitration clause. The US Court in this case made reference to the case of National City Bank of New York v. Republic of China which discussed the Tate Letter and stated that the US now adheres to the restrictive theory. "Tate Letter" is representative of the present policy of the State Department, suggests that the transaction giving rise to petitioner's claim was a sovereign or public act as distinguished from a private or commercial 41

It is a principle of public law that national ships of war entering the port of a friendly power open for their reception are to be considered as exempted by the consent of that power from its jurisdiction. A sovereign is at times, understood to have waived the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation. As in the following: (1) the exemption of the person of the sovereign from arrest or detention within a foreign territory. (2) immunity which all civilized nations allow to foreign ministers. (3) where a soveriegn is understood to cede a portion of his territorial jurisdiction by allowing the troops of a foreign prince to pass through his dominions. Immunity is in derogation from the normal exercise of jurisdiction and should be granted only in clear cases – such as: (1) internal administrative acts, (2) legislative acts, (3) armed forces, (4) diplomatic activity, and (5) public loans.

Government of the Democratic Republic of Congdo v Venne

Congreso del Partido- Cuban Sugar Trade

transaction. The "Tate Letter" suggested immunity in the former case (sovereign/public act) and none in the latter (commercial transactions). The argument is based on the fact that the cargo of wheat aboard the S.S. Hudson was being shipped pursuant to the Surplus Agricultural Commodities Agreement between the United States and Spain. We have no doubt that this is true but very simply put, petitioner's claim does not arise out of that agreement but out of the charter party between it and respondent. The purpose of the restrictive theory is to accommodate the interests of private individuals doing business w/ foreign governments, while at the same time permitting the foreign states to do political acts w/o being subjected to the embarrassment of defending the propriety of its acts in foreign courts. Venne, an architect, claimed to have been hired by the Government of Congo for making preliminary studies and preparing sketches in relation to the national pavilion which the appellant proposed to build at Expo 67. However, Congo decided not to proceed with the pavilion. Respondent Venne prepared a bill of $20,000for services rendered which was not paid. Congo filed a declinatory exception whereby it claimed that, by reason of it’s status as a sovereign state, it could not be impleaded in the Quebec Courts. The material before the Courts consisted of the declaration or claim, the declinatory exception and 2 formal admissions: 1) that the appellant (Congo) had accredited its charge d’affaires as its commissioner general to the exhibition and also that 2) the Democratic Republic of Congo is a sovereign State. The exception was dismissed by the trail judge and this was upheld also by the CA. The Government of Congo appealed o this Court. Issue: Whether the appeal should be allowed, therefore, the exception be granted. Held: Yes, the appeal should be allowed. The request for the respondent’s services was made not only by the duly accredited diplomatic representatives of the Congo who were Commissioners General of the Exhibition but also representative of the Department of the Foreign Affairs. This makes it plain that in preparing for the construction of its national pavilion, a department of the Government of a foreign state, together with its duly accredited diplomatic representatives were engaged in the performance of a public sovereign act of state on behalf of their country and that the employment of the respondent was a step taken in the performance of that sovereign act. Therefore, it is the view of the Court that Congo could not be impleaded in the courts of Canada even if the doctrine of restrictive sovereign immunity had been adopted in Canada’s courts. Cubazucar, a Cuban state-owned enterprise with independent legal personality, contracted to supply sugar to a Chilean enterprise, Iansa. Delivery of the sugar was to take place in regular instalments. In August 1973, two ships, the Playa Larga and the Marble Islands, were dispatched with one instalment of sugar. The Playa Larga was owned by the Cuban government but chartered to Mambisa, another Cuban state-owned enterprise possessing independent legal personality, which operated all Cuban merchant shipping. Mambisa then sub- chartered the vessel to Cubazucar for the voyage to Chile. The Marble Islands, however, was owned by a Liechtensteinian company which had chartered her on a demise charter to Mambisa which again sub- chartered her to Cubazucar for the voyage. In September 1973, while the Playa Larga was discharging her cargo in Valparaiso, the Allende government, with whom the Cubans had been on friendly terms, was overthrown in a coup d'etat led by General Pinochet. The Cubans found the new government to be politically repugnant and therefore severed diplomatic relations with Chile. Laws were also passed by the Cuban government forbidding any commercial dealings with Chile. The Playa Larga which had not completed discharging her cargo was ordered by the Cuban 42

Theory of sovereign immunity recognizes the classical doctrine that a foreign sovereign cannot, without his consent, be impleaded in the courts of another state, whereas according to the theory of restrictive sovereign immunity, which has been accepted by United Staates Stated Department and consequently by the courts of that country, immunity of the foreign sovereign is recognized only with regard to sovereign or public acts (jure imperii) but not with respect to private acts (jure gestionis) In determining whether the act of a foreign sovereign is public or private, the burden of proof lies upon the sovereign to show that the act was a public one if it is to be granted sovereign immunity.

Whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant acts on which the claim is based should, in that context, be considered as fairly within an area of activity: (1) trading or commercial or otherwise of a private law character in which the state has chosen to engage; or (2) whether the relevant acts should be considered as having been done outside that area and within the sphere of governmental or sovereign activity.

HOLLAND v. LAMPENWOLF

government to return to Cuba, which she did carrying the remainder of her undischarged cargo. The Marble Islands, which was still at sea when these events occurred, sailed for Vietnam where her cargo of sugar was unloaded and a gift of it made to the Vietnamese people. While the Marble Islands was sailing for Vietnam, her ownership was transferred from the Liechtensteinian company to the government of Cuba. Iansa commenced arbitration proceedings in London, during the course of which it was discovered that Mambisa, acting on behalf of the Republic of Cuba, had taken delivery of a new ship, I Congreso, from a British yard. Iansa therefore issued a writ in rem against I Congreso claiming that the Republic of Cuba, as beneficial owner of the ship, was liable in personam for breach of contract and conversion of the sugar. Although the dispute was transferred from the Playa Larga and the Marble Islands to I Congreso and subsequently to guaranteed funds, there were still in effect two separate actions against these ships. The issue is WON a plea of state immunity can be raised as to deny jurisdiction of courts of other states as to: As to Playa Larga- No. Generally, the basis on which one state is considered immune from territorial jurisdiction of courts of another state is “par in parem” which means that the sovereign or governmental acts of one state are not matters on which the courts of other states will adjudicate. However, exception to this is the restrictive theory, which arises from the willingness of states to enter into commercial or other private law transactions with individuals. It was shown that Playa Larga was engaged in trade with the consent, if not with the active participation of the Republic of Cuba. Thus, they were doing business with a foreign government As to Marble islands – Yes. The acts of the Republic of Cuba were and remained in their nature purely governmental. There was no purely commercial obligation involved and the vessel never entered the trading area (remained at sea) and never entered into commercial relations. Thus the general rule applies which states that sovereign or governmental acts of one state are not matters on which the courts of other states will adjudicate. Dr. Holland, a U.S. Citizen and a professor at Troy State University in Alabama, was sent to Menwith Hill, a military base in the U.K., where she taught courses in International Relations. Lampen-Wolf, an American educational services officer also in Menwith Hill, then wrote a memorandum which criticized Dr. Holland’s performance and it questioned her professional competence. It also requested that Holland be replaced by another professor. Dr. Holland then filed a case for damages, arguing that the memorandum is untrue and is defamatory. Lampen-Wolf argues that he is protected due to the doctrine of state immunity. The issue is now whether or not Lampen-Wolf’s action is supposed to be protected by state immunity? Yes because it was done pursuant to his official function. There is a need to distinguish between jure imperii (public act of the government) or jure gestionis (commercial activities of the state). This can only be done by looking at the context of the case. As argued by Lampen-Wolf, the term “armed forces” covers also individuals who are not military personnel in a technical sense (aka ‘di kailangang soldier who actually shoots people on the field). Being a civilian educational services officer may not be traditionally seen as a normal act under jure imperii , the circumstances show that it happened in a U.S. military base and involved only U.S. citizens. More importantly, he is covered by State immunity because the memorandum was concerned with his duty – to supervise and monitor the quality of educational services given to the armed forces . Each state can decide how best to organize its own forces and the services related thereto. This can involve services which are not 43

State immunity is a rule of customary international law - one state cannot be sued in courts for acts performed jure imperii (public acts of a state’s government). This is derived from the sovereign nature of the state’s exercise of its powers and is recognized by the principle of equality (all states are equal). It is a subject-matter immunity, and it operates to prevent official and governmental acts of one state from being called into question in procedings before the ocurts of another.

TRENDTEX v. CENTRAL BANK OF NIGERIA

SANDERS v. VERIDIANO

military in the strict sense – e.g. services to sustain morale or promote physical and mental well-being. In this case, the educational services had a grave impact on the promotion of the armed forces and in their assignments in various countries and missions. Therefore, the act was clearly under jure imperii . The Ministry of Defense of Nigeria entered into a contract with Pan-African for the shipment of Portland Cement. In order for payment to be done, the Central Bank of Nigeria opened a letter of credit in favor of PanAfrican. Payment was then coursed through the Central Banks correspondent, Midland Bank. In order to comply with its contract, Pan-African ordered the cement from Trendtex, to which letter of credit was subsequently transferred to it. After shipment of the first four cements, Trendtex was paid by Midland; however as to the additional two shipments (a total of 6), Trendtex was no longer paid based on the Central Banks order apparently due to the crisis in the port. This prompted Trendtex to file an action for collection of damages against the Central Bank of Nigeria, but the High Court ruled in Central Banks favor declaring it immune from suit. Hence this appeal, whether or not Central Bank is immune. The Court held that the Central Bank of Nigeria is not immune from suit. The Court took note of the prevailing changes in international law when it comes to the doctrine of sovereign immunity, and applied the doctrine of incorporation. This doctrine of incorporation basically states that international law is automatically adopted by the country except when it conflicts with an Act of Parliament. In this case, the modern rule as to immunity is the restrictive immunity. And as such, when a foreign sovereign or government enters into commercial transactions or in its proprietary function, they cannot claim sovereign immunity. Moreover, the Central bank of Nigeria in particular is not an emanation of the state that can claim immunity thus it was bound to the suit filed against it by Trendtex. Rossi and Wyers are both employed as gameroom attendants in the special services department of the NAVSTA. Their employment had been converted from permanent full-time to permanent part-time so they instituted grievance proceedings. The recommendation from the hearing officer was to reinstate the two to permanent full-time status plus backwages. Sanders, the special services director of NAVSTA, sent a letter to Moreau, the commanding officer of the base which includes the same station, disagreeing to the recommendation. Before the start of the grievance proceedings, Moreau sent a letter to the Chief of Naval Personnel explaining the change of the employment status and requesting concurrence therewith. Because of this, Rossi and Wyers filed a complaint for damages against Sanders and Moreau and made it clear that they were being sued in their personal capacity. Sanders and Moreau argued that the case should be dismissed because they performed the duties in their official capacities and therefore, CFI had no jurisdiction over them under the doctrine of state immunity. CFI ruled in favor of Rossi and Wyers. W/N Sanders and Moreau should be liable in their personal capacity – NO, the acts for which the Sanders and Moreau are being called to account were performed by them in the discharge of their official duties. Sanders has supervision over NAVSTA’s personnel while Moreau was the superior of Sanders and directly answerable to Naval Personnel in matters involving the special services department of NAVSTA. As they have acted on behalf of the US government, and within the scope of their authority, it is that government, and not Sanders and Moreau personally, that is responsible for their acts. There should be no question by now that such complaint cannot prosper unless the government sought to be held ultimately liable has given its consent to be sued. The doctrine of state immunity is applicable not only to our own government but also to foreign states sought to be subjected to the jurisdiction of our courts. Because it is the US government 44

A foreign sovereign has no immunity when it enters into a commercial transaction with a trader here and a dispute arises which is properly within the territorial jurisdiction of our courts. If a foreign government incorporates a legal entity which buys commodities on the London market; or if it has a state department which charters ships on the Baltic Exchange: it thereby enters into the market places of the world: and international comity requires that it should abide by the rules of the market.

In the case of foreign states, the rule is derived from the principle of the sovereign equality of states which wisely admonishes that par in parem non habet imperium and that a contrary attitude would "unduly vex the peace of nations." Our adherence to this precept is formally expressed in Article II, Section 2, of our Constitution, where we reiterate from our previous charters that the Philippines "adopts the generally accepted principles of international law as part of the law of the land.

R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet

CASE OF AL-ADSANI v. THE UNITED KINGDOM

that must be answerable to the reliefs prayed for by Rossi and Wyers, the case must be dismissed for lack of jurisdiction. Pinochet was General and Commander in Chief in Chile until he organized a coup and assumed the position as President of Chile. While the President, Pinochet committed several Human rights violations which included hostage taking, torture, and murder of his political opponents. Pinochet after some years resigned as President. He travelled to London for medical treatment. That was when he was issued a warrant and was arrested. The warrant originated in Spain and the Metropolitan Magistrate issued a provisional warrant to arrest Pinochet. Pinochet argued that as a Head of State, he is immune from criminal charges. The issue is whether or not Pinochet, a former head of state, is immune from criminal charges that he committed as President of Chile. The Court vehemently said that Pinochet is not immune. The court explained that while in position, a head of state enjoys immunity ratineo personae which attaches to his person as the head of the state. But the same cannot be said to a former head of state. Since Pinochet is not the current head of state, he merits no immunity as a person. He can be considered immune based on the actions he committed. The court said that to be immune rationae materiae the acts done must be from functions of a head of state. In this case, murder, torture, and hostage taking cannot be considered as functions of the head of state. Hence, Pinochet is not immune. The applicant Al Adsani went to Kuwait served as a pilot in the Kuwaiti Air Force during the Gulf War and remained in Kuwait after the Iraqi invasion. He came into possession of sexual video tapes involving a Sheikh related to the Emir of Kuwait. According to the applicant, the sheikh, who held him responsible for the tapes entering general circulation, gained entry to his house along with two others, beat him and took him at gunpoint to the State Security Prison, where he was detained for several days and repeatedly beaten by guards. He was later taken at gunpoint to a palace where he was repeatedly held under water in a swimming pool before being taken to a small room where the sheikh set fire to mattresses soaked in petrol, as a result of which the applicant sustained serious burns. After returning to the United Kingdom, the applicant instituted civil proceedings against the sheikh and the Government of Kuwait. He obtained a default judgment against the sheikh and was subsequently granted leave to serve proceedings on two named individuals. However, he was refused leave to serve the writ on the Kuwaiti Government. On appeal, the Court of Appeal concluded that leave should be granted and the writ was served, but on the application of the Kuwaiti Government the High Court ordered that the proceedings be struck out on the ground that the Kuwaiti Government was entitled to state immunity. The applicant's appeal was dismissed by the Court of Appeal and leave to appeal to the House of Lords was refused. The issue in this case is WON the Kuwaiti Government must be granted State Immunity. The Court said that it is entitled to State Immunity because in the present case, the applicant did not contend that the alleged torture took place within the jurisdiction of the United Kingdom or that the United Kingdom authorities had any causal connection with its occurrence. Thus, it could not be said that the State was under a duty to provide a civil remedy in respect of torture allegedly carried out by the Kuwaiti authorities. Moreover, the applicant contended that the prohibition of torture had acquired the status of jus cogens, taking precedence over treaty law and other rules of international law. While his allegations had never been proved, the alleged ill- treatment could properly be categorised as torture within the meaning of Article 3 of the Convention. The right enshrined in that provision is absolute and several other international treaties also prohibit torture; in addition, a number of judicial statements have been made to the effect that the prohibition of torture has attained the status of a peremptory norm or jus cogens, which the Court accepted. However, the present case did not concern the criminal liability of an individual but the immunity of a State in civil proceedings and there was no firm basis in international instruments, judicial authorities or other materials for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State in respect of alleged torture. Consequently, the United Kingdom statute was not inconsistent with those limitations generally accepted by the 45

A former head of state had immunity from UK criminal jurisdiction for acts done in official capacity as head of state but not for crimes of torture or conspiracy to torture after ratification of international convention relating thereto.

The right of access to a court is not absolute and may be subject to limitations that pursue a legitimate aim and which ensure that there is reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Applying this test to the application of state immunity laws, the European Court has made clear its view that the grant of sovereign immunity to a State in civil proceedings does pursue the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty.

Jurisdictional Immunities of the State (Germany v. Italy, Greece Intervening)

ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF THE CONGO v. BELGIUM)

KIRKPATRICK v. ENVIRONMENTAL TECTONICS

community of nations as part of the doctrine of State immunity and the application of its provisions could not be said to have amounted to an unjustified restriction on the applicant's access to court. Germany instituted proceedings against the Italian Republic, requesting the Court to declare that Italy had failed to respect the jurisdictional immunity which Germany enjoys under international law. Greece stated that it wished to intervene in the aspect of the procedure relating to judgments rendered by its own courts on the Distomo massacre and enforced (exequatur) by the Italian courts. On whether Italy had violated Germany’s jurisdictional immunity by allowing civil claims to be brought against Germany in the Italian courts for reparations for injuries caused by the Third Reich during the WWII: the Court held that (1) a state is not deprived of immunity by reason of fact that it was accused of serious violations of international human rights or armed conflict, (2) the principle of state immunity does not conflict with jus cogens norms because state immunity is confined to the exercise of jurisdiction of one state in respect of another’s, and not whether conduct is lawful or unlawful, and (3) state immunity is not dependent on alternative means to secure redress. On whether a measure of constraint taken against property belonging to Germany located on Italian territory constituted a breach by Italy of Germany’s immunity: Germany had in no way consented to the registration of the legal charge in question, nor allocated Villa Vigoni for the satisfaction of the judicial claims against it. Since the conditions permitting a measure of constraint to be taken against property belonging to a foreign State had not been met, Italy had violated its obligation to respect Germany’s immunity. On whether Italy had violated Germany’s immunity by declaring enforceable in Italy civil judgments rendered by Greek courts against Germany in proceedings arising out of the massacre committed in the Greek village of Distomo: the Court held that it was also a violation of Germany’s state immunity. An investigating judge of Brussel issued an international arrest warrant in absentia against Mr. Abdulaye Yerodia Ndombasi, Minister of Foreign Affairs of Congo, charging him as perpetrator or co-perpetrator of offenses constituting grave breaches of Geneva Conventions of 1949 and of Additional Protocols, and with crimes against humanity. Congo instituted proceedings before ICJ, requesting Belgium to annul the arrest warrant. Congo’s arguments include that this constituted a violation of the principle of sovereignty, violation of diplomatic immunity of the Minister of Foreign Aggairs, and violation of immunity from criminal process under customary international law. WoN Mr. Abdulaye Yerodia Ndombasi was immune from criminal prosecution? Yes because Ndombasi enjoys immunity under customary international law. The Court finds that the cited Conventions provide useful guidance on certain aspects of the question of immunities, but that they do not contain any provision specifically defining the immunities enjoyed by Ministers for Foreign Affairs. After an examination of Minister of Foreign Affairs’ functions, the Court concludes that they are such that, throughout the duration of his or her office, a Minister for Foreign Affairs when abroad enjoys full immunity from criminal jurisdiction and inviolability. ETC learned of an anomalous transaction on the award of the construction of the Kaduna Air Force Base to Kirkpatrick – that Harry Carpenter (Kirkpatrick’s Chairman), entered into an agreement with Benson Akindele (a Nigerian citizen) wherein the latter will secure the award of the contract to the former, so that Kirkpatrick will pay 20% commission of the contract price to Panamanian entities controlled by Akindele, which would be given as a bribe to Nigerian officials. ETC informed the US Attorney for the District of New Jersey, which filed charges against Carpenter and Kirkpatrick for violation of the Foreign Corrupt Practices Act – both pleaded GUILTY. Hence, ETC filed this 46

Under customary international law as it presently stood, a State was not deprived of immunity by reason of the fact that it was accused of serious violations of international human rights law or the international law of armed conflict. The rules of State immunity were confined to determining whether or not the courts of one State could exercise jurisdiction in respect of another State. They did not bear upon the question whether or not the conduct in respect of which the proceedings were brought was lawful or unlawful; hence, not in conflict with jus cogens norms.

In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States. The iminunity and that inviolability protect the individual concerned against any act of authority of another State that would hinder him or her in the perfomance of his or her duties. The Court emphasizes, however, that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. The Act of State Doctrine has no application when the case has no issue on the validity of a foreign sovereign act. The doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of

civil complaint for damages pursuant to the Anti-Roecketeering Act, etc. Kirkpatrick filed a motion to dismiss on the ground that the action was barred by the Act of State Doctrine (every sovereign state is bound to respect the independence of every other sovereign state, and the courts will not sit in judgment of another government's acts done within its own territory ). The district court treated the motion as a summary judgment and granted the motion on the ground that it would result in embarrassment to the sovereign or constitute interference in the conduct of foreign policy of the US. The CA reversed on the ground that judicial inquiry into the purpose behind the act of a foreign sovereign would not produce the unique embarrassment and interference with the conduct of foreign affairs that may result from the judicial termination that a foreign sovereign’s acts are invalid. The issue is whether the Act of State Doctrine bars the instant case. The Court ruled in the negative. For the doctrine to apply, the relief sought would have required a court in the US to declare invalid the official act of a foreign sovereign performed within its own territory. Neither the claim nor any asserted defense requires a determination that Nigeria's Kaduna contract with Kirkpatrick was, or was not, effective, but whether ETC is entitled to damages – its legality is simply not a question to be decided in the present suit, and there is thus no occasion to apply the rule of decision that the act of state doctrine requires – the issue is actually whether the alleged acts occured. These are cases that have been consolidated because they all involve 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 issue in these cases is WoN the private defendants were also immune from suit for acts done by them in the performance of their official duties. The Court held in the affirmative.

United States of America vs. Guinto

Chuidian v. Sandiganbayan

During the Marcos regime, Vicente Chuidian (Chuidian), as a favored business associate of the Marcoses, was able to induce Philippine Export and Foreign Loan Guarantee Corporation (PHILGUARANTEE), the Board of Investment (BOI) and the Central Bank to issue a loan (US$25M) in favor of Asian Reliability Company, Incorporated (ARCI), a corporation which is 98% allegedly owned by Chuidian. However, while the loan proceed was represented 47

foreign sovereigns taken within their own jurisdictions shall be deemed valid. o Exceptions: (1) Commercial transactions; (2) When the executive branch has no objection to denying validity to the foreign sovereign act.

The rule that a State may not be sued without its consent is one of the generally accepted principles of international law that were have adopted as part of the law of our land. While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the states for acts allegedly performed by them in the discharge of their duties. Moreover, when the government enters into a contract, it is deemed to have descended to the level of the other contracting party and divested of its sovereign immunity from suit with its implied consent. In the case of US, the customary law of international law on state immunity is expressed with more specificity in the RP-US Bases Treaty. There is no question that the US, like any other state, will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietory or private capacity (commercial acts). It is only when the contract involves its sovereign or governmental capacity (governmental acts) that no such waiver may be implied. (it was not really stated in the case, however, this is just my interpretation in relation sa topic sa syllabus – that the state may not be sued without its consent ) Foreign judgments should not be recognized, if the action

DAYRIT v. PHIL PHARMAWEALTH

to be used for five inter-related projects in the Philippines, Chuidian reneged on the approved business plan and instead invested the proceeds in corporations operating in the US. Subsequently, ARCI defaulted in the payments of the loan compelling PHILGUARANTEE to pay for the same. This prompted PHILGUARANTEE to sue Chuidian before the Santa Clara County Superior Court. But PHILGUARANTEE and Chuidian decided to enter into a compromise agreement where it was agreed that Chuidian shall assign and surrender title to all his companies in favor of the PH government and in return, PHILGUARANTEE shall desist from any legal action that will make Chuidian civilly and criminally liable. It was also agreed that instead of Chuidian reimbursing the payments made by PHILGUARANTEE arising from Chuidian’s default, the PH government should pay Chuidian the amount of US$5.3M. Initial payments were made and the balance was to be paid through an irrevocable Letter of Credit (L/C) to be issued by the PNB. Later, with the advent of the Aquino administration, the PCGG was established and the properties of Chuidian were among those assets that were sequestered. Philguarantee filed a motion before the Superior Court of Santa Clara County of seeking to vacate the compromise agreement containing the settlement between Philguarantee and Chuidian but it was denied. Chuidian also filed an action before the United States District Court, Central District of California, an action against PNB seeking, among others, to compel PNB to pay the proceeds of the L/C. PNB countered that it cannot be held liable for a breach of contract under principles of illegality, international comity and act of state, and thus it is excused from payment of the L/C. Philguarantee intervened in said action, raising the same issues and arguments it had earlier raised in the action before the Santa Clara Superior Court, alleging that PNB was excused from making payments on the L/C since the settlement was void due to illegality, duress and fraud. The Federal Court rendered judgment ruling in favor of PNB excusing the said bank from making payment on the L/C, and in Chuidian’s favor by denying intervenor Philguarantees action to set aside the compromise agreement. The Republic of the Philippines (RP) filed before the Sandiganbayan civil cases against Chuidian who was alleged to be in conspirary with the Marcoses. While the case was pending, the RP filed a motion for writ of attachment against L/C for the satisfaction of judgment which was granted by the Sandiganbayan. Chuidian’s contention hinged on the fact that he was given a favorable judgment by the foreign court when the latter uphold the compromise agreement between PHILGUARANTEE and Chuidian. Issue is WoN the foreign judgment can be the basis to claim for payment and to lift the attachment. The court held in the negative. The court held that Chuidian’s own evidence which is the foreign judgment merely strengthen the position of the PH government because although it was admitted in the judgment that Chuidian got a favorable decision, it was also stated that PNB is excused from the payment of the L/C as long as the sequestration order remains in effect. Furthermore, the foreign judgment recognizes the validity of the sequestration and freeze orders as an act of the state, and therefore, if PNB would pay the L/C, then it would be illegal under the PH laws because it is an act of defiance against a valid order from the state. SOH Romualdez Jr issued AO 27, s. of 1998 providing for the guidelines and procedures on the accreditation of government suppliers for pharmaceutical products. This was later amended by AO 10, s. of 2000, providing for additional guidlelines that only qualified bidders can transact business with DOH, particularly only products accredited by the Committee shall be allowed to be procured by the DOH. Pharmawealth submitted to DOH a request for the inclusion of additional items in its list of accredited drug products, including the antibiotic "Penicillin G Benzathine”, but it was not timely accredited by the time of invitation for bids of DOH for the procurement of 1.2 million units vials of Penicillin G Benzathine (Penicillin contract). But 48

would amount to a legal action against the State without the latter’s consent. In this case, if the foreign judgment was to be enforced, ASSUMING that PNB was ordered to pay the L/C, then it would amount to legal proceedings without the State’s consent because the L/C was already sequestered in favor of the government. Therefore, allowing the foreign judgment as a basis for the payment to Chuidian and the lifting of the attachment would essentially amount to an abdication of the jurisdiction of the Sandiganbayan to hear and decide the ill gotten wealth cases lodged before it in deference to the judgment of foreign courts.

The rule that a state may not be sued without its consent , now embodied in Section 3, Article XVI of the 1987 Constitution , is one of the generally accepted principles of international law , which we have now adopted as part of the law of the lan. An action at law or suit in equity against a State officer or the director of a State

Professional Video v. TESDA

ACTI OVERSEAS CORPORATION v ECHIN

Pharmawealth still participated, despite lack of accreditation of its penicillin product from DOH. There were only two bidders: Pharmawealth and YSS Laboratories’, in which Pharmawealth submitted the lower bid (₱82.24 per unit; YSS - ₱95.00 per unit). However, the contract was awarded to YSS due to nonaccreditation of Pharmawealth’s penicillin products. Pharmawealth, then, filed a complaint against SOH Dayrit (succeeded Romualdez), USec Galon and Usec Lopez for the nullification of the award to YSS and for the same to be awarded to Pharmawealth, and to adjudge Dayrit et al to be jointly and severally liable for specific damages. Dayrit et al filed a motion to dismiss based on doctrine of state immunity. RTC denied the motion to dismiss and their MR. On appeal to CA, CA affirmed RTC and subsequently denied their MR. Hence, this instant petition for review. Issue before the SC is whether or not CA erred in upholding the denial of motion to dismiss. The SC upheld the CA’s ruling. SC held that there is merit in Pharmawealth’s argument. While the doctrine of state immunity appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule, however, is not so all-encompassing as to be applicable under all circumstances. The rule does not apply where the public official is charged in his official capacity for acts that are unauthorized or unlawful and injurious to the rights of others. Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position. SC noted that Dayrit et al are being sued in their personal capacities for damages in connection with their alleged act of "illegally abusing their official positions to make sure that Pharmawealth would not be awarded the Benzathine contract which act was done in bad faith and with full knowledge of the limits and breadth of their powers given by law". However, the mere allegation that a government official is being sued in his personal capacity does not automatically remove the same from the protection of the doctrine of state immunity. These are matters of evidence which should be presented and proven at the trial. PROVI entered into an agreement with TESDA which sprang from a failed public bidding conducted by the latter in which the parties agreed that PROVI will provide goods and services in relation to the printing and encoding of PVC cards. During the performance of the contract, PROVI alleged that TESDA had an outstanding balance of ~P35M, which prompted the former to file a collection case with prayer of attachment. TESDA countered that attachment should not issue since garnishment involved public funds. RTC denied, CA reversed. The issue is whether attachment and the claim may prosper. The SC held in the negative, ruling that TESDA is acting in its governmental capacity, and the mere fact that it will sell the PVC cards to its trainees does not amount to an action of a proprietary character since it is implied from the law creating TESDA that it has the power to identify its trainees. The Court further held that even assuming that TESDA is acting in a proprietary capacity, the funds for the collection suit may not be attached since it is in the character of public funds. Josefina was hired by ACTI on behalf of the Minsitry of Public Health of Kuwait as medical technologist under a two-year contract. Josefina was put under probation for one year following Kuwait law. Before the end of the one-year period, Josefina was terminated. She returned to the Philippines and filed a, illegal dismissal case. The LA, NLRC, and CA held that ACTI and its offier, Ikdal is liable for illegally dismissing Josefina. Hence this petition. The issues are: (a) Whether ACTI 49

department was claiming to act for the State but, actually, violates or invades the personal and property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the State may not be sued without its consent. The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.

A continued adherence to the doctrine of nonsuability is not to be deplored for as against the inconvenience that may be caused private parties, the loss of governmental efficiency and the obstacle to the performance of its multifarious functions are far greater if such a fundamental principle were abandoned and the availability of judicial remedy were not thus restricted. With the well known propensity on the part of our people to go to court, at the least provocation, the loss of time and energy required to defend against law suits, in the absence of such a basic principle that constitutes such an effective obstacle, could very well be imagined. The foreign law is treated as a question of fact to be properly pleaded and proved as the judge or LA cannot take judicial notice of a foreign law. Where a foreign law is not pleaded, or even if not pleaded, is not proven, the presumption is

GUNIGINDO v. SANDIGANBAYAN

U.S. DIPLOMATIC AND CONSULAR STAFF IN TEHRAN (U.S. v. IRAN)

can plead the immunity of the Ministry to escape liability, and (b) Whether ACTI can invoke the application of Kuwaiti law as provided in the MOA. The Court voted in the negative on both counts. First, the obligations covenanted in the recruitment agreenet entered into by and between the local agent and its foreign principal are not coterminous with the term of such agreement. The imposition of joint and solidary liability is in line with the policy of the state to protect and alleviate the plight of the working class. Second, did not submit a copy of the pertinent Kuwaiti labor laws duly authenticated and translated by Embassy officials thereat, as required under the Rules. The party invoking the application of a foreign law has the burden of proving the law, under the doctrine of processual presumption. Hence, Philippine laws are applied in the case. The OSG asked help from the Government of Switzerland to investigate the illgotten wealth of the Marcoses, in lie with this Switzerland freezed some accounts that were provided by the OSG in a list. Officeco was in that list and they now question the propriety of their accounts being frozen. They went to the Sandiganbayan and prayed that the PCGG to advise the Swiss government to unfreeze their accounts. PCGG filed a motion to dismiss on 4 grounds but it was dismissed by the Sandiganbayan. The issues are WoN the Sandiganbayan erred in not dismissing Civil Case No. 0164 on the grounds of: (1) res judicata SC held that res judicata does not apply since the subject matter and the interest of the parties are not identical. The Swiss are interested only in the propriety of giving legal assistance to the Philippines, and the PCGG is interested in resolving issues regarding ill-gotten wealth wherever it may be located. (2) lack of jurisdiction on account of the act of state doctrine SC held that this doctrine would not apply because the Sandiganbayan will not examine and review the freeze orders of the concerned Swiss officials. They will only examine the position of PCGG in not advising the Swiss officials to unfreeze the accounts of Officeco (3) failure to exhaust administrative remedies SC held that the administrative remedies are only available the freeze orders made in the Philippines and not to those issued by other countries. (4) lack of cause of action SC held that there is a cause of action because the allegations presented need to be backed by evidence. (see ratio no. 6 under cause of action) On November 4, 1979, Iranian students seized the US Embassy in Tehran and a number of consulates in outlying cities. The Iranian authorities failed to protect the Embassy and later appeared to adopt the students’ actions. Over 50 US nationals (mostly diplomatic and consular staff) were held for 444 days. The ICJ had indicated provisional measures against Iran (ICJ Rep 1979 7), and in this case the US sought a declaration, inter alia, that Iran had violated the two Vienna Conventions, and calling for the release of the hostages and the vacation of the Embassy and consulates. ISSUE: WoN the initial attack by the students could be attributed to the Iranian Government and whether Iran was therefore in violation of its international obligations. YES, because for the FIRST PHASE of events, the Iranian authorities: were fully aware of their obligations under the conventions in force to take appropriate steps to protect the premises of the United States Embassy and its diplomatic and consular staff from any attack and from any infringement of their inviolability, and to ensure the security of such other persons as might be present on the said premises; were fully aware, as a result of the appeals for help made by the United States Embassy, of the urgent need for action on their part; had the means at their disposal to perform their obligations; completely failed to comply with these obligations. were equally aware of their obligations to protect the United States Consulates at Tabriz and Shiraz, and of the need for action on their part, and 50

that the foreign law is the same as ours

Every sovereign state is bound to respect the independence of every other state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.

The Iranian state was under obligation to protect the premises of the mission, and breached the same in failing to protect and secure the premises and for even tolerating the actions of the student militants. Instead, expressions of approval for the attacks were made by Ayatollah and Iranian officers. The Iranian government gave its consent to the attack upon the diplomatic premises, violation of its dignity, and the detention of diplomats; thus the perpetrators in effect became “agents” of the Iranian Government. Iran is therefore internationally responsible.

Regina v. Palacios

HOLY SEE v. ROSARIO

similarly failed to use the means which were at their disposal to comply with their obligations. For the SECOND PHASE, the occupation having taken place and the diplomatic and consular personnel of the United States’ mission having been taken hostages, the action required of the Iranian Government by the Vienna Conventions and by general international law manifest its plain duty was at once to make every effort, and to take every appropriate step, to bring these flagrant infringements of the inviolability of the premises, archives and diplomatic and consular staff of the United States Embassy to a speedy end, to restore the Consulates at Tabriz and Shiraz to United States control, and in general to re-establish the status quo and to offer reparation for the damage. The Iranian authorities’ decision to continue the subjection of the premises of the United States Embassy to occupation by militants and of the Embassy staff to detention as hostages, clearly gave rise to repeated and multiple breaches of the applicable provisions of the Vienna Conventions even more serious than those which arose from their failure to take any steps to prevent the attacks on the inviolability of these premises and staff. The Iranian Government did not break off diplomatic relations with the United States; and in response to a question put to him by a Member of the Court, the United States Agent informed the Court that at no time before the events of November 4, 1979 had the Iranian Government declared, or indicated any intention to declare, any member of the United States diplomatic or consular staff in Tehran persona non grata. The Iranian Government did not, therefore, employ the remedies placed at its disposal by diplomatic law specifically for dealing with activities of the kind of which it now complains. Instead, it allowed a group of militants to attack and occupy the United States Embassy by force, and to seize the diplomatic and consular staff as hostages; instead, it has endorsed that action of those militants and has deliberately maintained their occupation of the Embassy and detention of its staff as a means of coercing the sending State. It has, at the same time, refused altogether to discuss this situation with representatives of the United States. The Court, therefore, can only conclude that Iran did not have recourse to the normal and efficacious means at its disposal, but resorted to coercive action against the United States Embassy and its staff. A member of the Nicaraguan diplomatic staff was charged of possession of drugs as well as prohibited weapons (2 revolvers and a mace), as well as careless storage ammunition. He left the country (Canada) temporarily for a trip to the US. When he returned, he was arrested and charged therefor. The issue is WoN Palacios is protected by diplomatic immunity. The Court ruled in the affirmative. True that diplomatic immunity ceases from the moment a diplomat leaves the country, or after the expiry of a reasonable period for him to do so after the termination of his functions. This allows him to wind up his affairs without being “pounced on” by the authorities of the host state. However, when the Vienna Convention on Diplomatic Relations makes use of the words “leaves the country” it should be understood to mean permanently, not temporarily. It would require the clearest possible language in the Convention to diminish the rights of diplomats. That being the case, the diplomat’s visit to the US could not have deprived him of his immunity. The Holy See, who exercises sovereignty over the Vatican City, and is represented in the Philippines by the Papal Nuncio, sold its parcel of land in Paranaque to a Philippine national who then assigned his rights to a Philippine Corporation. The squatters on the land refused to vacate, so a dispute arose as to which of the parties had the responsibility of clearing the land. What complicated this more was that the Holy See again sold the land to another party. WON The Holy See was in fact a sovereign state. Yes. The Court ruled that indeed it is a sovereign state. The Court cited seven separate publicists and concluded that this appears to be the universal practice in international relations. 51

Diplomatic immunity ceases to be enjoyed at the moment the diplomat leaves the country, or on expiry of a reasonable period in w/c to do so.

The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 2022). The Holy See is immune from suit because the act of

WON The Holy See deserved the benefit of sovereign immunity in this case. Yes.s The Court summarized the current state of the law, invoking the Incorporation clause, that we have adopted the generally accepted principles of international law. This is not only in our Constitution but also is a condition and consequence of our admission in the society of nations. It is well established that a sovereign cannot be sued without its consent with regard to its public acts. The Court also applied the restrictive theory in the Philippines, since there was no legislation on the matter, the Court tried to absorb State practice and customary principles. The Court held that the Holy See was entitled to sovereign immunity, for its act of transferring the property was clothed with governmental character, not for profit or gain but because the land was impossible to use as an official residence.

MINUCHER v. CA

Minucher is an Iranian national who came to study in UP in 1974 and was appointed Labor Attache for the Iranian Embassies in Tokyo and Manila; he continued to stay in the Philippines when the Shah of Iran was deposed by Khomeini, he became a refugee of the UN and he headed the Iranian National Resistance Movement in the Philippines. On the other hand, Scalzo was 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 make 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 Later on, Minucher filed a complaint for damages against Scalzo. It was said that Minucher and Scalzo came to know of each other thru Jose Iñigo; they conducted some business i.e. the former sold to the latter some caviar and Persian carpets. Scalzo then represented himself as a special agent of the Drug Enforcement Administration, DOJ of US. Minucher expressed his desire to obtain a US Visa for him and his Abbas wife. Scalzo told him that he could help him for a$2,000 fee per visa. After a series of business transactions between the two, when Scalzo came to deliver the visas to Minuchers house, he told the latter that he would be leaving the Philippines soon and requested him to come out of the house so he can introduce him to his cousin waiting in the cab. To his surprise, 30-40 armed Filipino soldiers came to arrest him In his complaint for damages, 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 the said arrest was merely staged by Scalzo. 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. The issue is WoN despite not being part of the enumerated list on Vienna convention on diplomatic relations, is Scalzo immune from suit- Yes, he is immune from suit but on the basis of “State immunity from suit” he was acting as a representative of the state when he performs his duty as agent, hence he cannot be sued. The court also discussed about who grants the immunity, the nature of international immunities, and the need of consent of the receiving state as to the grant of immunity.

52

selling the lot of concern is non-proprietary in nature. The act of transferring the property was clothed with governmental character, not for profit or gain but because the land was impossible to use as an official residence. Procedure for state claiming sovereign immunity: when a state or international agency wishes to plead immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that the defendant is entitled to immunity in the Philippines, the practice is for the foreign government or the international organisation to first secure an executive endorsement of its claim of immunity. If the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an individual but for the State, in whose service he is. (In this case though Scalzo was not part of those listed in the convention as immune from suit as a member of a diplomatic mission, he is nevertheless immune on the basis of state immunity from suit because he is acting as a representative of the US government) As to other doctrine for immunities which I find also relevant: • Vesting a person with diplomatic immunity is a prerogative of the executive branch of the government. • The 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. • It might be recalled that the privilege is not an immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction • The Convention lists the classes of heads of diplomatic missions to

Indonesia v. Vinzon

Nicolas v. Romulo

Petitioner, Republic of Indonesia, entered into a Maintenance Agreement in August 1995 with respondent James Vinzon, sole proprietor of Vinzon Trade and Services. Indonesia later on terminated the MoA with Vinzon. Respondent Vinzon then filed a complaint against Petitioners Indonesia. Indonesia filed a motion to dismiss, claiming it has sovereign immunity from suits. Respondent Vinzon claims that Indonesia waived its immunity from suit from a provision in the MoA. Issue: W/N Indonesia waived its immunity from suit. No. There is no dispute that the establishment of a diplomatic mission is an act jure imperii (public act). It is therefore clear that petitioner Republic of Indonesia was acting in pursuit of a sovereign activity when it entered into a contract with respondent for the upkeep or maintenance of the air conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps of the Indonesian Embassy and the official residence of the Indonesian ambassador. L/CPL Daniel Smith was accused of raping Suzette Nicolas. During the trial his custody was transferred to the US Embassy pursuant to the Kenney-Romulo Agreements of Dec. 19 and 22, 2006. The Agreements were supposedly pursuant to the VFA. L/CPL was then convicted of rape and was continually detained in the US Embassy. Nicolas questioned the transfer of custody by assailing the constitutionality of the VFA agreement, specifically citing Art.V Sec. 10 as being violative of the Supreme Court’s exclusive power to adopt rules of procedure for all courts in the Philippines. The issue is WoN the transfer of L/CPL Daniel Smith was violative of the Supreme Court’s exclusive power to adopt rules of procedure for all courts in the Philippines. The Supreme Court held NO, under international law, foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon. The receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties. The situation involved is not one in which the power of the Supreme Court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules) of one State do not extend or apply to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces. Nothing in the Constitution prohibits recognition of immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomates and members of the armed forces contingents of a foreign State allowed to enter another State’s territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land. However, applying the provisions of VFA, the Supreme Court found that there is a different treatment when it comes to detention as against custody. The moment the accused has to be detained e.g. after conviction, Art. V Sec. 10 of the VFA provides that: “The confinement or detention by the Philippine authorities of the US personnel shall be carried out in facilities agreed by appropriate Philippines and US authorities. US personnel serving sentences in the Philippines shall have the rights to visits and material assistance.” It is clear that the VFA recognized the difference between custody during trial and detention after conviction. The 53

include a. ambassadors or nuncios accredited to the heads of state b. envoys, ministers or internuncios accredited to the heads of states c. charges d' affairs accredited to the ministers of foreign affairs. The mere entering into a contract by a foreign State with a private party cannot be construed as the ultimate test of whether or not it is an act jure imperii or jure gestionis. Hence, the existence alone of a paragraph in a contract stating that any legal action arising out of the agreement shall be settled according to the laws of the Philippines and by a specified court of the Philippines is not necessarily a waiver of sovereign immunity from suit. The aforesaid provision contains language not necessarily inconsistent with sovereign immunity. The rule in international law is that foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon. The Status of Froces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. Note: The case was 70 pages long - including the dissenting opinions (none of which talked about immunity) - but the majority of the case talked about the constitutionality of the VFA in the context of Senate concurrence as well as the the US’ obligation under the VFA, how it’s binding etc. Only a limited portion of the case discussed immunity.

DEUTSCHE v. CA

DFA v. NLRC

specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be “by Philippine authorities.” Therefore, the Romulo-Kenney Agreements which are agreements on the detention of L/CPL Daniel Smith in the US Embassy are not in accordance with the VFA. The Philippine government, through then Foreign Affairs Secretary Domingo Siazon, and the German government, agreed to an Arrangement in furtherance of the 1971 Agreement. This Arrangement affirmed the common commitment of both governments to promote jointly a project called, Social Health Insurance—Networking and Empowerment (SHINE), which was designed to "enable Philippine families–especially poor ones–to maintain their health and secure health care of sustainable quality." The Philippines named the Department of Health (DOH) and the Philippine Health Insurance Corporation (Philhealth) as its respective implementing organizations for SHINE while the German government - the Deustche Gesellschaft fü r Technische Zusammenarbeit (GTZ) GmbH, Eschborn, with the implementation of its contributions." Private respondents were engaged as contract employees hired by GTZ to work for SHINE on various dates between December of 1998 to September of 1999. However, when Nicolay assumed the post of SHINE Project Manager, Disagreements eventually arose between Nicolay and private respondents in matters such as proposed salary adjustments, and the course Nicolay was taking in the implementation of SHINE different from her predecessors. Negotiations through letters ensued but lead to the dismissal of the private respondents. The private respondents filed a complaint for illegal dismissal with the NLRC GTZ, through counsel, filed a Motion to Dismiss, on the ground that the Labor Arbiter had no jurisdiction over the case, as its acts were undertaken in the discharge of the governmental functions and sovereign acts of the Government of the Federal Republic of Germany. The issue in this case is WoN the complaint for illegal dismissal should have been dismissed for lack of jurisdiction on account of GTZ’s insistence that it enjoys immunity from suit. The SC ruled in the negative because GTZ consistently has been unable to establish with satisfaction that it enjoys the immunity from suit generally enjoyed by its parent country, the Federal Republic of Germany. The requirement to secure from the Department of Foreign Affairs "a certification of respondents’ diplomatic status and entitlement to diplomatic privileges including immunity from suits” might not necessarily be imperative. However, had GTZ obtained such certification from the DFA, it would have provided factual basis for its claim of immunity that would, at the very least, establish a disputable evidentiary presumption that the foreign party is indeed immune which the opposing party will have to overcome with its own factual evidence. Jose Magnayi was an employee of the ADB who claimed that he was illegally dismissed and that ADB violated municipal labor laws. He filed a complaint with the Labor Arbiter who then sent summons to the ADB and the DFA. The ADB notified the Labor Arbiter of its diplomatic immunity as an international organization. Magnayi argued that by entering into service contracts with different private parties, ADB has descended to the level of an ordinary party to a commercial transaction giving rise to a waiver of its immunity from suit. The Labor Arbiter ruled in favor of Magnayi as a regular employee and ordered reinstatement. ADB did not appeal and the DFA referred the decision to the NLRC which did not overturn the decision of the Labor Arbiter. The DFA brought the matter to the SC. The issues before the court were the proper invocation of diplomatic immunity by ADB, and the propriety of DFA acting on ADB's behalf. The SC granted the petition of the DFA on the clear stipulations of the Charter and Headquarters Agreement of the ADB. The SC cited the Holy See case which distinguished public acts or acts jure imperii, which have sovereign immunity, from private acts or acts gestionis, which are not covered by 54

In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity. In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity

The Asian Development Bank, being an international organization that has been extended a diplomatic status, is independent of the municipal law, based on its Charter and the Headquarter's agreement. Its service contracts with its employees are acts jure imperii or sovereign acts that are covered under their diplomatic immunity. The petition of DFA on behalf of the ADB is an affirmation of the government's own recognition of ADB's immunity.

LASCO v. UNITED NATIONS

WHO v. AQUINO

such immunity. Magnayi is then mistaken, as the service contracts he is referring to have not been intended by the ADB for profit or gain but are official acts over which a waiver of immunity would not attach. Therefore they are acts jure imperii. That Court also recognized that the DFA makes the determination of persons and institutions covered by diplomatic immunities. The DFA then, must be allowed to plead its case before the courts whenever necessary or advisable to enable it to help keep the credibility of the Philippine government before the international community. When international agreements are concluded, the parties thereto are deemed to have likewise accepted the responsibility of seeing to it that their agreements are duly regarded. Petitioners, Lasco et. al., 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. Lasco, et. al., are the complainants for illegal dismissal and damages. UNRFNRE alleged that respondent Labor Arbiter had no jurisdiction over its personality since it enjoyed diplomatic immunity. The issue in this case is whether or not specialized agencies such as the UNRFNRE enjoy diplomatic immunity. The court rules yes. In this case, UNRFNRE 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 theUnited Nations for mineral exploration in Dinagat Island. Furthermore, the diplomatic immunity of private respondent was sufficiently established by the letter of the Department of Foreign Affairs, recognizing and confirming the immunity of UNRFNRE in accordance with the 1946 Convention on Privileges and Immunities of the United Nations where the Philippine Government was a party. The issue whether an international organization is entitled to diplomatic immunity is a "political question" and such determination by the executive branch is conclusive on the courts and quasi-judicial agencies.

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 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. The issue is WoN Dr. Verstuyft enjoys diplomatic immunity. The SC held that yes, he does enjoy diplomatic immunity. The Executive branch expressly, through the Solicitor General as the principal law officer, recognized Dr. Verstuyft’s diplomatic immunity and this may not be assailed or ignored by the Judiciary. This is because diplomatic immunity is a political question and may only be recognized and affirmed by the Executive branch. Therefore, Judge Aquino’s continuation of the search and seizure procedure was beyond his 55

Immunity is necessary to assure unimpeded performance of their functions. The purpose is "to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions.” 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 1. Diplomatic immunity may be recognized under Host Agreements. 2. Declarations of the Executive branch upon the status of a person in relation to his diplomatic immunity may not be assailed or ignored by the other branches of government. This is based on the principle that determination of diplomatic immunity is a political question, and is supported by the separation of powers of the branches of government.

ICMC v. CALLEJA

Liang v. People

SPS. Lacierda

jurisdiction. The search and seizure warrant is quashed. The ICMC is an international organization rendering voluntary and humanitarian services in the Philippines which is supposed to take charge of the refugee center for the Southern Vietnamese in Bataan. The Trade Unions of the Philipppines and Allied Services (TUPAS) filed with the Ministry of Labor & Employment a Petition for Certification Election among the rank and file members employed by the ICMC. This was opposed by ICMC as it believes it enjoys diplomatic immunity. The Bureau of Labor Relations Director Calleja reversed the decision of the Med-Arbiter and granted TUPAS’ petition. Hence, the case was raised to the SC Another case was filed before the SC posing a similar issue. The Philippine Government and the Ford and Rockefeller Foundations signed a Memorandum of Understanding establishing the International Rice Research Institute (IRRI) at Los Banos, Laguna. The IRRI was organized and registered with the SEC as a private corporation but PD 1620 granted it the status of an international organization. The Organized Labor Association in Line Industries and Agriculture (OLALIA), is a legitimate labor organization with an existing local union, the Kapisanan ng Manggagawa at TAC sa IRRI (Kapisanan, for short) in respondent IRRI The Kapisanan filed a Petition for Direct Certification Election with Region IV, Regional Office of the Department of Labor and Employment (DOLE). IRRI opposed the petition citing PD 1620. Director Calleja also granted its petition, and the matter was raised to the SC. ISSUE: WoN the grant of diplomatic privileges and ummunities to ICMC extends to immunity from the application of Philippine labor laws – YES… [see doctrine] ISSUE: WoN the Secretary of Labor committed grave abuse of discretion in dismissing the Petition for Certification Election filed by Kapisanan – NO… [see doctrine] The exercise of jurisdiction by the Department of Labor in these instances would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions. Liang is an economist working with ADB. He allegedly uttered defamatory words against fellow ADB worker. He was charged before MeTC with two counts of oral defamation. He was then arrested but he was subsequently released to custody of ADB Security Officer after posting bail. The following day, MeTC judge received an office of protocol from DFA stating that Liang is covered by immunity from legal process per agreement between ADB and Philippine Government. MeTC without notice to prosecution dismissed the two criminal cases. RTC reversed the MeTC ruling and ordered MeTC to enforce the warrant of arrest. Liang now argues before the SC that he is covered by immunity under the agreement. The issue is WoN Liang can be held liable for alleged offense despite alleged immunity. Yes. Under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming Liang is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions. Slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a crime, such as defamation, in the name of official duty. Lacierda et al. are employees of SEAFDEC, an international agency that is immune from suits because it was clothed with diplomatic immunity and enjoys functional independence and freedom from control of the state in whose territory its office is located. Meanwhile, respondents Platon et al. are officers and working with the management of SEAFDEC, ACQ. Sometime in 2000, JICA and SEAFDEC entered into a MOA whereby the former considered the Department of Agriculture as qualified in providing the 56

The raison d'etre for the immunities is the assurance of unimpeded performance of their functions by the agencies concerned. The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings.

The immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty.

Being an action against SEAFDEC, an international agency immune from suit, Lacierda et al’s case cannot prosper.

necessary services in implementing JICA’s training program. Lacierda et. al were selected by SEAFDEC to take part in JICA’s training program. Since the program required them to go to different places, they were given a cash advance, which is subject to liquidation (that is, they have to provide receipts for all their expenses, and any excess will be given back to JICA). Upon the conclusion of the training program, Lacierda, et al. submitted to SEAFDEC documents in support of their liquidation of cash advances and claim for reimbursement of expenses. However, an audit of the same showed that the “hotel receipts submitted were much higher that the actual amount that they paid on accommodation.” Thus, Lacierda, et al. were terminated for misrepresentation or false statements with intent to gain or take advantage and fraudulent machination for financial gain. More than a year later, Lacierda, et al. filed a complaint against Platon, et al. They claim that the immunity of suit of SEAFDEC is irrelevant since they (Lacierda et al) are suing Platon et al. in their individual and personal capacities for their commission of malicious, oppressive and inequitable actionable acts. They also prayed to be restored and returned to their respective work/positions in SEAFDEC; to be given the salaries, benefits and other privileges; to be awarded actual damages by reason of the deprivation of the salaries and benefits they should have received; and to be paid moral damages. The complaint was dismissed by the RTC Iloilo for want of jurisdiction over the subject matter and also for lack of jurisdiction over the person of Platon, et al. ISSUE: WoN the suit is one against Platon et. al—NO, THE SUIT IS REALLY ONE AGAINST SEAFDEC BECAUSE THE RELIEF SOUGHT FOR CANNOT BE GRANTED BY PLATON ET AL IN THEIR PERSONAL CAPACITIES. RULING: A perusal of the complaint would show that nothing in the averments would indicate that Platon et al. acted in their personal capacities or beyond the scope of their official functions. Lacierda et al. merely made general allegations to that effect. In reality, their allegations pertain to acts performed by Platon et al in their official capacity; acts which could not have been done had they acted in their personal capacities. At most it is mere lapses in investigation but still their actions were work related and within the scope of their functions as officials of SEAFDEC. As such, the suit against them is, in reality, a suit directed against SEAFDEC. The reliefs sought for by the Lacierda et al is directed at the SEAFDEC and not to the defendants who cannot perform the same in their personal capacity.

57